BIRAM CHAND versus STATE OF UTTAR PRADESH.&.ORS.

BIRAM CHAND

STATE OF UTTAR PRADESH _&ORS.

1\--larch 28. 1974 ·

[H. R. . KHANNA . .. AND : P. K. GOSWAMI, JJ.] '

. . .. Jt.laintellance of lntemal Security Act, 1971, S. 3 (I)(a) (iii)-Detention when prosemtion is. pending on the same facts-Validity. . ·

The petitioner was detained by an order of the District Magistrate, Varanasi, U.P. under Sec. 3(1) (a)(iii) of the Maintenance of Internal Security Act, 1971, with view to preventing hjm from acting ·in any manner ,prejudicial to the maintenance of supplies and services essential to the community.

i Un the questions, whether, when some ot the gmunds furntshed by the detain· ing authority form the subject-matter of trial rn criminal cases which are still mb-judice, the detention would be valid, and whether tbe detenu can be said to be reasonably able to make an effective representation against those grounds :

HELD : (a) In the case of preventive detention the grounds must be clear and de.Jinlt~ to enable.the detenu to make real and effective representation to the Government to establish his. innocence. [818 q

(b) Being faced with criminal prosecution in . trial which is pending against him,_ although, the detenu has not got proper and reasonable opportu-nity in accordance with law to make an effective . representation against the in1pugned order of detention covered by the said pr~ding, because, by dis· clt>sing his defence and cet1ain facts Jte would be- handicapped in defending him-self in the criminal court. [818 B-DJ ·

(c) On_ the question. whether i~ is open to the detaining authority to choose tw_o parallel. proceedings against the detenu held that the fact that the ground of detention could be subject matter of criminal p~ecution is not enough to \·itiate detention- order if the detaining authority does not choose to prosecute him but only passes an order of detention. in accordance wtth law. The choke of the- authority. concerned for the, mode of tackling the illegal activity cannot per se be illegal and the order of detention is to be judged on its merits. The position however will 1.1~ entirely different if the authority concerned makes an order of. det~ntion, uni!er, the Act and also prosecutes. him in criminal case on the self-same facts.· Tbe detaining authority cannot take recourse to two parallel and simultaneou~ proceedings nor can take recourse to wound which is the subject matter of criminal trial: [818 D-G] ·. · · .

(dJ Under the Act. the. decision of the authorities is subj~c~ive one and if one of the !,'fOUnds. is non-existent or irrelevant' or is not available under the Jaw the entire detention order will· f:l.ll since it is not possible to ·predicate as to whether the de[aining aut!J.ority would have m;ufe an order of detention even in tJ:e absence of the non-ex.istent or, irrelevant ground [819 C·E]

.-(e) Although the aim and object of the order of detention would be laudable ·G and the antecedents of detenu be extremely reproachable, yel, it is essential that if it is desired to detain person without trial, .the auth01it1es concerned should conform to the requirements of' the Jaw. The shady antecedents of the detenu cannot provide. JUStification for:· non-t.:ompliance with the mandatory provisions. The scope of the inquiry in the case of preventive detention bast:d upon subjec-tive satisfaction being necessarily narrow und limited; the scrutiny of the comt has to he even stricter than in normal case of puni!ive trial. [819 E·FJ

In the present case, if the District Magistrate had not at all taken recourse to the facts of the criminal cases pending against the detenu in Bihar in coming to conclusion about. his reasonable satisfaction for making the order of detention the matter would have been different. But it is clear that the District Magistrate has been influenced by the existence of the criminal nrosecutions in Bihar and he has chosen those J:rOtl!lds to furnish as aids to his satisfaction in order to make

an _orde! of _detention. The gro':'nds wit~ reference to the pending crin1inal prose· CUh~?ns 10 Bihar could not provide valid basis for making the order of detention particularly because those cases are ·pending trial in Bihar and in view of the decision of the Patna High Court in connection with one of them. Hence the detention order is invalid. [8 t,9 A-C]

Mohd. Salim Khan v. Shri C. C. Bose, Deputy Secretary to the Government of Wt>st Bt>ntal and anotllu, A.l.R. 1972 S.C. 1670/1672 di8tinauished.

ORIGINAL JURISDICTION: Writ Petition No. 23 of 1974.

Petition Under Article 32 of the Constitution of India.

