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Natverlal Jayshanker Trivedi Vs. E.F. Deboo and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1966)7GLR574
AppellantNatverlal Jayshanker Trivedi
RespondentE.F. Deboo and anr.
Cases ReferredThe Queen v. The Justices of Berkshire
Excerpt:
- - the first respondent passed an order on 8th september 1965 under rule 30 of the defence of india rules, 1962, (hereafter called 'the rules') in which he stated that he was satisfied that, with a view to preventing petitioner from acting in a manner prejudicial to certain matters, it was necessary to make an order to detain him and further directed that petitioner be detained in rajkot district prison (special). the matters in regard to which petitioner was directed to be detained were (1) defence of india; petitioner further alleges that he had also complained against the action of the above police before the sadachar committee and has produced a copy of the application made by him. that is a perfectly justifiable ground of attack. petitioner has failed to discharge this burden.....n.m. miabhoy, j.1. this is a petition under article 226 and some other articles of the constitution of india and also under section 491 of the criminal procedure code. petitioner is natverlal jayshanker trivedi. the first respondent is the commissioner of police and the second respondent is the state of gujarat. the first respondent passed an order on 8th september 1965 under rule 30 of the defence of india rules, 1962, (hereafter called 'the rules') in which he stated that he was satisfied that, with a view to preventing petitioner from acting in a manner prejudicial to certain matters, it was necessary to make an order to detain him and further directed that petitioner be detained in rajkot district prison (special). the matters in regard to which petitioner was directed to be detained.....
Judgment:

N.M. Miabhoy, J.

1. This is a petition under Article 226 and some other articles of the Constitution of India and also under Section 491 of the Criminal Procedure Code. Petitioner is Natverlal Jayshanker Trivedi. The first respondent is the Commissioner of Police and the second respondent is the State of Gujarat. The first respondent passed an order on 8th September 1965 under Rule 30 of the Defence of India Rules, 1962, (hereafter called 'the Rules') in which he stated that he was satisfied that, with a view to preventing petitioner from acting in a manner prejudicial to certain matters, it was necessary to make an order to detain him and further directed that petitioner be detained in Rajkot District Prison (Special). The matters in regard to which petitioner was directed to be detained were (1) defence of India; (2) public safety; (3) maintenance of public order; and (4) maintenance of peaceful conditions in the city of Ahmedabad. Petitioner challenges the detention order and his detention on a number of grounds, to be presently mentioned. Both the respondents have appeared to show cause in response to a rule nisi issued against each of them. The first respondent has filed an affidavit in reply in which he has contested the grounds on which petitioner has solicited the writ or order of habeas corpus. On 30th November 1965, petitioner gave an amendment application for amending his petition by incorporating certain additional grounds. That application was granted by us on the same day. These additional grounds are also being challenged by the first respondent and affidavits have been filed in support of the challange by the first respondent and two officers of the second respondent.

