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P. Srinibash Naidu Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCriminal Misc. Case No. 6 of 1960
Judge
Reported inAIR1962Cal162
ActsConstitution of India - Articles 22(5), 134, 136, 166(2), 166(3) and 226; ;Preventive Detention Act, 1950 - Sections 3 and 10
AppellantP. Srinibash Naidu
RespondentThe State of West Bengal and ors.
Appellant AdvocateAnil Kumar Sen, Adv.
Respondent AdvocateAmaresh Chandra Roy, Adv.
Cases ReferredLalu Gope v. The King
Excerpt:
- .....in due course. the detenue was apprised to his right to make a representation to the advisory board. a representation was made to that board and the detenue having expressed a desire to be heard, he was given an opportunity of being heard personally by the board. on a consideration of the materials before it, the board reported that there was sufficient cause for the detention. accordingly the state government confirmed the order of detention in due course. 3. in answer to the rule the learned deputy legal remembrancer produced before us the original order of detention made by the district magistrate and the original orders of approval and confirmation made by the state government. 4. the grounds upon which the detention order was made were six in number. we have examined each one.....
Judgment:

Debabrata Mookerjee, J.

1. This is a Rule requiring the opposite parties to show cause why a writ in the nature of Habeas Corpus should not issue and the petitioner P. Srinibash Naidu alias Sinha be set at liberty.

2. By an, order dated the 1st of September, 1959, made by the District Magistrate Midnapore the petitioner was directed to be detained under Section 3 (2) of the Preventive Detention Act for the reason that he had been acting in a manner prejudicial to the maintenance of public order. The detenue was served on the same clay with a copy of the grounds upon which the detention order had been made. A report was made to theState Government and its approval to the order of detention was accorded in due course. The detenue was apprised to his right to make a representation to the Advisory Board. A representation was made to that Board and the detenue having expressed a desire to be heard, he was given an opportunity of being heard personally by the Board. On a consideration of the materials before it, the Board reported that there was sufficient cause for the detention. Accordingly the State Government confirmed the order of detention in due course.

3. In answer to the Rule the learned Deputy Legal Remembrancer produced before us the original order of detention made by the District Magistrate and the original orders of approval and confirmation made by the State Government.

4. The grounds upon which the detention order was made were six in number. We have examined each one of these grounds and are satisfied that they enabled the detenue to make an effective representation against the order of detention. Indeed, no question was raised before us on behalf of the detenue that any of these grounds suffers from vagueness or indefiniteness.

5. The first objection taken to the validity of the order is that the detenue was not given a real opportunity to make an effective representation before the Advisory Board, The complaint is founded on the circumstance that the detenue had asked for production of the records of certain criminal cases against him which had failed, so that he might be enabled to refer to them at the hearing of his case before the Board in order to substantiate the point that the order of detention had not been made bona fide. It is said that the materials which would support the allegation of mala fides were to be found in the records of those cases which he asked to be produced; but since they were not produced, the detenue was prevented from malting a proper representation before the Advisory Board. Reliance is placed upon Article 22(5) of the Constitution which provides that when a person is detained, the detaining authority shall, as soon as may be, 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. Reference has also been made to Section 10 of the Preventive Detention Act which provides that

'The Advisory Board shall after considering the materials placed before it and, after calling for such further information as it may deem, necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if in any particular case it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within ten weeks from the date of detention.'

It has been argued that the real object of Clause (5) of Article 22 and of Section 10 of the Preventive Detention Act is to enable the detenue to make a proper and effective representation so that the Advisory Board may have before it all necessary materials to arrive at a just decision. In our opinion Clause (5) provides for a constitutional right to be told as to why a person has been detained. He has to be furnished with the grounds On which the order of detention has been based and he has to be given the earliest opportunity of making a representation against the order. Clause (5) therefore makes no provision determining the manner or method of disposing of the representations or the objections raised by the detenue against the order of detention. Section 10 of the Preventive detention Act makes a procedural provision for the advisory Board to call for such information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the detenue concerned. The Advisory Board is then directed to proceed to consider the materials thus obtained. So the duty to examine relevant materials and the discretion to call for additional information are vested entirely in the Advisory Board. the Board is to decide what further materials fire necessary besides those which are required by the statute to be placed before it. The section proceeds to say that further particulars will be called for only when the Board considers it necessary so to do. There can thus be no doubt that it is the Board's duty to consider the materials which are acquired under the law to be placed before it and it is the Board's discretion to call for such further particulars as it may deem necessary in a given ease. The section emphasises that the materials called for most be necessary to a proper determination of the question before the Board. Quite obviously when a representation was made before the Board by the detenue that he should be heard with reference to the records of the cases which be wanted to be called for, the Board must be deemed to have considered that prayer and held that it was not essential or even necessary to call for those records. Section 10 regulates the procedure to be had before the Advisory Board and it contains a provision clearly defining the powers and the duties of the Board .in hearing a reference made to it by the State Government. We cannot possibly hold that the Advisory Board was, in the circumstances, obliged to call for the records. I deed Sub-section (3) of Section 10 gives the detenue a limited right of representation in the sense that lie cannot claim to be represented by any legal practitioner. We cannot, therefore, say that the Advisory Board failed to discharge its duty properly in this case Or that the detenue was not given means of effective representation before the Board against the order of detention. There has been, in our view, no infringement of either Article 22(5) of the Constitution or of Section 10 of the Pre-ventive Detention Act, by reason of the Board's refusal to accede to the petitioner's request to call for the records.

