BALDEV SINGH v.

TEJA SINGH SWATANTAR (DEAD) & ORS.

January 24, 1975

38 l

[A. ALAGIRISWAMI, V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]

Election-Conduct of Election Rules, r. 63-Returning Officers duty to re count, when arises-Power of Court to order recoum-Scope of. .

For a Parliamentary seat in the State of Punjab the appellant, a candidate of the Akali Dal, and the first respondent, the nominee of the Communist Party of India, were two of the contesting candidates. The total number of votes polled were 344073 out of which 7663 were invalidated. The first respondent was de clarecf elected by a margin of 210 votes. Even at the time the counting was com pleted the appellant applied to the Returning Officer for a recount but the application was rejected as premature. Soon after the. announcement of the votes polled by each candidate the appellant applied again for recount, under r. 63 (2) of the conduct of Election Rules. The Returning Officer rejected this application also.

The appellant filed an election petition and contended that, the attitude of the counting staff was hostile to the appellant and his party, and that there were many irregularities in rejecting votes in favour of appellant, in accepting vote in favour of the !st respondent, and in the counting and prayed for a general recount.

The High Court, by an interim order ordered a limited recount of votes in one of the segments of' the constituency and that order was affirmed by a consent order in this Court 'to cover the votes of both the contestants. This recount revealed some errors but did not tilt the scale in favour of the appellant. The election petition was ultimately dismissed by the High Court.

HELD : ( 1) On \he evidence there is no force in the appellant's conten tion about either official bias or of violation of rules. If there had been any manipulation by the counting stall' the matter would have been brought to the notice of the Returning Officer and the senior officers present for supervising the counting and deciding disputes, reference to it would have been made in the two applications for recount, and in the appellant's application to the Election Commissioner for inspection. Moreover, the alleged biased behaviour is disproved by the accuracy disclosed in the recount, the marginal error being more or less similar in the case of both the candidates. [388 C-F]

<2) The Returning Officer was in error in disallowing the recount. Under r. 63 the mandate for recount is not the exception, and refusal is restricted to cases, where the demand itself is 'frivolous or unreasonable'. Where the margin of dif ference i~ minimal the claim for a fresh count cannot be summarily brushed aside as futile or trumpery. If formal defects had been misconstrued as substantial in firmities or vice versa resulting in wrongful reception or rejection, the s<X'ner it was set right the better, especially when a plea for a second inspection b.ad been made on the spot. Prestige or fatigue should not inhibit a fresh or a partial check. The instructions contained in para 17, cl. (nn) of the Procedure for Counting in the Handbook for Returning Officers requires the Returning Officer to ensure further accuracy in the counting of votes by making 5 % test check.

The Returning Officer, in the present case, had not done so, but that is no

ground for this Court td order recount or to reverse the decision of the High Court refusing recount. [385 G-386 B; 392 C-G] ( 3) While the Returning officer .should be liberal, the power of the Court to order recount which is undoubted, should be exercised sparingly. Even if there is difficulty in giving the serial number of voting papers illegally rejected or received an application made for inspection of ballot boxes mmt give material facts whlch would enable the tribunal or the Court to consider whether in the interests of justice, the. ballot boxes ~.hould b~ inspcted or ot. .In dealing genral allega t; ons that valid votes were llilProperly re1ected or 1nvahd votes were •moroperly accepted, would not serve th111 purpose which is provided for ins. 83(1)(a). In dealing with this question the importance of secrecy of the ballot papers cannot

10-423SCij75

hr ignored. The statutory rules framed unde~ Act ar~ inti:ded to provide ad~ quate safeguard for the examination of the vahd1ty or !nvahdt¥ of votes for their proper counting. Care must be taken to see that elect10n pet1t10ners do not. ge~ a chance to make a roving or fishing enquiry into the ballot boxes so as to Justify their claim that the returning candidate's election is void, and to threaten the certainty of the poll by fiippan•. recounts. [390 D-H; 392 G-H; 393 C-DJ

Jagiit Singh, A.I.R. 1966 S.C. 774, 783 and Chanda Singh v. Choudhary Shiv Ram Verma, Civil Appeal No. 1185 of 1973, decided on 20-12-1974, followed.

In the present case. the High Court construed r. 56 of the ruls in the light of r. 38 and tool:: the view thM the ballot paper shall not be reiected merely on the ground of a formal defect as the accidental omission of the signiiturc. of the

Presiding Officer, without the Returning Officer proceeding to consider if such defect was occasioned by the inadvertance or lapse of the Presiding Officer or the Polling officer, and ordered a limited recount rightly. However, the number of totally rejected ballot papers of all candidates when subjected to a repeated scrutiny yielded disapp;.1inting results from the point of view of the. appellant.

Out of 1096 rejected ballot papers only 17. claimed by the appellant, and 7, by the first respondent, were found faulty. Therefore, the High Court was right in refosing to grnnt a recount on a comprehensive scale.

(387 E-HJ

( 4) Even in the application to the Election Commission the plea for inspection of the used ballot papers was primarily confined to one Assembly segment and the rejected ballots of other assembly segments. In regard to that plea, the petition gave details, but not a scintilla of evidence, on which the Court could act, was present on the record to prove prima facie, what has been alleged. Therefore. refusal of recount was not imp10per.

[391 B, D-E]

CIVIL APPELLATE JURISDICTION': Civil Appeal No. 233 of 1973.

From the judgment and order dated the 18th October, 1972, of the Punjab and Haryana High Court in Election Petn. No. 2 of 1971.

Hardev Singh, "11'1. S. Gupta, and R. S. Sodhi, for the appellant.

S. C. Agarwala.. for respondent no. 1.

M. R. K.. Pillai, for respondent no .. 4.

The Judgmer:t of the Court was delivered by

KRISHNA IYER, J. The dual prayers in the election petition, F by the worsted appellant, related to (a) invalidation of the 1st respondent's election; and (b) the further submission that inst.e:id, the petitioner/appellant be declared successful from the 12-Saiigrur Parliamentary constituency. The petition was dismissed by the High Court and the appellant has repeated both his reliefs in this civil appeal.

However, by the time the appeal came up for hearing, the J st respondent, the returned candidate, passed away, but Hari G Agrawala, Advocate, has sought to appear for an elector from the constituency, on the score that the whole constituency is, a sense, before the Court and anyone from the constituency is entitkd to oppose the election petition and also the election appeal. There is no doubt that the democratic order sustains itself on the rectitude at the polls and disputes affecting elections are not like private litigation but of public concern. Viewed thus. the H question raised is nm free from do~.1bt and indeed it may be appropriate for Parliament to consider whether a provision analogous to

s. 116 of the Representation of. the People Act, 1951 {hereinafter called the Act, for short) enablmg the constituency to be' alerted and to int;,, rvene even at the appellate level, should not be explicitly provided for, as at the trial stage.

Be that as it may, we do not think it necessary to do anything more than hear Shri Agrawala more as amicus curiae than by any right inhering in an elector to intervene in the appeal.

The decisions brought to our notice do not clothe an officious elector with a right to be impleaded in appeal pro bono publico, absent express words to that effect. At the close of the appellant's submissions we did not f.eel the need to hear Shri Agrawala, since nothing in the persuasive arguments of Shri Hardev Singh induced us to alter the finding of the High Court on the sole and central issue of a right to recount.

The 111w regarding recount is, by now, well settled although defeated parties are not disenchanted from challenging the validity of the count through election petitions and persistent appeals.

On the other hand, election petitions make averments manipulated to meet the requirements each new decision insists on.

Even so, the facts of this case-not the merits of the claim-prompt us to make a pertinent observation.

When the primary grievance of a party is error or other vitiating circumstance in the count and some ground not 'frivolous or unreasonable' exists, many candidates 1rek into the High Court complaining of ignored demands for a fresh countin?, despite the existing guidelines in this bel1alf.

The circumstanc' •. , present here constrain us to make some concrete observations on the subject at a later stage in the hope that election authorities will respond sensitively on demand and reduce, by ready recount, the avoidable feeling of injustice of rebuffed rivals in a close contest.

The volume of election litigation may well shrink given more creative imagination and liberal approach in the exercise of powers under r. 63 of the Conduct of Elections Rules, 1961, instead of being rigid, resistant and indifferent.

A stitch in time saves nine.

FACTS

A plurality of five candidates ran for the 12-Sangrur parliamentary seat in Punjab in the General Elections held in March 1971. (Sad that we are in 1975, interlocutory litigative episodes having spun to such length despite only a simple issue of recount being involved in the whole case?) TI1e only two contestants who hotly and hopefully battled for success were the petitioner-appellant, the candidate of the Akali Dal and respondent no. 1, the nominee of the Communist Party of India.

T.he total votes polled were of the order of 3,44,073 cf whicb 7,663 ballots were invalidated.

The tiny margin of 210 votes, by which respondent no. 1 was declared successful, apparently appetised the appellant into attacking the methodology, arithmetic :md impartiality of the count and, indeed, the High Court went half-way with him on this score, as we will presently discuss.

Even at the time the cog.nting was completed on March 12. 1971 the petitioner presented an application to the Returning Officer demanding a recount.

On some minor technical ground the application was

held premature, the formalities of completing Form 20 not having been gone through.

However, soon after the announcement of the . votes polled by each candidate under sub-r. ( 1) of r. 63 of the rules, the petitioner made a second, timely, application for recount under sub-r. (2) of that rule..

The Returning Officer, however, reje<; ted this application also although here were sat out several - grounds, some of which are the same as those urged in the election petition itself.

The petitioner, however, moved the Election Commis.sion for a recount under sub-r. ( 1) of r. 93.

The Commission 'having been satisfied that the Inspection, as prayed for by the appellant, is necessary to further the ends of justice without, at the same time, violating the sc:crecy of the ballot' directed the District Election Offi~ cer of Sangrur District to open the sealed box of votes polled in favour of the candidates in respect of 86-Dhuri Assembly Constituency, a segment of 12-Sangrur parliamentary constituency, and the' paekets containing the rejected votes of the Sangrur Parliamentary Constituency and p1; rmit the appellant to inspect them.

However, this Jpention was not gone through since the High Court, when moved by writ petition, stayed the order of the Commission; and, thereafter, a regular elec1ion petition was filed where the, whole focus was turned on the issue of recount.

The various gi'ounds warranting a recount put forward by the petitioner were duly denied by th1; 1st respondent. The limited recount of one of the segments of the Parliamentary constituency, namely, Sherpur, was allowed by the High Court and affirmed by a consent order by this Court, amplifying the recount to cover the votes of both the contestents.

This revealed some errors but did not produce the desired result of tilting the scales and the petitioner pressed for a wholesale recount all.egir:g serious infirmities which we will presently refer to.

The petitioner has set out as full a statement as he could of the material facts and particulars on which he relied in his election petition.

The prejudicial features about the telling process were both general and segmantwise.

Let us take a look at them.

The Akali Dal w~ the ruling party and the subordinate services had pressed militantly for increased dearness allowance and the State Government is alleged to have rejected the plea even for interim relief, with alleged hostile repercussions :

"The hostile attitude of the Subordinate Services Federation and its employees against the Punjab Government and the ruling party of which the Petitioner was a candidate had prompted the counting assistants and the counting supervisors at different stations to act ma!afidely, arbitrarily and discriminately in the scrutiny, counting and bundling of the votes at the different centres and it was for this reason that whereas the ?etitioner had received a majority of votes but in the counting of the votes which was done in an unfair, uniust, illegal and malafide manner, the Returning Officer, Shri C. D.

Cheema, declared resoondent No. 1 electeld though in fact he had not secured majority of votes.

Prompted 1:zy the same animus,

"the counting agents of the petitioner were not llowed any opportunity to inspect and note the serial numbers of the ballot papers which had been either illegally rejected though in fact polled in favour of the petitioner or wrongfully accepted and counted in favour of the returned candidate. This request of the counting agents of the petitioner was turned down on the plea of secrecy of votes and the counting agents were told by these assistants and other staff that they had been directed not to allow any counting agents or candidate' to know or note down the serial numbers of the ballot papers."

Admittedly, certain reforms had been made in the manner of mixing all the ballot papers and the mechanics of counting and bundling.

The serial number of the ballot was no longer printed on its face but on the reverse which disabled identification of the said number by the telling agents of the candidates.

These mutations in methodology were motivated by the need to secure better the secrecy of the vote, a sanctified principle of free elections, and applied to the whole country.

But the petitioner was aggrieved that his men could not note the serial numbers and the new method threw hurdles in the way of proper check bi1y the telling agents of the scrutiny of the voting papers.

The erection petitioner (vide para 9 of the petition) proceeded to particularise the prejudice he suffered, Assembly constituency-wise, and claimed that the result of the poll had been materially and adversely affected thereby.

He has specified distinct and different grounds regarding the various 'segments' or Assembly constituencies and naturally he cannot telescope or mix up these distinct mischiefs or mistakes or switch grounds from one to . the other.

We will examine' the omnibus criticisms and special complaints voiced in the petition against the background of a brooding fear of a negligible lead the 1st respondent had obtained as being possibly due to unwitting error iu the considerable, continuous counting simultaneously on several table:s, in envfronment not altogether tranquil.

The petitioner levelled many general accusations, apart from _bias qf the counting staff, about the whole process of counting and has examined P.W. 5, the Returning Officer, to substantiate these infirmities.

The witness did candidly admit that he did not do any 5% test-check or any other random count.

Had he been faithful to the instructions in the Handbook of Instructions issued, he might have acted differently.

For, the instructions contained in dause (nn) of para 17 of the Procedure for Counting given at p. 7 4 of the Handbook for Returning Officers, runs thus :

"To ensure further accuracy in the counting of votes, five per cent of the total number of bundles of valid ballot

papers of the different contesting candidates s?all be counted by you. You wm make your selection of thIS five per cent in such a manner that it contains bundles pertaining to th<: different contesting candidates." .

P. W. 5 was unmindful of this guideline, which was a faux pas.

While we a:re not disposed to direct a recount solely on the basis of this peccadillo, we stress the need for strict !l-dherence to instructins calculated to make returns error-proof by officers concerned. Cavalier

attitude or jaded indifference cannot be condoned.

The petitimr has itemised separate infirmities in regard to each segment witl1 inventive ability and imaginary precision.

But W<~ are not inclined to attach weight to these seeming grievances in .. the light of P. W. S's clear testimony that barring the requests for recount 'no complaint of any kinli was voiced before me by anyone in connection with the counting of votes'.

Indeed, he added : 'no complaint regarding any official was received from the Akali party during the election campaign in this constituency'.

Disposed, as we are, to accept this evidence, we find no force in the petitioner's be wailing about official bias and violation of rules.

One complrunt which needs mention is that the counting officials declined to disclose the serial numbers of voting papers which were objected to. It is true that there is a clear departure in the present system, rec1ntJiy introduced, whereby serial numbers are printed on the reverse so as not to be visible on the face.

This is intended to ensure secrecy of the ballot.

May be that in consequence candidates who challenge illegal rejection or reception of votes may not be able to furnish. the serial numbers of the ballot papers in thdr election petitions or elsewhere. Some rulings of this Court (see for eg. J. B. Singh v. K.

Behari) (1) based on the earlier practice of printing serial ntumbers had indicated the need to give these numbers to persuade 1he, Court to grant a recount. The change in the method of printing the serial numbers obviously makes it difficult to observe what is at the back of tile

paper and we agree that this omission cannot go against an otherwise well-grounded request for inspection of ballots by court.

Judicial ; approach must be readjusted to the new bal'lot printing.

But the question is, has the appellant rested his bare wish on other telling testimonial basis - Noni~ that we can discern. Nor can the reform in the numbering on the back of the ballot be a reason for recount.

Several issues were struck and an enormous volume of evidence came on record around the core demand for recount and the Returning Officer, a key witness in the case, P.W. 5, was also examind. . We have th~ additional circumstance of an application for an mtenm count which was allowed partially with reference to Sherpur censtituency (a segment of the concerned parliamentary constituenc:y).

While many issues related to some facet or other of the flaws in the counting, the highlight of the discussion by the trial Court was around issue no. 6 : ------

(1) (1970) 1 S.C.R. 852.

\ ,

"Is the petitioner entitled to insptction, secrutiny and recount of tho ballot papers and, if so, to what ex; tent ?" The interlocutoriy order really covered the crucial issue aforesaid.

The court held that a case for inspection and scrutiny of votes had been made out and observed :

"Issue no. 6 is, accordingly, found in the petitioner's favour and the interests of justice require that the inspection

~, nd scrutiny prayed for be allowed."

Although this might appear to be widely worded, the Court has confined that scope of this recount by a cautious direction :

" .. since the petitioner's allegation with regard to the rejection of such votes which do not bear die prescribed signature is confined to the Sherpur Assembly constituency alone and the number of such votes is stated to be 450 ... l consider it expedient at this stage to inspect and scrutinise only the petitioner's rejected votes relatin~ to that segment of the parliamentary constituency."

As earlier noticed, on appeal to the Supreme Court, the inspection and scrutiny was widened to cover the 'rejected' ballots oi both candidates.

The main ground which appealed to the High Court in making this order for a fresh inspection, scrutiny and recount of the She:rpur segment was the alleged illegal rejection of votes on the score that the signature of the Presiding Officer was absent on the ballot paper.

The Court construed r. 5 6 of the rules in the light of r. 38 and took the view that the ballot paper shall not be rejected merely on the ground of such a formal defect as the accidental omission of the signature of the Presiding Officer, without the Returning Officer proceeding to consider if such defect was occasioned by the inadvertence or lapse of the Presiding Officer or the Polling Officer. This approach is sound in law and a recount was rightey undertaken.

However, the number of totally rejected ballot papers of all the candidates when subjected to a repeated scrutiny yielded disappointing results from the point of view of the petitioner. Out of 1096 rejected ballot papers only 17 c!Qimed by the petitioner and 7 by the 1st respondent were founC: fa"u!ty.

One of the rejected papers of the petitioner was mutilated and its rejection was thus justified. The net result was

tha~ the petitioner gained 16 votes and the 1st respondent 7.

The le::id being only 9, proved colourless so far as the conclusion was concerned. Undaunted by the flimsy difference, the petitioner hopefully urged rhat the other segments of the Parliamentary constituency shculd be similarly put through a second inspection and recount.

The basis being jejune. the learned Judge declined the request. However, the general contentions raised by he petitioner about the unfair counting and bi<1:; ed processing were' examined by the High Court.

Those contentions were :

"1. The attitude of the countinl! staff was hostile to the

petitionr and his party. -

2. The petitioner's votes wre rejected for. want of ~1e A mark or signature prescnbed under section 83, wh1fo

similar votes of the respondent Teja Singh Swatantar were accepted.

3. That the votes of the petitioner were wrongfully put

in the bundles of the respondent No. 1 to inflate his count.

4. That a number of votes marked in favour of the petitioner were rejected simply because they were smudge:d due to folding of ballot papers.

5. That some of the votes counted for the contesting res-

JJOndent were invalid because of multiple markings while others were mutilated and the markings thereon C did not clearly indicate for whom they had oeen cast."

The Court negatived the charges on sound grounds and we are disposed to agree.

We feel, with the learned Judge, that had there been any manipula.tion by the counting stafl' the matter would have been immr.tliately taken to the notice of the Returning Officer and reference to it would have been made in the two applications to D the Returning Officer for recount or at least in the applica.tion to the Election Commission for inspection made on March 17, 1971.

Their silence really silences the' grievance.

Indeed, it must be stated with satisfaction that although government officials at the subordinate level have been, time and again, going on strikes, starting agitations and making demands almost everywhere in the country, hardly any serious or widespread instance of foul plaJy has been established in E their functioning in the election proce§s over the last span of a quarter of a century. Moreover, the contention of biased behaviour of the counting staff is nailed by the revealing accuracy disclosed in the recount of the Sherpur segment and the marginal error being more or less noticed in the case of both candidates.

The activist, non-partisan presee of senior officers to supervise the counting and deciding of disputes regarding the reception and rejection of vores F etc., was a reassuring factor. The conclusion of the learned Judge, which meets with our assent, was expressed thus :

"In view of these facts, I am of the opinion that no case has been made out for any further inspection or scrutiny of ballot papers, especially when we find that the claim of the petitioner that in Sherpur segment as many as 450 votes G polled by him had been rejected solely on the ground! that they did not bear the prescribed signature or the mark, but 200 similar votes were counted for the respondent, stands falsiified by the scrutiny that has already been undertaken.

Scrutiny of votes of the remaining segments will be nothing but a fishing or roving enquiry which is not permitted by ~~ H

The general charge of hostility of subordinate governme:nt staff in counting is unproved, as already held. Even so, we must underscore

. Bf\L?EV SINGH v. TEJA SINGH (Krisna Iyer,/.) 389

the ut .importance of the indepenece, fai{ness· and. activism of' the ElectiOn personntl from the Comm1ss1on to 'the coUiitillg-staff. _ ff their discretion is sensitive to the party in ppwer -Qr' their antipathies are inflamed during election time, th.e cherished parliamentary 51JStem will be the casualty. Every conscientious citizen has a pJJblic duty to desist from. making reckless mud-slinging and tendentious smearing_ of the men who makes the machinery, promoted by chimerical doubts,· and there is cast a countervailing obligation on all who make up the election personnel to be knowledgeable, sensible, sympathetic, sensitive and stem to every candidate alike. Even seeming stiffness on chumming up ot ignorant obstinacy will discredit the instrument.

In the Returning Officer's evidence (as P :w. 5) we find an obscure reference to a telephonic call by the Prime Minister even as the counting was going on. He deposed :

"It is correct that when the counting of postal ballot papers was going on, D. S. P. Charan Singh of the Punjab Potice, who was then on duty at the gate, told me that there . was a telephonic call for me. He whispered this in my ear.

I, hoWever, asked him to say it loudly in the presence of . everyone present from where that call was. He then said it was froin the Prime Minister of India.

As I was busy in counuag I didnot consider it proper to attend to the telephonic call and I refuseti to go to the telephone. I also did _.not ask all\yone to receive the message meant for me. I did not instruct Shri Sher Singh, who was then the Sub-Divisional _Magistrate, Sangrur, to go and hear that telephone and I do not know whether he ever received any telephonic message."

:If this were true, it was unfortunate tosay the least. If it were untrue, the _officer's glib-tongued testimony should have invited censure. Any way, there is rlo tangible trace, anywhere in the record, even to a vague suggestion of influencing the counting by the Prime Minister. It also looks incredible especially since neither of the serious contestants is

3: Congress candidate. Frivolous suggestions linking persons in high office should not be allowed to be flung in court, without sound basis previously laid.

The same witness has unburdened his bosom in the witness box to swear that the Education Minister of the State (the ruling -party was the Akali party and his quondam Personal Assistant was the candidate in the constituencv) desired to 'see' him when the fever of election was on. P.W. 5 said on oath in cross-examinatioJ! :

"It is CC?rrect that S. Surjit Singh, P.W. 4, who was the then Educa1ion Minister, Punjab, visited Sangrur in the course of the election campaign several times. I do not know ·· if S. Surjit Singh was camping at Sangrur on 10th, 11th or 12th of March, 1971. I, however, recollect that on the evening of 11th March, 1971, the Superintendent of Police told me that S. Surjit was at his residence. The Superintendent of Police did not give me any message and merely said that S. Surjit Singh wanted to see me. I, however, could not see

him as I was busy at the time and later when I went to the residence of the Superintendent of Police, I foun4 that Si.

Surjit SiB~ had already left."

If it is true, it is unhappy, but it has the flavour of a fiction. Further if it was true, it ave the appearance to outsiders of pressure by Minis- . ters on the poll officers-a vice which must be condemned. If it were untrue, the officer has tlamned an innocent Minister.

Another fatal blo\y to the plea for recount of other segments pressed by the petitioner-appellant needs mention. We have already stated that the petitioner, with what would appear to be uncanny intuition, stated in para 9 of his petition, details of wrongful reception of invalid votes etc., with numerical precision and wonder of observation possible under the present system of counting only by resort to resourceful fictfoii or extra-sensory perception. Disingenuous awrments do not promote prospects of judicial recount and will be dismissed as devices to eiomply with requirements suggested in some ruling or other.

Counsel did press before us many citations, a few of which alone we propose to refer to, the ground covered being overlapping, the law laid down, the sam1~, and the determining role being the judic:ial response to the key facts of each case. In Jagjit Singh(1) this Court stated:

"Vague or general allegations that valid votes were improperly rejected, or invalid votes were improprly accepted, would not serve the purpose which s. 83(1)(a)

has in mind.

An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the

intere!ts of justice, the ballot boxes should be :~ pected or not.

In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and i.t is always to be borne in mind that the Star

tutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes for their proper .counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to if\spect the ballot boxei; and consider his objections about the improper acceptance or improper rejection of votes tendered bv voters at any given election: but in considering the requirements of justice, care must be taken to see that el~:tion

petione; s do not get a chance to mke a roving or fishing enqmry m the ballot boxes so as to JUStify their claim that the returned candidate's election is void .. We do not pro- JJOSe to lay down any hard and fast rule in this matter: indeed. to attempt to lay down such a rule would be im:xpedient and unreasonable."

(1) AJ.n.. 1966 S.C. 774, 783.

BALDEV SINGH v. TEJA SINGH (Krishna Tyer, J.) 391 ·

The law has been. the same, before and after (Ram Sewak Y adav v.

Hussain Kamil Kidwai(l); and Swami Rameshwaranand v. Madho Ram(2). A judicial recount is not a matter of right (Sumitra Devi

v. Sheo Shankar( 3) and convincing, not conclusive, specificity is of the essence.

In the light of what has been said above and with due regard to the findings of the High Court, we are unable to grant a recount n a comprehensive scale. It is noteworthy that P.W. 5 had heard both sides on the demand for a recount. He has sworn significantly;

"No request was, however, made to me by the petitioner or his counsel S. Gurdev Singh for check count or random count.

I vehemently deny the suggestion that the order Exhibit P.W. 5/b.1 was not dictated in open soon after the announcement of the verbal order rejecting the application: for recount. While arguing the application for recount the petitioner's counsel said that the recount may be confined only to the votes relating to Dhuri Assembly constitve!J.C}"

and his request for recount of the remaining votes may be ignored."

Even in the application to the Election Commission the plea for inspection of the used ballot papers is primarily confined to Dhuri Assembly segment and the rejected ballots of other assembly segments . . Thus it is a fair inference to draw that the grievance centred round

the Dhuri segment. In regard to that plea, the averment in para 9(a) gives details including figures, absence of seal and other irregularities like multiple marking and voting. Not a scintilla of evidence on which a court could act is present on the record prima facie to prove what has been alleged. Therefore the refusal of recount was not improper.

This case has made us reflect anxiously on the dichotomy in the matter of recount between the oounting station and the court hall.

We think it necessary to elucidate the legal lines to be drawn at the two stages, as this is a fit case which calls for such demarcation.

The largest democracy in the world, India, naturally has the most numerous electorate: for a territorial constituency. Several thousands to a few lakhs of ballots for a constituency are polled and have to be inspected and counted in a rapid process; computers and like electronic devices which achieve in a twinkle what manual eyes and hands take Joni! hours to perform are denied to us due to underdevelopment and indig:ence. ffut we have human resources in abundance, to sort out, bundle up, count, check, scrutinize and so on.

Our poll finale relies on human power, and judging by the millions of votes which have passed through the assembly-line processes of mixing. bundling, scrutinising, counting and rebundling-what with mammoth numbers and continuous work-the errors are microscopic. Ttli:;

tribute to Indian ability goes to the lesser level staff-the clerks and -----------

(!) (1964) 6 SCR 238;

(2) 40 E.L.R. 281.

(3) A.I.R. 1973 S.C. 215.

teachers, say-who bear the mechanical brunt of the Himalayan labours' Wh1:n colossal heaps of votes are processed, the tellers may make chance mistakes. Even computers are not totally error-proof and, tu err is human, physically fatigued and brain-fagged as the:y may be occasionally. Scrutiny by vigilant officials and test-cecks .may be good but jaded spirits. caue sips .. Co1!1placen~ assumption of Jpe!1'ection when the operation rs gigantic, is a frailty of abd'urate mmds.

That is why realism has induced r.63 and issuance of instructions to returning officers, rooted in practical wistiQlll. Given lively realism all'd imaginative understanding in the Returning Officers, many honestly sceptical and legitately suspicious candidates who have lost the election may be stilled in their doubt by a recount, and the wier, after all, has no vested interest in error and cannot reasonably ob1ect.

Such is the interpretative perspective, r.63 which has wrongly been lost sight o~ by P.W. 5, the Returning Officer, in the present case.

We' frown upon b:ivolous and unreasonable refusals of recount by Returning Officers who forget the mandate of r.63 that allowance . of recount is not the exuption and refusal is restricted to cases where

the demand itself is 'frivolQW;' or 'unreasonable'. These are strong words. The circumstances off each case decide. Where the margin of D difference is minimal, the claiiu. fot. a fresh count cannot be summarily brushed aiside as futile or trumpery'. If, as in $is case,, for the Sherpur segment, a uniform view, founded in legal error, has led to wrong rejection of votes, rectiftcation by a recount on tl)e spot, when a demand is made, would have been reasonable. If formal defe, ts had been misconstrued at some table as substantial infirmities, or vice versa, resulting in wrongful reception or rejection, thetsooner it was set E right the bt:tter, especially when a plea for a second inspection had been made on the spot. Many practical circumstances or legal misc.onceptions might honestly affect the legal or arithmetical accuracy of the result and prestige or fatigue should not inhibit a fresh, may be partial, d1t'.ck. course, baseless or conoocted claims for recount or fabricated grounds for inspection or specious complaints of mis-·

takes ini counting when the . gap is huge are obvious caises of F frivolous and unreasonable demands for recount. Malafide aspersions on counting staff or false and untenable objections regarding validity uf votes also fall under the same category. We mean to be illustrative, ' .. not exhaustive, but underline the need, in appropriate cases, to be reasonably liberal in re-check and re-count by Returning, Officers. After all, fairness at the polls must not only be manifest but misgivings G at the process must be erased at the earliest. Indeed the Instruc· tions to Officers are fairly clear and lay down sound guidlines.

Judicial power to direct insrection and recount is undoubted but will be exercised sparingly.

In a recent decision Chanda Singh v.

Choudhary Shiv Ram Verma(!) this Court observ.cd : . . "A artain amount of stability in the electoral process H is essential. If the oounting of the ballots is interfered with by too freque_nt and ftjppant recountJ by courts a new threat

(I) Civil Appeal No. 1185 of 1973, do:idccl on 20-12-1974; '

BALDEV SINGH v. TEJA SlNGH (Krishna Iyer,/.) 393.

to the certainty of the poll system is introduced through the judicial instrument. More-over, the secrecy ofl the ballot which is sacrosanct becomes exposed to deleterious prying if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only a few hundred votes as here, to ask for a recount Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic orer by injecting widespread scope for reopening of decla~ returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illelgality . or other compulsions of justice necessitating such a dr~tic step."

This implies no . break from the liberaJ stance. WQ have indicated io.r Returning Officers. Election petitions come to Coutt after a month ·and a halfl and ripen for trial months later and then he appeal, sta- . tutorily vested, inevitably follows. In this Operation I!.itigatjon, which is necessarily protracted, liberal recount or lax re-inspection of votes may create belated uncertainties, false hopes and a hovering sense of suspense, long after elections are over, $<Wemments formed and

legilatures begin to function. Moreover, while a recount, within the .

counting station, With the entire machinery familiar with the process still available at hand and operational, is one thing, a reinspection and recount, which is an elaborate undert"aking with mechanics and machinery of a specialise.d nature and which cannot be judicially br()Ught into existence without an amount of time, toil . and expense is a diffrent thing. This Court has laid down clear principles on the subject, meetin, g the ends of justice, but, without opening . the flood• gates of recounts on flimsy grounds. Less election litigatioi:i is a sign of the pe'Ople's adult franchise maturity and adventurist election petitions are an infantile disease to be suppressed. Our view of r.63, the relevant wholesome instructions by the Commission and the rulings of this Court, 'harmonise with the overall considerations of law and .democracy.

Coming to the facts of this case, we have already indicated that no good grounds for a Court order for inspection and .recount, particularly after the Sherpur experiment, exist. Although .we are free to admit that an imaginative Returning Officer might have quietened the qualms and silenced the scepticism of the appellant by a test check •or partial recount, proceeding to a fuU rooount it serious errors were found, we are inclined to agree with the High Court" there being no reason to reverse its elaborately discussed conclusions,. and the relief of recount was rightly rejected. NecessarHy, no foundation for a declaration in the appellant's favour has been laid and so we dismiss the appeal but, in the circumst3f!Ces, without costs ..

Appeal dismissed.

V.P.S.

BALDEV SINGH

TEJA SINGH SWATANTAR (DEAD) & ORS

January 24, 1975

A. ALAGIRISWAMI

V. R. KRISHNA IYER

R. S. SARKARIA, JJ.

Election-Conduct of Election Rules

Election Commission

Punjab and Haryana High Court

Hardev Singh

S. Gupta

R. S. Sodhi

S. C. Agarwala

M. R. K.. Pillai

KRISHNA IYER

Hari G Agrawala

Parliament

s. 116

People Act, 1951

Agrawala

Hardev Singh

Conduct of Elections Rules, 1961

Punjab

Akali Dal

Communist Party of India

Sherpur

Akali Dal

Punjab Government

C. D.

Cheema

Akali party

(1970) 1 S.C.R. 852

Supreme Court

She:rpur

section 83

Teja Singh Swatantar

March 17, 1971

D. S. P. Charan Singh

India

Sher Singh

I did not instruct Shri Sher Singh, who was then the Sub-Divisional Magistrate, Sangrur, to go and hear that telephone and I do not know whether he ever received any telephonic message."

Sangrur

S. Surjit Singh

S. Surjit Singh

10th, 11th or 12th of March, 1971

11th March, 1971

S. Surjit

Surjit SiB~

Jagjit Singh(1

s. 83(1)(a)

Krishna Tyer

S. Gurdev Singh

Dhuri

(1964) 6 SCR 238


SALIM

STATE OF \VEST BENGAL

.fonuary 27, 1975

(M. H. BEG, Y. V. CHANDRACHUD AND A. C. GUPH, JJ.]

Maime11wu;;1' of lntunal Secul'ity Act. 1971-Words & phrases-Meaning of 'forthwith'-Ncm application of mind-A. vaila.?ility of alternative remedy of prosecution whethu imalidars detmtion.

The ordr of dtention was pas-1cl against the petitioner on 13-6-1972. 011 15th June the Dimict Magistrate rtporkd the fact of ma\:ing the order to the Sta.le Government.

Sta.le GavernmenL approvtd the order on 21st June.

It wa> contended by the appellant.

(!) Th<'t the Ditrict !\fagistrate did not report the maki'lg of the order

"forthwith" a' rquired by sction 30) and that the detention was, thcrdore. liable to be set aside.

(2) Since the State Government rejected the represntation on the very

next day, it nm'! he helJ that it did not apply its mind to 1he representation.

(3) The petitioner could have been proscnted for the acts attribu!ed to him and therefore could not be detained.

Dismissing the petition,

HELD : I..aws o{ Preventive Dtention by which subjots are deprived of their

prsonal liberty without the safeguards available in a judicial trial ought to be

coll'Strued with the grea:cst strictness. The delay on the part of the Di:; trict E Magistr.tte in reporting to the State Government the fact of making the detention order would inevitably curt:;, il the period available to th~ State Government for approving the detention ord•:r.

Suh a delay may conceivably lead to a hurried and Cllrsory consideration of the propriety or justification of the order and tkreby impair a valuable safeguard available to the detenu.

Therefore, he word 'forthwith' cannot he construed so as to permit indolence or laxi'.y on the part of the oflkcr charged with the duty of reporting the detention.

However. reasonable allowance has to be made for unavoidable delays, always remembering that the detaining authority must explain any long delay by pointing out circum- F stances due to which the report 10 the State Government could not be made with the greatest promptitude.

The report was made to the State Government on 15th June which still left to it a margin of 10 days to consider the merits of the order. It cannot be said that the delay in making the report left to the State Government insufficient time to consider whether the order of detention should be approved.

The ordr was, in fact, approved on 21st June much before the expiry of the statutory period.

The order is dated 13th. The explan3tion of the Department that report could noc he mde on 14th due to ndminist•·:1tive G difficulties is acceptable. f'95 G: 396 F-G; 397 B-q

The cont, ention of the p.;:1itionr that since the Stat~ Government rjccted

th~ representation the yery next day. it must be held that it did not <ipply its mmd to the representa!lon wrN negauved.

The length of time which a dcci sion takes <loes not necessari1y reffec1s 1~Jt: ~:t-i'e of 1Jp-n!"Jr~;·..; hrouo:ht to bear nixn it. [399 Al • b

The cm1ltntion of t11c petiiianer tl1at he could have been prosernted H for the ai:ts attributed to him wa5 negatived on the ground that availability of an alternate remedy is not by itself an effective answer to the validity of the detention. [400 A-BJ

ORIGINAL JURISDICTION.: Writ Petition No. 506 of 1974 Petition U,1der Article 32 of the Constitution. D. N. Mukherjee and Gobind Mukhoty A.C., for the etitioner G. S. C. Chatterjee of Sukumar Basu & Co., for the Respondent.

The Judgment of the Comt was delivered by

CHANDRACHUD, J.The petitioner, Skq.

Salim, challenges by this petition under Article 32 of the Constitution an order of detention passed by the District M:igistrate, 24-Parganas, under the Maintenance of Internal Security Act, 1971. The order was vassed on June 13, 1972 avowedly with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies a•.1d services essential to the community.

The particulars furnished to the petitioner refer to two incidents of theft dated January 31 and Febnrary 23, 1972.

The former relates to a theft of underground copper cables and the latter to a theft of A.C.S.R. Coaductors.

The particulars further mention that on February 24, 1972 the petitioner and two of his named associates were found in possession of 30 K. Gs of stolen A.C.S.R. Conductors.

Section 3 (1) of the Act empowers the Centml Government and the State Governments to pass orders of dete<ation for the reason;: therein mentioned.

Secti.on 3 (2) confers power on District Magis- , trates, speci'ally empowered Additional District Magistrates and Commisstoners of Police to pass orders of detention for reasons specified therein.

If an order of detention is passed by any of these officers.

"hr. shall forthwith report the fact to the State Gover,1ment to which he is subordinate together with the grounds on which the order has been made, and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the mea.1time it has been . approved by the State Government : " '

ffhat is the clear mandate of section 3 (3).

The District Magistrate, in the instant case, made the detention order on June 13, 1972 and on me 15th he reported the fact of making the order to the State Government. The question for consitleration, which has been argued with some fervour by the learned counsel appearing amicus curiae for the petitioner, is whether the District Magistrate can be said to have repbrtcd the making of the order "forthwith" as required by section 3 (3).

Laws of preventive detention by which subjects are deprived of their personal liberty without .the safeguards available in a judicial trial ought to be comtrued with the greatest strictness.

Courts must therefore be vigilant to ensure that the detenu is not deprl; ed of the modicum of rights a<ad safeguards which the preventive law itself affords to him.

The Maintenance of Internal Security Act contains what is evidently thought to be a scheme of checks and counter-checks by which the propriety or necessity of a detention order may at various

stages be exami'.ted by various authorities. . If an order of deteni?n is made by ~. District Magistrate .or. a spec1alry. empowred _, Ad1t1onal Dis.trict Magistrate or a Comm1ss1oner of Police, he is required by section 3(3) to report "forthwith" to the State Government about he making of the order. The order c; lnnot remain in force for more tlrnn : 12 days or in the circumstances mentioned in the Proviso to section 3(3), for more than 22 days unless in the meantime it has been approved by the State Government. If the ordet is made o~ approved by the St•ate Government it must under section 3 ( 4) report the fact to the Central Government within 7 days. By sectio.u 10, save as otherwise expressly provided in the Act, the appropriate Government

sh~U witpin 30 days from the date of detention under the order, place before the Advisory Board constituted under section 9 the grounds on which the order has b(:en made, the representation if a,1y m'ade by the detenu and in case where the order has been made by any of the officers specified \111dcr section 3 (2), the report made by the officcr under section 3 (3). Section J 1 (1) requires the Advisory Board to submit its report. to the appropriate Government within 10 weeks from the date of detention.

This time-schedule, evolved r11 order obviously to provide an expeditious opportunity at different levels for testing the justification of the detention order has to be observed scrupulously and its rigour cannot be relaxed on any facile assumption that what is good if done within 7, 12 or 30 days could as well be good if done, say. withi'.1 JO, 15 or 35 days.

The requirement that the District Magistrate or the other officers malking the order of detention shall forthwith report the fact of making the order to the State Government can therefore admit of no relaxa, .. tion, especially because it has a distinct and important purpose to serv(:.

The 12 days' period which the Act in normal circumstances allows to the State Government for approving the detentio'.1 order is evidently thought to be reasonably' necessary for enabling the Government to consider the pros and cons of the order.

Delay on the part of the District Magistrate or the other officers in reporting to the State Gov.::tll:· ment the fact of maki'.1g the detention order would inevitably aurtail the period available to the State Government for approving the detention order. The period of 12 or 22 days. as the case may be, whic:~ is referred to in section 3 ( 3) runs from the date on which the order of detention is made and not from the date on which the fact of makinii the order is reported to the State Government.

Such a delay may conceivably lead to a hunied and cursory consideration of the pro- priety or justification of the order and thereby impair a valuable safeguard available to the detenu.

A liberal construction of the requirement that the officer makin~ the order of detention shall forthwith report the fact to the Sta:~ Government is therefore out of place.

' Contending for the acceptance of the literal meaning of the word 'forthwith', counsel for the petitiO'.ler argues that administrative cxigen- .cies cannot ever be 'allowed to explain away the delav between the

a~:ing of .the detentin order and the report of it to the State Govem- --meiltt. . It is an esilabl!shed rule of construction that unless the language of the statute i.~ ambiguoo~, the words used by the Jegilature ought

SALIM v. WEST BENOAL (Chandrachud, !.) 3 97

to be given their plain, literal meao.1ing. But it is ei; iually important

tilat by nq rule of construction ffi'ay the words of a statute be so interpretcd~.as to bring about absurd situations in practice. Ihe strangle-. hold of stark literalness has therefore to be avoided in order to give a rational meaning and content to the la'aguage used in the st11tute.

Thus, though the word 'forthwith' cannot be construed so as to ptJrmit indolence or laxity on the part of the officer charged with the duty of reporting the detention to the State Government, reasonable allowa.1ce has to be m-ade for unavoidable delays, always remembering that the detaining authority must explain any long delay by pointing out circumstances due to which the report to the State G•wernment could not be ma'1e with the greatest promptitude.

The dictionary meaning of 'forthwith; is : "lm!llediately, at once, without delay or interval".

A typical instance of the use of the word cited in the dictionary is : "When a defendant is ordered to plead forth

with, he must plead within twenty-four hours" (See Shorter Oxford English Dictio'.iary, Third Edition, Vol. I, p.740). This shows that the mandate that the report shonld be made forthwith does not require for its compliance a foYow-up action at the split-second when the order of detention is made.

There ought to be no laxity and laxity cannot be condoned in face of the command that the report shall be made forthwith.

The legislative mandate, however, Ca'anot be measured mathematically in terms of seconds, minutes and hours in order to find whether the report was mal:Ie forthwith. Administrative exigencies may on occasions render a post-haste compliance impossible and therefore a reasonable allowance has to be made for tmavoidable delays.

This approach does not offend against the rule formulated in Ki.shori Mohan Bera v. State of West Bengal (1), and followed in

Blutt Nath Mete v. The State of West Ben;:ai( 2 ). that a law depriving a 3ubject of personal liberty must be construed strictly.

The rule of strict constructi0',1 is no justification for holding that the act to be performed 'forthwith' must be perf.ormed the very instant afterwards without any intervening intem1! of time or that it sh::iuld be performed simultaneously with the other act.

Citing Sameen v. Abeyewickremae)' tviaxwell says that where something is to be dose forthwi•h, a Court will not require instantaneous comtlliance with the ~1atulory

requirements ("The Interpretation' of Statut.es" 12'h Ed., pp. 101-102).

In Keshav Nilkanth /okkpr v. The Commissioner of Police, Greater Bombay(4), •a Constitution Bench of this Court had to deal

with a similar contention foundt:d on section 3 ( 3) of the Preventive G Detention Act IV of 1950, which, was in terms identical with section__

3(3) of the Act under consideration. The order of detention was passed in that case on January 13, 1956 but the report to the State Government was made on January 21. Accepting the explanafrori offered by the detaining authority in his affidavit as to why he c1'.iulct not make the reoort earlier. the Court held that the question to comi<fer

under section 3 ( 3) was whether the report was sent at the earliest ~~~~~~~~~ble and when there is an interval of time between H

(n [t972J 3 sec 845. (2l [19741 m sec 645 . . (3) flQl\.1] A.C. 597.

(4) fl956] S.C.R. 653.

I 1-423SCil1S

the date of the order and the date of the report, whether the delay could have been avoided.

The test which the Court applied for determining whether the report was made forthwith was whether the act was done "with aH reasonable despatch •.ind without <l\'<.'idabk cklay."

In Bidya Deb Banna Etc. v.

Diwi,:1 , iJaf; istra:e. Tripura, Agar/a/a, ( 1) the same problem arose for consideration. The District Magistrate had passed the order of dctl'ntion under the Preventive Detention Act, 1950 on February 9, 1968 but made his report to the State Govcrnme'.lt on February 13.

While cxpluining the delay, the District Magistrate stated in his affidavit that 10th and 11th Fdiruary were closed days and he was during the particular period "extremely busy" due to "heavy rush of work." This explanation was accepted by the Court as satisfactory. In coming to the conclusion that there was no violation of the requirement that the report should be made 'forthwith', the Constitution Bench relied on Joglekar's case a,1d on the following passage which occurred in Maxwell's 1 lth edition at page 341 :

''When a statute requires that something shall be done "forthwith", or "immediately" or even "instantly'', it should probably be understoo\:! as allowing a reasonable time for doing it."

Thus, 'forthWith' does not conaote a precise time and even if the statute under consideration requires that the report shaU be made forthwith, its terms shall have been complied with if the report is made without avoidable or unreasonable delay.

In Hillingdon London Borough Council v. Cutler( 2), Harman L.J. while holding that the concept of 'forthwith' does not exclude the allowance of a reasonable time for dorag the act, qualified his formulation by adding the rider "provided that no harm is done." Applying that test, no prejudice has been caused to the petitioner by the late making of the report.

The Srate Government could approve the d1!tention any time before June 25, the order havin!; ben passed on June 13. The report was made to the State Government cm .Tune 15 which still left to it a margin of about 10 days to consider the merits of the order. It. cannot be said that the delay in making the report left to the State Government insufficient time to consider whether the order of detention should be approved.

The order was in fact approved on June 21, much before the expiry of the statutory period of 12 days.

The District Magistrate, it must be stated, has not explained in his affidavit why he did not report the fact of detention to the State Government promptly.

The order js dated June 13 and if not on the 13th itself, he should have in normal circumstances made his report on the 14th. Such remisness on the part of detaining authorities is not to be encouraged but it ought to be stated that counsel for the State Government ha\i asked for an adjournment to enable the District Maf!- istrate to file a supplementary affidavit for explaining the delay. We

{I) [1969] 1 S.C.R. 562.

(2) [1968] I Q.B. 124. at p. 135.

did not grant. the adjournment as we were inclined to the view that the interval between the date of the order and the date of the report is not s•o long as to require an explanation on oath. The date on which the order was passe~:I. may, even according to the petitioner's counsel be left out of the reckoning.

That accounts for the 13th. The report was made on the 15th and there' is some authority for the proposition that an act may be taken as done "at the first moment of the day on which it was performed" (See Maxwell, 12th Ed. pp. 311-312). That

takes. care of the 15th. All that can therefore be said is that there was one day's delay in making the report. We arc not inclined to dismiss as untrue the oral explanation offered on behalf of the District Magistrate that he could not make the report on the 14th due to administrative difficulties.

As it cannot be said that the District Magistra1:e had. slept over the order or was "lounging supinely" over it and since the explanation of one day's delay ml!)' be accepted as reasonable, there is no violation of the requirement that the report to the State Government shall be made forthwith.

A few other contentions were raised on behalf of the petiti'oner but. we se, e no substance in any one of them. It is contended that section 3(4) has been violated because the State Government did not make a report to the Central Government within 7 days of the date of the order of detention. The short answer to this contention is that the period of 7 days has to be reckoned from the date on which the State Government approved the order and not from the date on which the District Magistrate passed the order. If the order were made by the State Government, the report would have been required to be made to the Central Government within 7 days of the date of the oltler; but the order in the instant case was approved and not made by the State Government. It was then said that there was no proximity between the iqcidents leading to the detention and the order of detention as. there was a gap of about 4 months in between. The explanation of the interval is that the petitioner was being prosecute(! and an order of discharge had t'O be obtained on June 17, 1972. The order of detention was passed 4 days betbre the order of discharge was passed. It is next contended that the State Govemment having rejected the peti tioner's representation the very next day that it was received, it' must be held that it did not apply its riiind to the representation. We do not suppose that the length of time which a decision takes necessarily reflects the care or openness brought to bear upon it. The answer to yet another contention that the entire material which influenced the subjective satisfaction of the Magistrate in passing the order of detention was not supplied to the petitioner is that according to the countered affidavit of the District Magistrate, nothing apart from what is stated

in the grounds and the particulars was taken into account while pass

ing the order of detention. The last submission that the petitioner could have bee11 prosecuted for the .acts attributed t-o him has b<en answered by this Court in numerous cases by saying that the availability of an alternate reme:dy is not by itself an effective answer to the validity of the detention.

In the result we dismiss the petition and discharge the rule.

P.H.P.

Petition dismissed.

SALIM

STATE OF \VEST BENGAL

M. H. BEG

Y. V. CHANDRACHUD

Article 32

D. N. Mukherjee

Gobind Mukhoty

G. S. C. Chatterjee

CHANDRACHUD

Article 32

Section 3

section 3

June 13, 1972

section 3

section 3(3)

section 3(3)

section 3

Central Government

section 9

section 3

section 3

section 3

section 3

Detention Act IV of 1950

January 13, 1956

section 3

sec 845

sec 645

Preventive Detention Act, 1950

February 9, 1968

Constitution Bench

Joglekar

Maxwell

s 1

Harman

[1969] 1 S.C.R. 562

section 3(4)

June 17, 1972


TULSti{ RABIDAS

THE STATE OF WEs: BENGAL

January .27, L915

[V. R.. KRISHNA }YER, P: K. GOSWAMI AND R. S. SARKARIA, JJ.] .

Mai111e11a11ce of Intemal Security Act, Sec. 3-Subjective satisfaction, meal!· ing of-Some el'ide11ce gathered d11ri11g i11restigatio11 which in some manner roped ill the det, e11u, if s11fficie11t. ·

In .pursuan:e of the order of detention , made by the District Magistrate, West Dinajpur, on March i9, 1973, the p; ltitioner was taken into custody. The order of •detention was intended to prevent the petitioner from acting in a manner pr¢jlldicial to the maintenance of supplies essential to the community.

The lil'$t ground related to the ar.rest of the petitioner and his associates while they were. sinuggling 65 KGs. of 'paddy from West Dinajpur District to Maida District. On being challenged by the patrol party he could not produce any valid document in supp()rt of hi~ carrying paddy at West Dinajpur-Malda districts border.

The second ground related to the smuggling of paddy on 11f12,3·73 mid-night in 6' bullock .:arts by the petitioner and his associates from West Dinajpur District to Maida Di'slrict. On being challenged by the Resistance Group Members, the petitioner 'and his associates threatened to .kill them and therefore, being thus terrorised, they dred not apprehend the petitioner and his associates. "' ·

Dismissing the Writ Petition challenging the order of detention,

HELD : (i) The counter affidavit disclosed that a criminal ·:ase had been instiJuted against the petitioner and his associates for offences of illegal tran5port of paddy, for resistan:e to the J!Olice officers taking them into custody and for escape from lawful custody. It further stated that 'due to dangerous and dt:sperate nature of the detenu and his associates' the witness declined to give evidence in op::n court for fear of their lives and that the final report was submitted in the said case.

This mea, ns that the charge-sheet disclosed sufficient evidence to go before the Court and it was not a case of absence of reasonable grounds of suspicion.

[403H404B]

{ii) So far as the second groul)d is conzerned, the absence of material to show that a case has been charge-sheeted in ,:c)urt is not destrucive of the detention order provided there is some_ material fo'r subjective satisfaction of the authority concerned.

Whether the investigation was conducted properly or not. whether the. Dist:rict Magistrate should have pinned his faith on the result of investigation and like questions are not for the court to consider.

But the minimum which .must be placed before the court is that there was some evidence gathered during investigation which. in some manner, roped in the petitioner.

Jn the present case, there is some evidence for the District Magistrate to act.

[404E-H]

(iii) Rhetorica, l assertions that the Presidential proclamation of emergency has outlived its reality and must be annulled. cannot be transformed into proof. The rea>0ns given by this Court in Bhuth Nath's case A.I.R. 1974 S.C. 806, holds good here too.

[405EF]

Samsher Singh's case, A.I.R. 1974 S.C. 2192, referred to.

ORIGINAL JuRm1cnoN : Writ Petition No. 349 of 1974.

Petition under Art. 32 of the Constitution of India.

H. S. Manvah, for the petitioner.

S11kumar Ghosh and G. S. Chatterjee, for the respondent.

The Judgment of the Court was delivered by

KRISHNA IYER, J.--The case of the petitioner, a detenu in West Bengal, has been presented at persistent length by Sri arwah, appear ing as amic~1s curiae, but some of the many contentions pressed by him merit serious notice which alone we propose to deal with.

Now, the facts to the extent relevant.

The order for detention was made by the District Magisrate, West Dinajpur, on March 19, :1973 pursuant to which he was taken into custody nine. days later. The calendar of 'statutory' events discloses no infirmity but the content of the groun'ds given by the District Magistrate and the order of approval made by the State Government have been the focal points of attack.

Straightway W(: proceed to set out the two criminal involvements of the petitioner which allegedly persuaded the authority to direct detention with a view, hereafter, to inhibit this activities prejudicial to supplies essential to the community.

They are :

"( 1) That on 6-3-73 at about 01.30 hours you along with your associate Mangal Soran of Gopalpur, P. S. Bangshihari, Dist. West Dina_jpur were arrested with 65 kgs. of' paddy in gunny bags within 1 K.M. of West Dinajpur-Malda Border at Kandarpur, P. S. Banshihari, Dist. West Dinajpur, by the patrol party of Bagduar A/S Camp, P. S. Bangshihari, Dist. Dinajpur while you acd your said associates were smug· gling the said quantity of paddy from West Dinajpur district to Maida district.

Being challenged by the patrol party you could not produc:c any valid d<;>cumcnt in support of your carrying paddy at West Dinajpuf-Malda districts border. This activity of yours created scarcity of paddy within the jurisdiction of Bangshihari P. S. Elaka of West Dinajpur district and the price index of paddy soared high and high beyond the purchasing capacity of the common people of that area.

Thus you acted :in a manner prejudicial to the maintenance:. of supplies essential to the oornmunity.

(2) That on 11/12/3-73 mid-n.ight you along with yoa; r associates were found smuggling paddy in 6 bullock carts from Rakhalpukur, P.S. Banshihari., Dist. West Dinajpur to Maida district by some members of the local Resistance

group. namely Kamal Chandra Roy of Deogaon. Narayan Chandra Sarkar of Mirshati, both of P.S. Banshihari. Dist.

West Dinajpur and others.

Being challenged by the said Resistance Group Members, you and your associates threa- tened to kill them and being thus terrorised the Resistance Group Members dared not apprehend you and your asSO· ciates These activities of yours are mainly responsible for the rise in price of paddy and rice within Banshihari P.S. jurisdiction of West Dinaipur district. Bv such illegal act of smuggling of paddy you and your associates created scarcity of paddy and rice in Banshihari P.S. jurisdiction, Pist.

West Dinajpur allld thereby acted in a manner preiudicial to the maintenance of supplies C!sential to the community. ·

From the above facts it is clear that you and your associates are acting in a manner prejudicial to the maintenance of supplies and services essential to the community."

The past is the precurser anti predictor of the future and this commonsense canon is usually-and in this case-applied by the authority to foretell the danger to the services and supplies essential to the community by repetitive criminal activity of the prospective dtenu.

Once the officer entrusted with the power reads the omens with due care, the court cannot re-read for its own satisfaction. But if the authority puts forward grounds so grotesque that he goofs the law, as it were, the Court will invalidate the order for the well-worn reason that no rational being would have formed the satisfaction which is a si11e qua non for the detention.

