Orissa High Court
Padma Kumar Bhawsinka vs State Of Orissa, Represented Through ... on 25 April, 1991
Equivalent citations: 1991CRILJ2512, 1991(I)OLR527
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Personal liberty protected under Art. 27 of the Constitution is always held to be so sacrosant and so high in the scale of constitutional values that great anxiety for its protection has received expeditious attention. This liberty is by every reckoning the greatest of human freedoms and the laws of preventive detention receive strict const- ruction and mandate meticulous procedural safeguards, however, technical. The right to life, a basic human right assured by Art. 21 comprehends something more than more animal existence, i. e,, dignity of the individual, as observed by Field, J. in Munn v. Illinois : (197.6) 94 US 113. The question that arises in this writ application which is of seminel importance is- whether the order of detention can be questioned even before the execution thereof. As a corollary it fails for adjudication whether delay in execution can be a ground for invalidating it and if so under what circumstances.
2. A preventive detention was held in Rex v. Halliday : 1917 AC 260 not to be punitive but precautionary measure. The object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. No offence is proved, nor any charge is formulated ; and the justification of such detention is suspicion or reasonable probability and, there is no criminal conviction which can only be warranted by legal evidence. In that sense it is an anticipatory action. Preventive justice requires an action to be taken to prevent apprehended objectionable activities.
3. The factual backdrop in which the present petition has been filed to pre-empt the detention is that the petitioner 'is a dealer in essential commodities and at the relevant time held a licence for purchase, sale or storage of free sale sugar. On 10 7-1 1989 certain officials of the Food and Supplies Department raided the godown of the petitioner and seized 31 bags of free sale sugar. A proceeding tinder Section 6-A"of the Essential Commodities Act, 1955 (10 of 1955) (in short 'the Act') was initiated which is still in cold storage and is pending adjudication before opp. party No. 2. gain on 26-9-1989 several personnel of the Civil Supplies Department visited the business premises of the petitioner and seized 13 quintals of free sale sugar for alleged contravention of several conditions of the licence issued to the petitioner under the Sugar (Control) Order, 1966 (in short 'the Order') and the Orissa Sugar Dealers' licensing Order, 1963 (in short 'the State Order'). A prosecution report for initiation of proceeding alleging contravention of several provisions of the Act was submitted.
4. According to the petitioner, the allegations contained were factually incorrect, legally untenable and outcome of a motivated approach for bringing disrepute to the petitioner; another proceeding Under Section 6-A of the Act was initiated requiring the petitioner to show-cause against the proposed action; the petitioner has submitted his reply though no date was indicated for compliance; in this back ground, it is urged there is scope to come to the unerring conclusion that harrassrment was intended and with oblique motive the petitioner was pursued; the petitioner came to know that an order for his detention under the provisions of the Prevention of Blackmarketing and Maintenante of Supplies of Essential Commodities Act, 1980 (in short 'the Prevention Act' ) has been passed; there was no basis for issuance of the order of detention and the real intent of the order was to deprive the petitioner of his personal liberty which is so sacrosant; the petitioner had to leave Orissa for Rajasthan in connection with various works both personal and professional and had to stay there for a long period; in his absence, however his wife was making representations to various authorities explaining the bona fide of the petitioner and the non-desirability of the order of detention. It is also asserted that no genuine effort was made to arrest the petitioner and because of long passage of time the basis, if any, which weighed with the authorities for directing detention has evaporated and is non-existent at present; particularly when no sincere effort was made to arrest the petitioner though he was in Orissa since October 1990. The petitioner has, therefore, prayed for quashing the order of detention by declaration of the proceeding to be bad in law.
5. On behalf of the State, it has been urged that the petition in question is not maintainable and in any event no justifiable cause has been shown to entitle the petitioner to the relief claimed for. It has also been asserted that the non-arrest of the petitioner was because of his evasive tactics, and he cannot take advantage of his own wrong to get a declaration that the order of detention is invalid.
