High Court Of Andhra Pradesh

Jagdish Prasad Gupta, Detenu Central Jail V. The State Of Andhra Pradesh & Another

Writ Petition No. 5562 of 1974. 28-10-1974

JUDGMENT

CHINNAPPA REDDY, J.

On 16-10-1974 we directed the release of the detenu and announced that we would give our reasons later. We now proceed to state our reason.

2. We confess that we are not a little perturbed by the very casual and often indifferent manner in which orders of detention appear to have been made in some of the cases that have come before us recently. In fact, in some cases, we were left with an uneasy feeling that the very carelessness was designed to furnish ammunition for attack. We do hope, it was not so, but that it was mere carelessness. But, if it was carelessness concerned as we are with the liberty of the subject, we must hasten to say that detaining, utmost circumspection and a deep regard for fundamental liberties. To act in any other manner is truly unaprdonable. To detain a person without trial is indeed a serious matter. It offends the ordinarily standards of fair-play observed and well established in democratic countries. That is why, Courts of justice accustomed to procedures involving fair-play insist upon strict compliance with the safeguards prescribed by the Constitution and by the Parliament, where such detention becomes inevitable.

3. Turning to the facts of the present case on 4-9-1974, the Commissioner of Police, Hyderabad made an order for the detention of the petitioner under Section 3(1)(a)(iii) of the Maintenance of Internal Security Act. However, the petitioner was not arrested till 26-9-1974. According to the respondents he could not be arrested because he was absconding. According to the petitioner he was always available, and he surrendered himself to the Superintendent. Central Jail, Hyderabad on 26-9-1974 as soon as he came to know of the detention order. For the purposes of the present case, it is immaterial why he was not arrested till 26-9-1974. What is material is the circumstance that he surrendered to the Superintendent Central Jail, Hyderabad on 26-9-1974. The Assistant Commissioner of Police who was informed about it, served the order of detention dated of detention 4-9-1974 on the petitioner. A fresh order of detention dated 26-9-1974 was served on the petitioner in the Central Jail. Hyderabad. The petitioner was served with the grounds of detention on 30-9-1974.

4. The grounds of detention alleged that the petitioner is a partner of M/s. Royal Laboratories and M/s. Royal Medical Hall. On 21-8-1974. 22-8-1974, 23-8-1974, 26-8-1974 and 29-8-1974, the Assistant Drug Controller, and two Drug Instant Drug Controller, and two Drug Inspectors inspected the Laboratory and the Medical Hall and discovered the 'malpractices' mentioned in the grounds. The first 'malpractice' mentioned in the grounds relates to the sale of 'pethidine'. The allegation is that during the period from 1-4-1971 to 21-8-1974, the petitioner had manufactured 4,62,053 ampoules of pethidine. Out of them 900 ampoules were used for analysis. The sale records of Royal Medical Hall showed that during that period 3,93,675 ampoules of pethidine had been sold. Therefore, the petitioner should have been in possession of 68,378 ampoules. But, on physical verification of the stock on hand it was found that the petitioner was in possession of 24,000 ampoules only. The remaining 43,078 ampoules were unaccounted for, leading the detaining authority to conclude that the petitioner had 'indulged in malpractice in respect of sale of pethidine to make undue profits', thereby disputing the supply of an essential commodity. The second 'malpractice' mentioned in the grounds is that 40 bottles of 450 ml. of spiritus aetheris nitrosal bearing the label 'used before February 1974/Batch No. 422' were found in the Royal Medical Hall on 28-8-1974. This led the detaining authority to conclude to the petitioner had stored for sale-time-barred drugs and that he had thereby caused disruption of supply of wholesome drugs essential to the community. The grounds of detention allege that it has become necessary to detain the petitioner with a view to prevent him from the further acting in a manner prejudicial to the maintenance of supplies essential to the community.

5. In this application for the issued of a writ of Habeas Corpus apart from raising the usual questions regarding the non-existence and vagueness of the grounds of detention. Sri P. Babulu Reddy, learned counsel raised a formidable question of law which appears to us to be practically unanswerable. He argued that under Section 3(3) of the Maintenance of Internal Security Act, the first order of detention dated 4-9-1974 ceased to be in force after the expiry of twelve days as it was not approved by the Government within that period that under Section 14(2) a fresh order could only be made "Where fresh facts have arisen" but that ion the present case there were no fresh facts therefore the second order of detention was illegal.

