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Thangudu Varaha Narasimhamurty Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCr. Misc. Nos. 158 and 170 of 1950
Judge
Reported inAIR1951Ori251
ActsPreventive Detention Act, 1950 - Sections 3(1) and 7; Constitution of India - Articles 19(1) and 22(6)
AppellantThangudu Varaha Narasimhamurty
RespondentThe State
Appellant AdvocateP.V.B. Rao and ;G.N. Murty, Advs.
Respondent AdvocateGovt. Adv.
DispositionPetition dismissed
Cases ReferredA. K. Gopalan v. State
Excerpt:
.....as are sanctioned by law, & warrant, do the satisfaction of the concerned authority, an order of preventive detention, it cannot be invalidated by the failure on the part of the said authority to comply with the conditions subsequent. the contention advanced in the form stated above must necessarily fail. they are inferential deductions in term3 of the social orders sought to be maintained in the interest of the general public in order to fulfil the constitutional guarantee of affording opportunity to be heard in defence, the acts, that bear out the offensive conduct of the persons accused & bear the next proximate relation to it, are also to be given out as a part of the grounds the ambit whereof is to be determined in the particular facts of every case. in this view of the matter,..........cc. 768/50 office of the subdivisionalmagistrate, berhampur,dated, 26-11-1950.order under the preventivedetention act, 1950.whereas i. k. ramamurty, i. a. s., subdivisional magistrate, of berhampur, ganjam district, am satisfied that with a view to preventing t. k. n. murty, proprietor of neelakhanteswar rice mills, berhampur from acting in any manner prejudicial to the maintenance of supplies & services essential to the community, it is necessary no to do, i. k. ramamurty, i. a. s., sub-divisional mag. barhampur, in exercise of the powers conferred by sub-cl. (iii) of cl. (a) of subs. (1) of schedule , preventive detention act,1950 (iv [4] of 1950) read with schedule thereof, am pleased to direct that the said t. v. murty, be detained for a period of three months until 7-2-1941 &.....
Judgment:

Ray C.J.

1. These eases arise out of two petns. presented by the self same petnr. Thangndu Varaba Naraeimhamurty, impugning the validity of two detention orders, one, dated, 8-11-1950 & another, dated, 26-11-1950. The second order replaced the first. Except foe some verbal alterations, the orders are the same in all essential particulars. By the time the first Misc. case was filed, the second order of 26th November had not been passed. Therefore, the petnr. thought it appropriate that he should impugn the second order, virtually the order authorising the detention, by another petn. The latter is registered as Misc. case No. 170. At its admission for hearing, it was directed to be heard along with the previous case, Or. Misc. Case no. 158 of 1950.

2. The petnr. has been directed to be detained since 8-11-1950, till 7-2-1951, for a period of three months. The detention order has been passed under the provisions of sub-cl. (iii) of cl. (a) of Sub-section (1) of Section 3, Preventive Detention Act, 1950 (Central Act, IV [4] of 1950), read with 8. A thereof, by the Sub-divisional Mag. of Berhampur, district Ganjam. The order reads as follows:

No. CC. 768/50 Office of the SubdivisionalMagistrate, Berhampur,Dated, 26-11-1950.

ORDER UNDER THE PREVENTIVE

DETENTION ACT, 1950.

Whereas I. K. Ramamurty, I. A. S., Subdivisional Magistrate, of Berhampur, Ganjam district, am satisfied that with a view to preventing T. K. N. Murty, proprietor of Neelakhanteswar Rice Mills, Berhampur from acting in any manner prejudicial to the maintenance of supplies & services essential to the community, it is necessary no to do, I. K. Ramamurty, I. A. S., Sub-divisional Mag. Barhampur, in exercise of the powers conferred by sub-cl. (iii) of cl. (a) of subs. (1) of Schedule , Preventive Detention Act,1950 (IV [4] of 1950) read with Schedule thereof, am pleased to direct that the said T. V. Murty, be detained for a period of three months until 7-2-1941 & removed to the District Jail, Berhampur, for the purpose of detention in the said Jail.

This cancels the previous order dated 8-11-1950 & takes effect from the same date, i.e., from 8-11-1950.

3. The grounds of detention issued on the same date were received by the detenu on 27-111950. The grounds are:

'That on 5-10-50 you hoarded 596mda. of fine paddy, 96 mds. of fine rice & 25mds. of superfine rice, with an intention to sell in black market.

