This petition under Article 226 of the Constitution for issue of a writ in the nature of habeas corpus has been referred to me on difference of opinion between my learned brothers Dube, J. and Mishra, J. who constituted the Division Bench by which the petition was heard. Dube, J. is of the view that the petition is liable to be dismissed; whereas, Mishra J. holds the contrary opinion that it must be allowed.
The petitioner is under detention by virtue of an order dated 17-3-1980 passed by the District Magistrate, Guna, u/s 3(1) read with section 3(2)(a) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, which will hereinafter be referred to as the Act. The order was confirmed by the State Government on 6-5-1980 u/s 12(1) of the Act. The period of detention will expire on 20-9-1980.
The order dated 17-3-1980 passed by the District Magistrate u/s 3(1) of the Act reads as follows:
Whereas it has come to my notice that the activities of Manakchand son of Sohanlal Jain, resident of Mungaoli acting in a manner prejudicial to the maintenance of supplies of commodities essential "to the community, I am satisfied that it is necessary to detain him. Now, therefore, in exercise of the powers conferred on me u/s 3(2)(a) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. I, S.R. Mishra, District Magistrate, Guna hereby order that Manakchand son of Sohanlal Jain resident of Mungaoli, Police Station and Tehsil Mungaoli, district Guna be taken into custody and without loss of time be sent for a period of six months to the Superintendent, Central Jail, Gwalior in accordance with the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.
Statement of grounds on which the order was made was furnished to the petitioner on 21-3-1980 u/s 8(1) of the Act. It reads as follows:
(underlined by me)
The first point on which Dube J. and Mishra J. have differed is whether the underlined portion in the statement of the grounds of detention invalidates the detention order. Dube, J. is of the opinion that it is of little significance as it is not a part of the detention order. According to Mishra J. it is an essential part of the grounds supplied and, as the satisfaction recorded therein is foreign to the scope of section 3 (1) of the Act, the detention order is rendered illegal.
The said portion of the statement of the grounds of detention can be translated into English as follows:
I am satisfied that you are proving to be such an hindrance to public security and peace and in public interest that it has become necessary to detain you u/s 3(1) of the Prevention of Black-Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.
The detention order contemplated by section 3(1) of the Act can be made against any person only on being satisfied that it is necessary to detain him with a view to prevent him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. In the detention order, the District Magistrate did not say that he was satisfied that it was necessary to detain the petitioner ''with a view to prevent him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community''. The expression ''acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community'' has been explained in the Explanation to section 3(1). Accordingly, it means--
(a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955, (10 of 1955) or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in, any commodity essential to the community; or
(b) dealing in any commodity--
(i) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955) or
(ii) with respect to which provisions have been made in any such other law as is referred to in clause (a), with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid.
Satisfaction on no other point can be made basis of the detention order.
Under sub-sections (3) and (4) of section 3, which are mandatory, it is incumbent upon the detaining authority to forthwith report the fact together with grounds of detention to the State Government or the Central Government as the case may be. Section 8, which is also mandatory, lays down as follows:
Grounds of orders of detention to be disclosed to person affected by the order--(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.
(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
Sub-section (1) of the section makes it obligatory on the authority concerned to communicate to the detenu, within the prescribed period, the grounds on which the detention order has been made and to afford him the earliest opportunity of making a representation against the order. Under sub-section (2) the authority is, of course, not bound to disclose facts which it considers to be against the public interest to disclose. Sub-section (2) has no application in the present case. The detention order made u/s 3 (1) is necessarily to be followed by the act of communicating the grounds of detention forthwith to the State Government or the Central Government as the case may be u/s 3 (3) or section 3 (4) and by the act of a communicating the grounds of detention to the detenu u/s 8 (1). So, it becomes clear that the Act does not permit any person to be detained without grounds, though it permits the grounds to be communicated to the detenu afterwards within the period prescribed by section 8 (1). Sub-section (2) of section 8 permits non-disclosure of only those facts which the authority considers to be against the public interest to disclose. As the detention order cannot stand without grounds of detention, it must be held that the statement of the grounds of detention constitutes an essential part of the detention order and that it must be in consonance with the detention order. If it discloses material disparity with the detention order the disparity would have the effect of rendering the detention order invalid. If, in the statement of the grounds of detention furnished to the detenu, something foreign to the scope of section 3 (1) is stated to be the ground of satisfaction, that hits the detention order at the root and the detention order collapses.
