RAMCHANDRA A. KAMAT v ..

UNION OF INDIA AND ORS.

February 20, 1980

[S. MURTAZA FAZAL ALI, P. s. KAILASAM AND A. D. KosHAL, JJ.] Conservation of Foreign Exahange and Prevention of Smuggling Activittes Act 1974, Section 3-Delay by detaining authority in furnishing copies of statements and documents referred to in the order of deten(ofV-Detention whether viJiared.

The petitioner was directed to be detained by an order dated1 August 31 1 1979 under section 3(1) of the Conservation of Foreign Exchange :ind Prevention of. Smuggling A.ctivities Act, 1974 and in pursuance thereof was arrested on September 5, 1979.

He was served with the grounds of detention on the same day. The petitioner's advocate wrote a letter dated September 7, 1979 to the detaining authority-second respondent stating that it was not possible to 1nake an effective representation without the copies of statements and documents referr'ed to in detention order. The detaining authority did not take any action on the letter but forwarded it to the Deputy Secretary tv the Government of India who by a oommunication dated September 10, 1979 acknowledged its receipt , arut requested the advocate to contact the Deputy Director, Directorate of Enforcement, Bombay regarding the supply of copies of statements and documents.

As no further communication was received, the advocate addressed a letter da.ted September 14, 1979 to the Deputy Direct.or to supply him copies of the statements and documents.

The Deputy Director in his communication dated September 22, 1979 requested the advocate to see him on September 24, 1979 to take inspection of the documents.

On inspcting the docun1ents the advocate was not satisfied and insisted on supply of copies of docun1rnts, Which were supplied on three days, September 26, 1979, September 28. 1979 and September 29, 1979.

On October 5. 1979 the petitioner made his representation a.gainst the detention.

In the writ petition, it was contended on behalf of the petitioner that as there was unrcas.onab1e delay in furnishing of the statements and documt:nts referred to in the grounds of detention and the right to make an effective J P representation \WlS denied, the detention could not be said to be according to the procedure prescribed by law.

On behalf of the detaining authority it wc:s contended rhat the constitutional right of the p'etitioner to make an effective representation had not been infringed and that it was not incumbent upon the detaining authority to supply copies of all documents relied up0n in he grounds of detention and that the grounds of detention were sufficiently det.aileJ Si) as to enable the petitioner to make an effective representation against the deten- G lion.

Allowing the petition,

HELD : 1. The detaining authority failed to act with reasonable expedi~ tton in furnishing the statements and documents referred to in the gr')unds of detention.

The detention is therefore not in accordance with the procl;!ctu1e contemplated under law, and the continued detention is not warranted.

H [1077Gl

2. It is r.ettled law that the 34>PJYJpriate authority is bound to give s.n opnortunity to the cletenu to make representation and to consider the representation

of the detenu as early as possible.

There should not be any delay in .the A matter of consideration.

[ 107 4G] Jayanarayan Sukut v. Shue of West Bengal, [1970] 3 SCR 225, referred to.

3. (i) The right to make a representation is a fundamental right.

The representation thus made should be considered expeditiously by the Government.

In order to make an effective representation, the detenu is entitled to obtain information reating to the grounds nf detention. When the grounds uf detention are served on the detenue he is entitl'ed to ask for copies of the statements and documents referred to in the grounds of detention to enable him to make - an effective representation. When the detenu makes a request for such documents, they should be supplied to him expeditiously.

[!075E]

(ii) When the Act contemplates the furnishing of grounds of detention within five days of the order of detention, the intention is clear that the state ments and dncurr1ents which are referred to in the grounds of deteution and \vhich are required by the d'etenu should be furnished with reasonable expedi .. tion.

[1076B]

4. If chere is undue delay in furnishing the statements and documw.t& referred to in the grounds. of detention the right to make an effe\:tive representation is denied. It is the duty of the detaining authority to satisfactorily explain the delay, if any, in furnishing of the documents.

[1076A, 1075G]

5. It m<1oy not be n'ecessary for the. detaining authority to supply copies of the documents relied upon in the grounds of detention at the time when the ground are furnished to the detenu but once the detenu states that for effective represe.ntation it is necessary that he should have copies of the t>tate-- ments and documents referred to in the grounds of det'ention it iS the duty of the detaining £Juthority to furnish them with reasonable expedition.

The detaining authority cannot decline to furnish copies of the documents on the ground tha.t the grounds were sufficiently d'etailed to enable the petitioner to make an effective representation.

[1077D-E]

ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 1323 of 1979.

(Under Article 32 of the Constitution.) Ram Jethama/ani and Harjinder Singh and M. M. Lodha for the Petitioner.

U. R. LaUt, A. V. Rallgam and M. N. Shroff for the Respondent.

The Judgment of the Court was delivered by

KAILASAM, J.-Th~ Petitioner Ramchandra A. Kamat has preferred this petition under Art. 32 of the Constitution of India praying for the issue of writ of Habeas Corpus directing his release by quasting the order of his detention da'ed 31-8-1979 passed by second respondent, Additional Secretary to the Government of India, Ministry of Finance.

The petitianer was directed to be detained by an order dated 31st August, 1979 under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Ac'.ivities Act, 1974. In pursuance of the order, the petitioner was arres'.ed on 5-9-1979. He was served with the grounds of detention on the same day.

The Petitioner through his advocate by a letter dated 7-9-1979 wrote to the scond

' respondent stating that it was found that the detaining authonty rclkd upon a number of statements of various persons including the dctenu

as well as documents referred to in the grounds, but the detenu was not furnished with the copies of the same. The Advocate stated that detenu desires to make a representation against the order of detention but found that without the copies of documents referred to in the grounds of detention order it is not possible to make an efbctive representation.

A reply to his letter was sent to the Advocate by Mr.

Thawani, Deputy Secretary to the Government of India, wherein he acknowledged the receipt of the Jetter of the Advocate dated 7-9-1979. '._ By this Jetter the Deputy Secretary requested the Advocate to contact ' the Deputy Director, Directorate of Enforcement, Bombay, who it was stated, had been suitably advised regarding supply of copies of statements and documents, relied upon in the detention order dated 31-8-1979. It may be noted that the detaining authority, the second respondent did not acknowledge the Jetter from the detenu's advocate or take any action by himself but directed the Deputy Secretary to address the communication dated 10-9-1979 referred to above. Though the letter states that the Deputy Director, Bombay has been suitably advised regarding the request for supply of copies of statemen's and documents relied on in the detention order nothing further was done by the Deputy Director of Enforcement, Bombay.

On the 14th September, 1979, the advocate not having received any communication, addressed a letcr to the Deputy Director enclosing a copy of the :etter which he received from the Deputy Secretary and requested the Deputy Director to supply him on behalf of his clien: copies of the relevant statements and documents referred to and relied upon in the order of detention at an early date.

In reply to the letter of 14·9-i9 by the Advocate, the Deputy Director in his communication dated 22-9-1979 -~ requested the advocate to see the Deputy Director on 24-9-1979 at 1430 hours to take inspection of the documents.

On inspeting the documents the advocate was not satisfied and insisted on supply of copies of documents and ultimately copies were supplied on 3 days, namely, on 26-9-79, 28-9-79 and 29-9-79.

The representation was made by the detenu on 5-10-79.

It is settled law that the appropriate authority is bound to give an opportunity to the detenu to make representation and to consider the representation of the detenu as early as possible. There should not be any delay in the matter of consideration.

The Constitutional Bench of this Court in Jayanarayan Sukul v.

State of West Bengal(') has held that the fundamental right of the detenu to have representation considered by the appropriate Govern-

(!) [1970] 3 S.C.R. 225.

go~ - '13. Trv1

RAMCHANDRA A. KAMAT v. UNION (Kailasam, J.)

I 075

me'nt will render meaningless if the Government will not deal with the A matter expeditiously. The Court observed :

"It is established beyond any measure of doubt that the appropriate authority is bound to consider the represemation of the dctenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possib:e. The reason for immediate consideration of the representation is too obvious to be stressed.

The personal liberty of a person is at stake.

Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitntion enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.

The same view has been expressed by this Court in a 'number of cases vide See_rvai's Constitutional Law of India, Vol. I, page 542. paragraph 12.82.

The right to make a representation is a fundamental right.

The representation thus made should be considered expeditiously by the Government. In order to make an effective representation, the detenu is entitled to obtain information relating to the grounds of detention.

When the grounds of detention are served on the detenu, he is entitled to ask for copie" of the statements and documents referred to in the grounds of detention to enable him to make an effective representation.

When the detenu makes a request for .such documents, they should be supplied to him expeditiously. The detaining anthority in preparing the grounds would have referred to the statements and documents relied on in the grounds of detention and would be ordinarily available with him-when copies of such documents are asked for by the detenu the detaining authority should be in a position to supply them with reasonable expedition. What is reasonable expedition will depend on the facts of each case.

It is alleged by the detenu that there had been unreasonable dela) in furnishing of the statel)lents and documents referred to in the grounds of detention.

It is the duty of the detaining authority to satisfactorily explain the delay, if any, in furnishing of these docu ments.

We arc in this context not referring to the statements and documents not referred to in the grounds of detention for it may be that they are no: in the possession of the detaining authority and that reasonable time may be required for furnishing copies of the relevnnt documents, which may not be in his possession.

If there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied. The detention cannot be said to be according to the procedure prescribed by law. When the Act contemplates the furnishing of grounds of detention ordinarily withi'n five days of the order to de~"ntion, the intention is clear that the statements and documents which are referred to in the grounds of detention and which are required by the detenu and arc cX]l"'Cted to ln in possession of the detaining authority should be furnished with reasonable expedition. . ~- It will have to be considepod on the facts of the case whether there "· was any unexplained delay in furnishing the statements and documents relied on in the grounds of detention.

The detenu was arrested on 5-9-1979 and his advocate by a letter dated 7-9-1979 Annexure 'C' to tJix writ petition wrote to the detaining authority stating that for making an effective represe'ntation, he must have copies of statements and documen'.s referred to in the detention order.

He prayed that the copies of the statements and documents may be furnished to him.

