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Digvijaysinhji Hamirsinhji Vs. H.K. Oza and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1965)6GLR632
AppellantDigvijaysinhji Hamirsinhji
RespondentH.K. Oza and anr.
Cases ReferredNaresh Chandra v. The State of West Bengal A.I.R.
Excerpt:
- - 3. by his order dated april 7 1964 the district magistrate directed that the petitioner be detained on being satisfied with respect to him that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order it was necessary to detain him. on april 23 1964 the petitioner asked for further particulars to enable him to make his representation effectively. it appears that the state government placed the grounds of detention as also the petitioners representation before the advisory board as required by section 9 and on receipt of the report of the advisory board confirmed the order of the district magistrate being satisfied as averred in the affidavit of the under secretary home and civil supplies department (special) that there were sufficient.....j.m. shelat, c.j.1. this is a petition for quashing the order of the district magistrate jamnagar dated april 7, 1964 directing the detention of the petitioner under section 3(1)(a)(ii) of the preventive detention act iv of 1950 and the order of the state government dated june 2 1964 confirming the same and for a direction for the release of the petitioner from detention at present in the central jail at rajkot.2. at the material time the petitioner was the sarpanch of the gram panchayat of village kharedi and had been so acting ever since 1956 having been elected as such from time to time. he was also the chairman of the kharedi multi-purpose co-operative society and an elected member of the taluka kalawad panchayat as also a member of the district panchayat jamnagar district. as a.....
Judgment:

J.M. Shelat, C.J.

1. This is a petition for quashing the order of the District Magistrate Jamnagar dated April 7, 1964 directing the detention of the petitioner under Section 3(1)(a)(ii) of the Preventive Detention Act IV of 1950 and the order of the State Government dated June 2 1964 confirming the same and for a direction for the release of the petitioner from detention at present in the Central Jail at Rajkot.

2. At the material time the petitioner was the Sarpanch of the gram panchayat of village Kharedi and had been so acting ever since 1956 having been elected as such from time to time. He was also the chairman of the Kharedi Multi-purpose Co-operative Society and an elected member of the Taluka Kalawad Panchayat as also a member of the District Panchayat Jamnagar District. As a member of the Swatantra Party he contested during the last general elections as a candidate of that party.

3. By his order dated April 7 1964 the District Magistrate directed that the petitioner be detained on being satisfied with respect to him that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order it was necessary to detain him. By another order of the same date he directed that the petitioner should be detained in the District Prison Jamnagar and should for the purpose of the conditions of Detention Order 1951 be treated as Class II prisoner. On that date the District Magistrate also communicated to the petitioner the grounds of detention as required by Section 7 of the Act. By a letter dated April 21 1964 the District Magistrate informed the petitioner that the associates of petitioner mentioned in sub-para 8(b) of para 2 of the said grounds were the five persons whose names were set out therein. On April 23 1964 the petitioner asked for further particulars to enable him to make his representation effectively. The District Magistrate however by his reply dated April 26 1964 declined to give any further particulars. On April 27 1964 the petitioner made his representation to the State Government. It appears that the State Government placed the grounds of detention as also the petitioners representation before the Advisory Board as required by Section 9 and on receipt of the report of the Advisory Board confirmed the order of the District Magistrate being satisfied as averred in the affidavit of the Under Secretary Home and Civil Supplies Department (Special) that there were sufficient grounds for the District Magistrate to pass the order.

4. It is clear that the impugned order was passed under Section 3(1)(a)(ii) i.e. on the basis that the District Magistrate was satisfied that with respect to the petitioner it was necessary with a view to preventing him from acting in a manner prejudicial to the maintenance of public order that an order of preventive detention should be made against him. There is no dispute that the District Magistrate passed the order with jurisdiction and that the necessary procedure required by the Act was gone through both by the District Magistrate in passing the order and by the State Government in confirming it and that as required by Section 3(4) the State Government had also reported the fact of its approval of the impugned order to the Central Government.

5. The impugned orders dated April 7 and June 2 1964 however have been challenged by Mr. Hathi for the petitioner on three grounds (1) that the orders have no rational nexus with the maintenance of public order and that therefore they are ultra vires and beyond the scope of Section 3(2) that the grounds of detention furnished to the petitioner were so vague that it was impossible for the petitioner to make his representation effectively and (3) that the orders were mala fide as they were made on political grounds and at the instance of his political opponents.

