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Madhubala Gupta Vs. the Commissioner of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 85 of 1981
Judge
Reported in20(1981)DLT399
ActsNational Security Act, 1980 - Sections 2 and 3
AppellantMadhubala Gupta
RespondentThe Commissioner of Police and ors.
Advocates: Harjinder Singh and; D.C. Mathur, Advs
Cases Referred and KanuBiswas v. State of West Bengal
Excerpt:
.....of india - petition under article 226 for quashing of detention order - petitioner was wife of detenue - detenue detained under section 3 (2) - whether detention of detenue justified - facts mentioned in grounds of detention that morphine manufacturing factory along with some contraband articles recovered and during interrogation detenue disclosed carrying on trafficking in drugs - grounds not self-sufficient and self-explanatory - grounds did not clearly bring out what facts and material weighed with detaining authority in making of order of detention - held, impugned order of detention quashed. - - it is needless to men- corporation that trafficking of drugs leads to other violent crimes, like murder, stabbing, etc. even some of the crime like robbery and snatching are quite..........the lt. governor on 26th august, 1981. (note: it may be mentioned that in the reply filed by the detaining authority to the petition the date of rejection of the representation stated is 28th august, 1981. mr. mathur, advocate for the respondents, contended that the representation was, in fact, rejected on 26th august 1981). on 13th august, 1981 a reference was made to the advisory board regarding the detention of. purshottam das gupta. the advisory board met and heard the detenu on 21st august 1981. on 26th august 1981 the advisory board sent a report to the government approving of the order of the detention. the appropriate government on 29th august, confirmed the order of detention. (4) the present petition was instituted on 17th august, 1981. here, it will be useful to reproduce.....
Judgment:

R.N. Aggarwal, J.

(1) This is a petition under Article 226 of the Constitution of India by the wife for the production of her husband Purshottam Das Gupta in the Court and for the quashing of the order of detention dated 1st August, 1981.

(2) By an order dated 1st August, 1981 under sub-station (2) of section 3 of the National Security Act, 1980 the Commissioner of Police Shri P.S. Bhindar detained Purshottam Das Gupta with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The grounds of detention Along with some documents were served on the detenu on 5th August, 1981. The detenu by a Writing (AnnexureR. 4) acknowledge the receipt of the grounds of detention and other documents. The detenu was orally informed that he had a right to make representation against the detention to the Lieutenant Governor and the Advisory Board. The said oral information was acknowledged by the detenu in the writing annexure R-4.

(3) On 11th August 1981 the wife of the detenu made a representation to the Lt. Governor against the detention. The representation made by the wife was rejected by the Lt. Governor on 26th August, 1981. (Note: It may be mentioned that in the reply filed by the detaining authority to the petition the date of rejection of the representation stated is 28th August, 1981. Mr. Mathur, advocate for the respondents, contended that the representation was, in fact, rejected on 26th August 1981). On 13th August, 1981 a reference was made to the Advisory Board regarding the detention of. Purshottam Das Gupta. The Advisory Board met and heard the detenu on 21st August 1981. On 26th August 1981 the Advisory Board sent a report to the Government approving of the order of the detention. The appropriate Government on 29th August, confirmed the order of detention.

(4) The present petition was instituted on 17th August, 1981. Here, it will be useful to reproduce the grounds of detention in extenso and they read as under:-

