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In Re: Maganlal Jivabhai Patel

1950 (10) TMI 17 - BOMBAY HIGH COURT

Dated:- 10-10-1950 - Bavdekar, Vyas, JJ. JUDGMENT Bavdekar, J. 1. This is an appln. under Section 491, Criminal P. C. & Article 226 of the Constitution by a person, who has been detained by an order made by the Dist. Mag. Ahmedabad, on 29-3-1950. The order stated that the Dist. Mag. Ahmedabad, was of the opinion that, in order to prevent the detenu from acting in a manner prejudicial to the security of the State of Bombay & the maintenance of public order, it was necessary to make an ord .....

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to cause widespread disturbance of peace & disorder in the City & other parts of the District; that you were up to the time of your arrest wilfully & actively inciting the labour classes & particularly the textile labourers in Ahmedabad City to resort to illegal strikes & violence for achieving their demands rather than through, the machinery set up by the Administration with the ulterior object of bringing about disorder in the City; that you have been secretly publishing un .....

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en made on his behalf is that the order in this case watt passed by one Dist. Mag., namely, Mr. Damry, at the time when the order was actually served upon the petnr. Mr. Damry had left charge & another Dist. Mag., namely, Mr. Ghatge, was the Dist. Mag. of Ahmedabad. Mr. Ghatge does not seem to have applied his mind to the question as to whether the detenu should or should not be detained; but without his applying his mind to the question, the order which was passed by Mr. Damry was executed, .....

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being no such satisfaction as is necessary that the detaining authority should have under the Preventive Detention Act, the order is bad, & his detention consequently is bad also. 3. Now, in our view, in the first instance, an order which is issued by the Dist. Mag. takes effect upon the date of its issue. It is true that, if the Dist. Mag. were to sign an order & keep it in his pocket, the order cannot be regarded even as issued; and if the order is never issued by the person who has m .....

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der been in Mr. Damry's pocket, it is obvious that it could not have resulted in the detention of the detenu. The order must, therefore, have been issued, & we think in all probability in this case that the order must have been issued, as Mr. Ghatge's affidavit does not show that he ever applied his mind to it, before Mr. Ghatge took charge of the post of the Dist. Mag. of Ahmedabad. In that case, the only question is as to whether upon such an order an arrest could legally be made. .....

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, after the lapse of a very long time, say, for example, 10 years, to say that the detention was a valid detention. But whenever it is a question of time having elapsed after the making of an order & before its service, it is after all a relative question as to whether time which lapsed is too long or it is short enough. The learned Govt. Pleader has pointed out & pointed out rightly that when an order is made under the Preventive Detention Act, the order continues to be in force until i .....

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rder, till he remained in office, that that order should be executed. It is true that it is impossible to say what Mr. Damry might or might not have done in case he had remained in office. The learned Govt. Pleader, who appears on behalf of the State, says that in this case he would argue that Mr. Ghatge had applied his mind to the question of the detenu's detention ; but Mr. Ghatge's affidavit does not satisfy us that he, as a matter of fact, did apply his mind to the question. What he .....

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y, we are of the view that Mr. Damry was of the view, till he left charge, that the order should be executed, & we do not think that any such interval has passed after Mr. Damry left, charge & the arrest of the detenu that looking to that interval alone we would be prepared to say that it was wrong to execute the order which was issued by Mr. Damry. It has got to be remembered that the Dist. Mags., who are usually detaining authorities, are liable to be transferred; it cannot be contende .....

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e, that even assuming that the order could be executed at the time when the detenu was arrested, the order was bad, because it is based upon vague grounds. Now, the grounds which were furnished to the detenu may be said to be three. The first part of the ground, namely, that he is an active worker of the Communist Party, we do not regard as a separate ground because the words which follow show that the act of the detenu was supposed to be in furtherance of the aims of an organisation, namely, th .....

