Smt.
Aruna Kumari Vs. Government of Andhra Pradesh & Ors [1987] INSC 326 (11
November 1987)
SHARMA,
L.M. (J) SHARMA, L.M. (J) SEN, A.P. (J)
CITATION:
1988 AIR 227 1988 SCR (1) 973 1988 SCC (1) 296 JT 1987 (4) 378 1987 SCALE
(2)1121
CITATOR
INFO : R 1988 SC1835 (6) RF 1990 SC 225 (9)
ACT:
Prevention
of Blackmarketing and Maintenance of Supplies of Essential Commodities Act,
1980: sections 3 and 14-Detenu-A contractor-Levy cement meantfor use in railway
construction work-Diverted for private construction work- Contractor detained
for acting in a manner prejudicial to maintenance of essential
supplies-Validity of detention order.
Detention
order-Delay in passing of-Not by itself a vitiating factor-Court cannot examine
probative value of evidence available to detaining authority-Court cannot
examine propriety or sufficiency of grounds of detention- Detenu has no right
to get his successive representations based on the same grounds rejected
earlier to be formally disposed of again.
Criminal
Procedure Code, 1973: Section 161-Statement of detenu accepting allegations
against himself-Whether can be relied upon for purposes of preventive
detention.
HEADNOTE:
%
The husband of the petitioner had been detained by an order dated 15th May,
1987 under Section 3 of the Prevention of Blackmarketing and Maintenance of
Supplies of Essential Commodities Act, 1980. The grounds served on the detenu
for making the detention order alleged that the detenu had undertaken contract
works of various types under the South Central Railway, and indulged in
clandestine business of diversion of levy cement meant for use in the Masonary
Ballast Wall alongwith the railway track, and had thus acted in a manner
prejudicial to the maintenance of supplies of cement, an essential commodity.
The
facts mentioned, that on the receipt of information that levy cement was being
transferred into non-levy bags for its diversion to works not intended, the
Inspector of Police, Vigilance Cell made a surprise visit, and found that the
information passed on to him was correct. He conducted a raid and recovered 400
bags of levy cement. A criminal case under Clauses 12 and 13 of the Andhra
Pradesh Levy Cement Distribution (Licensing and Regulation) Order, 1982 read
with 974 Section 7 and 8 of the Essential Commodities, Act, 1955 was commenced
and further investigation proceeded. Both the detenu and his servant absconded
and were ultimately arrested on 18th March, 1987 when the detenu confessed
before the Inspector of Police. The detenu was released on bail the following
day, i.e. 19th March, 1987. On the consideration of the aforesaid
circumstances, the District Magistrate was of the opinion that the mere
launching of a criminal case against the detenu would not effectively prevent
him from acting in a manner prejudicial to the maintenance of supplies of
cement, and therefore, ordered detention, which order was later confirmed by
the Advisory Board The detenu filed his first representation on 20th May, 1987
which was rejected by the State Government as also the Advisory Board later.
writ
petition was filed before the High Court on 18th June, 1987 challenging the
detention order, while the writ petition in this Court was filed on 13th June,
1987.
second
representation on behalf of the detenu was filed by his cousin on 5th June,
1987 for revocation of the detention order. This representation remained
unattended, until the State Government reminded the Central Government in this
regard after filing of the writ petition in this Court, and it was only then that
the Central Government rejected the same on 2nd September, 1987.
The
High Court dismissed the writ petition on 18th July, 1987.
In
the Special Leave Petition as also the writ petition under Art. 32 the order of
detention was challenged on the grounds of (1) delay of about 5 months in
passing the order, (2) the allegation against the detenu of diverting levy
cement for private use was incorrect, (3) the second representation filed by
the detenu's cousin remained undisposed by the Central Government for about 3
months, (4) the sponsoring officer's default in not placing relevant facts
before the detaining authority before the impugned order was passed, and (5)
the detention order was passed on the basis of a solitary incident.
Dismissing
the Writ Petition and Special Leave Petition, ^
HELD:
1. Delay cannot by itself vitiate the decision to detain a person. [980G] 975
Rajendra Prasad v. State of Uttar Pradesh and another, [1981] 4 SCC 588; Smt.
