TMI Blog1951 (5) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-3-51. Meanwhile on 17-3-61 the petitioners moved for bail. This was opposed on the ground that the offence was presumed to relate the black marketing, that the sections were non-bailable, that there was a move for their detention under the Preventive Detention Act, that the petitioner belong to Calcutta may abscond or tamper with the evidence their being released on bail would be very detrimental to investigation that accordingly the bail was strongly objected to at that stage. The learned Sub-divisional Magistrate, however, made an order for release of the petitioner on bail of ₹ 20,000 each with two local sureties for similar sums also imposed a condition that the petitioners should not move out of Berhampur town police station limits. Against this order, the petitioners moved the learned Ses. J. who passed an order on the 19th modifying the order passed by the S. D. O. He directed that the amount of bail should not move out of Berhampur town police station limits should be cancelled. Sureties were accordingly furnished on the 20th the learned Sub-Divisional Magistrate being satisfied about the same, issued on the same day an order for the release of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nspector, G. R. P., Berhampur, which may not be successful, I recommend that these two per-sons may be detained for a period of three months under the Preventive Detention Act. In that letter he mentioned the circumstances which led to the arrest of these two persons and the evidence that has been so far gathered against them. The District Magistrate passed on 18th March, orders of detention for three months, in exercise of the powers conferred by Sub-clause (iii) of Clause (a) of Sub-section (1) of Section 3, Preventive Detention Act, 1950 (IV [4] of 1950) as amended by the Preventive Detention (Amendment) Act, 1951, read with Section 4 thereof. The grounds of detention dated 25-3-51 which were served on the petitioner Ratanlal Gupta on 27-3-51 are as follows: 1. You were regularly coming to Berhampur with Aska Ram Somani and smuggling cloths to Calcutta for purpose of black-marketing there. 2. 10 days prior to 15-3-51 you and Aska Ram Somani were seen at Berhampur by A. Kameswar Rao of Berhampur smuggling mill-made cloths in huge quantities from Berhampur to Calcutta. 3. On 4-3-51 you along with Aska Ram Somani purchased 900 yards of mill-made cloth from Berha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the criminal investigation was pending and also directed the Govt. Advocate to file counter-affidavits to the affidavits filed by the petitioners. The District Magistrate of Ganjam has thereupon filed affidavits that he was fully satisfied that the detention was necessary for the prevention of supplies and services essential to the community and the detention was made bona fide and stated that the State Govt. had referred the matter to the Advisory Board on 14-4-51. It was stated to us by the Govt Advocate that the Advisory Board according to their present programme had fixed the 14th of May for consideration of the cases of these two petitioners. No charge-sheet however, appears to have been filed yet against the petitioners at any rate by 19-4-51 when the records were sent to this Court by the Magistrate. But a perusal of the case diary that has been sent gives an impression that if a charge-sheet is ultimately filed most, if not all, of the facts stated as grounds for detention will probably be the subject-matter for judicial investigation. 5. On these facts the main contention of the learned advocate on behalf of the petitioners is that an order of detention against a pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connect him with some subversive movement justify the making of an order of detention, if the official on whom the duty of making the order is cast, neglects to send for study a copy of the judgment, it may very well be said that he has failed to act with due care attention in the discharge of that duty. The learned Judge thereupon notices the practice the law in England in times of emergency continues as follows : In the last war, the constitutional lawyers of the twentieth century devised another expedient, more effectual, perhaps, in safeguarding the body politic against dangers greater than had ever before menaced it, yet better calculated to interfere as little as possible with the personal freedom of the subject, The Legislature conferred on the executive a power to make regulations, both punitive preventive, to create new offences provide punishments for them to prevent individuals committing certain offences by ordering their detention. The position, however, with regard Lo the particular matter, we are now considering, remained the same. A person, once arrested charged with some crime, whether what he had done or was alleged to have done wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny offence, whether under the Penal Code or under the Defence of India Rules, then they are bound to conduct their inquiry in accordance with the provisions of the Criminal Procedure Code. They cannot call in aid their powers of detention and in the guise of exercising those conduct a secret investigation into a crime. If they have information that these detenus have committed crimes or offences, they are not bound to investigate into them. They can rest content with detaining them under Rule 26 or 129, provided the matter falls within the ambit of those rules. But if they want in investigation, they must proceed in accordance with the provisions of the Criminal Procedure Code. If they do otherwise, it is a fraud upon the Act and their action is not taken in good faith. They cannot make the best of both worlds. 