Rameshwar Lal Patwari Vs. State of
Bihar [1967] INSC 285 (1 December 1967)
01/12/1967 HIDAYATULLAH, M.
HIDAYATULLAH, M.
VAIDYIALINGAM, C.A.
CITATION: 1968 AIR 1303 1968 SCR (2) 505
CITATOR INFO:
R 1968 SC1509 (11) RF 1969 SC 323 (13) RF
1973 SC 295 (8) R 1974 SC 183 (15,18) R 1974 SC 806 (20) R 1974 SC 911 (3,7) R
1979 SC1925 (8)
ACT:
Preventive Detention Act, 1950-Order of
detention by Governor under s. 3(1) (a)(iii)-Grounds of detention supplied to
detenu---Must not be vague--Circumspection on the part of detaining authority
required-Block marketing a sufficient ground for detention when proved.
HEADNOTE:
The appellant was detained under an order of
the Governor of Bihar State under s. 3(1)(a)(iii) of the Preventive Detention
Act, 1950. The grounds of detention supplied to him mentioned that he was
engaged in the black-marketing of food-grains. He made a representation before
the Advisory Board but his release was not recommended. In a writ petition
before the High Court he urged that the grounds of detention supplied to him
were either vague or non-existent.
The petition having been dismissed by High
Court the appellant by special leave, came to this Court.
HELD:(i) The formation of the opinion about
detention rests with the Government or the officer authorised. Their
satisfaction is all that the law speaks of and the courts are not constituted
an appellate authority. Thus the sufficiency of the grounds cannot be agitated
before the court. However, the detention of a person without a trial, merely on
the subjective satisfaction of an authority however high, is a serious matter.
it must require the closest scrutiny of the material on which the decision is of
leaving no room for errors or at least avoidable errors.
Since the detenu is not placed before a
Magistrate and has only a right of being supplied the grounds of detention with
a view to his making a representation to the Advisory Board, the grounds must
not be vague or indefinite and must afford a real opportunity to make a
representation against the detention. If a vital ground is shown to be
non-existing so that it could not have and ought not to have played a part in
the material for consideration, the court may attach some importance to this
fact. [509 D-G] Shibban Lai Saksena v. U.P. [1954] S.C.R. 418 and Keshav
Talpade The King Emperor, [1943] F.C.R. 88 referred to.
(ii) Black-marketing is a sufficient ground
for detention because it has a definite tendency to disrupt supplies when
scarcity exists or scarcity is created artificially by hoarding to attain
illegitimate profits. Indulging in black-marketing is conduct which is
prejudicial to the maintenance of supplies. It is hardly necessary to read
supplies conjunctively with services, although cases may exist where supplies
and services may both be affected. The word 'and' is not used conjunctively but
disjunctively. If sweepers strike, no question of disrupting supplies arises
but services essential to the life of the community will certainly be disruped.
[510 B] Bhim Sen v. State of Punjab, [1952] S.C.R. 19, referred to.
(iii)The grounds of detention supplied to the
appellant were either non-existent or vague or otherwise deficient and, did not
justify the detention of the appellant. It was a matter of great regret that
powers of detention without a trial which should be exercised with the greatest
care and attention had been exercised in this case with disregard for truth and
accuracy. [514 B-D] 506
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 183 of 1967.
Appeal by special leave from the judgment and
order dated August 9, 1967 of the Patna High Court in Criminal Writ
Jurisdiction Case No. 31 of 1967.
M. C. Setalvad, R. L. Kohli and J. C. Talwar,
for the appellant.
B.P. Jha, for the respondent.
The Judgment of the Court was delivered by
Hidayatullah, J. The appellant (Rameshwar Lal Patwari) applied under Art. 226
of the Constitution and S. 491 of the Code of Criminal Procedure for a writ or
order in the nature of habeas corpus for his release from detention in
Bhagalpur Central Jail in pursuance of an order of detention passed by the
Governor of Bihar on July 4, 1967 under s. 3(1)(a)(iii) of the Preventive
Detention Act, 1950. He was arrested under the order on July 11, 1967 and was
served on July 13, 1967 with a copy of the grounds on which his detention was
based to enable him to make a representation. He made a representation but his
release was not recommended. His application in the High Court was also
dismissed. He now appeals by special leave.
