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PETITIONER: RAMESHWAR LAL PATWARI

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 01/12/1967

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR 1303            1968 SCR  (2) 505  CITATOR INFO :  R          1968 SC1509  (11)  RF         1969 SC 323  (13)  RF         1973 SC 295  (8)  R          1974 SC 183  (15,18)  R          1974 SC 806  (20)  R          1974 SC 911  (3,7)  R          1979 SC1925  (8)

ACT: Preventive   Detention  Act,  1950-Order  of  detention   by Governor   under  s.  3(1)  (a)(iii)-Grounds  of   detention supplied  to detenu---Must not be  vague--Circumspection  on the  part of detaining authority  required-Blockmarketing  a sufficient ground for detention when proved.

HEADNOTE: The appellant was detained under an order of the Governor of Bihar   State  under  s.  3(1)(a)(iii)  of  the   Preventive Detention  Act, 1950.  The grounds of detention supplied  to him mentioned that he was engaged in the black-marketing  of food-grains.   He made a representation before the  Advisory Board  but  his  release was not  recommended.   In  a  writ petition before the High Court he urged that the grounds  of detention supplied to him were either vague or non-existent. The  petition  having  been  dismissed  by  High  Court  the appellant by special leave, came to this Court. HELD:(i) The formation of the opinion about detention  rests with  the  Government  or  the  officer  authorised.   Their satisfaction  is all that the law speaks of and  the  courts are  not  constituted  an  appellate  authority.   Thus  the sufficiency  of  the grounds cannot be agitated  before  the court.  However, the detention of a person without a  trial, merely  on  the  subjective  satisfaction  of  an  authority however  high,  is  a serious matter. it  must  require  the closest scrutiny of the material on which the decision is fo leaving  no  room for errors or at least  avoidable  errors. Since  the detenu is not placed before a Magistrate and  has only a right of being supplied the grounds of detention with a view to his making a representation to the Advisory Board, the grounds must not be vague or indefinite and must  afford a  real  opportunity to make a  representation  against  the detention.  If a vital ground is shown to be non-existing so

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that  it could not have and ought not to have played a  part in the material for consideration, the court may attach some importance to this fact. [509 D-G] Shibban  Lai  Saksena v. U.P. [1954] S.C.R. 418  and  Keshav Talpade The King Emperor, [1943] F.C.R. 88 referred to. (ii) Black-marketing  is a sufficient ground  for  detention because it has a definite tendency to disrupt supplies  when scarcity  exists  or  scarcity is  created  artificially  by hoarding  to  attain  illegitimate  profits.   Indulging  in black-marketing  is  conduct  which is  prejudicial  to  the maintenance  of  supplies.  It is hardly necessary  to  read supplies  conjunctively  with services, although  cases  may exist where supplies and services may both be affected.  The word ’and’ is not used conjunctively but disjunctively.   If sweepers  strike, no question of disrupting supplies  arises but  services  essential to the life of the  community  will certainly be disruped. [510 B]  Bhim Sen v. State of Punjab, [1952] S.C.R. 19, referred to. (iii)The grounds of detention supplied to the appellant were either non-existent or vague or otherwise deficient and, did not justify the detention of the appellant.  It was a matter of  great  regret that powers of detention without  a  trial which  should  be  exercised  with  the  greatest  care  and attention had been exercised in this case with disregard for truth and accuracy. [514 B-D] 506

