http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: DWARKA DASS BHATIA

       Vs.

RESPONDENT: THE STATE OF JAMMU AND KASHMIR.

DATE OF JUDGMENT: 01/11/1956

BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. SINHA, BHUVNESHWAR P. IMAM, SYED JAFFER

CITATION:  1957 AIR  164            1956 SCR  948

ACT: Preventive   Detention-Grounds  based  on  alleged   illicit smuggling  of  three   categories  of  essential  goods   to Pakistan-Two  categories  found not to be  essential  goods- Whether order of detention bad Jammu and Kashmir  Preventive Detention Act, 2011, ss. 3(2) and 12(1).

HEADNOTE: The  petitioner  was  detained  by virtue  of  an  order  of detention passed by the District Magistrate, Jammu, under s. 3(2) of the Jammu and Kashmir Preventive Detention Act, 2011 and  that  order  was confirmed and continued  by  an  order passed  by the Government of the State of Jammu and  Kashmir under  s. 12(1) of the Act after taking the opinion  of  the Advisory Board.  The order recited that it was necessary  to detain  the  petitioner with a view to preventing  him  from acting  in  a  manner  prejudicial  to  the  maintenance  of supplies  and  services essential to the community  and  was based  on  the ground of alleged illicit  smuggling  by  the petitioner  of essential goods such as shaff on cloth,  zari and  mercury to Pakistan.  It was found that  shaffon  cloth and  zari were not essential goods.  It was not  established that   the  smuggling  attributed  to  the  petitioner   was substantially  only  of. mercury or that  the  smuggling  as regards  shaffon  cloth and zari was of  an  inconsequential nature. Held, that the order was bad and must be quashed.  The  sub- jective  satisfaction  of the detaining  authority  must  be properly based on all the reasons on which it purports to be based.   If some out of those reasons are found to  be  non- existent or irrelevant, the Court cannot predicate what  the subjective satisfaction of the authority would have been  on the exclusion of those reasons.  To 949 uphold  the  order  on the remaining  reasons  would  be  to substitute  the  objective standards of the  Court  for  the subjective  satisfaction of the authority.  The Court  must, however,  be satisfied that the vague or irrelevant  grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the authority. Keshav Talpade v. The King Emperor ([1943] F.C.R. 88),  Atma

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

Ram  Sridhar  Vaidya’s  case ([1951] S.C.R.  167),  Dr.  Ram Krishan  Bhardwaj v. The State of Delhi ([1953] S.C.R.  708) and Shibban Lal Saksena v. The State of U.P. ([1954]  S.C.R. 418), relied on.

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 172 of 1956. Under  Article  32  of the Constitution for a  writ  in  the nature of Habeas Corpus. S. N. Andely, amicus curiae, for the petitioner. Porus  A.  Mehta,  T.  M. Sen and  R.  H.  Dhebar,  for  the respondent. 1956.   November 1. The Judgment of the Court was  delivered by JAGANNADHADAS J.-This is an application under article 32  of the  Constitution for the issue of a writ in the  nature  of habeas corpus against the State of, Jammu and Kashmir by the petitioner  who  was under detention by virtue of  an  order dated  the 5th September, 1956, issued by the Government  of the State of Jammu and Kashmir under sub-section (2) of sec- tion 3 taken with sub-section (1) of section 12 of Jammu and Kashmir Preventive Detention Act, 2011 (hereinafter referred to  as  the  Act).  The petitioner was  first  placed  under detention  by  virtue  of an order passed  by  the  District Magistrate, Jammu, under subsection (2) of section 3 of  the Act  on the 1st May, 1956, and that order was confirmed  and continued on the 5th September, 1956, under sub-section  (1) of section 12 of the Act by the Government after taking  the opinion of the Advisory Board.  The two orders of detention, one of the District Magistrate dated the 1st May, 1956,  and the  other of the Government dated the 5th September,  1956, recited  that  the  petitioner is directed  to  be  detained because it was, necessary to make such an order "with a view to preventing him 950 from  acting in a manner prejudicial to the  maintenance  of supplies  and  services essential to  the  community".   The grounds  of detention as communicated to the  petitioner  on the  31st May, 1956, by the District Magistrate, Jammu,  are as -follows: "1.  That  you carried on smuggling of  essential  goods  to Pakistan through the Ferozpur and Amritsar border, but since the  tightening  of said borders you have  recently  shifted your   smuggling  activities  to  Ranbirsinghpura   Pakistan borders  in the State of Jammu and Kashmir and are  carrying on illicit smuggling of essential goods such as cloth,  zari and mercury to Pakistan through this border (thus  affecting the  economic  condition  of the  public  in  Kashmir  State adversely). 2.   That  for  the said purpose of smuggling  of  goods  to Pakistan you went to village Darsoopura on 7th April,  1956, and  contacted  Ghulam Ahmed son of Suraj  bin  resident  of Darsoopura  Tehsil  Ranbirsinghpura and one Ram Lal  son  of Frangi  resident of Miran Sahib Tehsil  Ranbirsinghpura  and others  who I similarly are addicted to carrying on  such  a smuggling business and with their aid made arrangements  for export of Shaffon cloth worth Rs. 2,500 to Pakistan  through Ranbirsinghpura Pakistan border. 3.   That  on  11-4-1956, you booked 3 bales of  silk  cloth through Messrs Jaigopal Rajkumar Shegal of Amritsar to Jammu Tawi and got these bales on address of yourself, and on  the same day you got one package of Tila booked through S. Kanti Lal  Zarianwalla  of  Amritsar and  got  this  package  also

