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Ananta Charan and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Misc. Cases Nos. 69, 77, 78, 79, 80, 81, 82 and 83 of 1950
Judge
Reported inAIR1951Ori27
ActsPreventive Detention Act, 1950
AppellantAnanta Charan and ors.
RespondentThe State
Appellant AdvocateV. Pasayat, Adv.
Respondent AdvocateAdv.-General
DispositionPetition dismissed
Excerpt:
.....discretion based on ratiocination rather than arbitrariness is always relatable to social and political atmosphere of a country of which the executive government is the best judge. the legislature has entrusted it with the executive head' of the state on account of the vantage ground that they occupy from which they can strike a happy balance between personal liberty and social control. in the detention act, however, the proper authority has to be satisfied that it was necessary to detain a person with a view to prevent him from acting; it should have been better if the detaining authorities should have said, in the grounds, that they consider it likely that the detenu should indulge in subversive or violent: but the implications are quite clear that they have satisfied themselves..........detention act enacted after the constitution. this, he urges, is sufficient indication that the detaining authority had not applied his mind to the facts and circumstances appearing against the petitioners. in the course of argument, he has pointed out that in some cases even the grammatical inaccuracies in the construction of some of the sentences have reappeared. his contention, therefore, is that there was no exercise of that mental process which is necessary in order that the detaining authority be satisfied that, in order to prevent the petitioners from acting in a manner prejudicial to the maintenance of public order, their detention was necessary. this deficiency deprives the order of the irreducible minimum of rationality and reasonableness under the constitution; (ii) the.....
Judgment:

Ray, C.J.

1. These cases arise out of petitions made by the petitioners named above for issue of writs of Habeas Corpus as against their detention under the Preventive Detention Act (iv [4] of 1960). Mr. V. Pasayat, Advocate, appears for all the petitioners amicus curias. The arguments advanced by him are common to all the cases and we, therefore, propose to pass one judgment covering all the petitions.

2. The arguments advanced are : (i) That the petitioners other than those of Cr. Misc. cases nos. 69, 79 and 83 are old detenus, and the respective orders of detention passed against them are based on the same grounds as on which they had been detained prior to the Preventive Detention Act enacted after the Constitution. This, he urges, is sufficient indication that the detaining authority had not applied his mind to the facts and circumstances appearing against the petitioners. In the course of argument, he has pointed out that in some cases even the grammatical inaccuracies in the construction of some of the sentences have reappeared. His contention, therefore, is that there was no exercise of that mental process which is necessary in order that the detaining authority be satisfied that, in order to prevent the petitioners from acting in a manner prejudicial to the maintenance of public order, their detention was necessary. This deficiency deprives the order of the irreducible minimum of rationality and reasonableness under the Constitution; (ii) The second ground urged is that the satisfaction of the detaining authority on the previous occasion cannot be relied on for the. satisfaction of the detaining authority for fresh detention after the passing of the Preventive Detention Act. In this connexion, a passage from an unreported decision of his Lordship the Chief Justice of Bombay High Court is relied on:

'The satisfaction which the law required was the satisfaction of the detaining authority when the order, was made and it was not open to the authority to fall back upon the satisfaction which was valid in 1948. Therefore, on this ground also the petitioners were entitled to succeed.'

(iii) Lastly, it was argued that the grounds, as supplied, are vague and cannot be held to be sufficient for the satisfaction of the detaining authority.

3. Contention No. (i) : It is difficult to say that because the self-same grounds formed the basis of the detaining authority's satisfaction on a subsequent occasion, it would necessarily follow that the mind of the authority concerned did not grapple with particular facts and circumstances of each individual's case. It is not that in one or two cases, new grounds have not been added. It cannot be ruled, as an absolute proposition of law. that once a man is detained under the preventive detention measure on the basis of his prejudicial activities, he cannot, on the expiry of the term, again be detained on the self-same grounds, particularly when there has happened nothing to show that his approach, from the standpoint of his political creed, to the political, social and economical problems of the society has undergone any change. It is not far too wrong to say that a man is to be judged by his association with politically dangerous individuals, or his advocacy of a cause, which, if pursued, involves manifestation of violence, sabotage, chaos and confusion in the present day social, political and economical set up of things, and is, otherwise, subversive of the established Government. His Lordship Chagla C. J. is reported to have said, in his judgment., (assuming that the quotation given in the newspaper 'Cross Roads, vol. II, no. 14, dated 4-8-1950' under the column 'Difference between Old and New' at p. 8 is correct etc.), while examining the question as to how long past acts would determine the rationality of a fresh order of detention, that 'he would refuse to lay down any specific period.' We are not inclined to accept unconditionally that the past acts of a man are not safe criteria of his propensities and likely future activities; on the other, hand, if he belongs to a particular group of political agitators whose ideals to subvert the present established Government by producing confusion and chaos in the society for the purpose of unbalancing the same and by various other activities of revolutionary character are well known, it would not be unreasonable for the administrative authorities to consider the detention of such persons as necessary to prevent them from acting in a manner prejudicial to the maintenance of the public order. Besides potential risks from a person's activities, granting that he has the definite frame of mind prone to the purpose, have to be determined by the surrounding circumstances including the political climate, both in the national and international spheres. If the members of a particular group of agitators are known to be, as a matter of habit, exploiting the situation, prevailing in the Country, and if their political aims, as judged from their past acts, are not offset by any change in their creed, and if there be no reasonable ground to believe that the particular member concerned's views have undergone fundamental change, it cannot be said that the circumstances do not constitute reasonable grounds for satisfaction of the detaining authorities. Besides, we, in Court, are labouring under the disadvantage's of not being able to investigate the authenticity of the allegations on which the orders of detention are based. As an abstract proposition of law, we are not ready to say that past acts should not be taken into consideration. I would here invite attention to an observation by Roxburgh and Lahiri JJ. of the Calcutta High Court in an unreported case to the effect that 'past activity at any rate of reasonably recent date alone might in some circumstance be considered by Government as alone justifying detention.'