2. The first ground on which petitioner challenges the detention order is that, on the relevant date, the first respondent had no materials to detain him under the Rules and that, therefore, his detention is illegal. The second ground on which petitioner challenges the detention order is that it was passed in mala fide exercise of the power conferred upon the first respondent. In our judgment, it will be convenient to deal with both these grounds together as the factual and the legal submissions in regard to these two grounds overlap. In order to understand these two contentions, it is necessary to mention a few facts. Petitioner claims to be a wholesale merchant dealing in ready-made garments. He has annexed some correspondence in support of this claim. The first respondent has denied the claim and averred that petitioner is not a respectable citizen; that he has no ostensible means of livelihood; and that he indulges in anti-social activities and acts of terrorism and goondaism. It is common ground that, before his detention under the impugned order, petitioner was convicted on two occasions for offences punishable under Sections 110 and 117 of the Bombay Police Act, 1951. He was also convicted in a prohibition offence by a learned Magistrate but was subsequently acquitted of that offence by an order passed by this Court It is common ground that petitioner has a servant named Chhotu Jeram. This servant was involved in a case of kidnapping and rape alleged to have been committed on 8th August, 1965. It is common ground that this Chhotu Jeram had made allegations against officers of the Ellisbridge Police Station in which the aforesaid case was registered, the allegations being that Chhotu had been maltreated by them. Petitioner alleges that he had himself also made an allegation against officers of the same Police Station in regard to the same. Petitioner further alleges that he had also complained against the action of the above police before the Sadachar committee and has produced a copy of the application made by him. Petitioner alleges that, because of the aforesaid actions taken by him and his servant Chhotu Jeram, the police bore a grudge against petitioner and that the police, taking advantage of the prevalence of conditions arising out of the aggression by Pakistan against India, had got petitioner arrested, when a number of persons in the city were arrested generally. Both the sides are agreed that petitioner was arrested at 3-35 a.m. on 8th September, 1965, from his house. However, there are rival versions as to the circumstances in which petitioner was arrested. According to petitioner, when the police came to his house, he was told that they intended to search his house in connection with a prohibition offence; that some of the police officers rushed into his house and remained in one of his rooms under suspicious circumstances; and that, when he was asked to accompany the police, he refused to do so, because there was no warrant or order for petitioner's arrest, but that, ultimately, he was persuaded to accompany the police by his landlord. Petitioner has also alleged that he was harassed and mishandled by the police and one of the Sub-Inspectors had also pointed his revolver against him. The first respondent has denied all these allegations. In addition to this, respondents have filed the affidavit of Kantilal Shivabhai Patel, Inspector of the Ellisbridge Police Station. That officer has given his own version. According to that officer, petitioner was arrested under Section 151, Criminal Procedure Code, on that night and taken to the Police Station. It is also common ground that, on the same morning, deponent Manhar, the brother of petitioner, appeared in the Police Station and gave an application, drafted by an Advocate, demanding from the police officers the law under and the grounds on which petitioner had been arrested. The first respondent in his first affidavit in reply, dated 20th November 1965, stated that, at that time, Manhar had been told that petitioner was being detained under the Preventive Detention Act. The first respondent stated in that affidavit that this part of the affidavit was based upon information derived by him from his record. The first respondent, however, in his affidavit, dated 15th December 1965, resiled from the aforesaid statement and stated that petitioner's brother had not been so informed. Kantilal, the Inspector of Ellisbridge Police Station, has stated in his affidavit, as already mentioned, that he had received the application, presented by petitioner's brother Manhar and that the information which he had given to him at that time was that his brother was being detained under Section 151 of the Criminal Procedure Code. He states that, below that application, he had made an endorsement at that very time to the effect that 'application personally presented by Manhar and Janakray, brothers of Natverlal Jayshanker. They were informed that Natverlal has been arrested under Section 151 of the Criminal Procedure Code.' The first two submissions of Mr. Raval are based on the aforesaid facts and versions. In so far as the two versions differ from each other, in our judgment, it will be improper to undertake in the present petition a decision as regards the difference. Therefore, we propose to consider the two contentions of Mr. Raval on the admitted facts only. The contention that the impugned order was not supported by any materials is to be found in paragraph 21 of the petition. From the averments contained in that paragraph, it is quite obvious that petitioner's contention was that the first respondent had no materials before him on the basis of which he could have passed the impugned order. That is a perfectly justifiable ground of attack. But the contention which Mr. Raval actually raises before us is different from the contention embodied in paragraph 21 aforesaid. That contention is that petitioner was arrested under Preventive Detention Act at 3-35 A.M. on 8th September, 1965, and that this supported the contention that there were no materials before the first respondent which supported an action of detention under the Rules. Such a specific contention has not been raised by petitioner in his petition. The present contention comes to be developed on the strength of certain statements which have come to be made by the first respondent in his affidavits. Firstly, as already stated, the first respondent deposed that petitioner's brother had been informed on the morning of 8th September 1965 that petitioner was being detained under the' Preventive Detention Act. Not only this, but, at several other places in his first affidavit, the first respondent has stated that action was taken against petitioner under Preventive Detention Act. Mr. Raval's contention is that the present position which is now taken up on behalf of the respondents that petitioner was initially arrested only under Section 151, Criminal Procedure Code, is an innovation and that we should not decide the petition on that basis. We have given our careful thought to this contention of Mr. Raval. There is no doubt whatsoever that the aforesaid averments are to be found in the affidavit of the first respondent. There is also no doubt whatsoever that the explanation which is offered on behalf of the first respondent for resiling from the aforesaid averments is not satisfactory. The explanation which the first respondent has offered is that there was a typographical error in making the statements in his first affidavit. We are unable to understand this explanation. When called upon to explain, Mr. Sompura drew our attention to the fact that the relevant averment came to be made in answer to what is contained in paragraph 7 of the petition and he stated that that paragraph did not anywhere state anything about the source of petitioner's detention, nor could that paragraph give any occasion for stating such a source. But, it is difficult to connect this explanation with the explanation of typographical error. Then Mr. Sompura stated that if the word 'not' were to be introduced in the following sentence occurring in paragraph 8 of the affidavit in reply, the typographical error would be apparent: 'Both of them at that time were informed that the petitioner was being detained under the Preventive Detention Act'. This explanation also does not fit in. Having regard to the fact that there was no reference to the Preventive Detention Act in paragraph 7 of the petition, it could not be imagined that the first respondent was out to deny any averment contained in that paragraph. Apart from this, this explanation does not fit in with the averments contained in some other parts of the affidavit. For example, in paragraph 12, the first respondent states as follows: 'I say that the conditions prevailing in the city were such that I was obliged to take action under the Preventive Detention Act. x x x x x x '. However, although the affidavit of the first respondent is in an unsatisfactory state on this point, we are unable to conclude therefrom that the first respondent had no materials before him, on the basis of which he could have passed the impugned order of detention. In deciding this question, the two concepts must be kept separate-concept of arrest and the concept of detention. From the materials on record, we have no doubt whatsoever that petitioner was first arrested by the officers of the Ellisbridge Police Station at about 3-35 A.M. on the 8th September 1965. From the same materials also, there is no doubt whatsoever that this arrest was made by those police officers of their own accord. There is absolutely not a tittle of evidence in the case to show that the arrest was made as a result of any order passed by the first respondent. It is petitioner's case itself that there were general arrests in the city of Ahmedabad on that night and his name was included mala fides on account of the grudge which the Ellisbridge Police Station officials bore against him. It is true that there is no definite evidence in the case to show as to when the impugned order of detention under the Rules was made. But that lacuna appears in the case, not because the first respondent had anything to suppress on that account, but the lacuna appears in the case because the aforesaid aspect which Mr. Raval now brings into prominence was never canvassed by petitioner in his petition or in any of the affidavits filed by him or on his behalf. On the contrary, the affidavits of both the sides disclose that the order passed by the first respondent was served on petitioner on the night of 8th and 9th of September 1965, the only variation between the two versions being that, according to petitioner, he was served with the order at about 0-45 A.M. on 9th September 1965, and according to the first respondent, petitioner was served at about 10-00 P.M. on 8th September 1965. Now, it is hardly probable that if petitioner was being arrested under any order of the first respondent, the police officers arresting him should not have showed him that order or that that order should not have been served on petitioner until 10-00 P.M., after a lapse of nearly eighteen hours. Therefore, the only reasonable inference which can be drawn from the materials on record is that petitioner was first arrested by the police officers of the Ellisbridge Police Station at about 3-35 a.m. on 8th September 1965 and that arrest could have been only under Section 151, Criminal Procedure Code, 1898. This part of the version propounded on behalf of respondents is corroborated by an endorsement made by the deponent Kantilal, the genuineness and the veracity of which we have no reason to doubt. In any case, we do not want to decide this case on the basis that that deponent was guilty of forgery. However, we are not called upon in the present case directly to decide the bona fides or the genuiness of the arrest under Section 151, Criminal Procedure Code. It may be that that circumstance may have repercussions on the question of mala fides. But, in any case, we are not called upon to decide directly whether there were or were not any materials with the aforesaid officials to arrest petitioner under Section 151, Criminal Procedure Code. The question that we are called upon to decide is whether petitioner has established that the impugned order of detention, passed by the first respondent, was passed and that petitioner was being detained without there being any materials with the first respondent. Petitioner has failed to discharge this burden which initially lies on him. The averment of petitioner that there were no materials with the first respondent has been denied by the first respondent. But the serious question to be tried is, whether the impugned order was passed mala fides. Now, having regard to the facts which have emerged on the record, there is no doubt whatsoever that this part of the allegation of petitioner requires serious consideration. Having regard to the fact that petitioner's servant had been arrested and serious allegations were made by this servant, in one of the averments, in regard to which petitioner himself was a party, against officials of the Ellisbridge Police Station, in our judgment, petitioner has laid a foundation for a serious consideration of the case against the aforesaid police officials. But the impugned order of detention has not been passed by those officials. The authority which has passed that order is the first respondent. In order to succeed in the plea of mala fides, it is quite clear that it is not enough for petitioner to show that the aforesaid police officials of the Ellisbridge Police Station bore a grudge against him. What petitioner is required to prove is that the first respondent had either a grudge against him or that he was abusing his authority at the instance or in collusion with the aforesaid officials. We have no doubt whatsoever that this connection between the aforesaid officials and the first respondent has not been showed by petitioner. It is true that there cannot be any direct evidence on this subject. But, there are no circumstances, present in the case, on the basis of which any reasonable inference in favour of petitioner could be drawn. The first respondent is a highly placed police officer. We are not prepared to presume that he would bear a grudge against petitioner simply because he made allegations against his subordinates. In fact, the first respondent denies any knowledge of any such allegations having been made by petitioner. All that he says is that the allegations made against his subordinates by Chhotu Jeram were investigated into by his Superintendent of Police and they were found to be false. Therefore, it is not possible to uphold the contention of petitioner that the first respondent was actuated by malice in making the impugned order of detention.