6. The power to interfere at the pre-execution stage has been delineated by the Supreme Court. Non-interference is the rule, and inter- ference is the exception called for only in exceptional cases. This aspect has received attention of the Supreme Court on several occasions and as held by the apex Court in The Addl. Secretary to the Govt. of India and Ors. v. Smt Alka Subhash Gadia and Ors. : 1990 (2) SCALE 1352, the interference at the pre-execution stage should not be claimed as a matter of right and the di5cre.ion is to be exercised judicially in certain exceptional cases. Some illustrative indications thereof have been given in the said judgment. According to the petitioner, the Supreme Court recognized the right of a person sought to be detained to challenge the order where it was passed with a wrong purpose and. on vauge, extraneous and irrelevant grounds. In our view, the stage for such consideration has not come as yet in the present case. The grounds of detention have not yet been served. In terms of Section 8(1) of the Prevention Act, when a person is detained in pursuance of adetention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. Sub-section (2) of Section 8 is of greater relevance. It authorises the detaining authority not to disclose facts which it considers to be against the public interest. Therefore, the grounds of detention can be served within the time prescribed by Section 8. Before even the grounds have been served, it is not open to the detenu to characterise them as irrelevant or extraneous. Petitioner asserts that the averments in the writ application have not been trammelled and therefore, it has to be accepted that the grounds of detention were extraneous and irrelevant. On a perusal of the writ application, we find that the petitioner has tried to explain the allegations made in the proceeding Under Section 6-A. Whether these are only grounds on which a detention has been made or there are other grounds are not known We do not think it legally permissible to direct the State to disclose it; considering that it has the option of serving the grounds of detention within the stipulated period of five days and in case of exceptional circumstances and for reasons to be recorded in writing not later than ten days, and the protection given under Sub-sec (2) authorising non-disclosure of facts when it is considered to be against the public interest.
7. In paragraph 6-A of the writ application it has been stated that the essence of the grounds of detention as formulated has been indicated in the slid paragraph. The petitioner has taken exception on the premises that such basis was the foundation of a proceeding Under Section 6-A of the Act and non-dispoS3l of the proceeding itself was an indicator of the fact that the same was of no substance. We find it difficult to accept such a contention. As observed by a Division Bench of the Court in Brij Mohan Sharma v. District Magistrate, Cuttack and Ors. (OJC No 4942 of 1990 disposed of on 21-2 1991) (to which one of us Pasayat, J. was a party), mere favourable order in a proceeding Under Section 6-A is not sufficient to vitiate the grounds of detention. Supreme Court in Haradhan Saha v. The State of West Bengal and others; AIR 1974 SC 2151, held that pendency of a prosecution, or a discharge or acquittal does not affect the validity of preventive detention. Similar view was also expressed by the apex Court in Samir Chatterjee v. State of West Bengal : AIR 1975 SC 1165; Brij Mohan Gorey v. State of West Bengal : (AIR 1972 SC 2256) and Mohd. Subrati v. State of West Bengal : AIR 1973 SC 207. In Suru Mallick v. State of West Bengal : AIR 1974 SC 2305, the order of detention was held to be valid notwithstanding the fact that no specific instances were possible to be established against the detenu for want of evidence or because witnesses were not willing to depose. Therefore even if we accept the petitioner's contention that the proceeding Under Section 6-A of the Act has not been disposed of, it would not be a ground to till the balance in favour of the petitioner's contention that the order of detention was mala fide, or vague. The word "vague" can be considered as the antonym of definite Whether the grounds alleging contravention are tactually correct and/or legally tenable need adjudication and reference to documents, evidence of witnesses on which the authorities propose to rely as apparent from prosecution report (Annexure-3 ). It is impermissible to undertake such exercise while dealing with this writ application. Allegation of speculative transactions has been made, on the basis that inspection was avoided, but transactions were shown on a particular date. Resolution of the correctness of this allegation is also dependent of factual evaluation. As indicated above, we are not to undertake that exercise.
8. Coming to the residual question whether the non-execution of the detention order for a long time has deprived it of its validity, we also find, no-basis, or reason to accept the contention. The general view in case of dely in securing arrest of detenu after an order is passed can be summarised as follows. The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is. snapped depends on the facts and circumstances of each case. No. hard and fast, rule can be precisely (sic) that would be applicable under all circumstances and no (sic) guidelines can be held down in that behalf (See T. A. Abdul Rahman v. State of Kerala and Ors. : AIR 1990 SC 225).
