Bidya Deb Barma Vs. District
Magistrate, Tripura, Agartala [1968] INSC 180 (6 August 1968)
06/08/1968 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) SHELAT, J.M.
BHARGAVA, VISHISHTHA MITTER, G.K.
VAIDYIALINGAM, C.A.
CITATION: 1969 AIR 323 1969 SCR (1) 562
CITATOR INFO:
RF 1975 SC 602 (9) C 1982 SC1315 (33)
ACT:
Preventive Detention Act 4 of 1950, ss. 3(3)
and 3(4)--Section 3(3) requiring District Magistrate to report order of
detention to State Government 'forthwith'---Meaning of 'forthwith'--State Government's
order whether must be communicated to detenu--Communication under s. 3(4) by
State Government to Central Government--Effect of delay--'As soon as may be' in
s. 3 (4), meaning of--Detention whether mala fide--Grounds whether
vague--Grounds of detention supplied in language not known to detenu--Effect of
delay in raising objection.
HEADNOTE:
The petitioners were arrested and detained on
February 11, 1968 under the Preventive Detention Act, 1950 by the orders of the
District Magistrate, Tripura. They challenged their detention on the following
among other grounds: (i) that the District Magistrate passed the orders of
detention on February 9, 1968 but made his 'report to the State Government only
on February 13 and therefore the report was not made 'forthwith' as required by
s. 3(3),;
(ii) that the State Government did not
communicate the approval to the detenus and without such communication the
order could not be effective; (iii) that the State Government recorded its
approval under s. 3(3) on February 19 but communicated it to the Central
Government only on February 22 and this was not done 'as soon as may be' within
the meaning of s. 3(4); (iv) that the grounds supplied were vague; (v) that the
detention order was mala fide. One of the petitioners also relied on 'the fact
that the grounds were supplied to him in English which he did not understand.
HELD: (i) The word 'forthwith' has been
interpreted by this Court in Joglekar's case to mean the period during which
the detaining authority could not "without any fault of his own" send
the report. In the present case the order of detention passed on February 9 was
communicated to the State Government on February 13 but the District Magistrate
in his affidavit had explained that he was occupied with urgent official work
and that 10th and 11th were holidays.
Thus the're was delay only because the report
was not made on the 12th. Even if the meaning from the 'ruling in Joglekar's
case is applied strictly, the delay was explained sufficiently. [565 C; 566A,
D] Keshav Nilkanth Joglekar v. The Commissioner of Police Greater Bombay,
[1956] S.C.R. 653 at p. 658--60, applied.
(ii) There is no provision in the Act that
the approval under s. 3(3) must be communicated to the detenu. Section 3(3)
does not specify that the order of approval is anything more than an
administrative aproval by the State Government.
If this be so the necessity of communication
of the approval does not arise with that strictness as does the decision under
r. 30A (8) of the Defence of India Rules. Although it may be fair even under
the Preventive Detention Act to inform the detenu of all the stages through
which his detention passes, and it may be desirable to have a provision to that
effect included in it, the existing state of the law did not justify the
importation of the strict 'rule to cases under this Act. [566 F, 567 D, G] 563
The scheme of the Preventive Detention Act is merely to approve the original
detention by the District Magistrate and the continued detention after 12 days
is not under any fresh order but the same old order with the added approval,
and what the detenu can question is the original detention and not the approval
thereof. [567 H] Raja Harish Chandra Raj Singh v. Deputy Land Acquisition
Officer [1962] 1 S.C.R. 676, Bachhittar Singh v. State of Punjab,[1962] Supp. 3
S.C.R. 713 and Biren Dutta & Ors. v. Chief Commissioner of Tripura &
Anr., [19641 8 S.C.R. 295, distinguished.
(iii) The State Government having reached its
decision on February 19, its communication under s. 3(4) to the Central
Government on February 22 was not so delayed that it is not covered by the
expression 'as early as may be' which was explained in Joglekar's case to mean
'what is reasonably convenient'. Various things have to be done before the
report to the Central Government can be made and a gap of 3 days is
understandable. [568 D] (iv) The grounds in the present case had been supplied
to the detenu with sufficient particularity to enable them to make an effective
representation. The cases of Rameshwar Lal Patwari and Motilal Jain were distinguishable.
[569 F- 570 A] Rameshwar Lal Patwari v. State of Bihar, [1968] 2 S.C.R. 505 and
Motilal Jain v. State of Bihar, [1968] 3 S..C.R. 587 distinguished.
