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Didar Singh Vs. State of Punjab and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1982CriLJ1379
AppellantDidar Singh
RespondentState of Punjab and anr.
Cases ReferredGora v. State of West Bengal
Excerpt:
.....passing of the said order. - it is equally well settled that sufficiency of evidence before the detaining authority is not a matter for courts to decide. the order of detention issued in the present case will have to be scrutinized and considered in the light of these well established principles. if it lacks in sufficient particulars, the detenu would have a right to call for better particulars. 9. having regard to the above discussion, the following well established principles emerge. this is a constitutional requirement of article 22(5) as well as the statutory requirement of section 8 of the act. the fact that the order of detenlion suffers from the vice of vagueness, by itself, may render it bad and illegal. in such a case the detenu would be entitled to claim further better..........means 'materials' on which the order of detention is primarily based. apart from conclusions of facts 'grounds' have a factual constituent, also. they must contain the pith and substance of primary facts but not subsidiary facts or evidential details.7. in khudiram das's case, (1975 cri lj 446)(supra, the scope of article 22(5) was considered by the supreme court. it was pointed out that the requirement of communication of grounds of detention acts as a check against arbitrary and capricious exercise of power because the detaining authority cannot whisk away a person and put him behind bars at its own sweetwill. it must have grounds for doing so and those grounds must be communicated to the detenu, so that, not only detenu may know what are the facts and materials before the detaining.....
Judgment:
ORDER

S.S. Dewan, J.

1. In this application for a writ in the nature of habeas corpus, the detenu is challenging the order of detention passed by the District Magistrate Ropar, Under Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (for short, the Act). The said order was made with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of supplies of essential commodities to the community in future. The incidents relied upon in the grounds of detention served on the detenu read as follows:

(i) That during the year 1980-81 with a view to enter into the prejudicial acti- vities of black marketing of essential commodities i. e. cement, you, Ajmer Singh s/o Ganga Singh, resident of village Dhakoran, P.S. Kurali, now at Quarter No. H M-13, Phase 2, Mohali, undertook the construction of private buildings through contracts with various s persons and in that process you saved cement which was entrusted to you for the abovesaid purpose by those persons and started storing the same in House No. HM-13, Phase No. 2, Mohali and Workshop near Rubber Factory, Industrial Area, Mohali;

(ii) that out of the above referred saved stored cement, you Ajmer Singh in the month of April; 1981, sold the bags of cement to Kewal Krishan s/o Kapur Chand. resident of Dana Mandi Moga and Inderjit alias DiUa s/o Nand '- Lai resident of House No. 1106, Sector 21-B, Chandigarh, both have temporary abode at Plot No. 54-C, Industrial Area, near Punjab Anand Batteries, Mohali @ Rs. 50/- per bag in black market against the fixed market price of Rupees 27.55 to 28.05 per bae of cement without any valid licence for sale of cement, which cement later on was seized by the police in case FIR No. 23 dated 10-4-81 Under Section 458/380/342 IPC, P.S. Morinda, in which the said Kawai Krishan and Inderjit alias Dilla were interrogated who '** disclosed that 600 bags of cement referred to above were purchased from you and as such you were arrested and interrogated in a connected case, FIR No. 24 dated 5-4-81 Under Section 458/380/342, IPC P.S. Morinda;

(iii) that during the last week of Mar., 1981, you Aimer Singh agreed to supply 50 bags of cement @ Rs. 60/- per bag to Ranjit Singh s/o Sarwan Singh, resident of Village Kalawal P.S. Kurali in black market from your above stored cement at Mohali and physically supplied the said bags on the next day of the aforesaid agreement from your abovesaid Workshop at Mohali and

(iv) that during the first week of Apr., 1981. you Ajmer Singh agreed to supply 20 bags of cement @ Rs. 55/- per bag to Prem Nath s/o Dashondhi Ram Brahmin resident Kurali in black market from your above stored cement at Mohali and physically supplied the said bags on the next day of the aforesaid agreement from your abovesaid Workshop at Mohali.

2. The representations made by the detenu were forwarded to the Govern- ment. In obedience to Section 10 of the Act, the case of the detenu was placed by the State Government before the Advisory Board on Sept. 14, 1981. The grounds of detention' were also placed before the Advisory Board in order to enable it to give its opinion. The Advisory Board submitted its report to the State Government on Oct. 9, 1981. The State Government, on receipt of the report of the Advisory Board, passed an order dated Oct. 20, 1981 confirming the detention of the detenu Under Section 12 of the Act and this order of confirmation, (copy annexure P. 4, was intimated to the detenu. It is this detention, originating from the order dated Aug 31, 1981, approved by the State Government and continued under the order of confirmation passed by the State Government, that is being challenged in the present petition by the detenu through his son Didar Singh, on the grounds:

(i) that the detention order passed by the District Magistrate was mala fide;

(ii) that the detaining authority was exlremely casual in its approach and the impugned order was passed without application of mind;

(iii) that the grounds of detention are vague and in' consequence the detenu was deprived of the opportunity of making a proper representation; and

(iv) that there was time lag between the activities of the detenu as enumerated in the grounds of detention and the date on which detention order was passed.