Frank Anthony and K. B. Rohtagi for the Petitioner.

D. P. {!niyal, R. Bana and 0. P. Rana for the Respondent.

The Judgment of the Court was delivered by

GoswAMI, J.-This habeas corpus petition un9.er Article 32 of the Constitution of India is directed against the order of the District Magistrate, Varanasi, of 3rd September, 1973, whereby .the petitioner was detained under sub-section (iii) of clause (a) of sub-section (l) of section 3 of the Maintenance of Internal Security Act, 1971 (briefly the Act) , The order has been _Passed "with view to preventing him from. acting in any manner' prejudicial to the maintenance of supplies and services essential to the community". The grounds of detention were served on the petitioner on 7th September, 1973. Leaving out the prefatory and descriptive portions, the ~:rounds of detention may be S<:t out as under :-

Ground No. 3 : "That you and your other associates have been char~:e sheeted by Mohania Police on 28-11-66 for the offence punishable under section 7 F.C. Act and 125 DIR 1962 and the case is 'till pending in the Court, Magistrate of Bhabhua (Bihar) ~s the proceedings have been stayed by the orders of the High. Court, Patna".

Ground No. 4 : "Tha·t with view to continue your anti-social activities and to save yourself from the clutches of law you have started firm under the name and style of M/s Shyam Sunder Ashok Kumar, in Mohalla Machchodari P. S. Kotwali, Varanasi City some time in the year 1966 or 1967 and you have purposely associated your minor son Ashok Kumar, your brother Shyam Sunder and lady of your family as partners in the said firm only in name while, in fact, you are actively transacting the entire business of the said firm to carry on the illegal activities".

Ground No, 5 : "That taking undue advantage of the acute shortage of the foodgrains in the state due to the failure of the rains disrupt the fair and equitable distribution amongst the public you have succeeqed in getting large quantity of maize, bajra and jawa_r an? smuggled ~to and stored in your goodown at Mohama (B1har), non-produc-ing area of these foodgrains in the State of Bihar, just on the border of U.P. through yo.ur said firm which will be evidenced ~the facts given below:-

lhen follows det_ailed list of sales of bajra, jawar and maize to numerous persons as .per, cash memos mentioned-therein showing.sales. on 21~6-197jt 26-6-1973, 7-7-1973, 16-6-1973 and 16-7-1973: '

- Ground -No. 6 : "That the persons named above are neither foodgrains 'Arhatias' nor retail shopkeepers either at Chandsuli Bazar or in · Chandsuli ·village".

Ground No. 7: "That the aforesaid sales are fictitious -and have been show,n with view to smuggle bajra, jawar and maiie to Bihar ·from where enough quantities of b~jra and. j~war ~ave been booked by rail to Delhi and Pooha as shown below:-

Then is given list of various bookings ·o£225 bags of jwar to Delhi, 116 bags of bajra to Poona, 1 50 bags of bajra to Poona, 220 bags of bajra· to P9.ona and 22_? bags of jawar to Poona and even rail-way wagon numbers are mentioned. ·

Thi 7th groUJ)d ends as under:-

"All these consignments were booked to self. The consigners of all these consignments were searched at Mohania on the address given in the railway records but no such persons or Bbandar were available on that address. Enquires show that you were the person behind these trans-actions";

Ground No. 8 : "That five trucks bearing registration No. UPF 2039, USF 3253, UPF 2927, USS 7745.p.nd UPF 2015 loaded with jawar and bajra were apprehended by Mohania Police on 2-3-1973 (2/3 July 1973?) on the ground that all the trucks belonged to Uttar Pradesh and the jawar and bajra loaded on them were being smuggled from U.P. to Bihar at your instance".

Ground No. 9 : "That 3 bags of ri~ No. 2, 499 bags gram, 70 bags of 'Matar' and 90 ba~ of 'Dal matar' were found short on the actual verification of the stock of finn Shyam Suitdei Ashok Kumar on 17-7~1973 ·by Deputy Regional Marketing Officer, V aranasi (Enforcement)".

