TMI Blog1973 (10) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... ntil further orders. On 30-7-1973, the petitioners surrendered themselves before the Additional District Magistrate. On the same day, each of the petitioners was served with the order of detention and also the grounds of detention together with a letter informing him of his right to make a representation against the order of detention to the State Government. The grounds of detention served upon the petitioner Prabhu Dayal Deorah read as follows : That you, being one of the partners and in the active management of M/s. Deora Flour and Rice Mills, Zoo Road, Gauhati and M/s. Srinivas Basudeo, Fancy Bazar, Gauhati are responsible for unauthorised milling of paddy in M/s. Deora Flour and Rice Mills at Zoo Road, Gauhati and smuggling of the resultant rice to Meghalaya for earning undue profit. You are also responsible for unauthorised hoarding of rice and sugar in the, premises of M/s. Deora Flour and Rice Mills at Zoo Road and M/s. Srinivas Basudeo at Fancy Bazar for the sole purpose of selling these commodities at higher prices in and outside Gauhati for profiteering. On 25-7-1973 the following quantities of paddy and rice were unearthed and seized from your unauthorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such trade activities which created acute scarcity and high prices of rice and sugar in Gauhati market. You are, thus acting in a manner prejudicial to the maintenance of supplies and services essential to the community as a whole in. this district and your being at large has jeo- pardized the maintenance of such supplies and services to the community. On 5-8-1973, each of the petitioners sent his representation to the State Government through the jail authorities of Gauhati raising various grounds against the validity of the order of detention. Both representations were rejected by the State Government on 28-8-1973 and their cases, together with their representations were sent by the State Government to the Advisory Board constituted under s.9 of the Act. Three contentions have been advanced on behalf of the petitioners in this Court: (1) that the grounds of detention were vague and so the petitioners were denied of their constitutional right to make effective representations against the orders of detention; (2)that there was inordinate delay in disposing of the representations by the Government and that was sufficient to vitiate the detention of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials on which the latter part of the grounds i.e. smuggling of result and rice to Meghalaya for earning undue profits is based are the materials which have been mentioned in the preceding paragraphs and, as held earlier by this Hon'ble Court, are not necessary to be mentioned in the grounds . There can be no doubt that the first ground postulated that the petitioners were indulging in unauthorised milling of paddy and also in smuggling the resultant rice to Meghalaya for earning undue profit. As already stated no particular instance of smuggling was given, no;the period during which the smuggling operation was carried on mentioned in the ground. We could have understood the contention of' the learned Attorney General if the ground had stated that the petitioners were responsible for unauthorized milling of paddy and that was for the purpose of smuggling the resultant rice to Meghalaya for earning undue profit. Then it could have been said that no particulars about the smuggling would be available as it was only a natural inference of the purpose of the unauthorized milling of paddy. We would have to adopt the vocabulary of humpty dumpty if we are to read the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Keshav Talpade v. Emperor A.I.R. 1943 F.C.1, at 8 where it was said: If a detaining authority gave four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons bad been before them. We cannot predicate that if the first ground was excluded, detaining authority would have passed the order. The fact that one of the grounds mentions that paddy and rice had been unearthed and seized from the unauthorized possession of the petitioners from the rice mill in question on the date of the detention order would not necessarily lead to the inference that the petitioners have been indulging in unauthorized milling of paddy, much less that they were smuggling the resultant rice to Meghalaya for earning undue profit. it cannot, therefore, be said that the first ground, namely, that the petitioners are responsible for unauthorised milling of paddy and smuggling of the resultant rice to Meghalaya for earning undue profit, is a conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tations that the ,,- rounds were vague, we should not interfere with the orders of detention on the ,core that one of the grounds communicated to the petitioners was vague. The Attorney General strongly relied on the decision of this Court in Lawrence Joachim Joseph D' Souza v. The State of Bombay [1956] S.C.R. 382. There it was held that if the nature of the activity for which detention was ordered was such that no better particulars could be given, the, detention order cannot be struck down as bad, In that case the ground of detention was that with the financial help of the Portuguese Government the petitioner there was carrying on espionage activities