'GROUNDS of detention of Shri Purshottam Dass Gupta son of Shri Ram Kumar Gupta r/o H. No. R-7, Naveen Shahdara, Delhi. Shahdara Police unearthed a morphine manufacturing plant in the area of Police Station Shahdara on 30.7.81. The quantities of morphine, opium and other contraband articles recovered during the course of this raid are as under : 1. 550 gms. Morphine 2. 8* kg. of Opium 3. 10 kg. Opium solution. 2. Apart from this, the following implements, material and other Chemical substance were used in the manufacture of morphine :- 1. Pressing machine 2. Filtering machine 3. Glass Test Tubes 4. Chemicals and acids 5. White powder 6. Black powder 7. Filtering cloth 8. Weighing machine 9. Buckets and other pots 10. Stoves 11. Stirrers and mixer 12. Plastic bags As a result case Fir Nos. 485 and 486 dated 30.7.1981 u/s 9/1/78 Opium Act and 14, Dangerous Drugs Act were registered at P.S. Shahdara and the following persons arrested : 1. Purshotam Dass Gupta 2. Jeeute (arrested) 3. P.M. Mittal (wanted) 3. Trafficking in drugs is assuming alarming proportions in India and the government is very much concerned about it. Recently a letter was received by Delhi Administration from the Prime Minister's Secretariat who in turn intimated to us (copy enclosed) drawing the attention of the Delhi Administration towards the increasing proportions that this problem is assuming and the attention that needs to be paid to it. As a result, a meeting was held at a very high level and action planned. The vigilance maintained by the East District Police paid dividends which led to the capture of the above mentioned articles. 4. Shri Purshottam Dass Gupta s/o Shri Ram Kumar Gupta resident of House No. R-7, Naveen Shahdara, Delhi, who was arrested in connection with the above mentioned recovery, was subjected to sustained interrogation. A copy of his interrogation report is enclosed. During the course of his interrogation, Shri Gupta admitted that he was carrying on his trafficking in drugs in league with some of the notorious drug traffickers in Delhi. Names of the following notorious criminals were disclosed by Shri Purihottam Dass Gupta as his contact men : 1. Kartar R/o Ps Kotwali area 2. Balraro R/o Ps Original Road area 3. Khail R/o Ps Hauz Khas area

(5) All the above mentioned three individuals are notorious criminals of Delhi. Khalil has already been detained under the National Security Act. Kartara and Balram were also detained under the National Security Act but their orders of detention were revoked on the advice of the Advisory Board. Shri Purshottam Dass Gupta in league with the Jeeute, who was also arrested along with him in the above mentioned case, had started a very dangerous business. The margin of profit in this illicit trade is very high. It is needless to men- corporation that trafficking of drugs leads to other violent crimes, like murder, stabbing, etc. Even some of the crime like robbery and snatching are quite often committed by young men addicted to drugs who take recourse to such crimes, for their parents do not meet their financial needs. Trafficking in drugs is also having a bad effect on the young minds in the University area of Delhi. It will not be out of place to mention that the total value of drugs recovered from Shri Purshottam Dais Gupta in the international market would be several lakhs of rupees. In view of the above mentioned facts, it was felt that Shri Purshottam Dass Gupta was acting in a manner prejudicial to the maintenance of public order. It was, thereforee, felt necessary to detain him under the National Security Act, 1980. Shri Herjinder Singh for the petitioner contended that the grounds of detention are vague in as much as they do not state from where by offending articles were recovered and how the detenu was connected with those premises. Shri Herjinder Singh contended that the grounds under article 22(5) of the Constitution mean all the basic facts and materials which have been taken into account by the de

(6) Shri Mathur on the other hand contended that all the facts resulting in the registration of the cases against the detenue are mentioned in F.I.Rs. 485 and 486 dated 30 July 1981 and the copies of the said F.I.Rs. were furnished to the detenue Along with grounds and, thereforee, the grounds cannot be said to be vague and not affording full factual materials to the detenue to make representation

(7) Article 22(5) provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be) communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

(8) The above Article has been the subject of consideration in a series of cases during the last three decades. The law on the preventive detention has been developing from time to time d the highest Court of the land has been repeatedly telling the detaining authorities of the essential requirements that they are required to strictly observe and follow in the case of a preventive detention. The latest leading judgment, to my mind, on the subject is Khudiran Das v. The State of West Bengal and others. : [1975]2SCR832 . Mr. Justice Bhagwati speaking for the Court observed :

'THE constitutional imperatives enacted in this article are twofold : (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenue the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security. But, what is the content of these safeguards What does the word 'grounds' mean Does it mean only the final conclusions reached by the detaining authority on which alone the order of detention can be made, or does it include the basic facts and materials from which the conclusions justifying the order of detention are drawn by the detaining authority What is the inter-relation between the requirements of the first and the second safeguards Is the efficacy of the second safeguard violated by non-observance of the requirement of the first safeguard? If all the 'grounds' which weighed with the detaining authority are not communicated to the detenue, does it constitute merely a breach of the first safeguard or does it also involve the violation of the second ?