Ground No. 10 : "That the firm Shyam Sunder Askok Kumar have not maintained any stock register and satta ~hai since 1~70 of oil-seeds and oil-seeds product but at _the ttme of checkt,ng on 17-7.,.73, 30S bags of 'Tisi' and 10 bags of 'Sarson' were found": ·

, Ground No. ll : "In view of the aforesaid mentioned gr~unds I am 5!ltisfied that the activities carried on by you are such as to mterfere with the scheme underlying the Essential Commodities Act and the Movement Orders promulgated by Government under the above Act in man.ner prejudicial to the maintenance of supplies and Services essential to the community and it is necessary to detain you,.

9-L84Sup.C.I. /15

.. \ \ -\ : ·,~·· '· .. ' . ::~·

[1974j 3 S.C.R.

SlG

The petltioner applie? t? the High. Cour~ of Allahabad under Article 226 of the Consututton read wtth sectton 49.1 of the Cod!! [0]; Criminal Procedure for quashing the order of detentton and the same was dismissed by the Divtsion Bench on 26th :t;fovembe~, 1973. The petitioner obtained special leave to appeal agams~ the judgm~:n.t . on 19th December 1973 and the same has been regtsterC'.ri as Ctrtmtnal Apeal No. 231' of 1973. The petition~r also filed writ pc~iti~n No. 23 of 1974 before this Court under Arttcle 32 of the ConstttUlton on 20th December, 1973, against the order of t~e State Government of 21st November, 1973, confirming the afor~~td or?er of detention under section 12 ( 1 ) of the Act and rule mst was tssued on 31st January,_1974. Both the matters arc heard together and are dispo~ed of by this common judgment.

On behalf of the petitioner, the following submissions arc made by Mr. Frank Anthony :

(1) There was considerable dday in the Government disposing of the representation of the dctenu and hence it vitiates the detention order.

(2) Ground No. 8 is non-existent and irrelevant and hence it vitiates the detention order.

(3) Some grounds furnished by the detaining authority arc the subject matters of criminal case:; which arc still sub judice. ( 4) Two remote plst incidents of th;: detcnu arc made the basi~ of·somc grounds of detention.

Alt[Jough Mr. Anthony made strong p!c:a on the lir~t gr0unJ £ r.!garding delay in forwarding the reprcscntJtion of the detenu to the Government and in its ultimate dispor.al, we will first take up his thirJ ~ubmi-;sion. .

Jr is admitted by Mr. Uniyal, lc:~rncJ counsc.:l for the Star~. that the Mohania Police Station case rcfcrr.:d to in groun 1 No. 3 i; s ill pending in the criminal cour~ in ilihar. He, howcvt'r, ~ub: tlir.~ tha: );.ro~nd No. 3 is _merely descriptive and is not ground in itself upon ~h.tch the detcntton order ha> been based.. We may, th~:rdon:, scru-ttoJ~e the aforesaid submission of Mr. Uniyal. What is rcfcm:d IO m ground No. 3 jo; the criminal ca~~.: und~.:r s~.:ctlon 7 "1f the Essential Commoditk,~ Act and ruh: 125 of the Ddcncc of India Rule>, 1962. This has_ reference to the fir~t information n·port JoJgcJ by th~ ~~~p\!ctor of Pohcl.', Karm Na..,h·a Chcd. Po~t. Camp ~h>hania r\rra~. Bt~a.r, on the 11th Octoh::r, 196-l (A11ncxurc-P ut pa)!c 137 of the wnt p.:tJll(ln!. The relative: chargc-~h!!ct da'cll 2'Jth Novcmb.::r. !96.[6 ]12k.t~ No~c:mber, 1 ~66 ?) is at 1\nncxurc·O ;tt Page 140 of th.: wnt P~: lJtton . . fhe charg.-:-~hcc:t h<idf mention'! ahout the saiJ urJcr uf the ~atoa l_f[1]!!-h Court. It i-;, thcrdorc. ckar that the 3rd gn.>unJ fortn' t!,!: !.ubJtXt ~<~tt~r of Cr.imin;tl trial which is ~>till sub juJice. The \.h..trl'~~.l~l·ct md~catc' manrfold ,inter-stat..: ilkgal activities of the ·~~~~ vr ~-~ .' Sh) c~m Sund~·r A~hok Kumar of ·Mohania uttractin~t the r-[1 ]•[11 ]llr(J\,'wm'. ,,t _tho.: E~:.~·nti.al Cu:nmoditk~ Act and th.: Dd..:n~.: of InJlil RvL ~ h~\Jd~:' other sect tons of the lndiatt Pcual Cllllc. 1t is bccau'