This letter was received by the detaining authority on the 10th of S"ptember, 1979 and a communication was addressed 'not by the detaining authority but by Mr. Thawani, Deputy Secretary on the same date. It is not clear whether the detaining authority applied his mind and realised the necessity for furnishing of the docurll'"nts to the detenu expeditiously. The communication was addressed by the Deputy Secretary to the Advocate of the detenu informing him that the Deputy Director of Enforcement at Bombay had been suitably advised regarding the request for supply of copies of statem"nts and documents relied on in the detention order. One would have expected that the detaining authority or the Deputy Secretary acting on his . , behalf, to hav::o directed the Deputy Director of Enforcement, Bombay to furnish the necessary documents expeditiously to the Advocate as requested or to the detenu himself. The direc'.ion in the communication from the Deputy Secretary was not immediately complied with.

The Advocate for the detenu wrote again on the 14th September, 1979 reminding the Deputy Director of the communications, he had received from the Deputy Secretary. The Advocate requested that the copies of the relevant statements and documents referred to and relied upon in the detention order may be supplied to him. This letter was replied by the Deputy Director on the 22nd September, 1979 in which the Advocate was asked to have inspection of the documents i'n his premises between 1430 hours on 24-9-1979. The copies of the sPatements

and documents requested by the Advocate for the detenu and directed by the Deputy Secretary to be furnished to the Advocate were not furnished to him instead the Deputy Director asked tho Advocate to

have inspection at the Deputy Director's office.

After inspecting the documents on 22/24/25-9-1979, he insisted of having copies which were supplied on the 26th, 27th and 28th of September, 1979.

The explanation given by the detaining authority regarding tte delay in furnishing copies as seen in his counter affidavit is that the constitutional right of the petitioner to make effective representation had not been infringed.

According to the detaining authority "it was not incumbent upon the detaining authority to supply copies of all the documents relied upon in the grounds of detention to the petitioner alongwith the grounds within 5 days of detention as petitioner has contended. In this context it would be relevant to state that the grounds were sufficiently detailed so as to enable the petitioner to make an effective representation against the detention." He further stated that all steps were taken to comply as expeditiously as possible. It may not be necessary for the detarning authority to supply copies of all the docum.ents relied upon in the grounds of detention at the time when the grounds are furnished to the detenu but once the detenu states that for effective representation it is necessary that he should have copies of the statements and documents referred to in the grounds of detention, it is the duty of the detaining authority to furnish them with reasonable exp"'-dition. The detaining authority cannot decline to furnish copies of the documents on the ground that the grounds were sufficiently detailed to enable the petitioner to make an effective represen'ation. In this case, the detaining authority should have taken reasonable steps !o provide the detenu or his advocate with the. statements and documents as early as possible. The reply to the detenu was not sent by the detaining authority and it is not clear whether be appreciated the necessity to act expeditiously. As noted already, a communication was sent by the Deputy S'cretary to the Deputy Director, who did not comply with the direction and furnish copies otl the statements and documents.

After a lapse of 12 days i.e. on 22-9-1979, the Deputy Director offered inspection.

Taking into account the facts and circumstances of the case and explanation furnished by the detaining authority, we are of the view that the detaining authority failed to act with reasonable expedifon in furn; shing the statements and documents referred to in the grounds of detention.

On the facts of the case, therefore, we are satisfied that the detention is not in accordance with the procedure contemplated under law. The continued detention is not warranted. The order of liis release has already been issued by this Court.

N.VK.

Petition allowed.

RAMCHANDRA A. KAMAT

UNION OF INDIA AND ORS

February 20, 1980

S. MURTAZA FAZAL ALI

P. s. KAILASAM

A. D. KosHAL, JJ.

Section 3

section 3(1)

Government of India

September 14, 1979

September 22, 1979

September 24, 1979

September 26, 1979,

September 28. 1979 and

September 29, 1979

October 5. 1979

[1970] 3 SCR 225

Article 32

Ram Jethama

Harjinder Singh

M. M. Lodha

U. R. LaUt

A. V. Rallgam

M. N. Shroff

KAILASAM

Ramchandra A. Kamat

Art. 32

Constitution of India

S. 3(1)

Thawani

Bombay

14th September, 1979

[1970] 3 S.C.R. 225

10th of S"ptember, 1979

Thawani

22nd September, 1979

26th, 27th and 28th of September, 1979

N.VK


SHYAM AMBALAL SIROYA

UNION OF INDIA AND OTHERS

February 20, 1980

(S. MURTAZA FAZAL ALI, P. S. KAILASAM AND A. D. KOSHAL, JJ.]

Conservation of Foreign Exchange and Prevention of S1nuggling Activities A.ct. 1974--Sectton 11-Detenu's representation for revocation of dete1Jtion order not considered by Government-Non-consideration, if vitiates the order.

The petitioner's brother was detained by an order of detention dated 31st August, 1979 under s. 3 (I) of the Comervation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the grounds of detention were served on him on 5th September, 1979.

An -application was made on 17th September, 1979 for supply of documents and statements recorded and relied on in the grounds of detention.

On 22nd September, 1979 he made an mcomplete representation.

The dcx:uments were supplied on 25th September, 27th September and 3rd October, 1979. The detenu made a second repr06entation on 5th October, 1979 requesting that the order of detention be revoked by the Central Government but no action was taken on them till the date of hearing.

In the writ petition it was alleged that the first representation as well as the second representation requesting for the revocation of the order under e. 11 of the Act were not considered by the Central Government and that nonconsideration of .the representation vitiated the detention order. The detaining S authority on the other hand contended that th'e mere f1act that the representation was not considered by the Central Government did not vitiate the order of detention.

Allowing the petition,

HEID : The continued detention of the detenu cannot be held to be according to procedure.

[1081FJ

If a properly addressed petition is left unattended for a long period of time the detention order cannot be justified as being accordir-g to procedure.

[1081 El

The power conferred on the Central Government by section 11 of the Act is wide enough to 'enable that Government to revoke the detention order at any stage for the words used are a detention order may at any tlme be revoked or nlodified.

Any petition for revoca.tion of an order of detention should be dealt with with reasonable expedition. It may be permissible for the (entra1 Government to take reasonable time for disposing of a petition for revocation of an order of detention but it would not be justified in ignoring the representation because a statutory duty is cast upon the Central Govern~ ment.

It is necessary that the Government should apply its mind and either revoke the order of detention or dismiss the petition.

[1080G HJ

In the instant case the representation which was properly addressed by the detenu to the Central Government was not forwarded to that Government and

as such no action had be'en taken till the date of hearing. There is no justifica~ A tion in sending the representa.tion to the Central Govemm'ent at this very late stage.

[IOSIC&E]

ORIGINAL JURISDICTION : Writ Petition (Cr!.) No. 1414 of 1979.

Under Article 32 of the Constitution. • Ram Jethamalani and Harjinder Singh for the Petitioner.

U. R. Lalit, E. C. Agarwala and M. N. Shroff for the Respondent.

 fhe Judgment of the Court was delivered by

KAILASAM, J. The petitioner is brother of Virendra Ambalal Siroya who was detained by an order of detention dated 31-8-1979 issued by Additional Secretary to the Government of India under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu was served with the grounds of detention on 5-9-1979.

The counsel for the detenu made an application on 17-9-1979 for supply of documents, and statements recorded and relied on in the grounds of detention.

Before the documents were supplied, an incomplete representation was made by the detenu on 22-9-1979.

The documents were supplied on 25-9-1979, 27-9-1979 lllld 3-10-1979.

The detenu again made a second representation on 5-10-1979 and requested that the order of detention may be revoked by the Central Government.

Mr. A. K. Sen, the learned counsel for the petitioner, submitted that the representation requesting the Central Government to order the revocation under S. 11 of the Act was not forwarded by the_ detaining authority to the Central Government and as such the detention is illegal, In the memorandum of grounds in his writ petition at paragraph XIV the detenu submitted that he made representation to the Central Government and that the Central Government had not considered the representation at all.

In paragraph XV the detenu contended that the second representation was an application for revocation under S. 11 of the Act wherein he specifically requested that the Central Government should revoke the order.

The said representation was not considered by the Central Government. It was submitted that non-consideration of the representation by the Central Government vitiated the detention -0rder.

In reply the detaining authority stated in paragraph 15 as follows:-

"It is submitted that the consideration of representation of the detenu by the detaining authority is perfectly valid and

legal and in accordance with the law. It is, however, denied H that merely because it was not considered by the Central Government, the detention order is vitiated in any way."

SUPREME COURT NEPORTS

[1980] 2 S.C.R.

.\ It is clear from the statement that the representation was not forn

warded to the Central Government.

The plea on behalf of the detaining authority is 'that merely because the representation was not considered by the Central Government, the detention order would not be vitiated.

The representation of the detenu dated 5-10-1979 is marked as Annexure 'E'. It states that it is a further representation in the matter of his detention.

After setting out the various grounds, the relief asked for in paragraph 5 runs as follows :-

"The petitioner prays that :

(a) That the order of detention be revoked by the Central Government. ( b) This further representation be placed before COFEPOSA Advisory Board alongwith the earlier representation. ( c) That the Adisory Board be pleased to repqrt to the Central Government to revoke the impugned order of detention."

The request of the detenu is clear : He prayed for the revocation 0f the order of detention by the Central Government. It is not the case of the detaining authority that he did not understand the representation as being intended fur the Central Government. On the other hand, his plea is that the mere fact that the Central Government has not considered the representation would not vitiate the order of detention.

The detaining authority is the Additional Secretary, Government of

India, Ministry of Finance and it is not d; sputed that a communication lo the Central Government can be properly addressed by sending it to the Additional Secretary, Government of India, Ministry of Finance.

It is admitted that th" representation was properly addressed to the Central Government.

The Central Government is empowered to revoke the order of detention at any stage. It was submitted that the order of revocation by the Central Government can only be passed G after the order of detention in confirmed by the detaining authority and the Advisory Board.

The power conferred on the Central Government by S. 11 is wide enough to enable the Central Governnwnt to revoke the detention order at any stage for the words used are a detention order may at any time be revoked or modified. The power of the Central Government to revoke the order of detention imp1ies II that the detenu can make a representation for exercise of that power.