(v) On the facts and circumstances of the
case the allegation of mala fides against the detaining authority could not be
accepted. [570 B] (vi) The objection that the grounds of detention were given
in a language which the detenu did not understand was raised in this Court for
the first time. The Court could not entertain this belated complaint especially
when the detenu did not seem to have suffered at all for this reason. If there
was the slightest feeling that he had been handicapped the court would have
seriously considered the matter. [572 A-B] Harikisan v. State of Maharashtra
& Ors., [1962] 2 Supp. S.C.R. 918, referred to.
ORIGINAL JURISDICTION: Writ Petitions Nos. 89
to 92 and 94 of 1968.
Petitions under Art. 32 of the Constitution
of India for enforcement of the fundamental rights.
M.K. Ramamurthi, for the petitioners (in all
the petitions).
Niren De, Solicitor-General and R.N.
Sachthey, for the respondent (in all the petitions ).
The Judgment of the Court was delivered by
Hidayatullah, C.J. These are five writ petitions under Article 32 of the
Constitution of India by persons detained under the Preventive Detention Act (4
of 1950) by virtue of orders passed by the District Magistrate Tripura on
February 2, 1968. These detenus (and another since released) were arrested on
February 11, 1968. State Government was informed of the fact of deten sup.
CI/68--5 564 tion on February 13, and the grounds of detention were
communicated to the detenus on February 15. State Government gave the approval
on February 19 and telegraphically communicated to the Central Government the
fact of the detention on February 22 under section 3(4). On March 11, the
Advisory Board considered the cases. The present petitions were filed on March
12, 1968. The Advisory Board made its report to the State Government under
section 10 of the Act on April 17, 1968. On April 26, 1968, the State
Government made the order detaining the petitioners for a period of one year.
This detention is challenged before us.
The petitions were argued by Mr. Ramamurthy
together.
The law points raised by him in these cases
were common and will be dealt with together. Part of the facts were also common
although some special features were pointed out in some cases. We propose to
deal with the common,points of law and facts together and then to consider the
special facts separately.
The points of law were (1 ) that the
detention was illegal as the report of the District Magistrate was not
submitted forthwith as required by section 3(3) of the Act, (2) that the
detention was again illegal as the order of approval of State Government under
s. 3 (3) was not communicated to the petitioners, (3) that the detention was
illegal as the State Government had not reported the fact to the Central
Government as soon as possible and without avoidable delay. The common points
of fact are that the grounds were vague and the detention was for a collateral
purpose and mala fide.
The order of detention in each case was made
on the 9th of February. The arrest and detention commenced from the 11th. The
communication was on February 13. Section 3 (3) of the Act lays down:
"3. The Central Government or the State
Government may (1) (3) When any order is made under this section (by an officer
mentioned in sub- section (2) he shall forthwith report' the act to the State
Government to which he is subordinate together with the grounds on which the
order has been made and such other particulars as in his opinion (have a
bearing on the matter, and no such order made after the commencement of the
Preventive Detention (Second Amendment) Act, 1952, shall remain in force for more
than twelve days after the making thereof unless in the meantime it has been
approved by the State Government)." 565 The question is whether the
detention became illegal because 4 days were allowed to pass from the order of
detention and 2 days from the date of arrest. The third sub-section quoted
above uses the word 'forthwith'., Explaining this word Maxwell in
Interpretation of Statutes (Eleventh Edn.) at p. 341 observes as follows:
"When a statute requires that'something
shall be done "forthwith", or "immediately" or even
"instantly", it should probably be understood as allowing a
reasonable time for doing it." The word 'forthwith' in section 3 (3) and
the phrase 'as soon as may be' used in the fourth sub-section were considered
in Keshav Nilkanth Joglekar v. The Commissioner of Police, Greater Bombay(1).
In that case the delay was of 8 days.. Giving proper meaning to the expression
it was observed:
"We agree that "forthwith" in
section 3 (3) cannot mean the same thing as "as soon as may be" in
section 7, and that the former is more preemptory than the latter. The
difference between the two expressions lies, in our opinion, in this that while
under section 7 the time that is allowed to the authority to send the
communication to the detenu is what is reasonably convenient, under section 3
(3) what is allowed is only the period during which he could not, without any
fault of his own, send the report." The delay of 8 days was held explained
thus:
"What happened on the 16th and the
following days are now matters of history.
The great city of Bombay was convulsed in
disorders, which are among the worst that this country has witnessed. The
Bombay police had a most difficult task to perform in securing life and
property, and the authorities must have been working at high pressure in
maintaining law and order. It is obvious that the Commissioner was not sleeping
over the orders which he had passed or lounging supinely over them. The delay
such as it is, is due to causes not of his making, but to causes to which the
activities of the petitioners very largely contributed. We have no hesitation
in accepting the affidavit, and we hold that the delay in sending the report
could not have been avoided by the Commissioner and that when they were sent by
him, they were sent "forthwith" within the meaning of section 3(3) of
the Act." In the present case the delay is much shorter. The 10th and 11 th
of February were close holidays. The communication was (1) [1956] S.C.R. 653 at
pages 658-660.
