Govindammal vs The Collector and Additional District Magistrate, Coimbatore and another

Venkataraman, J.—This writ petition has been filed for the issue of a Writ of habeas corpus in respect of one K.G. Ramaswamy who is under detention in the Coimbatore Central Jail, under the provisions of the Maintenance of Internal Security Act, 1971 (Central Act XXVI of 1971). The petition has been filed by his wife, Govindammal. K.G. Ramaswamy was arrested on 30th July 1973 by the police in pursuance of an order issued by the Collector on 30th July 1973 under the provisions of the said Act. He was lodged in the Central Jail on 31st July 1973 after midnight. He was served with an English copy of the grounds of detention on 3rd August 1973 and with a Tamil copy on 10th August 1973. An Advocate was permitted to see him. He made a representation on 23rd August 1973. The Government passed the order of detention on 7th September 1973, declining to interfere. The papers were placed before the Advisory Board and they saw no reason to interfere. The detention order was finally confirmed on 9th October 1973. This writ petition was filed on 31st October 1973.

The first point taken by the Petitioner is that the detenue does not know English and that be got to know the grounds of detention only on 10th August 1973 when the grounds of detention were supplied to him in Tamil. The Act (Section 8) requires that except in exceptional circumstances the authority should communicate the grounds to the detenue within five days. The reply of the Collector, who is the first Respondent, to this point is that on 3rd August 1973, when the grounds of detention were served on the detenue in English, the Superintendent of the Central Jail, Thiru. Vasudevcn, translated the grounds to the datenue in Tamil. If that was a fact, that would amount to communication of the grounds of detention to the detenue on 3rd August 1973 itself. The first question therefore for our decision is whether, in fact, the grounds were translated to the detenue in Tamil on 3rd August 1973 itself.

In support of this stand of the Collector, Shri Vasudevan, the Superintendent, Central Jail has filed a supporting affidavit to the following effect: "I further submit that at the time of the service of the grounds of detention in English I translated the grounds of detention into Tamil and explained the contents to the detenue before the service and in token of it I have also certified on the copy of the grounds served on the detenue that the grounds of detention were translated into tamil, read over and explained to the detenue before service on 3rd August 1973." At the outset, we would like to clarify what this submission means. At first blush, it might appear from this submission that even on the English copy of the grounds served on the detenue, the Superintendent, Central Jail, certified that it had been translated to him in Tamil. This is, in fact, how we understood the above submission and on that basis we asked Mr. P.S. Srisailam, learned Counsel for the Petitioner to produce the copy of the grounds which was served on the detenue on 3rd August 1973. He produced the copy and it contained the seal of the Collector so that its authenticity does not admit of any doubt, but the copy did not contain any certificate of the Superintendent, Central Jail that he had translated the contents in Tamil. When we pointed out this to the learned Public Prosecutor, the learned Public Prosecutor explained that the sentence in the affidavit of the Superintendent, does not mean that he certified to the fact of translation in the copy served on the detenue himself but he made such a cetificate on his own copy. His own copy contains an endorsement in tamil of the Detenue " --which means that the detenue had received the copy of that communication. Then, below that there is the following endorsement of the Superintendent, Central Jail:

Certified that the grounds of detention was translated into tamil, read over and explained to the detenue before service.

The learned Public Prosecutor submitted that it was only to this certificate that the sentence in the supporting affidavit of the Superintendent, Central Jail, related But, thereupon, we pointed out to the learned Public Prosecutor that that would not be conclusive proof of the fact of the Superintendent having translated the contents in Tamil, indeed, if he had translated and saw the necessity of making a certificate to that effect immediately below the signed endorsement of the detenue, prudance should have dictated to him that he should get a further endorsement from the detenue himself that the contents had been translated to him. The Superintendent not having obtained such an endorsement but only a limited endorsement of the detenue for having received the copy, it could be argued that the endorsement that ''he had translated it'' could have been written out much later. When we pointed out the above to the learned Public Prosecutor, he brought to our notice page No, 1 of the Collector''s file which reads as follows.