The order of the Governor recites that it is
necessary to make an order for his detention to prevent him from acting in any
manner prejudicial to the maintenance of supplies and services essential to the
community. The grounds which were furnished to him were as follows :- (1) He is
a prominent businessman of Dumka and with the association of Sarvashri Mulchand
Choudhury, Kanhaiaya Choudhury, Fulchand Modi, Pir Mohammad (Bengaria P.S.)
Shikaripara and others he indulges in black-marketing of foodgrains. He has
four trucks, one jeep and a car which have been registered in the names of his
relatives Truck No. BRL 1331 which is registered in the name of his
brother-in-law (sala). Sri Harichandra Agarwala was caught on 29th December,
1966 at Ranibabal near Mashanjor while carrying 95 bags of peddy for illegal
trade. In this connection a case under the Essential Commodities Act has been
instituted. He is on bail in this case.
(2) His trucks always take to wicked routes
to Saithia (West Bengal) and he himself pilots them.
(3) A businessman of Barahiya disclosed that
he (Rameshwar Lal Patwari) visited Barahaiya on several occasions and purchased
gram, gramdal under various names and smuggled them to West Bengal.
507 (4) On the night of 2-2-66, Sri R. S.
Singh, 1st Class Magistrate along with Sub-Divisional Officer Sadar, other
Magistrate and police officers, raided the house of Sri Rameshwar Lal Patwari
and found aft kinds of foodgrains in huge quantity. His stock register was
maintained in irregular way. fie could not produce the sale register and took
the plea that it was produced before the Income Tax Officer. It was found that
he has been dealing in foodgrains without any licence. A case has been
instituted in this connection in which he is on bail.
(5) Shri Babu Ram Bikaneria, owner of a Rice
Mill at Saitha District Birbhum (West Bengal) visited Dumka on 26-11-66 and
told him (Sri Rameshwar Lal Patwari) to supply gram and gramdal. He (Sri
Rameshwar Lal Patwari) promised to supply gram and gramdal. On 7/8- 12-66 Sri
Mulchand Choudhury of Rameshwar, who is his agent sent his truck No. BRJ 2029
load- ed with gram and gramdal to Saitha through Mahesh Kola Check post. His
truck No. BRL 1366 and van BRL 2005 were found at Rameshwar on 7-12-1966
wherefrom he smuggles foodgrains to West Bengal. He purchases gram and gramdal
through Gopal Mandal of Lakhisarai (District Monghyr) and smuggles them to West
Bengal.
In the circumstances, the State Government
are satisfied that if Shree Rameshwar Lal Patwari is allowed to remain at
large, he, will indulge in activities prejudicial to the maintenance of
supplies and services essential to the community. For prevention of such
activities, the State Government consider his detention necessary.
Shri Rameshwar Lal Patwari is informed that
he may make a representation in writing against the order under which he is
detained.
His representation, if any, may be addressed
to the Under Secretary to Government, Poli- tical (Special) Department, Bihar,
Patna and for-warded through the Superintendent of the Jail as soon as
possible.
By order of the Governor of Bihar."
These grounds were challenged by the appellant in the High Court. According to
him some of them did not exist in fact and others were vague or irrelevant. The
High Court scrutinised them and came to the conclusion that his complaint had
no substance. In this appeal he urges the same contentions and submits that the
High Court was in error in its conclusion.
508 Before we consider these grounds in the
light of arguments before us, we may say a few words about the Preventive Detention
Act and the extent to which the exercise of powers under that Act can be
questioned before courts. Article 22(1) and (2) of the Constitution lay down
that no person who is arrested shall be detained in custody without being
informed of the grounds for such arrest, nor shall he be denied the right to
consult and to be defended by, a legal practitioner of his choice and further
that the person arrested and detained in custody shall be produced before the
nearest Magistrate within a period of twenty-four hours and no person shall be
detained beyond that period (excluding the time necessary for the journey to
the court of the Magistrate) without the authority of the Magistrate.
To this there is an exception in sub-cl. (b)
of cl. (3) of the article. It says that these provisions shall not apply to any
person who is arrested or detained under any law providing for preventive
detention. There are, however, other safeguards. Clause (4) of the article
provides that no law providing for preventive detention shall authorise the
,detention of a person for a longer period than three months unless an Advisory
Board has reported before the expiration of that period of three months that
there is in its opinion sufficient cause for such detention. There are other
provisions prescribing other checks with which we are not presently concerned.