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isorder in the City & other parts of the District. Now, in our view, this ground is vague. The learned Govt. Pleader, who appears on behalf of the State, Says, however, that it does not matter if the ground which was furnished to the detenu was vague, because all that the Preventive Detention Act requires the detaining authority to do is to furnish him grounds in the nature of the bare words of the section of the Act, under which action has been taken. It has got to be remembered that the Pr .....

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enable the Dist. Mag. to take action. The contention which has been made on behalf of the State, therefore, boils down to this that, even though there is an obligation upon the detaining authority to furnish to the detenu grounds, the grounds which have got to be disclosed need not mention anything more than what had already been embodied in the order which the Dist. Mag, passed on 29 8-1950. & in support of this contention reference has been made to the case of Greens v. Secretary of State .....

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nd in the Defence of the Realm Act & the Regulations made thereunder, the word "grounds" was supposed to refer to the words of the section under which action was taken; but that was obviously with reference to the language of the Act in which the word "grounds" was used. It is the cardinal principle of the construction of statutes that the meaning of a word is liable to be restricted because of the context in which the word occurs & if under the English Act there was .....

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n which the words used were "grounds & other particulars" showing that the grounds would have to mention some particulars. Those illustrations ought to be sufficient to show that the meaning of a word would, to some extent, be controlled by the context in which it appears, & in this case we are concerned with two enactments, one is the Constitution, & the other is the Preventive Detention Act. So far as the Preventive Detention Act is concerned, in one sense, its language i .....

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of a Legislature, which is enacted by it under a particular power given to it by Constitution, & the Constitution itself, then the words of the Constitution must prevail. It in true that the Constitution uses the word "grounds," & it is said that this word was used by the Constituent Assembly which could not have been ignorant of the previous Public Security Acts which were in this State as well as in other States. That is perfectly true ; but in the first instance, what we hav .....

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there was no reason for providing by Article 22(6) that nothing in Article 22(5) shall require the detaining authority to disclose facts which it was in the opinion of the detaining authority not in the interest of the public to disclose. 5. In our view, therefore, the grounds which have got to be furnished to the detenu must be not only the words of the section under which action was taken, but must disclose to him the facts upon which action has been taken, though this would be subject to the .....

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rst instance, to furnish grounds to the detenu, and, in the second instance, to give him reasonable opportunity to make his defence. It is contended on behalf of the State that the two things which the detaining authority hap to do have nothing to do with each other, and in the interpretation of the word "grounds" no consideration should be imported from the other thing which the detaining authority must do, and that is, that it must give reasonable opportunity to the detenu to make a .....

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s of fact upon which its order is based, there is any discretion vested in it to omit any of the facts which it may consider are unnecessary. Now, as has been pointed out in Sushila Madiman's case, (52 Born. L. R. 794 : A. I. R. (38) 1951 Bom. 262) the Constitution does not enable the detaining authority to mention to the detenu only such facts as are in its opinion sufficient to enable him to make a representation. It has been argued before us that the effect of this is, as was suggested on .....

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deletion must not be taken as equivalent to a substitution of the words owing to which it would be enough for the detaining authority to disclose such facts as are sufficient in the opinion of the Court to enable the detenu to make his defence, and in our view that contention must be accepted. It is true that or e of the reasons which has been given in Sushila Madiman's case, has been that the grounds are furnished to the detenu in order that he should be enabled to make a defence, and it ma .....

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o make his defence. But even if it was necessary to go to these words to some extent in order to arrive at the result, what must be disclosed to the detenu are the conclusions of facts of the detaining authority. In our view, there is no reason why a further limitation should be placed upon the facts which must be disclosed in the shape of the facts being sufficient in the opinion of the Ct. to enable the detenu to make a defence. We are not suggesting that, when the grounds are furnished & .....

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rs, unless again it is not in the interest of public to disclose the facts concerned, we fail to understand how a detenu would have sufficient opportunity to make a representation, if he simply was told that on a particular date & at a particular time he killed A, & on another date & time he killed B. The detaining authority is entitled to come to its own conclusion as to whether the detenu killed A or B or not, & whether these are political murders of which the object was to spr .....