6. In view of these contentions it becomes necessary to examine the grounds of detention communicated to the petitioner. Para 1 of these grounds states that In pursuance of Section 7...the following particulars are hereby communicated to you in connection with the grounds on which a detention order has been made against you. Then follows Para 2 the first part of which alleges that the petitioner was a desperate person that he had established a reign of terror in the village Kharedi and the surrounding villages Bhagat Khijadia Khankotda and Napania Khijadia etc. that he believed as if there was no existence of law that he resorted to violence and subjugated those who resisted his illegal and wanton activities and that right from the year 1952 he had been indulging in acts of violence and anti-social activities prejudicial to the maintenance of public order. Then follow eleven instances of acts alleged to have been committed by the petitioner but it is well to remember that all of them are said to have been committed during the period from September 1962 to January 17 1964 None of these acts is ascribed to any part of the period between 1952 to September 1962 though it is previously alleged that the petitioner had established a reign of terror since 1952. In view of the fact that the eleven sub-paras of paragraph 2 allege activities said to have been indulged in by the petitioner during the period between September 1962 to January 1964 only we asked the learned Assistant Government Pleader whether the year 1952 in the first part of paragraph 2 was correctly stated and we were assured by him that it was so.

7. The eleven instances narrated in the aforesaid grounds fall into the following classification:

(1) assaults as alleged in sub-paras (4)(a) and (b)(5)(a)(7)(b) and(d)(8)(a)(9)(c) and 10;

(2) thefts and forcible taking away of property as alleged in sub-paras (2)(3)(8)(a) and (b)(9)(b) and (d);

(3) illegal demands of money as alleged in sub-paras (1)(9)(a) and(10);

(4) threats of assault and even of murder paras (5)(b)(7)(a)(8)(c)(9)(a) and (11); and

(5) forcible grazing of his cattle as alleged in sub-paras (5)(a) and (6). It is an admitted position that in none of these grounds the date the place of the alleged incidents and the name or names of the alleged victims are disclosed. In paragraph 11 of his affidavit in reply the District Magistrate however has claimed that particulars other than those disclosed in the grounds could not be furnished to the petitioner as he considered such disclosure to be against public interest inasmuch as such discloser would have led to the identification of the victims and it was likely that the lives and properties of the victims would have been endangered thereby.

8. The contention of Mr. Hathi was that the exercise of privilege under Section 7(2) and Article 22(6) of the Constitution on which that Subsection is based was not bona fide and that even if it was held that it was bona fide the respondents must take the risk of the grounds being vague and indefinite and thereby of stultifying the right of the petitioner to make an effective representation. On the other two submissions of Mr. Hathi the contentions were that even on the assumption that the various allegations contained in the grounds were true they were acts against stray individuals and were therefore extraneous to and beyond the objective of maintenance of public order in Section 3 of the Act in other words they were acts which cannot be said to undermine or to render the maintenance of public order difficult or impossible. Mr. Hathi also contended that the order was made in mala fide exercise of the power under Section 3 of the Act. The authorities had initiated externment proceedings against the petitioner by issuing a notice dated September 5 1963 under Section 59 read with Section 56 of the Bombay Police Act 1951 but having found that they could not successfully act under that Act had to discharge that notice by the order of the Sub-Divisional Magistrate dated December 18 1963 and that having failed in that attempt the authorities had started proceedings against the petitioner under the Preventive Detention Act 1950 The contention was that the petitioner having succeded in the Panchayat elections and having secured majority of his party in the Panchayat bodies in the District of Jamnagar certain Congress leaders of the district had manoeuvred to have him detained so that he would not be able to prosecute his legitimate political activities. It was also urged that a very large number of Panchayats from this district had passed resolutions protesting against the impugned orders and that if the petitioner had committed the acts alleged against him and had established a reign of terror in the aforesaid villages it was highly inconceivable that such a large number of Panchayats would have thought fit to pass such resolutions. Mr. Hathi therefore urged that the impugned orders were mala fide and were passed at the instance of Congress leaders in Jamnagar District and for political reasons and not on account of the petitioner having committed any of the aforesaid acts alleged against him.