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

addressed "To self" for Jammu Tawi. That after booking these packages as aforesaid you came over to  Jammu and waited for their arrival and contacted  Ghulam Ahmed and Ram Lal the above mentioned persons. That on the 15th April, 1956, you tried to get the transport receipt from the Punjab National.  Bank but did not  succeed in  doing  so as it was a public  holiday.   Meanwhile  your activities leaked out and the goods 951 were seized by the Central Customs and Excise Department  of India. 2.There are other facts also but those cannot be given as  I consider  their  disclosure  would  be  against  the  public interest. That by resorting to the above activities you have been  and are acting in a manner prejudicial to the maintenance of the supplies and services essential to the community". It  will be seen from the above grounds that the reason  for the detention is the alleged "illicit smuggling of essential goods  such as cloth, zari and mercury to  Pakistan  through the border, thereby affecting the economic condition of  the public,  in Kashmir State adversely".  From the  particulars set  out in paragraph 2 of the grounds, it appears that  the cloth referred to in paragraph I is Shaffon cloth.  The High Court  of Jammu and Kashmir, to whom a  similar  application was  filed by this petitioner along with a number of  others similarly  detained for illicit smuggling of goods,  has  in its  judgment dated the 21st June, 1956" held  that  Shaffon cloth  is not within the category of an essential  commodity as  defined  in the Essential  Supplies  (Temporary  Powers) Ordinance  of Jammu and Kashmir.  There is no indication  in the  High  Court  judgment  whether zari is  or  is  not  an essential  commodity in the same sense.  But in answer to  a query from this Court, Shri Porus Mehta who appeared  before us  on behalf of the State of Jammu and Kashmir has  stated, on  instructions,  that  zari which is  obviously  a  luxury article  is  not one of the commodities  declared  essential under  the above Ordinance.  The High Court, when  it  dealt with the batch of applications, of which the application  of the petitioner before us was one, set aside the detention of number of others on the ground that the smuggling attributed to  the  individuals  concerned in those cases  was  not  of essential goods.  So far as this petitioner is concerned the High Court held as follows: "The case of Dwarika Das Bhatia stands on s 952 different footing altogether.  The allegation against him is that he smuggled into Pakistan some goods such as cloth  and zari along with a certain quantity of mercury.  Mercury is a non-ferrous  metal  and according to the  definition  of  an essential   commodity  given  in  the   Essential   Supplies (Temporary  Powers)  Ordinance,  mercury  is  an   essential commodity.   This being so, Dwarika Das  Bhatia’s  detention cannot be challenged". The  point raised before us is that since the  detention  is based on the assumption that Shaffon cloth and zari as  well as mercury are all essential goods and since two out of  the three  categories  of  the  goods  with  reference  to   the smuggling  of  which the detention has  been  directed,  are found  not  to  be  essential goods,  the  entire  order  is illegal,  although  one of the items, viz.,  mercury  is  an essential  commodity.   In support of this  contention,  the cases  of this Court in Dr.  Ram Krishan Bhardwaj  v.  The,, State  of Delhi(1), and Shibban Lal Saksena v. The State  of U. P. (2) are relied upon.  Learned counsel for the State of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