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 183 of 1967. Appeal  by special leave from the judgment and  order  dated August  9,  1967 of the Patna High Court  in  Criminal  Writ Jurisdiction Case No. 31 of 1967. M.   C.  Setalvad,  R. L. Kohli and J. C.  Talwar,  for  the appellant. B.P. Jha, for the respondent. The Judgment of the Court was delivered by Hidayatullah,  J.  The  appellant  (Rameshwar  Lal  Patwari) applied under Art. 226 of the Constitution and S. 491 of the Code of Criminal Procedure for a writ or order in the nature of habeas corpus for his release from detention in Bhagalpur Central Jail in pursuance of an order of detention passed by the Governor of Bihar on July 4, 1967 under s.  3(1)(a)(iii) of  the  Preventive Detention Act, 1950.   He  was  arrested under the order on July 11, 1967 and was served on July  13, 1967  with a copy of the grounds on which his detention  was based  to  enable him to make a representation.  He  made  a representation  but  his release was not  recommended.   His application  in the High Court was also dismissed.   He  now appeals by special leave. The  order of the Governor recites that it is  necessary  to make  an order for his detention to prevent him from  acting in any manner prejudicial to the maintenance of supplies and services essential to the community.  The grounds which were furnished to him were as follows :-                (1)  He  is a prominent businessman of  Dumka               and with the association of Sarvashri Mulchand               Choudhury, Kanhaiaya Choudhury, Fulchand Modi,               Pir  Mohammad (Bengaria P.S.) Shikaripara  and               others  he  indulges  in  black-marketing   of               foodgrains.  He has four trucks, one jeep  and               a car which have been registered in the  names               of  his relatives Truck No. BRL 1331 which  is

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             registered  in the name of his  brother-in-law               (sala). Sri Harichandra Agarwala was caught on               29th   December,   1966  at   Ranibabal   near               Mashanjor while carrying 95 bags of peddy  for               illegal  trade.   In this  connection  a  case               under  the Essential Commodities Act has  been               instituted.  He is on bail in this case.                (2)  His trucks always take to wicked  routes               to Saithia (West Bengal) and he himself pilots               them.                 (3) A businessman of Barahiya disclosed that               he  (Rameshwar Lal Patwari) visited  Barahaiya               on  several  occasions  and  purchased   gram,               gramdal under various names and smuggled  them               to West Bengal.               507                (4)  On the night of 2-2-66, Sri R. S. Singh,               1st Class Magistrate along with Sub-Divisional               Officer  Sadar,  other Magistrate  and  police               officers,  raided the house of  Sri  Rameshwar               Lal Patwari and found aft kinds of  foodgrains               in  huge  quantity.  His  stock  register  was               maintained  in  irregular way. fie  could  not               produce  the sale register and took  the  plea               that  it  was produced before the  Income  Tax               Officer.   It  was  found  that  he  has  been               dealing in foodgrains without any licence.   A               case has been instituted in this connection in               which he is on bail.                (5)  Shri Babu Ram Bikaneria, owner of a Rice               Mill at Saitha District Birbhum (West  Bengal)               visited  Dumka on 26-11-66 and told  him  (Sri               Rameshwar  Lal  Patwari) to  supply  gram  and               gramdal.   He  (Sri  Rameshwar  Lal   Patwari)               promised to supply gram and gramdal.  On  7/8-               12-66 Sri Mulchand Choudhury of Rameshwar, who               is his agent sent his truck No. BRJ 2029 load-               ed  with  gram and gramdal to  Saitha  through               Mahesh  Kola  Check post.  His truck  No.  BRL               1366 and van BRL 2005 were found at  Rameshwar               on 7-12-1966 wherefrom he smuggles  foodgrains               to West Bengal.  He purchases gram and gramdal               through  Gopal Mandal of Lakhisarai  (District               Monghyr) and smuggles them to West Bengal.                In  the circumstances, the  State  Government               are  satisfied  that if  Shree  Rameshwar  Lal               Patwari  is  allowed to remain at  large,  he,               will indulge in activities prejudicial to  the               maintenance of supplies and services essential               to  the  community.  For  prevention  of  such               activities, the State Government consider  his               detention necessary.                Shri  Rameshwar Lal Patwari is informed  that               he  may  make  a  representation  in   writing               against the order under which he is  detained.               His  representation, if any, may be  addressed               to  the Under Secretary to  Government,  Poli-               tical  (Special) Department, Bihar, Patna  and               for-warded  through the Superintendent of  the               Jail as soon as possible.                By order of the Governor of Bihar." These  grounds were challenged by the appellant in the  High Court.  According to him some of them did not exist in  fact and  others  were  vague  or  irrelevant.   The  High  Court scrutinised  them  and  came  to  the  conclusion  that  his