9. As the long title of the Act shows the Preventive Detention Act 1950 was enacted to provide for preventive detention in certain cases and matters connected therewith. As observed in Gopalans case : 1950CriLJ1383 the word preventive as used in the Act is in contradistinction to the word punitive The object therefore of the Act is not to punish a person for having done something but to intercept him before he does a prejudicial act and to prevent him from doing it. In the case of such detention no offence is proved nor any charge formulated and the justification is suspicion or a reasonable probability and not a conviction warranted by legal evidence. To quote the words of Lord Atkinson in Rex v. Halliday 1917 A.C. 260 at 275 preventive detention proceeds upon the principle that a person should be restricted from doing something which if free and unfettered it is reasonably probable he would do it. It must necessarily therefore proceed in all cases to some extent on suspicion or anticipation as distinct from proof. Since action under Section 3 is taken on suspicion or anticipation its test is a subjective test based on the cumulative effect of different acts even spread over a considerable period. For such preventive detention it is obvious that it would be difficult almost impossible to lay down objective rules of conduct the failure to conform to which should lead to preventive detention. As the very expression preventive detention implies it is enacted with the object of preventing the person concerned from acting prejudicially to any one of the objects set out in the section. Therefore under Section 3 it is the satisfaction of the appropriate authority which is necessary and if the grounds of detention on which that authority has stated that it is so satisfied have a rational connection with the objects which are to be prevented from being attained the question of satisfaction is not justiciable. (See Puranlal v. Union of India : 1958CriLJ283 . Since the satisfaction is that of the appropriate authority and not of the Court it must follow that the question as to sufficiency of materials on which the satisfaction is arrived at is also not an issue in which the Court can go into nor also into the question whether the materials placed before the authority upon which its suspicion is founded are true or false. Therefore the satisfaction of the appropriate authority as to matters specified in Section 3 is the only condition for the exercise of the power and the Court cannot substitute its own satisfaction for that of the authority. Though the satisfaction of the appropriate authority is the only condition for the exercise of the power under Section 3 and the question of that satisfication is not justiciable an order of preventive detention as held in Ashutosh v. The State of Delhi : AIR1953SC451 can be challenged on the ground that it was made in mala fide exercise of power. In such a case the burden of proving mala fide is on the detenue and that burden no doubt is a heavy one. In Ashutoshs case the grounds of detention were that the petitioner went to Delhi on March 27 1950 held a press conference there in which he gave a highly exaggerated and communal version of events in Bengal and East Bengal. After that conference the activities of the petitioner continued to be such as would incite communal passions. A communal riot had in fact taken place on March 19 1950 as a result of intemperate statements made at a public meeting. The authorities felt that the petitioners activities might lead in those circumstances to disturbance of public peace and order. Even in these circumstances Mahajan J. as he then was observed that if the petitioners presence in Delhi at that time might lead to disturbance of communal peace there were ample powers under the ordinary law which the authority could exercise for the purpose of preventing the mischief. In point of fact the other persons who were to take a leading part in the meeting to be held on April 1 1950 were externed from Delhi but the petitioner only was consigned to detention in jail. The learned Judge observed that there could be no better proof of mala fides on the part of the executive authorities than the use of the extraordinary provisions of the Act for purposes for which the ordinary law was sufficient. The petition however was dismissed as the Supreme Court was unable to hold definitely that there was want of good faith on the part of the authorities. Nevertheless Mahajan J. as he than was uttered the following words of warning: I can only hope that the authorities will take care to see that no instances occur which might savour of injustice or oppression through misuse of those extraordinary powers which the Parliament has vested in the executive in the interests of the State itself. In Puranlals case also A. I R. 1958 S.C. 163 the Supreme Court held that the grounds on which the authority had said that it was satisfied must have a rational connection with the objects which are to be prevented from being attained. The question therefore is whether the grounds which were communicated to the petitioner and which presumably were the grounds upon which the satisfaction of the District Magistrate was based had a rational connection with the object for which the order was passed namely to prevent the petitioner from acting prejudicially to the maintenance of public order in Kharedi and other neighbouring villages in the district of Jamnagar. We shall consider this question on the assumption that the facts stated in the grounds were true. On such assumption the question will be whether the grounds were relevant to the object namely the maintenance of public order within the meaning of Section 3(1)(a)(ii) of the Act.