with the help of underground workers and that he was also collecting intelligence about security arrangements on the border area and was making the intelligence available to the Portuguese authorities. In answer to the contention that the ground was vague as no particulars were furnished, the Court first referred to the majority decision in Atma Ram Sridhar Vaidya's Case [1951] S.C.R. 167 at 178 as laying down that the constitutional right of a detenu under article 22(5) consists of two components, namely, the right to be f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n whether the ground is vague or not. In this view of the, matter, we do not think it necessary to consider the question whether the disposal of the representations by the Government was inordinately delayed and for that reason the detention orders are vitiated. Nor is it necessary for us to consider the other question whether the detaining authority did apply its mind to the other grounds mentioned in the grounds communicated to the petitioners. The facts of the cases might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measure to secure the maintenance of supplies and services essential to the community has been frustrated by what is popularly called a technical error. We say, and we think it is necessary to repeat. that the gravity of the evil to the community resulting from anti- social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure,. Observance of procedure has been the bastion against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after referred to as 'the Act). The orders also intimate that grounds of detention will be served on the detenus within five days. On 30-7-1973, soon after each petitioner had surrendered in the Court of a Magistrate on that very date, the District Magistrate, Kamrup, sent the grounds of detention to each petitioner with a letter informing the detenu of his right to make a representation against the order by which he had been detained and also that he has a right, if he so desires, to appear before the Advisory Board, to which his case would be submitted within before thirty days of the detention. Th grounds of detention served upon Prabhu Dayal Deorah on the afternoon of 30-7-1973 read as follows That you, being one of the partners and in the active management of M/s. Deora Flour and Rice Mills, Zoo Road, Gauhati and M/s. Srinivas Basudeo, Fancy Bazar, Gauhati are responsible for unauthorised milling of paddy in M/s. Deora Flour and Rice Mills at Zoo Road, Gauhati and smuggling of the resultant rice to Meghalaya for earning undue profit. You are also responsible for unauthorised hoarding of rice and sugar in the premises of M/s. Deorah Flour and Rice Mills at Zoo Roa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Srinivas Basudeo, Fancy Bazar, Gauhati. That on 16-5-72 the supply officials seized 105.03 quintals of rice from your unauthorised possession at Messrs. Srinivas Basudeo, Fancy Bazar, Gauhati. That you indulged in such trade activities which created acute scarcity and high prices of 'rice and sugar in Gauhati market. You arc, thus acting in a manner prejudicial to the maintenance of supplies and services essential to the community as a whole in this District and your being at large has jeopardi- zed the maintenance of such supplies and services to the community. Sd/- District Magistrate Kamrup On 5-8-1973, Prabhu Dayal Deorah sent his representation to the State Government through the Jail authorities of Gauhati. He alleged in his Habeas Corpus petition dated 13- 8-1973 to this Court that his representation had not been disposed of by the State Government till then. Apart from complaining that the grounds served upon him were so vague and devoid of particulars as to nullify his constitutional right of making a representation against the order of detention, he also alleged that, as a criminal prosecution had commenced against him on 28-7-1973, for the alleged un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorised persons'. The detaining, authorities had found the allegations to be false after contacting the Food Corporation and M/s. Gogoi Co. It was also revealed by the returns made in this Court that the petitioners, who were present when the stores were raided, had run away from the premises on one pretext or another and that nobody there could explain how the storage of all the rice found boarded was authorised. The replies filed also showed that the sources of the total quantities seized had remained unexplained and that the quantities recovered were not shown to be covered by required authority or licences under the law. The petitioners had tried to controvert the allegations made against them by the detaining authority but had not succeeded in satisfying the Government of Assam about the correctness of their stands either on questions of fact or of law raised by them. Their lengthy representations submitted to the Govt. on 6-8-1973 had been rejected on 28-9-1973, by the Govt. of Assam after due inquiries into allegations made by the petitioners. Their cases, with their representations, had been sent by the Government of Assam to the Advisory Board constituted under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of the report in; which the opinion of the Advisory Board is specified, shall be confidential. 12. Action upon the report of Advisory Board.