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HIGH COURT OF CALCUTTA
P. B. Mukharji, Guha
RAMAN LAL RATHI - Appellant
Versus
COMMISSIONER OF POLICE - Respondent
Criminal Misc. Case 253 Of 1951
Decided On : JULY 30, 1951
PREVENTIVE DETENTION ACT - GROUNDS OF DETENTION - SUFFICIENCY - MALA FIDE - ADVISORY BOARD - JURISDICTION OF COURTS - HABEAS CORPUS - ARTICLE 22 (5) OF THE CONSTITUTION - SECTIONS 3, 8, 9, 10 AND 11 OF THE PREVENTIVE DETENTION ACT, 1950 (ACT IV OF 1950) AS AMENDED BY ACT IV OF 1951 - SECTION 491, CRIMINAL PROCEDURE CODE - ARTICLE 226 OF THE CONSTITUTION.
Fact of the Case:
The applicant was detained under the Preventive Detention Act, 1950, as amended by Act IV of 1951. The order of detention was challenged on three grounds: (1) that the grounds communicated to the applicant were not sufficient, exact and precise and they were too vague; (2) that it was illegal because its purpose was to nullify an order of acquittal and two orders of discharge, passed by Courts of law in favour of the applicant in some criminal cases brought against him; and (3) that it was mala fide.
Finding of the Court:
The Court held that the grounds of detention were not bad for vagueness and they were not such that the detenu's constitutional right of representation against the order of detention was in any way prejudiced or defeated. The Court also held that the order of detention under the Preventive Detention Act was not illegal merely because it nullified a previous order of discharge or acquittal by a Court in a criminal or a quasi-criminal case. Further, the Court held that the order of detention was not mala fide merely because it was made after the failure of prosecution under the ordinary criminal law. The Court also held that the petitioner had the legal and constitutional right to approach the Court before he had made any representation or before there was any reference to, the Advisory Board and before the time for such reference or report by the Board had expired.
Issues: 1. Whether the grounds of detention were sufficient, exact and precise and they were not too vague. 2. Whether the order of detention was illegal because its purpose was to nullify an order of acquittal and two orders of discharge, passed by Courts of law in favour of the applicant in some criminal cases brought against him. 3. Whether the order of detention was mala fide. 4. Whether the petitioner had the legal and constitutional right to approach the Court before he had made any representation or before there was any reference to, the Advisory Board and before the time for such reference or report by the Board had expired.
Ratio Decidendi: 1. The grounds of detention must be such as to enable the detenu to make what has been called an "effective representation". Vagueness of grounds therefore is not an abstract notion but is always to be examined by the test whether the grounds permit the detenu to make an effective representation or not. 2. The order of detention under the Preventive Detention Act is not illegal merely because it nullifies a previous order of discharge or acquittal by a Court in a criminal or a quasi-criminal case. The satisfaction of the Government under the Preventive Detention Act is not a "trial" and the constitutional protection against double jeopardy under Article 20 (2) of the Constitution is also inapplicable because satisfaction under the Preventive Detention Act is not a "prosecution". 3. The order of detention is not mala fide merely because it is made after the failure of prosecution under the ordinary criminal law. The Government is no more infallible than any other human agency or institution and there is no reason why such acquittal must necessarily mean that the acquitted person nevertheless cannot be acting in a mariner prejudicial to national security or maintenance of essential supplies and services as mentioned in Section 3 of the Preventive Detention Act. 4. The petitioner has the legal and constitutional right to approach the Court before he has made any representation or before there was any reference to, the Advisory Board and before the time for such reference or report by the Board had expired. The Courts and the Advisory Boards function in different arenas and the Courts' order of dismissal is not an adverse adjudication on the merits of the "cause for detention" in this context.
Final Decision: The Court dismissed the application and discharged the Rule.
( 1 ) THIS Rule was obtained against the Commissioner of Police, Calcutta, the Superintendent of Presidency Jail and the State of West Bengal.
( 2 ) THE applicant before us has been detained under the Preventive Detention Act, 1950, (Act IV of 1950) as amended by Act IV of 1951. The order of detention was made on the 10th July 1951 and served on the applicant on the next day, the 11th July, 1951. The grounds of detention were made out on the 12th July 1951 and communicated to the applicant on the 16th July 1951.
( 3 ) THE order of detention has been challenged on three grounds. It is said first that the grounds communicated to the applicant are not sufficient, exact and precise and they are too vague. The second ground of attack upon the order of detention is that it is illegal because its purpose is to nullify an order of acquittal and two orders of discharge, passed by Courts of law in favour of the applicant in some criminal cases brought against him. Thirdly, the order of detention has been assailed on the ground that it is mala fide.
( 4 ) ANOTHER point of considerable importance has been urged on behalf of the State. It has been argued that the structure of the Preventive Detention Act especially after its amendment is such that this application is premature and cannot be maintained before the Advisory Board examines the case of detention of the person concerned. In this case no representation has yet been made by the detenu and no reference has yet been made to the Advisory Board and the time for the same has not yet expired.
( 5 ) IN order to decide the contention that the grounds supplied in this case are too vague and not sufficient, exact or precise, the grounds themselves should be examined. The grounds in this case are:"1. That you, with the object of securing Indian Mill-made textile goods which are in short supply and smuggling the same out of Calcutta for extra profits, have been systematically engaging yourself in smuggling Mill made cotton goods out of Calcutta; 2. That on the 28th November, 1947, you smuggled 10 bales of new Textile goods out of Calcutta and these bales were intercepted and seized along with the truck carrying the same at Bongoan on the Pakistan border and that you produced a forged movement permit and were sent up in Bongoan P. S. Case No. 15 D/- 30-11-1947 and were convicted and sentenced to 2 years R. I. and to pay a fine of Rs. 1,000/- in default 6 months more; 3. That although you were finally acquitted of the charge against you in the aforementioned ease by the Hon'ble High Court you have in the meantime secured a textile licence in the name of the firm Phusraj Maheswari at Burrabazar of which you are the sole proprietor and financing the same. Phusraj Maheswari was your partner in the name only. 4. That you have been disposing of cloth in an improper way through the agency of Baldeodas Kuthari, a relation and. realised higher prices, and that on 22-1-1951, your relation Baldeodas Kuthari when arrested on Harrison Road, for hawking cloth without a licence it was found that he was living in your Gaddi at 14, Pageyapatty and the sarees found in his possession were of the same mill and bearing the same number which were imported by you and apparently sold out. 5. That on 25-1-1951 you were arrested for your complicity in the bovementioned case at Burrabazar in which the said Baldeodas was sent up for trial but you were discharged for want of sufficient evidence. 6. That you were again arrested in connection with N. D. P. P. Case No. 109 Dt. 25-5-51 (since transferred to Sec. D. Case No. 560 Dt. 26-5-51) for your complicity in the removal of textile goods which were seized during transit: 7. "that your local reputation is bad so much so that you are known as a smuggler and profiteer coupled with a tendency to thwart people whenever opposed in such nefarious activities. "
( 6 ) THESE are the grounds on which the order of detention was made in the present case.
( 7 )
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