It is necessary for the maintenance of supplies & services essential to the community, to prevent you from doing these acts by detaining you under Act (IV [4] of 1950.)

You have a right of representation against this order which you may exercise by presenting it in writing through the Sub-Divisional Magistrate, Berhampur, within 15 days from the receipt of these grounds.'

4. It may be noted that he had been informed of his right of representation, & the grounds for his detention, on 8-11-1950, the date when the detenu had been taken into custody by virtue of the first order. There is no substantial difference between the two versions of the grounds supplied.

5. The cases had come up before us on 22-12-1950. In course of the hearing, it appeared to us that in virtue of Schedule of the Act, in every case where a detention order had been made under Sub-clause (iii) of clause (a) of Sub-section (1) of Section 8 by an officer satisfied under Sub-section (2) of the section, it was necessary that the State Govt. to which the officer concerned was subordinate should, within 6 weeks from the date of detention, place before the Advisory Board the grounds on which the order had been made the representation, if any, made by the person affected by the order & also the report made by such officer to the State Govt. We, therefore, made enquiries of the Govt. Advocate, who was representing the State Govt., if the mandatory provisions had, in the case before us, been complied with. He took time to make necessary enquiries & inform us. By consent of parties, further consideration of the matter had been set down for 23-1-1951.

6. We heard the learned counsel of both parties in relation to matters relevant to the consideration of petnr's case. On conclusion of the hearing we directed that the petns, be dismissed & that the reasons for the dismissal should be communicated later. On behalf of the Cl., I now proceed to give the reasons in the following few paras.

7. (a) The main ground that was urged strenuously by Mr. P. V. B. Rao, the learned counsel for the petnr. was that the grounds supplied being vague, indefinite & inadequate for making an effective representation to the State Govt. the order of detention was bad in law. He relied upon a few decisions in support of his contention. None of the authorities cited lend support to the contention that insufficiency of grounds would render the detention order invalid ab initio. In the very scheme of legislation for preventive detention authorised by the Constitution of India, the grounds for detention must have to be supplied later than issue of a detention order & its execution by the concerned authority, & service thereof on the detenu. If the grounds are such as are sanctioned by law, & warrant, do the satisfaction of the concerned authority, an order of preventive detention, it cannot be invalidated by the failure on the part of the said authority to comply with the conditions subsequent. Communication to the detenu of the grounds of detention is a subsequent condition. The purpose thereof is to give him an opportunity, as early as possible, to demur to the correctness, sufficiency & validity of the grounds in his defence, & to establish his innocence. Reference, in this connection, may be made to Schedule of the Act. The section runs as follows:

7 (1) When a person is detained in pursuance of a detention order the authority making the order shall, as soon as may be communicate to him the grounds on which the order baa been made, & shall afford him the earliest opportunity of making a representation against the order, in a ease where such order has been made by the Central Govt. to that Govt. & in a case where it has been made by a State Govt. on an officer subordinate thereto, to the State Govt.

(2) Nothing in Sub-section (1) shall require the authority to disclose fasts which it considers to be against the public interest to disclose.

8. The section speaks for itself & does hardly convey an idea, that communication of the grounds would be either contemporaneous with or previous to the issue of detention order, or, for the matter of that, the detention of detenu. It is not contended, here, that there has been any unreasonable delay in communicating the grounds to the detenu. The contention advanced in the form stated above must necessarily fail.

9. (b) The authorities cited do, however, establish that unreasonable delay in communication of the grounds or communication of inadequate or vague & indefinite grounds would make further detention of the detenu illegal. From this premise, it must follow that the Ct. approached for the purpose of issue of a writ of Habeas Corpus, shall be completely justified in directing the release of the detenu. This position of law has now been established beyond any controversy, & we do not dispute its correctness. In several oases of preventive detention that came before us previously, we have acted up to this very rule.

