Biram Chand Vs. State of Uttar Pradesh
& Ors [1974] INSC 74 (28 March 1974)
GOSWAMI, P.K.
GOSWAMI, P.K.
KHANNA, HANS RAJ
CITATION: 1974 AIR 1161 1974 SCR (3) 813 1974
SCC (4) 573
CITATOR INFO:
O 1974 SC2154 (34) F 1975 SC 134 (6)
ACT:
Maintenance of Internal Security Act, 1971 S.
3 (1) (a) (iii)--Detention when prosecution is pending on the same
facts--Validity.
HEADNOTE:
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 a view to preventing him from acting in
any manner prejudicial to the maintenance of supplies and services essential to
the community.
On the questions, whether, when some of the
grounds furnished by the detaining authority form the subject-matter of trial
in criminal cases which are still sub-judice, the detention would be valid, and
whether the 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 definite to enable the detenu to make a
real and effective representation to the Government to establish his innocence.
[818 C] (b) Being faced with a criminal prosecution in a trial which is pending
against him, although, the detenu has not got a proper and reasonable
opportunity in accordance with law to make an effective representation against
the impugned order of detention covered by the said proceeding, because, by
disclosing his defence and certain facts lie would be handicapped in defending
himself in the criminal court.
[818 B-D] (c) On the question whether it is
open to the detaining authority to choose two parallel proceedings against the
detenu held that the fact that the ground of detention could be a subject
matter of criminal prosecution is I not enough to vitiate a detention order if
the detaining authority does not choose to prosecute him but only passes an
order of detention in accordance with law. The choice 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 be entirely different if the authority concerned makes an order of
detention tinder the Act and also prosecutes him in a criminal case on the
self-same facts. The detaining authority cannot take recourse to two parallel
and simultaneous proceeding nor can take recourse to a ground which is the
subject matter of a criminal trial. [818 D-G] (d) Under the Act. the decision
of the authorities is subjective one and if one of the grounds 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 of detention even in the absence of the non-
existent or irrelevant ground [819 C-E] (e) Although the aim and object of the
order of detention would be laudable and the antecedents of a detenu be
extremely reproachable, yet, it is essential that if it is desired to detain a
person without trial, the authorities concerned should conform to the
requirements of the law.
The shady antecedents of the detenu cannot
provide a Justification for noncompliance with the mandatory provisions. The
scope of the inquiry in the case of preventive detention based upon subjective
satisfaction being necessarily narrow and limited, the scrutiny of the count
has to be even stricter than in a normal case of punitive trial. [819E-F] 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 a 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 prosecutions in Bihar and
he has chosen those grounds to furnish as aids to his satisfaction in order to
make 814 an order of detention. The grounds with reference to the pending
criminal prosecutions in Bihar could not provide a 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. [819 A- C] Mohd. Salim Khan v. Shri
C. C. Bose, Deputy Secretary to the Government of West Bengal and another,
A.I.R. 1972 S.C.
1670/1672 distinguished.
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. Uniyal, R. Bana and O. P. Rana for the
Respondent.
The Judgment of the Court was delivered by
GOSWAMI, J.-This habeas corpus petition under 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 (1) .of section' 3 of the Maintenance of
Internal Security Act, 1971 (briefly the Act). The order has been passed
"with a 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 grounds of detention
may be set out as under:
Ground No. 3 : "That you and your other
associates have been charge 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
still pending in the Court, Magistrate of Bhabhua (Bihar) as the proceedings
have been stayed by the orders of the High Court, Patna".
Ground No. 4 : "That with a view to
continue your anti-social activities and to save yourself from the clutches of
law you have started a 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 a 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 succeeded in getting large quantity of maize, bajra and jawar
and smuggled to and stored in your goodown at Mohania (Bihar), a non-producing
area of these foodgrains in the State of Bihar, just on the border of U.P.
through your said firm which will be evidenced by the facts given below :
815 Then follows a detailed list of sales of
bajra, jawar and maize to numerous persons as per cash memos mentioned therein
showing sales, on 21-6-1973, 26-1973, 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 shown with a view to smuggle bajra, jawar and
maize to Bihar from where enough quantities of bajra and jawar have been booked
by rail to Delhi and Poona as shown below Then is given a list of various bookings
of 225 bags of jWar 'to Delhi, 116 bags of bajra to Poona, 150 bags of bajra to
Poona, 220 bags of bajra to Poona and 229 bags of jawar to Poona and even
railway wagon numbers are mentioned.