Any petition for revocation of an order of detention should be dealt with reasonable expedition.

In this case it is the main ground urged

~ ,. __l

~.

on behalf of the detenu that the petition of the 5th of October, 1979 was not forwarded to the Central Government and consequently no order has been passed on that petition up to date.

In the course of arguments, Mr. A. K. Sen on behalf of the detenu submitted that even the earlier representation was addressed to the Central Government which was also not forwarded.

We do not think that we should entertain this plea as it was not pleaded in the memorandum of grounds that the first representation was to the Central Government but made for the first time in the Court before us.

In any event, it is clear that a representation properly addressed by the detenu to the Central Government was not forwarded to the Central Government und as such no action had been taken up to date. It may be permissible for the Central Government to take reasonable time for disposing any revocation petition. But it would not be justified in ignoring th_e representation for revocntion of the detention as a statutory duty is cast upon the

Central Government. It is necessary that the Government should apply its mind and either revoke the order of detention or dismiss the petition, declining to order for revocation.

The question that arises for consideration is, as to what will be the consequence if a properly addressed petitioU" is not forwarded to the Central Government and as such left unattended for a period of nearly four months.

We feel that in such circumstances the detention cannot be justified as being according to the procedure. In the circumstances we do not feel that we will be justified in sending the representation to the Central Government for disposal at this stage.

/ Taking all the facts and circumstances of the case, we feel that the continued detention of the detenu cannot be held to be according to procedure.

His release has already been ordered.

P.B.R.

Petition allowed.

SHYAM AMBALAL SIROYA

UNION OF INDIA AND OTHERS

February 20, 1980

S. MURTAZA FAZAL ALI

P. S. KAILASAM

A. D. KOSHAL, JJ.

s. 3

17th September, 1979

22nd September, 1979

5th October, 1979

Central Government

section 11

Article 32

Ram Jethamalani

Harjinder Singh

U. R. Lalit

E. C. Agarwala

M. N. Shroff

KAILASAM

S. 3

A. K. Sen

S. 11

S. 11

COFEPOSA Advisory Board

Government of

India

S. 11


...

BABU RAO PATEL v.

STATE OF DELHI

February 21, 1978

[R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.J

Penal Code, Seorion 153A(1), Scope of-Whether political thesis or hi.slorical truth so presented be said to promote feelings of enmity, hatred or ilfwill between different religious groups or communities so as to attract the provisions of Section 153A of the Code.

Dismissing the appeals, by special leave th'e Court,

HEID : Section 153A(l) is not confined to the promotion of feelings of enmity etc. on grounds o~ religion only, but takes in promotion of such feelings on other grounds ns well such .as race, place of birth, residence, language, caste or community.

[1083G]

In the instance case : Both the articles do promote feelings of erun:ty, hat1ed and ill-will between the Hindu and Muslim communities. (J()S6C]

(i} The first article "A tale of two Communalisms" is not even thinly veiled as a political thesis; it is an undisguised attempt to promote feelings of enmity, hatr'ed and ill-will between the Hindu and the Muslim communities-.

It is designed to fain the sparks of ill-will and hatred on ground of contmuni.ty.

The reference to the alleged Muslim tradition of rape, loot, violence and murder and the al1eged terror struck into the hearts of Hindu minority in a neighbouring country by . periodical killings, in the context of his thesis that communalism is the instrument of ::i militant minority can lead to no other

inferenoe.

[1084E-F]

(iij The second article 'Lingering disgraice of history' go'es further and i.s calculated to rouse feelings of enmity, hatred and ill-will between Muslims and Hindus. It was \vrong to present the :f\.Ioghuls as , the ancestors of today's Muslim'!

F and to willify the l\fuslims as the proud discendants of the "foul" Moghuls.

[1084G, 1086A, B, CJ

Feelings of enmity, hatred or ill-will between different religious groups or coipmunities cannot be promoted in the guise of political thesis of historical truth.

[!086C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal "fos. 237- 238 of 1974.

Appeal by special leave from the Judgment and Order dated 14-8-1973 of thei Delhi High Court in Cr!. Revision Nos. 146 and 153 of 1971.

A. K. Sen, Gobind Das, A. N. Karkhanis, Sridharan and Mrs. S.

Bhandare for the Appellant.

Tl. S. Marwah and M. N. Shroff for the Respondent.

~'.

The Judgment of the Court was delivered by A

CHINNAPPA REDDY, J. Can political thesis or historical truth be so presented as to promote feelings of enmity, hatred or ill-will betwen different religious groups or communities, is the question wh:ch we are called upon to answer in these two crim; nal appeals. The appellant in the two criminal appeals is the editor, publisher and printer of a monthly magazine going by the name 'Mother India'. He wrote two articles under the captions "A tale of two communalisms' and "Lingering disgrace of history". On complaints filed by the Superintendent of Police, Delhi, under section 153-A of the Indian Penal Code, he was convicted in respect of each of these articles in separate cases and sentenced in each case to suffer simple imprisonment for a period of four months and to pay a fine of Rs. 1000/- by the Additional Chief Judicial Magistrate, Delhi.

On appeal the learned Sessions Judge, Delhi, confirmed the conviction in both the cases bnt reduced the sentence of fine to Rs. 500/- in each case.

This was confirmed by the High Court. The appellant has preferred chese appeals by Special Leave of this Court.

Shri A. K. Sen, learned counsel for the appellant submitted that if the articles were read as a whole it would be patent that the article "A tale of two communalisms" was no more than a political thesis and the second article "Lingering disgrace of history" was no more thallj

a protest based on historical truths against the naming of roads in Delhi after Moghul emperors.

He contended that neither article contained any attack on any religion and, therefore, there was no question of promoting and attempting to promote feelings of enmity, hatred or ill-w11! between different religious groups on grounds or religion.

The convictions under section 153-A were, therefore, wrong, he suBmitted.

Section 153-A(l)(a) provides, "whoever by words, either spoken or written, or by signs or by visibk representations or otherwise, promotes, or attempts to promote, on grounds of religion, race, place ot birth, residence, language, caste or community or any other )!Tound whatsoever, disharmony or feelings of enmity, hatred, or ill-will between different religious, racial language or regional groups or castes, or communities shall be punished with imprisonment which may extend to three years, or with fine, or with both". It is seen thats. 153A(l).

(a) is not confined to the promotion of feelings of enmity etc. on grounds of religion only as argued by Shri Sen but takes in promotion of such feelings on other grounds as well such as race, place of birth, residence, language, caste or community. In the present case we have to consider the question whether the two articles promote on grounds of religion or community, feelings of enmity, hatred or ill-will between different religious groups or communities .

' •

1084 SUPREME COURT REl'OR rs

[1980) 2 S.C.R.

The first of the articles "A tale of two communalisms" does begin as a sort of political thesis.

Accordmg to the author, "communalism is an instrument of political minorities".

His thesis is that militant minorities thrive on communalism. If he wanted to develop his thesis on those lines no-one could object.

But, he referred to Muslims generally as "a basically violent race" and went on to say "communa- Iism is, therefore, an instrument of a minority with a racial tradition of rape, loot, violence and murder as is found in India with a Muslim population of 12.7%. In Pakistan the Hindn minority is 6.6% but because its racial tradition is different it does not indulge in commun~

riots . . . . Three essentials are necessary for violent communalism. The community must be a minority, the minority must be sizable and the minority must have a tradition of murder and violence ....... We find these three essentials in the Muslim community of India". He then stated in the article that in Pakistan and particularly in East Bengal peace loving and terror struck Hindu minority was being eliminated by periodical killing and conversions on a mass scale. "Young Hindu males were compelled to undergo vasectomy operations, young and pretty Hindu girls became the victims of Is'amic beds of lust". It is then said "It is not in the nature and religion of the H:ndu of India to be intolerant and blood-thirsty like the followers of Islam".

According to him the only answer to the problem of communalism was to declare India a Hindu State.

In our opinion there cannot be the slightest doubt that the article is not even thinly veiled as a political thesis; it is an undisguised attempt to promote feelings of enmity, hatred and ill-will between the Hindu and the Muslim communities.

It is designed to fan the sparks of ill-will and hatred on ground of community.

The reference to the alleged Muslim tradition of rape, loot, violence and murder and the alleged terror struck into the hearts of Hindu minority in a neighbouring country by periodical killings, in the context of his thesis that communalism is the instrument of a militant ininority can lead to no other mference.

The second article 'Lingering disgrace of history' is said to be a protest against the naming of Delhi roads after the Moghul emperors who according to the author were lustful perverts, rapists and murderers.

According to the learned counsel the attack was directed against the Moghul rulers and not against the. Muslims of India. It was also said that all the statements in the article about the lusts and perversions of the Moghul rulers were plain historical truths.

On a full reading of the article it reveals much more than a protest against naming Delhi roads after Moghul rapists and perverts.

At one place it is said "From Mohammed Ibn Qasim, who landed in India in June

' .

. -

.. A_

. \

- '

712 A.D. with, 6000 Muslim cut-throats, to Mohomed Ali Jinnah, who cut this ancient cradle of a peace-loving human race into three bleed ing bits in August, 1947, we have had 1235 years of bloodstained history in which our life has been constantly punctuated by endless raids, rapes, loot, arson and slaughter. In all these years Hindus have given millions of men, women and children as hostages to Islam to buy some peace and preserve their own religion. They are still doing so.

God alone knows how long this process of paying and appeasing Muslims will go on but it cannot go on for long if the family planning designs of the present secular government succeed. Because then pretty soon there would be no Hindu left to pay.

"It is difficult to predict the future of the ancient Hindu race. It , has no future at all in Pakistan where a subtle and systematic genocide of the 10 million Hindus there has now been undertaken at State level by enforcing vasectomy operations on Hindu males and tubectomies on Hindu females, and by raping women and converting young children to Islam.

"But as long as the Hindu race lasts and survives in India its only cradle and grave in the whole world, it will be worthwhile setting before its children the ideals of its numerous Hindu heroes and nation builders rather than reminding them constantly of these Moghul brntes and tyrants who burnt Hindu home~, ravished Hindu mothers and sisters, slaughtered Hindu men and harassed and kidnapped and converted Hindu children".