Hemlata Kantilal Shah v. State of Maharashtra, [1981] 4 SCC 647 and Malwa Shaw
v. The State of West Bengal, A.I.R. 1974 SC 957 referred to.
In
the instant case, there is no doubt that in the police records the detenu was
considered to be an absconder throughout till his arrest on 18th March, 1987.
The affidavit of the District Magistrate filed before the High Court indicates
that further investigation in the case continued even after the arrest of the
detenu and that other relevant information could be collected only after and
thus the investigation was complete on 13th May, 1987. The matter was placed
before the District Magistrate on 14th May, 1987 who passed the impugned order
in these circumstances, here is no doubt that the respondents have
satisfactorily explained the delay in passing the detention order. [980E-F]
2.
The sufficiency of the materials available to the detaining authority is not to
be examined by the Court. This Court while considering the petitioner's writ
application is not sitting in appeal over the detention order, and it is not to
go into and assess the probative value of the evidence available to the
detaining authority. A detention order not supported by any evidence may have
to be quashed, but that is not so in the present case. [982C, 981E]
3.
Section 14 of the Act clothes the authority with the power of revoking the
detention order but the duty to exercise it arises only where new and relevant
facts and circumstances come to light. There is no right in favour of the
detenu to get his successive representations based on the same grounds rejected
earlier to be formally disposed of again. No period of limitation is fixed for
disposal of an application under Section 14. [982D-F] Haradhan Saha and another
v. The State of West Bengal and others, [1975] 1 SCR 778; Sat Pal v. The State
of Punjab, [1982] 1 SSC 12 and State of Uttar Pradesh v. Zavad Zama Khan,
[1984] 3 SSC 505, referred to.
4.
It has long been established that the subjective satisfaction of the detaining
authority as regards the factual existence of the condition on which the order
of the detention can be made, namely, the grounds of detention constitute the
foundation for the exercise of the power of detention and the court cannot be
invited to consider the propriety or sufficiency of the grounds on which the
satisfaction of the detaining 976 authority is based. Nor can the court on a
review of the grounds, substitute its own opinion for that of the authority.
[983D] In the instant case, the ground of detention is only one, namely, that
the detenu was acting prejudicial to the maintenance of supplies of commodity,
i.e., levy cement, essential to the community, by diverting it to the open
market. The grounds of detention served alongwith the order are nothing but a
narration of facts. The question wheher the detentu was acting in a manner
prejudicial to the maintenance of supplies essential to the life of the
community is a matter of inference to be drawn from facts.
It
could not be said that there was no material upon which the subjective
satisfaction of the detaining authority could be based. It appears from the
grounds i.e. the facts set out that the detenu had made a statement admitting
that he had diverted 600 bags of levy cement issued to him for use in the
masonary ballast wall along the railway track, and therefore, the District Magistrate
was justified in coming to the conclusion that he (the detenu) was acting in a
manner prejudicial to the maintenance of supplies of the commodity essential to
the community. [983E-H]
5.
If `materials and vital facts' which would influence the mind of the detaining
authority one way or the other on the question whether or not to make the
detention order, are not placed, it would vitiate the subjective satisfaction
rendering the detention order illegal. That is not so, in the instant case.
There was ample material before the District Magistrate for him to base his
subjective satisfaction as to the necessity for passing the detention order.
[984C] Asha Devi v. K. Shiveraj, Addl. Chief Secretary to the Government of
Gujarat and another, [1979] 2 SCR 215; Mohd. Shakeel Wahid Ahmed v. State of
Maharashtra and others, [1983] 2 SCR 614; Kurjibhai Dhanjibhai Patel v. State
of Gujarat, [1985] 1 Scale 964 and Pushpadevi M. Jatia v. M.L. Wadhawan,
Additional Secretary, Government of India and others, [1987] 3 SCC 367,
referred to.
ORIGINAL
JURISDICTION: Writ Petition (Criminal) No. 529 of 1987.
Under
Article 32 of the Constitution of India. V.M. Tarkunde, G. Narsimahullu and
Nalin Kumar for the Petitioner.
977
E. Manohar, Advocate-General, B. Datta, Additional Solicitor General, T.V.S.N.
Chari, Ms. V. Grover, G. Ramesh and Ms. A. Subhashini for the Respondents.