-(1) In any case where the Advisory Board has reported that there. is in its opinion sufficient cause for the detention of a person,. the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. (2) In any case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forth with . Three contentions have been advanced on behalf of the petitioners in an attempt to assail the legality of their detentions. They are : firstly, that the grounds are too vague and indefinite so that the detention orders are vitiated particularly because the Constitutional right of making an effectual representation against the detention orders is defeated; secondly, that there was inordinate delay in disposing of the representations of the petitioners which, by itself, was enough to vitiate the continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paddy allotted to the Deorah Flour and Rice Mills by the Food 'Corporation of India at Gauhati. It has been very fairly and properly conceded by the learned Counsel for petitioners that seriously disputed questions of fact cannot be Properly decided by this Court upon a writ petition under Article 32 of the Constitution. Moreover, it lies within the power and province of the detaining authorities to investigate and consider the correctness of the explanations given by the detenus of the recoveries made. It is apparent that they have not accepted the versions of the petitioners either about the sources of supplies of the quantities of sugar and rice shown to have been recovered or about the alleged authority. or licence possessed by the petitioners at the times when the recoveries were made. They had also not accepted the correctness of the assertion of Raj Kumar Deorah that he had nothing to do with the two partnership firms involved. We are unable, upon the materials on record and in the proceedings before us now, to declare that the allegations constituting the grounds of detention are baseless. Nor doe,-, that really fall within our province to determine. We can, howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases cited before us to contend that vagueness of grounds given for detention would vitiate detention orders were,: Dr. Ram Krishan Bhardwaj v. The State of Delhi Ors. [1953] S.C.R. p. 708 Motilal fain v. State, of Bihar Ors.; 119681(3) S.C.R. p. 587 Mishrilal fain v. the District Magistrate, Kamrup Ors. [1971](3) S.C.CI p. 693. Rameshwar Lal Patwari v. State of Bihar; [1968](2) S.C.R. 505 and the State of Bombay v. Alma Ram Sridhar Vaidya [1951] S.C.R. 167. In Vaidya's case (Supra) the Bombay High Court had allowed a Habeas Corpus petition because the grounds did not give the time, place, and nature of the activities indulged in by the petitioner so that his right to make a representation was defeated, although, the Bombay High Court had also held that the particulars, which were subsequently supplied to the detenu by the Commissioner of Police, were enough to enable him to make an effective representation. A Bench of five Judges of this Court held that there had been no contravention of the constitutional right to make a representation. It was explained there that grounds which have to be communicated to the detenu were conclusions from facts, constituting particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s case (Supra), after examining the various cases decided by this Court, Bench of six Judges of this Court held that the grounds under consideration there included one, ground which was vague and another which was non-existent with the result that the detenu did not get an effective opportunity to satisfy the Advisory Board about the insufficiency of the grounds of detention. In Dr. Ram Krishan Bhardwaj's case (Supra), a detention, under. Section 3 of the Preventive Detention Act of 1952, was held to be vitiated on the ground that one of the grounds was vague so that his constitutional safeguard, by getting an opportunity of making a representation against his detention had been impaired. This was a decision under the provisions of an enactment of 1952. In none of the cases cited before us was the question raised or decided whether, in a case where representations including those against vagueness of grounds, were made and were pending before an Advisory Board, which had full power to consider all objections on questions of fact and law and to reject any particular ground or grounds for vagueness or irrelevance and to recommend appropriate action after considering whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re too vague or indefinite to be understood or to enable a detenu to make an effective representation, the detenue should ordinarily wait at least until the report has been made by the Advisory Board before complaints that he has been really. deprived of any right under the Act. If the provisions of Section 11(1) of the Art ,ire valid he could not complain that he has been denied a constitutional right of making a representation merely because his case could remain pending for decision before an Advisory Board for ten weeks. More- over, that is not a ground for assailing either of the two detentions before us. As the matter is pending before the Advisory Board, it is not really necessary for us to give a definite or final opinion on the question whether any of the grounds supplied to the petitioners is vague. I also think that