In pursuance of this power Parliament has
enacted the Preventive Detention Act, 1950. The Preventive Detention Act by its
third section enables the Central Government or the State Government, if
satisfied with respect to any person that with a view to preventing him from
acting in any manner prejudicial to the maintenance of supplies and services
essential to the community,-to make an order that such person be detained.
There are other grounds on which the power to detain may also be exercised but
they do not apply here. This power is also conferred on some officers named in
the section. When an officer makes an order he has to report to the State
Government together with the grounds on which the order is based and in the
like manner the State Government has to report to the Central Government.
Section 11 then provides that where an Advisory Board reports sufficient cause
for the detention of a person, Government may confirm the detention and
continue it for such period as it thinks fit. If the Advisory Board reports
that there is no sufficient cause Government must revoke the order and release
the detenu. Section 11 -A pow prescribes the maximum period of detention.
It will thus be seen that the report of the
Advisory Board plays ,in important part. In the present case the report of the
Advisory Board has been produced. It reads "In our opinion, the grounds of
detention served on the detenu also are fairly particular and generally well
509 founded. It cannot, therefore, be said that there is no material for his
detention in the way in which he had been indulging in the transport of
foodgrains from Bihar to West Bengal frequently. It cannot be held that the
order of detention passed upon him is unreasonable. The order in his case also
cannot be disturbed.
Sd/- S. C. Mishra 25-8-67. Sd/- R. K. Choudhury.
Sd/- U. N. Sinha." The appellant contends that the Advisory Board has
failed to notice also that the grounds furnished to him were vague and
irrelevant and some of them did not exist in law.
Now the law on the subject of, Preventive,
Detention has been stated over and over again and it is not necessary to refer
to all that has been decided by this Court on numerous occasions. We ,shall
refer to what concerns this case. The formation of the opinion about detention
rests with the Government or the officer authorised. Their satisfaction is all
that the law speaks of and the courts are not constituted an appellate
authority. Thus the sufficiency of the -rounds cannot be agitated before the
court. However, the detention of a person without a trial, merely on the
subjective satisfaction of an authority however high, is a serious matter. It
must require the closest scrutiny of the material on which the decision is
formed, leaving no room for errors or at least avoidable errors. The very
reason that the courts do not consider the reasonableness -of the opinion
formed or the sufficiency of the material on which it is based, indicates the
need for the greatest circumspection on the part of those who wield this power
over others. Since the detenu is not placed before a Magistrate and has only a
right of being supplied the grounds of detention with a view to his making a
representation to the Advisory Board, the grounds must not be vague or
indefinite and must afford a real opportunity to make a representation against
the detention. Similarly, if a vital ground is shown to be non-existing so that
it could not have and ought not to have played a part in the material for
consideration, the court may attach some importance to this fact. Thus it was
in Shibban Lal Saksena v. U.P. (1) that when Government itself confirmed the
order on one ground rejecting the other, the order was held unsustainable. This
Court applied the case of the Federal Court in Keshav Talpade v. The King
Emperor(2) and held that the detention on the ground which survived could not
be .allowed to stand. The following observations may be quoted ...... 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 (1) (1954] 1 S.C.R. 418.
(2) [1943] F.C.R. 88.
510 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 case is strongly relied upon by Mr.
Setalvad for reasons which will soon appear. The other side relies upon
observations in Bhim Sen v. State of Punjab(1) where blackmarketing was
considered a sufficient ground for detention. No doubt blackmarketing has at
its base a shortening of supplies because blackmarket flourishes best when the
availability of commodities is rendered difficult.
It has a definite tendency to disrupt
supplies when scarcity exists or scarcity is created artificially by hoarding
to attain illegitimate profits. Indulging in blackmarketing is conduct which is
prejudicial to the maintenance of supplies.
It is hardly necessary to read supplies
conjunctively with services as was contended although cases may exist where
supplies and services may both be affected. The word 'and' is not used
conjunctively but disjunctively. If sweepers strike, no question of disrupting
supplies arises but ser- vices essential to the life of the community will
certainly be disrupted.