566 on the 13th. Thus there was only delay
because the report was not made on the 12th. Explaining the delay the District
Magistrate in his affidavit says:
"I say that 10th February, 1968 was a
holiday, being the second Saturday of the month and 11th February, 1968 was
Sunday. I say that serious reports about the activities of the Mizo National
Front and Sangkrak Party, which are tribal groups of hostiles who had set up an
independent Government and were indulging in subversive acts against the local
Govern. ment and were committing dacoities, murder, arson etc. particularly
aimed at non- tribals, were received at that time which kept me extremely busy
during those days. Besides this, I also say that I was in the midst of paddy
procurements and there was very heavy rush of work in my office in those days.
I say that 10th and 11th February, 1968, being holidays and order being
communicated on the' 13th to the State Government, was communicated
"forthwith" as required by law." In our judgment even if the
meaning from the ruling is applied with strictness, the delay was explained
sufficiently. The District Magistrate was hard put to for time and the
surrounding circumstances explain the very short delay. A much larger delay was
held in this Court not to militate against section 3 (3) and we think there is
less room for interference in this case than existed in the former case. We
accordingly reject the first of .the law The second point has no force. There
is no provision in the Act that such an approval must be communicated to the
detenu. The argument is that this must be implied from the object of the Act.
The detaining authority is answerable to the State Government, Sub-section (3 )
gives validity to the order for a period of 12 days even without approval.
The approval was done within the time and
began to operate as soon as made. It was contended that the approval ought to
have been communicated to the detenu and without this communication the
detention could not be legal.
Reliance was placed upon certain cases to
show that persons affected by an order must be communicated that order if it is
to be effective. In Raja Harish Chandra Raj Singh v. The Deputy Land
Acquisition Officer and another(1) (a case under the Land Acquisition Act 1894)
it was held that the award of the Collector must be communicated, and that this
was an essential requirement of fair play and natural justice. The Court was
considering a question of limitation Which ran 'from the date of the
Collector's (1) [1962] 1 S.C.R. 676.
567 award' in the proviso to s. 18 and was
not prepared to construe those words in a literal or,mechanical way. The reason
which prevailed for making a distinction between an order passed and an order
communicated do not obtain here.
In Bachhittar Singh v. The State of Punjab(1)
an order of dismissal of a public servant passed by the Minister on the file
was not communicated and it was held 'that it was only provisional fill
communicated. This case is not in point. The next case Biren' Dutta and others
v. Chief Commissioner of Tripura and another(2) deals with detention under the
Defence of India Rules 1962 rules 30(1)(b) and 30A(8). The reason of rule
30A(8) was stated by this Court to be that it is in the nature of an
independent decision and further detention can be justified only if the decision
is recorded as required by the rule, and it must be in writing clearly and
unambiguously to indicate the decision.
It was further observed that the decision
must be communicated. This case is really no authority in the context of the
present ease. Section 3 (3 ) of the Preventive Detention Act does not specify
that the order of approval is anything more than an administrative approval by
the State Government. If this be so the necessity of communication of the
approval does not arise with that strictness as does the decision under Rule
30A(8) of the Defence of India Rules. The Solicitor General on that occasion
conceded this position. The dispute then narrowed to the question whether Art.
166 applied. This point was not decided by this Court but basing itself on the
admission that the deeision to continue the detention must be in writing, this
Court considered whether there was substantial compliance with this
requirement. A brief memorandum was produced which merely recorded that a
decision was reached.
This Court held that the memorandum could not
reasonably be said to. include a decision that the detention of the detenus was
thought necessary beyond six months. Sueh orders were held not to contain a
written record of the decision with appropriate reasons.
In our opinion the provisions of the Preventive
Detention Act cannot be equated to those of the Defence of India Act and the
Rules. While we are of opinion that even in detention under the Preventive
Detention Act it would be fair to inform the detenu of all the stages through
which his detention passes and a provision to that effect should be included in
it, we are not satisfied that in view of the state of the existing law we can
import the strict rule here. The scheme of the Preventive Detention Act is
merely to approve the original detention by the District Magistrate and the
continued detention after 12 days is not under any fresh order but the same old
order with the added approval and what the detenu can question if he be so
minded, is the original detention and not the approval thereof. (See in this
connection also (1) [1962] Supp. 3 S.C.R. 713.
