JAGADISH PRASAD PURANCHAND Vs. COMMISSIONER OF POLICE PUNE

JUDGEMENT

(1.) As both these petitions involve common questions of law and fact, they were heard together and are being disposed of by this common judgment. The Commissioner of police, Pune issued the orders of detention under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drugs-Offenders Ordinance, 1981, hereinafter referred to as the Ordinance, detaining the detenus Suganchand Puranchand Gupta and Anand Prasad Bishweshwar Dayal Gupta. According to the respondents it was necessary to do so with a view to preventing them from acting in a manner prejudicial to the maintenance of public order. These orders of detention are challenged in these writ petitions on various grounds.

(2.) Shri Paranjape, learned Counsel appearing for the petitioners, contended before us that Section 3 of the Ordinance if read with the definition of phrase "acting in any manner prejudicial to the maintenance of public order" makes no sense whatsoever and, therefore, the said provision does not confer any power upon the detaining authority to issue the order of detention under Section 3 of the Ordinance. It is further contended by Shri Paranjape that the whole legislation has become inffective or has misfired and, therefore, the orders of detention issued by the detaining authority are ab initio void being without jurisdiction. Shri Paranjape also contended that from the barereading of the orders of the detention it is quite clear that the detaining authority has not applied its mind to any of the relevant facts or circumstances. According to the learned Counsel the said orders disclose complete non-application of mind. The orders do not disclose under what particular clause or category the cases of the detenus fall and out of the numerous alternatives available under which particular clause action has been taken by the detaining authority. The grounds disclosed in the grounds of detention are not only vague but also vitiated by non-application of mind. According to Shri Paranjape the orders of detention are a mere mechanical reproduction of S. 3. They do not disclose as to which of the activities is prejudicial. They also do not disclose as to which category the detenus belong and which of the activities of the detenus is treated as prejudicial to the maintenance of public order. Thus according to the learned Counsel the orders of detention clearly denote confusion in the mind of the detaining authority and do not make any sense. Shri Paranjape further contended that assuming that the activities of the detenus fall under clause 2 of the definition which deals with bootleggers, but in that case also the orders as well as the grounds of detention are hopelessly vague because it does not disclose as to which of the provisions of the Bombay Prohibition Act have been contravened, nor they show as to which rules under the said Act are infringed. The grounds do not disclose any Head or Chapter or even section. Further, though in the grounds of detention an allegation is made that the detenus sold country liquor mixed and adulterated with poisonous substance to the persons without valid permits, there is nothing in the grounds of detention to indicate that the detenus ever sold this material with knowledge or necessary intention as required by the provision of the Bombay Prohibition Act. None of the witnesses whose statements are recorded and copies of which are supplied to the detenus has stated in his deposition that he had no valid permit, when he purchased the stuff. Thus, according to Shri Paranjape the orders of detention are vitiated by non-application of mind. He also contended that joint representation was submitted by the detenus on 20-7-1981, through the Superintendent of prison and the said representation was forwarded to the Home Department on 21-7-1981 and till today the detenus have not learnt anything about the said representation. Thus, the continuous detention of the detenus is also void under Article 22(5) of the Constitution of India for non-consideration of the representation made by the detenus. He also argued that the action is being taken pending the prosecution instituted against the detenus for a serious charge of murder and other offences under Sections 302 and 323 read with Section 34 of the Indian Penal Code and Section 67 of the Bombay Prohibition Act and as the said prosecution is still pending the preventive detention of the detenus has an effect of forcing them to disclose their defence at this stage and, therefore, according to Shri Paranjape on this count also the orders of detention are void. He has also challenged the vires of the provisions of the Ordinance on the ground that in substance preventive detention contemplated by the Ordinance is for a specific offence under the Bombay Prohibition Act and other laws in the field and, therefore, punitive in nature. In this view of the matter, according to the learned Counsel Section 3 of the Ordinance is also violative of the fundamental right of the detenu guaranteed under Arts. 14, 21 and 22 of the Constn.

(3.) On the other hand it is contended by Shri Kotwal, learned public prosecutor that the orders of detention read with the grounds of detention give all the particulars and the reasons for the detention of the detenus. Under the Ordinance there are no separate heads or sub-heads. The order of detention is contemplated only if the detaining authority is satisfied that it is necessary to detain a detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. This being the position it cannot be said that only because categories, clauses or sections of the various enactments are not disclosed there is non-application of mind. According to the learned public prosecutor the orders of detention read with the grounds of detention make it very clear as to on what grounds the order of detention has been made by the detaining authority. He further contended that the alleged representation was addressed by the detenus to the Advisory Board and not to the detaining authority and neither the Government nor the detaining authority has ever received such a representation. Therefore, there was no obligation on the part of the Government to consider the representations which were never received nor meant for it. According to the learned Public Prosecutor pendency of a prosecution is no bar for issuing an order of detention. The law laid down by the Supreme Court in Biram Chand v. State of U.P., AIR 1974 SC 1161 : (1974 Cri LJ 817) is no more good law in view of the subsequent decision of the Supreme Court in Haradhan Shah v. State of West Bengal, AIR 1974 SC 2154 : (1974 Cri LJ 1479). According to Shri Kotwal, the detention of the detenus is preventive and has been ordered with a view to preventing them from acting in any manner prejudicial to the maintenance of public order. Action has been taken under the present. Ordinance because the detenus are bootleggers and under Section 17 of the Ordinance it is laid down that in case of bootleggers action should be taken under the Ordinance only. It is then contended by Shri Kotwal that the question about legality and the validity of the Ordinance has already been considered by this Court in Criminal Appln. No. 1254 of 1981, with Criminal Application No. 1278 of 1981 : Shivaji Bapu v. Miss Sharwari Gokhale, decided on 9th September 1981 : (Reported in 1982 Cri LJ 582). If the various provisions of the Ordinance are read harmoniously and together, it is quite clear that power is conferred upon the detaining authority to detain a person with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. It cannot be said that the definition clause is either vague or if the said clause is read with the substantive provisions of S. 3 of the Ordinance, it does not confer any power on the detaining authority to issue order. So far as the challenge based on Arts. 14, 21 and 22 of the Constitution of India is concerned, Shri Kotwal has again placed reliance upon the Division Bench decision of this Court wherein the legality and validity of the Ordinance has already been upheld. He has also placed reliance upon the decision of the Supreme Court in Hardhan Saha v. State of West Bengal, AIR 1974 SC 2154, wherein the Supreme Court has upheld the validity of MISA. It is then contended by Shri Kotwal that from the material placed on record including discovery of the goods, panchanamas and the statements of witnesses, it is quite clear that the detenus were also responsible for adulteration of the country liquor sold to them and the persons to whom liquor was sold were persons without valid permit. The learned public prosecutor then contended that enormity of activities itself clearly indicated expertise and the potentiality and, therefore even this incident in itself was enough for arriving at a satisfaction contemplated by S. 3 of the Ordinance. In support of this contention Shri Kotwal has placed reliance upon the Division Bench decision of this Court in Shahul Hamid Ismail S. Patel v. R. D. Pradhan, (1978) 80 Bom LR 440 : (1979 Cri LJ 719).