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e was told all the facts, namely, that he had sent a threatening letter, that subsequently when the murder was committed the detaining authority had, as a matter of fact, found that he was in the vicinity of the place with a blood-stained hatchet in his hand. We are not suggesting that the detaining authority would be entitled to take action against the detenu only on these facts but he is entitled to come to his own conclusion upon the facts as to whether a murder has, as a matter of fact, been .....

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g at the grounds which have been furnished to the detenu in the light of these remarks, it appears to us obvious at the outset that ground No. 1 is vague ; it does not tell the detenu what were the activities in which he ever indulged; what it says is that he has been secretly & actively engaged in organising dangerous & violent agitation so as to cause widespread disturbance of peace & disorder in the city & other parts of the District. Now, we can understand the argument that i .....

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d what was the nature of his activity of organising. But if it was said that what he was organising was a certain dangerous & violent agitation, we fail to understand why it has not been possible to tell the detenu that the dangerous & violent agitation which he was organising was a particular one. The organisation would naturally be secret, & it may be against the public interest to tell the detenu that Govt. had come to know the nature of the organisation which he was effecting. Bu .....

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e second & the third grounds which have been given to the detenu in this case give to him sufficient particulars of the facts upon which action has been taken against him. The second ground is to this effect; 'That you were upto the time of your arrest wilfully & natively inciting the labour classes & particularly the textile labourers in Ahmedabad City to resort to illegal strikes & violence for achieving their demands rather than through the machinery set up by the Administ .....

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a sufficiently long time after the incitement, the strike not having taken place in the meantime. In this case the grounds wore given on 19-6-1950, & inasmuch as the order which was passed against the detenu was on 29-3-1950, we are not prepared to say that so much time had elapsed after the alleged instigation that strike not having taken place in the interval there would have been, no damage to public interest in not disclosing to the detenu the nature of the strike which he was instigati .....

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hen he makes an appln. for example, to this Ct., the grounds might get into the papers, & in case other people came to know that it was the desire of the detenu to enter upon particular strikes, it may happen to incite them to strikes. It might have been considered, therefore, against the public interest to disclose the strikes which the detenu was inciting, because the effect of the disclosure might be that ultimately if other people came to know that the detenu had wanted to incite those s .....

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detenu made his appln. he denied that he had published any unauthorised objectionable news sheets, & he had thrown out a challenge to the State to produce those news sheets if they had them; but no news sheets have been produced. In our view, once it is conceded, as it must be conceded, that it is the satisfaction, of the detaining authority which has to result in the detention of the detenu, provided, of course, it is not mala fide & it is not based upon anything which is arbitrary or c .....

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epresentation to the State. 11. It is said, however, that the grounds are bad for other reasons, & the first reason made is that the second ground in this case mentions that the detenu was inciting illegal strikes. It is contended on behalf of the detenu that under Section 78, Bombay Industrial Relations Act, 1946, a Labour Ct. has been given power to decide whether a strike, lock-out, closure or stoppage is illegal under the Act. The power to declare that a strike is illegal is also given t .....

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r Section 104, Bombay Industrial Relations Act, 1946, action can be taken only before a Labour Ct., which is empowered under Section 78(1)(B) to try offences punishable under the Act, & the contention which has been advanced before us is that in case the Bombay Industrial Relations Act, 1946, provides that penal action against the person who had joined an illegal strike or a person who has incited an illegal strike can be taken up only before a particular Ct., namely, the Labour Ct. or after .....

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taken to a Ct., it is found that the opinions of the parties are worthier; employers Sometimes maintain that the strike is illegal; but the Industrial Ct. finds it to be legal; sometimes employees say that the strike is legal but the Industrialist finds it is illegal. It is said that consequently the matter of deciding whether a strike is or is not legal is a matter of very great difficulty; parties must be heard in regard to their contentions as to whether the strike is legal or illegal, & .....

