Punjab-Haryana High Court
Chander Parkash vs The Union Of India (Uoi) (Central ... on 27 May, 1965
Equivalent citations: AIR1967P&H209, AIR 1967 PUNJAB AND HARYANA 209
Author: H.R. Khanna
Bench: H.R. Khanna
ORDER H.R. Khanna, J.
1. This judgment would dispose of two petitions under Article 226 of the Constitution of India (Criminal Writs Nos. 47-D and 51-D of 1965), which have been filed by Chander Parkash and Raminder Singh respectively for issuance of writ for habeas corpus.
2. The brief facts of the case are that at the relevant time Chander Parkash petitioner was a lower division clerk in the Directorate of Equipment in the Air Headquarters, while Raminder Singh petitioner was a lower division clerk in the Army Headquarters. On 6th December 1964 both the petitioners were arrested in connection with a case registered under the Official Secrets Act. Seven other persons were also arrested in that case and on 11th March 1985 an application was made by the Deputy Superintendent of Police before the Sub-Divisional Magistrate, New Delhi, that the two petitioners and seven others might be discharged as sufficient evidence for their judicial conviction was not forthcoming during investigation. On the same day i.e., on llth March 1965 the Central Government made separate orders under Rule 30 of the Defence of India Rules for the detention of the petitioners. The detention orders are in identical terms except for the change of the name of the detenu and the number of the order, and, in the circumstances, it would be enough to reproduce the order in respect of one of the petitioners. It reads as under :-
Government of India Ministry of Home Affairs, New Delhi-11 the llth March, 1965.
ORDER Where as the Central Government is satisfied that with a view to preventing Shri Chander Prakash Gupta son of late Shri Lall Chand Gupta, residing at Block E-4, House No. 23, Ambar Colony, Lajpat Nagar, New Delhi, from acting in a manner prejudicial to the defence of India, public safety and India's relations with foreign powers, it is necessary that he should be detained :
Now, therefore, in exercise of the powers conferred by Clause (b) of Sub-rule (1) of Rule 30 of the Defence of India Rules, 1962, the Central Government hereby directs that the said Shri Chander Prakash Gupta be detained.
Sd/-
(A. Sen) Joint Secretary to the Government of India for and on behalf of the President of India."
The detention orders were served on the petitioners the same day i.e., on llth March 1965, and since then the petitioners are under detention. The petitioners nave challenged their detention by means of these petitions mainly on the ground that as they were arrested in a case under the Official Secrets Act, they should have been tried for the offence under that Act and could not be detained under the Defence of India Rules. Grounds have also been taken that as the petitioners were already in custody, the detention orders could not be validly served upon them. Grievance has also been made of the tact that the grounds, on which the detention orders were based, have not been supplied to the petitioners.
3. The petitions have been resisted by the respondents and the affidavits of Shri Asoka Sen, Joint Secretary to the Government of India, Ministry of Home Affairs, have been filed in reply.
4. I have heard Mr. Harbans Singh and Mr. Chopra on behalf of the petitioners, and Mr. Parkash Narain on behalf of the respondents, and am of the view that no case has been made out for interfering with the detention of the petitioners. The orders for detention have been made under Clause (b) of Sub-rule (1) of Rule 30 of the Defence of India Rules, which reads as under :--
"30. Restrictions of movements of suspected persons, restriction orders, and detention orders.
(1) The Central Government or the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the "maintenance of public order, India's relations with foreign powers the maintenance of peaceful conditions in any part of India or the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community, it is necessary so to do, may make an order--
(a) x x x
(b) directing that he be detained;" Perusal of the above provision of law goes to show that it is the Central Government or the State Government, as the case may be, which has to be satisfied about the necessity of detaining a person with a view to preventing him from acting in a manner prejudicial to the defence of India, public safety, India's relations with foreign powers and other specified matters. It is further clear from the above provision that if the Central Government or the State Government, as the case may be, is so satisfied, it can pass an order for the detention of the person concerned. In the present case the detention orders, made by the Central Government, show that the Government was satisfied that with a view to reventing the petitioners from acting in a manner prejudicial to the defence of India, Public safety and India's relations with foreign powers it was considered necessary that the petitioners should be detained. Besides that, we have the affidavits of Shri Asoka Sen, Joint Secretary to the Government of India, Ministry of Home Affairs, which go to show that on the basis of the available material the Central Government was satisfied that the petitioners should be detained with a view to preventing them from acting in a manner prejudicial to the defence of India, public safety and India's relations with foreign powers. As the law contemplates the subjective satisfaction of the Central Government about the need of detention and as the purpose for which the petitioners have been detained is that mentioned in Rule 30, the detention of the petitioners must be upheld, because the Court cannot substitute its own judgment for that of the Government and hold that even though the Government was satisfied about the necessity of detention it should not have been so satisfied on the material before it.