3. The next contention of petitioner is that the first respondent had not applied his mind on the question of his detention and that the order had been passed mechanically. This submission is being made on his behalf on the basis of a part of the material which we have considered above. The contention is that, even at the present stage of the case, the first respondent did not know actually under what detention law he had detained petitioner. In the affidavit, at first, he stated that petitioner had been detained under the Preventive Detention Act, whereas the fact is that the impugned order has been passed under the Defence of India Rules. Now, this may, at the most, mean carelessness in filing the aforesaid affidavit. It may disclose a certain amount of irresponsibility. But, we fail to see how the aforesaid set of circumstances can substantiate the plea of lack of application of mind or the making of a mechanical order. Mr. Raval's contention is that, in any case, the record shows that the first respondent was wavering at the initial stage as to whether petitioner should be detained under the Preventive Detention Act or the Defence of India Rules and that this was evidence of want of application of mind. We cannot agree with this submission. On the contrary, in our judgment, the aforesaid circumstance would be an indication of the application of the first respondent's mind to the facts of the case. The mere fact that an officer considers, and at one stage even hesitates, that a detenu, on the materials before him, should be arrested under one law or the other, can hardly be regarded as a piece of evidence of lack of application of mind. On the contrary, this bespeaks presence of materials and an attempt to evaluate them and to decide which detention law should be applied to the facts of the case. Therefore, in our judgment, there is no substance in the aforesaid contention of Mr. Raval also.

