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Fulchand Agarwalla Vs. District Magistrate and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 237 of 1967
Judge
Reported inAIR1968Ori109; 34(1968)CLT34; 1968CriLJ954
ActsPreventive Detention Act, 1950 - Sections 3, 7, 7(1) and 7(2); Constitution of India - Article 22(5) and 22(6)
AppellantFulchand Agarwalla
RespondentDistrict Magistrate and anr.
Appellant AdvocateR.N. Misra and ;R.C. Patnaik, Advs.
Respondent AdvocateGovt. Adv. for ;Adv. General
DispositionPetition dismissed
Cases Referred(Puranmall Lakhanpal v. Union of India
Excerpt:
.....essential to the community. that you and your gang are engaged in surreptitious sale of milk powder received for distribution in the drought-affected areas of 'high-price-fetching' markets of cities like calcutta and other places. assuming that some of the grounds furnished to the detenus were specific the remaining grounds being vague the entire impugned order is bad in law it was contended that the direction for communication of the grounds of detention, provided in sub-section (1) of section 7 of the act must be complied with unless it involved disclosure of facts which the appropriate authority considers to be against the public interest to disclose as provided in sub-section (2) of that section 8. what is meant by 'vague' grounds of detention was considered and clarified..........detenus, were these: 'that you are a member of a gang of racketeers dealing in transport of gift milkpowder received in kalahandi district and the other parts of the area to neighbouring states of bengal. bihar and madhya pradesh. that you are instrumental in habitual and organised fabrication of documents to smuggle the aforesaid milk powder out of this state in collaboration with other members of your gang who are vet to be apprehended. that you and your gang are engaged in surreptitious sale of milk powder received for distribution in the drought-affected areas of 'high-price-fetching' markets of cities like calcutta and other places. that milk powder is a commodity the smooth supply of which is essential to the community with reference to the distressing food situation in the.....
Judgment:

Barman, C.J.

1. The petitioner is the brother of two detenus Puranmal Agarwalla and Srikishan Agarwalla of Kesinga in Kalahandi District, both detained in Boudh Sub-Jail under two impugned orders (in identical terms) dated August 18. 1967 passed b the District Magistrate of Phulbani under Section 3(1) (a) (iii) of the Preventive Detention Act 1950 (Central Act IV of 1960-hereinafter referred to as the Act) upon being satisfied, with respect of the said two detenus, that with a view to preventing them from acting in any manner prejudicial to the maintenance of supplies essential to the community, it was necessary to make the said impugned orders. The said impugned orders are challenged in this writ petition on the ground that the 'grounds' on which they were made are vague and further that no opportunity was afforded to the said detenus ot making a representation against the impugned orders

2. Section 3(1) (a) (iii) of the Act is this:

'3(1). The Central Government or the State Government may-

(a) if satisfied with respect to any person that with a view to preventing him fromacting in any manner prejudicial to

* * * * * ** * * * * * (iii) the maintenance of supplies andservices essential to the community.

* * * * * * It is necessary so to do, make an order directing that such person be detained.'

3. Section 7 of the Act under which the grounds of the order of detention are to be disclosed to the persons affected by the order and earliest opportunity of making a representation against the order is to be afforded to them, provides 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, but not later than five days, from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose '

Section 7(1) and (2) of the Act is in the same terms as Article 22 (5) and (6) of the Constitution.

4. The two detenus, along with their lather and other brothers, carry on partnership business at Kesinga in Kalahandi district under the name of Messrs Pannalal Phulchand, On August 18. 1967 the District Magistrate of Phulbani served on them the two impugned orders- In pursuance of the said orders the were taken into custody on August 19. 1967 and were detained in the sub-Jail at Boudh. On August 21, 1967 they made an application to the District Magistrate requesting him to furnish them with the grounds on which they had been so ordered to be detained, as required under Section 7 of the Act, in order to enable them to make a representation to the prescribed authority against the orders. The following day, on August 22, 1967 the District Magistrate communicated to the detenus the grounds in compliance with Section 7 of the Act. Within three days thereafter the petitioner filed the present writ petition on August 25, 1967 against the District Magistrate, Phulbani and the Superintendent of the Sub-Jail, Boudh as opposite parties The District Magistrate. Phulbani filed a counter-affidavit on behalf of the opposite parties on September 19. 1967