After referring to various perversities and tyrannies of the Moghul rulers ending with Aurangzeb, he said : "To have a street named after this Mughal bastard in New Delhi, the capital of India, is not only a disgrace to the Hindus but a crying insult to the brave community of Sikhs.

Had the Muslims been insulted thus, they would not only have burnt every house on the road named after the tyrant but also set fire to the whole damned city. The Muslims know how to guard their

traditions". He expressed the opinion that some of the ancient relics that reminded Hindus of their sh-ame and disgrace made Muslims proud of the foul deeds of their ancestors.

He made an appeal that a beginning should be made to wipe out 'our thousand year old shame' by changing the "Muslim names of roads" which 'remind us of the inhuman

atrocities committed on onr men, women and children'. If the Moghnls raped, looted, killed and sinned, the author's view appears to be that they did so as "Muslim sadists".

The author goes so far as to say that today's MusVms are proud of the foul deeds of "their ancestors", the Moghuls being considered by the author as the progenitors

SUPREME COURT REPORTS

[1980] 2 S.C.R.

of the present day Indian Muslims.

There is no question that the article is calculated to rouse feelings of enmity, hatred and ill-will between Muslims and Hindus.

Whether communalism is the weapon of an aggressive and militant minority as suggested by the accused or the "shield of a nervous and fearful minority", the problem of communalism is not solved by casiigating the members of the minority community as intolerant and blood thirsty and a community with a tradition of rape, loot, violence and murder.

Whether the Moghuls were rapists and murderers or not and whether the Delhi roads should be named after them or not it was wrong to present the Moghuls as the ancestors of today's Muslims and to villify the Muslims as the proud descendants of the "foul" Mogl:tuls.

We are convinced that both the articles do promote feelings of enmity, hatred and ill-will between the Hindu and Muslim communities on grounds of community and this cannot be done in the guise of political thesis or historical truth. The appeals are dismissed.

V.D.K.

Appeals dismissed.

i •

• ; l '

• . -

BABU RAO PATEL

STATE OF DELHI

February 21, 1978

R. S. SARKARIA

0. CHINNAPPA REDDY, JJ

Penal Code

Section 153A

Section 153A(l)

A. K. Sen

Gobind Das

A. N. Karkhanis

Sridharan

S.

Bhandare

S. Marwah

M. N. Shroff

A

CHINNAPPA REDDY

Delhi

section 153

Indian Penal Code

Sessions Judge, Delhi

A. K. Sen

section 153

Section 153

Sen

SUPREME COURT REl'OR rs

[1980) 2 S.C.R.

India

Pakistan

East Bengal

Islam

Mohammed Ibn Qasim

Mohomed Ali Jinnah

Islam

Moghul

Aurangzeb

New Delhi

V.D.K.


Ii'-

108'7

STATE OF GUJARAT A v.

PATEL BAVA KARSAN & ORS.

February 22, 1980

[S. MURTAZA FAZAL ALI, P, S, KAILASAM AND AD. KosHAL, JJ.] B

Constitution of India 1950, Artich'.~ 14 and 19 & Gujarat Ji, funicipality Act Sections 233 llltd 236-Statute empowering eviction from municipal pre1nises-

An appeal to go1ernment against the order of eviction provided-Constitutional validity of prorisfons.

Section 233 of the Gujarat Municipality Act 'empowered the Chief Officer of the iunicip[l.fity to evict persons from municipal premises.

Respondent No. 1 in the appeals was required by a notice in pur8uance uf the provisions of section 233(1) of the Act to hand OVer possession of a piece of land to the J\iunicipality on the ground that he was in unauthorised occupa~ tion thereof\ The respondent assailed the notice in proceedings under Ar_tic.l'e 226 of the Constitution, and the only point in controversy was '\vhether or not section 233 of ihe Act under which the proceedings for eviction were taken wa~

oonstitutional!y v&lid.

The High Court in view of a previous decision of that court held th<1t section 233 being violative of Article 14 of the Constitution wa~ ultra vires.

In th~ appeals to this Court it was contended on behalf of th'e respondents :

(1) that the Ahmedabad Municipal Corporation's case was not correctly decided because though in Chhaganlal Maganlal's case there was a right to appe::il t0 a Civi1 Court and the right to take evidence was given by the Statute concerned, in the former. the relevant statute contained no such provisions, and (2) that the provisions of the Gujarat Act were violative of Article 19 of the Constitution.

Allowing the appeals,

HEtD: (l)(i) The judgment of the High Court is set aside a.nd the order F of the Chief Officer dated 9-3-66 affirmed, [l090G]

(ii) Jn the case of Northern Indian Catererl Private Limited v.

State of Punjab and others. [1967] 3 SCR, 399, this Court while considering a statute \vhos'e provisions \Vere almost similar to those of section 233 of the Gujarat Act took the same vie\V .as the High Court and struck down the Statute. This decision

held the field until it \\'as ultimately overruled in the case of ChhaRanlal Magan- G la/, [1975] 1 SCR l. In a later decision in Ahmedabad Municipal (,'orporatiun

and others v. Ra1nan Lal Govi11d Ram am! others, [1975] 3 SCR 935, this Court while fo11owing the case of Chhaganlal Magan/al upheld a provision of the

Bomb&y Provincial Municipal Corporation (Gujarat Amendment) Act, 1963 \Vhich was in pari mnteria \Vith section 233 of the Gujnraf Act.

[1090A-C]

(iii) Once the property belonging to the Govrnment or semi-Government bodies is held to fall within a particular class and therefore a reasonable classification, \Vhether a civil rem'edy is given or not would not be violative of Article

14 of the Constitution, [10900-F]

15-138SCI/80

1088 SUPREME COURT IiEPORTS

[1980) 2 S.C.R ..

(iv) Under St:ction 236, the respondents have a right to file an appeal to the Government against the impugned order of eviction. rhis section also contains a specific p:-ovision under v.hich the delay can be condoned if sufficient cau1e is shown to the sutisfaction of the appellate authority nan1ely th'e Governnt:!nt.

It will be open to the respondents to file an appeal which \v'ill be di.;; posed ot by the Government in accordance v1ith lrnv.

[10900-H, 1091A]

(2) The contention that the provisions of the Gujarat Act v.rere violative of .Article 19 of the Constitution was expressly considered and negatived in Af1111edabad .\1unicipa/ Corpnro!ion & ors. v. Rl1111anlal Govindara1n & Ors.

[1090E-FJ

CIVJL APPELLATE JURISDICTJON : Civil Appeal Nos. 1596 and 1224 of 1970.

From the Judgment and Order dated 31-1-1970 of the Gujarat High Court in SCA No. 438/66.

T. U. Mehta, D. N. Mishra and K. J. John for the appellant

CA 1224/70 & RR. 1596/70. .

S. C. Patel and M. N. Shrvfj for the Appellant CA No. 1596/70.

D M. K. Ramamurthi and Vineet Kumar for Respondent No. 1 CA

l'lo. 1224/70.

S. C. Patel and M. N. Shroff for Respondent No. 2 CA No. 1224/ 70.

The Judgment of the Court was delivered by

FAZAL ALI, J.

This appeal by certificate is directed against a judgment of the Gujarat High Court dated 31-1-1970 issuing a writ of mandamus to the Rajkot Municipality directing it to desist from enforcing a notice dated 9-3-1966 served on respondent No. 1 and requiring him in pursuance of the provisions of s. 233 (1) of t11e Gujarat Municipality Act (hereinafter referred to as the Gujarat Act') to hand over possession of a piece of land to the Municipality on the ground that he was in unauthorised occupation thereof.

The only point in controversy before the High Court was as to whether or not s. 233 of the Gu_jarat Act, under which the proceedings for eviction of the respondent No. 1 were taken, was constitutionally valid. The High Court in view of a previous decision of that Court held that s. 233 being violative of Art. 14 of the Constitution of India was ultra vires.

The appellants applied for certificate for leave to appeal under Art. 133(1)- ( c) which was granted; hence this appeal. Section 233 of the Gujarat ct runs thus :-

"233. Power to evict certain persons from mzmicipal H premises.

(1) If the Chief Officer is satisfied-

( a) that the person authorised to occupy any premises belonging to the municipality (hereinafter referred to

I ,

as "the municipal premises") as a tenant or otherwise has-

(i) not .paid rent lawfully due from in respect of such premises for a period of more than two months, or

(ii) sub-let, without the perm1ss1on of the mumc1pality, the whole or any part of such premises, or

(iii) otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises, or

(b) that any person is in unauthorised occupation of any municipal premises,

the Chief Officer may, notwithstandig anything contained in any law for the time being in force, by notice ervcd (i) by post or (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises, or (iii) in such other manner as may be provided in the rules made by the State Government order that the person as well as any at.her person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the notice.

(2) Before an order under sub-section (1) is made against any person the Chief Officer shall inform the person by notice in writing of the grounds on which the proposed order is to he made and give him a reasonable opportunity of tendering an explanation and producing evidence, if any, and to show cause why such order should not be made, within a period to be specified in such notice. If such person makes an application to the chief officer for extension of the period specified in the notice the chief officer may grant the . same on such terms as to payment and recovery of the amount claimed in the notice as it deems fit.

Any written statement put in by such person and documents produced in pursuance of such notice shall be filed with the record of the case und such person shall be entitled to appear before the authority proceeding in this connection by advocate, attorney or

l'l

SUPREME COURT REPORTS [1930] 2 s.c.a.

pleader.

Such notice in writing shall be served in the manner provided for service of notice under sub-section (1).

It appears that in the case of Northern India Caterers Pvt. Ltd. & Anr. v. State of Pun; ab & Anr.(1) this Court while construina a statutG

~ whose provisions were almost similar to those of s. 233 of the Gujarat Act took the same view as the High Court and struck down the statute.

This decision held the field until it was ultimately overruled in the case of Chhagan!al Maganlal( 2 ).

In a later decision in Ahmedabad Municipal Corporation & Ors. v_ - Ramanlal Govindram & Ors. (3 ) this Court while following the case of Chhaganlal Maganlal upheld a provision of the Bombay Provincial Municipal Corporation (Gujarat Amendment) Act, 1963 which was in pari materia with s. 233 of the Gujarat Act.