4. The next submission of Mr. Raval is that there was no reasonable nexus between the grounds on which petitioner was being detained and the objectives which the order sets out, for the achievement of which the detention order has been passed. This contention of Mr. Raval is based upon the assumption that petitioner has been detained on account of antisocial activities and acts of terrorism and goondaism in the past. Mr. Raval's submission is that, even if these allegations are correct, they cannot support preventive action on the ground of defence of India or public safety or maintenance of public order. He submits that the activities aforesaid would be activities against individuals and would be local in character and that such Activities are not amenable to an action under the Rules. In our judgment, the assumption made by Mr. Raval is not justified. It is true that in paragraph 2 of his affidavit in reply, the first respondent has stated that petitioner indulges in anti-social activities and acts of terrorism and goondaism. But, in our judgment, it is not correct to say that this statement constitutes the ground for the action of preventive detention. The aforesaid averment is made in denial of a claim made by petitioner that he is a respectable peace-loving citizen. Really speaking, the grounds on which petitioner has been detained have not come on the record of the present case. It is not necessary for us to enquire as to whether the first respondent was bound to make those grounds available to petitioner or to this Court. Such a question has not been raised by petitioner at all. In view of that position, it cannot be stated that there is no nexus between the grounds on which the detention is based and the objectives; for the achievement of which the impugned order of detention is made. The first respondent in paragraph 10 of his affidavit in reply has stated that he had materials on the basis of which he was satisfied that action was necessary to be taken against petitioner because he was indulging in activities 'prejudicial to public safety and maintenance of public order and peaceful conditions in the city'. In paragraph 15 of his affidavit in reply, the first respondent has repeated the same thing.