The 7th ground ends as under :-- "All
these consignments were booked to self.
The consigners of aft these consignments were
searched at Mohania on the address given in the railway records but no such
persons or Bhandar were available on that address.
Enquires show that you were the person behind
these transactions".
Ground No. 8 : "That five trucks bearing
registration No. UPF 2039, USF 3253, UPF 2927, USS 7745 and 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 rice No.
2, 499 bags gram, 70 bags of 'Matar' and 90 bags of 'Dal matar' were found
short on the actual verification of the stock of firm Shyam Sunder Ashok Kumar
on 17-7-1973 by Deputy Regional Marketing Officer, Varanasi
(Enforcement)".
Ground No. 10 : "That the firm Shyam
Sunder Ashok Kumar have not maintained any stock register and satta Bhai since
1970 of oil- seeds and oil-seeds product but at the time of checking on
17-7-73, 305 bags of 'Tisi' and 10 bags of 'Sarson' were found":
Ground No. 11 : "In view of the
aforesaid mentioned grounds I am satisfied that the activities carried on by
you are such as to interfere with the scheme underlying the Essential
Commodities Act and the Movement Orders promulgated by Government under the
above Act in a manner prejudicial to the maintenance of supplies and services
essential to the community and it is necessary to detain you".
9-1-84Sup.C.T. /75 816 The petitioner applied
to the High Court of Allahabad under Article 226 of the Constitution read with
section 491 of the, Code of Criminal Procedure for quashing the order of
detention and the same was dismissed by the Division Bench on 26th November,
1973. The petitioner obtained special leave to appeal against the judgment on
19th December, 1973 and the same has been registered as Criminal Appeal No. 231
of 1973. The petitioner also filed writ petition No. 23 of 1974 before this
Court under Article 32 of the Constitution on 20th December, 1973, against the
order of the State Government of 21st November, 1973, confirming the aforesaid
order of detention under sect-ion 12.(1) of the Act and rule nisi was issued on
31st January, 1974. Both the matters are heard together and are disposed of by
this common judgment.
On behalf of the petitioner, the following
submissions are made by Mr. Frank Anthony :
(1) There was considerable delay in the
Government disposing of the representation of the detenu 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 are the subject matters of criminal cases which are still sub judice.
(4) Two remote past incidents of the detenu
are made the basis of some grounds of detention.
Although Mr. Anthony made a strong plea on
the first ground regarding delay in forwarding the representation of the detenu
to the Government and in its ultimate disposal, we will first take up his third
submission.
It is admitted by Mr. Uniyal, learned counsel
for the State, that the Mohania Police Station case referred to in ground No. 3
is s. ill pending in the criminal court in Bihar. He, however, submits that
ground No. 3 is merely descriptive and is not a ground in itself upon which the
detention order has been based.. We may, therefore, scrutinise the. aforesaid
submission of Mr. Uniyal. What is referred to in ground No.
3 is the criminal case under section 7 of the
Essential Commodities Act and rule 125 of the Defence of India Rules, 1962.
This has reference to the first information report lodged by the Inspector of
Police, Karm Nasha Check Post, Camp Mohania Arrah, Bihar, on the 11he October,
1964 (Annexure-P at page 137 of the writ petition). The relative charge-sheet
dated 29th November,. 1966 (28th November, 1966?) is at Annexure-0 at Page 140
of the writ petition.
'The charge-sheet itself mentions about the
said order of the Patna High Court. It is, therefore, clear that the 3rd ground
forms the subject matter of a Criminal trial which.
is still sub judice. The charge-sheet
indicates manifold inter-state illegal activities of the firm of M/-/ Shyam
Sunder Ashok Kumar of Mohania attracting the provisions of the Essential
Commodities Act and the Defence of India Rules besides other sections of the
Indian Penal Code. It is because 817 of this 3rd ground that the 4th ground has
been worded in the way it has been done, namely, "that with a view to
continue your antisocial activities and to save yourself from the clutches of
law you have started a firm Linder the name and style of M/S Shyam Sunder Ashok
Kumar We are therefore, unable to accept the submission of Mr. Uniyal that
ground No. 3 is merely descriptive and is not germane with regard to the order
of detention. On the other hand, there is great force in the submission of Mr.