Mr. M. K. Ramamurthi appearing for the respondents submitted that Ahmedabad Municipal Corporation's case (supra) was not correctly decided because though in Chhaganlal Magan/al's case (supra) there was a right to appeal tc a Civil Court and the right to take evidence was given by the statute concerned, in the former, the relevant statute contained no such provision. This contention does not appear to be well-founded because once property belonging to the Government or semi-Government bodies is held to fall within a particular class and therefore a reasonable classification, whether a civil remedy is given or not would not be violative of Art. 14 of the Constitution on the broad principle laid down in Chhaganlal Maganlal's case.

It was also argued that the provisions of the Gujarat Act were violative of Art. 19 of the Constitution of India. This contention was expressly considered and negatived by this Court in Ahmedabad Municipal Corporation & Ors. v.

Raman/al Govindram & Ors.

(supra) with which we find ourselves in complete agreement. We, therefore, allow these appeals, set aside the judgment of the High Court and affirm the order of the Chief Officer dated 9-3-1966.

We might, however, observe that under section 236 of the Gujarat, Act, the respondents have a right to file an appeal to the Government against the impugned order of eviction. This section lso

contains a specific provision under which delay can be condoned if sufficient cause is shown to the satisfaction of the appellate autho-

(1) [1967] 3 S.C.R. 399.

(3) [1975] 3. S.C.R. 935.

. -

rity namely the Government. In these circumstances, it will be open A to the respondents to file an appeal to the Government against the order of eviction passed by the Chief Officer which will be disposed of by the Government in accordance with the law.

There will be no order as to costs .

N.KA.

Appeals allowed.

7

STATE OF GUJARAT

PATEL BAVA KARSAN & ORS

S. MURTAZA FAZAL ALI

KAILASAM

AD. KosHAL, JJ.

Constitution of India

Sections 233

Section 233

section 233(1)

section 233

section 233

Article 14

Ahmedabad Municipal Corporation

Chhaganlal Maganlal

Article 19

section 233

[1975] 3 SCR 935

Chhaganlal Magan

section 233

Article

14

Article 19

T. U. Mehta

D. N. Mishra

K. J. John

S. C. Patel

M. N. Shrvfj

D M. K. Ramamurthi

Vineet Kumar

M. N. Shroff

FAZAL ALI

Rajkot Municipality

s. 233

Gujarat Municipality Act

s. 233

s. 233

Art. 14

Constitution of India

Art. 133(1)

Section 233

s. 233

Chhagan!al Maganlal

s. 233

M. K. Ramamurthi

Art. 14

Art. 19

Constitution of India

section 236

[1967] 3 S.C.R. 399


. A

UNION OF INDIA ETC . v.

K. R. TAHILIANI & ANR.

February 26, 1980

[V. R. KRISHNA IYER AND A. D. KDSIIAL, JJ.J

Fundatnental Rflfcs-Rule 56(i) (i)-Scopc of--Governn1cnt servant of]i~ elating in a class I or class Tl post-If could be con1pulsorily retired.

On the question whether a GovErnment servnnt olTiciating in a class 1 or class JI service or post tould be retired compulsorily by exercising pow'er under r. 56(j) (l) of the Fonda.mental Rules after he. has attained! the agC' of 50 years.

JlELD: 1. Rule 56(j) (i) is mea.nt to cov'er only those who are in a post on a regular basis, that is, in a substantive capacity and not on an officiating basis only. [1094El

2. A government servant ordinarily holds service at the pleasure of the State which means pleasure canalised by rules.

[1093H]

3. An officiating hand bas no right to the post and cannot be strictly said to be in tha.t service or post as a member of that servic'e. Jn short an officiating go\:ernment servant does not really b'e1ong to class I or class II service until he acquires a. right thereon. The stn1cture of the clause "if he is in class I or class II service or post" emphasises the natur'e of the service or post vis-a-vis the Govern1nent servant concerned. When a government servant belonging ttJ class I or class II service or post on a regular basis has to b'e retired compulsorily rule 56(j) (i) comes to the rescue of the Governn1ent. But if he is only a temporary hand ¥/ho has no right to the post he can alw2.ys be reYerted to lhc post,

if any, on which he has a lien. Sin1ilar is the poition of an officiating hand.

[1094B-DJ

4: Although the rule vests an absolute right in the appropriate authority to retire a government servant in public interest absolutis1n and arbitranness are F ccntrar:v to the scheme of the rules of this kind. Even while exercising lh.e po\ver under this rule the Stare should take care not to act arbitrarily, misguided by the absolute expression in the nde.

[1094F-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 850 of 1978

Appeal by special leave from the judgment and order dated 22-7-1977 of the Delhi High Court in LP.A. No. 97 of 1977.

AND

Civil Appeal No. 2008 of 1978.

Appeal by special leave from the judgment and Order dated 19-5-1978 of the Allahabad High Court in Civil Misc.

Writ No. 1592/76.

G. L. Sanghi, R. B. Datar and Miss A. Subhashini for the Appellant in both the appeals.

UNION v. K. R. TAlllLIANI (Krishna Iyer, J.)

I 093

• '< M. K. Ramamurthy, G. D. Gupta and Miss Anita for the Respon- A

dent in CA No. 850/78.

Shanti Bhushan and P. K. Pillai for the Respondent in CA No. 2008/78 .

The Judgment of the Court was delivered by

KRISHNA IYER, J.-Two government servants have been retired from service in exercise of the powers vested in the Central Government by Rule 56 (j) (i) of the Fundamental Rules.

They have successfully challenged compulsory retirement by petitions under Article 226 of the Constitution and the Union of India has come up in appeal to this Court by special leave.

The sole question to be decided is whether a government servant officiating in a Class I or Class II service or post can be retired compulsorily by exercising the power under Rule 56 (j) (i) after he has attained the age of 50 years.

The biographical details of these two officials in government scr- D vice need not detain us because the facts arc admitted and the only point at issue is whether Rule 56(j) (i) will apply to a government servant who is only officiating in a Class I or qss II post or service.

We agree with the High Court that on a correct interpretation of that Rule, an officiating hand will not be caught in the claws of the compulsory retirement provision.

The reasons may briefly be stated by E us now although these have been elaborately set out by the High Court (in the Delhi case).

We may extract the relevant part of the Ruic at this stage:

"56. (j) Notwithstanding anything contained in this rule the appropriate authority shall, if it is of the opinion F that it is in public inters! to do so have the absclute

right to retire any Government servant by giving him notice Of not less than three months in writing or three months' pay and allowances in lieu of such notice.

(i) If he is in Class I or Class II service or pest and had G entered Government service before attaining the age of thirty live years after he has attained the nge of fifty years." ·

A Government servant ordinarily holds service at the pleasure of the State but in our Republic where the rule of law prevails even H pkasure is canalised by rules.

Viewed from this perspective security of tenure is a value in itself.

In Government jurisprudence it is,

SUPREME COURT REPORTS [J 98()j 2 S.C.R.

however, open to the State to make rules under the proviso to Article 309; and Rule 56 (j) is one such rule.

Assuming as we do, the validity of the said Rule, the question of construction causes little difficulty once the scheme of the provision is understood correctly.

An officiating hand has no righJ to the post and is perhaps a fleeting bird who may have to go back to the substantive post from which he has been IJromoted on an officiating basis.

What is more to the point, a person who has been appointed de novo may begin his service on an officiating basis or on l! temporary basis aJ!d it is obvious that he has no right to the post and cannot be strictly said to be in that service or pq_st as a member of that service. In short, an ofijciating Government servant does not really belong to Class l or Class II service until he acquires a right thereon. Even viewed closely and meticulously, the structure of the clause, namely, "if he is in Class I or Class II services or post", emphasises the nature of the service or post vis-a:-v.is the Government servant concerned.

We need not go into the sel\lantic shapes, lexical 11iceties or linguistic nuances but only go through the mf_aning and purpose of the provision.

When a Governm.ent servant belo.llging to a Class I or Class II service or post on a regular basis bas to !Je retired compulsorily, Rule 56 (j) (i) comes to the rescue of the Government. But if he is only a temporary hand, he has no right to the post and can always be reverted to the post, if any, on which he has a lien.

Similar is the position of an officiating hand.

Thus, we have reached an inevitable conclusion that Rule 56 (j) (i) is meant to cover only those who are in a post on a regular basis, i.e., in a substantive capacity, and not on an officiating basis only.

In passing, we may make it clear that although the Rule vests an absolute right in the appropriate authority to retire a Gove!lllllent servant in public interest, Y, et absolutism arid arbitrariness are contrary to the scheme of the ruls we are concerned with. We, therefore emphasise the fact that even while exercising power under Rule 56 (j) (i) the State will take care not to act arbitrarily, misguided by the a_bsolute expression in the Rule.

We dismiss the two Appeals and vacate the stay in Civil Appeal No. 850 of 1978.

In each case, costs quantified in a sum of Rs. 2,500/- (Two Thousand and Five Hundred) will be paid. The counsel for the respondents in both the cases have generously agreed that Rs. 1,000/- (One Thousand), out of the said sum be p_aid over to the Free Legal Aid Society in each case.

P.B.R.

Appeals dismissed.

A

UNION OF INDIA ETC

K. R. TAHILIANI & ANR

February 26, 1980

V. R. KRISHNA IYER

G. L. Sanghi

R. B. Datar

A. Subhashini

K. R. TAlllLIANI

Krishna Iyer

M. K. Ramamurthy

G. D. Gupta

P. K. Pillai

KRISHNA IYER

Article 226

Union of India

Delhi

Article 309


\ ' 1 I

FRANCES CORALIE MULLIN

W. C. KHAMBRA & ORS.

February 27, 1980

[R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.J

Con.titution of India 1950, Art 22(5) & Conserration of Foreign Exchange and Prevenfi911 of S1nuggli11g Activities Act 1974, Section 3-Detenu's representation against order of dete11tio11-Disposal of such representation by detaining nuthority-Necessity for slightest departure froni ti111e ilnperative-Detaining

authority-To explain.

Pleadings-Affidavits in cases involving personal freedoni-Precision, perspecuity and clarity-Necessiry for.