7. The next case is A. I. R. 1950 Bom. 202 (F.B.). The petitioner therein was arrested on 8-5-1949, for committing a breach of the order of the Commissioner of Police and for being a member of an unlawful assembly in defiance of the Commissioner's order. On 29-5-1949, an order was made by the Commissioner of Police under Section 2 (1) (a), Bombay Public Security Mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of detaining the applicant, was a collateral purpose, and that was to deprive him of his rights and safeguards under the Criminal Procedure Code and to carry on an investigation without the supervision of the Court . Later on it is stated as follows : The Advocate General has contended that the Police authorities acted very fairly in putting up a charge-sheet against the applicant and intending to have his case tried by the ordinary tribunals of the land although they had the power to detain the applicant indefinitely. In our opinion, this attitude of the detaining authority only gives to the applicant a rather illusory benefit, because it would be open to the detaining authority, even after the criminal Court had acquitted and discharged him, to continue to detain him under the provisions of the Security Act. In our opinion, the alternatives open to the police authorities are very clear. When an offence has been committed, the police authorities may investigate it, in which case they must comply with the provisions of the law with regard to investigation ; or they may feel that the detention of the accused is more essential in the interests of the State, what is more i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrested and brought up before a Court on some definite and specific charge, seems quite undesirable and quite wrong for an order of detention to be made against him before he is tried on that charge and his guilt or innocence is finally determined, and that the order of detention in such circumstances may result in serious prejudice to the person detained. In that case the Chief Justice of the Court in agreeing with the order of the other learned Judge observed as follows : I am content to allow the two petitions on the sole ground that it is not desirable that the detention of a person under a Detention Act should run concurrently with his detention in pursuance of his being accused of a non-bailable offence . 9. The above citations show that there is an appreciable volume of judicial opinion in favour of the view that an order of preventive detention based on substantially the same facts which constitute an offence and in respect of which a criminal prosecution is pending, would amount to an abuse of the powers of preventive detention and that such a detention order would be illegal. However, a close scrutiny of the facts in, shows that in those cases, there were facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... British India. It may be agreed that the principles so laid down are implicit in all preventive detentions whether they are expressly made part of the Statute or not, but I am unable to see how they support the broad proposition that a detaining authority has no power at all to make an order of detention in respect of a person who is under prosecution on the same facts. It has been suggested in the Hyderabad case above cited, that Article 22, Clause (3) of the Constitution shows that that Article does not contemplate the detention of a person who is already under arrest in respect of the alleged commission of an offence. It appears to me that this inference does not necessarily arise from the language used in the sub-section referred to. On the other hands it would be arguable, that the power of detention of the public authorities is to be gathered from the express language of the Preventive Detention Act any restrictions thereon must be found either in the provisions of the Act or by necessary implication therefrom. So long as the provisions of the Act do not conflict with the fundamental rights guaranteed by the Constitution other restrictions on the exercise of the powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the detaining authority about the truth of the facts alleged. But for the statutory power protecting the detaining Magistrate, the intimation of any such suspicion, if the criminal prosecution is actually pending or imminently prospective might amount to contempt of Court. Further, having regard to the present set up of the subordinate criminal Courts in most of such cases, the trying Magistrate, is either the authority having also the power of detention (as for instance the S. D. M. in this case) or would be a direct executive subordinate of the authority, who orders the detention. The intimation of the suspicion by a higher authority is not unlikely to have a conscious or unconscious influence on the fate of the pending or prospective prosecution. As has been pointed out in some of these cases, such a detention might easily result in an investigation