The grounds of detention in English was served on the detenue on 3rd August 1973. As (sic), the Superintendent, Central Jail, Coimbatore has translated, read over and explained the grounds of detention to the detenue in Tamil (Vide letter C. No. R. 1/73 dated 3rd August 1973 of the Superintendent, Central Jail, Coimbatore). A Tamil Copy of the grounds should be served on the detenue as early as possible (see paragraph 5 of the Government memorandum No. 5/3341--3/71 dated 1st August, 1971).

There are the collector''s initials dated 3rd August 1973. This endorsement, if true, would show that even on 3rd August 1943 the Collector was informed by the Superintendent, Central Jail, that he had translated the grounds in Tamil to the detenue. We see no reason whatever to doubt the truth of this endorsement of the Collector. This means that on 3rd August 1973 itself the Superintendent, Central Jail had written to the Collector that he had translated the contents in Tamil. If so, there was nothing surprising in the endorsement of the Superintendent, Central Jail, (already extracted) having come into existence on 3rd August 1973 itself, and in fact it would have certainly come into existence then. Thus, on the facts of this case, we are satisfied that as a matter of fact the contents were translated to the detenue in Tamil on 3rd August 1973 itself within a period of five days and therefore the order cannot be assailed on that particular ground.

We now proceed to the question whether the order can be attacked on other grounds. It may be mentioned here that two grounds of detention are put forth. The first ground relates to an incident on 24th October 1971. The Inspector of Police, C.I D. Pollachi Unit, Thiru M. Vaikundam and his staff were on anti-rice smuggling work in Pollachi Palgbat Road near Gopalapuram village. About 2 a.m. the Inspector saw a car MSS 9722 coming from Pollachi side and proceeding towards Kerala State. On his signal the car was stopped. The driver was driving the car. The detenue''s son-in-law was seated in the front seat. The detenue was seated in the rear side. The car was found loaded with 9 bags of rice. The Inspector arrested them and recovered the rice bags under a mahazar. He registered a case in Crime No. 676 of 1971 and reported the matter to the Sub Divisional Magistrate Pollachi. A chargesheet was filed on 8th November 1971 and the detenue and the others were fined then Rs. 100 by the Sub Divisional Magistrate, Pollachi on 18th December 1971. The seized rice bags were ordered to be confiscated to the Government. The second ground has to be narrated in full.

On 3rd July 1973 Thiru D.S. Ragupathy, Inspector of Police, Pollachi Town on instructions from his superiors was on vehicle check duty in Pollachi Palghat Road near Thavalam Road junction. At about 3 a.m. he saw lorry MDN: 8553 coming from Pollachi sids and proceeding towards Kerala State. On signal from the Inspector the lorry stopped K.R. Swamy alias Rengaswamy the driver of the lorry and you jumped down from the lorry and commenced to run. The driver was arrested while you escaped. The police party searched the lorry and found it loaded with 100 bags of rice. The rice bags and the vehicle were seized under a mahazar. The Inspector registered a case in Pollachi Town P.S. Cr. No. 345 of 1973 under Clauses 3 and 3(a) Southern States (Regulation of Export of Rice) Order 1963 and reported the matter to the Sub Divisional Magistrate, Pollachi. The investigation of the case by Inspector Thiru N.S. Vaikundam described that the lorry MDN 8553 belonged to you and the rice was purchased by you from a dealer at Pollachi and you were responsible for the illicit transport of all these rice bags seized on 3rd July 1973 by Inspector Thiru Ragupathy near Thavalam Road Junction.

With regard to the first ground it is explained by the detenue himself that because the proceedings were dragged on and his son-in-law''s business suffered on that account, he thought it convenient to plead guilty, though in fact the incident was false. It is also contended that it is remote. With regard to the second ground, in the affidavit of Govindam-mal, the Petitioner, it is stated that her husband was not in the lorry. But it is admitted the lorry M.D.N. 8553 belongs to the detenue. It is further alleged that the allegation about the purchase of rice is vague because no particulars are given about it--from whom it was purchased and when it was purchased. It is also pointed out that no charge-sheet had been filed with respect to that incident of 3rd July 1973 till the date of the filing of the writ petition. It is further submitted by Mr. Srisailam that till today no charge-sheet has been filed.

