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TMI Blog1965 (8) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... from acting in any manner prejudicial to the maintenance of public order. In the petition as originally filed in January 1965, all that was stated by the petitioner was that he was being detained by the District Magistrate without any reasons having been given for his detention and that the usual procedure for the trial and punishment of offences had not been followed. This petition was admitted on 27th January, 1965 by Falshaw, C. J. and Mehar Singh, J. and the detenu was ordered to be produced on 8th February 1965. The District Magistrate filed an affidavit dated 6th February 1965 saying that the petitioner had figured in as many as 24 cases since 1946 and had been convicted in a number of them. In Para. 2 of that affidavit, it was stated: "Although there is usual procedure in law for the trial and punishment of offences committed by a man yet the petitioner's detention is justified in view of Rule 30-A of the Defence of India Rules, 1962." It was further stated that if the petitioner remained at large, it would be hazardous to the community and his criminal activities were prejudicial to the maintenance of Law and order. On 8th February 1965 Gurdev Singh, J. in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 31-1-1963 and was ordered to furnish a personal bond and a surety bond in the sum of ₹ 5,000 each from the Court of Shri Balbir Singh, Sub-Divisional Magistrate, Delhi, (D. D. No. 5 dated 25-5-1961 under Section 110, Cri. P. C., P. S. Rashanara). On 27-12-1961, he, along with his two associates, assaulted Bishamber Nath, Traffic Constable, on duty outside Kashmere Gate, but was discharged. Thereafter, the petitioner was involved in three cases, but was acquitted." 3. The facts which emerged out of the various affidavits thus filed by the District Magistrate have been stated by the learned Single Judge in his order of reference to Full Bench dated 10th March, 1965 and may be reproduced in his own words: " xx xx The petitioner was acquitted or discharged in 19 cases, and his conviction was recorded only in five cases. His earliest conviction was on 5th July, 1946 under Section 308 of the Indian Penal Code when he was sentenced to three months' rigorous imprisonment. Thereafter he was convicted in two cases under the Arms Act in the year 1960 and 1963, and in the year 1954 he was further convicted under Section 394 of the Indian Penal Code. On 13th November, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained the words "public safety or the maintenance of public order". Fazl Ali, J. was of the view that "public order might well be paraphrased in the context as public tranquillity and the words "public safety" and "public order" might be read as equivalent to "security of the State" and "public tranquillity". Patanjali Sastri, J. (as he then was), who delivered the majority judgment, endorsed the view expressed in Romesh Thappar v. State of Madras AIR 1950 SC 124. In that case Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, was struck down on the ground that it was not covered by the reservation contained in Clause (2) of Article 19 of the Constitution as it authorised imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order which fall outside the scope of authorised restrictions under Clause (2). The following observations of Patanjali Sastri, J. at p. 128 may be reproduced: "The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, more or less roughly, the boundary between those serious and aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith public peace, safety and tranquillity. In Para. 18 while giving the summary of the discussion. Subba Rao, J. said: " 'Public order' is synonymous with public safety and tranquillity; it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war affecting the security of the State." He further followed the view expressed by the Federal Court in Rex v. Basudeva AIR 1950 FC 67, that limitation imposed in the interest of public order should be one which has a proximate connection or nexus with public order and that it should not be one which is far-fetched, hypothetical or problematical or too remote in the chain of its relation with the public order. In the presence of the above authoritative pronouncements it is altogether unnecessary to elaborate further the content and amplitude of the expression "public order". 6. Before adverting to the decisions of this Court relating to preventive detention it is essential to consider the principles laid down by the Federal Court and the Supreme Court about the scope of interference by the High Courts in such matters. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a Court. But, which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government." Patanjali Sastri, J. (as he then was), who dissented from the view expressed in the majority judgment on certain other matters which were different from the question which is being discussed, said that preventive detention was a form of precautionary police action to be employed on the sole responsibility of the executive Government whose discretion was final, no recourse being permitted to a Court of Law by way of review or justification of such action except on allegations of mala fide or irrational conduct. In Ashutosh Lahiry v. State of Delhi AIR 1953 SC 451, Das, J. (as he then was) observed that the satisfaction of the authority making the order as to the matters specified in the Preventive Detention Act was the only condition for the exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court was that where power was vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction was stated to be based on a number of grounds or for a variety of reasons, all taken together, and if some out of them were found to be non-existent or irrelevant, the very exercise of that power was bad. In Rameshwar Shaw v. District Magistrate, Burdwan AIR 1964 SC 334, an order of detention under Section 3(1) of the Preventive Detention Act had been made by the District Magistrate of Burdwan against one Rameshwar Shaw. Gajendragadkar, J. (as he then was) delivering the judgment of the Court reiterated the following principles with regard to the scope of interference by the Courts in such matters: (1) The reasonableness of the satisfaction of the detaining authority cannot be questioned in a Court of law nor can the Court examine the adequacy of the material on which the said satisfaction purports to rest. (2) If any of the grounds furnished to the detenu are found to be irrelevant and in that sense are foreign to the Act, the satisfaction of the detaining authority on which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iety of their detentions made under the Defence of India Rules by means of an application under Section 491(1)(b) of the Criminal Procedure Code or Article 226(1) of the Constitution. This is what has been said: "Take also a case where the detenu moves the court for a writ of habeas corpus on the