10. As stated earlier the condition that must exist before the power is exercised under Section 3 is that the District Magistrate must be satisfied that to prevent the person concerned from acting in a manner prejudicial inter alia to the maintenance of public order it is necessary to detain that person. The point to consider is what is the connotation of the expression public order as used in Section 3 of the Act. Fortunately this expression has been the subject matter of consideration on more than one occasion by the Supreme Court and therefore it is no longer a matter of any debate. In Romesh Thappar v. The State of Madras : 1950CriLJ1514 the Supreme Court was concerned with the question of validity of Section 9(1A) of the Madras Maintenance of Public Order Act 1949 which authorised the Government of Madras for the purpose of securing the public safety or the maintenance of public order to prohibit inter alia the entry into or the circulation sale or distribution in Madras of any document or class of documents. The Act was passed in exercise of the power under Section 100 of the Government of India Act 1935 read with Entry No. 1 of List II of the Seventh Schedule which contained among other matters public order. While considering the ambit of Clause (2) of Article 19 with Clause (1) of that Article Patanjali Sastri J. as he then was speaking for the majority stated after citing a passage from Stephen in his Criminal Law of England Vol. II as follows.-

Though all these offences thus involve disturbances of public tranquility and are in theory offences against public order the difference between them being only a difference of degree yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Penal Code. Similarly the Constitution in formulating the varying criteria fur permissible legislation imposing restriction on the fundamental rights enumerated in Article 19(1) has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it and made their prevention the sole justification for legislative abridgement of freedom of speech and expression that is to say nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression while the right of peaceable assembly (Sub-clause (b)) and the right of association (Sub-clause (c)) may be restricted under Clauses (3) and (4) of Article 19 in the interest of public order which in these clauses includes the security of the State.

The learned Judge further stated that unless a law restricting freedom of speech and expression was directed solely against the undermining of the security of the State or the overthrow of it such law could not fall within the reservation under Clause (2) of Article 19 although the restriction which it sought to impose might have been conceived generally in the interest of public order. He held that the impugned Section 9(1-A) of the Madras Maintenance of Public Order Act 1949 which authorised the imposition of restriction for the wider purpose of securing public safety or the maintenance of public order fell outside the scope of authorised restrictions under Clause (2) and was therefore void and unconstitutional. On the same view of Article 19(2) as it then stood the Supreme Court in Brij Bhushan v. The State of Delhi : 1950CriLJ1525 held Section 7(i)(c) of the East Punjab Public Safety Act 1949 which gave power of pre-censorship before publication to be void and quashed the impugned order passed thereunder. The effect of these two decisions it would appear was that it would be only major offences affecting the security of the State which would save legislation restrictive of the right of freedom of speech and expession under Article 19(1). It was presumably to get over such a result that the first Amendment Act of 1951 was passed which inter alia inserted the expression public order in Article 19(2) the effect of which has been considered by the Supreme Court in The Superintendent Central Prison v. Dr. Ram Manohar Lohia : 1960CriLJ1002 . The Supreme Court there examined the validity of Section 3 of the U.P. Special Powers Act 1932 and in doing so also examined the meaning of the expression public order in the light of its insertion in Article 19(2) and its impact on Article 19(1). After examining the various categories of cases covering the expression public order in America and England the Supreme Court at page 639 of the report observed as follows:

But in India under Article 19(2) this vide concept of public order is split up under different heads. It enables the imposition of reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the security of the State friendly relations with foreign States public order decency or morality or in relation to contempt of court defamation or incitement to an offence. All the grounds mentioned therein can be brought under the general head public order in its most comprehensive sense. But the juxtaposition of the different grounds indicates that though sometime they tend to overlap they must be ordinarily intended to exclude each other. Public order is therefore something which is demarcated from the others. In that limited sense particularly in view of the history of the amendment it can be postulated that public order is synonymous with public peace safety and tranquility.

Summarising the discussion the Supreme Court at page 641 of the report stated that public order was synonymous with public safety and tranquility; it was the absence of disorder involving breaches of focal significance in contradistinction to national upheavals such as revolution civil strife and war affecting the security of the State. In that case the Supreme Court held that it was necessary that there was proximate and reasonable nexus between the speech in question and the public order and that Section 3 of the U.P. Special Powers Act did not establish in most of the cases comprehended by it any such nexus. It follows therefore that there must be a proximate or reasonable nexus between the activities alleged against the person concerned and the objective of Section 3 of the Preventive Detention Act 1950 namely the maintenance of public order in other words the absence of disorder involving breaches of peace of local significance as contradistinguished from national upheavals affecting the security of the nation.