The petitioner was s'erved on November 23, 1979 with an order of detention under the Conserva.tion of Foreign Exchange and Prevention of Smuggling Activities Act 1974, and the grounds of detention \Vere also served on th'e detcnu on the same day.

On December 1st, 1979, the advocate of the detcnu I';!questcd for copies of the state1nents and documents upon which reliance was placed in th'e grounds of detention and at the instance of the detaining authority (Adminisw 1rator, Union Territory of Delhi), the Directorate of Revenue Intelligence turw

nished the copies sought on December 7, 1979, On Det'ember 22, 1979, the .d'etenu made a representation to the detaining authority which was actually received by the latter on December 26, 1979. A copy of the representation was forwarded to the Customs authorities for their remarks which were received en

J~1mary 4, 1980. The representation was th'ereafter considered and rejected by

:the detnining authority on January 15, 1980. The rejection of the representation B was communicated to the detenu on January 17, 1980.

Jn the m'eanwhile, the Advisory Board to whom the detention had been referred met on January 4, 1980, and considered the matter. The detenu was produced before the Advisory Board and the conc'emed departmental offict:ils were also present. On January 10, 1980, the Advisory Board recorded its opinion .and forwarded the same to the detaining authority, which recomm'endation \\'-as placed before the Administrator on January 19, 1980, when the detaining authority confirmed the order of detention.

Jn the writ petition under Article 32 it was contended on behalf of the petitioner ( 1) that the representation of the detenu made on December 22, 1979, was not communicated to the Advisory Board as it ought to have been when the board met on January 4, 1980, (2) that the detaining authority should have disposed of the representation before forwarding it to the Advisory Board ar..d .even ff the detaining authority did forward it to the Advisory Board, the detain~

ing authority should not have awaited the h'earing before the Advisory Board and should not have allowed itself to be influenced by such hearing, and (3) thal there \Vas inexcusable delay in enabling the det'enu to n1ake a representation and in disposing of such representation.

Disn1issing the writ petition, Il

HELD : I. The representation of the detenu was forwarded to the Ad1i, o; y lloard and it was also considered by the latter. [1098HJ

2. On ~1n examination of the records it is found that though the Ad1ninistrator considered the representation of the detenu aft'er the hearing by the Board,

the Administrator \Vas entirely uninfluenced by the hearing before the Board. [l 104B]

3. If there appear'ed to be any delay in disposing of the representation ol the detcnu it -..vas not due to any want of care but bec2.i.1se the representation required thorough examination in consultntion with investigators of facts a'.ld advisers on Jaw.

[1104A]

Jn the instant case, the petitioner's request for copies of statements and docu~ rnents was received by thl.! detaining authority on December 3, 1979 and at the instance of the detaining authority, the Director of Revenue Intelligence furnished the copies sought 011 December 7, 1979.

The detenu's repr.:sentation was received by the detaining authority on December 26, 1979.

Without any losS of tim'e, copy of the representation \Vas sent to the Customs authorities for their remarks.

This was necessary bec•:iuse the information leOOing to the order of detention was laid by the Custo1ns authorities and the facts \\'ere complex si1:ce th'e allegations against the detenu revealed an involvement with an international gall£ of dope smugglers. The comments of the Customs authorities were received

on January 4, 1980.

The Advisory Board was meeting on the same day and there could be no question of the detaining authority considl"ring the representation of the detenu before the Board met.

After obtaining conlffie-nts of the Custo111s authorities it \Vas found necessary to take legal advice as the rprsen taticn posed many legal and constitutional questions.

The same \Yas obtained and the representation was finally rejected by the J\d1ninistrator on January 15.

1980. [llOlD-H]

4. The role of the COlHi in c:nses of preventiYe detention has to be one ot t:!crnal vigilance.

No freedom is higher than personal freedom and no duty high•.:r than to maintain it unimpaired. The Court"s \Vrit is the ultim::i.te in5;!Jranccs ag<iinst illegal detention.

The Constitution enjoins conformance with the provisions of Arti..:le 22 and the Court exacts compliance.

Article 22.(5) vests in the dctenu the right to be provided with an opportunity to n1ake a rpr~.en

tation. [l !OOF]

5. The La\v Reports tell a sfLlfY and t'cach a lesson that the principai cnen1y of the detcnu and his right to n1nke a represcntntion is neither high-handcdne.>s nor mean-n1indedne-s but the casual indifference. the mindless in-sensibility the routine and the red-tape of the bureaucratic_ machine. [l 100G1

6. The four principles to be followed in regard to representation of detenu enunciated by the Court in Jaya11a1yan Suk11l v. State of West Benr; a!, [1970]

3 S.C., R. 225 <1"l well as other principles enunci::ited in other cases. an analysis \\'ill sho\.v, are aimed at shielding personal freedom against indiffernce, insensibility. routine Elnd redtape and thus to secure to th'e detenu the right lo make an effective representation. [l lOOH}

l\111rtndra I'11rshota111 ll111rao etc. v. B. B. Gujra! & Ors., [1979] 2 S.C.R. 315; Ran1cfuuufra A. Karna! v. Unio11 of India & Ors. [1980]

2 . S.C.R. 1072 Nagendra Nath J..1011({(;/ v. 7'/1c St{lfe of We.'it Bengal, [19721 1 S.C.C. 498 @ 504; Prahlrcd.ar Shankar D!i11ri v. S. S. Pradhan, [1971) 1 S.C.C. 896; Kantilaf

Bo5c v. State of W.':'sf Be111.?af, AIR 1972 S.C. 1623, referred tl}.

' .

7. The time-in1perative can never be absolute or obsessive. There has to be A lee-v.1ay, depending on the necessities of the case.

8. Several situation<; may arise compelling the departure fro1n the timeimperative.

But no allov.1ance can be made for lethargic indifference.

No allowance can be made for needless procrastiQ2.tion.

But, allo\vance n1ust sur...:ly be made for necessary consultation "''here legal intricasies and factual ramifications are involved.

The burd'en of explaining the necessity for the slightest B, departurr fron1 the time imper8•tive is on the detaining authority.

9. There should be greater precision and persp'.ecuity in affidavits filed into Court.

Care and clearity are particularly important \Vhen the court is• concerned with questions of personal freedom.

ORIGINAL JURISDICTION: Writ Petition No. 1524 of 1979.

(Under Article 32 of the Constitution).

Ram Jethmalani, Harjinder Singh, Sunil Mehta and Mu/"tl M11dgal for the Petitioner.

M. M. Abdul Khader and M. N. Shroff for the Respondents.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J.

Mrs. Frances Coralie Mullin. a British National was serevd on November 23, 1979, with an order of detention under the Cons-"vation of Foreign Exchange and Prevention of Smuggling Activities Act.

The grounds of detention were also served on her on the same day.

On December 1, 1979, her Advocate sent a telegram to the detaining authority, namely, the Administrator, Union Territory of Delhi, asking for copies of statements a"nd docu ments upon which reliance was placed in the grounds of detention.

The telegram was received by the detaining authority on December 3, 1979.

The Director of Rewnue Intelligence who was directed by the Administra:or, Unioh Territory of Delhi, to supply copies of statements and documents to the detenu, so supplied them on Decem·

ber 7, 1979.

Sevcnt•een documents were mentioned in the accompanying letter.

Alleging that one of the documen:s (item No. 14) was not sc'nt, the Advocat•c wrote a letter by Registered post on December 17, 1979, asking for a copy of that document also.

A reply was sent on January 1, 1980, to he effect that document No. 14 had also been supplied earlier but nonetheless another copy of the same document was being s•ent again.

On December 22, 1979. the detenu made a representation to the detai'ning authority and it was actually received by the latter on Deceml:Y.er 26, 1979.

The Home Department of the Delhi Administrafain forwarded a copy of

the representation to the Customs authorities for their f'marks. The remarks were received on January 4, 1980.

Thereafter the representation was considred and rejec:ed by the Administrator on January 15, 1980.

The rejection of the representation was communicated to the detcnu on January 17, 1980. In the meanwhile the Advisory Board to whom the detention of the petitioner had beel} referred met B

on January 4, 1980 and considered the matter.

The detcnu was produced before the Advisory Board and various concerned Depart- • mental officials >Wre also present.

On January 10, 1980, the Advi-... i sory Board recorded its opinion and forwarded the same to the detain- ~. ing authority. It was received by the Home Department of the . \....._ Delhi Administration on January 11, 1980 but was actually placed before the Administrator on Jannary 19, 1980 when th~ detaining authority confirmed the order of detention.

In this aplication for the issue of a writ of Habeas Corpus three submissions were made by Shri Ram J ethmalani, learned counsel for D the petitioner :

1. The representation of the detenu, made on December 22, 1979, was not communicated to the Advisory Board as it ought to have been, when the Board met on January 4, 1980.

2. The dctai'ning authority shoud have disposed of the represenr

E talion before forwarding it to the Advisory Board. Even if the detaining au!hority did forward it to the Advisory Board, the detaining authority should not have awaited the hearing before the Advisory Board and should not have allowed itself to be influenced by such hearing. . ·.<'

3. There was inexcusable. delay in enabling the detenu to make a

representation and ind.isposing of the representation.

Notwithstanding the clear assertion in the additional grounds raised by the petitioner, which she was allowed to do by an order of the Court, that her representation dated December 22, 1979, was not placed before the Advisory Board when the Board met on January 4, 1980, there was no specific denial of the assertion in the counter filed by the Delhi Administration to the aditional grounds.

However, we were informed by Shri Abdul Khader, learned Counsel for the Delhi Administration, 1hat the representation was in fact forwarded to the Advisory Board and also considered by the latter.

He produced the relevant files before us which we also permitted Shri Je1hmalahi to inspect.

We are satisfied that the representation was forwarded to the Advisory Board and it was also considered by the

,.....,

latter.

There is, therefore, no force in the first submission made on behalf of the petitioner.

We wish to repeat here, what we have said on earlier occasions, that there should be greaor p1t:cision and pers

pecuity in affidavits filed into Court.

Care and clarity are particularly important when the Court is concerned with questions of personal freedom.

