Dharamdas Shyamlal vs The District Magistrate, Ahmedabad and Another

Shelat, J.

(1) This is a petition under Art. 226 of the Constitution of India and S. 491 of the Cr. P. C., for the issue of a writ in the nature of herbs corpus for setting at liberty the petitioner who has been detained in the Sabarmari Jail at Ahmedabad since 4-3-1960 under an order dated 4-3-1960 passed by the District Magistrate Ahmedabad, under S. 3 of the Preventive Detention Act, under S. 3 of the Preventive Detention Act, being order was issue were furnished to the detain on the same day. On the 12th of March 1960, the then Government of Bombay approved the said order as required under Clause (3) of S. 3 of the said Act. The said order together with a representation made by the detain were sent to the Advisory Board and after a personal hearing was given to the detrain, the Board gave its approval to the order. On the 22nd of April 1960, the State Government passed an order under sub-section (1) of S. 11 of the Act confirming the order and ordering to continue the detention of the petitioner.

(2) The order of detention has been challenged by the petitioner principally on two grounds, viz., that the grounds upon which the order is based and which were furnished to the detain are vague and indefinite, and, therefrom the detain was not in a position to make an effective representation, and secondly, that several of the grounds are false, and, therefore, the order passed by the District Magistrate was male fide. It was submitted on these grounds that the order of detention should be declared illegal and the detain should be set at liberty.

(3) Section 3 of the Preventive Detention Act inter alia states that the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such a person be detained. Section 3 thus gives wide powers to the executive to detain a person without any trial on the appropriate authority being satisfied that such dentition is necessary. Thus the power to pass the order of detention depends on the subjective satisfaction of the appropriate authority. The satisfaction required under S. 3 being a subjective one, it is obvious that it is not subject to the objective test of a Judicial Tribunal.

(4) Under S. 491 of the Cr. P. C., the High Court however, has the power to issue directions in the nature of a herbs corpus whenever it thinks fir directing inter alia a person detained either in public or private custody within the limits of its appellate criminal jurisdiction to be set at liberty. Though the power of the High Court is expressed in this section in wide terms, sub-clause (b) of Clause (1) of the section restricts these powers by providing that such a person can be ordered to be set at liberty if he is illegally or improperly detained. The power given to the High Court under S. 491 is to issue a direction to have the person detained brought before it for the purpose of investigating whether he is being detained under a proper authority or not. Upon such a detained person being brought before the High Court, the authority who had detained him has to show that he has been detained under a valid authority or power. Once that is shown, the onus shifts onto the detain to show that his detention is either illegal or improper.

(5) Since the power to pass the order under S. 3 of the Prevention Detention Act depends on the satisfaction of the appropriate authority, sufficiency of the grounds on which such satisfaction is or purports to be found cannot obviously be challenged in a Court of law. However, those grounds must have a probative value and must not be extraneous to the scope and purpose of the Act under which the detention has been ordered. The order nevertheless can be challenged on the ground of its being mala fide, which, strictly speaking, is the same things as showing that though the order on the fact of it appears to be within the scope and purpose of the Act, in reality it is not and the Act has been used merely as a cloak for detaining wrongfully the individual concerned.

(6) An application under S. 491 of the Cr. P. C., being one for the court to test whether a person has been illegally or improperly detained the High Court in such a proceeding is not entitled to inquire into the truth of facts set out as grounds of detention communicated to the detain. Consequently, the propriety or the reasonableness of the satisfaction of the authority on which an order under S. 3 of the Act is based cannot be challenged. But that does not mean that the High Court can in no circumstances examine those grounds. The High Court is in fact entitled, for the purpose of testing whether the detain is illegally or improperly detained, to examine the grounds to see if they pertain to the object that the Legislature had in mind while enacting the statute under which it has conferred the power on the executive. While examining the grounds, the High Court must be satisfied that those grounds have rational connection with such subject. In the case before us, the relevant object under S. 3 of the Prevention Detention Act is the maintenance of public order. In Machindar Shivaji v. The King. AIR 1950 FC 129, it was observed that the responsibility for making a detention order rests on the provincial executive, as they alone are entrusted with the duty of maintaining public peace, and it would be a serious derogation from that responsibility if the Court were to substitute it judgment for the satisfaction of the executive authority and to that end, undertake an investigation of the sufficiency of the materials on which such satisfaction i grounded. It is true that in that case, the Federal Court was dealing with S. 2 of the Public Safety Act and not with S. 3 of the Preventive Detention Act. But while making those observations, their Lordships of the Federal Court were concerned with the word "satisfied" occurring in S. 2 of the Public Safety Act and which is in substance the same as occurring in S. 3 of the Preventive Detention Act. Similarly, in B. N. Mukherjee v. The State ILR (1951) Nag 1: (AIR 1951 Nag 1), the Full Bench of the High Court of Nagger held that a reasonable apprehension on the part of the authority concerned that the detain, if not detained, would act in w way prejudicial to the maintenance of public order, that is the bias of all detention orders, and if there is no reasonable foundation for that apprehension, or that apprehension does not in fact exist, then the detention under S. 3 of the Act cannot be justified. Thus it is the apprehension in the mind of the authority that the detain will act in a manner prejudicial to the maintenance of public order which is the basis of such a detention order. Consequently, once the authority is satisfied on the materials available to it, it is not for the High Court to examine the order as an appellate authority or to institute an investigation into the truth or otherwise of the facts on which such satisfaction is based. As Lord Finally in R. v. Haliday, 1917 AC 260 at p. 269 said:

