TaxTMI 
TaxTMI 
1984 (3) TMI 443
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....is country there have been various preventive detention laws enacted by the Parliament from time to time. Persons who are security risks to the State are to be detained under the provisions of some of such enactments. Under some enactments persons who are found to be antisocial and are likely to sabotage the economic and social order in this country are to be held under preventive detention. It is the great risk involved in allowing such persons to move about freely and with the same amount of liberty enjoyed by the ordinary citizens of the land that justifies preventive detention in their cases. It is the apprehension of very grave consequences if they are allowed to be free and on their own that justifies invocation of provisions relating to preventive detention against them. Otherwise detention can only be punitive. A person subjected to preventive detention gets the benefit of many safeguards and more than anything else that of a regular trial according to recognized canons of criminal jurisprudence and also the benefit of adjudication by a traditional court with the in-built safeguard of hierarchy of appeals and revisions. Though every citizen is entitled to enjoy personal lib....
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....rning movements or acts of any person causing or calculated to cause alarm, danger or harm to person or property or in cases where there are reasonable grounds for believing that such person is engaged or is. about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chap. XII, XVI or XVII of the IPC or in the abetment of any such offence. There is a further requirement in order to enable such officer to invoke Section 56 and that is. that in the opinion of such officer witnesses are I. not willing to come forward to give ! evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property. We are referring to only that part of Section 56 which is relevant for the purpose of this case. The satisfaction to be reached by the officer concerned is that 'such person concerned is informed in writing of the general nature of the material allegations against him. This is to give him a reasonable opportunity of tendering an explanation regarding the material allegations. Such person is free to examine any witness produced by him except in cases where the officer feels that s....
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....eal to the Government is of any consequence and that these are illusory. There is no minimum protection to the petitioners by way of an opportunity to explain what may be against them. The protection by way of a procedure to secure a reasonable opportunity to defend may vary from case to case, from the safeguard of a trial in a regular court to that of merely giving an opportunity to explain the case against a person. This is a wide range and the appropriateness of adopting the procedure in any given case must depend upon the class to which the case belongs. Even so it is said that no civilized approach will countenance a situation where a person is deprived of his liberty without the minimum procedure of telling him what is against him and giving him an opportunity to answer that, even though he may not be given an opportunity to substantiate his answer by evidence and there are not further safeguards such as appeal and revision. The complaint of the petitioner is that the provisions with regard to furnishing the general nature of the material allegations serve absolutely no purpose as such communication is not capable of any effective answer and in that context the examination of....
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....that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chap. XII, XVI or XVII of the IPC or in the abetment of any such offence, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regard the safety of their person or property, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts, or any part thereof, contiguous thereto by such route and within such time as the said officer may prescribe and not to enter or return to the said area or the area and such contiguous districts, or part t....
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....ore an order under Section 55, 56 or 57 is passed against any person the officer acting under any of the said sections or any officer above the rank of an Inspector authorized by that officer shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. If such person makes an application for the examination of any witness produced by him, the authority or officer concerned shall grant such application; and examine such witness, unless for reasons to be recorded in writing, the authority or officer is of opinion that such application is made for the purpose of vexation or delay. Any written statement put in by such person shall be filed with the record of the case. Such person shall be entitled to appear before the officer proceeding under this section by an advocate or attorney for the purpose of tendering his explanation and examining the witnesses produced by him. (2) The authority or officer proceeding under Sub-section (1) may, for the purpose of securing the attendance of any person against whom any order is proposed to be made under Section 55, 56 or ....
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....rson or property or of being engaged in or about to be engaged in the commission of offence action is being taken. There is no question of any public order or public safety or security of the State in the concept of action under Section 56. This is quite important. The procedure under Section 59 applies both to action taken under Section 56 and also action taken under Section 57, and the ultimate consequence in both the cases are also similar. 6. Gurbachan Singh's case 1952CriLJ1147 was perhaps one of the earliest cases where a challenge similar to that made in this case was urged before the Supreme Court. There the sections challenged were Section 27(1)(a) of the City of Bombay Police Act corresponding to Section 56 and Section 27(4) of that Act corresponding to Section 59 of the Bombay Police Act, 1951. These sections were challenged as infringing the freedom guaranteed to the citizen under Article 19(1)(d) and (e) as well as Article 14 of the Constitution of India. The Supreme Court expressed the view that it was difficult to say that the provision in Section 27(1)(a) was unreasonable. It is to be noticed that the only point urged in that case by way of challenge to that ....
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....o extern a person for so long a period as two years. In the dissenting judgment in the case where Section 57 of the Act was under attack, Hari Khemu Gawali v. Deputy Commr. of Police Bombay 1956CriLJ1104 , the learned Judge expressed the view that the provision prima facie infringes the fundamental right of a citizen under Article 19(1)(d) and (e) of the Constitution. The learned Judge, in the course of the judgment, observed: The fact that our Constitution which declares fundamental rights also permits a law of preventive detention under very limited safeguards and that such laws have taken the pattern of the exercise of power by the Government or by its officers for Specified purposes on the basis of their subjective satisfaction, has made us prone to reconcile ourselves to (other kinds of restrictive laws affecting personal liberty though based on the subjective satisfaction of executive officers, if only they provide for certain minimum safeguards such as supply of grounds, right of representation, and the scope for review by a superior authority or by an advisory body. In the same dissenting judgment Justice Jagannadhadas at the end of para 14 of the judgment ob....