The
Judgment of the Court was delivered by SHARMA J. K. Madhava Rao, husband of the
petitioner, has been detained under Section 3 of the Prevention of
Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980.
The petitioner filed an application under Article 226 of the Constitution
before the Andhra Pradesh High Court for a writ of habeas corpus which was
dismissed on 18.7.1987. The Special Leave Petition is directed against the said
order. The petitioner has also challenged the detention order by the
application under Article 32 of the Constitution before this Court in Writ
Petition (Criminal) No. 529 of 1987.
2.
The grounds served on the detenu for making the detention order dated 15.3.1987
allege that he (the detenu Madhava Rao) undertakes contract works of various
types under South Central Railway (SCR) and indulged in clandestine business of
diversion of levy cement meant for use in the Masonry Ballast Wall along with
the railway track on the suburban section between Kachiguda and Falaknuma
Railway Stations, and thus acted in a manner prejudicial to the maintenance of
supplies of cement, an essential commodity. The facts mentioned are, that on
receipt of an information on 18.12.1987 that levy cement was being transferred
into non-levy cement bags for its diversion to works not intended, the Inspector
of Police, Vigilance Cell with his staff made a surprise visit in presence of
witnesses at about 1 p.m. the same day, to the site of a private building under
construction, and found the information passed on to him to be correct. On
inquiry it was discovered that a house belonging to one Smt. Mahati Singh,
daughter of Y. Krishna Murthy, Divisional Railway Manager, was under
construction under the supervision of the detenu, and the levy cement
transferred into non-levy cement bags, was being stored in a nearby shed for
use in the construction of the said house. The watchman of Y. Krishna Murthy,
named Varala Vollaiah, was kept there as guard. The detenu was supervising the
construction of the house through his employee James George. The workmen
engaged in the work were also examined by the police. The facts which came to
light indicated that two days earlier, that is, on 16.12.1986, 200 bags of levy
cement reached the site and were unloaded in the shed. James George instructed
the labourers to transfer the cement into non-levy cement bags, and his
instruction was carried out on the following day, the 17th of December, 1986
and 978 non-levy cement bags were restitched. Yollaiah, the watchman, further
stated that the cement was sent by the detenu through James George who had
informed the witness that cement or two other lorries had also been unloaded in
the nearby Kakatiyangar and stored in a room belonging to the Nageshwar Rao for
similar misuse. On receiving this information the Police Inspector raided the plot
in Kakatiyanagar mentioned by the witness and recovered 400 bags of levy
cement. A criminal case under Clauses 12 and 13 of the A.P. Levy Cement
Distribution (Licensing and Regulation) Order, 1982, read with Sections 7 and 8
of the Essential Commodities Act, 1955 was commenced and further investigation
proceeded.
3.
The investigation continued for three months till 18.3.1987. Smt. Mahati Singh
and her father Y. Krishna Murthy were also examined by the police and they
confirmed that the detenu Madhava Rao was looking after the construction of
Smt. Mahati Singh's house. The evidence collected by the police indicated that
1000 bags of levy cement was handed over to the detenu through his employee
Babu on 16.12.1986 and out of this stock 600 bags on three lorries were
despatched to Habshiguda, which were discovered by the Inspector on the 18th of
December 1986. Both Madhava Rao and his servant James absconded and were
ultimately arrested on 18.3.1987, when the detenu is alleged to have confessed
before the Inspector of Police. The detenu was released on bail the following
day, that is, 19.3.1987. All these facts were mentioned in the grounds and it
was stated that on a consideration of the entire circumstances the District
Magistrate was of the opinion that mere launching of the criminal case against
the detenu would not effectively prevent him from acting in a manner
prejudicial to the maintenance of supplies of cement. The order was later
confirmed by the Advisory Board.
4.
The detenu filed his first representation on the 20th of May 1987 which was
rejected by the State Government as also the Advisory Board later. In the
meantime a writ application being W.P. No. 6636 of 1987 was filed before the
High Court on 1.6.1987 challenging the detention order. The Writ Petition in
this Court was filed on 13.7.1987.
5.
A second representation on behalf of the detenu was filed by his cousin P.