11. The next question therefore in the light of this interpretation of the expression public order is whether the activities alleged against the petitioner in the grounds on which the satisfaction of the appropriate authority was founded can be said to have a proximate or reasonable nexus with the objective in Section 3 namely being prejudicial to the maintenance of public order. In Bajirao v. Emperor A.I.R. 1946 Bom. 32 where the impugned order was made under the Detention Ordinance III of 1944 which permited detention for preventing a person from doing something which was likely to affect the safety of the State or the effective prosecution of the war Chagala and Gajendragadkar JJ. as they then were held that though it was not competent to the Court to enquire into the sufficiency of the materials and the reasonableness of the grounds on which the satisfaction of the detaining authority was based if the reasons which influenced the detaining authority in making the order appear on the record the Court could scrutinize them to see what was the condition of the mind of the authority when it passed the order. These grounds must show that they had a reasonable nexus with one or the other objective set out in the section otherwise the satisfaction of the authority would be on grounds extraneous to or beyond the purview of the section. A number of decisions of the different High Courts were shown to us by Mr. Hathi to point out that the grounds of such preventive action were held in those cases to be beyond the scope of similar provisions. In Lalu Gope v. The King A.I.R. 1949 Pat. 298 where preventive detention was directed under the Bihar Maintenance of Public Order Act 1947 the High Court of Patna held (1) that the provisions enabling such orders must be read in the light of the other provisions of the Act and (2) that so read the persons against whom such orders could be made were the persons engaged in activities which were likely to lead to public disorder or domestic violence. It was also held that the persons there aimed at were clearly not habitual criminals convicted and suspected of committing thefts though habitual criminals were not as such exempt from its provisions if their detention was justified not on the ground of their being habitual criminals but on the ground that their detention was necessary in a crisis for the prevention of public disorder. Similarly in In re Devata Laxminarayan : AIR1950Mad266 where the impugned order was passed under the Madras Maintenance of Public Order Act I of 1947 Horwill J. with whom Satyanarayana Rao. J. agreed held that the grounds communicated to the detenu must show that his activities were such as were likely to endanger the objects for which the Act was passed in that case the peace and security of the province of Madras. In that case it was held that the supply of explosives to communists in Hydrabad State was beyond the scope of the Act and therefore the order of detention was bad as being beyond the purview of the Act. In Khalifa Janki Das v. Emperor A.I.R. 1950 East Punjab 172 Kapur J. while dealing with a similar provision in Section 3 of the East Punjab Public Safety Act 1949 held that the Act could be used for prevention and not for punishing of persons. If the District Magistrate was of the opinion that the detenu had started malicious propaganda and had issued posters which were objectionable from communical point of view then it was open to him to take action against him under Section 153-A of the Penal Code or under Section 108 of the Criminal Procedure Code. But the Act was not intended to suspend the ordinary criminal courts of the land or to prevent them from exercising their ordinary jurisdiction. The learned Judge held that in the case before him the action of the executive was therefore de hors the object of Section 3 and the detention order was illegal. In Ravinder Kumar v. District Magistrate A.I.R. 1960 Punjab 332 the contention on behalf of the detenu was that the activities alleged against him in the grounds namely thieving gambling rowdism assaulting people etc. could not be regarded to be such activities as were in any manner prejudicial to the maintenance of public order. Accepting this contention Grover J. held that merely because a person was a dangerous character or was breaking the law in one manner or the other it did not mean that the maintenance of public order was being threatened unless the activities were of such a nature and the situation prevailing in a particular part of the country was such that if he was not detained the maintenance of public order could not be maintained or it would be endangered. There must exist in such a case some situation showing that the maintenance of tranquility in the community would be prejudiced or endangered unless such a person was detained. It is true and there are a number of decisions to that effect that the fact that the person concerned can be dealt with under the ordinary law does not preclude the authority from exercising its power under the Preventive Detention Act. But the reason for such exercise of power would not be that the person has committed offences but that his activities are such that unless prevented he would undermine or endanger any one of the objects of the Act.

12. Statutes such as the Preventive Detention Act conferring extraordinary powers of arrest and detention on mere suspicion or anticipation and not on legal evidence are obviously intended not as substitutes for ordinary trials or ordinary courts but are intended to deal with emergencies stated in the Act one of which is the maintenance of public order. Ordinarily a single offence or several offences dealt with by the Penal Code or other penal statutes cannot be held to affect prejudicially the maintenance of public order to an extent which would call for the application of such an Act. Such offences are and can be dealt with under the normal machinery of the Criminal Procedure Code. No doubt in a given situation even a single act or a series of acts might put into jeopardy the maintenance of public order and call for the exercise of this extraordinary power. When the authorities find that the maintenance of order and tranquility are in danger and the normal administrative machinery is not sufficient or in a position to cope with such a situation such power can certainly and justifiably within the extent and scope of the Act be exercised.