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arguments addressed to him. 12. Now, in our view, it is not a logical result of the provisions made in the Bombay Industrial Relations Act, 1946, that the detaining authority has no power to determine whether a strike which is being incited by the person whom it is proposed to detain is or is not an illegal strike. We do appreciate that the question as to whether a strike is legal or not legal is a matter of some considerable difficulty in many cases: but we do not understand why the thing shoul .....

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ine both questions of fact & questions of law. To refer to an example which has already been given above, if action was proposed to be taken against a detenu on the ground that he has really committed political murders with a view to spreading disorder in the State, the detaining authority is empowered to decide whether the detenu has or has not committed; the murders, & we fail to understand that the determination of the question as to whether the strike is or is not legal is more diffi .....

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must depend upon the facts which are in dispute & we think that, just as the facts may be very complicated in the case of an illegal strike, they may be equally complicated in the case of a murder, & the CT. cannot say that, because the nature of the question to be determined is a difficult one, therefore the detaining authority has got no power to determine it. Nor do I think that there is anything in the language of the Bombay Industrial Relations Act which would persuade us to hold th .....

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hat, whenever such an action is taken, provision should be made that there should he safeguards. What these safeguards should be is a matter of opinion; once these safeguards are prescribed, it is also necessary that the Cts. should be vigilant in seeing that these safeguards are observed; but once it is found that the Legislature intended that action should be taken upon the detaining authority being satisfied of certain things I fail to understand why the provisions of the Act which has got to .....

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egal. The Labour Ct. may determine whether the strike is legal or illegal, when it has got the question before it; but it does not mean that the question may not arise in other proceedings. For example, the question may arise in actions for breaches of contract; and it must be held that nothing in the Bombay Industrial Relations Act takes away the power of an ordinary Ct. to decide, or itself the question as to whether a strike is or is not legal, if the question is at issue in any matter before .....

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es, be start an open & violent revolt to overthrow Govt. It is said that the action has been taken against the detenu for doing so nothing for which it would be proper for the authority concerned to put a restriction upon the detenu's freedom of speech; but inasmuch as all that the detenu has done was to publish unauthorised objectionable news sheets, it was not permissible for the detaining authority to put upon him a restriction in the form of a restriction of his liberty of person. 14 .....

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e permissible for the proper authority to restrict his right of freedom of expression the result, if at all, will follow from the fact that he has not done anything owing to which it would be warrantable to put a restriction upon his liberty of person under the Preventive Detention Act. 15. If we look at the ground which has been given in this case, the ground is not confined to the detenu s secretly publishing unauthorised & objectionable news sheets; the ground says further that the news s .....

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; violent revolt to overthrow Govt., it would be arguable that the mere publishing of unauthorised news sheets cannot possibly authorise detention under the Preventive Detention Act. But what we find in this case is that the news sheets which were supposed to have been issued by the detenu exhorted the public, especially the labouring classes, to start an open & violent revolt to overthrow Govt. Now, we must assume that that is correct for the purpose of the present petn. We fail to understa .....

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ning authority to take action under the Preventive Detention Act. The same act may, at the same time, warrant restrictions being placed on two freedoms, namely one freedom of the right of expression, & the other, the liberty of the person. The two are dealt with separately, one, under Article 19 & the other under Articles 21 & 22 of the Constitution & in our view, no complaint can he made against the order of detention on the ground that to the extent that the detenu published se .....

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rounds in this case were furnished to the detenu by a different person; but Article 22(5) itself contemplates that the grounds are to be furnished after the detention. In that case, it is obvious that it could not have been meant by the words "the authority making the order" the individual who made it. What is meant by the words "the authority making the order" is; if the order is made by the Dist. Mag., the Dist. Mag.; if the order is made by the Govt. of a State, the State .....