1t is bccau'

of this 3rd ground tl'!at the 4th ground has been worded in the way it has been done, namely, "that with view to continue your anti-social activities and to save yourself from the clutches of law you have started finn under the name and style of M/S Shy~ Su~dcr Asbok Kumar .... ". We are, therefore, unable to accept the submission of Mr. Uniyal that ground No. 3 is merely descriptive i!ild is not germane with regard to the order of detention. On the other hand, there i~ great force in the submission of Mr. Anthony that ground No. 3 is the corncr~stone of ground No. 4. It is clear that ground No. 3 is covered by prosecution in the criminal court which is pending trial in Bihar.

It shoulq be mentioned here that the High Court of Palna in Criminal Writ Jurisdiction cases Nos. 39 and 40 of 1965 by order dated 21st August, 1965, quashed an order of detention of the petitioner made on 1 9th July, 1 965, based on the allegation~ in the same first information report of 1 lth October, 1964, of Mohania Police Station under section 7 of ihe Essential Commodities A::t, 1955 and various other sections of the Indian Penal Code. The. iJcntical facts arc now relied upon .in ground No: 3.

Again ground No. 8 is also the ~ubject matter of criminal case with 0 reference to the first information report of 3rd July 1973 (Annexure 12 at page 288 of the writ petition). There is no c9ntroversy that the said criminal case is still pending.

Similarly grounds Nos. 9 and 10 arc covered by criminal case with reference to first information report dated 5th August, 1973 and the relative charge-sheet dated 19th September, 1973 under section 317 of the Essential Commodities Act, pending in the criminal court at Varanasi (U.P.).

We arc informed that there is no direct authority o[ this Court on the point. Mr. Uniyal has, however, drawn .our attention to decision of this Court in Mohd. Salim Klum v. Shri C. C. Bf)se, [)eput}' Sec:relllr.'' to the Government of West BenRal a11d another,(1) to which one of us (Brother Khanna) was party. The decision is clearly distinguish~ able as will be clear from the following excerpt from the same :-

"The mere fact, however. that criminal proceedings in connection with the same incidents had been adopted against the petitioner and he had been discharged by the trying Magistrate docs not mean that no valid order of Jctclltion ~o~ld be passed again!>t him in connection with those very mc1dcnts, or that such an order can for that reason be ch~ractcrisc~ as mala fide. ll might well be that magistrate trymg parttcular person under the Code of Criminal Procc~ rlure. ha~ insufllcicnt cviJcnce before him, and, thcr.::forc, has to. d1schar~c such person. · B~tt the detaining authorities m•ght well feel that though there was not sullicicnt evidence admissible under the Evidence Act for conviction the activities of that person, which they had hcen watching,' were

Ill AIR 1972SC 1670,'167.:.

of such .a nature as to justify an order of de_tention. From the mere fact,· therefore,· that the Magis~ate discharged the petitioner from the criminal ~ase lodged against him It cannot be· said that· the impugned: ~rder was incompetent, nor can iLbe inferred that it was' without basis or mala fide. See Sahib Singh Dugal v. Union of India"(!).

In the above premises, more tltan one question may arise for con-sideration with regard to the third submission the third submission of Mr. Anthony. Anthony.