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complaint  had  no substance.  In this appeal he  urges  the same  contentions  and submits that the High  Court  was  in error in its conclusion. 508 Before  we consider these grounds in the light of  arguments before  us,  we  may say a few words  about  the  Preventive Detention Act and the extent to which the exercise of powers under  that  Act can be questioned before  courts.   Article 22(1)  and (2) of the Constitution lay down that  no  person who  is arrested shall be detained in custody without  being informed  of  the grounds for such arrest, nor shall  he  be denied  the right to consult and to be defended by, a  legal practitioner  of  his  choice and further  that  the  person arrested  and detained in custody shall be  produced  before the nearest Magistrate within a period of twenty-four  hours and   no  person  shall  be  detained  beyond  that   period (excluding  the time necessary for the journey to the  court of the Magistrate) without the authority of the  Magistrate. To  this there is an exception in sub-cl. (b) of cl. (3)  of the article.  It says that these provisions shall not  apply to  any  person who is arrested or detained  under  any  law providing  for  preventive detention.  There  are,  however, other  safeguards.  Clause (4) of the article provides  that no  law providing for preventive detention  shall  authorise the  ,detention of a person for a longer period  than  three months  unless  an Advisory Board has  reported  before  the expiration  of that period of three months that there is  in its opinion sufficient cause for such detention.  There  are other provisions prescribing other checks with which we  are not presently concerned. In  pursuance  of  this power  Parliament  has  enacted  the Preventive  Detention Act, 1950.  The  Preventive  Detention Act  by its third section enables the Central Government  or the  State  Government,  if satisfied with  respect  to  any person that with a view to preventing him from acting in any manner  prejudicial  to  the  maintenance  of  supplies  and services  essential to the community,-to make an order  that such  person be detained.  There are other grounds on  which the  power to detain may also be exercised but they  do  not apply  here.  This power is also conferred on some  officers named in the section.  When an officer makes an order he has to report to the State Government together with the  grounds on which the order is based and in the like manner the State Government has to report to the Central Government.  Section 11  then  provides  that where  an  Advisory  Board  reports sufficient  cause for the detention of a person,  Government may confirm the detention and continue it for such period as it thinks fit.  If the Advisory Board reports that there  is no  sufficient  cause Government must revoke the  order  and release  the  detenu.   Section 11  -A  pow  prescribes  the maximum period of detention. It  will thus be seen that the report of the Advisory  Board plays ,in important part.  In the present case the report of the Advisory Board has been produced.  It reads                "In  our  opinion, the grounds  of  detention               served   on   the  detenu  also   are   fairly               particular and generally well                                    509                founded.  It cannot, therefore, be said  that               there is no material for his detention in  the               way  in  which he had been  indulging  in  the               transport  of  foodgrains from Bihar  to  West               Bengal frequently.  It cannot be held that the               order   of  detention  passed  upon   him   is               unreasonable.   The  order in  his  case  also