9. The petitioner has asserted by an affidavit dated 5-4-1991 which was filed before us on 10-4-1991, that is the date of 'final hearing, that he was available at Cuttack since October, 1990 and made representations to various authorities ; but pa attempt has been made to arrest and detain the petitioner and the detaining authority has taken no step for detention of the petitioner till the date of affidavit. In this context, we shall refer to various documents' filed by the petitioner along with the writ aoplication and quote therefrom the relevant portions. The petitioner's assertion in paragraph 9 that immediately after the submission of the representation dated 7-10-1989, the petitioner left Orissa and proceeded to Rajasthan in connection with some business and remained there for months till his return in October, 1990, is exploded to be a myth by a bare look at the' representation made by the petitioner himself -on 30-7-1990 to, the President, the Cuttack Chamber of Commerce (appearing at pages 70 and 71 of our briefs). At page 70 of our briefs, the following line shows that it was the petitioner who was avoiding the arrest. "Consequently I was forced to avoid the detention as this amounts loss to my prestige and reputation in the market". Very significant is the representation made by the petitioner's wife Lalita Davi Bhiwsinghk dated 22-1-1991 appearing at pages 74-75 of our briefs, wherein the wife has stated as follows:
"I am in a very hapless condition since last 15 months (October, 1989) on account of the detention order my husband has not returned to house. This has caused disruption in the normal living of all our family members.
It is strange that the petitioner has filed an affidavit asserting that from October, 1990 he had returned to Orissa and has been representing to different authorities, but till date no attempt has been made to arrest him ; while the petition of his wife dated 22-1-1991 which has been annexed to the petition shows that till at least latter part of January, 1991 the petitioner was claimed to be not available (even if such a; plea, is accepted to be correct). The plea that the petitioner was available and: no sincere step was made to arrest him is not acceptable in view of .apparently contradictory assertions made by the petitioner. On the other hand the petitioner's statemen referred to above by us clearly shows that he was avoiding arrest. A person cannot take advantage of his own avasive action to plead that there was delay in executing the order of detention and therefore, infirmity was attached to it. As observed by the Supreme Court in Abdul Salam @ Thiyyan v. Union of India and Ors. ; AIR 1990 SC 1446, mere delay in arresting the detenu pursuant to the order of detention does not whittle down the subjective-satisfaction of the detaining authority and its genuineness cannot be questioned on that score alone. If mere delay in arrest would be a ground itself for vitiating the order of detention, then any resourceful person can successfully take away the effect of such order by concealing himself or making himself not available, or in other words avoiding arrest That would encourage circumvention of the order of detention by making one non-available it can never be the legislative intent which is further apparent from, the power given under Sec 7 of the Prevention Act to the appropriate Government or authority mentioned in Sub-section (2) of Section 3 to deal with the absconding persons. As observed by the Supreme Court in Shafiq Ahmad v. District Magistrate, Meerut and Ors. ; AIR 1990 SC 220, if in a situation the person concerned is not available or cannot be served, then. the mere fact that action Under Section 7 of the Prevention Act has not been taken, would not be a ground to say that the detention order was bad and failure to take action, even if there was scope for action Under Section 7 of the Prevention Act, would not be decisive or determinative of the question whether there was undue delay in serving the order of detention.
10. Before we part with 'the case, we would like to observe that if a proceeding Under Section 6-A of the Act has been initiated against a person, unusual delay in disposal thereof is not desirable. It is neither fair to the person against whom the proceeding has been initiated, nor the initiating authority. If there is a contravenri n, it is appropriate that the contravener should be dealt with properly, so that the purpose for which the proceeding is initiated is not frustraed. If there is no contravention it would be inequitable to keep the party concerned in suspense. Since the cases involve dealing in commodities which are essential to the society, such expeditious action is not only desirable but also imperative.
11. The inescapable and irresistible conclusion is that there is no metit in the writ application, which is dismissed. No costs.
A.K. Padhi, J.
12. I agree.