outside the magisterial control which the Cr. P. C., envisages and would therefore encourage the abuse of the power of detention to secure the facility of secret investigation. It is an important characteristic of any criminal trial that the custody of an accused pending trial should be under the control of the Court both in ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set up, viz., that the detaining authority and the subordinate Magistrate who tries the offence are part of the same executive machinery and that the detaining authority normally acts on sources of information furnished by the same investigating agencies which are also responsible for, or connected with the prosecution. It is noteworthy that while the designing authority is privileged from disclosing such material as it considers undesirable to disclose in public interests, there is no privilege attaching to the disclosure of the representation made to the detaining authority by the detenu and nothing to prevent the prosecuting agency obtaining access to it anticipating and hampering his defence. Under Section 10 (3), Preventive Detention Act, it is only the proceedings of the Advisory Board that are confidential. While, therefore, I am not prepared to assent as at present advised, to any such general proposition, as is contended for by the petitioners' counsel as a matter of law, I am inclined to think that the detention order in such cases where the prosecution is pending or imminent, is a serious step for the executive authorities to take. It must be made with full appreciat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atters, then, I think, be will have established his case. Similarly in The State of Bombay v. Atma Ram Shridhar 1951 S. C. J 208 his Lordship Patanjali Sastri J. refers to the challenge to the legality of a detention as permissible on allegation of mala fide or irrational conduct. It appears to me therefore that while the detention order may not be liable to be declared as ipso facto invalid on the ground that in respect of the facts alleged for the grounds for the detention, there is a pending or imminently prospective prosecution, the pendency or the imminent prospect of the prosecution would have a substantial bearing on the alleged want of bona fides. I take the weighty pronouncements of the Patna, Nagpur and Bombay cases as justifying such an approach to the facts of a case when the bona fides of an order is challenged. But it has also to be remembered in this connection that the burden of making out want of bona fides of the detention order is on the detenu. That has been clearly laid down in A. I. R. 1945 F. C. 18 though as pointed out in that very case relying on Rex v. Carr Briant (1943) l K. B 607 such burden of proof is not so onerous as that on the prosecution in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be considered together. There are in this case certain facts which raise substantial doubts in one's mind: (1) The Circle Inspector in his letter to the District Magistrate dated 16-351 moving for the order of detention says that; The specific case started by the Govt. Railway Police may not be successful hence an order of detention for three months is recommended. (2) When the bail was moved before the Sub-Divisional Magistrate, it does not appear to have been opposed on the ground that if the petitioners are allowed to have freedom, there was the imminent likelihood of their resorting to prejudicial acts affecting the supply position in the place as regards clothing. All that appears from the endorsement of the prosecutor on the face of the bail application dated 16-3 51 (which has been received with the records) is that an order of detention has been moved for, implying to ray mind, an objection not that the release on bail would be risky but that it would be futile. For if the contrary were meant, the prosecution would have at once moved the higher Court for cancellation of bail. (3) The affidavits of the District Magistrate filed, even after some arguments h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this Court's jurisdiction under Article 226 is independent of any action that may be taken by the Board in those cases where it can be held on the materials placed before this Court that there was either a manifest defect of jurisdiction on the part of the Magistrate who ordered detention or where there is manifest fraud or want of bona fide this Court should interfere even though the very same matter may be pending before the Board. But, at the same time, it should be pointed out that where the statute provides an alternative relief through another tribunal the Court would not ordinarily interfere in exercise of its prerogative powers until the other remedy has been exhausted (see The King v. Commanding Officer of Morn Hill Camp. (1917) l K. B. 176. The powers of the Board have been much increased by the amendment made to the Preventive Detention Act by the Amending Act of 1951. Formerly, the recommendation of the Board to the Government was advisory; but after the amendment the Government is bound to release a detenu if the Board is of the opinion that there is no sufficient cause for the detention of the person concerned. Unlike this Court the Board can go into quest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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