Lakshmana Rao on 5.6.1987, in which a prayer was made for revocation of the
detention order. It was been contended on behalf of the petitioner that it was
the duty of the Central Government to consider and dispose of this
representation promptly which was not 979 done. It is said that the
representation remained unattended, until the State Government reminded the
Central Government in this regard after filing of the present writ petition and
it was only then that the Central Government rejected the same on 2.9.1987. The
reply is that by this representation the detenu's cousin merely reiterated the
points already taken in the first representation of the detenu which had been
after consideration dismissed, and it was, therefore, not necessary to deal
with the same points over and over again. Besides, this representation also was
considered and rejected by the Central Government later.
6.
Mr. Tarkunde, learned counsel for the petitioner, challenged the order of
detention on the grounds of: (i) delay of about five months in passing the
order, (ii) the allegation against the detenu of diverting levy cement for
private use being incorrect, (iii) the second representation filed by the
detenu's cousin having remained undisposed of by the Central Government for
about three months, (iv) the sponsoring officer's default in not placing all
the relevant facts before the detaining authority before the impugned order was
passed, and (v) the order having been passed on the basis of a solitary
incident. During his argument the learned counsel did not press the last point
and it is, therefore, not necessary to deal with it except pointing out that
having regard to the statement made by the detaining authority, the District
Magistrate, that in view of the circumstances of the case including the fact
that the detenu was engaged in executing many contract works for the Railways,
it was essential for preventing him from indulging in subversive acts similar
to the one stated in the grounds, to detain him, there is no merit in the point
which was rightly not pressed.
7.
Mr. Tarkunde strenuously urged that in view of the long delay of about five
months from the alleged incident on the 18th of December, 1986, in passing of
the impugned order, the same is fit to be quashed. Learned Advocate General,
appearing for the State of Andhra Pradesh, pointed out that the detenu was
absconding for three months until he was arrested on 18.3.1987. In reply to the
argument that the detenu could not have been absconding, as this fact does not
appear to have been mentioned in the orders of the criminal court dealing with
the bail applications, the learned Advocate General placed before us the case
diary of the criminal case in which the accused Madhava Rao was stated to be
absconding on several dates from December 1986 to March 1987. By way of
illustration, the letter of the Inspector of Police dated 26.12.1986 addressed
to the Public Prosecutor, High Court, Hyderabad may be seen wherein it was
stated 980 in paragraph 6 that Madhava Rao and James were absconding since the
date of commission of the offence. In the next letter dated 1.1.1987 they were
again described as absconding. The copy of the diary Part-I dated 12.1.1987
states that nobody was supplying the whereabouts of Madhava Rao. Similarly the
diary dated 15.1.1987 mentions that Madhava Rao contractor was absconding and
his employees were also not available. The search for the absconding persons
was being continued throughout February and March 1987 till the detenu was
arrested as is fully supported by the case diary of later dates. In the
meantime two applications for anticipatory bail were filed one after the other
on behalf of Madhava Rao before the the criminal Court and it is true that the
orders passed thereon did not state that the accused was absconding, but for
that reason the diary of various dates mentioning the fact cannot be ignored
and it is not legitimate to claim that Madhava Rao was not absconding. We
repeatedly asked learned counsel for the petitioner to show any material
indicating that the detenu was present on any date before the criminal Court or
was available to the police but it was conceded that there was no such
document. In the second application for anticipatory bail reliance was placed
on a medical certificate issued by a doctor. The diary indicates that the
police inquired from the doctor on the 3rd of March 1987 about the same
pointing out that the accused was an absconder. There was, therefore, no doubt
at all that in the police records the detenu was considered to be an absconder
throughout till his arrest on the 18th of March, 1987. The affidavit of the
District Magistrate filed before the High Court indicates that the further
investigation in the case continued even after the arrest of Madhava Rao and
the details of the ownership of the house in construction and the neighbouring
shed and other similar relevant information could be collected only later and
thus the investigation was complete on 13.5.1987.
The
matter was placed before the District Magistrate on 14.5.1987 and he passed the
impugned order on the following day, that is, 15.5.1987. Having regard to the
circumstances, there is no doubt that the respondents have satisfactorily
explained the delay in passing the order. The delay cannot by itself vitiate
the decision to detain a person and this is fully demonstrated by the cases of
Rajendra Prasad v. State of Uttar Pradesh and another, [1981] 4 SCC 558 wherein
the order was passed after seven months, Smt. Hemlata Kantilal Shah v. State of
Maharashtra, [1981] 4 SCC 647 and Malwa Shaw v. The State of West Bengal,
A.I.R. 1974 SC 957 wherein the orders of detention were passed five months
later. The first point urged on behalf of the petitioner, therefore, is
rejected. 981
8.