6. Section 3(3) of the Maintenance of Internal Security Act stipulated that an officer making an order of detention shall forthwith report the fact to the State Government together with the grounds on which the order has been made etc. It further provides that no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government. The provision is plain and it is clear that the period of twelve days has to be reckoned from the date of the making of the order of detention and not from the date of detention. This is unlike, for example, the provision in Section 13 of the Act which prescribes the maximum period for which a person may be detained is twelve months from the date of detention or for example the provision in Section 8 of the Act which prescribes that the grounds of detention should be served on the detenu within five days from the date of detention. Thus, irrespective of whether the person sought to be detained is arrested or not, the approval of the Government for the order of detention shall be obtained within twelve days after the making of the order, otherwise the order will cease to be in force. If the person sought to be detained cannot be apprehended. Section 7 provides for the further procedure to be followed. But neither Section 7 nor any other provisions of the Act exonerates the detaining authority from complying with Section 3(3) of the Act. This position was not disputed before us by the learned Public Prosecutor. Indeed, it cannot be disputed having regard to the clear language of the provision. In the present case the detaining authority (the Commissioner of Police, Hyderabad) did not given bother to seek the approval of the Government neither before nor after the expiry of the period twelve days after the making of the order of detention dated 4-9-1974. He gave his reasons in the counter-affidavit in the following words : "It is submitted that the order dated 4-9-1974 was not forwarded to the Government for approval within 12 days, because the attempts to apprehend the detenu were in progress and I am of opinion that it is no necessary to forward it instantly but as early as possible before the expiry of twelve days. Meanwhile I was busy in attending to unusual urgent problems and the time of twelve days expired". The explanation is far from convincing. S. 3(3) required him to forward the order of detention forthwith. The twelve days time given by the provision was not intended for his benefit. It was meant for the Government to enable it to consider the matter in order to express its approval or disapproval. A detaining authority cannot forward the order of detention on the twelfth day the expect the Government to express its approval or disapproval forthwith. That would indeed be reversing the intendment of the provision. Having allowed the period of twelve days to elapse, he did not even withdraw the order which he had entrusted to his sub-ordinated for execution. His Sub-ordinate the Assistant Commissioner of Police, Division I, who served the order dated 4-9-1974 on the petitioner stated in his affidavit that he did not know that the order had ceased to be in force. We are compelled to say that the statements of the Commissioner of Police and the Asst. Commissioner of Police are poor may sad commentaries on the working of the Maintenance of Internal Security Act and the officers to whom the working of the Act and therefore the liberty of the subjects is entrusted.

7. The question for consideration is what is the effect of the expiry of the first order of detention on the second order of detention dated 26-9-1974. Section 14(2) of the Maintenance of Internal Security Act is in the following terms :

"The revocation or expiry of a detention order shall not bar the making of a fresh detention order under Section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be, is, satisfied that such an order should be made."

This provision therefore enables a fresh detention order to the made if fresh facts have arisen after the date of expiry of the previous order of detention and if the satisfaction of the Government or officer that such an order should be made is based on such facts. The grounds of detention dated 30-9-1974 which we have summarised earlier clearly relate to facts which arose prior to the earlier order of detention. Therefore the order of detention dated 26-9-1974 is prima facie contrary to the provisions of Section 14(2) of the Act and therefore illegal. The learned public prosecutor, however, argued that it was not necessary that every one of the facts should have arisen after the expiry of the previous order of detention. It was enough if some of the facts came to the knowledge of the detaining authority subsequent to the expiry of the first order of detention. He submitted that the discovery of a fact was itself a fact and therefore if facts came to the knowledge of the detaining authority subsequent to the expiry of first order of detention, it was open to the detaining authority to base the second order of detention on such facts. He pointed out that in regard to the sale of pethidine the detaining authority did not have before him all the relevant facts as the matter was then still under investigation when the first order of detention was made. He invited our attention to the statement in the counter-affidavit of the Commissioner of Police that on 19-9-1974 the Additional Director. Vigilance Cell, had forwarded additional information in regard to the manufacture and sale of pethidine. We are not inclined to accept the submission of the learned Public Prosecutor. The submission appears to us to be plainly in the teeth of the language of Section 14(2) of the Act. If Parliament intended that facts coming to light after the revocation or expiry of the earlier order of detention could form the basis of a later order, nothing could have been easier for Parliament than to say so. Parliament, being conscious that the Maintenance of Internal Security Act is an encroachment on basis liberties, has imposed some restrictions and provided some safeguards against unbridled exercise by the executive of the power under the Act. One safeguard is that the order of detention will cease to be in force if the Government does not approve the same within 12 days. Another safeguard is that the detenu must be furnished with the grounds of detention within five days of the date of detention. Another important safeguard is the provision for placing the order of detention before the Advisory Board within thirty days from the date of the detention. An important restriction on the power to detain is the provision prescribing the maximum period of detention as one year from the date of detention. Yet another restriction is the provision in Section 14(2) that on the expiry or revocation of an order of detention, a fresh order can only be made where fresh facts have arisen after the date of expiry or revocation. If S. 14(2) is viewed in the scheme of these safeguards and restrictions, it is impossible to accept the interpretation placed upon the provision by the learned Public Prosecutor. If the argument of the learned Public Prosecutor is accepted, it may throw the door open for circumvention of the provision prescribing the maximum period of detention as one year. On the other hand the view taken by us, and that we think is the intention of Parliament, will compel detaining authorities to make orders of detention with care and caution and without the smug satisfaction that if an order of detention expires or is revoked another order may always be made. The learned Public Prosecutor queried : "What if the first order of detention was based on unsubstantial grounds and more based on unsubstantial grounds and more substantial grounds come to light after the expiry or revocation of the first order of detention ?" The answer is simple. The detaining authority ought never to make an order of detention on unsubstantial grounds. But if he does that he cannot complaint that he cannot make a second order of detention on facts which had arisen prior to the expiry of the first order of detention. That is why we said that our interpretation of the design of Parliament is conducive to the exercise of greater care and caution by the detaining authorities.

