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Safatulla Khan Vs. the Chief Secretary to the Government of West Bengal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtKolkata High Court
Decided On
Case NumberMisc. Case No. 337 of 1950
Judge
Reported inAIR1951Cal194,55CWN27
ActsPreventive Detention Act, 1950 - Section 7; ;Constitution of India - Article 22(5) and 22(6)
AppellantSafatulla Khan
RespondentThe Chief Secretary to the Government of West Bengal and anr.
Appellant AdvocateS.S. Mukherjee and ;Phanindra Kumar Sanyal, ;Pritibhusan Burman and ;Dipak Dutt Choudhury, Advs.
Respondent AdvocateS.M. Boss, ;M.N. Ghose and ;N.K. Sen, Advs.
Cases ReferredDr. N. B. Khare v. The State of Delhi
Excerpt:
- .....which justified the order.11. it appears to me that a court is entitled to consider whether the grounds served upon a detenu in compliance with clause (5) of article 22 of the constitution do afford sufficient particulars to enable a detenu to make an effective representation. the point was very recently considered by the supreme court in the case of ishwar das v. the state (unreported). in that case the supreme court ordered the release of the detenu on the ground that the grounds of detention communicated to the petitioner were too vague and indefinite to enable him to make an effective representation to government. unfortunately, the judgment does not set out the grounds served on the detenu in that case. but it appears to me that the case is a clear authority for the proposition.....
Judgment:

Harries, C.J.

1. This is a petition praying that the petitioner Janab Shafatullah Khan who is at present detained under Section 3, Preventive Detention Act of 1950, be released from such detention. In the petition allegations are made that the petitioner has been detained be cause of his work amongst the workers in the Calcutta district. He states that he as the General Secretary of the Bengal National Chamber of Labour had been organising the workers in West Bengal and particularly in the areas of Calcutta, 24 Parganas, Hooghly, and Howarh to secure better terms of employment and conditions of service through adjudication by Industrial Tribunals. He suggests that owing to these activities he has aroused the enmity of Government. Hence the order for detention.

2. After the order for detention under Section 3, Preventive Detention Act of 1950, was made the Government served on the detenu the grounds for the order for detention as required by Section 7 of that Act. It will be convenient to set out these grounds in extenso :

'(1) That you as an active worker of the Muslim league have been carrying on activities to arouse communal passion amongst Muslim labourers in the industrial areas of Howrah, Hooghly and 24 Parganas particularly of the last mentioned district, to create disorder on a large scale and to bring about dislocation in the industries and thereby to paralyse the administration.

(2) You have been attempting to disturb peace and tranquillity in the said industrial areas by preaching both communalism and provincialism and setting non-Bengalee labourers against the Bengalees and also trying to lure Muslim labourers to Pakistan for employment there.

(3) You have been working as an agent of Pakistan to the detriment of India and trying to cloak your activities by giving a colour of bringing Muslims within the congress fold.

Thus you have been acting in a manner prejudicial to the maintenance of peace and the security of the State.'

3. It seems to have been realised by Government that it might be suggested that these grounds are vague and accordingly further grounds were given to the detenu on 13-7-1950 and these further grounds are as follows :

'(1) You are an active labour organiser on communal lines, though to disarm suspicion, you decided to allow some Hindus to come in your labour Union.

(2) On 20-8-1949, you visited Autpur Mosque Jagatdal with Latafat Hosen and held a meeting with Jute Mill Sardars to bring the Muslim masses under a separate political organisation.

(3) Other grounds, which cannot be disclosed in the public interest.

Any further representation that you wish to make to the State Government should be addressed to undersigned and forwarded immediately through the Superintendent of the Jail in which you are detained.'

4. The question arises whether or not the grounds supplied to the detenu justifying his detention are sufficient and are a compliance with Section 7, Preventive Detention Act, 1950, and Article 22(5) of the Constitution. Section 7, Preventive Detention Act reads as follows :

'(1) When a person is detained in pursuance of a detention order, the authority making the order 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, in a case where such order has been made by the Central Government, to that Government, and in a case where it has been made by a State Government or an officer subordinate thereto to the State Government.

(2) Nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.'

5. Clause 5 of Article 22 of the Constitution is in the following terms :

'When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.'

6. Clause (6) of Article 22 is also material and is in these terms :

'Nothing in Clause (5) shall require the authority making any such order as is referred to in that clause, to disclose facts which such authority considers to be against the public interest to disclose.'

7. On behalf of the detenu, it is suggested that both the grounds and the additional grounds supplied to the detenu by Government are too vague and uncertain and do not afford him an opportunity of making an effective representation against his detention. Reliance has been placed on cases decided by other High Courts in which it has been held that the service of vague and uncertain grounds are not sufficient and further detention cannot be justified where only such grounds are served.