In support of his second point Mr. Tarkunde contended that it is open to the
petitioner to show that the levy cement which was being transferred into
non-levy cement bags did not belong to Madhava Rao, and the impugned order
having been passed on that assumption is, therefore, fit to be quashed. In
other words, the learned counsel said, that the ground mentioned for the
detention being non-existent the application must succeed. Reliance was placed
on a certificate dated 23.6.1987 of the office of the Divisional Railway
Manager (Works), Hyderabad in reply to a letter by one K. Eswara Rao that 1000
bags of cement issued to him on 16.12.1986 was Puzzolon Portland Cement, Pyramid
Brand of Pariyan Company and it was urged that as the 5 empty bags having the
marks of "Ajanta Brand Kesoram, Basant Nagar (A.P.) Portland Pozzolana
Cement" as stated in the Panchnama (page 82 of the paperbook of the Writ
Petition) was found by the police, it must be assumed that the levy cement
which was being transferred to empty bags was not the same which was issued to
the detenu. Learned Advocate General, appearing for the respondent State,
replied that there was sufficient material on the records of the case on the
basis of which the detaining authority could have legitimately assumed that the
cement in question was part of the cement issued to Madhava Rao. Before
examining the point urged on behalf of the petitioner on merits, it must be
pointed out that this Court while considering petitioner's writ application is
not sitting in appeal over the detention order, and it is not for us to go into
and assess the probative value of the evidence available to the detaining
authority. Of course, a detention order not supported by any evidence may have
to be quashed, but that is not the position here. There was clearly sufficient
material before the District Magistrate to justify the forming of his opinion
as stated earlier. The question was not raised in the writ petition filed
before the High Court, and the plea based upon the brand of cement was
belatedly taken in the case and has been dealt with at same length in the
judgment of the High Court which is under challenge in the Special Leave
Petition. We do not consider it necessary to repeat them but we would mention
briefly the argument of the learned Advocate General which appears to be well
founded.
Our
attention was drawn to the Gatepass (page 154 of the paperbook of the writ
petition) showing the issuance of the levy cement "to the
contractor", that is, Madhava Rao, which was signed by Mohammad Chand on
behalf of the Railways and Babu, Madhava Rao's employees. This does not mention
the name of Eashwar Rao, the other employee of the contractor.
It
is not denied on behalf of the detenu that he has been executing many contract
works for the Railways, and therefore it cannot be presumed that the same
consignment was the 982 subject matter of the Gate-pass as well as the
certificate relied upon on behalf of the petitioner. The point now urged on the
basis of the brand of cement was taken on behalf of the petitioner belatedly as
mentioned earlier. Besides, the detenu accepted the allegations against himself
in his statement recorded under Section 161 of the Code of Criminal Procedure.
It is true that it may not be a legally recorded confession which can be used
as substantive evidence against the accused in the criminal case, but it cannot
be completely brushed aside on that ground for the purpose of his preventive
detention. The records further show that the oral evidence of the watchman and
the labourer engaged in the house construction proved that it was the levy
cement issued to the detenu which was being diverted at his instance. Before
closing this chapter it may be re-stated that the sufficiency of the materials
available to the detaining authority is not to be examined by the Court.
9.
So far as the second representation filed by Madhava Rao's cousin Lakshmana Rao
is concerned, it has, in fact, been disposed of by the Central Government but
about 3 months later after its filing. It was argued that Section 14 of the Act
clothes the authority with the power of revoking the detention order, and such
a power carries with it the duty to exercise it whenever and as soon as changed
or new factors call for the exercise of that power. Reliance was placed on the
observations of this Court at page 786 in Haradhan Saha and another v. The
State of West Bangal and others, [1975] 1 SCR 778 and those in paragraph 9 of
the Judgment in Sat Pal v. The State of Punjab, 1982 1 SCC 12.
It
is true that such a power coupled with the duty exists but the duty to exercise
it arises only where new and relevant facts and circumstances come to light.