It may be mentioned that it is not open to read in the order or in the statement of the grounds of detention anything which is conspicuously absent therefrom nor can the error, occurring therein, be subsequently explained. The following observations made by their Lordships of the Supreme Court in the case of
We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Preventive detention is a serious invasion of personal liberty. The detention of a person without trial is a serious matter and requires the greatest circumspection on the part of those who wield the power. There is no room for errors or at least avoidable errors.
In the case of
Satisfaction on the point that the detenu is proving to be an hindrance to ''public security'' and in ''public interest'' cannot be made basis for the order of detention u/s 3 (1) of the Act. That is wholly irrelevant for the purpose of that section. The portion of the statement of the grounds of detention underlined in paragraph No. 3 above is also inconsistent with the detention order and the inconsistency given a complete go-bye to the suggestion that the detention order was made with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of supplies of essential commodities. I concur with the view of Mishra J. that the above-quoted recital in the statement of the grounds of detention renders the detention order illegal.
It may be mentioned that decisions in
Your activities are highly prejudicial to the maintenance of public order and I am convinced that unless you are detained, large scale disturbances resulting in widespread loss to the public and private property and to the safety of peaceful citizens will occur.
Their Lordships negatived the contentions that the first paragraph was of an introductory nature, that paragraphs 2, 3, 4 and 5 referred to the events which furnished the background and that the penultimate paragraph alone contained the grounds of detention as such and observed that they were unable to see how factual allegations such as those mentioned in paragraphs 1 to 5 could be said to be merely introductory or as constituting the background. It was in that context that it was held that (i) there was no justification for any distinction being made between introductory facts, background facts and ''grounds'' as such and that (ii) all allegations of fact which led to the passing of the detention order constituted ''grounds of detention.'' The last paragraph was left out of consideration by their Lordships. In none of those two cases were their Lordships faced with the situation of disparity between the detention order and the statement of grounds of detention. No question of examining the effect of disparity between the detention order and the statement of grounds of detention was involved in any of those cases.
The other difference between Dube J. and Mishra J., is on the point as to whether the grounds of detention are vague so as to render him unable to make effective representation. Dube J., is of opinion that none of them is so vague as to render the petitioner unable to effectively meet and explain it. Mishra J., with particular reference to the first ground, holds the first ground to be vague and obscure and that alone to be sufficient to vitiate the entire order. The petitioner''s grievance as to vagueness of the other grounds also appears to him to be justified; but, he does not think it to be necessary to burden the order with examination of each of them for the reason that vagueness of the first ground alone is, in his view, sufficient to vitiate the detention order.
The ground No. 1 reads as follows:
It does not disclose the irregularities complained of. It is not clear therefrom as to whether ''2-2-1980'' was the date of receipt of the complaint or that of inspection by the Food Inspector. If ''2-2-1980'' was the date of receipt of the complaint, the date of inspection was missing. The date or dates on which and the transaction or transactions in which black marketing in the distribution of diesel and kerosene was discovered to have been done were also conspicuously absent. The person/persons with whom the transaction/transactions was/were made was/were not disclosed. The quantities of diesel and kerosene were also not disclosed. The prices at which the same were found to have been sold were also not mentioned to show as to how black marketing was found to have been done. Due to these omissions, it must, in my opinion, be held that the ground was vague and obscure to such an extent as to render the petitioner unable to make effective representation. Thus, I concur with the view of Mishra J., in this respect. Besides the first ground, in my opinion, at least the ground Nos. 2 , 2 , 2 and were also obviously vague and obscure, for want of essential particulars, so as to render the petitioner unable to make effective representation.