13. As already stated the grounds in the present case show that the activities alleged against the petitioner consist of assaults thefts and extortion illegal demands of money threats of assaults and of murder and lastly forcible grazing of cattle in other persons fields. There can be no doubt that each of these activities is capable of being dealt with under the ordinary laws and by ordinary courts. I was not the case of the respondents that the machinery of the ordinary courts. It was not the case of the respondents that the machinery of the ordinary laws was set in motion and that it had failed nor could it be legitimately said that people in the locality had such apprehension regarding their person or property that they were not ready to give evidence against him or to file complaints against him. In fact proceedings for externment were taken against the petitioner in September 1963 but then failed and the notice under Section 59 read with Section 56 of the Police Act 1951 had to be discharged. That prima facie would indicate that the authorities had no evidence on which the SubDivisional Magistrate could base even his subjective satisfaction on the basis of which the petitioner could be externed. The grounds in our opinion do not show that as a result of the activities alleged against the a petitioner a situation had arisen in Kharedi or in the surrounding villages in that locality where he was alleged to have been carrying on his activities that maintenance of public order there was undermined or endangered so that it became necessary to resort to the extraordinary power under Section 3 of the Act. The conclusion therefore must be that the grounds on which the satisfaction of the District Magistrate was based were not within the scope of Section 3 of the Act and were in fact de hors it and therefore the order was bad and the detention was invalid.

14. In para 2 of the grounds it has however been stated: You are desperate and have established a reign of terror in your own village Kharedi and in the sorrounding villages viz. Bhagat Khijadia Khankotda and Hapania Khijadia etc. You believe as if there was no existence of law. You resort to violence and subdue those who resist your illegal and wanton activities that right from the year 1952 you have been indulging in acts of violence and anti-social activities prejudicial to the maintenance of public order. In para 3 it is then stated that from the materials placed before him the District Magistrate was satisfied that the petitioner was acting in a manner prejudicial to the maintenance of public order and that he had proved to be a danger to the public order and peace in Kharedi and the surrounding villages and that in view of the grounds mentioned in the foregoing paragraphs it is evident that you will in all probability continue to do so. That your criminal activities and movements have become so desperate and dangerous that public order cannot be maintained in the said areas without detaining you. From these observations in paras 2 and 3 of the grounds it may perhaps be possible to argue that the activities alleged in para 2 were such that they were prejudicial to the maintenance of public order and the detaining authority was satisfied that if the petitioner was not detained he was likely to continue to carry on the same or similar activities which would undermine the maintenance of public order and create disorder. The allegations contained in para 2 of the grounds and in particular the words from the materials placed before me and the words in view of the grounds mentioned in the foregoing paragraphs in para 3 of the grounds would mean that the foregoing paragraphs are paragraphs 1 and 2 and the grounds on which the District Magistrate was satisfied were the grounds stated in para 2 which would include the ground set out above from the first part of para 2. Taking that as one of the grounds for satisfaction namely that the petitioner was a desperate person that he had established a reign of terror and that right from 1952 he had been indulging in acts of violence and anti-social activities that ground was not the only one that was considered but along with that ground there were other grounds set out in the various sub-paras of para 2. Since the latter were as we have held beyond the purview of Section 3 as they cannot be said to be relevant to the object in view in Section 3 in the sense that they cannot be treated as leading to such public disorder as would lead to the undermining of maintenance of public order of any local significance there not being at the relevant time the existence of a situation which would make difficult if not impossible the maintenance of public order in that locality the order would still be bad. It is well-settled that each of the grounds relied on by the detaining authority must be a ground relevant to one or more of the objects set out in Section 3. If there are grounds relied on by the detaining authority for its satisfaction but one or more of them are not relevant and are extraneous to the section the satisfaction of such an authority which is the basic foundation of an impugned order cannot be one contemplated by the section. For where the section requires only the subjective satisfaction of the detaining authority and such satisfaction is founded on several grounds it is impossible to predicate which of them affected the formation of that satisfaction and which did not. It is also not possible to say in the present case that the grounds which were irrelevant were unessential so that it can be predicated that they did not play their part in bringing about the satisfaction of the detaining authority. The inclusion of the grounds in the first part of para 2 of the grounds above stated therefore would not save the order from being invalid.