This was not so here, and as observed in para 13 of the Judgment in State of
Uttar Pradesh v. Zavad Zama Khan, [1984] 3 SCC 505, there is no right in favour
of the detenu to get his successive representations based on the same grounds
rejected earlier to be formally disposed of again. In any event no period of
limitation is fixed for disposal of an application under Section 14 and as we
have seen earlier the second representation filed by Lakshamana Rao indeed, was
considered and rejected.
10.
On behalf of the petitioner it was next contended that the fact that both
Krishna Murthy and Smt. Mahati Singh had retracted their alleged statements
before the police implicating Madhava Rao and the order in the criminal case
granting bail to the detenu conditionally, were not placed before the detaining
authority which has vitiated the detention order. It is claimed that as a
matter of fact the 983 aforesaid two persons never made any statement before
the police or anybody else connecting Madhava Rao with the construction of Smt.
Mahati Singh's house and it is incorrect to say that they were ever questioned
by the police as alleged. Reference was made to the order passed in the
criminal case on the anticipatory bail application of the detenu in which there
is no such statement. The learned counsel argued that the absence of such a
reference in the order leads to the conclusion that the police never examined
them.
11.
The High Court has rightly repelled a similar argument, pointing out that in
the application for anticipatory bail of Smt. Mahati Singh it was categorically
stated that the vigilance police had gone to the residence of her father and
thoroughly interrogated her and her father. Krishna Murthy also made a similar
statement in his application for anticipatory bail. It will, therefore be idle
to suggest otherwise merely for the reason that the criminal court did not
choose in its order to mention these facts. Besides, it has long been
established that the subjective satisfaction of the detaining authority as
regards the factual existence of the condition on which the order of detention
can be made, namely, the grounds of detention constitute the foundation for the
exercise of the power of detention and the Court cannot be invited to consider
the propriety or sufficiency of the grounds on which the satisfaction of the
detaining authority is based.
Nor
can the Court, on a review of the grounds, substitute its own opinion for that
of the authority. In the instant case the ground of detention is only one, viz.
the detenu was acting prejudicial to the maintenance of supplies of commodity,
that is, levy cement, essential to the community by diverting it to the open
market. The grounds of detention served along with the order are nothing but a
narration of facts. The question whether the detenu was acting in a manner
prejudicial to the maintenance of supplies essential to the life of the
community is a matter of inference to be drawn from facts. The learned Advocate
General was fair enough to accept before us that the applications for grant of
anticipatory bail moved before the criminal Court were not placed before the
detaining authority. Even so, it could not be said that there was no material
upon which the subjective satisfaction of the detaining authority could be
based. It appears from the grounds, i.e., the facts set out that the detenu had
made a statement admitting that he had diverted 600 bags of levy cement issued
to him for use in the masonry ballast wall along the railway track and
therefore the District Magistrate was justified in coming to the conclusion
that he (the detenu) was acting in a manner prejudicial to the maintenance of
supplies of the commodity essential to the community. The three decisions in
Asha Devi v. K. 984 Shiveraj, Addl. Chief Secretary to the Government of
Gujarat and another, [1979] 2 SCR 215; Mohd. Shakeel Wahid Ahmed v. State of
Maharashtra and others, [1983] 2 SCR 614 and Kurjibhai Dhanjibhai Patel v.
State of Gujarat, [1985] 1 Scale 964 were cases where there was failure on the
part of the sponsoring authority in not furnishing the relevant material to the
detaining authority which was a vitiating factor. This Court had occasion to
deal with them in Pushpadevi M. Jatia v. M.L. Wadhawan, Additional Secretary,
Government of India and others, [1987] 3 SCC 367 in para 12 of its judgment.
These decisions proceed on the well settled principle that if 'material and
vital facts' which would influence the mind of the detaining authority one way
or the other on the question whether or not to make the detention order, are
not placed, it would vitiate the subjective satisfaction rendering the
detention order illegal. That is not so in the present case. There was ample
material before the District Magistrate for him to base his subjective
satisfaction as to the necessity for passing impugned order as stated by him in
his affidavit.
12.
We do not find any merit in the case for quashing the impugned detention order
and accordingly both the writ petition and the special leave application are
dismissed.
N.V.K.
Petition dismissed.
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