(2) [1964] 8 S.C.R. 295.
568 Mohammed Afzal Khan v. State of Jammu
& Kashmir(1). We accordingly consider the ruling inapplicable.
It is next contended that the State
Government was also guilty of undue and unreasonable delay in reporting to the
Central Government. The State Government communicated the decision on February
22. State Government received the communication from the District Magistrate on
February 13, and approved the action on February 19. The communication to the
Central Government on February 22 was not so much delayed that it is not
covered by the expression 'as early as may be' explained by this Court in
Keshav Nilkanth Joglekar v. The Commissioner of Police Greater Bombay's(2)
case. Mr. Ramamurthy desired us to calculate the time from February 9 but we do
not think that is possible. Time can only be calculated from the moment the
matter reached the State Government. The State Government took a week to
consider these cases and it is reasonable to think that there might be a few
more cases which are not before us.
Having reached the decision on the February
19, the action of the State Government in communicating the matter to the
Central Government on February 22 cannot be said to be so delayed as to render
the detention illegal. Various things have to be done before the report to the
Central Government can be made and a gap of 3 days is understandable. We see no
forces in this point.
This brings us to the merits of the
detention. Here the charge is that the grounds furnished to the detenus were
vague and the detention itself mala fide. The grounds are practically the same
except for very minor changes to which attention will be drawn when we deal
with individual cases.
We may set down the grounds of detention from
Petition No. 89 of 1968 as sample.
"You are being detained in pursuance of
the Detention order made under sub-clauses (ii) and (iii) of clause (a) of sub
section (1) of section 3 Preventive Detention Act, 1950 as you have been acting
in manner prejudicial to the maintenance of public order and supplies essential
to the community as evidenced by the particulars given below :--
1. That you have been instigating the loyal
villagers particularly the tribals living in and around the Forest Reserve
areas to damage the forest plantation and to do Jhuming in Reserve Forest areas
in violation of forest laws. Towards the end, you have been attending a number
of secret meetings in which it was decided to urge the public to start campaign
against the Forest Department and to destroy the forest plantation. That you
have by your activities created resentment against (1)[1957] S.C.R. 63.
(2) 1950 S.C.R.
569 the forest ,departments and the Forest
Laws under Teliamura P.S. thereby endangering the maintenance of public order.
2. That you have been instigating the loyal
cultivators from delivering the paddy to the Government which has been
requisitioned under the Tripura Foodgrains Requisition Order for the
maintenance of sup- plies of foodgrains to the people in lean months. You have
been instigating and inciting the people to offer organised and violent
resistance against the paddy procurement staff. Towards this end, you have been
attending a number of secret meetings in which it was decided to urge the
public to start campaign against the procurement of paddy. You have been
directly in'citing the people in a number of mass meetings also. That you have
by your speeches and activities induced the people of certain areas to offer
violent resistance to paddy procurement thereby preventing the Government from
maintaining supplies essential to the community during times of need.
The above reports are evident from the facts
that on 12-11-67 you artended a mass meeting at Kalyanpur, a secret meeting on
13- 11-67 at Asha rambari, again mass meetings at Teliamura on 28-11-67 at
Moharchhara Bazar on 16-12-67, on 6-1-68 at Telia- mura and on 21-1-68 at
Stable ground, Agartala.
Because of your activities and incitement, on
2-2-68 the procurement staff were offered a strong and violent resistance by an
unruly mob at Chalitabari P- S. Telia- mura." It is submicted that the
grounds do not give anydetails since no particulars of time, place and
circumstances have been mentioned, and relevant and irrelevant matters have
been included. Reference is made to two cases decided recently by this Court in
which the grounds were found insufficient. They are: Rameshwar Lal Patwari v.
State of Bihar(x) and Motilal Jain v. State of Bihar & Others(2).
We find no such vagueness in the grounds as
was found established in the two cases. The grounds begin by stating generally
what the activities were. They consisted of instigation of tribal people to
practise jhuming and preventing the authorities from delivering paddy to
Government under the procurement schemes. This instigation it is said was
through mass and secret meetings and resulted in violent resistance to
Government. Having said this the grounds then specify the places where and the
dates on which the meetings were held and the date on which and place at which
the resistance took place. In our judg- (1) [1968] 2 S.C.R. 505.
(2) [1968] 3 S.C.R. 587.
570 ment more detailed information was not
necessary to give .the detenus an opportunity to make their representations.
The grounds here are specific and very unlike those in the cases relied upon.
We reject the contention.