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             cannot be disturbed.                Sd/-  S.  C.  Mishra  25-8-67.   Sd/-  R.  K.               Choudhury.  Sd/- U. N. Sinha." The appellant contends that the Advisory Board has failed to notice also that the grounds furnished to him were vague and irrelevant and some of them did not exist in law. Now  the  law on the subject of, Preventive,  Detention  has been  stated over and over again and it is not necessary  to refer to all that has been decided by this Court on numerous occasions.  We ,shall refer to what concerns this case.  The formation  of  the opinion about detention  rests  with  the Government or the officer authorised. Their satisfaction  is all  that  the  law  speaks  of  and  the  courts  are   not constituted an appellate authority.  Thus the sufficiency of the  -rounds cannot be agitated before the court.   However, the  detention  of a person without a trial, merely  on  the subjective  satisfaction of an authority however high, is  a serious matter.  It must require the closest scrutiny of the material  on which the decision is formed, leaving  no  room for  errors or at least avoidable errors.  The  very  reason that  the courts do not consider the reasonableness -of  the opinion  formed or the sufficiency of the material on  which it   is   based,  indicates  the  need  for   the   greatest circumspection  on  the part of those who wield  this  power over  others.   Since  the detenu is  not  placed  before  a Magistrate  and  has  only a right  of  being  supplied  the grounds   of  detention  with  a  view  to  his   making   a representation  to the Advisory Board, the grounds must  not be vague or indefinite and must afford a real opportunity to make a representation against the detention.  Similarly,  if a vital ground is shown to be non-existing so that it  could not have and ought not to have played a part in the material for  consideration, the court may attach some importance  to this  fact.  Thus it was in Shibban Lal Saksena v. U.P.  (1) that  when  Government  itself confirmed the  order  on  one ground   rejecting   the   other,   the   order   was   held unsustainable.   This Court applied the case of the  Federal Court in Keshav Talpade v. The King Emperor(2) and held that the  detention  on  the  ground  which  survived  could  not be  .allowed  to stand.  The following observations  may  be quoted                ...... The detaining authority gave here  two                             grounds  for detaining the petitioner.   We  can               neither decide whether these grounds are  good               or bad, nor can we attempt                (1) (1954] 1 S.C.R. 418.                (2) [1943] F.C.R. 88.               510                 to assess in what manner and to  what extent               each of these grounds operated on the mind  of               the  appropriate authority and contributed  to               the creation of the satisfaction on the  basis               of which the detention order was made.  To say               that the other ground, which still remains, is               quite  sufficient to sustain the order,  would               be  to substitute an objective  judicial  test               for  the subjective decision of the  executive               authority  which  is against  the  legislative               policy underlying the statute.  In such cases,               we think, the position would be the same as if               one  of these, two grounds was irrelevant  for               the purpose of the Act or was wholly  illusory               and this would vitiate the detention order  as               a whole."

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This  case  is  strongly relied upon  by  Mr.  Setalvad  for reasons which will soon appear.  The other side relies  upon observations  in  Bhim  Sen  v.  State  of  Punjab(1)  where blackmarketing  was  considered  a  sufficient  ground   for detention.   No  doubt  blackmarketing has  at  its  base  a shortening  of supplies because blackmarket flourishes  best when the availability of commodities is rendered  difficult. It has a definite tendency to disrupt supplies when scarcity exists  or scarcity is created artificially by  hoarding  to attain illegitimate profits.  Indulging in blackmarketing is conduct which is prejudicial to the maintenance of supplies. It  is hardly necessary to read supplies conjunctively  with services  as  was contended although cases may  exist  where supplies and services may both be affected.  The word  ’and’ is  not used conjunctively but disjunctively.   If  sweepers strike,  no question of disrupting supplies arises but  ser- vices essential to the life of the community will  certainly be disrupted. Looked  at from this angle, can we say that the  detenu  was supplied  grounds  which  were not vague  or  indefinite  or irrelevant  or  non-existing’?   The  grounds  are  five  in number.   Putting aside the first and fifth -rounds for  the time,  we may refer to the second, third and fourth  grounds first.  The second ground says that "his trucks always  take to  wicked  routes to Saithia (West Bengal) and  he  himself pilots  them." This ground is extremely vague.  It does  not mention  a  single instance of a truck taking  a  particular route so that the detenu could prove to the satisfaction  of the Advisory Board that the statement was false.  In.   Bhim Sen’s  case the conduct of the black--marketer was shown  in an  appendix.  Here no particulars are furnished and  beyond denying  the  allegation, the detenu cannot  make  effective representation.   The  details  could not be  such  as  were required  to  be concealed in the public interest  under  s. 7(2)  of the Act.  The third ground that "a  businessman  of Barahiya  disclosed that he (Rameshwarlal  Patwari)  visited Barahiya  on several occasions and purchased  gram,  gramdal under various (1)  [1952] S.C.R. 19.                             511 names  and smuggled them to West Bengal" is  equally  vague. Learned  counsel  for the State admitted that  some  details were  necessary  to give the detenu an opportunity.   It  is obvious that without the names of shops, dates of  purchase, etc.  it  is  next  to  impossible  to  controvert  such  an allegation.   The fourth ground speaks of a pending case  in which the appellant is said to be on bail.  The grounds were furnished  in  July 1967.  The appellant was tried  for  the offence  and acquitted as far back as February  1967.   This ground discloses carelessness which is extremely disturbing. That  the  detaining  authority  does  not  know  that   the appellant  was  tried  and  acquitted  months  before,   and considers the pendency of the case against him as one of the grounds  of detention shows that due care and  attention  is not being paid to such serious matters as detention  without trial.  If the appellant was tried and acquitted, Government was required to study the judgment of acquittal to  discover whether all these allegations had any basis in fact or  not. One can understand the use of the case if the acquittal  was technical  but not when the case was held to be  false.   In any event, even if there was no need to consider the  result of  the case the case could not be referred to as a  pending case. What  is  still  more disquieting is the  attempt  to  avoid admitting frankly that there has been a mistake in including