Preventive detention is a serious invasion of personal liberty and such meagre safe-guards as the Constitution has provided against the improper exercise of the power must be zealously watched and enforced by the Court. u/s 8 (1) of the Act read with Article 22(5) of the Constitution, the detenu has a right to be furnished with particulars of the grounds of his detention sufficient to enable him to make a representation which, on being considered, may give relief to him. The purpose of the requirement is to afford him the earliest opportunity of seeking redress against the order of detention. But, as is obvious, that opportunity cannot be said to be afforded when it is established that a ground of detention is so vague that he cannot possibly make an effective representation. It is up to the detaining authority to make his meaning clear beyond doubt, without leaving the detenu to his own resources for interpreting the grounds. Otherwise, such grounds have to be regarded as vague so as to render it difficult, if not impossible, for the detenu to make an adequate representation. The said constitutional requirement must be satisfied with respect to each of the grounds of detention communicated to the detenu. Inclusion of even a single obscure or vague among other clear and definite grounds is an infringement of the detenu''s right to be afforded the earliest opportunity of making a representation against the order of detention, i. e. to be furnished with sufficient particulars to enable him to make a representation which, on being considered, may obtain relief to him. These propositions are clear from decisions of the Supreme Court in
It goes without saying that the learned Government Advocate has urged the petitioner having not applied for particulars, none of the grounds of detention can be held to be vague. He has placed reliance on Supreme Court decision in the case of
Mishra J. has further held that the petitioner''s detention is unwarranted on the additional ground that certain documents, particularly the Food-Inspector''s report referred to in the first ground, were not furnished to the petitioner nor particulars thereof supplied to him despite his making a grouse in that behalf in his representation. He has placed reliance on the following observations of their Lordships of the Supreme Court in the case of
When the grounds of detention are served on the detenu, he is entitled to ask for copies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation. When the detenu makes a request for such documents, they should be supplied to him expeditiously. The detaining authority in preparing the grounds would have referred to the statements and documents relied on in the grounds of detention and would be ordinarily available with him--when copies of such documents are asked for by the detenu the detaining authority should be in a position to supply them with reasonable expedition.
In that case, there was undue delay in furnishing copies of statements of some witnesses and documents referred to in the grounds of detention. The copies were applied for by the detenu''s counsel for the purpose of making a representation against the detention order. Their Lordships further observed as follows:
If there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied. The detention cannot be said to be according to the procedure prescribed by law. When the Act contemplates the furnishing of grounds of detention ordinarily within five days of the order of detention, the intention is clear that the statements and documents which are referred to in the grounds of detention and which are required by the detenu and are expected to be in possession of the detaining authority should be furnished with reasonable expedition.
The Act nowhere lays down that the detaining authority shall furnish the detenu with copies of statements and documents referred to in the grounds of detention. The latter part of section 8 (1) lays down only that the authority shall afford him the earliest opportunity of making a representation. Therefore, the authority is not bound to supply the copies unless the detenu asks for the same in order to enable him to make representation. If he does not do so, he is not entitled to make a grouse in that respect. In the case of Ramchandra A. Kamat (supra), copies were asked for before making representation for the purpose of making representation; whereas, in the present case, copies were never asked or applied for. Therefore, the observations made by their Lordships in that case are, in my opinion, not applicable in the present case. Thus, I find myself unable to agree with the above view expressed by Mishra, J.
Finally, I conclude that the detention of the petitioner is vitiated for the reasons that (i) in the statement of the grounds of detention, satisfaction of the authority was stated to be on points foreign to section 3 (1) of the Act and (ii) at least 5 of the grounds of detention, particularly the first ground, already mentioned in paragraph No. 13 above, were vague.
Thus, in my opinion, the petition must be allowed, the detention order set aside and the petitioner directed to be set at liberty forthwith.
