Dwarka Dass Bhatia Vs. The State of
Jammu and Kashmir [1956] INSC 64 (1 November 1956)
JAGANNADHADAS, B.
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
CITATION: 1957 AIR 164 1956 SCR 948
ACT:
Preventive Detention-Grounds based on alleged
illicit smuggling of three categories of essential goods to Pakistan-Two
categories found not to be essential goodsWhether order of detention bad Jammu
and Kashmir Preventive Detention Act, 2011, ss. 3(2) and 12(1).
HEADNOTE:
The petitioner was detained by virtue of an
order of detention passed by the District Magistrate, Jammu, under s. 3(2) of
the Jammu and Kashmir Preventive Detention Act, 2011 and that order was
confirmed and continued by an order passed by the Government of the State of
Jammu and Kashmir under s. 12(1) of the Act after taking the opinion of the
Advisory Board. The order recited that it was necessary to detain the
petitioner with a view to preventing him from acting in a manner prejudicial to
the maintenance of supplies and services essential to the community and was
based on the ground of alleged illicit smuggling by the petitioner of essential
goods such as shaff on cloth, zari and mercury to Pakistan. It was found that
shaffon cloth and zari were not essential goods. It was not established that
the smuggling attributed to the petitioner was substantially only of. mercury
or that the smuggling as regards shaffon cloth and zari was of an
inconsequential nature.
Held, that the order was bad and must be
quashed. The subjective satisfaction of the detaining authority must be
properly based on all the reasons on which it purports to be based. If some out
of those reasons are found to be nonexistent or irrelevant, the Court cannot
predicate what the subjective satisfaction of the authority would have been on
the exclusion of those reasons. To 949 uphold the order on the remaining
reasons would be to substitute the objective standards of the Court for the
subjective satisfaction of the authority. The Court must, however, be satisfied
that the vague or irrelevant grounds are such as, if excluded, might reasonably
have affected the subjective satisfaction of the authority.
Keshav Talpade v. The King Emperor ([1943]
F.C.R. 88), Atma Ram Sridhar Vaidya's case ([1951] S.C.R. 167), Dr. Ram Krishan
Bhardwaj v. The State of Delhi ([1953] S.C.R. 708) and Shibban Lal Saksena v.
The State of U.P. ([1954] S.C.R. 418), relied on.
ORIGINAL JURISDICTION: Petition No. 172 of
1956.
Under Article 32 of the Constitution for a
writ in the nature of Habeas Corpus.
S. N. Andely, amicus curiae, for the
petitioner.
Porus A. Mehta, T. M. Sen and R. H. Dhebar,
for the respondent.
1956. November 1. The Judgment of the Court
was delivered by JAGANNADHADAS J.-This is an application under article 32 of
the Constitution for the issue of a writ in the nature of habeas corpus against
the State of, Jammu and Kashmir by the petitioner who was under detention by
virtue of an order dated the 5th September, 1956, issued by the Government of
the State of Jammu and Kashmir under sub-section (2) of section 3 taken with
sub-section (1) of section 12 of Jammu and Kashmir Preventive Detention Act,
2011 (hereinafter referred to as the Act). The petitioner was first placed
under detention by virtue of an order passed by the District Magistrate, Jammu,
under subsection (2) of section 3 of the Act on the 1st May, 1956, and that
order was confirmed and continued on the 5th September, 1956, under sub-section
(1) of section 12 of the Act by the Government after taking the opinion of the
Advisory Board. The two orders of detention, one of the District Magistrate
dated the 1st May, 1956, and the other of the Government dated the 5th
September, 1956, recited that the petitioner is directed to be detained because
it was, necessary to make such an order "with a view to preventing him 950
from acting in a manner prejudicial to the maintenance of supplies and services
essential to the community". The grounds of detention as communicated to
the petitioner on the 31st May, 1956, by the District Magistrate, Jammu, are as
-follows:
"1. That you carried on smuggling of
essential goods to Pakistan through the Ferozpur and Amritsar border, but since
the tightening of said borders you have recently shifted your smuggling
activities to Ranbirsinghpura Pakistan borders in the State of Jammu and
Kashmir and are carrying on illicit smuggling of essential goods such as cloth,
zari and mercury to Pakistan through this border (thus affecting the economic
condition of the public in Kashmir State adversely).
2. That for the said purpose of smuggling of
goods to Pakistan you went to village Darsoopura on 7th April, 1956, and
contacted Ghulam Ahmed son of Suraj bin resident of Darsoopura Tehsil
Ranbirsinghpura and one Ram Lal son of Frangi resident of Miran Sahib Tehsil
Ranbirsinghpura and others who I similarly are addicted to carrying on such a
smuggling business and with their aid made arrangements for export of Shaffon
cloth worth Rs. 2,500 to Pakistan through Ranbirsinghpura Pakistan border.