Looked at from this angle, can we say that
the detenu was supplied grounds which were not vague or indefinite or irrelevant
or non-existing'? The grounds are five in number. Putting aside the first and
fifth -rounds for the time, we may refer to the second, third and fourth
grounds first. The second ground says that "his trucks always take to
wicked routes to Saithia (West Bengal) and he himself pilots them." This
ground is extremely vague. It does not mention a single instance of a truck
taking a particular route so that the detenu could prove to the satisfaction of
the Advisory Board that the statement was false. In. Bhim Sen's case the
conduct of the black--marketer was shown in an appendix. Here no particulars
are furnished and beyond denying the allegation, the detenu cannot make
effective representation. The details could not be such as were required to be
concealed in the public interest under s. 7(2) of the Act. The third ground
that "a businessman of Barahiya disclosed that he (Rameshwarlal Patwari)
visited Barahiya on several occasions and purchased gram, gramdal under various
(1) [1952] S.C.R. 19.
511 names and smuggled them to West
Bengal" is equally vague.
Learned counsel for the State admitted that
some details were necessary to give the detenu an opportunity. It is obvious
that without the names of shops, dates of purchase, etc. it is next to
impossible to controvert such an allegation. The fourth ground speaks of a
pending case in which the appellant is said to be on bail. The grounds were
furnished in July 1967. The appellant was tried for the offence and acquitted
as far back as February 1967. This ground discloses carelessness which is
extremely disturbing.
That the detaining authority does not know
that the appellant was tried and acquitted months before, and considers the
pendency of the case against him as one of the grounds of detention shows that
due care and attention is not being paid to such serious matters as detention
without trial. If the appellant was tried and acquitted, Government was
required to study the judgment of acquittal to discover whether all these
allegations had any basis in fact or not.
One can understand the use of the case if the
acquittal was technical but not when the case was held to be false. In any
event, even if there was no need to consider the result of the case the case
could not be referred to as a pending case.
What is still more disquieting is the attempt
to avoid admitting frankly that there has been a mistake in including this
ground. in the return this is what is said :
"That the facts stated in paragraph 4 of
the ground of detention are not non est. Those facts stated in paragraph 4 even
existed after acquittal. In regard to the facts stated in paragraph 4 the
prosecution failed to prove the prosecution case and, therefore, he was
acquitted. The detenu had full knowledge of the facts that he was acquitted by the
Court in regard to the facts stated in paragraph 4 of the grounds of detention
and, therefore, he was not handicapped in making a representation to the
Advisory Board." This means that anything wrong or even false may be
stated in the grounds leaving the detenu to deny it and prove his version. The
attempt to cover up the mistake is as futile as it is disingenuous.
This leaves over the first and fifth grounds'
The first charges the appellant with blackmarketing of foodgrains in
conjunction with certain named persons. No facts are mentioned and this part of
the ground is equally vague. No incident is cited except one. The ground goes
on to say that his trucks, jeep and car -Ire registered in the names of his
relatives. One such truck is mentioned, namely, truck No. BRL 1331. It is said
to be registered in the name of his brother-in-law and it is further stated
that it was 512 caught on December 29, 1966 at Ranibahal (near Mashanjor) while
carrying 95 bags of paddy for 'illegal trade' and that in this connection a
case under the Essential Commodities Act has been instituted against 'him'. It
is hot clear who is meant the appellant or his brother-in-law. In a notice from
the District Supply Officer, Dumka it was stated :
"It was learnt from your driver that on
29-11-66 (sic) at 3.50 a.m., ninety five bags of paddy (190 mds.) was coming
from Ranibahal to Dumka in your truck BRL 1331 belonged to you. . . . "
The appellant has denied that the paddy belonged to him. He pointed out that in
the notice it was admitted that the paddy was being taken to Dumka in Bihar,
while in the grounds it was stated that it was on its way to West Bengal and
that carrying of goods from Ranibahal to Dumka (both in Bihar) was no offence.
In his reply to the District Supply Officer the appellant had stated :
"1. I am a retail dealer in food-grains
holding foodgrain License No. 204 of 1966.
2. The truck bearing No. BRL 1331 does not
belong to me.