In the counter-affidavit of the Collector d. 13th November, 1973 it is stated that the rice was purchased from a dealer at Pollachi Thiru Shanmughasundaram, who is a detenue in the proceedings of the Collector in C.M.P. No. 13 of 1973. A reply affidavit was filed by the detenue himself on 24th November 1973 and he has denied that he purchased the rice from Thiru Shanmughasundaram and he was alleged that it is an after-thought. It is further seen from the representation d. 28th August 1971 to the Government, the detenue alleged that be made an averment that the driver of the lorry MDN: 8553 had transported the rice bags against to, the clear instructions of the detenue.

So far as the first ground is concerned, the explanation of the detenue was that he pleaded guilty, because it was most convenient for him to do so then. We have to proceed on the footing that the case ended in a conviction and the allegations are true. As far as the contention that it is remote, the argument would hold good only if that was the sole reason for the detention. But, when it is followed up by an incident of 3rd July 1973 the prior incident on 24th October 1971 could certainly be taken into account. The question therefore reduces itself into this, whether the ground based on the incident of 3rd July 1973 could be attacked on any valid ground. We would observe that the allegation that the rice was purchased by the detenue from a dealer at Pollachi was vague and the detenue could not have made any effective representation against that allegation. The learned Public Prosecutor submitted that the averment of the rice having been purchased from Thiru Shanmughasundaram was not an afterthought, because the proceedings taken by the Collector in CMP No. 33 of 1973 against Shanmughasundaram under the provisions of the Act shortly after 3rd August 1973 mentioned the fact that he had stored 141 bags of rice in his godown and that they were transported to Kerala on the night of 3rd July 1973 in lorry MDN 8553 about 3 a.m. along the Pollachi--Paighai Road. He showed the grounds of detention in that case. He further submitted that the writ petition, No. 4678 of 1973, S. Dhandapani v. The Inspector of Police, Food Cell, C.I.D., Pollachi W.P. 4678 of 1973, filed for the release of Shanmughasundaram was dismissed by Kailasam and N.S. Ramaswami, JJ. on 1st November 1973. All this might show that the rice which was transported on 3rd July 1973 in lorry MDN 8353 had been bought from Shanmughasundaram and that the averment is not an after thought. The fact, however, remains that the detenue was not informed of that fact in the grounds of detention which were served on him and explained to him on 3rd August 1973 and 10th August 1973. On that the submission of Thiru P.S. Srisailam is that the fact of the purchase from the dealer was one of the grounds of detention, that that ground was vague, because it did not give other particulars such as the name of the dealer and the date of purchase, and that, according to the decisions of the Supreme Court, if one ground is vague, the entire order must fail. The decisions, pro and con, which he and the learned public Prosecutor have cited on this point are (chronologically) these: The State of Bombay Vs. Atma Ram Sridhar Vaidya, , Tarapada De and Others Vs. The State of West Bengal, , Dr. Ram Krishan Bhardwaj Vs. The State of Delhi and Others, , Shibban Lal Saksena Vs. The State of Utter Pradesh and Others, , where Keshav Talpade v. King Emperor 1943 F.C.R. 88 : 1943 F.C.R. 49 at 70 is referred to wrongly as it should really be; Dwarka Dass Bhatia Vs. The State of Jammu and Kashmir, , Rameshwar Lal Patwari Vs. State of Bihar, , Motilal Jain Vs. State of Bihar and Others, , Pushkar Mukherjee and Others Vs. The State of West Bengal, , Mishrilal Jain v. District Magistrate, Kamrup 1971 2 S.C.W.R. 601 : AIR 1971 S.C. 698, Nagendra Nath Mondal Vs. The State of West Bengal, , B. Sundar Rao and Others Vs. State of Orissa, , Ram Krishna Paul v. State of West Bengal AIR 1972 S.C. (sic), Deb Sadhan Roy Vs. State of West Bengal, , Mintu Bhakta v. State of West Bengal AIR 1972 S.C. 9132, and SK. Hasan Ali Vs. State of West Bengal, .