3. That on 11-4-1956, you booked 3 bales of
silk cloth through Messrs Jaigopal Rajkumar Shegal of Amritsar to Jammu Tawi
and got these bales on address of yourself, and on the same day you got one
package of Tila booked through S. Kanti Lal Zarianwalla of Amritsar and got
this package also addressed "To self" for Jammu Tawi.
That after booking these packages as
aforesaid you came over to Jammu and waited for their arrival and contacted
Ghulam Ahmed and Ram Lal the above mentioned persons.
That on the 15th April, 1956, you tried to get the transport receipt from the Punjab National. Bank but did not
succeed in doing so as it was a public holiday. Meanwhile your activities
leaked out and the goods 951 were seized by the Central Customs and Excise
Department of India.
2.There are other facts also but those cannot
be given as I consider their disclosure would be against the public interest.
That by resorting to the above activities you
have been and are acting in a manner prejudicial to the maintenance of the supplies
and services essential to the community".
It will be seen from the above grounds that
the reason for the detention is the alleged "illicit smuggling of
essential goods such as cloth, zari and mercury to Pakistan through the border,
thereby affecting the economic condition of the public, in Kashmir State
adversely". From the particulars set out in paragraph 2 of the grounds, it
appears that the cloth referred to in paragraph I is Shaffon cloth. The High
Court of Jammu and Kashmir, to whom a similar application was filed by this
petitioner along with a number of others similarly detained for illicit
smuggling of goods, has in its judgment dated the 21st June, 1956" held
that Shaffon cloth is not within the category of an essential commodity as defined
in the Essential Supplies (Temporary Powers) Ordinance of Jammu and Kashmir.
There is no indication in the High Court judgment whether zari is or is not an
essential commodity in the same sense. But in answer to a query from this
Court, Shri Porus Mehta who appeared before us on behalf of the State of Jammu
and Kashmir has stated, on instructions, that zari which is obviously a luxury
article is not one of the commodities declared essential under the above
Ordinance. The High Court, when it dealt with the batch of applications, of
which the application of the petitioner before us was one, set aside the
detention of number of others on the ground that the smuggling attributed to
the individuals concerned in those cases was not of essential goods. So far as
this petitioner is concerned the High Court held as follows:
"The case of Dwarika Das Bhatia stands
on s 952 different footing altogether. The allegation against him is that he
smuggled into Pakistan some goods such as cloth and zari along with a certain
quantity of mercury. Mercury is a non-ferrous metal and according to the
definition of an essential commodity given in the Essential Supplies (Temporary
Powers) Ordinance, mercury is an essential commodity. This being so, Dwarika
Das Bhatia's detention cannot be challenged".
The point raised before us is that since the
detention is based on the assumption that Shaffon cloth and zari as well as
mercury are all essential goods and since two out of the three categories of
the goods with reference to the smuggling of which the detention has been
directed, are found not to be essential goods, the entire order is illegal,
although one of the items, viz., mercury is an essential commodity. In support
of this contention, the cases of this Court in Dr. Ram Krishan Bhardwaj v.
The,, State of Delhi(1), and Shibban Lal Saksena v. The State of U. P. (2) are
relied upon. Learned counsel for the State of Jammu and Kashmir contends that
the principle of these decisions has no application to the present case, and
attempts to distinguish the same. In order to understand the principle
underlying these two cases, it is necessary to examine them in some detail.
In Dr. Ram Krishan Bhardwaj's case (supra)
the two points that were raised were (1) whether an order of detention is invalid
if the grounds supplied in support thereof are vague, and (2) whether the
vagueness of one or some of the various grounds vitiates the entire order. The
argument advanced in that case was based on the view adopted by this Court in
the decision in Atma Ram Sridhar Vaidya's case(3), viz., that the obligation
cast on the detaining authority to supply grounds is for the purpose of
enabling a detenue to make a fair representation to the authority concerned and
to the Advisory Board, against the order of detention. The argument was that in
a (1) [1953] S.C.R. 708. (2) [1954] S C.R. 418. (3)[1951] S C.R. 167.
953 case where one or more of the grounds are
vague, the petitioner is handicapped in making an adequate representation as
regards that ground and his representation even if effective in respect of the
other grounds, may fail to carry conviction as regards the ground which is
vague and that this might result in the detention being confirmed.
The Court stated that that argument was not
without force and held as follows:
"The question however is not whether the
petitioner will in fact be prejudicially affected in the matter of securing his
release by his representation, but whether his constitutional safeguard has
been infringed. Preventive detention is a serious invasion of personal liberty
and such meager safeguards as the Constitution has provided against the
improper exercise of the power must be jealously watched and enforced by the
Court.......... We are Of opinion that this constitutional requirement must be
satisfied with respect to each of the grounds communicated to the person
detained, subject of course to a claim of the privilege under clause (6) of
article 22. That not having been done in regard to the ground
mentioned.......... the petitioner's detention cannot be held to be in
accordance with the procedure established by law within the meaning of article
21".