As regards mala fides and collateral purpose
alleged to be the real reason, the averment is that the detention was ordered
to prevent the detenus from actively campaigning for the Panchayat elections
that were to take place on the 19th and 20th February, 1968. This has been
denied and looking to the circumstances of this area which are notorious there
is no doubt in our minds that the affidavit of the District Magistrate is
reliable.This ends the submissions which are common to these five cases.We now
pro- ceed to discuss individual objections.
Writ Petition 89 of 1968. There is no special
objection in Writ Petition 89 of 1968 beyond what has been discussed above and
it is accordingly dismissed.
Writ Petition 90 of 1968: Here too there is
no special ground urged before us and the petition is accordingly dismissed.
Writ Petition 91 of 1968: The first objection
is that there is a mistake of identity. The petitioner claims to be Dasrath s/o
Kfishna Deb whereas in the order of detention and other papers is described as
Dasrath s/o the Late Krishna Chandra Deb Barrna. It is also submitted that
Krishna Chandra Deb is alive and, there-fore, the order of detention concerned
some other person. It is denied by the District Magistrate that the order was
not passed against the present detenu himself. The addition of Barma is
explained by the District Magistrate as a popular suffix to the name. The
District Magistrate has further said that in Tripura it is usual to have Barma
in addition to Deb in the surname and that this ground of identity has been
raised for the first time in this Court. The address of the petitioner is
accurate and the I father's name is also correct.
Nothing much turns on the fact that the
father was described as dead. The petitioner has not objected till he reached
this Court and the authorities would hardly be expected to hold a wrong man and
let the real man go free We reject this contention.
The next contention concerns the discrepancy
in the dates of meetings and what happened as a result of his activities and
incitement. The two sets of dates may be put side .by side:
Meetings Result 25-11-67 18-6-67 16-12-67
21-6-67 26-12-67 24-6-67 27-12-67 25-6-67 30-12-67 23-12-67 3-1-68 21-1-68 571
It is argued that the results in all but two dates could not follow activities
which were later. The explanation is simple. The results were said to be
because of the activities of the petitioner. The mention of dates of meetings
is merely some evidence to show the kmd of activity. We are concerned with
preventive detention.
Ordinarily what we have to satisfy ourselves
about is the satisfaction of the authority and the absence of mala fides and
whether all the opportunities of making representation were given. There were
enough instances cited of the conduct on which detention was ordered for the
petitioner to make an effective representation. The situation in this area was
already bad and the later activities would not make it any better. We do not
think that the detention suffers from any defect. The petition will be
dismissed.
Writ Petition 92 of 1968.
The objection here is of the same character
as in Writ Petition 89/91. An additional complaint here is that he is supposed
to' have instigated people to go on strike and prevented the motor drivers and
rickshaw pullers from plying their vehicles on the' roads and. government
employees from going to office and threatened individual shop-keepers to keep
their shops closed, but no details are supplied. It is submitted that this
brings the case within the rulings of this Court. We think this case is
distinguishable from the case of a black marketer who is charged with having
sold contraband articles or at higher prices or hoarded goods.
General allegations there without concrete
instances would be difficult to represent against. Here the matter is
different. It is an integrated conduct of instigation against law and order
which is being charged. Several aspects of it are mentioned. They range from
jhuming in forests and resistance to procurement to arranging for strikes.
Instances Of mass and secret meetings are furnished and the ramifications of
conduct in other directions are mentioned. In these circumstances the
petitioner is expected to represent against the instances and if he convinces
that he took no part in the agitation, the other aspects of his activity will
be" sufficiently answered. A_case of this type stands on slightly different
footing from the cases of black marketing earlier decided by this Court. In our
judgment no successful ground has been' made out and the petition must fail. It
will be dismissed.
Writ Petition 94 of 1968.
The petitioner in this case has complained
that the order of detention and the grounds supplied to him were in English and
he knows only Bengali and Tripuri. He refers to Harikisan v. The State of
Maharashtra & Others(1). In that case the detenu had" asked for a
Hindi translation and had been denied that facility.
(1) [1962] 2 Supp. S.C.R. 918.
572 We find that this objection was taken
here but no request was. made at any earlier time. The original petition did
not contain any such objection. It was raised for the first time in the
rejoinder. The petitioner does not seem to have suffered at all. He has filed
the petition in English and questioned the implications of the language of the
order and the grounds. Of course, he had the assistance of the other detenus
who know English. If there had been the slightest feeling that he was
handicapped, we would have seriously considered the matter but in his case it
appears that this point was presented not to start with but after everything
was over. We cannot entertain such a belated complaint.
The petition will be dismissed.
In conclusion all the petitions fail and will
be dismissed.
G.C.
Petitions dismissed.
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