In support of the second a'nd third submissions, reliano;, was plaood

.by the learned counsel for the petitioner on the four principles laid down by this Court in Jayanarayan Sukul v. State of West Bengal,(') and on the observations of the Court in Narcndra Purslwtam Umrao etc. v. B. B. Gujaral & Ors.(') and Ramchandra A. Kamat v.

Union of India & Ors.(").

In the first case a Constitution bench of the Court laid down four broad principles to be followed in regard to representation of detenus :

"First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible.

Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board i'ncluding the consideration of the representation of the detenu by the Advisory Board.

Thirdly, there should not be any delay in the

mattr of consideration.

It is true that no hard and fast

i ule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be

remmbered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State.

Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending tire case along with the detenu's re presentation to the Advisory Board. If the appropriate Government will release the detenu the Government will not

end the matter to the Advisory Board.

If, however, the Government will not release the detenu the Government will swd the case alongwith the detenus representation to the Advisory Board. If thereafter the Advisory Board v.ill express an opinion in favour of release of the detenu the Government will release the det•cnu. If the Advisory

(I) 119701 3 S.C.R. 225 @ 232.

Boord will express any opinion against the release of the detenu the Govemment may still exercise the power to release the detcnu."

In the second case, to the facts of which we will refer later, thc observations upon which re!iance was plac•cd were : .. It is urged that the Government was under a constitutional obligation to co1Eidcr

the representations before the hearing before the Advisory Beard.

There is no quarrel with the principle but the difficulty is about the application of the principle o nthe facts an circums!'Jnces of !ti~

present case.

In fact, the Government has to reach its decision ., uninfluenced by the opinion of the Advisory Board." In the third case, offer of inspection of documents twdve days after request for copies was considered fatal to the detention and it was observed :

"If there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied. The detention cannot be said to be according to the procedure prescribed by law.

When the Act concmplates the furnishing of grounds of detention ordinarily within fo>c days of the order of detention the intention is clear that the statements and documents which arc referred to in the grounds of det•cntion and which are required by the detenu and are expected to be in possession of the detaining authority should be furnished with reasonable expedition."

We have no doubt in our minds about the role of the Court in. cases of preventive detention : it has to be one of eternal vigilance.

No freedom is higher than personal freedom and no duty higher than tp maintain it unimpaired.

The Court's writ is the ultimate insurance against illegal detention.

The Constitution enjoins conformance with the provisions of Article 22 and the Court exacts compliance.

Art. 22(5) vests in the detenu the right to \J.c provided with an opportunity to make a representation.

Here the Law Reports tell a story and teach a lesson. It is that the principal enemy of the detenu

and his right to make a representation is neither high-handedness nor mean-mindedness but !hoe casual indifference, the mindless jnsensibility, the routine and the red-tape of the bureaucratic machine.

The four principles enunciated by the Court in Jayanarayan Sukul

v. State of West Bengal (supra) as well as other principles enunciated in other cases, an analysis wiit show, are aimed at shielding personal freedom against indifference, insensibility, routine and red-tape and thus to secure to the detenu the right to make an effective representation.

We agree: (I) the ddaining authority must provide the

• 1

' 1

detenu a very early opportllllity to make a representation, (2) the detaining authority must consider the representation as soon as possible, and this, preferably, must be before the representation is forwarded to the Advisory Board, (3) the representation must be forwarded to the Advisory Board before :he Board malccs its report, and ( 4) the consideration by the dtaining authority of the rcprcs_!!ntation must be entirely independent of the hearing by the Board or its rcpcrt, expedition being essential at every stage.

We, however, hasten to add that th•c time-imperative can never be absolute or obsessive.

The Court\ observations are not to be so understood.

Th•cre has to be Ice-way, depending on the necessities (we refrain from using the word 'circumstances') of the case.

Ohc may well imagine, a case wher" a detenu docs not make a Pcpresentation before the Board makes its Pcport making it impossible for the detaining authority either to consider it or to forward it to the Board in time or a case where a detcnu makes a representation to the detaining authority w shortly before tho" Advisory Board takes up the reference that the dctainihg authority cannot consider the representation before then but may merely forward it to the Boord w:thout himself considering it.

Several such situations may arise compelling departure from the time-imperative.

But no allowance can be made for lethargic indi!Icrence. No allowance can be made for needless procrastination.

But, allowance must surely be made for necessary consultation where legal intricacies ahd factual ramifications are involved.

The burden of explaining the necessity for the slightest departure from the time-

- jmpcrative is on the detaining authority.

We notice that in Narendra Purshotam Umarao etc. v. B. B. Gujral & Ors., (supra) the detenu made his representation on 4th and 6th of March 1978, the Advisory Bonni gave a hearing on 13th March and the detaining authority rejected the representation on 18th March.

The Court perused the records of the GoV'crnment and the Advisory Board and concluded that there was no infraction of the Constitutional safeguard in Art. 22(5).

It was held, with reference to the records, that the Government had taken a decision unihfluenced by what transpired at the hearing before the Board.

The matter was found to have been dealt with by the government at all levels and the detaining authority had come to an independeht conclusion of his own by applying his mind to the facts and circumstances of the case.

We have already expressed our agreement with the four principles', enunciated in !ayanarayan Sukul v. State of West Bengal (supra). ·

SUPREME COURT REPORT~ [1980] 2 S.C.tL

We would make one observation.

Wh•"n it was said there that the Government should come to its decision on the representation before the Government forwarded the representation to the Advisory Board, the emphasis was not on the point of time but on the requirement that the Government should consider the representation independently of the Board.

This was explained in Nagendra Nath Monda!

v. the State of West Bengal('). In Sukul's case

(supra) the Court also made certain P'crtinent observations (at pages 231-232) :

"No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his represntation considered as expeditiously as possible.

It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible ......... "

In Prabhakar Shankar Dhuri v. S. S.

Pradhan(') and Kantilal Bose v. _State of West Bengal(') deJoay of 16 days and 28 days respectively in disposing of the representation of the dctenu was considered sufficient to vitiate the detention.

On the other hand, in Nagendra Nath Monda/ v. The State of West Bengal,(') a delay of 34 days was held not to affect the validity of the detention as part of the delay was explained by the circumstance that the records of the case had been sent to the Advisory Board and part of the delay w"s explained by the enquiries which the Government had to make.

The Court observed : .'

'That fact is not disputed before us and so also the fact that those records showed that on June 7, 1971, Government had sent the files in connection with the . petitioner's case and his representation to the Advisory Board.

As soon as the representation was returned to it, Government considered it and rejected it but that was before the Board made its report and sent it tp Government.

But counsel urged that this fact may explain the lapse of time from the date that the records w.ere sent and the date when they were returned, but not the delay between May 27, 1971 and June 7, 1971, during which Government could have arrived at its decision.

That argument has not much force, because in a given case Government may not be able to

0) [19711 t S.C.C.498at 504.

(2) [19711 3 s.c.c. 896.

(3) AIR 1972 S.C. 1623.

( .

> \

FRANCllS CORALIE v. w. c. KHAMBRA (Chinnappa Reddy, !.)

I I 03

reach a proper conclusion within a short time especially, in a case where another authority, in this case the District Magistrate, has passed the questioned order. It might have

to make inquiries as to the situation in the locality, the nature of and the circumstances in which detention was found necessary, the previous history of the person detained etc.

Therefore, it is difficult to agree with counsel that Govermnent should have reached its conclusion during the said period ............ There can be no hard and fast rule with regard to the time which Government can or should take, and that each case must be decid•cd on its own facts."

We may now consider whether the facts here disclose a disregard to the petitioner's cohstitutional right as claimed by his counsel in his second and third submissions.

The petitioner's request for copies of statements and documents was received by the detaining authority on December 3, 1979, and at the instance of the detaining authority, the Diiector of Revenue Intelligence furnished the copies sought on December 7, 1979.

The authorities who laid the information before the detaining authority and who were primarily concerned in the matter were the Customs authorities via the Director of Revenue

Intelligence'.

So the detaining authority directed the Director of Revenue Intellige\10~ to furnish copies of the documents and it was so done. There was no delay in furnishing of documents and no legitimate complaint could be made on that score.

The detenu's representation was received by the detaining authority on December 26,

1979. Without any loos of time copy of the representation was sent to tlie Customs authorities for their remarks.

That was obviously necessary because the information leading to the order of detention was laid by the Customs authorities. The facts were undoubtedly complex since tho allegations against th; o detenu revealed an involvement with an international gang of dope smugglers.

The comments of the Customs authorities were received on January 4, 1980.

The Advisory Board was meeting on January 4, 1980 and so there could be no qnestion of the detaining authority considering the representation of the detenu before the Board met, unless it was done in great and undue haste.

After obtaining the comments of the Customs autho ritics, it was found necessary to take legal advice as the representation posed many legal and constitutional questions. So, after consul talion with the Secretary (Law and Judicial) Delhi Admihistration, the representation was finally rejected by the Administrator on J anuary 15, 1980.

These facts are stated in the counter affidavit filed 16-138 SCl/80

on behalf of the Delhi Administration and are substantiated by the records prodnced before us. If there appeared to be any delay, it was not due to any want of care but because the representation required a thorough examination in consultation with investigators of fact and advisers on law.

We have ourselves examined the records and we find that though the Administrator considered the representation of the dete'.nu after the hearing by the Board, the Administrator was entirely uninfiuenced by the hearing before the Board. The application for the issue of a Writ of Habeas Corpus is therefore dismissed.

N.V.K.

Petition dismissed.

I

FRANCES CORALIE MULLIN

W. C. KHAMBRA & ORS

February 27, 1980

R. S. SARKARIA

0. CHINNAPPA REDDY, JJ

Art 22(5)

Activities Act 1974

Section 3

January 4, 1980

January 10, 1980

Article 32

December 22, 1979

December 3, 1979

January 15.

1980

Article 22

[1979] 2 S.C.R. 315

Nagendra Nath

Article 32

Ram Jethmalani

Harjinder Singh

Sunil Mehta

Mu/"tl M11dgal

M. M. Abdul Khader

M. N. Shroff

CHINNAPPA REDDY

Frances Coralie Mullin

Decem·

ber 7, 1979

December 17, 1979

January 1, 1980

Deceml:Y.er 26, 1979

Ram J ethmalani

Delhi Administration

Abdul Khader

Boord

Article 22

Art. 22(5)

Art. 22(5)

Sukul

June 7, 1971

May 27, 1971

December 26,

1979

Delhi

J anuary 15, 1980

N.V.K.