8. In the case of Inder Prokash v. Emperor A.I.R. (36) 1949 ALL, 37:(50 Cr. L. J. 34), Raghubar Dayal J. had to consider what the word 'grounds' meant in the United Provinces Maintenance of Public Order (Temporary) Act, 1947. That Act required that the detaining authority should serve upon the detenu the grounds for the order of detention. At p. 41 the learned Judge observed :

'It is not really necessary, therefore, to discuss in detail the scope of the word 'grounds' and to say what the ground mean and should include. Even if that be considered, it would appear that the word 'grounds' does not merely mean the conclusions or the abstract reasons for the action taken. Besides, the conclusions arrived at or reasons for the action they do comprehend the basis for those conclusions or reasons and thus they include the facts on which those conclusions or reasons are based.'

9. A somewhat similar view was taken by the Bombay High Court in the case of In re Anant Mahadev A. I. R. (36) 1949 Bom. 95 ; (60 Cr. L. J. 320). There the Court had to consider whether the grounds submitted by the authorities for justifying an order of detention made under the Bombay Public Security Measures Act, 1947, were sufficient. Desai J., held that the whole object of furnishing grounds and particulars to the detenu under Section 3 of the Bombay Act would be frustrated unless they were definite and precise. They were intended to serve a definite purpose under Section 3, that is of enabling the detenu to make a representation against the order and that purpose cannot be served unless the detenu knew what exactly had moved the Government to deprive him of his liberty. Where, therefore, a notice served on the detenu under Section 3 of the Bombay Act gave the ground for his detention to be that

'he has been inciting workers to commit acts of violence and thereby acting in a manner prejudicial to public safety and tranquillity of Greater Bombay.'

Without particularising the class of workers and mentioning the time during which the detenu was supposed to have incited them, the notice was too vague and indefinite, and afforded the detenu no effective opportunity of making a representation. That being so, the release of the detenu was ordered.

10. The learned Advocate-General who has appeared on behalf of the detaining authority has contended that Clause (5) of Article 22 of the Constitution does not require the detaining authority to state the precise facts upon which it came to the conclusion that an order of detention should be made. He has pointed out that under Clause (5) the detaining authority must communicate to the detained person the grounds on which the order has been made. The clause does not require the detaining authority to state the facts justifying the order. The learned Advocate-General points out that in the next clause, namely, Clause (6) it is expressly stated that the authority making a detention order need not disclose the facts which such authority considered to be against the public interest to disclose. A similar provision occurs in Section 7, Preventive Detention Act. There is, therefore, a distinction drawn between 'facts' and 'grounds' and therefore according to the learned Advocate-General, grounds do not include particulars because if the word 'grounds' meant detailed particulars, then the word 'grounds' practically meant the same as the facts which justified the order.

11. It appears to me that a Court is entitled to consider whether the grounds served upon a detenu in compliance with Clause (5) of Article 22 of the Constitution do afford sufficient particulars to enable a detenu to make an effective representation. The point was very recently considered by the Supreme Court in the case of Ishwar Das v. The State (unreported). In that case the Supreme Court ordered the release of the detenu on the ground that the grounds of detention communicated to the petitioner were too vague and indefinite to enable him to make an effective representation to Government. Unfortunately, the judgment does not set out the grounds served on the detenu in that case. But it appears to me that the case is a clear authority for the proposition that a Court can order the release of a detained person if the grounds of detention served on that person are not sufficient to enable him to make an effective representation. The Supreme Court added that in similar circumstances several of the High Courts had held that detenus should be released and no argument had been addressed to the Court that these cases were wrongly decided. It is true that the Supreme Court did not expressly approve of the earlier decisions of the various High Courts, but I must assume that if the Supreme Court was of opinion that these oases were wrongly decided it would have said so in the judgment. However, I think it is abundantly clear that this case is an authority for the contention made on behalf of the petitioners that indefinite and vague grounds are not sufficient to comply with Clause (5) of Article 22 of the Constitution and with Section 7, Preventive Detention Act.

12. The Court must, therefore, consider whether the grounds served upon this particular detenu are sufficient, exact or precise to enable to the detenu to make an effective representation.

13. It appears to me that the original grounds served on the detenu are far too vague to enable the detenu to meet them in any way. They are merely allegations made against the detenu and the bases of those allegations are not disclosed. It is said that the detenu was an active worker of the Muslim League and had been carrying on communal activities amongst Muslim labourers in West Bengal and in certain areas in particular, with a view to creating disorder and bringing about dislocation in the industries and thus paralysing the administration. This is an extremely sweeping and wide allegation which it would be pratically impossible to rebut. The only answer could be a total denial.

14. The next allegation is that the detenu has been attempting to disturb the peace and tranquillity in industrial areas by preaching communalism and provincialism and setting non-Bengalee labourers against Bengalees and also trying to lure Muslim labourers to Pakistan for employment there. Again the allegations are very sweeping. But nothing is said as to what the detenu preached which could be described as communalism or provincialism or where precisely he preached these doctrines or when or to whom. The allegation is couched in widest and vaguest form. There is the further allegation that he set non-Bengalee labourers against Bengalees. But nothing is said as to where and when and how he did this. It is merely a sweeping allegation that he did it in what must be regarded as one of the largest industrial areas in India. What could the detenu do but deny this? If in the grounds it was stated that at a particular factory or at a particular place on a particular day he had incited workmen to do this or that, then the detenu would have been placed in a position where he could have made an effective reply if such a reply were possible. He could for example have shown that he could not possibly have said or did what is suggested for many reasons. For example he might have been able to show that he was out of the State on that day or that time, or that he was indisposed and confined to bed at that period. However, to the allegations actually made, I cannot see what reply the detenu could make except to deny them in toto.