8. In Kshetra Gogoi v. State of Assam, AIR 1970 SC 1664 = (1970 Cri LJ 1104) it was argued before the Supreme Court that the fact that detenu while in preventive custody pursuant to an earlier order of detention had been maintaining links with underground rebels was a fresh fact which could form the basis of a second order of detention. The Supreme Court negatived the contention because such fact could not be said to have arisen after the expiry of the previous order of detention. Though the fact arose after the making of the earlier order of detention it was not a fact which arose after the expiry of the previous order of detention. They observed :

".................... even if we accept that such links were maintained, this additional ground mentioned does not satisfy the requirements of Section 13(2) of the Act (corresponding to Section 14(2) of the present Act) because the only allegation is that the links were maintained during the period of preventive detention. Under Section 13(2) what is required is that fresh facts should have arisen after the expiry of the previous detention. Facts arising during the period of detention are, therefore, not relevant when applying the provisions of Section 13(2)."

It is thus seen that the Supreme Court was of the view that facts which arose after the making of the order of detention but before its expiry could not form the basis of a second order of detention notwithstanding the fact that such facts could never have formed the basis of the earlier order of detention.

9. In Masood Alam v. Union of India, AIR 1973 SC 897 = (1973 Cri LJ 627) the Supreme Court emphasised the restrictive and watch-dog aspect of Section 14 of the Act.

They said

"Section 14 speaks of revocation or expiry of a detention order. The principle underlying this section has its roots in the vital importance attached to the fundamental right of personal liberty guaranteed by our Constitution. The Act fixes the maximum period of detention to be 12 months from the date of the detention with the proviso that the appropriate Government can revoke or modify the detention order at any earlier times Section 13. It is to effectuate this restriction on the maximum period and to ensure that it is not rendered nugatory or ineffective by resorting to the camouflage of making a fresh order operative soon after the expiry of the period of detention, as also to minimise resort to detention orders that Section 14 restricts the detention of a person on given set of facts to the original order and does not permit a fresh order to be made on the same grounds which were in existence when the original order was made."

The Supreme Court went on the say :

"The power of prevention detention being an extraordinary power intended to be exercised only in extraordinary emergent circumstances the legislative scheme of Sections 13 and 14 of the Act suggests that the detaining authority is expected to know and to take into account all the existing grounds and make one order of detention which must not go beyond the maximum period fixed."

10. In Har Jas Dev Singh v. State of Punjab, AIR 1973 SC 2469 = (1973 Cri LJ 1602) the passage first extracted by us in Masood Alam's case 1973 Cri LJ 627 (SC) (Supra) was quoted with approval and it was held that the circumstance that the detenu had been released on bail in a criminal case subsequent to the expiry of the order of detention was not a fresh fact on which a second order of detention could be based.

11. In Chotka Hambram v. State of West Bengal, AIR 1974 SC 432 = (1974 Cri LJ 449) the Supreme Court quoted with approval the passage second extracted by us from Masood Alam's case 1973 Cri LJ 627 (SC) (supra). We are, therefore, of the view that the incidents which occurred prior to the expiry of the earlier order of detention cannot furnish grounds for making a second order of detention.