5.Then the next ground on which petitioner challenges the impugned order of detention is that the first respondent and the reviewing authority had violated the provisions contained in Rule 30-A of the Rules. The first respondent is alleged to have violated the provision contained in Sub-rule (5) of Rule 30-A. The violation is alleged to consist in not reporting 'forthwith' the fact of detention to the reviewing authority. Secondly, it is alleged that the first respondent did not report the facts and circumstances of the case to the reviewing authority and did not place before that authority the whole record of the case. Thirdly, it is alleged that the reviewing authority had failed in its duty of making a recommendation of either confirmation or cancellation of the detention order as required by Sub-rule (6) of Rule 30-A. The next grievance is that, till 30th of November 1965, petitioner's order of detention had neither been confirmed, nor cancelled by the second respondent. Still next grievance is that the decision of the second respondent under the latter rule has not been reduced to writing. Petitioner farther complains that such a decision, if recorded, has not been communicated to him.

6. Now, in order to understand the first two parts of the aforesaid ground, it is necessary to mention that Sub-rule (4) of Rule 30-A of the Rules enjoins that a detention order passed by an officer shall be reviewed by a reviewing authority. Clause (a) of that sub-rule points out who the reviewing authority is in the case of an order made by an officer empowered by the State Government. That clause states that the reviewing authority shall consist 'of any such two officers from among the following officers of that Government, that is to say, the Chief Secretary, a member of the Board of Revenue, a Financial Commissioner and a Commissioner of a Division, as may be specified by that Government by notification in the Official Gazette: Provided that if there is no Board of Revenue, Financial Commissioner or Commissioner of a Division under the State Government, the reviewing authority shall consist of the Chief Secretary and a Secretary to the State Government specified by that Government by notification in the Official Gazette. 'It is not disputed that, under the proviso to Clause (a), the Secretary to the State Government, Finance Department, has been specified as the second member of the reviewing authority. Therefore, it is not disputed that, at the relevant time, the reviewing authority consisted of two members, viz. (i) the Chief Secretary, and (ii) the Finance Secretary. The relevant part of Sub-rule (5) which the first respondent is alleged to have violated is in the following terms:

(5) Where a detention order is made by an officer empowered by the State Government...that officer shall forthwith report the fact to the reviewing authority referred to in Clause (a) of Sub-rule (4)....

Therefore, in the circumstances of this case, the first respondent was required to report to the reviewing authority the fact of detention 'forthwith'. The case of the first respondent is that he had carried out this obligation. The question for consideration is whether petitioner is right or the first respondent. Now the facts which emerge from the affidavits on this part of the case are as follows. The first respondent says that he had reported the fact of detention to the reviewing authority on 9th September 1965. He has expatiated this point further as follows: 'According to the arrangements, I have to report the fact of detention to the Chief Secretary to the Government of Gujarat who is a senior member of the reviewing authority, who passes all the papers and the report to the other member of the reviewing authority. 'The affidavit of Mr. Munim, Under Secretary to the Government, General Administration Department, reveals that the report of the first respondent reached the Chief Secretary on 11th September 1965. The Chief Secretary initialled the report on the same day and passed it on to Mr. Munim on the same day. Mr. Munim says that 'as there were other cases from other districts' also, I complied (sic. compiled) all the papers and passed on the report against the present petitioner along with other papers on 16th September 1965 to the Secretary, Finance Department, with my notings dated 16th September 1965. 'The first two parts of the aforesaid ground have to be decided on these facts.