6. It was then argued that since the records were not called for by the Advisory Board, the petitioner was not enabled to establish mala fides which he urged against the detaining authority Besides making an averment of mala fides no cogent material has been placed before us from which we could reasonably hold that bad faith had been established on the part of the authority making the Order of detention.

7. Turning to the representation itself which is an annexure to the detenu's petition to this Court. it appears that the chief contention was that the detention order had been made in a mala fide manner at the instance of the local Police who having failed to procure the petitioner's con-detion in cases before the Court, had recourse to the devious practice of detention without a trial. A list of cases in which the petitioner had either been discharged or acquitted was attached and the prayer made that the records might be called for so that the Board might, on reference to them, be persuaded that the petitioner's detention was mala fide. The grounds of detention were also attacked as colourable and baseless. The substance of the complaint before the Board was repeated before us although it was conceded that this Court had no power to investigate the truth or otherwise of the grounds of detention. We were invited to hold that the order was made mala fide. It was said that the petitioner had antagonised the Police by his refusal to act as their secret agent. A mere averment of bad faith is not enough to prove it and we cannot infer it from the only circumstance that some of the grounds related to facts of cases before the Court which, had failed. The grounds of detention were not even alleged to be wholly the same as the facts in respect of which the prosecutions had been launched. Even assuming that all the cases had ended favourably to the petitioner, that would merely mean that the allegations against him were not proved. But prior unsuccessful applications of the ordinary laws would not make a subsequent application of the Preventive Detention Act ipso facto mala fide. There is besides the affidavit of the detaining authority, the District Magistrate himself that there was no occasion for the petitioner to disoblige the Police since he had never been asked to act as their informer and that the detention order was made in the bona fide and lawful discharge of official duties after the District Magistrate had been satisfied that sufficient grounds existed for the order which was necessary to be made in order to prevent the petitioner from the pursuit of his activities which were a threat to public order. We are by no means satisfied that even if the records of the cases had been called for, that would have made a difference in the Board's decision that there was sufficient cause for the detention.

8. It has then been argued that the order of detention which has based on the ground that the petitioner had been acting in a manner prejudicial to the maintenance of public order is not sustain-able. Our attention was drawn to the grounds upon which the order had been based and it was urged that none of the grounds really related to acts prejudicial to public order; they might have, it is said, related to acts of breaches of the peace. Reliance was placed upon a decision of the Rajas-than High Court in the case of Umraomal v. State of Rajasthan, (S) AIR 1955 Raj 6 in support of the proposition that public order is something different from sporadic acts of breaches of the peace. It has been argued that the acts attributed to the petitioner which furnished the basis of the order of detention were not serious instances of public disorder; they were merely acts of breaches of the peace which could not possibly be compressed within the definition of public order. As was pointed out in the case of Romesh Thappar v. State or Madras : 1950CriLJ1514 there is a dividing line between serious and aggravated forms of public disorder which are calculated to endanger the secu-rity of the State and the relatively minor breaches of the peace of purely local significance. The petitioner was not detained on the ground that he had been acting in a manner prejudicial to the security of the State, but that his acts were calculated to jeopardise public order in the locality. In our view public order is certainly vulnerable to individual acts of lawlessness some of which may be of a less serious character, others of an aggravated nature. The grounds upon which the order of detention has been bused clearly indicate that the acts were in each case a threat to public order which required preventive action to be taken against the petitioner.