The answer to these questions does not present any serious difficulty if only we consider the reason why the grounds are required to be communicated to the detenu 'as soon as may be' after the detention. Obviously the reason is two-fold. In the first place the requirement of communication of grounds of detention acts as a check against arbitrary and capricious exercise of power. The detaining authority cannot whisk away a person and put him behind bars at its own sweet will. It must have grounds for doing so and those grounds must be communicated to the detenu, so that, not only the detenue 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 power of judicial review, howsoever limited and peripheral it may be. Secondly, the detenu has to be afforded an opportunity of making a representation against the order of detention. But if the grounds of detention are not communicated to him, how can he make an effective representation The opportunity of making a representation would be rendered illusory. The communication of the grounds of detention is, thereforee, also intended to subserve the purpose of enabling the detenu to make an effective representation. If this be the true reason for providing that the grounds on which the order of dentention is made should be communicated to the detenu, it is obvious that the 'grounds mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, thereforee, the order of detention is based. The learned Judge further after referring to some of the decisions (1) Golam alias Golam Mallick v. The State of West Bengal (Writ Petition No. 270 of 1974 decided on 12th Sept. 1974, (2) Dr. Ram Kriahan Bhardwaj v. The State of Delhi : 1953CriLJ1241 and (3) Shamrao Vishnu Parulekar v. The District Magistrate Thana, : 1957CriLJ5

'IT is thereforee clear that nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu. That is the plain requirement of the first safeguard in Article 22(5). The second safeguard in Article 22(5) requires that the detenu shall be afforded the earliest opportunity of making a representation against the order of detention. No avoidable delay, no short fall in the materials communicated shall stand in the way of the detenu in making an early yet comprehensive and effective, representation in regard to all basic facts and materials which may have influenced the detaining authority in making the order of detention depriving him of his freedom. These are the legal bulwarks enacted by the constitution makers against arbitrary or improper exercise of the vast powers of preventive detention which may be vested in the executive by a law of preventive detention such as the Maintenance of Internal Security Act, 1971.'

(9) In Smt. Shalini Soni v. Union of India and others : 1980CriLJ1487 , the Supreme Court had, again, the opportunity to consider the scope and the safeguards provided by Article 22(5) and it was held : 'Grounds in Art. 22(5) do not mean factual inferences but mean factual inferences plus factual material which led to such factual inferences. The 'grounds' must be self sufficient and self explanatory. thereforee, copies of documents to which reference is made in the grounds must be supplied to the detenu as part of the 'grounds.' The failure to communicate the factual material as a part of the 'grounds would amount to non communication of grounds on which the order of detention has been made and thus would infringe Art. 22(5). It is an unwritten rule of the Jaw, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only; eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but also the grounds on which the decision is founded, it is necessary corollary that the grounds communicated, that is, the grounds so made know, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and nor merely the inferential conclusions. The decision to detain a person depends on the subjective satisfaction of the detaining authority. The Constitution and the statue cast a duty on the detaining authority to communicate the grounds of detention to the detenu. thereforee the grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining authority; secondly, an opportunity to make a representation against the order of detention contemplated by Art 22(5) necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely of the inference of fact but of all the factual materials which have led to the inference of the fact. If the detenu is not to be informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility.'

(10) In my opinion, from the authorities referred to above, it is clear that the grounds formulated by the detaining authority and which are the basis of the order of detention must contain all the basic facts and materials which were taken into account by the detaining authority in making the order of detention. The grounds furnished to the detenu, to my mind not only serve the purpose of making an effective representation against the detention order but also indicate the basis on which the detaining authority formed the view and the necessity of making the order of detention.

(11) The case against the detenu, as one can make out from the two F. I. Rs. is that on 30th July 1981 pursuant to information given by one Jeetu house No. 1/6338 Rohtas Nagar was searched and 550 grams of morphine, 4 Kg 800 grams of opium and a number of implements for the manufacture of morphine were recovered and thereafter the said Jeetu had led the police party to house No. H/7 where the detenu was present and 2 Kg. and 350 grams of opium, 2 Kg. and 350 grams of liquid opium and 10 litres of opium solution were recovered. Thereafter, the detenu was interrogated and he told the police that he was carrying on trafficking in drugs in league with Kartar, Balram and Khalil.

(12) A perusal of the grounds of detention served on the detenu clearly shows that all the basic facts and materials which were taken into account by the detaining authority in making the order of detention are not mentioned in the grounds and 'therefore, the order detaining Purshottam Das Gupta is vocative of Article 22(5). The contention of Mr. Mathur that the F.I.R. copies of which were given to the detenu, contain all the relevant facts cannot be of any avail to the detaining authority, for, it has been held in the case Shalini Soni (supra) that the grounds must he self-sufficient and self explanatory. The grounds furnished to the detenu by itself do not help us in finding out as to what facts and materials were taken into account by the detaining authority in passing the detention order against Purshottam Das Gupta. The only facts mentioned in the grounds of detention are that morphine manufacturing factory Along with some contraband articles were recovered in the area of Police Station Shahdara and the detenu during the interrogation had disclosed that he was carrying on trafficking in drugs in league with some others. The above facts do not show the connection of the detenu with the alleged recoveries. The grounds, as they are, in my opinion, do not clearly bring out what facts and materials weighed with the detaining authority in the making of the order of detention.