7. Now, the first task that is to be undertaken is the construction of Sub-rule (5) of Rule 30-A of the Rules. That sub-rule casts a duty upon the detaining authority to send a report. The report is to be about the factum of detention. The report is to be sent to the reviewing authority. It is to be sent 'forthwith'. A perusal of this sub-rule will enable anyone to dispose of at once the contention of petitioner that the facts and circumstances of the case should have been reported also by the detaining authority. However, we do not propose to do this because the affidavits filed on behalf of the respondents reveal that the first respondent not merely sent the report about the factum of detention but also the facts and circumstances of the case. But the first part of the aforesaid ground remains for consideration. The determination of that part of the ground depends upon the determination of the question as to whom the report is to be made. As already stated, it is to be made to the reviewing authority. The latter consists of two members. In the present case, the detaining authority admits that he did not send the report to the reviewing authority. We do not propose to express any opinion as to what would be the result if the report had been addressed to the reviewing authority by its name of reviewing authority. One difficulty is that the reviewing authority is not a corporation. We have no idea as to whether a separate unit has or has not been created by the State Government to conduct the business of the reviewing authority. For the purposes of the present case, it is not necessary to undertake a decision on this aspect of the matter because, as already stated, it is admitted by the detaining authority that he sent the report only to one member out of the two members of the reviewing authority. The question for consideration is whether this is sufficient compliance with Sub-rule (5) of Rule 30-A of the Rules. We are told that this was done on account of an arrangement which was made by the reviewing authority itself. Mr. Sompura's argument is that the reviewing authority has an implied authority to make arrangements in regard to the conduct of its own business. We will assume that this is so. But, in our judgment, despatch of the report is not a part of the conduct of the business of the reviewing authority. The matter is not to be looked at from the point of view of any arrangement being made in the office of the reviewing authority for receipt of the reports, but the matter is to be looked at from the point of view as to whether the detaining authority has or has not carried out the aforesaid obligation of sending the report. Having regard to the fact that the sub-rule makes provision in regard to preventive detention law and having regard to the fact that the law as embodied in the Rules and as modified by the Presidential Orders dated 3rd and 11th November 1962, promulgated under the power vested in the President under Article 359 of the Constitution, embodies one of the very few and slender safe guards which are available to a citizen when preventive action is taken against him, and even after bearing in mind that the aforesaid provisions have been enacted to meet an emergency, it would be but proper to see that the aforesaid safeguard is jealously guarded and enforced specially when the rule-making authority has thought it proper to provide that the detaining authority should make the report as aforesaid. A perusal of all the provisions of Rule 30-A reveals that, though the rule-making authority has given power to officers of the State Government to make detention orders, the anxiety of that authority is to see that, when a detention order happens to be passed by a subordinate officer, the matter is immediately brought to the notice of highly placed officers working directly under the State Government so that those officers should be in a position to make a suitable recommendation to the State Government. Probably, in making the aforesaid provisions, the rule-making authority was carrying out the salutary directions given by the Legislature in Section 44 of the Defence of India Act, 1962. It is true that the reviewing authority is not a deciding authority. It is only a recommending authority. It is true that the State Government is not bound by any recommendation which the reviewing authority may make. But, there is not the slightest doubt that, having regard to the position which the members of the reviewing authority occupy in the governmental set up, the rule-making authority must have thought that the matter of detention of a citizen should immediately be brought to the notice of the reviewing authority so that it can take such action in the interest of the citizen concerned as it may deem proper. Under the circumstances, in our judgment, in order that this objective may be carried out, the intention of the rule-making authority could not have been that only one member of the reviewing authority, even though he may happen to be the senior member in the service, should receive intimation 'forthwith' from the detaining authority and that the other member, though a junior one, should not receive intimation within the same time-limit which the rule-making authority has prescribed for the reviewing authority as a whole. The intention of the rule-making authority must have been that both the members should receive intimation if they are to be severally informed within' the prescribed time limit. This is not merely a matter of form but a matter of great substance. It is possible to conceive that if only one of the two members is given intimation by the detaining authority, he may form a view about the detention, which may not be favourable to the citizen, and that the second member may entertain a different view on that subject and we have no doubt whatsoever that, when the other member entertains such a view, he would take immediate measures to contact the other member so as to try to persuade him to his point of view, and, if there is any difference of opinion on the subject, the member, taking the view in favour of the citizen, might at once send his recommendation to the State Government in order to enable it to take a suitable action. Having regard to the aforesaid considerations, in a case of the present type, where the detaining authority intimates only to one member of the reviewing authority, but does not do so to the other member, even in spite of any internal arrangement that might have been made between the members themselves, the question will have to be considered from the point of view as to when the second member receives intimation and whether the time within which the second member receives intimation is such as to enable the Court to pronounce that the intimation to the second member was sent 'forthwith' within the meaning of Sub-rule (5). This will be on the basis that Sub-rule (5) does not prescribe the mode in which the report is to be communicated. Having regard to the fact that some of the detaining authorities are far separated from the members of the reviewing authority, one can easily presume that the detaining authority who is required to convey the report to the reviewing authority cannot do so personally and the detaining authority is entitled to use agent for such communication. Ordinarily, the Post Office would be the agent of the detaining authority and if the detaining authority has used that organization as his agent, the duty may be taken to have been discharged by the detaining authority if and when he places the report in the hands of that agent Within a period of time which may be said to be 'forthwith' from the date of the making of the order. It is not necessary that the detaining authority should use the Post Office only as his agent. Having regard to the fact that the detaining authority expected, as appears from his affidavits, that the senior member of the reviewing authority shall communicate his report to the other member, the detaining authority may be taken to have appointed the senior member as his agent for communicating the report to the second member. It is not Mr. Raval's contention that the communication to the Chief Secretary was not within the prescribed time-limit. But Mr. Raval seriously contends that that cannot be postulated about the communication made to the second member. Whereas the Chief Secretary received communication on 11th September 1965, on the facts of the present case, the second member received the communication on 16th September 1965. Thus, though there was an interval of only two days between the date of the making of the order and the receipt of the communication by the Chief Secretary, there was an interval of seven days between the aforesaid two points of time. The question for consideration is whether the receipt of the communication by the second member on the latter date can be said to be compliance with that part of the provision of Sub-rule (5) which enacts that the report is to be sent 'forthwith'.