it is not necessary to give a decision, at this stage, on the correct interpretation to be placed upon the grounds of detention. I will content myself by indicating the lines on which cases like the ones before us should be decided. I may mention here two cases cited by the Attorney General to submit how the grounds supplied may be interpreted. In Nares ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsion as to the future conduct of the detenus. A distinction between grounds which are merely vague and those which are extraneous or irrelevant often tends to be over-looked. Particulars of vague grounds can be, as seen already, supplied even later so as to show that the grounds were justified. If not supplied, the detenu can also ask for them. But no amount of particulars of it would cure the defect of a ground given which is extraneous to the purposes for which preventive detention may be ordered. Any such ground would vitiate the detention order at its inception. At any rate, this Court could not separate the extraneous or irrelevant ground from the proper and the relevant ones. it could only order the-release of detenu because something extraneous to the legally authorised objects of detention had also affected the decision to detain. -L447Sup.Cl/74 In Tarapade De Ors. v. the State of West Bengal, (1) a Bench of five Judges of this Court explained the distinction between the vague grounds and irrelevant grounds and said that they do not stand on the same footing. It Said at page 218-219) : We are unable to accept the contention that 'vague grounds' stand on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be defeated and on no other ground, the detention would, strictly speaking, not be vitiated ab initio, but, it would become illegal only from the time when the infringement of the right to sufficient particulars to make a representation takes place. This takes us to the question whether the alleged delay in considering the petitioners' representations was suffi- (1) [1951] S.C.R. 212 @ 218-219 cient to vitiate their detentions on the ground of infringement of their constitutional right to make representations against them. In support of the second ground of attack-that the period of nearly three weeks taken by the Govt. in rejecting the petitioners representations was so long as to defeat the right of petitioners to make a representation-the decisions cited before us on-behalf of the petitioners were : Babul Mitra v. State of West Bengal Ors A.I.R. 1973 S.C. 197. [1973] (1) S.C.R. 1022 On the other hand, the learned Attorney General has relied on Deonarayan Mondal v. State of West Bengal A.I.R. 1973 S.C. 1353 in which it was held that where the Govt. has satisfactorily explained the time taken in considering the detenue's representation, there could not be said to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamine them. We cannot, by holding that the detaining authorities had come to some incorrect conclusion, infer that they must have failed to apply their minds to the allegations made and facts ascertained by them. The detailed affidavits filed in reply show that they had fully applied their minds to the conflicting versions on questions of fact. As regards the second ground, it is enough to point out that the Govt. of Assam could not be presumed to be in possession of all the, facts taken into account by the detaining officer. The detaining officer had not consulted the Govt. of Assam before ordering detention. Therefore, the reasonable time taken by the Govt. of Assam in making enquiries only shows that it took care to verify the correctness of allegations made by the petitioners, or, in other words, that it really applied its mind to the, facts of their cases. As the petitioners' cases are still pending before the Advisory Board, I think we ought to observe that any opinion which we may have expressed, in the course of discussion of matters argued before us, on questions pending before the Advisory Board, would not preclude the Board from going into either questions of fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of his innocence or guilt be tried and determined by this Court directly pending his trial by a court of competent jurisdiction. In a case of preventive detention where fairly triable questions of fact or law, which can be more appropriately gone into and decided by an Advisory Board, are pending before the Board, the petition should be dismissed as premature barring very exceptional circumstances as already indicated above. I In Halsbury's Law of England (1111 Edn. (Vol. II) p. 46), wefind : Although the Habeas Corpus Act, 1816, enables the return to be controverted, and a total absence of jurisdiction, or matters in excess of jurisdiction, may be alleged and proved by affidavit, facts alleged on the return which were within the jurisdiction of a court cannot be controverted . I find that the petitioners before us have neither proved an excess of power to detain on grounds alleged against them nor that their ed by affidavit, facts alleged on the return which were within the jurisdiction of a court cannot be controverted . No doubt this Court must zealously protect the personal freedom of citizens against arbitrary or unconstitutional invasions of it b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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