10. (c) The question that then arises is whether the grounds communicated, in the present case, are insufficient for the purpose of enabling him to make a representation in an effective manner so as to establish his innocence. We are of opinion that the grounds are definite & adequate for the purpose. The contention of the learned counsel proceeds from a misconception about the distinction between 'facts' & 'grounds'. Grounds are mainly if not solely, the reasons of detention. They are inferential deductions in term3 of the social orders sought to be maintained in the interest of the general public In order to fulfil the constitutional guarantee of affording opportunity to be heard in defence, the acts, that bear out the offensive conduct of the persons accused & bear the next proximate relation to it, are also to be given out as a part of the grounds the ambit whereof is to be determined in the particular facts of every case. The rules, in this connection, are bound to be flexible rather than hard & fast. In this view of the matter, the facts, illustratively stated' are incidents, events & circumstances, information, suspicions, conjectures & the like including the sources of information & the agencies set up in that behalf; they may constitute the background which determines the nature & character of the acts manifesting the grounds that eventuate necessity for detention. They may amount to proofs that set the machinery in motion. They are zealously guarded by the Legislature against disclosure. In the present case, the ground of his detention was that he was engaging himself in the activity of secreting considerable quantity of food-grains from out of their normal circulation so vitally necessary for the life of the community & thereby offended against the provision of Schedule (1) (a) (iii) of the Act. The ground also discloses that the object of such hoarding was to profiteer by selling the hoarded stock in black-market. Extent of hoarding is mentioned too. Variety of facts from multitudinous sources besides the confirmatory fact of hoarding might have come to the notice of the concerned authorities in order to lead them to the conclusion that the petnr. unless prevented was about to indulge in selling the essential food-grains in black market. All the relevant facts need not be disclosed. It so clearly appears from Sub-section (2) of the section. It might as well be that there was previous information as to the habit of black-marketing & no steps could be taken until the authorities had proof of one or more tangible relevant acts.

11. (d) Pre-existence of abnoxious antecedents assignable to a person carries with it susceptibilities or propensities of habitual indulgence in or recurrence of similar conduct in future. Hence flows the necessity for prevention by adoption of preventive measures such as, preventive detention of the person concerned. Mr. Rao tried to argue that as a licensed wholesale dealer in food-grains, such as paddy, rice, wheat, gram & pulses & c., he was entitled to 'hoard'. This argument overlooks the distinction between 'storing'. & 'hoarding'. The dictionary meaning of the word 'hoard', as a noun, is 'a hidden stock, a place for hiding anything', & 'to hoard' means 'to amass and deposit in secret'. That both the acts of 'hoarding' & 'selling in black-market are prejudicial to the maintenance of supplies essential to the community admits of no doubt. It is sought to be argued by Mr. Rao that, in its bearing on maintenance of essential supplies, selling in black-market is as good as Belling in open market, & it helps rather than defeats supply of the relevant commodity. The character of the resulting consequences of an act is to be judged not from the uncommon level of the rich & the substantial section of the community but from the economic level of the mass. The emphasis is upon the words 'essential to the community'. Viewed in this light, jit can be predicated without any fear of contradiction, that selling in the black-market amounts to interfering with the normal supply to the community at large. It hampers the scheme set on foot by the Govt. responsible for good social order, for ensuring distribution of supplies essential to the community, & for keeping the same going on, particularly, in times of scarcity & shortage of food-grains. It is com-1 plained that the Act is defective in the sense that it does not define nor enumerate essential supplies or prejudicial acts. With the best use of human ingenuity, such enumeration or definition is difficult of performance. Each case must be decided on its own facts. In this contest, the Ct. is always at an enormously relative disadvantage in coming to a conclusion of its own so as to be in a position as again at the concerned executive authority's decision to held that the condemned act does not come within the purview of the prescribed prohibited, acts; but, however, it is quite plain that the difficulty of the kind does not arise in the present case.

12. (e) It is next argued that preventive detention as a measure of social control with a view to safeguard the maintenance of supplies & services essential to the community is beyond the range of reasonable restrictions on the citizens' right to personal liberty & freedom. A more effective & reasonable measure of protection against the relevant social & communal evils could be effected by the Govt. requisitioning the secreted stocks & distributing the same to community by putting them back within the orbit of normal circulation. And besides, as a licensed dealer, the petnr. is liable to punishment for violating the terms & conditions thereof amongst which are included omission to keep proper accounts & selling. in black market & c. Any one or both of the last named measures could have been resorted to by the State Govt. or its subordinate authorities. In not doing so & in giving preference to the measure of preventive detention, they acted mala fide in the discharge of their functions.