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tention were furnished to him on 19-6-1950. Mr. Sule's contention is that as the order of detention was made on 29-3-1950, by Mr. Damry who was the then Dist. Mag. of Ahmedabad, as the said order was not acted upon for more than two months, as Mr. Damry was in the meantime transferred & succeeded by Mr. Ghatge who was the Dist. Mag. on the date of the petnr.'s arrest & as the grounds of detention were furnished to the petnr. by Mr. Ghatge, there was no proper order of detention i .....

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s Mr. Damry had been relieved of his charge as the Dist. Mag. before 14-6-1950, (date of petnr.'s arrest), the order passed by him on 29-3-1980, could not be acted upon on June 14. Now, we cannot agree with these contentions. We cannot hold that as soon as a Dist. Mag. is transferred relieved of his duties as a Dist. Mag. in a particular District, all his orders lose their value & cease to be orders of a Dist. Mag. & cannot be given effect to. Such a construction would at once lead t .....

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rder of detention dated 29-3-1950, passed by Mr. Damry, which was executed on 14-6-1950, when Mr. Ghatge was in charge of the District, could not be called a valid order of detention. 18. Now, the grounds which were furnished to the detenu on 10-6-1950, were that- (1) he was secretly & actively engaged in organising dangerous & violent agitation so as to cause widespread disturbance of peace & disorder in the City & other parts of the District ; (2) he was up to the time of his a .....

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; and (4) if left at large he was likely to act in a manner prejudicial to the security of the State & maintenance of public order in the City & District. Mr. Sule has challenged these grounds for various reasons. But before dealing with these reasons, it would be convenient to deal with the submission of the learned Govt. Pleader that it is not necessary at all to disclose the facts, particulars or details on which the detention order is based. In other words, the contention of the lear .....

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; (b) of Section 3 (1) of the Act & has argued that these sub-clauses deal with the grounds on the strength of which a detention of a person may be ordered. It is accordingly contended by Mr. Choksi that it is sufficient for the purpose of an order of detention under the Act to describe the grounds in terms of Sub-clause (a) & (b) of Clause (1) of Section 3 & that it is not essential to state the facts, particulars & details relating to those grounds. 19. In our opinion, this con .....

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(a) & (b) of Clause (1) of Section 3 of the Act is to be mechanically copied & reproduced in the grounds to be furnished under the Constitution & the statute of detention, the object of enacting Sub-clause (6) of Article 22 of the Constitution would be defeated at once. Article 22, Sub-clause (6), lays down that "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 .....

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the detention is necessary in the interest of the security of the State, maintenance of public order, etc. The only privilege a detaining authority can claim against disclosure of facts is on grounds of public interest. If no facts at all leading to the detention of a detenu are to be mentioned in the grounds which are to be furnished to him, then obviously the intention underlying the enactment of Clause (6) of Article 22 is frustrated. 20. Further, the purpose of Clause (5) of Article 22 of th .....

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u in the grounds which are given to him so soon as may be after detention, it is difficult to imagine how he can possibly make an effective representation to Govt. against his detention. Besides, it is the duty of this Ct. to examine & see whether the detaining authority has properly applied his mind to the question of detention of a person, & there again it would be impossible to discharge that duty properly unless the Ct. knows the facts on the basis of which the detaining authority ha .....

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f Sub-section (1) of Section 3 of the Act into the grounds given under Section 7, but to give all facts, particulars & details on which the detention is based. All those must be given in the grounds which are to be furnished to the detenu so soon as may be after his detention. The Constitution & the Act do not contemplate the giving of facts, constituting grounds of detention in batches or instalments. 21. In our view, as I have just said, all facts on which the detention order is based .....

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of detention is the only material which could be furnished to the detenu & that any further disclosure is against public interest. For instance, in this particular case, the detaining authority has made an affidavit, in para. 12 of which it is stated : "Besides the grounds given to the appct. no other facts could be disclosed as it is considered to be against the public interest to disclose them." Now, I must express disapproval of the omnibus manner in Which recourse is taken to A .....