-• I

MANTOO MAJUMDAR & BASDEV SINGH

STATE OF BIHAR

February 27, 1980

[V. R. KRISHNA IYER, A. C. GUPTA AND R. S. PATHAK, JJ.]

Cod• of Criminal Procedure 1914--&ction 161(2)-Accused persons detained in prison for over six years without investigation or fra1ni11g: of charges- Legality of.

The two petitioners have been imprisoned for seven years in various prisoas on the basis that they were implicated in several cases of 1971 and 1972. In their habeas corpus petition they impugned their continued detention in prison without trial.

Allowing the petition,

HELD : The petitioners should be released forthwith.

[1109E]

(1) Section 167(2) of the Code of Criminal Procedure empowers the

magistrate to authorise the detention of an accused in such custody as he D thinks fit for a term not exceeding 15 days in the whole. The section also provides that no magistrate shall authorise the detention of the accused person exceeding 90 days in grave cases and 60 days in lesser cases, and that on the expiry of the said period the accused shall be released on bail if he is prepared to and does furnish bail.

[1108H]

(2) Apart from mentioning the sections in the Penal Code by way of " passport into the prison house, there is no mention of any investigation of the E cases, nor was a charge sheet laid beifore the court against either accused. Even the magistracy have bidden farewell to their primary obligation.

[!108E]

(3) Although in these cases many years have passed the magistrates have been mechanically authorising repeated detentions unconscious of the provi sions of law.

[1109B]

ORIGINAL JURISDICTION : Writ Petition No. 1149 of 1979.

F (Under Article 32 of the Constitution.) V. N. Ganpu/e for the Petitioners.

U. P. Singh for the Respondent.

The Judgment of the Court was delivered by

KRISHNA IYER, J.-No Constitution nor Code nor Court call ink:rdict illegal incarceration where couscientized agencies of the law at the

grass-roots level are absent. Such is the only explanation for the lawless lot of the two prisoners who are petitioners before us. These two humans sojourning for long years in some jail or other in Bihar since 1972 found their personal liberty subverted by the police, prison officials and the magis'racy that they wrote letters to the Hon. Chief J nstice in desperation.

The above habeas corpus petition is a legal

incarnation of those letters. Sensitired by the prima jacie hideous facts disclosed the court directed a rule to issue.

Somehow, despite several adjournments the State did not ewn furnish the basic facts abont the imprisonment of the petitioners, the offences for which they were kept in judicial custody, for how long and at what stage were the proceeding.; and the like. This gross indifference of the Bihar State in regard to citizens depriYed of their liberty for indefinite and prolonged spells is an unconscionable aspect of that State's unconcern for human rights. Indeed, counsel for the State did his level best to get relevant information. Being at the end of our patience and finding a helpless counsel, we had to pass an onder in the following terms : -

It is noticed that an order dated 17-12-1979 directed jail authorities and District Magistrates under whose jurisdiction the petitioners are kept in confinement to explain -· b.efore 14 .. 1-80 the nautre of the charges against the petitioners, the stage of trial of each of these cases and the reason for the delay in proceeding with the trial. It is surprising that despite communication having been made to them thr011gh the State, counsel for the State represents that telex message to the concerned District Magistrate and jail authorities had been sent, but ho information has yet been furnished in compliance with this Court's order. We are constrained therefore to issue notice to the jail authorities ltnd the District Magistrates to show cause why action for violation of this Court's direction should not be taken against them.

The Court will issue notice to be personally served on these authorities with a direction that they shall appear in Court in person on 25-2-1980. Counsel for the State undertakes to furnish the names of the District Magistrate concerned and jail authorities by 12-2-1980.

Post the matter on 13-2-1980 with office report whether the counsel has submitted names and addresses of the authorities concerned as directed abow.

When (he directive of the court went beyond mere censorious ob

I +

servations into bint at action against the defaulting officers, the sceire ' began to change and at the hearing on February 25, 1980, the Superintendent of the Jail and the District Magistrate who were in a sense vicariously responsible for the custodial condition of the petitioners H appeared in person and prayed to be excused for the default or delay in furnishing vital informatio\1 about these unfree individuals.

Fuller facts have been furnished by t11e Superintndent, cmitral Jail, suffi-

MANTOO MAJUMDAR v. BIHAR (Krishna Iyer, J.) 1107

cient to enable us to discover the incoiltestable illegality of the deten- A tion and to direct the release on bail of the petitioners.

Law is what Jaw d<l'Cs and not what Jaw writes in the books beyond the reach of those behind bars. In this perspective, Art. 21 of the Constitutioil and s. 167(2) of the Criminal Procedure Code, are dead letter for each petitioner.

Article 21 guaran~es personal liberty in these terms :-

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Section 167 (2) of the Criminal Procedure Code contains the following mandate:

The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in mch custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or comrnil it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction :

Provided that- E

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the polioe, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody F under this paragraph for a total period exceeding-

(i) ninety days, where the inve1.>tigation !dates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to, any other offence,

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released an bail under this sub-section shall be deemed to be so released under the provisions of Chaprer XXXIII for the purposes of that Chapter;

(b) no Magistrate slrnll authorise detention in any custody under this section unless the accused is produced before him;

( c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall . authorise B detention in the custody of the police.

In Maneka Gandhi's case(') and a crop of cases thereafter this Court has emphasised the need for fair procedure to justify detention of persons. To put a man in prison and forget his personhood thereafter, to deprive a man of his personal liberty for an arbitrary c riod without monitoring by the law, to keep a man in continued custody unmindful of just, fair and reasonable procedure-these shake the faith in the rule of law and militate against the mandates of Part III of the Constitution. And yet, that is precisely what has happened in the present case.

The frightful facts fraokly furnished iu the return filed are that the twopetitioners have been enduring incarceration for over seven years in various prisons in Bihar on the basis that they are implicated in several cases of 1971 and 1972. A long list has been annexed to the counter-affidavit. But what scandalises us is that apart from mentioning the sections in the Penal Code by way of a passport into the prison house, there is, no mention of any investigation of the case, nor a single charge-sheet laid before the court against either accused. What flabbergasts us is that even the magistracy have bidden farewell to their primary obligation, perhaps, fatigued by over-work and uninterested in the freedom of others. If we see the chart produced by the Superintendent of the Jail we find that a large number of dates are given on which the prisoners have been produced before the magis trates concerned from 1973 to 1980 without so much as the court checking up whether the investigations hve been completed, chargesheets have ben laid and there is justification for keeping the petitioners in custody.

Section 167(2) which we have extracted above, empowers the magistrate to authorie the detention of an accused in such custody as he thinks fit for a term not exceeding 15 days in the whole.

More importantly, there is a precious interdict protective of personal freedom which states that no magistrate shall authorise the detention of the_ accused person exceeding 90 days in grave cases and 60 days in

(1) Maneka Gandhi v. Union of India [1978] l S.C.C. 248.

~[197812 S.C.R. 621.

~·.

MANTOO MAJUMDAR v. BIHAR (Krishna lyer, !.) 1109

lesser cases. "On the expiry of the said period .... the accused person shall be released on bail if he is prepared to and does furnish bail. ... " Not 60 days but six years have passed in the present case; not 90 days but 1900 days or more have passed; and yet, the magistrates concerned have been mechanically authorising repeated detentions unconscious of the provisicms which obligated them to monitor the proceedings which warrant such detention. In short, the police have abdicated their function of prompt investigation. The prison staff have not bothered to k'now how long these internees should be continued in their custody and, most grievous of all, the judicial officers concerned have routinely signed away orders of detention for years by periodically appending their incarceratory authorisations. We know nat how many others are languishing in prison like the petitioners before us. 'If the salt hath lost its savour, wherewith shall it be salted ?' If the law officers charged with the obligation to protect the liberty of persons are mindless of constitutional mandates and the code's dictates, how can freedom survive for the ordinary citizen ?

We must record our deep appreciatiollj of Shri Ganpule who has appeared amicus curiae and proceed further to register our profound satisfaction at the fair and frank statement made by Shri U. P. Singh for the State who rightly pointed out that the ccmtinued detentions \n

the face of s. 167(2) were indefensible.

We direct the release forthwith of the two petitioners on their own bond without sureties. This Court has held in earlier cases that bail does not involve a necessary component of sureties.

We, therefore, direct that on taking the personal recoguizance from the petitioners, both of them will be set free subject to such other legal proccdings F that the State may take if so warranted.

We have stated earlier that in the populatioo of prisoners there may be many other whose legal illiteracy and pecuniary indigence may have forbidden their moving this Court or the High Court by way G of habeas corpus petition. It is a bad state of affairs when we see the Bihar State being oblivious or callous to the prisoners whom it is warehousing.

For what purpose, one knows: not. It may be an act of penitence on the part of the authorities of the state and also of cleansing of conscience if only a special officet with judicial experience or other law officer familiar with criminal justice were appointed to B make an extensive survey and study all the cases of prisoners to find out whether illegal custody has become a large scale phenomenon. After

A all, the State is also the guardian of the p:!Ople's freedom and must, activist fashion set in motion measures to enlarge those prisoners who are held in custody without the warrant of fair procedure.

With these directions we direct the release of the petitioner• on their ow'n bonds in a sum of Rs. 1,000/- each.

l'.13. R.

Petition allowed.

• ,

I

MANTOO MAJUMDAR & BASDEV SINGH

STATE OF BIHAR

February 27, 1980

V. R. KRISHNA IYER

A. C. GUPTA

R. S. PATHAK, JJ.

Section 167(2)

Code of Criminal Procedure

Article 32

V. N. Ganpu

U. P. Singh

KRISHNA IYER

No Constitution nor Code

Bihar

Art. 21

s. 167(2)

Article 21

Section 167

Maneka Gandhi

Section 167(2)

Ganpule

U. P. Singh

s. 167(2)

Bihar State