15. Assuming that we are not correct in the view we take of the scope of Section 3 read in the light of the interpretation of Article 19(2) by the Supreme Court in Dr. Lohias case (supra) we have next to consider the second contention of Mr. Hathi namely whether the grounds communicated to the petitioner were so vague and indefinite that it became impossible for him to make an effective representation to the Government and stultified his right of representation. Section 7(1) provides that when a person is detained in pursuance of a detention order the authority making the order shall as soon as may be but not later than five days from the date of detention communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. Sub-section (2) provides that nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. The section is based on the right conferred on a person detained in pursuance of an order made under a law providing for preventive detention by Article 22(5) of the Constitution. There are several decisions on the scope and content of Section 7 and Article 22(5) but it is not necessary to go into them as there are authoritative pronouncements on them by the Supreme Court. In The State of Bombay v. Atma Ram : 1951CriLJ373 the Supreme Court held that a detenu in addition to his right to have the grounds of his detention communicated to him is entitled to a further right to have particulars as full and adequate as the circumstances permit furnished to him to enable him to make a representation against the order of detention. In Bhardwaj v. The State of Delhi : 1953CriLJ1241 following Atma Rams case (supra) the Supreme Court laid down two propositions (1) that preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Courts and (2) that a petitioner had the right to be furnished with particulars of the grounds of his detention sufficient to enable him to make a representation. It was also held that this constitutional requirement must be satisfied with respect to each of the grounds subject of course to a claim of privilege under Clause (6) of Article 22 and that where it had not been so done in regard to one of the grounds the detention could not be held to be in accordance with the procedure established by law within the meaning of Article 21 and the detenu would in such a case be entitled to be released. In Lawrence Joachims case : 1956CriLJ935 the Supreme Court had again to deal with Section 7 and Article 22(5) and the following propositions were laid down:

(1) whether the grounds of detention are vague or not is a question which has to be determined on a consideration of the circumstances of the case;

(2) if the detenu does not apply for particulars that would be a circumstance which can be taken into consideration in deciding whether the grounds could be considered to be vague;

(3) the right to be furnished particulars is subject to the limitation in Clause (6) of Article 22 whereby the disclosure of facts considered to be against public interest cannot be required;

(4) there is no obligation under Article 22(5) and (6) to communicate to the detenu the decision not to disclose facts at the time when the grounds are furnished. That necessity would arise only if the detenu feeling the grounds to be vague asks for particulars; and

(5) in the absence of a request for particulars the non-communication of the decision to exercise the privilege cannot be said to hamper the right of representation.

Dealing with Article 22 and Section 3 of the Preventive Detention Act the Supreme Court in Puranlal Lakhanmals case : 1958CriLJ283 observed that Clause (5) of Article 22 conferred two rights on the detenu namely first a right to be informed of the grounds on which the order of detention has been made and secondly to be afforded the earliest opportunity to make a representation against the order. If the grounds which have rational connection with the objects mentioned in Section 3 are supplied the first condition is complied with. But the right to make a representation implied that the detenu should have such information as would enable him to make a representation and if the grounds supplied are not sufficient to enable the detenu to make a representation he can rely on the second right. The second right however is again subject to the right of privilege given by Clause (6) and the obligation to furnish grounds and the duty to consider whether disclosure involved there is against public interest are both vested in the detaining authority and not in any other. It is thus clear that the obligation to furnish grounds and the duty to consider whether disclosure of any facts involved therein is against public interest are both vested in the detaining authority. If such privilege is exercised the detenu cannot be heard to say apart from the question of mala fides that the grounds did not disclose the necessary particulars or that in the absence of such particulars he was not in a position to make an effective representation. The Supreme Court again examined Sections 3 and 7 of the Act in Naresh Chandra v. The State of West Bengal A.I.R. 1959 S.C. 1336 and observed at pages 1340 and 1341 that on a consideration of these two sections the detenu has to be served with a copy of the order passed by the authority contemplated by Sub-section (2) of Section 3 containing firstly the recitals in the terms of one or more of the Sub-clauses (a) and (b) of Section 3(1) which may be called the preamble and secondly the grounds contemplated by Section 7 i.e. the conclusions of fact which led to the passing of the order of detention informing the detenu as to why he was being detained. If the grounds do not contain all the particulars necessary for enabling the detenu to make his representation the detenu may ask for further particulars of the facts and the authority which passed the order of detention is expected to furnish all that information subject of course to the provisions of Sub-section (2) of Section 7 that is to say the person detained is not entitled to the disclosure of such facts if the authority making the order considers its disclosure to be against public interest. Therefore the order of detention to be served on the person detained would usually consist of the first two parts namely the preamble and the grounds but it may also consist of the second part, namely particulars if and when they are required or found to be necessary.