It is now well settled that it is the Government which has to be satisfied about the need of detention provided the grounds of detention are related to the objects mentioned in Rule 30 and in case the Government s satisfied about the existence of those grounds the Court, in a petition for habeas corpus, cannot interfere unless it is shown that the order of the Government is mala fide. Reference in this connection may be made to the State of Bombay v. Atma Ram, AIR 1951 SC 157 and Sohan Singh v. State of Punjab, (1963) 65 Pun LR 457: (AIR 1963 Punj 408). As observed by their Lordships of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan, AIR 1964 SC 334, while dealing with a detention under the Preventive Detention Act--
"It is true that the satisfaction of the detaining authority to which Section 3(1)(a) refers in his subjective satisfaction, and so is not justiciable. Therefore, it would not be open to the detenu to ask the Court to consider the question as to whether the said satisfaction of the detaining authority can be justified by the application of objective tests. It would not be open, for instance, to the detenu to contend that the grounds supplied to him do not necessarily or reasonably lead to the conclusion that if he is not detained, he would indulge in prejudicial activities. The reasonableness of the satisfaction of the detaining authority cannot be questioned in a Court of law; the adequacy of the material on which the said satisfaction purports to rest also cannot be examined in a Court of Law."
5. It has been argued on behalf of the petitioners that as the petitioners were arrested in a case under the Official Secrets Act, they should have been proceeded in a Court of Law for the offence under that Act and it is not open to the Central Government to direct the detention of the petitioners. An order of detention in these circumstances, according to the learned counsel, would be mala fide. This contention, in my opinion, is devoid of force. An application for me discharge of the petitioners in the case under the Official Secrets Act was put in on llth March 1965, and Mr. Parkash Narain on behalf of the respondents has stated that the petitioners were duly discharged in that case and it is not the intention of the Government to prosecute the petitioners for the offence under the Official Secrets Act. The mere fact that the petitioners were arrested at one time for an offence under the Official Secrets Act and the Government then chose not to proceed with that prosecution would not, in my opinion, prevent the Government from detaining the petitioners under Rule 30 of the Defence of India Rules if the Government came to the conclusion on the material before it that it was necessary to detain the petitioners for the objects mentioned in Rule 30.
Cases can always arise wherein the Government may not consider it proper to disclose its sources of information or for some other reason it may choose not to prosecute a person in a Court of law; in such an event, if the Government is satisfied on the basis of this past activities about the need of detention in order to achieve the objects mentioned in Rule 30, the order of detention would not be struck down as mala fide on the ground that prosecution is the only remedy. Reference has been made on behalf of the petitioners to Full Bench case Maledath Bharathan v. The Commissioner of Police, AIR 1950 Bom 202 (FB), decided by Chagla C. J., Gajendragadkar J. (as he then was) and Dixit J. What was held in that case was that when a detaining authority makes up its mind to detain a person who is alleged to have committed an offence, it would not be permissible to the detaining authority to investigate the offence while keeping the person under detention and not comply with the provisions of law with regard to investigation. It was, accordingly, held that if the purpose of detaining a person was a collateral purpose i.e., to deprive him of his rights and safeguard under the Criminal Procedure Code and to carry on an investigation without the supervision of the Court, the detention would be deemed to be mala fide and as such not justified.