"a Court is the least appropriate tribunal to investigate the question whether circumstances of suspicion deist warranting the restraint in a person."

Therefore, where a person who has been detained under the Preventive Detention Act applies to the High Court under S. 491 of the Cr. P. C., all that can be seen in the proceedings is whether the grounds communicated are connected with the order of preventive detention and whether the order made by the District Magistrate is made bona fide or mala fide. The question of correctness of the grounds of detention cannot be inquired into by the High Court. In Mohd. That Rizvi v. The State AIR 1952 All 456, the question arose whether the ground of detention of the applicant, viz., that the disclosure is Pakistan by him of the secrets which the applicant had in his possession was likely to affect the security of the State, was the one which the High Court could esquire. It was held that the question whether the secrets in the possession of the applicant which could be disclosed in Pakistan were such that they would not affect the security of the State cannot be inquired into in the proceedings. Mr. Justice Bhargava in that case stated that since Art. 21 of the Constitution permits deprivation of liberty by procedure established by law, it was obvious that the discretion of deciding what the procedure should be and to what extent it needs to be prescribed has been given entirely to the Legislature. Obviously, it cannot be necessary that every detailed step of the procedure need be mentioned, While enpowering the authorities to make an order of detection on being satisfied that one of the conditions laid down in S. 3 of the Act exists, the Legislature has not laid down by what process that satisfaction is to be arrived at by the relevant authority. It is entirely at the discretion of the authority in making the order to satisfy itself in that behalf by whatever means may be available to it. The question whether the activities of the detain which are made the grounds for detention would in fact affect the public order or not is not again a question which can be gone into in proceeding under S. 491 of the Code of Criminal Procedure. All that an be gone into is to see whether the grounds communicated to the detain have a connection will the order made, and whether the order is bona fide or mala fide. The question of the correctness of the grounds also cannot be inquired into by the High Court in such a proceeding. The Preventive Detection Act has itself set up a forum under S. 9 where the truth of the grounds can be gone into. As we have pointed out, the Advisory Board has already examined the ground as also the representation made by the detain and has come to the conclusion that the grounds are correct, and on their decision the State Government has confirmed the order under S. 11(1) of the Act. A Herbs Corpus Bench of the High Court has no doubt the right to consider the question of jurisdiction of the authority or the question whether that authority applied its mind properly to the question of detention, but it is not open to the High Court to go into the question whether the authority was on merits justified to pass the order. That is the sole responsibility imposed by the Legislature on the authority, and unless that authority acts, for instance, mala fide or in abuse of fraud of the Act or the object and scope of the Act, the High Court is not entitled to interfere with the order of detention.

(7) Article 22(5) of the Constitution confers two rights upon the detain whose liberty has been deprived of. The first part of clause (5) of that Article give a right to the detained person to be furnished with the grounds on which the order has been made. The second right given to such a person is of being afforded the earliest opportunity of making a representation against the order. It is obvious that the grounds for making the order as mentioned above are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds must, therefore, be in existence when the order is made. But the question whether such grounds can give rise to the satisfaction required for making the order is, as observed above beyond the scope of the inquiry under S. 491 of the Cr. P. C. On the other hand, the question whether the vagueness or indefiniteness of the statement furnished to the detained person in such as to deprive or preclude him of the earliest opportunity to make a representation to the authority is a matter within the jurisdiction of the High Court and subject to the decision of the High Court. As observed in The State of Bombay Vs. Atma Ram Sridhar Vaidya, , the conferment of the right to make a representation necessarily carried with it the obligation on the part of the detaining authority to furnish the grounds, i.e., materials on which the detention order was made. Thus while there is a connection between the obligation on the part of the detaining authority to furnish grounds and the right given to the detained person to have an earliest opportunity to make the representation, the test to be applied in respect of the contends of the grounds for the two purposes is quire different. For the first, the test is whether it is sufficient to satisfy the authority, and for the second the test is whether it is sufficient to enable the detained person to make the representation at the earlier opportunity. In order therefore to challenge the order of detention on the ground that the grounds furnished to the detained person are vague or indefinite, it would be necessary for the detain to show that the vagueness or the indefiniteness of the grounds furnished to him either embarrassed him or affected his right of making an effective representation to the authority concerned.