16. Now it is not in dispute that before the petitioner filed his representation he complained that the grounds furnished to him were vague and therefore by his application dated April 23 1964 to the District Magistrate he asked for further particulars to be furnished to him. That request was however negatived by the District Magistrates reply dated April 26 1964 Annexure A to the affidavit in rejoinder. In that reply the District Magistrate only stated that the petitioner should note that no further particulars over and above the same furnished to you in the grounds of detention are required to be given to you. From the words used in this letter it will be seen that no privilege was claimed in express terms and that the only thing that was stated was that the particulars were not required to be given to the petitioner. Assuming however that the letter of April 26 1964 were to be regarded as an exercise of the privilege under Section 7(2) paragraph 11 of the affidavit in reply of the District Magistrate shows that the privilege that was exercised was to a limited extent that is against disclosing the name the date and the place. No doubt the word etc has been used after the words particulars as to the person date and place but that word is too vague to be construed as an exercise of privilege regarding matters other than those mentioned expressly. It is clear from the grounds that the first para thereof is a recital which is followed by grounds stated in para 2. Para 3 sets out the satisfaction of the District Magistrate and paras 4 and 5 inform the petitioner of his right to make a representation and his right to claim a personal hearing. It is thus clear that it is para 2 of the grounds which contains the grounds on which the satisfaction of the District Magistrate was founded.

17. Para. 2 of the grounds states that the petitioner was a desperate person that he had established a reign of terror and that since 1952 he had been indulging in activities which were prejudicial to the maintenance of public order. Sub-paras (1) to (11) thereof then deal with the particular activities alleged to have been committed by the petitioner from September 1962 so January 1964. Though the first part of para 2 alleges that the petitioner was indulging in acts of violence etc. since 1952 and that his acts of violence and anti-social activities were prejudicial to the maintenance of public order no particulars whatsoever are given as to what those activities were nor even as to the nature of such activities. Realising that this ground suffered from absolute vagueness the learned Assistant Government Pleader tried to argue that para 1 of the grounds was a preamble and that the first part of para 2 also was a preamble to the sub paras of that para. Such an argument cannot be accepted because para 1 in clear terms states that the following particulars are hereby communicated to you in connection with the grounds on which a detention order has been made and para 3 again in express terms states that in view of the grounds mentioned in the foregoing paragraphs it is evident that you will in all probability continue to do so and that the petitioners criminal activities and movements had time so desperate and dangerous that public order cannot be maintained in the said areas without detaining him. In view of this express language both in paras 1 and 3 of the grounds the first part of para 2 must be treated as a ground that ground being that since 1952 the petitioner was indulging in acts of violence and other activities prejudicial to the maintenance of public order. There is no doubt that that ground is vague and indefinite and no particulars whatsoever are given about it. The learned Assistant Government Pleader did not even attempt to urge that the ground was not expressed in vague and indefinite terms. Even if the letter of April 26 1964 were to be regarded as one whereby the privilege under Section 7(2) was exercised that privilege as seen from para 11 of the affidavit in reply was only to the extent of non-disclosure of the date and place of the alleged acts and the name or names of the alleged victims. But so far as the first part of para 2 is concerned the nondisclosure therein is almost total and certainly not limited to the name date or the place. It is not as if some particulars are given there and the rest as to the date place and the name of the victim are not disclosed upon an exercise of the privilege under Section 7(2). There being thus a total non-disclosure the exercise of the privilege in so far as this ground is concerned must be held to be not bona fide in the sense that it would amount to deny the petitioner the opportunity to make an adequate and effective representation and in any event the non-disclosure is not saved by the exercise of privilege as that privilege was expressly limited to the nondisclosure of the name date and place only. The subjective satisfaction of the appropriate authority which is the condition for the exercise of power under Section 3 is undoubtedly based upon the grounds communicated to the petitioner subject of course to the exercise of privilege under Sub-section (2) of Section 7. Since the subjective satisfaction is based upon the cumulative effect of the grounds it is not possible to predicate whether the ground stated in the first part of para 2 had not affected the mind of the District Magistrate. Since that ground alleges that the petitioner since 1952 had been indulging in acts of violence and anti-social activities prejudicial to the maintenance of public order such a ground can by no means be said to be non-essential which could not have affected the making up of the mind of the District Magistrate. Such a ground having been kept vague and indefinite and no particulars thereof having been given inspite of the demand made therefor coupled with the fact that the privilege exercised was to a limited extent the impugned orders must be held to be invalid on this ground also.

18. In view of the fact that the impugned orders are bad on both these grounds it is not necessary for us to go into the other two contentions of Mr. Hathi namely (a) that the other grounds also are vague and


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