3. In reply to the contentions raised in the petition, the District Magistrate, Ropar, has filed his detailed affidavit. The detaining authority has denied that the detention order was passed in mala fide exercise of the power conferred on it or that it suffers from non-application of mind or was issued for any purpose other than those mentioned in the order itself. According to the detaining authority after applying his mind to the material placed before him, he has issued the detention order only after satisfying himself that it was necessary to do so, so as to prevent the detenu from indulging in prejudicial activities. It is also denied in the affidavit that the grounds of detention supplied to the detenu were vague.

4. In the present case we are dealing with acts or incidents involving an economic offence. Black marketing acti- vities are clandestinely organised and carried on. The present Act was enacted to check large scale black-marketing activities as normal machinery was found unequal to check large scale black-marketing due to its clandestine motive of operation. It is equally well settled that sufficiency of evidence before the detaining authority is not a matter for Courts to decide. More so, when the particulars furnished to the detenu bear a rational connection with the object to be achieved viz. preventing the detenu from carrying on prejudicial activities. In the case of this kind, the investigation as to the truthfulness of the facts forming basis of the grounds of detention cannot also be embarked. Therefore, while exercising peripheral jurisdiction in matters of preventive detention it is not possible for this Court to enter into a detailed scrutiny either regarding sufficiency of evidence or its truthfulness. The order of detention issued in the present case will have to be scrutinized and considered in the light of these well established principles. It is quite obvious from the grounds of detention that in order to indulge in black-marketing of cement, the detenu started construction work, sold 600 bags of cement in the month of Apr.. 1981 to Kewal Krishan son of Kapur Chand, resident of Dana Mandi, Moga and Inderjit son of Nand Lai, resident of H. No. 1106, Sector 21-B, Chandigarh, @ Rs. 50/- per bag. During the last week of Mar., 1981. hte agreed to sell and did sell 50 bags of cement @ Rs. 60/-per bag to Ranjit Singh son of Sarwan Singh, resident of village Kalewal, P.S. Kurali and during the first week of Apr., 1981, he agreed to sell and did supply 20 bags of cement @ Rs. 55/- per bag to Prem Nath son of Dashondhi Ram. Bramin resident of Kurali. On the basis of these transactions it was inferred by the District Magistrate that if the detenu was not detained, he was likely to indulge in the commission of such acts of black-marketing in future. Therefore, in my opinion on the basis of the facts and circumstances of the case, the detaining authority could have arrived at the satisfaction contemplated by Section 3 of the Act. Therefore, it is not possible for me to accept the contention of the learned Counsel for the petitioner that there was no proper application of mind by the detaining authority or that the detention order was mala fide.

5. It was then contended on behalf of the detenu that the grounds of detention were vague and in consequence the detenu was deprived of the opportunity of making a proper representation and reliance was placed on the decisions in Dr. Ram Krishan Bhardwai v. State of Delhi : 1953CriLJ1241 ; Khudiram Das v. The State of West Bengal, : [1975]2SCR832 and Smt. Shalini Soni v. Union of India : 1980CriLJ1487 . In my opinion there is no substance in this contention of the learned Counsel also. Having regard to the facts of the present case, I do not think that the aforesaid decisions can assist the detenu. The object of communicating the grounds to the detenu is to enable him to make a representation and, therefore, the grounds must nol be vague. If it lacks in sufficient particulars, the detenu would have a right to call for better particulars. It is necessary to indicate in the grounds with fair precision and certainty the basic facts and material on which the subjective satisfaction of the detaining authority, regarding the future behaviour of the detenu, is founded.

6. The Supreme Court had occasion to consider the true meaning of the word 'grounds'. In Vakil Singh v. State of J. and K. : 1975CriLJ7 . rejecting the contention that the grounds communicated to- the detenu were vague and therefore the order of detention was illegal, the Court observed (para 29):

'Grounds' within the contemplation of Section 8(1) of the Act means 'materials' on which the order of detention is primarily based. Apart from conclusions of facts 'grounds' have a factual constituent, also. They must contain the pith and substance of primary facts but not subsidiary facts or evidential details.

7. In Khudiram Das's case, (1975 Cri LJ 446)(supra, the scope of Article 22(5) was considered by the Supreme Court. It was pointed out that the requirement of communication of grounds of detention acts as a check against arbitrary and capricious exercise of power because the detaining authority cannot whisk away a person and put him behind bars at its own sweetwill. It must have grounds for doing so and those grounds must be communicated to the detenu, so that, not only detenu may know what are the facts and materials before the detaining authority on the basis of which he is being deprived of his personal liberty, but he can also invoke the powervof judicial review, however, limited and peripheral it may be. The other aspect is that the detenu has to be afforded an opportunity of making a representation against the order of detention but if the grounds are not communicated then this right of making a representation would be rendered illusory. Bearing in mind these aspects, the Court observed (para 6):

If this be the true reason for providing that the grounds on which the order of detention is made should be communicated to the detenu, it is obvious that the 'grounds' mean all the basic facts which have been taken into account by the detaining authorily in making the order of detenlion and on which therefore the order of detention is based.