12. There is vet another reason why the second order of detention cannot be sustained in the present case. Even assuming, for the sake of argument, that the first ground of detention which concerns pethidine is a fresh fact it cannot for a moment be contended that the second ground relating to the storage of spiritus aetheris nitrosal is a fresh fact. The learned Public Prosecutor conceded that it was the basis of the earlier order of detention. Its inclusion in the grounds of detention forming the basis of second order of detention must, in our opinion, vitiate the second order of detention. The learned Public Prosecutor argued that it was not necessary that the second order of detention should be based on entirely fresh but that it was enough if there was even a single fresh fact along with several old facts. We do not agree with this submission. Section 14(2) prescribes that the satisfaction of the detaining authority in making a second order of detention must be based on the fresh facts. If it is based on fresh as well as old facts it must be held to offend Section 14(2) of the Act. The learned Public Prosecutor relied on the decision of the Supreme Court in Kshetra Gogoi's case (supra) and argued that past facts PLUS fresh facts could form the basis of a second order of detention. The question was not considered by the Supreme Court in that case. The only question which was considered was whether a fact which arose during the detention of the detenu pursuant to an earlier order of detention could be said to constitute a fresh fact. The decision does not help us in answering the question before us. In view of the clear language of Section 14(2) that the satisfaction must be based on fresh facts, we do not agree with the submission of the learned Public Prosecutor.

13. In the view that we have taken on the questions arising on the interpretation of Section 14(2) of the Act, it is unnecessary for us to consider in detail the submissions made by the learned counsel for the petitioner on the questions of vagueness and non-existence of the grounds of detention. We would, however, like to make a brief reference to some aspects of the case with a view to emphasise what Courts have always said about grounds of detention that it is essential that grounds of detention should be precise and should contain no element of vagueness and inexactitude. In the present case the grounds of detention mention that the petitioner manufactured 4,62,153 ampoules of pethidine between 1-4-1971 and 21-8-1974 and that the records of the Royal Medical Hall showed that during that period he sold 3,93,675 ampoules. While he should be in possession of 67,478 ampoules of pethidine physical verification of the stocks on hand showed that he had in his possession 24,000 ampoules only, 43,078 ampoules were thus unaccounted for. The statement in the grounds of detention is categoric that physical verification showed that the petitioner was in possession of 24,000 ampoules only. In the affidavit filed in support of the writ petition it was asserted that a quantity of 10,000 ampoules 'in bond' were not taken into account by the authorities. In the counter-affidavit filed by the Asst. Drug Controller it was stated "I submit that the statement of the detenu that 10,000 ampoules are in the bond area is denied. When the premises of the factory was checked in the presence of representatives of the detenu. I found 24,000 ampoules outside the bond area and 900 ampoules were taken for analysis ...... Thus I submit that there is no balance in the bond area and the detenu is maintaining false accounts." In view of the assertion and counter-assertion I directed the Commissioner of Police to depute a Deputy Commissioner of Police to verify whether there were any ampoules 'in bond'. The Deputy Commissioner of Police who went to the premises of the Royal Laboratories found 200 boxes containing pethidine ampoules 'in bond'. On opening the boxes it was found that they contained 9995 ampoules of which 4996 related to batch No. 1290 manufactured in March 1973 and 4999 related to batch No. 1364 manufactured in August 1973. It is thus clear that the statement in the counter-affidavit that there were no ampoules 'in bond' is not correct. It is also clear that these ampoules were not taken into account in determining the number of ampoules which were not accounted for by the petitioner. It was sought to be argued by the learned public prosecutor that these ampoules related to earlier batches. The very fact that ampoules relating to latter batches had been sold while those relating to earlier batches were kept 'in bond' was suspicious circumstance and that was the reason why the ampoules held 'in bond' were not taken into account by the authorities. But that was not the basis on which the order of detention was made or on which the counter proceeded in this case. Again, in the very books seized by authorities our attention was drawn by the learned counsel to entries relating to one ml. ampoules which had not been taken into account by the authorities. The learned public prosecutor urged that even if they were taken into account there would still be left a quantity unaccounted for. That is, of course, besides the point. The question is, whether the allegation as made in the order of detention exists as a fact. While there may be discrepancies and suspicious features in the accounts of the petitioner the discrepancies and suspicious features are not the same or of the same magnitude as mentioned in the grounds. We once again wish to emphasise that every allegation in the grounds of detention must be exact.

14. Before parting with the case there is one thing more that we wish to say. The learned Public Prosecutor repeatedly used the phraseology of some learned Judges who described the jurisdiction of preventive detention as a 'jurisdiction of preventive detention as a jurisdiction of suspicion', an unhappy, though attractive, phrase. We must however say that we have no doubt that the learned Judges who used the expression meant suspicion, in the sense of apprehension, about future activity and never meant suspicion in relation to past incidents. They never meant that an order of detention may be made on a suspicion of involvement in past incidents. Basic facts must always constitute the foundation and they must exist. Inferences of fact from existing facts are, of course, permissible. But such permissible inferences of fact should never be confused with bare suspicion.

15. We spent a considerable time on the case, and we have written so much not because we found any difficulty in resolving the issue but because of the uneasy feeling expressed by us to the outset. We part with the case with the found hope that our fears will prove unfounded. Advocate's fee Rs. 350/-.

Petition allowed.

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