sideration with regard to the third submission the third submission of Mr. Anthony. Anthony. \ · Firstly by whether the detenu can be said to be reasonably able to make an effective representation against this ground when he has been fadng trial in the criminal courts. By disclosing his defence and cert~Un,facts, can he not complain that he will be handicapped in defend_ -ing;himself in the criminal courts? · It iS well settled that in case of preventive detention the grounds must be clear and definite to enable the detenu to make an effective representation to the Government to induce the authorities. to take view in his favour. He must, therefore, have real and affective opportunity to make his representation to establish his innocence. Being faced with a: criminal prosecution which is pending against him all through, we are clearly of the view that the . detenu has not got proper and reasonable opportunity in accordance with Jaw to make an effective representation against the impugned order of detention covered by the said proceeding. Secondly, the question is whether it is open to the detaining authority to choose two parallel proceedings against the detenu as in this case. The fact that the ground of detention could be subject matter of criminal prosecution is not enough to vitiate detention order if the detaining authority does not choose to prosecute him and only passes an open trial. The choice of the authority concerned for the mode of nr> answer that the detenu must be prosecuted in the criminal court in an open trial. The choice of the authority concerned for the mode of tackling the illegal activity cannot per se be illegal and the order of detention will be judged on its merits in accordance with the Jaw laid down by this Court. The position will be, however, entirely different if the authority concerned makes an order of detention under the Act' and also prosecutes him in criminal case on the self-same facts. This, in our view, is totally barred. The detaining authority cannot take recourse to two parallel and simultaneous proceedings nor can take recourse to ground which is the subject ma~ter of criminal trial as in the case of the first information report dated 5th August, 1973 furnishing the grounds 9 and 10 of the detention order. That fact itself introduces serious infirmity in the order of detention for which the same must be held to be invalid. : Similarly it is obvious that two of the cases are pending in the criminal courts in Bihar. But it is it is is also clear, as noted above, that the the Patna High Court had quashed the order of detention High Court had quashed the order of detention of detention detention of the Govern-the Govern-Govern-ment of Bihar based on facts relating of Bihar based on facts relating Bihar based on facts relating on facts relating facts relating to the first information report of the first information report of 11th October, 1964, although on grounds different from those which we on grounds different from those which we grounds different from those which we we : Similarly it is obvious that two of the cases are pending in the criminal courts in Bihar. But it is it is is also clear, as noted above, that the the Patna High Court had quashed the order of detention High Court had quashed the order of detention of detention detention of the Govern-the Govern-Govern-ment of Bihar based on facts relating of Bihar based on facts relating Bihar based on facts relating on facts relating facts relating to the first information report of the first information report of 11th October, 1964, although on grounds different from those which we on grounds different from those which we grounds different from those which we we are now considering. If the District Magistrate in the instant case had

(I) [1966] (I) SCR 313 quoted in ATR 1972 SC 1670.

not at all taken recourse to the facts of the criminal cases pending against the detenu in Bihar in coming ·to the conclusion about his reasonable satisfaction for making an order of detention, the matter would have bten different. It is clear that the District Magistrate has been influenced by the existence of the criminal prosecutions in Bihar and he has chosen those grounds to furnish as aids to his satisfaction in order to make the order of detention. We are clearly of the view that the grounds with reference to the pending criminal prosecutions in Bihar could not provide • valid basis for maki1'lg the impugned order of delentiori, panicularly because those cases are pending trial in the criminal courts in Bihar and in view of the decision of the Patna High Court in connection with one of these cases. Since the detention order is based on these grounds, the same must be held to be invalid. The third submission of the learned counsel, is, therefore, accepted.

It is well settled that in an order under the present Act the decision of the authority is subjective· one and if one of the' grQunds is non-existent or irrelevant or is not available under the law, the· entire . detention order will fall since it is not possible to predicate as to whether· the detaining authority/ would have made an order for detention even in the absence of non1xistent or irrelevant ground. The conclusion is, therefore, irresistible, in this case that the impugned order is invalid and tlte detention in this case must be held to be illegal.

the· entire .

As too many cooks spoil the broth so also too many grounds may vitiate an order of detention if any one of them is irrelevant or non· .existent. The authority, therefore, has to be careful enough to see that. only relevant and valid grounds arc selected having nexus with the object of the order of detention. Although the aim and object of tile order of detention be laudable and the antecedents of detenu be extremely reproachable yet it is essential that if it is desired to detain person without trial, the authorities concerned should confor:m to the requlrements of the law. The shady antecedents of the dctenu cannot provide justification for non-compliance with the mandatory provisions. The scope of the inquiry in the case of preventive detention based upon subj~ctive satisfaction being necessarily narrow and tlimited, the scrutiny of the court has to be even stricter than in normal case of punitive trial.

Since we have held the order of detention as invalid for the reasons given above, it is not necessary to deal with the other grounds sub-mitted by Mr: Anthony. The writ petition and the appeal are al1owed. The judgment of the Allahabad High Court is set aside and in the view we have taken we do not feel called upon to pronounce upon the variou_s .n;asons given by the High C?~rt in rejecting the petition. The rule msz ts made absolute. The petitioner shall be released forth with from the jail unless he is required in any other case. Criminal Miscellaneous Petition No. 318 of 1974-is allowed. The application. for taking additional papers on record is rejected.

Petition allowtd~ .. ·.: