S.C.R.

SUPREME COURT REPORTS 363

24th August 1954 pa§sed in Civil Miscellaneous Writ No. 45 of 1954, after their application for leave to appeal to this Court had been dismissed by that Court's order dated the 5th August 1955. '!'his petition was not filed within the time limited by the rules of this Court and on their own showing there was a delay of 44 days in filing the petition for special leave.

The only ground urged in support of the application for condonation of delay (being Civil Miscellaneous Petition No. 1402 of 1955) is that they had to collect money from amongst a large number of petitioners who were interested in the case. In our opinion, that is not a sufficient ground for condoning the delay.

In the result, both the petition under article 32 of the Constitution and the petition for special leave to appeal are dismissed.

There will be no order as to costs.

BAS DEV

THE STATE OF PEPSU

[BH<lGWATI and CHANDRASEKHARA AIYAR JJ.]

Indian Penal Gode, (XLV of 1860), ss. 802-80"86-Murder or culpable homicide not amounting to murder-Accztsed ttnder the influence of drink but his mind not so obscured by the drink as to cause incapacity in him to form the requisite intention-Knowledge and intention.

So far as knowledge is concerned the court must attribute to the intoxicated man the same knowledge as if he was quite sober but so far as intent or intention is concerned, the court must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication. If the man was beside his mind altogether for the time being, it would not be possible to fix him with the requisite intention.

But if he had not gone so deep in drinking and from the facts it could be found that he knew what he was about the court will apply the rule that a man is presumed to intend the natural consequences of his act or acts.

That rule of law is well settled:

1. That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged;

Banarsi Das and others v.

The State of Utta1 Pradesh

and others

Sinha J.

19.56

April 17

2. The evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime Basdev should be taken into consideration with the other facts proved in v order to determine whether or not he had this intent; The State of PePs11 . .

3. That evidence of drunkenness fallmg short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily ga.ve wa.y to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.

Directoi of Pnblic Prosecntions v. Beard, ((1920] A.C. 479), referred to.

On the finding in the present case that although the accused was under the influence of drink, he was not so much under its influence that his mind was obscured to such an extent that there was incapacity in him to form the required intention the offence was not reduced from murder to culpable homicide not amounting to murder under tho second part of s. 304 of the Indian Penal Code.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 147 of 1955.

Appeal by special leave from the Judgment and Order dated the 10th May 1955 of the Pepsu High Court at Patiala in Criminal Appeal No. 93 of 1954 arising out of the Judgment and Order dated the 21st June, 1954 of the Court of Sessions Judge at Barnala -in Sessions Case No .. 18 of 1954.

J. N. Kaushal and Naunit Lal, for the appellant.

Porus A. Mehta and P. G. Gokhale, for the respondent. 1956.

April 17. The Judgment of the Court was delivered by

CHANDRASEKHARA AIYAR J.-The appellant Basdev of the village of Harigarh is a retired military J amadar. He is charged with the murder of a young boy named Maghar Singh, aged about 15 or 16. Both of them and others of the same village went to attend a wedding in another village.

All of them went to the house of the bride to take the midday meal on the 12th March, 1954. Some had settled down in their seats and some had not. The appellant asked Maghar Singh, the young boy to step aside a little so that he

may occupy a convenient seat.

But Maghar Singh 1956 did not move.

The appellant whipped out a pistol and shot the boy in the abdomen. The injury proved Basdev f

~ ~. ~ef~~ The party that had assembled for the marriage at the bride's house seems to have made itself very Chandrasekhara merry and much drinking was indulged in. The ap- ; liyar J. pellant Jamadar boozed quite a lot and he became very drunk and intoxicated.

The learned Sessions Judge says "he was excessively drunk" and that "according to the evidence of one witness Wazir Singh Lambardar he was almost in an unconscious condition".

This circumstance and the total absence of any motive or premeditation to kill were taken by the Sessions Judge into account and the appellant was awarded the lesser penalty of transportation for life. .

An appeal to the PEPSU High Court at Patiala proved unsuccessful.

Special leave was granted by this Court limited to the question whether the offence committed by the petitioner fell under section 302 of the Indian Penal Code or section 304 of the Indian Penal Code having regard to the provisions of section 86 of the Indian Penal Code.

Section 86 which was elaborately considered by the High Court runs in these terms:

"In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he bad not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will".

It is no doubt true that while the first part of the section speaks of intent or knowledge, the latter part deals only with knowledge and a certain element of doubt in interpretation may possibly be felt by reason of this omission. If in voluntary drunkenness knowledge is to be presumed in the same manner as if there was no drunkenness, what about those cases where mens rea is required. Are we at liberty, to place in-

Basdeo

Th• Stat• oJ Pepsu

Chandra&ekhara

AiyarJ.

tent on the same footing, and if so, why has the section omitted intent in its latter part?

This is not the first time that the question comes up for consideration. It has been discussed at length in many decisions and the result may be briefly summarised as follows:-

So far as knowledge is concerned, we must attribute to the intoxicated man the same knowledge as if he was quite sober. But so far as intent or intention is concerned, we must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication. \>Vas the man beside his mind altogether for the time being? If so it would not be possible to fix him with the requisite intention. But if he had not gone so deep in drinking, and from the facts it could be found that he knew what he was about, we can apply the rule that a man is presumed to intend the natural consequences of his act or acts.

Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge.

The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion.

In the old English case, Rex v. Meakin(') Baron Alderson referred to the nature of the instrument as an element to be taken in presuming the intention in these words:

"However, with regard to the intention, drunkenness may perhaps be adverted to according to the nature of the instrument used. If a man uses a stick, you would not infer a malicious intent so strongly against him, if drunk, when he made an intemperate use of it, as he would if he had used a different kind

(1) [1836] 173 E.R. 131; 7 Car. & P. 295.

of weapon; but where a dangerous instrument is used, which, if used, must produce grievous bodily harm, drunkenness can have no effect on the consideration

Basdev

v. of the malicious intent of the party.'' The state of Pepsu In a charge of murdering a child levelled against a husband and wife who we.r~ both drunk at the time, Cliandrasekhara Aiyar J.

Patteson J., observed in Regina v. Gruse and Mary his wife(1)

"It appears that both these persons were drunk, and although drunkenness is no excuse for any crime wlfatever, yet it is often of very great importance in cases where it is a question of intention. A person may be so drunk as to be utterly unable to form any intention at all, and yet he may be guilty of very great violence."

Slightly different words but somewhat more illuminating were used by Coleridge J. 1 in Reg. v. Monkhouse(2)

"The inquiry as to intent is far less simple than that as to whether an act has been committed, because you cannot look into a man's mind to see what was passing there at any given time. What he intends can only be judged of by what he does or says, and if he says nothing, then his act alone must guide you to your decision. It is a general rule in criminal law, and one founded on common sense, that juries are to presume a man to do what is the natural con sequence of his act. The consequence is sometimes so apparent as to leave no doubt of the intention.

A man could not put a pistol which he knew to be loaded to another's head, and fire it off, without intending to kill him; but even there the state of mind of the party is most material to be considered. For instance, if such an act were done by a born idiot, the intent to kill could not be inferred from the act.

So, if the defendant is proved to have been intoxicated, the question becomes a more subtle one; but it is of the same kind, namely, was he rendered by intoxication entirely incapable of forming the intent charged?"

(1) [1838] 173 E.R. 610; 8 Car. & P. 541.

(2) [1849] 4 Cox. C.C. 55.

Basde-v

The State of Pepsu

Chandt'asekhara

Aiyar J.

"Drunkenness is ordinarily neither a defence nor excuse for crime, and where it is available as a partial answer to a charge, it rests on the prisoner to prove it, and it is not enough that he was excited or rendered more irritable, unless the intoxication was such as to prevent his re&training himself from committing the act in question, or to take away from him the power of forming any specific intention. Such a state of drunkenness may no doubt exist".

A great authority on criminal law Stephen J., postulated the proposition in this manner in Reg. v.

Doherty(')-

" ........ although you cannot take drunkenness as any excuse for crime, yet when the crime is such that the intention of the party committing it is one of its constituent elements, you may look at the fact that a man was in drink in considering whether he formed the intention necessary to constitute the crime".

We may next notice Rex v. Meade(0) where the question was whether there was any misdirection in his summing up by Lord Coleridge, J. The summing up was in these words:

"In the first place, every one is presumed to know the consequences of his acts. If he be insane, that knowledge is not presumed. Insanity is not pleaded here, but where it is part of the essence of a crime that a motive, a particular motive, shall exist in the mind of the man who does the act, the law declares this-that if the mind at that time is so obscured by drink, if the reason is dethroned and the man is incapable therefore of forming that intent, it justifies the reduction of the charge from murder to manslaughter".

Darling, J., delivering the judgment of the Court of Criminal Appeal affirmed the correctness of the summing up but stated the rule in his own word~ as follows: "A man is taken to intend the natural consequences of his acts. This presumption may, be rebutted (1) in the case of a sober man, in many ways:

(1) [1887] 16 Cox C.C. 806.

(2) [1902] 1 K.B. 895,

(2) it may also be rebutted in the case of a man who is drunk, by shewing his mind to have been so affected by the drink he had taken that he was incapable of knowing that what he was doing was dangerous, i.e., likely to inflict serious injury. If this be proved, t}le presumption that he intended to do grievous bodily harm is rebutted".

Finally, we have to notice the House of Lord's decision in Director of Public Prosecutions v. Beard(1).

In this case a prisoner ravished a girl of 13 years of age, and in aid of the act of rape he placed his hand upon her mouth to stop her from screaming, at the same time pressing his thumb upon her throat with the result that she died of suffocation. Drunkenness was pleaded as a defence. Bailhache J., directed the jury that the defence of drunkenness could only prevail if the accused by reason of it did not know what he was doing or did not know that he was doing wrong.

The jury brought in a verdict of murder and the man was sentenced to death.

The Court of Criminal Appeal (Earl of Reading C.J., Lord Coleridge J., and Sankey, J.) quashed this conviction on the ground of misdirection following Rex v. Meade(') which established that the presumption that a man intended the natural consequences of his acts might be rebutted in the case of drunkenness by showing that his mind was so affected by the drink that he had taken that he was incapable of knowing that what he was doing was dangerous.

The conviction was, therefore, reduced to manslaughter. The Crown preferred the appeal to the House of Lords and it was heard by a strong Bench consisting of Lord Chancellor, Lord Birkenhead, Earl of Reading, C.J., Viscount Haldane, Lord Denedin, Lord Atkinson, Lord Sumner, Lord Buckmaster, and Lord Phillimore.

The Lord Chancellor delivered the judgment of the court.

He examined the earlier authorities in a lengthy judgment and reached the conclusion that Rex v. Meade(9) stated the Jaw rather too broadly, though on the facts there proved the decision was right. The position "that a person charged with a crime of violence

(1) [1920j A.C. ~79.

(2) [1909] 1 K.B. 896.

Basdev

The State of Peps.,

Chandrasekhara

Aiyar J.

Basdtv

The State of Pepsu

Chandrasekhara

Aiyar J,

may show, in order to rebut the presumption that he intended the natural consequences of his acts, that he was so drunk that he was incapable of knowing what he was doing was dangerous ................................ " which is what is said in Meade's case, was not correct as a general proposition of law and their Lordships laid down three rules:

(1) That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged;

(2) That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into ' consideration with the other facts proved in order to determine whether or not he had this intent;

(3) That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of bis acts.

The result of the authorities is summarised neatly and compendiously at page 63 of Russel on Crime, tenth edition, in the following words:

"The.re is a distinction, however, between the defence of insanity in the true sense caused by excessive drunkenness and the defence of drunkenness which produces a condition such that the drunken man's mind becomes incapable of forming a specific intention. If actual insanity in fact supervenes as the result of alcoholic excess it furnishes as complete an answer to a criminal charge as insanity induced by any other cause.

But in cases falling short of insanity evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent, but evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by drink that he more readily gave way to some violent passion does not

rebut the presumption that a man intends the natu- 7956 ral consequences of his act".

Basdev In the present case the learned Judges have found v. that although the accused was under the influence of Tile state of Pepsu drink, he was not so much under its influence that - his mind was s.o obscured by the drink that there was Chandrasekharn incapacity in him to form the required intention as Aiyar .r. stated. They go on to observe:-

"All that the evidence shows at the most is that at times he staggered and was incoherent in his talk, but the same evidence shows that he was also capable of moving himself independently and talking cohe- ,- rently as well. At the same time it is proved that he came to the darwaza of Natha Singh P. W. 12 by himself, that he made a choice for his own seat and that is why he asked the deceased to move away from his place, that after shooting at the deceased he did attempt to get away and was secured at some short distance from the darwaza, and that when secured he realised what he had done and thus requested the witnesses to be forgiven saying that it had happened from him. There is no evidence that when taken to the police station Barnala, he did not talk or go there just as the witnesses and had to be specially supported.

All these facts, in my opinion, go to prove that there was not proved incapacity in the accused to form the intention to cause bodily injury sufficient in the ordinary course of nature to cause death. The accused had, therefore, failed to prove such incapacity as would have been available to him as a defence, and so the law presumes that he intended the natural and probable consequences of his act, in other words, that he intended to inflict bodily injury to the deceased and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death".

On this finding the offence is not reduced from murder to culpable homicide not amounting to murder under the second part of section 304 of the Indian Penal Code.

The conviction and sentence are right and the appeal is dismissed.

24th August 1954

5th August 1955

article 32

DEV

THE STATE OF PEPSU

CHANDRASEKHARA AIYAR JJ.

ss. 802

Sinha

Basdev

s. 304

Indian Penal Code

Pepsu High Court at Patiala

J. N. Kaushal

Naunit Lal

Porus A. Mehta

P. G. Gokhale

Basdev

Maghar Singh

12th March, 1954

Maghar Singh 1956

Chandrasekhara

liyar J. pellant Jamadar

Wazir Singh Lambardar

PEPSU High Court at Patiala

section 302

Indian Penal Code

section 304

Indian Penal Code

section 86

Indian Penal Code

Section 86

Basdev

Cliandrasekhara Aiyar

Patteson

Coleridge

Darling

Bailhache

Earl of Reading

Sankey

Birkenhead

Viscount Haldane

Denedin

Atkinson

Sumner

Buckmaster

Phillimore

State of Peps

Aiyar

State of Pepsu

Meade

Russel

Chandrasekharn

Aiyar

Natha Singh

Barnala

section 304

Indian Penal Code


April 18

SUPREME COURT REPORTS (1956)

MOSEB KAKA CHOWDHRY alias MOSEB

CHOWDHRY AND ANOTHER

THE STATE OF WEST BENGAL.

[JAGANNADHADAS and B. P. SINHA JJ.)

J1<ry trial-Verdict of Jury-When Sessions Judge to accept and to give reasons for accepting it-S. 307 Or. P.0.-Examination under s. 342 Or. P.O. perfunctory-Prejudice-New point.

A Sessions Judge, even if he disagrees with the verdict of the Jufy, must normally give effect to that verdict unless he is clearly of opinion that no reasonable body of men could have given the verdict which the Jury did.

Bamnugrah Singh v. Kin~Emperor, ([1946] L.R. 73 LA. 174), relied on.

A Sessions Judge need not record his reasons for accepting the verdict of the Jury. In a case where a Judge in his charge to the Jury, has clearly and definitely expressed himself for acquittal, it would be desirable though not imperative, that he should give his reasons why he changed his view a.nd accepted the verdict of the Jury finding the accused guilty.

Even where the examination of the accused under s. 342 Cr.P.C. is perfunctory the judgment cannot be set aside unless clear preju dice is shown.

Tara Singh's case, ([1951) S.C.R. 729), referred to.

K. O. Mathew and Others v. The State of TravancoreOochin, ((1955] 2 S.C.R. 1057), relied on.

Prejudice cannot be presumed from the fact that the trial is by a jury though that is a circumstance which rnay be ta.ken into considera.tion.

An argument which would, if accepted, necessitate a retrial, ought to be put forward at the earliest stage and at any rate before the High Court in appeal and cannot be entertained for the first time in an appeal on special leave.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 15 of 1955.

Appeal by special leave from the judgment and order dated the 24th March, 1953 of the Calcutta High Court in Criminal Appeal No. 94 of 1952 arising out . of the Judgment and order dated the 22nd April 1952

of the Court of Sessions Judge, Murshidabad in Sessions Trial No. 1 of 1952.

Jai Gopal Sethi, (0. F. Ali and P. K. Ghosh, with him) for the appellants.

B. Sen, (I. N. Shroff, for P. K. Bose, with them) for the respondent.

1956. April 18. The Judgment of the Court was delivered by JAGANNADHADAS J.-This is an appeal by special leave against the judgment of the High Court of Calcutta confirming the conviction and sentence of each of the two appellants before us, by the Sessions Judge of Murshidabad. The appellants were tried on a charge under section 302/34: of the Indian Penal Code by the Sessions Judge with a jury. The jury returned a unanimous verdict of guilty against each under the first part of section 304: read with section 34: of the Indian Penal Code.

The learned Judge accepted the verdict and convicted them accordingly and sentenced each of the appellants to rigorous imprisonment for ten years.

In order to appreciate the points raised before us, it is desirable to give a brief account of the prosecution case.

The two appellants jointly made a murderous assault on one Saurindra Gopal Roy at about 6-30 p.m. on the 3rd November, 1951.

There was, owing to litigation, previous enmity between the deceased and the appellants. All of them belonged to a village called Mirzapur which is within the police station Beldanga, district Murshidabad. The deceased along with two friends of his, of the same village, examined as P.Ws. 1 and 2, attended a foot-ball match that evening at Beldanga. The match was over by 5 p.m. and all the three of them were returning together to their village. In the course of the return they were passing at about 6-30 p.m. through a field, nearly half a mile a way from the village. The two appellants each having a lathi and a Hashua (sickle) in his hand, emerged from a bush nearby and rushed towards the deceased and his companions. P.W. l

MosebKaka Chowdhry alias Moseb Chowdhry and another

The State of West Bengal

l'tloseb Kaka Chowdhry alias JYioseb Chowdhry

and anothe.r v.

The State of West Bengal

J agannadhadas J.

was first struck with a lathi and thereupon both P. Ws. 1 and 2 moved away to a distance. The appellants assaulted the deceased and inflicted on him a number of serious injuries. The two companions of the deceased, P.Ws. land 2, ran towards the village and shouted for help whereupon a number of people from the village came and collected at the spot. Information was also carried to the son as well as to the brother of the deceased. They also came on the scene.

The brother, by name Radhashyam, proceeded at once to the Beldanga police station and lodged the first information report at about 7-30 p.m. The police officer came to the scene and recorded a statement from the deceased who was then still alive. He was thereafter taken to the hospital at Beldanga. At the hospital the Medical Officer also took a statement from him (Ex. 4). He died some time thereafter.

P.Ws. 1 and 2, the companions of the deceased, were the only eye-witnesses to the murderous assault.

The prosecution relied also on certain statements said to have been made by the deceased after the assault.

The deceased is said to have stated to P.W. 7 one of the villagers who first came on the scene, after hearing the shouts of P. Ws. l and 2, that the two appellants were his assailants. A lit'tle later, when his son and his brother, P. W. 3 came there, he is also said to have stated to P.W. 3 that the two appellants were the assailants. Accordingly the first information report gave the names of the two appellants as the assailants. Similar statements are said to have been made by the deceased to the police officer when he came on the spot and later to the Medical Officer when he was taken to the hospital.

The evidence, therefore, in support of the prosecution case was mainly, that of the two eye-witnesses, P.Ws. 1 and 2, and of the four dying declarations, two of them oral and two written.

There was considerable scope for criticism about the evidence of the two eye-witnesses. The evidence relating to the dying declarations was also open to attack in view of the nature of the injuries

inflicted on the deceased. These included incised wounds on the occipital region and a.n incised wound

in the brain from out of which a piece of metal was 7956 removed on dissection. This, as was urged, indicated MosebKaka the likelihood of the deceased having lost his con- Chowdhry alias. sciousness almost "immediately and hence the impro- Moseb Chowdhry bability of any statements by the deceased. But the and another medical evidence on this point was indecisive. There v. can be no doubt however that the reliability of the The State 01 . 'd . h ll West Bengal prosecution ev1 ence was open to ser10us c a enge in many respects.

JagannadhadasJ.

But learned counsel for the appellants has not been able to raise either before the High Court or before us any objection to the verdict, on the ground of misdirection or non-direction, of a material nature, in the charge to the jury by the Sessions Judge. On the other hand, the charge brought out every point in favour of the appellants and against the prosecution evidence. It erred, if at all, in that the learned Judge involved himself in a great deal of elaboration. The only flaw in the charge which, learned counsel for the appellants could attempt to make out, was that the exposition therein of the legal concept underlying section 34 of the Indian Penal Code was obscure and that it would not have been correctly appreciated by the jurors.

It may be that this could have been expressed in more lucid terms. But we are unable to find that there was any misdirection or non-direction therein. Nor do we see any reason to think that the jury has been misled. Thus there was no real attack either in the High Court or here as against the learned Judge's charge to the jury.

Accordingly, the only points urged before us are the following.

I. The circumstances of the case and t.he nature of the charge to the jury made it incumbent on the learned Judge to disagree with the jury and to refer the case to the High Court under section 307 of the Code of Criminal Procedure.

2. In the alternative, the learned Sessions Judge having expressed hil.'...self in his charge to the jury, definitely for acquittal, he should not have accepted its verdict, though unanimous, without giving satisfactory reasons for such acceptance.

3. The learned Judge having, in his charge speci-

Moesb Kaka Chowdhry alias Moseb Chowdhry

and another

The State of West Bengal

fically cautioned the jury against communal prejudice in the following terms "your deliberations and verdiet should not be influenced by any communal considerations'', should have refused to accept the verdict as having been vitiated by communal bias.

It may be stated that all the jurors were Hindus and that the accused were both Muhammadans.

The suggestion is that in view of the fact that the scene Jagannadhadas J. of occurrence was near the border between West and East Bengal, it should have been appreciated that communal bias was, at the time, almost inevitable. 4.

There has been virtually no examination of the accused by the Sessions Judge under section 342 of the Code of Criminal Procedure and the trial has been vitiated thereby.

In advancing the first two of the above contentions learned counsel for the appellants assumes and asserts that the Sessions Judge in his charge to the jury was unequivocally of the opinion that there was no reliable evidence on which the conviction could be based and that the appellants should be acquitted.

On this assumption, he urges that, when in the circumstances the jury gave a unanimous verdict of guilty, his obvious duty was either to express his disagreement with the verdict of the jury and refer the whole case for the consideration of the High Court under section 307 of the Code of Criminal Procedure, or, at the least, to have placed on record his reasons why in spite of his clear opinion against the prosecution case, he did not consider it necessary to disagree from the verdict of the jury. In order to substantiate this point of view, learned counsel took us through various portions of the charge to the jury and we have ourselves perused carefully the entirety of it.

As already stated, the learned Judge undoubtedly pointed out in.his charge all the weaknesses of the prosecution evidence in great detail. It is also likely that he was inclined for an acquittal. But we are not satisfied that he came to a definite and positive conclusion that there should be acquittal.

While pointing out the weakness of the prosecution evidence with a leaning against its reliability he has not specifically

1956 rejected every important item of the prosecution evidence.

It was only in some places that he stated Moseb [{aka categorically that he would not accept a particular Chowdhry alias item of evidence and would advise the jurors to reject Moseb Chou:dhry it. In other places, while pointing out the infirmities and another of the evidence, he was not so categorical and posiv. tive, as to what his own opinion on that item of evi- The State of f West Bengal dence was. For instance, out o the two eye-witnesses, __ P. W s. 1 and 2, the learned Judge said, so far as P. W. Jagannadhadas J. 2 is concerned, as follows:

"Personally speaking I am not satisfied with the evidence of recognition of the accused persons as the assailants of Sourindra Gopal furnished by P. W. 2, Satyapada.

You will be advised, gentlemen, not to rely upon the evidence of P.W. 2".

As regards the evidence of the other eye-witness, P.W. 1, however he summed it up as follows:

"You should take a comprehensive view of all matters and then decide whether you should act upon the evidence of recognition of the accused persons as the assailants of Sourindra furnished by P.W. 1,

Bhupati".

There was similar difference in the expression of his opinions with reference to the evidence of the dying declarations of the deceased. It may be recalled that the evidence of the oral dying declarations is of statements to P.W. 7, Phani, and P.W. 3, Radhashyam.

The evidence of statement to P. W. 7 was given by a number of witnesses, viz. P.Ws. 6, 7, 8, 9, 10, 11, 12 and 13. Out of these so far as the evidence of P. W. 9 is concerned, the learned Judge specifically stated as follows:

"I should tell you that you should not believe P. W. 9 when he stated on being questioned by Phani, Sourindra mentioned Moseb and Sattar as his assailants".

But he did not rule out the evidence of the others on this item in the same manner. Then again, when he dealt with the question whether the slip of paper, "Ex. ~. is genuine the learned Judge noticed that the said paper was shown to have been taken from the medical officer P.W. 17 into the possession of the Inl'.foseb Kaka Chowdhry alias Moseb Choivdhry

and another v.

The State of West Bengal

vestigating Officer, P.W. 35, about a month later and commented on it as follows:

"Personally speaking I see no reasonable explanation as to why the I. 0. should not have seized Ex. 4 from P. W. 17 immediately after it was recorded, if it was recorded on 3rd November, 1951, and sent it to the Magistrate forthwith".

All the same, the learned Judge also remarked thus: Jagannadhadas J. "You will consider very seriously whether you have any reason to disbelieve the evidence of P. Ws. 17, 32 and 33".

P.Ws. 32 and 33 are witnesses who spoke to the statement of the deceased said to have been taken by the Doctor, P.W. 17.

Taking the charge to the jury, therefore, comprehensively we are unable to find that the learned Judge rejected the prosecution evidence and arrived at a clear and categorical conclusion in in his own mind that the appellants were not guilty.

We are, therefore, una hie to accept the assumption of learned counsel for the appellants that the Judge agreed with the unanimous verdict of the jury against his own personal conviction, as to the guilt of the accused. It appears to us, therefore, that there is no foundation, as a fact, for the argument that the learned Judge should have made a reference to the High Court under section 307 of the Code of Criminal Procedure or that, in any case, he should have placed on record his reasons for agreeing with the verdict of the jury notwithstanding his own personal opinion to the contrary.

Assuming however that the charge to the jury in this case can be read as being indicative of a definite opinion reached by the Sessions Judge in favour of the appellants, it does not follow that merely on that account he is obliged to make a reference under section 307 of the Code of Criminal Procedure. What is required under that section is not merely disagreement with the verdict of the jury but the additional factor that the learned Sessions Judge "is clearly of opinion that it is necessary for the ends of justice to submit the case to the High Court". It is now wellsettled, since the decision of the Privy Council in

Ramnugrah Singh v. King-Emperor(1) that under section 307 of the Code of Criminal Procedure a Sessions

Moseb Kaka Judge, even if he disagrees with the verdict of the Chowdhry alias

jury must normally give effect to that verdict unless Moseb Chowdhry be is prepared to hold the further and clear opinion and another "that no reasonable body of men could have given v. the verdict which the jury did". We are certainly The State 01 West Bengal not prepared to say that the present case satisfies that test or that the charge to the jury indicated any JagannadhadasJ. such clear conclusion. Indeed it is to be noticed that on intimation by the jury of its unanimous verdict, the learned Judge has recorded that he "agreed' with and accepted the verdict". We have no doubt that it was perfectly competent for him to do so. Learned counsel urges that this acceptance is a judicial act and that having regard to the whole tenor of the Judge's charge to the jury, he was at least under a duty to himself and to the appellate court to record his reasons for acceptance of the verdict of the jury.

We are unable to agree with this contention. It may be that in a case where a Judge in his charge to the jury has clearly and definitely expressed himself for acquittal, it would be very desirable, though not imperative, that he should give his reasons why he changed his view and accepted the verdict of the jury. But we can find no basis for any such contention in this case.

The two further contentions that remain which are enumerated above as 3 and 4, were not raised before the High Court.

We are reluctant to allow any such contentions to be raised on special leave.

The point relating to the possibility of the verdict having been the result of bias has no serious basis. It appears to us that the learned Sessions Judge had no justification in this case for imagining the possibility of such bias and giving a warning to the jury in this behalf. This is not a case which arose out of any incident involving communal tension. The likelihood of any such bias is not to be assumed merely from the fact of the appellants being Muhammadans and the jurors being Hindus. Nor is it right to take it

(1) (1946] L.R. 78 I.A. 174.

1956 for granted merely from the fact of proximity of the place of trial to the border between West and East Moseb J( aka B Chowdhry alias engal. On the other hand, it is not without some Moseb Chowdilry relevance that when the jury was empanelled at the and another commencement of the trial, there was absolutely no v. such objection taken. Nor was the right of challenge The State 01 to the jurors exercised. lVest Bengal L d l f h earne counse or t e appellants has very Jagannadhadas J. strenuously argued before us, the point relating to the inadequacy of the examination of the appellants under section 342 of the Code of Criminal Procedure.

Now, it is true that the examination in this case was absolutely perfunctory. The only questions put to each of the accused in the Sessions Court, and the answers thereto were the following:

"Q. You have heard the charges made and the evidence adduced against you. Now say, what is your defence? What have you got to say?

I am innocent.

Will you say anything more?

No.

Will you adduce any evidence in defence?

No." There can be no doubt that this is very inadequate compliance with the salutary provisions of section 342 of the Code of Criminal Procedure. It is regrettable that there has occurred in this case such a serious lacuna in procedure notwithstanding repeated insistence of this Court, in various decisions commencing Tara Singh's case(') on a due and fair compliance with the terms of section 342 of the Code of Criminal Procedure. But it is also well recognised that a judgment is not to be set aside merely by reason of inadequate compliance with section 342 of the Code of Criminal Procedure. It is settled that clear prejudice must be shown. This court has clarified the position, in relation to cases where accused is represented by counsel at the trial and in appeal. It is up to the accused or his counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice. This Court in its judgment

(1) [1951) S.C.R. 729.

in the latest case on this matter, viz. K. 0. Mathew 1956 and Others v. The State of Travancore-Oochin(1) (deli- Moseb Kaka vered on the 15th December, 1955) has laid down Chowdhry alias that "if the counsel was unable to say that his client Moseb Choudhry

had in fact been prejudiced and if all that he could and another urge was that there was a possibility of prejudice, v. that was not enough". Learned counsel could not, The State of before us, make out any clear prejudice. All that West Bengal learned counsel for the appellants urges is, that this JagannadhadasJ. might be so in a case where the trial was with the assessors and the Judge's view on the evidence was the main determining factor. But he contends that the same would not be the case where the trial is with the aid of a jury. Learned counsel urges that a full and clear questioning in a jury trial does not serve the mere purpose of enabling the accused to put forward his defence or offer his explanation, which may be considered along with the entire evidence in the case. The jury would, he suggests also, have the opportunity of being impressed one way or the other by the method and the manner of the accused, when giving the explanation and answering the questions and that the same might turn the scale. Learned counsel urges, therefore, that the non-examination or inadequate examination under section 342 of the Code of Criminal Procedure in a jury trial must be presumed to cause prejudice and that a conviction in a jury trial should be set aside and retrial ordered, if there is no adequate examination under section 342 of the Code of Criminal Procedure. We are not prepared to accept this contention as a matter of law.

The question of prejudice is ultimately on*e of inference from all the facts and circumstances of each case. The fact of the trial being with the jury may possibly also be an additional circumstance for consideration in an appropriate case. But we see no reason to think that in the present case this would have made any difference.

We are, therefore, not prepared to accept the argument of the learned counsel for the appellants in this behalf. In any ca:se, an argument of this kind which would, if accepted,

(1) [1955] 2 S.O.R. 1057.

MosebKaka Chowd/lry alias Moseb Chowdhry

and another

The State of West Bengat

J agannadhada$ J.

April 24

necessitate a retrial, is one that ought to be put forward at the earliest stage and at any rate at the time of the regular appeal in the High Court. This cannot be entertained for the first time in an appeal on special leave.

For all the above reasons this appeal is dismissed.

LA WREN CE JOACHIM JOSEPH D'SOUZA

THE STATE OF BOMBAY.

[S. R. DAS, C.J., JAGANNADHADAS, VENKATARAMA AYYAR, B. P. SINHA and JAFER IMAM JJ.]

Preventive Detention-Espionage activity-GrO'Unds whether vague-Vagueness due to non-disclosure of facts in public interest-- Whether vitiates order-Claim of privileg.-When slumld be oommunicated-Mala fides.

Appellant was detained under s. S(l)(a)(i) of the Preventive Detention Act, Act IV of 1950 on the gronnds that with the financial help given by the Portuguese anthorities he was carrying on espionage on their behalf with the help of underground workers and that he was also collecting intelligence about the security arrangements on the border area and was ma.king suoh intelligence available to the Portuguese authorities. Appellant made no application to the Government for further particulars.

Held, that in these circumstances and having regard to the fact that what is alleged is espionage activity, the grounds could not be considered to be vague.

In answer to the objection in the writ application before the High Court that the grounds were not specific and that no pa.rticular of the alleged activities of the appellant were given the Under

Secretary to the Government in his affidavit claimed privilege under Art. 22(6) of the Constitution.

Held, that the right of the detenue to be furnished particulars is subject to the limitation under Art. 22(6).

Hence even if the grounds are vague due to the reason that facts cannot be disclosed in the public interest, the order of detention cannot be challenged

n the ground of such vagueness.

The necessity of communicating the decision to claim privilege under Art. 22(6) would arise only when the detenue asks for parti-

THE STATE OF WEST BENGAL

JAGANNADHADAS

B. P. SINHA JJ.

S. 307

s. 342

s. 342

Cr.P.C

Tara Singh

(1955] 2 S.C.R. 1057

Calcutta High Court

Jai Gopal Sethi

F. Ali

P. K. Ghosh

B. Sen

I. N. Shroff

P. K. Bose

High Court of Calcutta

Sessions Judge of Murshidabad

section 302

Indian Penal Code

section 304

section 34

Indian Penal Code

Saurindra Gopal Roy

3rd November, 1951

Mirzapur

Murshidabad

Beldanga

MosebKaka Chowdhry alias Moseb Chowdhry

State of West Bengal

J agannadhadas

Radhashyam

Beldanga police station

MosebKaka

Moseb Chowdhry

JagannadhadasJ.

section 34

Indian Penal Code

section 307

Code of Criminal Procedure

State of West Bengal

Jagannadhadas

section 342

Code of Criminal Procedure

section 307

Code of Criminal Procedure

Moseb Chou

State of f West Bengal

s. 1 and 2

P. W. Jagannadhadas

For instance, out o the two eye-witnesses,  P. W s. 1 and 2, the learned Judge said, so far as P. W. Jagannadhadas J. 2 is concerned, as follows:

"Personally speaking I am not satisfied with the evidence of recognition of the accused persons as the assailants of Sourindra Gopal furnished by P. W. 2, Satyapada.

Sourindra Gopal

Satyapada

Bhupati

Phani

Radhashyam

Phani

Sourindra

Moseb

Sattar

section 307

Code of Criminal Procedure

section 307

Code of Criminal Procedure

section 307

Code of Criminal Procedure

Moseb Kaka Judge

Chowdhry

State 01 West Bengal

L.R. 78 I.A. 174

section 342

Code of Criminal Procedure

section 342

Code of Criminal Procedure

section 342

Code of Criminal Procedure

section 342

Code of Criminal Procedure

Moseb Choudhry

West Bengal

section 342

Code of Criminal Procedure

section 342

Code of Criminal Procedure

MosebKaka Chowd

State of West Bengat

LA WREN CE JOACHIM JOSEPH D'SOUZA

STATE OF BOMBAY

R. DAS

VENKATARAMA AYYAR

JAFER IMAM

Art. 22(6)

Art. 22(6)

Art. 22(6)


MosebKaka Chowd/lry alias Moseb Chowdhry

and another

The State of West Bengat

J agannadhada$ J.

April 24

SUPREME COURT REPORTS [1956]

necessitate a retrial, is one that ought to be put forward at the earliest stage and at any rate at the time of the regular appeal in the High Court. This cannot be entertained for the first time in an appeal on special leave.

For all the above reasons this appeal is dismissed.

LA WREN CE JOACHIM JOSEPH D'SOUZA

THE STATE OF BOMBAY.

[S. R. DAS, C.J., JAGANNADHADAS, VENKATARAMA AYYAR, B. P. SINHA and JAFER IMAM JJ.]

Preventive Detention-Espionage activity-GrO'Unds whether vague-Vagueness due to non-disclosure of facts in public interest-- Whether vitiates order-Claim of privileg.-When slumld be oommunicated-Mala fides.

Appellant was detained under s. S(l)(a)(i) of the Preventive Detention Act, Act IV of 1950 on the gronnds that with the financial help given by the Portuguese anthorities he was carrying on espionage on their behalf with the help of underground workers and that he was also collecting intelligence about the security arrangements on the border area and was ma.king suoh intelligence available to the Portuguese authorities. Appellant made no application to the Government for further particulars.

Held, that in these circumstances and having regard to the fact that what is alleged is espionage activity, the grounds could not be considered to be vague.

In answer to the objection in the writ application before the High Court that the grounds were not specific and that no pa.rticular of the alleged activities of the appellant were given the Under

Secretary to the Government in his affidavit claimed privilege under Art. 22(6) of the Constitution.

Held, that the right of the detenue to be furnished particulars is subject to the limitation under Art. 22(6).

Hence even if the grounds are vague due to the reason that facts cannot be disclosed in the public interest, the order of detention cannot be challenged

n the ground of such vagueness.

The necessity of communicating the decision to claim privilege under Art. 22(6) would arise only when the detenue asks for particulars. In the absence of any such request by the detenue, the noncommunication of the decision cannot be held to have hampered his constitutional right to make his representation.

Mala fides must be made out against the detaining authority and not against the police.

The contention of mala fides is untenable in the present case having regard to the nature of the grounds and to the nature of the activities imputed to the appellant.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 126 of 1955.

Appeal by special leave from the judgment and order dated the 9th August 1955 of the Bombay High Court in Criminal Application No. 726 of 1955.

M. R. Parpia, J.B. Dadachanji and S. N. Andley, for the appellant.

M. 0. Setalvad, Attorney-General for India, B. Sen and R. H. Dhebar, for the respondent.

1956. April 2,4.

The Judgment of the Court was delivered by

JAGANNADHADAS J.-This is an appeal by special leave against the judgment of the High Court of Bombay dismissing an application made to it under article 226 of the Constitution. These proceedings relate to the validity of an order of detention passed by the Government of Bombay on the 8th June, 1955, against the appellant before us, who is an Advocate of the High Court of Bombay having a standing of about thirty years. He was in the Indian Air Force as an emergency Commissioned Officer between 1943 to 1948 and thereafter on extension for another four years until he attained the age of 55. It appears that he was also interested in journalism and in public affairs. On his own showing, he was concerned over the political future of Goa and "was opposed to any attempts at intimidation of Indian residents of Goan origin by other political groups and has freely expressed these views in his journalistic articles". He was arrested on the 9th June, 1955, and is in detention since then under the impugned order, which runs as follows:

Lawrence Joachim Joseph D"Souza

The State of

Bombay

Lawrtnce Joachim

josejJ!i D'Soiuta

The State of

Bombay

J agannadhadas J,

"No. P. D. A. 1555A.

Political and Services Department, Secretariat, Bombay, 8th June, 1955.

ORDER.

Whereas the Government of Bombay is satisfied with respect to the person known as Shri Lawrence Joachim Joseph DeSouza of Bombay, that with a view to preventing him from acting in any manner prejudicial to the relations of India with the Portuguese Government and to the Security of India, it is necessary to make the following Order:- N ow, therefore, in exercise of the powers conferred by sub-clause (1) of clause (a) of sub-section

(1) of section 3 of the Preventive Detention Act, 1950 (Act IV of 1950) the Government of Bomby is pleased to direct that Shri Lawrence Joachim Joseph DeSouza of Bombay, be detained.

By Order and in the name of the Governor of Bombay.

Under Secretary to the Government of Bombay.

Political and Services

Department".

In pursuance of section 7 of the Preventive Detention Act, 1950 (Act IV of 191!0) (hereinafter referred to as the Act) the grounds of detention, also dated the 8th June, 1955, was served on him along with the order of detention. The validity of the order is challenged on the following contentions.

1. The order of detention was mala fide. It was passed for the ulterior purpose of preventing his freedom of speech and freedom of professional activity in the sphere of Goan affairs by reason of his known views in this behalf. ·

2. The detaining authority, in exercising its power, failed to apply its mind to the existence or otherwise of the legitimate objects of detention.

3. The grounds of detention are vague.

The claim of State that no particulars of the

795G grounds could be furnished in public interest is un-

Laue11ce Joachim sustainable and in any case mala fide.

Joseph D'So11za The last two have been urged before us not only as v. independent points but as reinforcing the first t\vo.

Tlte State 01 The challenge to the validity of the order based on

Bombay

the attack of mala fides and non-application of the Jagan11adhadasJ. mind of the detaining authority, have been urged before us with great insistence. We have been taken elaborately into what is claimed to be the relevant previous background of events. This part of the argument raises, what ultimately are questions of fact which have been fully considered by the High Court.

It is, therefore, enough to state, in its broad outlines, the background, which is alleged as follows: (l)(a) There was a sudden search by the police on the 24th August, 1954, at the appellant's place for alleged possession of illicit liquor which, in fact, was not found. But under the guise thereof the police seized and carried away a mass of documents, papers and printed material of the appellant as also a typewriter belonging to him.

(b) On the same day, a search was carried out by the police also at his residence at l\fahim but nothing was found. ( c) Immediately following the searches, the appellant was taken into illegal police custody and interrogated, and physically assaulted, and threatened.

The above high-handed action of the police, by way of search and seizure, was the subject matter of challenge by the appellant by means of a writ application in the High Court in which the police officers concerned filed affidavits virtually admitting the appellant's allegations relating to seizure of papers, etc.

The State itself could not support the said highhandedness. As a result, the High Court directed on the 3rd November, 1954, the return forthwith of all the papers and articles seized. Notwithstanding that order, the materials so illegally seized were returned only on or about the 21st January, 1955.

(2) When one J oaquim Carlos, a Portuguese soldier

1956 attached to Goan forces, was arrested on a charge

LawrcncoJoachim ofentering Indian territory without the requisite

Joseph os0,..a authority, the appellant rendered professional assist-

•· ance to him and obtained an order of release on bail The State of from the Chief Presidency Magistrate, Bombay, which Bombay was foiled by the police by removing him away to

J di d J Sawantwadi before the requisite sureties could be aganna ia as • , obtamed at Bombay, The trial was hu_!:ried through and the said Carlos was convicted, But on appeal, filed by the appellant, before the Sessions Judge, the conviction was set aside and retrial ordered, These events happened between February to April, 1955,

(3) Between April, 1955 to June, 1955, there occurred certain incidents which were inspired and instigated by the members of the Goan Action Committee who were agitating against Portuguese hold over Goa, There was a raid on certain pro-Portuguese presses by some private persons, in the course of which heavy damage was caused, There was also an assault on himself (appellant) by a gang of persons of whom some were employees of the Goan Action Committee, In respect of these two incidents private complaints had been filed by or on behalf of the affectlld persons, The attitude and behaviour of the police in respect of these complaints were clearly indicative of their being in league with the Goan Action Committee.

The appellant's counsel strongly urged that the bona fides of the detaining authority is to be judged with reference to the above background of events and that viewed in that light the vagueness of the grounds and the belated claim of privilege under article 22(6) of the Constitution strengthen his contention. He also relied on what are urged as being certain discrepancies in the affidavits of the Under- Secretary and the Chief Secretary filed in the High Court in these proceedings. It is strongly urged that the order of detention was made without any real application of mind by the detaining authority, that the authority acted merely at the instance of the police who were in league with the Goan Action Committee; and that the police procured the detention

l, order for the purpose of suppressing the freedom of 7956 the appellant, to ventilate his point of view on the . - .

1. . d k " . ll h LawrenceJoachm1 oan po it1cs an to a e up pro1ess10na y t e cause Joseph D'Souza of persons in the position of Carlos.

We have been "· taken through all the material relating to the above The State of allegations and have given our consideration to the Bo,.iliay same. It is enough to say that we are unable 1to see -· f d. . 'th th l . f th JagamurdiladasJ. any reason or isagreemg w1 e cone us10n o e High Court to the effect that the material is not enough to make out that the detaining authority was acting otherwise than bona fide.

We also agree with the view of the High Court that, what bas got to be made out is not the want of bona fides on the part of the police, but want of bona fides, as well at;? tht> non-application of mind, on the part of the detaining authority, viz. the Government, which for. this pur- . pose must be taken to be different from the police.

It is also clear that the allegation of non-appliC'ation

of mind by the detaining authority is without uny basis, in view of the affidavit of the Chief Secretary.

The further points that remain for consideration are those which relate to the complaint of vagueness of the grounds furnished and the alleged unsustainable claim for non-disclosure under article 22(6) of the Constitution on behalf of the detaining authority, to get over the alleged vagueness.

To appreciate the points thus raised, it is necessary to have an idea of the grounds of detention as furnished. They are to be found from the relevant communication to the detenue which is as follows:

"In pursuance of section 7 of the Preventive Detention Act, 1950 (Act IV of 1950) you are hereby informed that the grounds on which a detention order has been made against you, by the Government of Bombay under sub-clause (i) of clause (a) of subsection (I) of section 3 of the said Act are that: With the financial help given by the Portuguese authorities you are carrying on espionage on behalf of the Portuguese Government with the help of underground workers. You are also collecting intelligence about the security arrangements on the border area and you make such intelligence available to the Portuguese authorities.

These activities which are being carried on by you with the object of causing further f_, a;:vrc11cc Joachi11t

JoS<Ph v•so""'' deterioration in the relations between the Portuguese v.

Government and the Indian Government over the Tim State of question of Goan National Movement, are prejudicial Bombay to the security of India and to the relations of India - with Portugal.

Jag"1uu1dhadasJ.

If . b k . . 2. you w1s to ma e a representation agamst the order under which you are detained, you should address it to the Government of Bombay and forward it through the Superintendent, Arthur Road Prison, Bombay. 3.

You are also informed that you have a right to claim a personal hearing before the Advisory Bo<ird and that you should communicate to Govern- , . ment of Bombay as soon as possible your intention of exercising or not exercising that right".

The objection by the appellant. relating to this is conta, iued in paragraph 15(g) of his application before the High Court. It is as follows:

"The grounds are not specific and no particulars of the activities a, lleged to have been carried on by the petitioner are given, viz. the particulars such as the lengt.h of period for which the petitioner is alleged to have carried on the so-called espionage activities or the details of financial aid alleged to have been received by the petitioner from the Portuguese authorities or the names of any of the so-called underground workers alleged to be aiding the petitioner or any details of intelligence alleged to have been collected by the petitioner or made available by him to the Portuguese Government".

The answer thereto of the Under-Secretary to the Government of Bombay is in paragraph 12 qf his affidavit dated the 25th July, 1955, and is as follows:

"With 'reference to paragraph 15, clause (g), I submit that it is not necessary to mention particulars of the espionage activities carried on by the petitioner or the details of the financial aid received by him or the n!imes of the persons aiding the said petitioner.

It is not in public interest to disclose these details; nor is it necE>ssary to mention these matters to afford.

•.\

' ·-

1956 the petitioner reasonable opportunity to make a representation". d Lau:rence Joachini Now the question as to whether the grounds furnishe Joseph D'Souza are vague or not, is ultimately a question that has to v. be determined on a consideration of the circumstances The State of of each case, as was pointed out by this court in the Bombay State of Bombay v. Atma Ram Sridhar Vaidya(1) in the J -

J: 11 agannadl111das J. 10 owmg passage:

"The contention that the grounds are vague requires some clarification. .................... If the ground which is supplied is incapable of being understood or defined with sufficient certainty it can be called vague.

It is not possible to state affirmatively more on the question of what is vague. It must vary according to the circumstances of each case. ........... ......... If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enal:ile the detained person to make a representation against the order of detention it cannot be called vague".

In the present ca&e, the detenue has been intimated why, in the opinion of the Government the activities of the appellant are considered prejudicial to the security of India and to the relations of India with Portugal. They are the following: 1.

With the financial help given by the Portuguese authorities, he is carrying on espionage on behalf of the Portuguese Government with the help of underground workers. 2.

He is collecting intelligence about the security arrangements on the border area and making such intelligence available to the Portuguese authorities.

3. He is carrying on these activities with the object of causing further deterioration in the relations between the Portuguese Government and the Indian Government over the question of the Goan National Movement.

It is true that these allegations are not as precise and specific as might have been desired.

But having regard to the nature of the alleged activities of the ap pellant, it is not unlikely that no more could be gathered or furnished. In this context it is relevant

(1) [1951] S.C.R. 167, 184.

1956 to notice that the appellant himself does not appear to ha.ve felt that the grounds furnished were so vague Lrnvrcucc Joachitn h Joseph D'Souza as to am per him in his right to make a representav. tion under article 22(5) and section 7 of the Act. It The state of does not appear that he applied to the Government B"mbay to be supplied with particulars of the grounds fur- --_nished to him.

Such a right to call for particulars - J,, ga111wuhadas J. h b <l h ·

7 S , f B b as een recogmse rn t e case rn t1w tate oJ om ay

v. Atma Ram Sridhar Vaidya(') as flowing from his constitutional right to be afforded a reasonable opportunity to make a representation to the Board. In that case it has been stated that "if the grounds are not sufficient to enable the detenue to make a repre- -• sentation, the detenue ............ if he likes, may ask for particulars which would enable him to make the representation".

The fact that he had made no such application for particulars is, therefore, a circumstance which may well be taken into consideration, in deciding whether the grounds can be considered to be vague.

In the circumstances and having regard to the fact that what is alleged is espionage activity at a time when relations between the two Govern men ts on the affairs of Goa were somewhat delicate, we are inclined to think, with the High Court, that the grounds cannot be considered to be vague.

Assuming however that the grounds furnished in this case are open to the challenge of vagueness, the further question which arises is whether the validity of the order of detention can be su.stained by reason of the claim, in public interest, of non-disclosure of facts made by the Under-Secretary to the Government of Bombay by means of his affidavit filed in the High Court.

Now it has been held in Atma Ram Sridhar Vaidya's case(') by the majority of the Court, that the constitutional right of a detenue under article 22(5) comprises two distinct components. 1.

The right to be furnished grounds of detention as soon as may be; and 2.

The right to be afforded the earliest opportunity of making a representation against his detention

(1) [19s1J s.c.R. 167, 1s4.

which implies, the right to be furnished adequate 1956 particulars of the grounds of detention, to enable a Lawrence Joachim proper representation being made.

Joseph D'Sotiza These rights involve corresponding obligations on the v. part of the detaining authority. It follows that the The State of authority is under a constitutional obligation to Bombay .. furnish reasonably definite grounds, as well as ade- JagannadlwdasJ. quate particulars then and there, or shortly thereafter. But the right of the detenue to be furnished particulars, is subject to the limitation under article 22(6) whereby disclosure of facts considered to be against public interest cannot be required. It is however to be observed that under article 22(6) the facts which cannot be required to be disclosed are those "which such authority considers to be against public interest to disclose". Hence it follows that both the obligation to furnish particulars and the duty to consider whether the disclosure of any facts involved therein is against public interest, are vested in the detaining authority, not in any other.

It was accordingly attempted to be argued in the High Court that the claim of non-disclosure made in the affidavit of the Under-Secretary indicated a decision for nondisclosure, by the Under-Secretary himself and that too at the time of filing the affidavit. On this assumption it was contended that the claim for non-disclosure was invalid. The High Court, however, on a consideration of the material, felt satisfied that what was stated in the affidavit related to the decision of the detaining authority itself, taken at the time. The learned Judges expressed their conclusion as follows:

"There is nothing in the affidavit of Mr. Bambawala to suggest that it is now that the detaining authority is claiming privilege or applying its mind to the question of privilege ......................... The meaning is clear that at no time it was in public interest to disclose the details referred to in the particular paragraph of the affidavit and there is nothing to suggest that this question was not considered by the detaining authority at the time when the grounds were furnished".

No argument has been addressed to us how this con-

1956 clusion is incorrect. But what has been urged before

L - 1 . us is that the decision not to disclose the facts as awrence oachin' . .

Joseph o•souza well as the ambit of the non-disclosure must be v. clearly communicated to the detenue at the time The State of when the grounds are furnished. It is urged that if Bombay the detenue is furnished information, at least to that - extent, it will enable him to present to the Advisory ]agannadhadas ]. B d h• d•ffi It' k' t oar is 1 cu Jes m ma mg a proper represen a-

tion and to convey to it a request for obtaining the requisite particulars from the State under section 10 of the Act for their own information and consideration.

We are unable to imply any such obligation under article 22(5) and (6).

The necessity for such ... a communication would arise only ifthe detenue, feeling the grounds to be vague, asks for particulars. An obligation to communicate the decision not to disclose facts considered prejudicial to public interest may well be implied in such a situation. But in the absence of any such request by the detenue, the noncommunication of the decision cannot be held to have hampered his constitutional right of representation and an obligation to communicate cannot be implied in these circumstances. In the present case there is no merit in this contention. If the appellant had exercised his right to ask for particulars, at the time, from the detaining authority, there can be no doubt that he would have been furnished then the very information which has been supplied in paragraph 12 of the Under-Secretary's affidavit in answer to para 15(g) of the appellant's petition, both of which have been already set out above . . A faint suggestion has been made in the course of the arguments before us that the decision not to disclose particulars is mala fide and that such mala fides has to be imputed in a case where no particulars are at all furnished. It is suggested that the power not to disclose facts considered against public interest cannot be so exercised as to nullify the consti tutiona 1 right of the detenue for being afforded a proper opportunity of representation. Such a contention as to the mala fide exercise of the power is untenable in the present case having regard to the nature of the

grounds on which the detention is based and the nature of activities imputed therein to the appellant.

It is unnecessary, therefore, to deal in this case with a theoretical contention as to whether or not article 22(6) of the Constitution overrides the constitutional right to be furnished particulars under article 22(5) to the extent of denying all particulars and leaving the grounds absolutely vague.

All the contentions raised before us fail and this appealis dismissed.

CH. TIKA RAMJI & OTHERS, ETC.

THE STATE OF UTTAR PRADESH & OTHERS.

(S. R. DAS, C.J., BHAGWATI, VENKATARAMA AYYAR, B. P. SINHA and JAFER IMAM JJ.]

Sugarcane, Regulation of Supply and Purchase of-Act passed by State Legislature and notifications issued thereunder by the State Government-Constitutional validity-If repugnant to Parliamentary Acts and notifications made thereunder-If violative of fundamental rights-Parliament's power of repeal-Delegation of siich power, if permissible-U.P. Sugarcane (Regitlation of Supply and Pitrchase) Act, 1958 (U.P. Act XXIV of 1958), ss. 15, 16-U.P. Sugarcane Regulation of Supply and Purchase Order, 1954-Industries (Development and Regulation) Act, 1951 (Act LXV of 1951) as amended by Act XXVI of 1958, ss. 18-G, 15, 16-Essentfo.l Commodities Act, 1955 (Act X of 1955), s. 16(1)(b)-Sugarcane Control Order, 1956,

cl. '1(1)-Constitution of India, Arts. 14, 19(1)(c), (J) and (g), 81,

801, 804, 254.

The petitioners challenged the constitutional validity of the U.P. Sugarcane (Regulation of Supply and Purchase) Act of 1953, and two notifications issued by the State Government on September 27, 1954 and November 9, 1955, the former under sub-sec. l(a) read with sub-sec. 2(h) of s. 16 of the impugned Act providing that where not less than three-fourths of the canegrowers within the area of operation of a Canegrowers' Co-operative Society were members thereof, the occupier of the factory to which that area is assigned should not purchase or enter into an agreement to purchase cane except through that society and the latter under s. 15 of the Act assigning to different sugarcane factories specified cane-purchasing centres for supply to them of sugarcane for the crushing season of 1955-56. They contended that the impugned Act was itltra vires the

Laure11ce Joac/1im

Joseph D'So11za

Tile State of Bombay

]agannadliadas J.

April 24

MosebKaka Chowd

LA WREN CE JOACHIM JOSEPH D'SOUZA

THE STATE OF BOMBAY

S. R. DAS, C.J.

JAGANNADHADAS

B. P. SINHA

JAFER IMAM JJ.

Art. 22(6)

Art. 22(6)

Art. 22(6)

M. R. Parpia

J.B. Dadachanji

S. N. Andley

M. 0. Setalvad

B. Sen

R. H. Dhebar

article 226

Government of Bombay

8th June, 1955

High Court of Bombay

Indian Air Force

Goa

Goan

9th June, 1955

Lawrence Joachim Joseph D"Souza

State of

Bombay

J agannadhadas

Government of Bombay

Lawrence Joachim Joseph DeSouza

section 3

Preventive Detention Act, 1950

Government of Bomby

section 7

Preventive Detention Act, 1950

Joseph D'So11za

24th August, 1954

3rd November, 1954

21st January, 1955

J oaquim Carlos

article 22(6)

Joseph D'Souza

Carlos

JagamurdiladasJ.

article 22(6)

section 7

Preventive Detention Act, 1950

section 3

Portuguese Government

Indian Government

Portugal

25th July, 1955

rence Joachini

article 22(5)

section 7

Atma Ram Sridhar Vaidya

Atma Ram Sridhar Vaidya

article 22(5)

Joseph D'Sotiza

article 22(6)

article 22(6)

Bambawala

section 10

article 22(5)

article 22(6)

article 22(5)

TIKA RAMJI

STATE OF UTTAR PRADESH

BHAGWATI

ss. 15, 16

ss. 18

Commodities Act, 1955

s. 16(1)(b)

Constitution of India

Arts. 14, 19(1)(c)

September 27, 1954

sec. 2(h)

s. 16

s. 15

Joseph D'So11za

agannadliadas

April 24