(13) The laws on preventive detention have been in force in this Country in the last three decades and they have been the subject of judicial review both by the High Courts and Supreme Court by now the law on preventive detention is fairly well laid and understood and the detaining authorities should be well aware of the essential requirements for a valid detention.

(14) In my opinion, the grounds being not self-sufficient and self explanatory make the detention order void.

(15) It will be proper to consider the other contentions of Shri Herjinder Singh, as well. Shri Herjinder Singh next contended that there was considerable delay in the consideration of the representation made by the petitioner against the detention of her husband and that further there arc indications on the record that the rejection of the representation by the Administrator was influenced by the Report of the Advisory Board. Shri Herjinder Singh contended that the appropriate authority has to consider the representation independently of the proceedings before the Advisory Board and the decision of the appropriate authority is not to be influenced by the report of the Advisory Board. As already stated, the representation was made by the wife of the detenu to the Lieutenant Governor on 11th August 1981 and it was received in the office of the Delhi Administration on 12th August 1981. The detaining authority in its reply has stated that the representation was rejected on 28th August, 1981. However, Shri Mathur, learned Counsel for the Government, contended that the representation was rejected on 26th August 1981. There is material on the record that the Advisory Board had sent its recommendations on 26th August 1981. In the normal course the recommendation of the Advisory Board must have reached the Administration the same day. It is not possible to find out definitely whether the Lt. Governor had rejected the representation before or after the receipt of the recommendation of the Advisory Board but there has been certainly an inordinate delay in deciding the representation of the detenu. The representation should have been dealt with expeditiously more so for the reason that the reference had already been made to the Advisory Board and the Advisory Board had met on 21st August 1981.

(16) Shri Herjinder Singh next contended that the detenu was not told in the grounds of detention that he had a right to represent against the detention to the appropriate authority. This arguments is without substance. Annexure R-4 dated 5th August 1981 clearly shows that the detenue was told that he had a right to make a representation to the Lt. Governor and the Advisory Board against his detention. The detenu has averred in the petition that he was given a written document from which he had copied annexure R-4 and that he did not know English very well and he could not understand the document from which he had copied annexure R-4. This contention of the detenu cannot be accepted. The detaining authority in reply has alleged that the detenu is a Commerce Graduate and he knows the English language very well. This fact has not been controverter by the detenu. Even otherwise from the writing annexure R-4 it appears that the detenu is fully conversant with the English language and the allegation that he did not understand what he was copying is not true. It has also been contended that the detenu was told that he could make representation to the 'L.G.' and that he did not understand what the words 'L.G.' meant. This argument is also without merit. A representation was, in fact, made to the Lt. Governor and it was considered by the Lt. Governor.

(17) Shri Herjinder Singh contended that under section 2 of the National Security Act the State Government in relation to a Union Territory means the Administrator and that the information to the detenu that he could make a representation to the Lt. Governor was misleading and this would amount to depriving the detenu of his right to make representation. This contention) in the circumstances of this case, cannot be accepted. The Lt. Governor is the Administrator and the representation was considered and rejected by the Administrator.

(18) Shri Herjinder Singh next contended that the grounds on which Purshottam Das Gupta has been detained were not germane to the maintenance of Public order and, thereforee, the order from his detention could not be validly made for preventing him from acting in a manner prejudicial to the maintenance of the Public order. I am not inclined to agree in this submission. The manufacture and the sale of morphine can in the longer run become a danger to public order. The distinction between the concept of public order and that of law and order has been discussed by the Supreme Court in a number of cases. See in this connection Dr.RamManoharLohia v. State of Bihar, : 1966CriLJ608 , Arun Ghosh v. State, of West Bengal, : 1970CriLJ1136 and KanuBiswas v. State of West Bengal (1972) 3 S.C.R. 831

(19) In the view taken on the first two contentions, the petition must succeed. I accordingly allow the petition and quash the impugned order of detention.


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