The petitioners, in ray view, can hardly derive any assistance from the aforesaid authority because in the present case, as stated above, the petitioners are not to be proceeded against in the case under the Official Secrets Act and the question of any further investigation in that case against them does not arise. On the contrary there are observations made in the above case which are very much against the petitioners and read as under :--
"When an offence has been committed, the police authority may investigate it, in which case they must comply with the provisions of the law with regard to investigation; or they may feel that the detention of the accused is more essential in the interests of the State, and what is more important is what he is likely to do rather than what he has already done, in which case it would be open to them to detain him under the Security Act. But they cannot pursue both the rights at the same time, because, on the facts of this case, it is apparent that these two rights are inconsistent and cannot be exercised at the same time: they cannot detain the applicant under the Security Act and at the same time carry on the investigation without providing the applicant with the safeguards to which he is entitled under the law. The authorities have laid down that the powers of the detaining authority are very wide under the law as it exists today. Government may detain a person even though the grounds clearly disclose that he could have been prosecuted under the ordinary criminal law with regard to these very grounds. The detaining authority may, as I pointed out earlier, detain a person although a criminal Court has acquitted him in respect of the very charge for which he is being detained under the Security Act."
It would follow from the above that in case an offence having a bearing on the defence of India, public safety and India's relations with foreign powers is committed, it would be open to the authority concerned not to prosecute the person accused of having committed that offence and to order his detention. If the authority comes to the conclusion that it is necessary to keep him in detention with a view to prevent him from acting in a manner prejudicial to the defence of India, public safety and India's relations with foreign powers.
6. Argument has then been advanced that the petitioners were already in custody when the orders of detention were served upon them. Great stress has been laid upon this aspect of the matter in the case of Chander Parkash petitioner. In this respect I find that the affidavits of Shri Karam Chand Shenmar, Superintendent, Central Jail Tehar, and Shri Asoka Sen, Joint Secretary to the Ministry of Home Affairs, go to show mat the order of detention was served upon the said petitioner after he had been released and set at liberty on llth March 1965. Similar affidavit has also been filed by Shri Asoka Sen in Raminder Singh's case and it is stated that the petitioner was set at liberty before service on him of the detention order. It is further stated that the detention order was served on the petitioner after his release and outside the jail house. Although Chander Parkash petitioner has filed a counter affidavit that he was still in confinement when the order of detention was served on him on llth March 1965, I see no particular reason to disbelieve the affidavits of Shri Karam Chand Shenmar, Jail Superintendent, and Shri Asoka Sen, Joint Secretary, according to which Chander Parkash petitioner had already been set at liberty before the detention order was served upon him. Apart from that, I am of the view that the service of detention order on a person when he is about to be released from custody would not in any way affect the validity of the detention order.
I am fortified in this view by the observations of their Lordships of the Supreme Court in Shrimati Godavari Shamrao Parulekar v. The State of Maharastra, AIR 1964 SC 1128. In that case the detenu had been arrested under the Preventive Detention Act by an order of the Police Commissioner and the order was sent to the State Govt. for approval. The State Government revoked the order of the Police Commissioner under the Preventive Detention Act and on the same day passed an order under rule 30 of the Defence of India Rules. The later order was served on the detenu in Jail. The legality of the order was challenged on the ground that it was served while he was in Jail. It was held that the order was legal. It was further observed that the order passed by the State Government under the Defence of India Rules when it had decided to revoke the earlier order of the Police Commissioner was perfectly valid so far as the time of the making of the order was concerned and its service in Jail on the detenu, who was detained not as under trial or as convicted person, could not be assailed.
7. Argument has then been advanced that the grounds, on which the detention order has been passed, have not been disclosed to the petitioner. It is , however, not disputed that there is no provision in the Defence of India Rules which makes it obligatory for the detaining authority to supply the grounds of detention to the detenu. The provisions of the Defence of India Rules in this respect are not in conformity with the provisions of the Preventive Detention Act, Section 7 of which makes it obligatory for the detaining authority to communicate to the detenu the grounds of detention. Section 7 in its turn has been based upon Clause (5) of Article 22 of the Constitution wherein it is stated that when any person is detained in pursuance of the order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to the person concerned the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. It is, however, not disputed that the right of any person to move any Court for the enforcement of rights conferred by Article 22 has been suspended for the period of emergency by the President in pursuance of the powers vested in him under Clause (1) of Article 352 of the Constitution as per notification No. G. S. R. 1464 dated 3rd November 1962. As there is no provision in the Defence of India Rules making it obligatory for the detaining authority to supply the grounds of detention to the detenu the detention of the petitioners cannot be held to be invalid because of the non-supply of any such grounds.
8. The petitions, consequently, fail and are dismissed.