8. That at once brings into prominence the question as to the exact, significance of the word 'forthwith'. In our judgment, it is not necessary to discuss this question elaborately. Sub-section (3) of Section 3 of the Preventive Detention Act (IV of 1950) is mainly in the same terms as Sub-rule (5) of Rule 30A of the Rules. That sub-section also casts a duty upon the detaining authority to report the fact of detention to the State Government. The above sub-section and the rule being in pari materia, in our judgment, the construction placed by Their Lordships of the Supreme Court in the case ofKeshav Nilkanath Joglekar v. The Commissioner of Police, Greater Bombay and Ors. reported in : 1957CriLJ10 on the word 'forthwith' occurring in Sub-section (3) of Section 3 of the Preventive Detention Act, 1950, is not only of considerable assistance but maybe regarded as binding. The only difference between the Preventive Detention Act and the Rules is that the former is an Act which operates in normal times and the latter deals with an emergency. But, having regard to the fact that the Legislature has used the word 'forthwith' after being fully aware of the interpretation put upon that word by Their Lordships of the Supreme Court, occuring in Sub-section (3) of Section 3 of the Preventive Detention Act, their is no reason for departing from the construction of the word 'forthwith' as used in the Rules. In any case, we do not see anything either in the Act or the Rules which would compel us to give the word 'forthwith' a significance different from the one given by Their Lordships in the aforesaid decision. In that case, Their Lordships examined a number of English decisions in which the words 'forthwith' and 'immediately' occurring in statutes, rules and contracts came up for consideration. The English authorities show that the words were not construed strictly but they were construed liberally. In some decisions, the word 'forthwith' was construed as a stronger term than the word 'immediately'; while, in some others, both the words were construed as having the same meaning. The idea that those words exclude all mesne acts and time was rejected. In some cases, it was held that the words connote that the act or the thing directed to be done 'forthwith' or 'immediately' is to be done without any unreasonable delay. In one or two cases, they were construed as meaning 'within a reasonable time'. Cockburn, C. J., in The Queen v. The Justices of Berkshire (1879) 4 Q.B.D. 469 at page 471, stated that the aforesaid two words were stronger than the expression 'within a reasonable time' and held that those words 'imply prompt, vigorous action, without any delay'. The English decisions further point out that the question as to whether such action was or was not taken in, a given set of circumstances, is a question of fact to be decided having regard to the circumstances of a particular case. After examining the above English cases, Their Lordships examined two other English cases on the basis of which it was contended at the bar that the interpretations aforesaid had been departed from and rejected the contention. Their Lordships then examined the expression 'as soon as may be' used in Section 7 of the Preventive Detention Act and came to the conclusion that that expression did not convey the same meaning as the words 'forthwith' and 'immediately'. Ultimately, Their Lordships recorded their conclusion at page 32 in the following words:

We agree that 'forthwith' in Section 3(3) cannot mean the same thing as 'as soon as may be' in Section 7, and that the former is more peremptory than the latter. The difference between the two expressions lies, in our opinion, in this that while under Section 7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under Section 3(3) what is allowed is only the period during which he could not, without any fault of his own, send the report.

Under Section 7 the question is whether the time taken for communicating the grounds is reasonably requisite Under Section 3(3) it is whether the report has been sent at the earliest point of time possible, and when there is an interval of time between the date of the order and the date of the report, what has to be considered is whether the delay in sending the report could have been avoided.