5. In the petition, there is a reference to an accident in the month of June 1967 in which a motor truck of the transport agency business, of the detenus' family, carrying some milk powder and other materials, was involved In paragraph 5 of the petition it is stated that it transpired that the consignment carried by the truck was milk powder. It is also stated that about a month thereafter (or July 12. 1967) the godown of the firm of the petitioner was searched by the Civil Supplies authorities and the police, said to be in connection with a case under Section 3 of the Gift Goods (Unlawful possession) Act. 1965. The search list shows that no milk powder was found, with regard to the incident of the truck convening milk powder meeting with an accident as stated In the petition, the District Magistrate in paragraph 4 of his counter-affidavit stated as follows:

'There is evidence to the effect that two agent? of the detenus who were travelling in the truck have since absconded. There is also evidence to the effect that the detenus were present when the gift milk powder was loaded into the truck camouflaged under a small load of onions for a surreptitious trip to Calcutta which unfortunately ended in the accident. The truck was utilised for transport of milk powder, by the detenus in close collaboration with other members of their gang'

The District Magistrate further stated that the investigation arising out of the said truck accident is now pending and that it would not be in the public interest to disclose further facts regarding the same as provided in Section 7(2) of the Act.

6. The grounds of detention, which were communicated to the two brother detenus, were these:

'That you are a member of a gang of racketeers dealing in transport of gift milkpowder received in Kalahandi district and the other parts of the area to neighbouring States of Bengal. Bihar and Madhya Pradesh.

That you are instrumental in habitual and organised fabrication of documents to smuggle the aforesaid milk powder out of this State in collaboration with other members of your gang who are vet to be apprehended. That you and your gang are engaged in surreptitious sale of milk powder received for distribution in the drought-affected areas of 'high-price-fetching' markets of cities like Calcutta and other places.

That milk powder is a commodity the smooth supply of which is essential to the community with reference to the distressing food situation in the drought-affected areas.

That by such illicit transport and black market of milk powder you have been deliberately instrumental in hindering the sup-ply of a commodity which is essential to the community.

Reasonable apprehension exists that you will progressively indulge in such prejudicial ads in collaboration with other members of the gang unless apprehended

In order therefore to prevent you from acting in such prejudicial manner you have been ordered to be detained,'

7. The points, argued on behalf of the petitioner challenging the impugned orders, are, in substance, these: The grounds furnished to the detenus were vague in that there was no indication of the time factor, nor the place of the detenus' alleged activity, nor as to who were the members of the alleged gang nor as to their past conduct. Assuming that some of the grounds furnished to the detenus were specific the remaining grounds being vague the entire impugned order is bad in law it was contended that the direction for communication of the grounds of detention, provided in sub-section (1) of Section 7 of the Act must be complied with unless it involved disclosure of facts which the appropriate authority considers to be against the public interest to disclose as provided in Sub-section (2) of that section

8. what is meant by 'vague' grounds of detention was considered and clarified by the Supreme Court; and the test as to what is or what is not vague has been laid down thus in State of Bombay v Atmnram. AIR 1951 SC 157 at p. 164:

' 'Vague' can be considered as the antonym of 'definite' If the ground which is supplied is incapable of being understood or defined with sufficent certainty, it can be called, 'vague.' It is not possible to state affirmatively more on the question of what is vague. It must vary according to the circumstances of each case. It is however improper to contend that a ground it necessarily vague If the only answer of the detained person can be to deny it That is 0 matter of detail which has to be examined in the light of the circumstances of each case If on readingthe grounds furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable a detained person to make any representation against the order of detention, it cannot be called vague.'

9. The question is in the present case, are the grounds of detention as communicated to the detenus, if intelligently understood, sufficiently definite as furnishing materials to enable the detenus to meet them? In our opinion, in the present case the grounds as furnished to the detenus are not at all vague; they are sufficiently intelligible as to afford to the detenus an opportunity of making a representation against the impugned orders. The subject-matter in respect of which the detenus are alleged to have been dealing as members of a gang of racketeers is specifically stated to be the transport of gift milk powder received in Kalahandi district the places of the activities of the gang of racketeers including the detenus are also mentioned in the ground, namely, Kalahandi district, other parts of that area and also for neighbouring States of Bengal, Bihar and Madhya Pradesh. The second ground is the alleged smuggling by the detenus of gift milk powder; the modus opeandi of such alleged smuggling is also stated to be habitual and organised fabrication of documents in collaboration with other members of the gang; the third ground is alleged to be surreptitious sale, by the detenus and their gang, of milk powder received for distribution in the drought-affected area. In 'high-price-fetching markets'; and the places of operation of such malpractices are specified, namely, Calcutta and other places. It is also Cleary mentioned in the grounds that smooth supply of milk powder is essential to the community particularly in view of the distressing food situation in the drought-affected areas; it is further mentioned that the detenus were indulging in illicit transport and black marketing of milk powder and were thereby deliberately instrumental in hindering the supply of a commodity essential to the community. There is nothing in any of these grounds which is incapable of being understood: they were sufficiently definite furnishing materials to enable the detained persons to make a representation against the order of detention. Thus applying the tests discussed above, the grounds as communicated to the detained persons cannot be called vague.