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this ground. in the return this is what is said :                "That the facts stated in paragraph 4 of  the               ground  of detention are not non  est.   Those               facts stated in paragraph 4 even existed after               acquittal.   In regard to the facts stated  in               paragraph  4 the prosecution failed  to  prove               the  prosecution case and, therefore,  he  was               acquitted.   The detenu had full knowledge  of               the  facts that he was acquitted by the  Court               in  regard to the facts stated in paragraph  4               of the grounds of detention and, therefore, he               was not handicapped in making a representation               to the Advisory Board." This  means that anything wrong or even false may be  stated in  the grounds leaving the detenu to deny it and prove  his version.   The attempt to cover up the mistake is as  futile as it is disingenuous. This  leaves  over the first and fifth  grounds’  The  first charges  the appellant with blackmarketing of foodgrains  in conjunction  with  certain  named  persons.   No  facts  are mentioned and this part of the ground is equally vague.   No incident  is  cited except one.  The ground goes on  to  say that  his trucks, jeep and car -Ire registered in the  names of  his  relatives.  One such truck  is  mentioned,  namely, truck No. BRL 1331.  It is said to be registered in the name of his brother-in-law and it is further stated that it was 512 caught  on December 29, 1966 at Ranibahal  (near  Mashanjor) while carrying 95 bags of paddy for ’illegal trade’ and that in  this connection a case under the  Essential  Commodities Act has been instituted against ’him’.  It is hot clear  who is  meant the appellant or his brother-in-law.  In a  notice from the District Supply Officer, Dumka it was stated :                "It  was  learnt  from your  driver  that  on               29-11-66 (sic) at 3.50 a.m., ninety five  bags               of paddy (190 mds.) was coming from  Ranibahal               to  Dumka in your truck BRL 1331  belonged  to               you. . . . " The appellant has denied that the paddy belonged to him.  He pointed  out  that in the notice it was  admitted  that  the paddy  was  being  taken to Dumka in  Bihar,  while  in  the grounds it was stated that it was on its way to West  Bengal and that carrying of goods from Ranibahal to Dumka (both  in Bihar) was no offence.  In his reply to the District  Supply Officer the appellant had stated :                "1.  I  am  a retail  dealer  in  food-grains               holding foodgrain License No. 204 of 1966.                2.   The truck bearing No. BRL 1331 does  not               belong to me.                3.   The said 95 bags of paddy loaded on  the               said truck No. BRL 1331 does not belong to me.               The  fact  is that the said 95 bags  of  paddy               belong  to Shri Prahlad Rai Giluka of  village               Banskuli, P. S. Ranishwar who is a  cultivator               which he had agreed to sell to me on condition               that  the delivery of the said paddy  will  be               made to me at Dumka.                I  therefore,  request that the  cause  shown               above be accepted and the proceedings, if any,               may kindly be dropped." It appears that Prahlad Rai Giluka of Mouza Banskuli, P. S. Ranishwar confirmed this before the District Supply  Officer by stating as follows :-                "1. That your petitioner is a cultivator  and               owns  more than 100 bighas of Dhani  lands  at