ground that his detention has been ordered mala fide. It is hardly necessary to emphasise that the exercise of a power mala fide is wholly outside the scope of the Act conferring the power and can always be successfully challenged. It is true that a mere allegation that the detention is mala fide could not be enough; the detenu will have to prove the mala fide. But if the mala fide are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar created by Article 359(1) and the Presidential Order. That is another kind of plea which is outside the purview of Article 359(1). Section 491(i) deals with the power of the High Court to issue directions in the nature of the Habeas Corpus, and it covers six categories of cases in which such a direction can be issued. It is only in regard to that class of cases falling under Section 491(1)(b) where the legali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause of a colourable exercise of the power or an exercise of it lacking bona fides, and animated by some ulterior object, shown to the satisfaction of the Court. 9. Coming now to the decisions of this Court in Bakhtawar Singh v. State AIR 1951 Sim 157, detention orders had been made under the Preventive Detention Act and the allegations contained in the grounds applied to the detenus inter alia were that they were engaged in the smuggling of cloth and other supplies, the maintenance of which was essential to the community and in furtherance of that object they had indulged in activities prejudicial to the security of the State and the maintenance of Public order. Falshaw, J. (as he then was) found it difficult to see prima facie any connection whatever between smuggling which was essentially a secret operation and the maintenance of "public order" in which the operative word was "public". He found a good deal of force in the allegations made in the petition that the detentions were mala fide not on account of any spite of any individual police officer but for the reason that all the detenus had been accused of persistently committing the offence of smuggling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, the detention orders were rightly quashed according to the law laid down in various decisions of the Supreme Court. It is true that in Ravinder Kumar's case I expressed my view about the meaning of "maintenance of public order" according to what has been said by the Rajasthan Court in Umraomal v. State of Rajasthan, (S) AIR 1955 Raj 6 and the Patna Court in Lalu Gope v. The King AIR 1949 Pat 299 but now the law has been settled by the Supreme Court in AIR 1960 SC 633 and what has been laid down there about the meaning and content of "public order" will have to be kept in the forefront while disposing of the present petition. 10. In Harivansh v. Supdt., Central fail, Criminal Writ No. 10-D of 1963, dated 9-12-1963 (Punj) the petitioners had been detained under Rule 30 of the Defence of India Rules. It was admitted by the counsel for the petitioner that it was not necessary for the District Magistrate to say anything more in the order except that he was satisfied from information received that it was necessary to detain the particular individual with a view to preventing him from acting in any manner prejudicial to the maintenance of public o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strate (Criminal Writ No. 94-D of 1964 (Punj)) decided by Falshaw, C. J. and Mehar Singh, J. on 20-1-1965, it appeared from the order of the Administrator passed on review that the detenu who was detained under the Defence of India Rules was alleged to be a person of dangerous and desperate character who had no ostensible means of subsistence and thrived on the sale of tincture and extortions and who had taken to crime as a career. The details given about his criminal record dated back to 1956 when he was convicted under Section 394, Indian Penal Code, for snatching away a sum of ₹ 2,570 odd from one Hazari Lal. In 1961 one tola of charas and 50 ounces of illicit liquor with a working still were recovered. In both these offences he was convicted under the Excise Act. He was suspected in a number of cases but had managed to subborn the witnesses. He was, therefore, of a dangerous character and a constant menace to the law-abiding citizens. Falshaw, C. J. delivering the judgment of the Bench referred to certain orders of Bedi, J. in which in similar circumstances he had directed release of the detenue. He also referred to my decision in Ravinder Kumar's case and accorded ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the detenu dated back to 1959 which was not proximate in time to the date of the order of detention and nothing else was stated against him except the general allegations of being a notorious gambler etc. It will thus be seen that with the exception of the decision of Dulat and Capoor, JJ. in Harivansh's case, Cri. Writ No. 10-D of 1963, dated 9-12-1963 (Punj) there is no difficulty in holding that all the other cases decided by this Court, although they proceeded on the narrower meaning of the expression "public order" as laid down in Romesh Thappar's case AIR 1950 SC 124 were, with respect, correctly decided according to the principles applicable to such cases which have been discussed before. It has been suggested by the learned counsel for the petitioner that the only ground on which the detenus had been detained in Harivansh's case, Cri. Writ. No. 10-D of 1963, dated 9-12-1963 (Punj) was that they had taken to crime as a career in bootlegging and extortion of money from law-abiding citizens on given intimidation. No details of their activities were given in those cases. In one of the writs (Criminal Writ No. 3-D of 1963) decided by the Bench, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, however, it was held that the police did not carry on investigation of the offence under the Criminal Procedure Code altar the applicant was arrested under the criminal law and a secret investigation was carried on after detaining him under the Security Act. On these facts the Full Bench consisting of Chagla, C. J., Gajendragadkar, J. (as he then was) and Dixit, J. said that the only irresistible inference was that the purpose of detaining the applicant was a collateral purpose and that was to deprive him of his rights and safeguards under the Criminal Procedure Code and to carry on an investigation without the supervision however , laid down that when the detaining authority had made up its mind to detain n of the Court. It was, a person who was alleged to have committed an offence then the detaining authority had made its choice and it would not be permissible to it to investigate the offence while still keeping the person under detention and not complying with the provisions of the law with regard to investigation. If an extraneous circumstance influenced the making of the order, then that order could never be said to have been made bona fide and even if the detaining au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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