Jammu  and  Kashmir  contends that the  principle  of  these decisions  has  no  application to  the  present  case,  and attempts  to distinguish the same.  In order  to  understand the principle underlying these two cases, it is necessary to examine them in some detail. In  Dr. Ram Krishan Bhardwaj’s case (supra) the  two  points that  were raised were (1) whether an order of detention  is invalid  if  the  grounds supplied in  support  thereof  are vague,  and (2) whether the vagueness of one or some of  the various  grounds  vitiates the entire order.   The  argument advanced in that case was based on the view adopted by  this Court in the decision in Atma Ram Sridhar Vaidya’s  case(3), viz., that the obligation cast on the detaining authority to supply  grounds is for the purpose of enabling a detenue  to make a fair representation to the authority concerned and to the  Advisory  Board, against the order of  detention.   The argument was that in a (1) [1953] S.C.R. 708.         (2) [1954] S C.R. 418. (3)[1951] S C.R. 167. 953 case  where  one  or  more of the  grounds  are  vague,  the petitioner   is   handicapped   in   making   an    adequate representation as regards that ground and his representation even if effective in respect of the other grounds, may  fail to carry conviction as regards the ground which is vague and that  this  might result in the detention  being  confirmed. The  Court stated that that argument was not  without  force and held as follows: "The question however is not whether the petitioner will  in fact be prejudicially affected in the matter of securing his release    by   his   representation,   but   whether    his constitutional  safeguard  has been  infringed.   Preventive detention is a serious invasion of personal liberty and such meager  safeguards as the Constitution has provided  against the improper exercise of the power must be jealously watched and  enforced by the Court.......... We are Of opinion  that this  constitutional  requirement  must  be  satisfied  with respect  to each of the grounds communicated to  the  person detained,  subject  of course to a claim  of  the  privilege under  clause (6) of article 22.  That not having been  done in regard to the ground mentioned.......... the petitioner’s detention  cannot  be  held to be  in  accordance  with  the procedure  established by law within the meaning of  article 21". Shibban Lal Saksena v. The State of U. P. (supra) is a  case where  the question arose in a different form.  The  grounds of  detention communicated to the detenue were  of  two-fold character, i.e., fell under two different categories,  viz., (1)  prejudicial  to maintenance of  supplies  essential  to community, and (2) injurious to maintenance of public order. When the matter was referred to the Advisory Board, it  held that  the first of the above grounds was not made out  as  a fact  but  upheld  the  order on  the  second  ground.   The question  before the court was whether this confirmation  of the original order of detention, when one of the two grounds was found to be non-existent by the Advisory Board, could be maintained.   Their  Lordships  dealt  with  the  matter  as follows: 124 954 "It has been repeatedly held by this court that the power to issue  a detention order under section 3 of  the  Preventive Detention Act depends entirely upon the satisfaction of  the appropriate  authority  specified  in  that  section.    The sufficiency  Of  the grounds upon  which  such  satisfaction

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

purports  to  be  based,  provided  they  have  a   rational probative  value  and  are not extraneous to  the  scope  or purpose of the legislative provision cannot be challenged in a court of law, except on the ground of mala fides.  A Court of  law is not even competent to enquire into the  truth  or otherwise  of  the facts which are mentioned as  grounds  of detention in the communication to the detenue under  section 7 of the Act." Posing the situation which arises in such cases where one of the  grounds is found to be irrelevant or  un.substantiated, the Court stated as follows: "The question is, whether in such circumstances the original order made under section 3(1) (a) of the Act can be  allowed to  stand.  The answer, in our opinion, can only be  in  the negative.  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 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.   This  principle, which  was  recognised by the Federal Court in the  case  of Keshav  Talpade  v. The King Emperor(1), seems to us  to  be quite sound and applicable to the facts of this case". (1)  [1943] F.C.R. 88. 955 In  Keshav  Talpade’s case(1) the learned Judges  stated  as follows: "If a detaining authority gives four reasons for detaining a man,  without  distinguishing between them, and any  two  or three  of  the reasons are held to be bad, it can  never  be certain to what extent the bad reasons operated on the  mind of  the authority or whether the detention order would  have been  made at all if only one or two good reasons  bad  been before them". The  principle underlying all these decisions is this  power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference  to- specified  matters,  if that satisfaction is  stated  to  be based on a Dumber of grounds or for a variety of reasons all taken together, and if some out of them are found to be non- existent  or irrelevant, the very exercise of that power  is bad.   That is so, because the matter being one for  subjec- tive  satisfaction,  it must be properly based. on  all  the reasons  on which it purports to be based.  If some ,out  of them  are found to be non-existent or irrelevant, the  Court cannot  predicate  what the subjective satisfaction  of  the said  authority  would have been on the exclusion  of  those grounds or reasons.  To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the-objective standards of the  Court for the subjective satisfaction of the statutory  authority. In  applying  these principles, however, the Court  must  be satisfied that the vague or irrelevant grounds are such as-, if  excluded, might reasonably have affected the  subjective satisfaction of the appropriate authority.  It is not merely because some ground or reason of a comparatively unessential

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

nature  is defective that such an order based on  subjective satisfaction  can  be held to be invalid.  The  Court  while anxious to safeguard the personal liberty of the  individual will  not lightly interfere with such orders.  It is in  the light of these principles that the validity of the  impugned order has to be judged. (1) [1943] F. C. R. 88. 956 In this case, the order of detention is based on the  ground that  the  petitioner  was  engaged  in  unlawful  smuggling activities  relating to three commodities, cloth,  zari  and mercury of which two are found not to be essential articles. No material is placed before us enabling us to say that  the smuggling  attributed  to the petitioner  was  substantially only of mercury and that the smuggling as regards the  other two  commodities was of an inconsequential nature.   On  the other  hand the fact that the particulars furnished  to  the detenue on the 31st May, 1956, relate only to cloth and zari (we understand that tila referred to in paragraph 3 is zari) indicates that probably the smuggling of these two items was not of an inconsequential nature. We are, therefore, clearly of the opinion that the order  of detention in this case is bad and must be quashed.  We  have accordingly  quashed  the  order and  directed  the  release forthwith of the detenue on the conclusion of the hearing on the 29th October, 1956.                                     Petition allowed.