Supra-rational hunch or iO:frarntional instinct are not legal processes in this humdrum world and we have, as sentinels, the duty to scan the basis of the subjective satisfaction or the authority to check upon his minimal aspect of rational belief.

The grounds, as already set out, have to be considered to appraise the claim of rational belief as against the charge of a 'cyclostyled' satisfaction.

The crime of March 6, 197.3, committed past mid-night by the petitioner and his associates, is tell-tale in certain aspects. It relates to removal of paddy in gunny bags. The smugglers were arrested by the patrol party of Bagduar anti-smuggling camp. The culprits oould not produce any permi.t in support of their transport of the paddy.

We have no doubt that smugglers. disrupt supplies and services essential to the community and a smuggler of today who gets away with it is likely to be a smuggler of tomorrow, the habit of get ting rich quick dying hard. In this context, we have the counter-affichwit which runs thus :

"It appears from th~ report submitted by 1.0. of the case that the petitioner was ratimately connected with the incidents mentioned in the grounds of detention. I deny that . the grounds of detention are false and detention of the petitioner is illegal.

It further appears from the report of the said 1.0. that with reference to the first incident a Cr. Case bei'ag Banshihari P. case No. 6 dated 6.3.73 was instituted against the petitioner •and his associates under Section 7 ( 1) of the Essential Commoditi_es Act and Section 224/225 of J.P.C. but as due to dangerous and desperate nature of the detenu and his associates the witnesses declined to ive evidence against them in open court for fear of their lives and final report was submitted in the said case."

The inevitable inference from this statement, understood in the background of the 'grounds,' is that a criminal case had been instituted against the petitioner and his associates for offences of illeiial transport of paddy, for resistance to the police officers taking them into

cutodv and for escape from la1.Viul custodv.

Sections 224 and 225 I.P.C. clearly intlicate this development. What follows is significant. The Deputy Seqetary in the Home Department (who has sworn to the counter-affidavit), by a perusal of the papers, states on

omh that 'due to da,1gerous and desperate nature of te dete;1u and his associates' the witnesses declined to give .:videnc~ m ?Pe;1 cou.rt for fear of their lives and the final report 'Vas submitted m t,1e said case.

The price that subjective satisfaction, as valiating n order and excluding judicial scrutiny, has to pay in a court, 1s that if one of many gromds relied on by the authority goes, undeniably the whole order falls, even though if it were a case of objective satisfati?n the court _ might have attempted to sustain the order o.n the survvmg grounds.

It is argued that for this reason, the detent10n order m the present case must fail.

We have to be very C'areful where economic offenders inj1m~ the soft underside of the community's distribution a,1d consumption system in -r.espect ef essential cQnunodities.

Viewed with meticulous care, we see from the affidavit filed on behalf of the State that a criminal case had been actually instituted against the petitioner under s. 7 ( 1) of the Essential Commodities Act. This means that the charge-sheet disclosed sufficient evidence to go before a court and it was •,101: a case of absence of reasonable grounds of suspicion.

The possible argument that the affidavit had left vague the likelihood of a report under s. 169 Cr.P.C. based on no evidence is thus repelled. The order is not vulnerable on this score.

So far as the s1:cond episode is concemed, the attack made by counsel is that the counter-affidavit omits to mention anything about the criminal case that must have followed.

True, there should have been a btter aflldavit, but the absence of material to show that a case has been charge-sheeted in court is not destructive of the detention order provided there is some material for the subjective satisfaction of the authority concerned. In the present case, on the polic1~ report regarding the second incident, which is a serjous one, the authority might well have come to an inference of prejudicial activity.

We must express our surprise: at the silence i'.1 the counter-affidavit about the action taken in court having regard to the fact that the offence itself is one of transport by a 'caravan' of bullock carts. Even so, we are unabfo to void the order on this score, especially because the District Magistrate may well have acted on the police report.

Whether the investigation was conducted properly or not, whether the District Magistrate should have pinned his faith O'a the result of the investi gation and like questions, are not for the Court to consider. But the minimum which must be placed before the Court is that there 'was some evidence gathereld during investigation which, in some manner, roped in the petitioner. We are prepared to hold that there is some evidence for the District Magistrate to act and there we pause.

W c must fra,1kly admit tlrat the nature of the economic offence has had some impact on our mind in examining the order and the

suce material sedulously. The facts are peculiar and other facts might have led to an opposite inference.

The caution that absentminded orders of detention unwittingly suffer electrocution in court

should however 11ot be forgotten, notwithstanding the survival of the order in this case.

The country which faces food scarcity has resorted to arming the government and its officers with special powers under the MISA.

They are intended to be exercised whenever occasion arises, but exercised with care.

In the present case we have had to make up for deficiencies in the counter-affidavit by a closer exmnination of materials, for reasons already set out.

We should impress upon govermi1ent and its_ lesser officials, armed with extraordinary powers, to use them for the salutary purpose of C the protection of the community in its sensitive area of food and like essential articles. If there is failure in this •area, the officers must be taken to task, for the victim is the country and the community.

The release of a detenu because the order has been passed recklessly, is a matter which should be of concern to the State. If the detenu is a dangerous criminal who disrupts supplies and services essenfral to D . the life of the community, release of the man caused by absence of nexus for which the real though invisible responsibility falls on the officer, must be looked into at higher levels, so that the purposes of . the MISA are 1aot defeated by the neglect -of legality or indifference in_ operation from withi•.1.

Official vigilance is the price of soda! security and MISA is no talisman.

In the present case, for the special reasons E set out above, the order survives judicial scrutiny.

Shri Marwah openetl vigorously with the submission that the Presidential proclamation of emergency has outlived its reoality and must be annulled by this Court.

He marshalled what he variously called 'notorious' and 'historical' facts to establish that normalcy has prevailed in the l'a'ad for some time and the impenetrable secrecy of 'subjective satisfaction' no longer remained a sustainable proposition after Samsher Singh' s Case('). If the Emergency was extinguished judicially and retroactively, the Defence of India Act would have expired aq_d the maximum period of detention itself would have ended, resulting in a release of the petitioner. For lovers of civil liberties a penumbra of Emergency is anathema but the preliminary question in a Court is whether the basic facts and necessary parties are on record at all. Rhetorical assertions cannot be transformed into proof and absent affected parties, the Court's jurisdiction cannot be activated.

Further, adjpurnment for this purpose at this late stage.being impennissible. we have to negative the plea. Moreover, the reasons given by th!s Court in Bhut Nath's Case (2) hold good here too.

We reject the belated ------- ----

(1) AIR 1974 SC 2192;

(2) A.J.R. 1974 S.C. 806.

406 SUPREME COURT Rf!PQRTS

(1975] 3 S.C.R.

plea, hopeful that in the event of a future ruling of this Court prono1mcing ... the ·ate o.f emergency long ago legally dead the petitioner will have the benefit of it at the hands of the State.

Observing silence £or --....._ r the nonce on the merits of Shri Marwah's undccume•,1ted content:/on,

we reach th~ conclusion that the petition is liable to be dismissed. We however record appreciation of the painstaking services of Mr. Marwah with a sense of involvement in the case, though appearing as amicus curiae.

The petition is dismissed and the rule discharged.

Petition dismissed.

V.M.K.·

RABIDAS

THE STATE OF WEs: BENGAL

January .27, L915

P: K. GOSWAMI

R. S. SARKARIA, JJ.

Intemal Security Act

Sec. 3

Maida District

Malda districts

West Dinajpur District

Rhetorica

Bhuth Nath

Samsher Singh

Art. 32

Constitution of India

H. S. Manvah

G. S. Chatterjee

KRISHNA IYER

arwah

Mangal Soran

Gopalpur

P. S. Bangshihari

Kandarpur

Dinajpur district

Maida district

West Dinajpuf-Malda districts

Bangshihari P. S. Elaka

West Dinajpur district

Rakhalpukur

Kamal Chandra Roy

Deogaon

Narayan Chandra Sarkar

Mirshati

Banshihari P.S.

March 6, 197.3

Section 7

Section 224

cutodv

Sections 224 and 225

I.P.C

s. 7

Essential Commodities Act

s. 169

Cr.P.C

Marwah

Samsher Singh

Bhut Nath

AIR 1974 SC 2192