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             Mouza  Murgani  Ranibahal and  Kumnirdaha  and               other villages which are contiguous villages.                2.                3.   That  the petitioner’s  son  Prabhudayal               Giluka  is  to start a business  and  as  such               there  was  necessary (sic) of  fund  and  the               petitioner  proposed to sell 95 bags of  paddy               to one Rameshwar Lal Patwari of Dumka from his               Murgani and Ranibahal land.               513                4.   That  it was agreed that the paddy  will               be delivered at Dumka where the price will  be               paid.                5.   That the petitioner accordingly  engaged               the  truck of one Haris Chandar Agarwala,  his               BRL  1331 and asked his Munshi Mahadev Pal  to               load 95 bags of paddy in the truck.                6.                7.   That  when the paddy in question was  in               the process of loading at Ranibahal the  paddy               was  seized by the District Supply Officer  on               29-12-66.                8.                9.               10. That the paddy in question is not involved               in  any  offence the same should  be  released               forthwith." When  these  documents came to be filed, the return  of  the State  Government made the following reply and  avoided  the issue:                "4  It appears that the notice was issued  on               the  statement of the driver of the truck  who               stated  that he was bringing 95 bags of  paddy               from Ranibahal to Dumka in the truck belonging               to the appellant.  The statement of the driver               clearly  shows that the truck belonged to  the               appellant.  The driver did not’ tell  anything               about  the  facts stated in  annexure  ’D’  to               special leave paper book (Page 49 to 51)." This  shows that there was no inquiry at all.   The  alleged statement of the driver was accepted and it was assumed that the  paddy  was being taken to West Bengal.   At  least  the explanation  of  the  persons  concerned  could  have   been obtained.  This is clearly a case of jumping to a conclusion which is being lamely justified, when it is questioned  with written record.  In these circumstances there is much reason to think that this ground probably did not exist although we are not in a position to say that it is non-existing. The fifth ground mentions that one Babu Ram Bikanaria wanted gram and gramdal at his Rice Mill at Saitha District Birbhum (West  Bengal) and visiting Dumka contacted  the  appellant. The  latter  promised to supply gram and  gramdal.   On  7/8 December 1966 one Mulchand Choudhury sent truck No. BRJ 2029 loaded  with gram and gramdal to Saitha through Mahesh  Kola checkpost.   Further Mulchand’s truck No. BRL 1366  and  van BRL  2005 were found at Raneshwar on December 7,  1966  from where  ’he’ smuggles foodgrains to West Bengal.   ’He’  pur- chases  -ram and gramdal through Gopal Mandal of  Lakhisarai (Dist.   Monghyr) and smuggles them to West Bengal.   It  is again Sup.C1/68-2 514 not  clear who this ’he’ is.  The appellant has denied  that he  does  in gram and gramdal and has  any  connection  with Gopal Mandal of Lakhisarai or knows him.  He has denied  all

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contact  with such persons.  No reply to this was  given  in the return filed in this Court. It  appears that there may be suspicion that  the  appellant may  be  connected  with some blackmarketing.   We  are  not concerned with the sufficiency or the reasonableness of  the grounds.   In this case at least two grounds are vague,  one ground  is  found to be false -and of the remaining  in  one there  is no explanation and in the -other there is  a  lame excuse that the driver of the truck did not furnish the full information.   The case is thus covered by our rulings  that where  some  grounds are found to be  non-existing  or  -are cancelled  or given up, the detention cannot  be  justified. It  is further covered by our decisions that if the  grounds are not sufficiently precise and do not furnish details  for the purpose of making effective representation the detention can  be questioned.  This case displays both  these  defects and it is a matter of great regret that powers of  detention without  a  trial,  which  should  be  ,exercised  with  the greatest care and attention have been exercised in this case with such disregard for truth and accuracy.  We  accordingly allow the appeal and hold the detention of the appellant  to be illegal and order his release. G.C.                            Appeal allowed. 515