(8) It was suggested by Mr. Barot in the course of his arguments, that the order of detention passed against the petitioner was also bad on the ground that it was made mala fide. As we have said, the High Court cannot enter into the question whether the statements made in the ground were true or not. The High Court however, has the jurisdiction to go into the question whether the order was made mala fide. Where the detain alleges that the order is made mala fide, the burden of establishing the mala fides is upon him. The facts proved by the petitioner must amount to proof of mala fides. If the High Court, however, is satisfied that the order in question is passed in conformity with the provisions of the Act and is not outside the scope of the object and purpose of the Act, no question of mala fides would arise. In other words, it must mean that it is not in abuse fraud of the powers conferred on the authority concerned by the Legislature Dayanand Modi Vs. The State of Bihar and Others,

(9) As we have said, Mr. Barot has challenged the order in question particularly upon two grounds: (1) that the grounds furnished to the petitioner for the order of detention were vague of indefinite, and (2) that the order passed by the District Magistrate, Ahmedabad, was mala fide in the sense that the grounds furnished to him were false and the object for which the order of detention was passed was extraneous to the scope and purpose of S. 3 of the Act. The two contentions raised by S. 3 of the Act. The two contentions raised by Mr. Barot have to be considered in the light of the principles forestalled. Mr. Barot contended that the ground contained in para 2 (A) of the grounds, was argue and indefinite, and the petitioner was, therefore, unable to make an effective representation in connection therewith. Reading the grounds furnished to the detain it is easy to see that ground 2(A) in respect of which Mr. Barot complains shows the general nature of the grounds which are subsequently particularized in the grounds following. It was next contended that ground 2(B)-1 was also vague and indefinite. That ground is that on or about the 1st of November, 1958, the petitioner went to the shop of be businessman of Keri-pitha, Kalupur`, and on the threats of murder, he demanded Rs. 5000/- from him in order to assist and defend his associates involved in a murder case. It was argued that this ground was not precise inasmuch as, the authority has not set out therein or the names of the businessman referred to therein or the names of the associates, Likewise the authority has failed to give the number of the murder case mentioned therein. It was contended that in the absence of these particulars, it would not be possible for the petitioner to make a proper representation to the authority concerned or to deal with these grounds in a proper and effective fashion. The test whether a ground given is vague or indefinite is whether, given a ground. the petitioner would be able to make am effective representation or not. It is not possible to agree with Mr. Barot that ground 2(B)-1 is either so vague or so indefinite that it could not be possible for the petitioner to make a proper representation. That ground gives the date, the locality, the kind of intimidation alleged to have been offered by the destiny, the amount which was demanded by him from the businessman referred to therein, as also the purpose or the object for which that amount was demanded. It is not possible to say that merely because the name of that businessman from whom the amount of Rs. 5000/- was demanded has not been set out that the ground is so vague or indefinite as to make the order bad, in ground 2(B)-2 it is alleged that on the 6th November 1958, the petitioner along with his associates armed with certain weapons assaulted one Pania Premji and caused him grievous injuries, that in connection with that offence, the petitioner and his associate, one Babu Kesac, were charge sheeted, that Babu Keshav was convicted and sentenced and the petitioner was acquitted having been given the benefit of a reasonable doubt. Mr. Barot contended that this could not be a proper ground upon which an order of detention can be passed. The petitioner having been acquitted by a competent Court of law, it was against all principles of criminal jurisprudence that the safe ground by the detaining authority for the purpose of passing the order of detention clearly indicated that the order was mala fide. The petitioner was acquitted as stated in the ground itself not because there was no basis for the charge against him, but because the learned Judge who tried him found that the case against him was not beyond reasonable doubt, and, therefore, the benefit of that reasonable doubt had to be conferred fir of that reasonable doubt and to be conferred upon him. It, therefore, not possible to say that there was no data before the detaining authority upon which the satisfaction required under S. 3 of the Preventive Detention Act cannot be founded.