We do not think it necessary to traverse these decisions in detail. Suffice it to say that it has been held in those decisions that, if one ground of detention is vague, it would vitiate the entire order, if it is material, the reason being that otherwise the court would have to embark upon an enquiry whether, excluding that vague ground, the detaining authority would have passed the order of detention on other grounds, and, in so doing, the Court would be substituting its own objective judicial test for the subjective satisfaction of the detaining authority, prescribed in the Act, and that is not permissible. The present case, however, is distinguishable from those decisions which have held to the above effect, on the following reasoning. The ground of detention, extracted already, consists of three limbs which we may designate by the small letters (a), (b), (c); viz., limb (a) that the lorry MDN 8553 which admittedly belonged to the detenue was used for transporting 100 bags of rice; (b) that the detenue was seated in the lorry and escaped; and (c) that the rice bad been purchased from a dealer at Pollachi. Limb (a) has not in any way been shaken, and, in fact, in the representation d. 23rd August 1973 it has been admitted that the 106 bags were transported in the lorry MDN 8553. It is indeed a stubborn fact, as described by my learned brother (K.N. Mudaliyar, J.), quoting from Lord Templewood. As for limb (b), that the detenue was in the lorry, it is denied. It is not proper for us to say whether that allegation is true or not, because the affidavit of the Collector shows that he believed that the detenue was in the vehicle. That alone is material for detention under the provisions of the Maintenance of Internal Security Act, 1971, though that would not be enough in the criminal case which might be filed against the detenue in connection with the transport. In a criminal case, the fact of his complicity has to be proved to the satisfaction of the court, but in an order of detention under the Maintenance of Internal Security Act it is the subjective satisfaction of the Collector alone which matters. This is clear from the decisions cited above. The position therefore reduces itself to this. The third limb of the ground of detention is vague. The question is whether, on account of this, the entire order is liable to be quashed. It seems to us that the answer must be in the negative. The reason is that it is only a subordinate limb of the main ground. The essential limbs are that the lorry of the detenue was used for transporting the 100 bags of rice and that the detenue was also in the lorry. Sufficient particulars have been given of those limbs. The third limb was designed merely to show that he bad purchased the bags from a dealer and was really superfluous. None of the cases cited by Thiru Srisailam resembles this case, and he has not cited any case, where, on facts similar to the present facts, it was held that just because some of the particulars in the grounds were vague the entire ground mast fail. On the other band, one of the cases cited by the learned public prosecutor is more similar to the present case. It is Deb Sadhan Roy Vs. State of West Bengal, . There one of the grounds was thus stated:

That on 11th January 1971 at about 01.45 hours and your associates broke in Bishnupur town and cause mischief to it by fire by destroying its official records by burning.

The contention with reference to this was disposed of by their Lordships of the Supreme Court thus:

It was contended that the associates of the Petitioner have net been specified and therefore it will be difficult for the Petitioner to make effective representation in respect thereof. We think there is no validity in this submission. Not only the dates and the time in each the grounds have been mentioned, but the acts of the Petitioner have been specified in detail to enable him to make an effective representation. In our view it is not necessary for the Petitioner to make an effective representation to specify all his associates because they may not have been known. The Petitioner is being detained in respect of his acts and, if, in association with others he was acted in a manner prejudicial to the maintenance of the public order, his detention cannot be said to be illegal.

This was followed in SK. Hasan Ali Vs. State of West Bengal, .

The important point to notice is that the crux of the ground was that the lorry of the detenue was used for the illicit transport and that he was seated in it, and, incidentally it was added that he had bought the bags from a dealer. We would make it clear that our view is not based on any technical reason that all the three limbs together form one ground; our view is based on the substance of the matter and not on any technicality. We may also point out that even in respect of the rule that a vague ground vitiates the whole order, there is the following rider which has been added in Dwarka Dass Bhatia Vs. The State of Jammu and Kashmir, .

In applying these principles, however, the court must be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction be the appropriate authority. It is not merely of cause some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The Court, while anxious to safeguard the persons; liberty of the individual, will not lightly interfere with such orders.

Applying this criterion in the present case, we would observe that limb (c) is of a comparatively unessential nature, and, even if it is excluded, it would not have reasonably effected the subjective satisfaction of the appropriate authority, because the other limbs were there, and they formed the care of the allegations against the detenue.

For the reasons stated above, it seems to us that the order of detention cannot be interfered with. The writ petition is accordingly dismissed.