10. The right of a detenu to be furnished with facts or particulars is subject to the limitation in sub-section (2) of Section 7 of the Act (which is the same as Article 22(6) of the Constitution) and even if the grounds communicated are not as precise and specific as might be desirable, the appronriate authority has the right to withhold such facts or particulars, the disclosure of which he considers to be against the public interest. Under Section 3 of the Act, it is the satisfaction of the appropriate authority whichis necessary for an order of detention and if the grounds, on which the appropriate authority has said that he is so satisfied, have a rational connection with the objects which are to be prevented from being done, the question of satisfaction cannot be challenged in a court of a law except on the ground of mala fides.

Section 7(1) (same as Article 22(5) of the Constitution) confers two rights on, the detenu, namely, first, a right to be informed of the grounds on which the order of detention has been made and secondly, to be afforded the earliest opportunity to make a representation against the order. If the grounds which have a rational connection with the objects mentioned in Section 3 are supplied, the first condition is complied with. But the right to make a representation implies that the detenu should have such information as will enable him to make a representation and if the grounds are not sufficient to enable the detenu to make the representation he can rely on the second right. The second right, however, is again subject to the right of privilege given in sub-section (2) of Section 7 of the Act; and the obligation to furnish the grounds and the duty to consider whether the disclosure of any facts involved therein is against the public interest are both vested in the detaining authority and not in any other. (Puranmall Lakhanpal v. Union of India, AIR 1958 SC 163).

11. Here, did the District Magistrate afford the two detenus the earliest opportunity of making a representation against the impugned orders or was there any delay in affording the detenus such opportunity The grounds being the heads from which the District Magistrate was satisfied that it was necessary to pass the orders of detention, there can be no addition to the grounds. This, however, does not mean that all the 'facts' leading to the conclusion mentioned in the grounds must be conveyed to the detained person at the same time the grounds are conveyed to him. The facts on which the conclusions mentioned in the grounds are based must be available to the District Magistrate, but there may be cases where there is delay or difficulty in collecting the exact data or it may not be convenient to set out all the facts in the first communication. If the second communication contains no further conclusion of fact from facts, but only furnishes all or some of the facts on which the first mentioned conclusion was founded, It is obvious that no fresh ground for which the order of detention was made is being furnished to the detained person by the second communication which follows some time after the first communication. As regards the contents of that communication, therefore, the test appears to be whether what is conveyed in the second communication is a statement of facts or events, which facts or events were already taken into consideration in arrivingat the conclusions included in the around already supplied.

In the present case there was no unnecessary delay, in that after the service of the impugned orders on August 18, 1967, on the two detenus, they were arrested the following day, on August 19, 1967; the grounds were communicated to them on August 22, 1967; thereafter within three days, on August 25, 1967, the petitioner (brother of the two detenus) rushed to the Court and filed the present writ application. No opportunity was given to the District Magistrate to complete the investigation and furnish further facts on which the conclusion included in the grounds already communicated was founded, but yet there was no delay or denial of opportunity to the detenus of making a representation against the impugned orders as alleged because the petitioner did not allow sufficient lime to elapse for the second communication after the first communication furnishing the grounds on August 22. 1967, In our opinion, the petitioner rushed to Court in hot haste. In these circumstance, it is not open to the detenus to complain that the District Magistrate did not give them an opportunity of making a representation against the impugned orders.

12. That apart, in view of our finding that the grounds as communicated to the detenus on August 22 1967, were sufficiently definite and not vague, and also having regard to the submission made by the District Magistrate, which we accept, to the effect that he considered the disclosure of further facts to be against the public interest -- all as discussed above -- there is no substance in any of the contentions made on behalf of the petitioner.

13. In this view of the case, this writ petition must fail. It is accordingly dismissed with costs Hearing fee Rs. 100 (Rupees one hundred only).

A. Misra, J.

14. I agree.


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