3. The said 95 bags of paddy loaded on the
said truck No. BRL 1331 does not belong to me.
The fact is that the said 95 bags of paddy
belong to Shri Prahlad Rai Giluka of village Banskuli, P. S. Ranishwar who is a
cultivator which he had agreed to sell to me on condition that the delivery of
the said paddy will be made to me at Dumka.
I therefore, request that the cause shown
above be accepted and the proceedings, if any, may kindly be dropped." It
appears that Prahlad Rai Giluka of Mouza Banskuli, P. S. Ranishwar confirmed
this before the District Supply Officer by stating as follows :- "1. That
your petitioner is a cultivator and owns more than 100 bighas of Dhani lands at
Mouza Murgani Ranibahal and Kumnirdaha and other villages which are contiguous
villages.
2.
3. That the petitioner's son Prabhudayal
Giluka is to start a business and as such there was necessary (sic) of fund and
the petitioner proposed to sell 95 bags of paddy to one Rameshwar Lal Patwari
of Dumka from his Murgani and Ranibahal land.
513
4. That it was agreed that the paddy will be
delivered at Dumka where the price will be paid.
5. That the petitioner accordingly engaged
the truck of one Haris Chandar Agarwala, his BRL 1331 and asked his Munshi
Mahadev Pal to load 95 bags of paddy in the truck.
6.
7. That when the paddy in question was in the
process of loading at Ranibahal the paddy was seized by the District Supply
Officer on 29-12-66.
8.
9.
10. That the paddy in question is not
involved in any offence the same should be released forthwith." When these
documents came to be filed, the return of the State Government made the
following reply and avoided the issue:
"4 It appears that the notice was issued
on the statement of the driver of the truck who stated that he was bringing 95
bags of paddy from Ranibahal to Dumka in the truck belonging to the appellant.
The statement of the driver clearly shows that the truck belonged to the
appellant. The driver did not' tell anything about the facts stated in annexure
'D' to special leave paper book (Page 49 to 51)." This shows that there
was no inquiry at all. The alleged statement of the driver was accepted and it
was assumed that the paddy was being taken to West Bengal. At least the
explanation of the persons concerned could have been obtained. This is clearly
a case of jumping to a conclusion which is being lamely justified, when it is
questioned with written record. In these circumstances there is much reason to
think that this ground probably did not exist although we are not in a position
to say that it is non-existing.
The fifth ground mentions that one Babu Ram
Bikanaria wanted gram and gramdal at his Rice Mill at Saitha District Birbhum
(West Bengal) and visiting Dumka contacted the appellant.
The latter promised to supply gram and
gramdal. On 7/8 December 1966 one Mulchand Choudhury sent truck No. BRJ 2029
loaded with gram and gramdal to Saitha through Mahesh Kola checkpost. Further
Mulchand's truck No. BRL 1366 and van BRL 2005 were found at Raneshwar on
December 7, 1966 from where 'he' smuggles foodgrains to West Bengal. 'He' pur-
chases -ram and gramdal through Gopal Mandal of Lakhisarai (Dist. Monghyr) and
smuggles them to West Bengal. It is again Sup.C1/68-2 514 not clear who this
'he' is. The appellant has denied that he does in gram and gramdal and has any
connection with Gopal Mandal of Lakhisarai or knows him. He has denied all
contact with such persons. No reply to this was given in the return filed in
this Court.
It appears that there may be suspicion that
the appellant may be connected with some blackmarketing. We are not concerned
with the sufficiency or the reasonableness of the grounds. In this case at
least two grounds are vague, one ground is found to be false -and of the
remaining in one there is no explanation and in the -other there is a lame
excuse that the driver of the truck did not furnish the full information. The
case is thus covered by our rulings that where some grounds are found to be
non-existing or -are cancelled or given up, the detention cannot be justified.
It is further covered by our decisions that
if the grounds are not sufficiently precise and do not furnish details for the
purpose of making effective representation the detention can be questioned.
This case displays both these defects and it is a matter of great regret that
powers of detention without a trial, which should be ,exercised with the
greatest care and attention have been exercised in this case with such
disregard for truth and accuracy. We accordingly allow the appeal and hold the
detention of the appellant to be illegal and order his release.
G.C. Appeal allowed.
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