Anthony that ground No. 3 is the corner-stone of ground No. 4. It is clear that
ground No. 3 is covered by a prosecution in the criminal court which is pending
trial in Bihar.
It should be mentioned here that the High
Court of Patna 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 19th July, 1965, based on the allegations in the same first information
report of 11th October, 1964, of Mohania Police Station under section 7 of the Essential
Commodities Act, 1955 and various other sections of the Indian Penal Code. The
identical facts arc now relied upon in ground No. 3.
Again ground No. 8 is also the subject matter
of criminal case with reference to the first information report of 3rd July
1973 (Annexure 12 at page 288 of the writ petition).
There is no controversy that the said
criminal case is still pending.
Similarly grounds Nos. 9 and 10 are covered
by a criminal case with reference to first information report dated 5th August,
1973 and the relative charge-sheet dated 19th September, 1973 under section 3/7
of the Essential Commodities Act, pending in the criminal court at Varanasi
(U.P.).
We are informed that there is no direct
authority of this Court on the point. Mr. Uniyal has, however, drawn our
attention to a decision of this Court in Mohd. Salim Khan v. Shri C. C. Bose,
Deputy Secretary to the Government of West Bengal and another,(1) to which one
of us (Brother Khanna) was a 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
bad been adopted against the petitioner and be had been discharged by the
trying Magistrate does not mean that no valid order of detention could be
passed against him in connection with those very incidents. or that such an
order can for that reason be characterised as mala fide. It might well be that
a magistrate trying a particular person under the Code of Criminal Procedure
has insufficient evidence before him, and, therefore, has to discharge such a
person.
But the detaining authorities might well feel
that though there was not sufficient evidence admissible under the Evidence Act
for a conviction, the activities of that person, which they had been watching,
were (1) AIR 1972 SC 1670/1672.
818 of such a nature as to justify an order
of detention. From the mere fact, therefore, that the Magistrate discharged the
petitioner from the criminal case lodged against him it cannot be said that the
impugned order was incompetent, nor can it be inferred that it was without a
basis or mala fide. See Sahib Singh Dugal v. Union of India"(1).
In the above premises, more than one question
may arise for consideration with regard to the third submission of Mr. 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 facing a trial in the criminal courts. By disclosing his defence
and certain facts, can he not complain that he will be handicapped in
defending, himself in the criminal courts? It is well settled that in a 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 a view in his favour. He must, therefore, have a 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 a proper and
reasonable opportunity in accordance with law 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 a
subject matter of criminal prosecution is not enough to vitiate a 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 no
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 law 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 a 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 a ground which is the subject matter of a 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 a 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 also clear, as noted
above, that the Patna High Court had quashed the order of detention of the
Government of Bihar based on facts relating to the first information report of
11th October, 1964, although on grounds different from those which we are now
considering. If the District Magistrate in the instant case had (1) [1966] (1)
SCR 313 quoted in AIR 1972 SC 1670.
819 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 been 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 a
valid basis for making the impugned order of detention, particularly 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 a subjective one and if one of the
grounds is nonexistent 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 non-existent or irrelevant ground.
The conclusion is, therefore, irresistible in
this case that the, impugned order is invalid and the detention in this case
must be held to be illegal.
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 nonexistent. The authority, therefore, has to be careful enough to see that
only relevant and valid grounds are selected having a nexus with the object of
the order of detention. Although the aim and object of the order of detention
be laudable and the antecedents of a detenu are extremely reproachable yet it
is essential that if it is desired to detain a person without trial, the
authorities concerned should conform to the requirements of the law. The shady
antecedents of the detenu cannot provide a justification for non-compliance
with the mandatory provisions. The scope of the inquiry in the case of
preventive detention based upon subjective satisfaction being necessarily
narrow and limited, the scrutiny of the court has to be even stricter than in a
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 submitted by Mr. Anthony. The writ petition and the appeal are allowed.
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 various reasons given by
the High Court in rejecting the petition. The rule nisi is 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.
V.P.S.
Petition allowed.
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