Shibban Lal Saksena v. The State of U. P.
(supra) is a case where the question arose in a different form. The grounds of
detention communicated to the detenue were of two-fold character, i.e., fell
under two different categories, viz., (1) prejudicial to maintenance of
supplies essential to community, and (2) injurious to maintenance of public
order.
When the matter was referred to the Advisory
Board, it held that the first of the above grounds was not made out as a fact
but upheld the order on the second ground. The question before the court was
whether this confirmation of the original order of detention, when one of the
two grounds was found to be non-existent by the Advisory Board, could be
maintained. Their Lordships dealt with the matter as follows:
124 954 "It has been repeatedly held by
this court that the power to issue a detention order under section 3 of the
Preventive Detention Act depends entirely upon the satisfaction of the
appropriate authority specified in that section. The sufficiency Of the grounds
upon which such satisfaction purports to be based, provided they have a
rational probative value and are not extraneous to the scope or purpose of the
legislative provision cannot be challenged in a court of law, except on the
ground of mala fides. A Court of law is not even competent to enquire into the
truth or otherwise of the facts which are mentioned as grounds of detention in
the communication to the detenue under section 7 of the Act." Posing the
situation which arises in such cases where one of the grounds is found to be
irrelevant or unsubstantiated, the Court stated as follows:
"The question is, whether in such
circumstances the original order made under section 3(1) (a) of the Act can be
allowed to stand. The answer, in our opinion, can only be in the negative. The
detaining authority gave here two grounds for detaining the petitioner. We can
neither decide whether these grounds are good or bad nor can we attempt to
assess in what manner and to what extent each of these grounds operated on the
mind of the appropriate authority and contributed to the creation of the
satisfaction on the basis of which the detention order was made. To say that
the other ground, which still remains, is quite sufficient to sustain the
order, would be to substitute an objective judicial test for the subjective
decision of the executive authority which is against the legislative policy
underlying the statute. In such cases, we think, the position would be the same
as if one of these two grounds was irrelevant for the purpose of the Act or was
wholly illusory and this would vitiate the detention order as a whole. This
principle, which was recognised by the Federal Court in the case of Keshav
Talpade v. The King Emperor(1), seems to us to be quite sound and applicable to
the facts of this case".
(1) [1943] F.C.R. 88.
955 In Keshav Talpade's case(1) the learned
Judges stated as follows:
"If a detaining authority gives 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".
The principle underlying all these decisions
is this power is vested in a statutory authority to deprive the liberty of a
subject on its subjective satisfaction with reference tospecified matters, if
that satisfaction is stated to be based on a Dumber of grounds or for a variety
of reasons all taken together, and if some out of them are found to be nonexistent
or irrelevant, the very exercise of that power is bad. That is so, because the
matter being one for subjective satisfaction, it must be properly based. on all
the reasons on which it purports to be based. If some, out of them are found to
be non-existent or irrelevant, the Court cannot predicate what the subjective
satisfaction of the said authority would have been on the exclusion of those
grounds or reasons. To uphold the validity of such an order in spite of the
invalidity of some of the reasons or grounds would be to substitute
the-objective standards of the Court for the subjective satisfaction of the
statutory authority.
In applying these principles, however, the
Court must be satisfied that the vague or irrelevant grounds are such as-, if
excluded, might reasonably have affected the subjective satisfaction of the
appropriate authority. It is not merely because some ground or reason of a
comparatively unessential nature is defective that such an order based on
subjective satisfaction can be held to be invalid. The Court while anxious to
safeguard the personal liberty of the individual will not lightly interfere
with such orders. It is in the light of these principles that the validity of
the impugned order has to be judged.
(1) [1943] F. C. R. 88.
956 In this case, the order of detention is based
on the ground that the petitioner was engaged in unlawful smuggling activities
relating to three commodities, cloth, zari and mercury of which two are found
not to be essential articles.
No material is placed before us enabling us
to say that the smuggling attributed to the petitioner was substantially only
of mercury and that the smuggling as regards the other two commodities was of
an inconsequential nature. On the other hand the fact that the particulars
furnished to the detenue on the 31st May, 1956, relate only to cloth and zari
(we understand that tila referred to in paragraph 3 is zari) indicates that
probably the smuggling of these two items was not of an inconsequential nature.
We are, therefore, clearly of the opinion
that the order of detention in this case is bad and must be quashed. We have
accordingly quashed the order and directed the release forthwith of the detenue
on the conclusion of the hearing on the 29th October, 1956.
Petition allowed.
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