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.... can only give an explanation, which can be of a general nature. It may be open to him to take a defence, of the action being taken, due to mala fides, malice, or mistaken identity, or he may be able to tender proof of his general good conduct, or alibi, during the period covered by the notice and the like. The allegations made in the notices, issued under Section 59, as against the respective respondents, in our opinion, contain the general nature of the material allegations made against each of them in respect of which the respondents had been given a reasonable opportunity of tendering an explanation, regarding them. Therefore it follows that the view of the Gujarat High Court that the notices, under Section 59, and the orders of externment, passed under Section 56, are invalid, cannot be sustained. We may refer to one more decision in this context, that is in Pandharinath v. State of Maharashtra 1973CriLJ612 . The provision in Section 56 was examined in that case and the Court observed in para 9: A full and complete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of an externment proceeding. If the show-cause not....
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....uch an opportunity, according to the petitioner, is not made available to those persons against whom Sections 56 and 59 of the Bombay Police Act are invoked. That again is not a question which is open to us to examine. 13. Now we come to the further contention by the counsel in this case that a law, not found to infringe Article 19 or Article 14 of the Constitution, may still be bad if it operates to deprive a person of his liberty and the procedure for such deprivation is not under a law which is fair, just and reasonable. Evidently the question was not considered in the earlier cases because the content of Article 21 was understood differently until Maneka Gandhi's case [1978]2SCR621 revolutionized that aspect of the law. The contention of the petitioner in this regard may be summarised thus : Sections 56 and 59 of the Act must pass also the test of fairness and reasonableness, such fairness is to be determined from the perspective of the person whose liberty is affected, tested on this approach any law which gives no opportunity whatsoever to a person before depriving him of his liberty would certainly be unfair, the provision to inform the person concerned about the gene....
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....ted or refused by taking loss, ordeal of fire or by other strange or mystical methods. Nor is it tenable if life is taken by a crude or summary process of enquiry. What is fundamental is life and liberty. What is procedural is the manner of its exercise. This quality of fairness in the process is emphasized by the strong word 'established' which means 'settled firmly' not wantonly or whimsically. If it is rooted in the legal consciousness of the community it becomes 'established' procedure. And 'Law' leaves little doubt that it is normae regarded as just since law is the means and justice is the end. The learned Judge followed it up by the observations: 119. Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is large the history of procedural safeguards and right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend, their rights; observance of fundamental right is not regarded as good politics and their transgression as bad politics. I sometimes pensively reflect that people's militant awareness rights and dut....
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....ead for interpretative purposes, Article 21 clearly brings out the implication, that the Founding Fathers recognized the right of the State to deprive a person of his life or personal liberty or accordance with fair, just and reasonable procedure established by valid law. There are several other indications, also, in the Constitution which show that the Constitution-makers were fully cognizant of the existence of death penalty for murder and certain other offences in the IPC. Entries 1 and 2 in List III, Concurrent List, of the Seventh Schedule, specifically refer to the IPC and the Cr.P.C. as in force at the Commencement of the Constitution, Article 72(1)(c) specifically invests the President with power to suspend, remit or commute the sentence of any person convicted of any offence, and also "in all cases where the sentence is a sentence of death". Likewise, under Article 161, the Governor of a State has been given power to suspend, remit or commute, inter alia, the sentence of death of any person convicted of murder or other capital offence relating to a matter to which the executive power of the State extends. Article 134, in terns, gives a right of appeal to the Supreme Court ....
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.... to be read strictly. Any police apprehension is not enough. Some ground or other is not adequate. There must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence. Likewise, there must be sufficient reason to believe that the person proceeded against, is so desperate and dangerous that his mere presence in Delhi or any part thereof is hazardous to the community and its safety. We are clear that the easy possibility of abuse of this power to the detriment of the fundamental freedoms of the citizen persuades us to insist that a stringent test must be applied.' We are further clear that natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of Articles 14, 19 and 21 of the Constitution as expounded by this Court in Maneka Gandhi [1978]2SCR621 . The learned Judges also cautioned: By this judgment what we mean is not to tell the Police to fold up their hands and remain inactive when anti-social elements suddenly grow in wealth but to be activist and intelligent enough to track down those who hold the nation....
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....roach should not be made to the validity of Sections 56 and 59. Mr. Takwani appearing for the petitioner in one of the cases delinked referred to the decision in A.K. Roy v. Union of India 1982CriLJ340 wherein there was an attack to the provisions of National Security Act. According to the learned Counsel that Act was upheld only because that there were safeguards provided in the Act itself in regard to procedure. The learned Counsel asked the question whether the class of people who are to receive treatment under Section 56 are worse than those class of people who are treated under the National Security Act and if so whether they are not entitled at least to those safeguards? 17. May be that at one time it was expected that Section 56 of the Act would be used with considerable circumspection and that approach might have influenced in upholding the validity of the Act despite the fact that unlike in statutes relating to preventive detention there is no guarantee of minimum safeguards of procedure in the impugned sections, safeguards which will assure an effective opportunity to a person against whom, for reasons best known to the Police, action is initiated. Our attention has be....
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....t because they thought that "the relevant provisions were not brought to the notice of the Court". In this view, we, having stated the case of the petitioners as presented to us, as they desired us to do, do not propose to go into the question since we hold that the challenge to vires of Sections 56 and 59 of the Bombay Police Act would not be permissible in this Court in view of the matter having been considered by the Supreme Court on earlier occasions, as a result of which consideration the sections have been held to be valid. A new ground of challenge even on the basis of approach made in later decisions of the Supreme Court may not be available before this Court to the petitioner in this case. Hence we find against the petitioner on the question of validity of the impugned sections. 19. Now we will go into the merits. The main contentions raised on the merits will have to be answered against the petitioner on the basis of the decisions adverted to. As we have already indicated the plea that the notice issued was vague and the general allegations did not give any notice of specific events or incidents is a matter which we do not propose to deal with in view of what we hav....