9. The next point raised related to the criticism that four of the grounds on which the order of detention has been made were irrelevant to the question of public order. it is said that they have no real relation to the maintenance of public order which was sought to be secured by making the order of detention. In our view this contention is wholly unsustainable. The first of these four grounds related to the use of abusive and filthy language and creation of 'hullah' in the vicinity of a tea-stall on a given date at a given hour. The occasion for the hullah was that the detenue had been asked to pay for the tea which he had taken with 7 or 8 Punjabi associates of his. The second ground related to an attack on a given date at a stated hour by the detenue with 10 or 12 associates of his upon one Osmani and his men who had prevented the detenue's associates from wrongfully removing certain wooden, sleepers from Railway lines. The third ground related to an attempt to extort a sum of money towards the price of liquor from a named person on a given date at a given hour. The fourth ground related to publicly making indecent remarks towards ladies proceeding to a cinema hall on a given date at a given hour. It is said that none of these grounds could be said to have any connection with the maintenance of public order which was intended to be secured by the Order of Preventive Detention. We are wholly unable to agree with this contention. In our opinion, each one of these grounds has direct relation to public order and that being so, no exception can be taken to any of these grounds as being irrelevant. Reliance was placed upon a decision of the Patna High Court in the case of Lalu Gope v. The King, AIR 1949 Pat 299 for the purpose of inducing us to hold that these grounds could not properly have been made the basis of an order of Preventive Detention. That was a case under the Bihar Maintenance of public Order Act (V of 1947). Amongst other things it was held that the act of committing theft in a running goods train was not an act prejudicial to the maintenance of public order nor was it an act prejudicial to public safety. The words 'public safety' as used in that Act could not be read as meaning the safety of goods of individual members of the public, The words meant safety of the community. This was after all a decision under a different statute and we cannot possibly agree with the contention that the observation there made could be a safe guide in determining whether an order under the Preventive Detention Act is valid or not. Even if an act of committing theft in a train cannot by itself be made the ground of detention, repeated acts of lawlessness threatening public order could well be a basis, and that is the position here. According to the detaining authority there have been repeated acts of lawlessness on the part of the petitioner causing public disorder. That being so, we do not think it can reasonably be said that the grounds in this case are unrelated to maintenance of public order.

10. The last point urged is that orders communicating the State Government's approval and confirmation of the order of detention though purporting to have been made respectively by a Deputy Secretary and a Joint Secretary, had not been properly made. The contention in that in order of Preventive Detention is required to be placed before the Chief Minister before it could be certified to the detenue as having been properly made. The suggestion is that the order in question was not so placed. Reliance was place upon a type-written copy of what was described as Rules of business' produced before us and said to have been framed under Article 166(3) of the Constitution. Mr. Sen was not in a position to vouch for the correctness of the copy but he made a request that the rules may be sent for in order that the petitioner's objection may be properly disposed of. We do not think it necessary for us to accede to the request. Assuming for a moment that there is a departmental rule which re-quires a matter relating to Preventive Detention to be placed before a particular minister, the circumstance of its naming been so placed or not, would not appear from the Rules themselves, nor would it appear on the face of an order of detention which must be expressed to have been made in the name of the Governor. All executive actions are required to be so expressed and we may presume that an official act has been regularly performed. Indeed there is no material before us which would induce us to think that the order was not approved or confirmed in accordance with the procedure, if any, established by the rules referred to by Mr. Sen. Article 135 is in these terms :-

'(1) All executive action of the 'Government of a State shall be expressed to be taken in the name of the Governor.

(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.

(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.'

11. Presumably Clause 3 relates to rules made for the more convenient transaction of the business of Government and for allocation of such business among Ministers. Those are what may perhaps be described as domestic rules. But we are concerned with the other rules made under Clause 2; and in exercise of the power conferred by that clause, the Governor was pleased to make the following rules on the 25th of August, 1951.

'(1) All orders or instruments made or executed by or on behalf of the Government of West Bengal shall be expressed to be made or executed by or by order of the Governor of West Bengal.

(2) Save in cases where an officer has been specially empowered to sign an order or instrument of the Government of West Bengal, every such order or instrument shall be signed by either a Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary Or an Assistant Secretary to the Government of West Bengal and such signature shall be deemed to be the proper authentication of such orders or instruments.

Explanation -- In this rule the reference to a Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary and an Assistant Secretary shall include respectively references to aha Additional Secretary, an Additional Joint Secretary, an Additional Deputy Secretary, an Additional Under Secretary and an Additional Assistant Secretary.'

12. Under the rules just read, the Order of approval as also the order of confirmation made by the State Government were duly authenticated. That being so, there is in our view no substance in this contention.

13. The question of sufficiency of materials to induce the subjective satisfaction of the detaining authority does not fall to be considered by us since that is not justiciable. This Court cannot even examine whether the grounds were true or false. All that we are concerned with, is to see whether the grounds which were communicated to the detenue were such as enabled him to exercise his constitutional right to make an effective representation against the order of detention. Nome of the grounds suffers from any kind of vagueness or in-definiteness. We are by nu means satisfied that the petitioner has been able to establish that the detaining authority did not act in a bona fide mariner.

14. The result is that this Rule is dischargrd.

D.N. Das Gupta, J.

15. I agree.

(Order dated 5th April, 1960) passed by J. P. Mitter and B. K. Bhattacharya, JJ.)

16. Mr. Anil Kumar Sen intimates to us that his client P. Srinibash Naidu who is now a detenu to Central Jail at Midnapore is being prevented by the Superintendent of the jail from sending a petition to the Supreme Court on the ground that the same is without a certificate of this Court. We do mot think that it is the business of the Superintendent to decide the question whether or not the petitioner should be allowed to forward a mere petition. Mr. Roy, learned Deputy Legal Remembrancer, states that he will enquire into the matter and see that the Superintendent of the jail concern ed places no obstacle in, the way of the petitioner forwarding his application to the Supreme Court.


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