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t. to satisfy itself that the detaining authority's satisfaction as required by Section 3 of the Act has proceeded from a proper application of his mind. It is the detaining authority who is required to satisfy himself from the materials before him that a detention of a person is called for. It 18 he who decides what facts should be stated in the grounds to be given to a detenu under Section 7 & what facts should be withheld under Article 22(6) of the Constitution. The Ct. knows nothing .....

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n in the grounds of detention the time, place, manner, method & nature of activities, person or persons, class of person or persons affected by those activities, etc., & he ought to specify those points which, according to him, are privileged under Article 22(6). In my view, it could not possibly be contended genuinely that it is against public interest even to say this much "I consider it against public interest to disclose the details regarding time, place, person, manner, method .....

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e relevant to the detention are generally not stated in the grounds of detention. I agree that if the disclosure of these facts is against public interest, the withholding thereof from the detenu & the Ct. will be protected by Article 22(6). But, in any case, the bare points on which the privilege is claimed can be mentioned, & ought to be mentioned, without giving details regarding them. It is difficult to imagine how public interest can possibly be affected adversely by a mere statemen .....

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2(6) cannot be withheld from the petnr. & the Ct., since in absence of such statement the Ct. might find itself in some cases in difficulty of deciding whether there was a proper application of the mind, of the detaining authority. In short, it is necessary, in my view, that facts & particulars on which the detention is based should be stated (not of course in instalments or fractions) in the grounds of detention, & if disclosure of details on certain points is considered against pub .....

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was the nature of his -activities & how those activities were dangerous & what violence was involved in them & against whom. Therefore this ground, being not clear enough so as to enable the petnr to make an effective representation against it, is not, in our opinion, a valid ground of detention. 23. Ground No 2 reads as follows : "That you were upto the time of your arrest wilfully & actively inciting the labour classes & particularly the textile labourers in Ahmedabad .....

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at facts, conditions or circumstances make a strike illegal is laid down in the Bombay Industrial Relations Act, but it is for the Ct. under that Act, to determine whether those facts & conditions apply to a particular strike & declare it illegal if they do apply. It is argued that unless a strike is decided as illegal, it could not be said by a detaining authority that an illegal strike was incited by anybody. Of course, it is conceded by Mr. Sule that he does not contend that no action .....

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r the Bombay Industrial Ct. that the strike actual or in offing is an illegal strike. On the other hand, it is contended by the learned Govt. Pleader that on one or the other of the conditions referred to in 9.97, Bombay Industrial Relations Act, 1946, coming into existence, the strike automatically becomes illegal, & therefore a detaining authority holding that a certain person was inciting others to resort to such a strike can proceed to take action against him under the Preventive Detenti .....

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101(1)(g) says that no employer shall dismiss, discharge or reduce any employee or punish him in any other manner by reason of the circumstance that the employee has gone on or joined a strike which has not been held by a Labour Ct. or the Industrial Ct; to be illegal under the provisions of this Act. We agree that an employee of a mill could not be dismissed by his employers on the ground that he had gone on or joined any strike unless there was a prior determination by the Labour Ct. or on an .....

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eference to the Industrial Ct. for a declaration whether any proposed strike, lock-out, closure or stoppage will be illegal. This shows that if the Provincial Govt. wants to take action in respect of a strike which has not yet taken place, but which is threatened to take place, they must first obtain a declaration from the Industrial Ct. that the strike which is threatened will be an illegal strike Therefore, Mr. Sule's contention is right that if any action is to be taken against anybody un .....

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on for detention of a person can be taken under the Preventive Detention Act. Section 97 Bombay Industrial Relations Act speaks of certain conditions which would make a strike illegal & if a detaining authority thinks that one or the other of those conditions exists & the strike which is incited to be resorted to is illegal on that score, our view is that it is open to him to take action under the Preventive Detention Act against the person concerned That being so, in our view, ground No .....

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