Besides these detention orders are not punitive but preventive, so that if on the self same grounds they are detained from time to time, it does not amount to saying that they are punished twice or several times for the commission of a solitary and specific offence. Reasonableness of the ground involving exercise of executive discretion based on ratiocination rather than arbitrariness is always relatable to social and political atmosphere of a country of which the Executive Government is the best Judge. Grounds which would be insufficient for such satisfaction in one state of things would be over whelmingly sufficient in another state. So long and so far as the conditions justifying necessity for prevention exists, detention order made within the reasonable limits laid down by the Legislature would be quite justifiable. It would, be beyond our power of interference even if it does not fit within judicial strait jacket. The Legislature has entrusted it with the Executive Head' of the State on account of the vantage ground that they occupy from which they can strike a happy balance between personal liberty and social control.

4. The second ground is based upon the short summary of his Lordship Chagla C.J.'s decision in the Bombay case, referred to. Without questioning the correctness of that decision, we are inclined to hold that it has no application to the facts of the present case. In that case, as it has been pointed out by his Lordship, there was a wide divergence of grounds between the Public Security Measures Act, the law of the land for preventive detention in Bombay, prior to the enactment of the Preventive Detention Act, and the latter Act. The divergence, as pointed out by him, seems to be fundamental. Such divergence however, does not exist between the Preventive Detention Act (iv [A] of 1950) and the Orissa Act, that was formerly in force. The relevant sections in both the Acts are almost identical. His Lordship is reported to have said :

'According to the old Act it was sufficient, if a person had acted in the past or was acting in the present or was likely to act in future in prejudicial manner, to enable the detaining authority to pass an order. In the detention Act, however, the proper authority has to be satisfied that it was necessary to detain a person with a view to prevent him from acting; in a prejudicial manner.'

As I have already pointed out, there being no such divergence between Orissa Act and the present Preventive Detention Act, the decision has no relevance. There is another thing to which I must draw attention in this connexion, namely, that it is either assumed or acknowledged to be correct that for certain period the past acts of a citizen will be sufficient guide for the authorities to control his movements so as to prevent him from acting in a manner prejudicial to the public safety. If that be so, what will be the particular period is not for a Court of Justice to define nor any hard and fast rule can be laid down but it is for the detaining authorities to decide, particularly they being in the more advantageous position of having all the materials before them, a large part of which is not available to the Court.

5. Lastly, it has been argued that the grounds are vague. We know it is agreed unanimously by all the High Courts in India that whenever the grounds are found vague, the detenu is entitled to an order of release from the Court. What vagueness is in this relation has seldom been defined. In order to determine that they are vague, we have to keep in view the purpose for which the grounds are supplied. They are supplied in order to enable the detenu to make a representation to the detaining authority refuting the correctness of the involved facts and inferences founding the grounds. They can be held to be vague if the minimum of information that will entitle the detenu to present a case in his expected representation is not available on the face of it. Besides as I would hold that the vagueness consists in that the reasons of apprehension of the detaining authority are too remote being mere possibility upon possibility or contingency upon contingency. In the American Courts, in administering the law of preventive detention, they always set before them as guide a rule known as 'clear and immediate danger rule' which, I think, throws some light on what vagueness should mean in such cases. If the acts of the detenu or his mental frame or his political association or creed are of uncertain implications and there is 110 prospect of his taking to dangerous or violent activities in response to them, or, in other words, if under the cause-and-effect rule circumstances reveal no proximity between the apprehension and the possibility of his future activities and the reasons given for the preventive orders, they can be considered vague. As I have said, if the grounds are vague, certainly the detenus are entitled to an order of release In this connexion we have carefully examined the grounds in each individual case. Except in the case of petitioner Bharat Jena in cr. Misc. No. 80/50, we find that the grounds are definite, clear, precise and stand the test of clear and immediate danger rule. It should have been better if the detaining authorities should have said, in the grounds, that they consider it likely that the detenu should indulge in subversive or violent: activities in a manner prejudicial to the maintenance of public order. But the implications are quite clear that they have satisfied themselves that the detenus concerned must be kept in custody in order to prevent them from acting in the aforesaid manner.

6. So far as Bharat Jena is concerned, the grounds supplied to him, we consider, are too vague to support an order of detention. He is said to be of a desperate character and his political creed is said to be communism. None of these ideas would carry us to any sense of certainty in relation to his proneness to act in a prejudicial manner endangering the social order. Besides, these are not sufficient to enable him to make a representation to the authorities concerned.

7. In some cases, Mr. Pasayat wanted to convince us that some allegations with regard to the activities of some of the detenus are false. He could not, however, supply us the necessary materials for it except his own assertion which, assuming they are true, we could hardly act upon. Besides, it would be the function of the Advisory Board to test the correctness of these allegations and the Board will be in a more advantageous position than ourselves to consider representations of the detenus after examining all the material records including Police and other reports of a confidential character. As the detenus have been in custody for nearly 6 months and their cases are going to be reviewed by the Advisory Board, we should not concern ourselves with the requisite enquiry.

8. In these circumstances, we dismiss the petitions of all the aforesaid petitioners except that of Bharat Jena in or. Misc. No. 80/50, who, we direct, shall at once be set at liberty.

Narasimham, J.

I agree.


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