13. (f) The principle of reasonable restriction or reasonableness of law imposing restriction upon the liberty of citizens has no application to the laws prescribing preventive detention. An argument on this Sins had boon advanced to their Lordships of the S. C. in the case of A. K. Gopalan v. State, 1950 S. C. R. 88 (A. I. R. (37) I950 S.C. 27 51 Cr. L. J. 1383). Article 19(5), Const. Ind. was prayed in aid for the purpose of impugning the validity of the Act. This argument could not be sustained according to the majority view of the Ct. The point has been elaborately dealt with & discussed in the judgment of Kania C. J. The discussion begins at p. 100 of the Schedule . Reports, 1950, Vol. I & ends at p 117. I would quote a passage from that learned judgment by way of negativing the contention advanced before us. His Lordship the Chief Justice observes:

'Article 22 envisaged the law of preventive detention. So does Article 246 read with Schedule 7 List I, Entry 9, & List III, Entry 3. Therefore when the subject of preventive detention is specifically dealt with in the Chapter on Fund mental Rights, I do not think it is proper to consider a legislation permitting preventive detention as in conflict with the rights mentioned in Article 19(1). Article 19(1) does not purport to cover all aspects of liberty or of personal liberty. In that Article only certain phases of liberty are dealt with. 'Personal liberty' would primarily mean liberty of the physical body. The rights given under Art 19(1) do not directly come under that description. They are rights which accompany the freedom or liberty of the person. By their very nature they are freedoms of a parson assumed to be in full possession of his personal liberty. If Article 19 is considered to be the only Article safeguarding personal liberty several well recognised rights, as for instance, the right to eat, or drink, the right to work, play, swim & numerous other rights & activities & even the right to life will not be deemed protected under the Constitution, I do not think that is the intention. It seams to me improper to read Article 19 as dealing with the same subject as Art, 21. Article 19 gives the rights specified therein only to the citizens of India while Article 21 is applicable to all persons. The word citizen is expressly defined in the Constitution to indicate only a certain section of the inhabitants of India. Moreover the protection given by Article 21 is very general. It is of 'law' whatever that expression is interpreted to mean. The Legislative restrictions on the law-making powers of the legislature are not here prescribed in detail as in the case of the rights specified in Article 19. In my opinion, therefore Article 19 should be read as a separate complete article.'

14. The items in List I, Entry 9 & List in, Entry 3 of Schedule 7, do authorise the Central as well as the State Legislatures to enact laws of preventive detention in relation to maintenance of supplies & services essential to the community & the limits put upon such legislative powers, according to the majority view of the S. C., are to be found out in Arts. 21 & 22 of the Constitution & not in Article 29(19) which are mutually exclusive.

15. (g) An argument has been advanced to us by way of indicating that by non-disclosure of further facts, the petnr. was prevented from making a defence to which ha had a right. It is , not, however, made clear to us how he has, if at all, been prejudiced in making an effective representation to the State Govt which was the only permissible mode of making out his defence under the Act In this connection too I would quote a passage from the judgment of Kania C. J. in the same report at p. 125:

'A right to lead evidence against facts suspected to exist is also not essential in the case of preventive detention. Article 22(8) permits the non-disclosure of facts. That is one of the clauses of the Constitution dealing with fundamental rights. If even the non-disclosure of facts is permitted. I fail to see how there can exist a right to contest facts by evidence & the non-inclusion of such procedural right could make this Act invalid.'

16. (h) To meet Mr. Rao's argument, I cannot do better than quote a passage from Willis on Constitutional Law:

'Businesses affected with a public interest may be subject to social control in the exercise of the police power when such social control is not applied to any other members of society In fact until quite recently at. least, there has been some social control which may be applied to businesses affected with a public interest which cannot be applied elsewhere. It is a proper exercise of the police power to apply this social control to this particular class of businesses because of the social interest in general economic progress, although other social interests, like the social interest in the individual life, are also involved.'

17. (i) To the argument of Mr. Rao the learned counsel for the patnr. that for the selfsame act of the petnr., as a licensed dealer, could be dealt with in a punitive measure rather than preventive, I would reply that the act, complained of, is not done by him in his jurisdiction as a licensee but stands completely outside it.

18. (j) Before concluding, I shall point out that the executive action of inspecting his mill premises & the examination of relevant accounts were undertaken within the petor's knowledge. The grounds communicated to him contained. sufficient information so as to lead him to make out, to the satisfaction of the State Govt. or the Advisory Board, by his representation that the stocks suspected to have been hoarded for the purpose of sale in black-market did really belong to his customers & were beyond his power of disposition. As I have already said, we have had the privilege of looking to the Advisory Board's report & recommendation to the Govt. of Orissa. We do not feel inclined to think that he has at all been prejudiced in his defence by any omission & deficiency in the grounds or particulars supplied to him.

19. In the premises aforesaid, we hold that the petns. have no merit & be dismissed.

Narasimham, J.

20. I agree.


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