15. The last allegation was that he was working as Agent of Pakistan to the detriment of India and was trying to cloak his activities by ostensibly trying to persuade Muslims to become members of the Congress. Nothing is said as to how and where he was working as an agent of Pakistan. There is the mere bald Statement that he was working as an agent. Further there is the other equally bald statement that he was camouflaging, if I may use the word, his activities by ostensibly trying to persuade Muslims to become congressmen. Nothing is said as to where he carried on these activities and whom he tried to persuade to become congressmen and the whole allegation is left completely vague.

16. In my judgment, the grounds justifying the detention first given to the detenu, are too vague and indefinite and therefore did not comply with the provisions of Section 7, Preventive Detention Act, and Clause (5) of Article 22 of the Constitution.

17. On 13-7-1950, the Government served on the detenu additional grounds, as I have stated earlier. But the first additional ground is vaguer than the language of the earlier grounds served upon the detenu. There is a mere allegation that the detenu was an active labour organiser on communal lines though some Hindus were allowed in his organisation apparently to disarm suspicion. What organisation he was connected with which could be said to be carried on communal lines is not stated. Neither is it said who were the Hindus allowed to come into his labour union or in what number. This statement could be made, I imagine, of any labour organiser in India who controlled the activities of any trade union and the allegation, once made, would be impossible to refute except by a total denial. How could a man meet a charge that Hindus were allowed to become members of a predominantly Muslim Trade Union merely to disarm suspicion Surely something more would have to be said before it could be said that allegation had some substance in it. Further, more details would have to be given before the allegation could be met and disproved. It seems to me that the first additional ground is also far too vague and uncertain.

18. The next ground given is detailed. In that ground it is said that on a particular day the detenu at a particular place addressed a meeting of jute mill sardars. But the object of that meeting is stated and that object is perfectly innocuous. The object of the meeting was to bring, if possible, the Muslim masses under a separate political organisation. There is nothing subversive in that and surely it cannot be said that a labour organiser is guilty of some subversive act if he endeavours to form a political organisation even if that is composed of one community. I have never understood that the Hindu Mahashabha is an illegal body. But apparently this ground would suggest that attempting to bring Muslims into a political organisation confined to Muslims would amount to some form of illegality and would be a ground for detention. It seems to me on this ground, though it complies with the necessity for preciseness and particularity, is no ground for detention at all and therefore, cannot be regarded as in any way justifying the continued detention of this man.

19. The additional grounds conclude with these words: 'Other grounds which cannot be disclosed in the public interest.'

20. Clause (6) of Article 22 of the Constitution provides that the authorities are not bound to disclose facts which they consider to be against the public to disclose. The authorities are bound to disclose the grounds and they cannot suggest that it is against public interest not to disclose the grounds. It appears to me that there is a clear difference between grounds and facts. The grounds are the bases of the allegations. The facts really are the evidence upon which the bases of the allegations are to be established e. g. in pleading a party must give particulars of allegations, but he is not required to give his evidence. If he makes an allegation he must state the basis of that allegation, but he need not state how he is going to prove such basis. In any event, it seems to me that the authority cannot refuse to disclose the grounds in the public interest. All that it can refuse to disclose are facts which would be harmful to public interest if they were disclosed.

21. The Advocate General relied on certain observations in the judgment of Kania C. J. in the case of Dr. N. B. Khare v. The State of Delhi, : [1950]1SCR519 , a decision of the Supreme Court not yet reported. In that case, grounds had been served on Dr. Khare for an externment order by which he was externed from Delhi. The grounds were somewhat vague and no particular acts or utterances were stated; nevertheless the Supreme Court held them to be sufficient. It must be remembered, however, that Dr. Khare is the head of a great political organisation with, it is said, communal ideals and objects. The grounds served on Dr. Khare did make it clear that his activities as head of this organisation were dangerous to good communal relations and indeed it was stated that his very presense in Delhi constituted such a danger. It is true that it is not stated in these grounds what position Dr. Khare held but that was of course known to all and was assumed in this document. The case before us is very different as the petitioner does not occupy any such position and nothing can be assumed.

22. In my judgment, the grounds and the additional grounds supplied to the detenu in this case were not sufficient to enable the latter to make an effective representation and that being so, following the decision of the Supreme Court, I must hold that the detention of the detenu has not been justified.

23. In the result, therefore, I would allow this petition and make the rule absolute. The detained person must be set at liberty forthwith.

J.P. Mitter, J.

24. I agree.


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