At page 33, Their Lordships further pointed out that the report sent in that case 'could be held to have been sent 'forthwith' as required by Section 3, Sub-section (3), only if the authority could satisfy us that, in spite of all diligence, it was not in a position to send the report during the period from 13th to 21st January 1956.' In that case, the detention order was made on 13tb January 1956 and the report was made on 21st January 1956.

9. Approaching the question in the light of the aforesaid interpretation of the word 'forthwith', it is quite clear that the question which is to be considered is not whether the report was sent within a reasonable period of time, but the question which is to be considered is whether the report was sent at the earliest possible point of time without any avoidable delay, i.e., when there is an interval of time between the date of the order and the date of the report, whether the authorities are able to give explanation as to why the delay occurred. Now, from the facts of this case, it is quite clear that there was a delay of seven days between the date of the order and the date when the report was sent to the second member. The first member, the Chief Secretary, got the report on 11th, that is, within three days from the date of the order of detention. If a copy had also been sent to the second member by the detaining authority, then, one may presume, specially when both the detaining authority and the members of the reviewing authority were working at one and the same place, that the report would have reached the second member, also on or about the 11th. There is no doubt whatsoever that the Chief Secretary acted promptly on perusing the report by endorsing the same for being forwarded to the second member. But, instead of sending the report directly to the second member, the Chief Secretary handed over the papers to the Under Secretary to the Government of Gujarat. Now, on the facts of the case, there is no doubt also that the report lay with that officer for a period of five days. The explanation which that officer gives for this delay is that he had a number of detention papers on hand and, therefore, he took time in making notings on all those detention papers. This may be a good explanation so far as the office routine is concerned. But, in our judgment, the matter is not to be looked at from the point of view of the office routine. The matter has got to be looked at from the point of view as to whether Rule 30-A has or has not been complied with. There is nothing in the Defence of India Act or the Rules which requires the interposition of any officer of the Government between the detaining authority and the reviewing authority. As we have already pointed out, it is the duty of the detaining authority to report the fact of detention to the reviewing authority. There is nothing in the Defence of India Act or the Rules which requires that any officer should make notings on the report made by the detaining authority. The Chief Secretary could and should have forwarded the report to the second member on the same day when he himself finished with the report. If the Chief Secretary has any reasonable ground or explanation to give for the delay in forwarding the report, then, a question might arise for consideration, with which we are not concerned in the present case, as to whether that delay could or could not be regarded to be unavoidable delay when viewing the matter from the point of view of the discharge of duty of the detaining authority. But, in the present case, having regard to the aforesaid circumstances, it cannot be denied that there has been an unavoidable delay in sending the report by the detaining authority to the second member of the review-wing authority. That being so, it must follow that the detention of petitioner, after the period prescribed by Sub-rule (5) of Rule 30-A, must be regarded as illegal and that detention being in violation of a statutory rule, the present petition must be allowed.

10. Having regard to our aforesaid conclusion, it is not necessary to record any findings regarding the other parts of the last argument of Mr. Raval. But, we may briefly indicate some of the conclusions that we have arrived at. It is a fact that, till 30th November 1965, the date on which the petition was amended, the reviewing authority had not made any recommendation to the State Government as required by Sub-rule (6) of Rule 30-A. Therefore, it follows that, till that date, the State Government had not either confirmed or cancelled the petitioner's detention order. The affidavit of Mr. Naik, Under Secretary to the Government of Gujarat, however, reveals that the recommendation of the reviewing authority was received by the Government on 9th December 1965 and he says on 13th December 1965 that the Government will proceed to consider the question of confirmation or the cancellation of order. We were told on the date of the hearing of this matter that the Government had passed the order confirming the order of detention. Therefore, the points as raised by Mr. Raval on the above score do not now survive. We may mention that we are not called upon in the present case to determine whether the law does or does not impose any time-limit on the reviewing authority for making its recommendation or for the State Government to pass its order of confirmation or cancellation. That is not a question which has been raised for our decision and we should not be taken to have expressed any opinion thereon.

11. We propose to allow this petition on the ground that the report of the second respondent about the factum of detention was not commu nicated to the Secretary, Finance Department, 'forthwith' as required by sob-rule (5) of Rule 30-A of the Rules and on the further ground that the violation of that sub-rule must render the detention of petitioner illegal. Therefore, we direct that a writ of habeas corpus should issue in the case and that petitioner be set at liberty forthwith.

Rule made absolute. Petitioner shall receive costs of this petition from the two respondents.


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