8. In that case a reference was also made to the observations of the Supreme Court in Gol-am alias Golam Mallick v. State of West Bengal, 1976 Cri LJ 630, where the word 'grounds' was construed in the following words (at p. 631):.in the context, 'grounds' does nol merely mean a recital or reproduction of a ground of satisfaction of Ihe authorily in the language of Section 3 of the Act; nor is its connotation restricted to a bare statement of conclusion of fact. It is the factual constiiuent of the 'grounds' on which the subjective satisfaction of the authority is based. The basic facts and material particulars therefore, which are the foundation of the order of detention, will also be covered by 'grounds' within the contemplation of Article 22(5) and Section 8 and are required to be communicated to the detenu unless their disclosure is considered by the authority to be against the public interest.

9. Having regard to the above discussion, the following well established principles emerge. A detenu is entitled to be furnished with the grounds of detention to enable him to make a representation. This is a constitutional requirement of Article 22(5) as well as the statutory requirement of Section 8 of the Act. But such grounds furnished to the detenu must not be vague. If they are vague, there is no question of his making representation. The fact that the order of detenlion suffers from the vice of vagueness, by itself, may render it bad and illegal. Vague grounds, however, must be distinguished from the grounds being insufficient in particulars. In such a case the detenu would be entitled to claim further better particulars. It is also clear that the grounds should specify not merely the bare allegations of facts, but must contain the specific facts of materials on which such conclusions are based. The intention in making the provisions is to afford the detenu an opportunity to make a representation and the requirement is fulfilled by disclosing the basic facts and materials on which the satisfaction of the authority about the necessity of detaining the person is based.

10. It was tried to be contended on behalf of the detenu that it would be impossible for the detenu to make an effective representation because the period of alleged activities of the detenu instead of being pin pointed were spread out so as to vaguely cover a period of more than l years; that even the names of persons whose buildings the detenu was alleged to have constructed and thus saved cement had not been mentioned in the grounds of detention and that no names of persons to whom the detenu had supplied cement so as to enable them to indulge into objectionable activities had been mentioned in the grounds of detention. This contention appears to be devoid of force. I have reproduced the particulars of the grounds of detention in full, earlier in this judgment. Read as a whole 'hey appear to be reasonably clear and self-sufficient to bring home the detenu the knowledge of the grounds of his detention. Grounds within the contemplation of Section 8(1) of the Act mean materials, on which the order of detention is primarily based. Apart from conclusions of facts 'grounds' have a factual constituent also. They must contain the pith and substance of primary facts but not subsidiary facts or evidential details. This requirement as to the communication of all essential constituents of the grounds was complied with in the present case. The basic facts as distinguished from factual details were incorporated in the material communicated to the detenu and nothing more was required to be intimated to enable him to make an effective representation. The facts which were not disclosed were not basic facts and their non-disclosure did not affect the detenu's right of making a representation. Be that as it may, the facts pointed out by the learned Counsel were not the essen- tial constituents of the grounds of detention. The basic material Or the substance of the primary facts in a clear, succinct and intelligible form, which was sufficient to enable the detenu to make a representation, was duly communicated to him.

11. The learned Counsel for the petitioner then challenged the detention of the detenu on the ground of time lag between the activities of the detenu as enumerated in the grounds of detention and the date on which detention order was passed. It must be mentioned that in the main petition there is no such averment. It is only during the course of arguments that such a grievance hasi been made by the learned Counsel for the petitioner. The delay by itself would not be . a sufficient ground for quashing the order of detention. It would certainly be one of the circumstances to be taken into consideration in assessing the validity of the detention order. In the present case there may be delay of about 4 months between the alleged prejudicial activities of the detenu and the date on which the detention order was passed. No rigid rule can be followed regarding the time lag between the prejudicial activities and the actual detention order. In the case of Gora v. State of West Bengal : 1975CriLJ429 , it was observed as under (Para 2):

that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. The question is whether the past activities of the detenu are such that the detaining authority can reasonably come to the conclusion that the detenu is likely to continue in his unlawful activities.

12. In the instant case, the transactions of black-marketing alleged against the detenu relate to March and April, 1981. The order of detention was passed against him on August 31, 1981. In this situation, the time lag of about 4 months between the last illegal activity and the detention order cannot be considered to be a mitigating circumstance in favour of the detenu as the test of proximity cannot be applied in this case in view of the principle of law laid down in Gora's case, (1975 Cri LJ 429)(supra). No other point was urged.

13. For the foregoing reasons I am of the opinion that the impugned order does not suffer from any defect which would warrant an interference by this Court. The petition fails and is herein dismissed.


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