(10) So far as grounds 2(B)-3 to 2(B)-10 are concerned, Mr. Barot challenged those grounds on the footing that they were false and, therefrom, cannot be treated as proper grounds on which the required satisfaction can be based. In particular, Mr. Barot relied upon the answer of the petitioner to ground No. 2(B)-3 where the appellation is that the petitioner wanted to get a water connection from a Muslim Musafirkhana for the shop of his brother. The District Local Board clerk one Gulam Hussain, who has served a notice upon the petitioner and who had served a notice upon the petitioner and who had been assaulted by certain persons at the instance of the petitioner, had to leave the city of Ahmedabad for feat that he might be assaulted again by the petitioner or at his instance. In fact, a complaint had been lodged by that Gulam Hussain. The petitioner has stated by that Gulam Hussain. The petitioner has stated in his representation that that very same Gulam Hussain has subsequently filed an affidavit to the effect that complaint lodged by him was false and had been lodged by him as a result of pressure brought upon him as a result of pressure brought upon him by the police authorities. Relying upon that affidavit, Ex. 5. to the petition, the learned counsel for the petitioner has contended that these facts indicated that the police authorities of the city of Ahmedabad were so much against the petitioner that they had gone to the extent of making Gulam Hussain file a false complaint against him. The ground pertaining to that complaint and the alleged incident of the assault upon the said Gulam Hussain are thus clearly false and the order passed upon such a grounds is obviously mala fide, and, therefore, should e declared null and void. In the return filed by the present District Magistrate, it stated that the allegations of the petitioner that the complaint lodged by Gulam Husssain are not true. In substance, therefore, what Mr. Barot invites us to do is to investigate as to whether these allegations and counter allegations made by the petitioner in his representation and by the petitioner in his representation and by the District Magistrate in his return are true or not. As we have stated, in a proceeding under S. 491 of the Cr. P. C., this Court cannot and would not enter into an inquiry as to the truth or otherwise of the allegations made by the petitioner.

(11) So far as grounds 2(B)-11 and 2(B)-12 are concerned, they relate to certain incidents which are said to have taken place on the 12th of December, 1959. The conclusion of Mr. Baron was that these two grounds are not was that these two grounds are not only vague but the contents of these grounds are false. It is not possible to agree with the contention of Mr. Barot the two grounds do set out the necessary particulars which presumably were available to the District Magistrate when he passed the order in question. It cannot, however be said that they are so vague and indefinite as to preclude the petitioner from making an effective answer or representation to the relevant authority. Mr. Barot, however, argued that sometime in November 1959, the petitioner had been shot at by some individual and as a result of the injuries suffered by him he had been admitted in the Civil Hospital at Ahmedabad as an indoor patient. Mr. Barot has also pointed out to us a certificate, Ex. G, dated 21st April 1960 issued by the Medical Officer in Village Panchayat, Sabarmati, certifying therein that the petitioner was from the 1st to the 7th of December, 1959 suffering from "pain in admen, low fever and cough". It was argued by Mr. Barot that the incidents alleged to have occurred between the 5th to the 7th of December 1959 obviously must be false as the petitioner was ill and was suffering from the effects of the bullet injuries suffered by him and was consequently not in a position to move about from one place to the other. He argued that in these circumstances, it was physically not possible for the petitioner to have done the acts alleged against him in the grounds relating to the incidents which happened from the 5th to the 7th of December 1959.

(12) These allegations of the petitioner have been challenged by the District Magistrate in his return. It is, no doubt, true that the return has passed the order of detention but by his successor. Obviously, therefore, the present District Magistrate would not have any personal knowledge with regard to the incident''s referred to in the grounds. It is clear, however, from the return that the District Magistrate does not claim to have personal knowledge with regard to these incidents or the allegations made in respect thereof by the petitioner in his repression tertian. He has, however stated in the return that from the records before him, he was in a position to state that the allegations made by the petitioner in his representation are not true. It is clear from the petitioner''s own representation that he remained in the hospital as an indoor patient form at he 14th November 1959 till the 27th November 1959 when he as discharged. The fact that he was discharged on the 27th November 1959 prima facie shows that the Medical authorities of the Civil Hospital considered it safe for him to be discharged. The petitioner has not alleged nor has he produced any medical certificate to show that he continue to take any further medical treatment as an out-door patient of the hospital after the 27th of November. Presumably, therefore, on and after the 27th of November 1959, the petitioner was cured of the bullet injuries which he had suffered. There is nothing, therefore, to show that on and after the 27th of November, he was not in a position to move about, or engage himself in the activities alleged against him by the detaining authority. The certificate produced by him is one the face of it unsatisfactory. Even assuming that that certificate is to be accepted, it merely shows that the petitioner was suffering from pain in abdomen, low fever and cough from the 1st of December to the 7th of December 1959. It is, however, not possible to accept that a man suffering from mere pain in abdomen, low fever and cough would not in a position to stir out of his house or to move about from place to another, or to engage himself in the activities alleged against him by the detaining activities alleged against him by the detaining authority. In our views, the two grounds upon which the learned counsel for the petitioner has challenged the order of detention cannot be sustained. In this view, the petition fails and is dismissed. No order as to costs.

(13) Petition dismissed.