Thiruvadinatha Pillai v. District Magistrate — 1950 DIGILAW 131 (KER)

Judgment :- 1. These petitions are filed on behalf of Sri. S. Thiruvadinatha Pillai and his younger brother Sri. S. Kolappa Pillai respectively who are described as partners carrying on business at Trivandrum as hardware merchants under the name and style of S.T.C. Thiruvadinatha Pillai and Brothers. The prayer in each petition is for the issue of a writ of habeas corpus directing the second respondent who is the Superintendent of the Central Prison, Trivandrum, to set him at liberty. The first respondent is the District Magistrate of Trivandrum. Both the petitioners are under detention under the Preventive Detention Act, No. IV of 1950. The order directing such detention is alleged to have been passed under the Act by the first respondent, the District Magistrate of Trivandrum. 2. Various grounds are alleged in support of the petitions but in the view we are taking of one of these grounds it is not necessary to deal in detail with the other grounds. 3. The contention that appears to us to be well founded is that the detention cannot be supported since a copy of the order made by the District Magistrate directing the detention was not given to the petitioners in spite of their request for the same. To appreciate the argument addressed on behalf of the petitioners by their learned counsel in respect of this question, it is necessary to set forth briefly the relevant provisions of the Preventive Detention Act and the steps taken in the present case for detaining the petitioners. Provision is made in S.3 of the Act entitling the Central Government or the Government of a State to make an order directing that a person who comes within the category of those described in the section shall be detained. One of the grounds for such detention is that the party concerned should be prevented from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. That is the clause under which the petitioners have been ordered to be detained. The power to direct detention for this reason is conferred by the Act also on District Magistrates, Sub Divisional Magistrates and in Presidency towns on the Commissioners of police. The District Magistrate of Trivandrum has in the present case acted in the exercise of the power conferred upon him by this provision. The power to direct detention for this reason is conferred by the Act also on District Magistrates, Sub Divisional Magistrates and in Presidency towns on the Commissioners of police. The District Magistrate of Trivandrum has in the present case acted in the exercise of the power conferred upon him by this provision. According to sub- s. 3 of S.3 when any such order is made by a competent authority subordinate to the Government "he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessity for the order." The next relevant section for purposes of these petitions is S.7 which requires that "when a person is detained in pursuance of a detention order the authority making the order shall, as soon as may be, 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 where such order has been made by an officer subordinate there to the State Government." Sub-s. 2 lays down that nothing in sub-s. (1) shall require the authority to disclose facts which it considers to be against public interests to disclose. 4. It appears from the affidavits filed in this case by the petitioners that on the 6th of November 1950 the Circle Inspector of Police, Trivandrum, accompanied with a posse of constables, visited the shop of the petitioners and inspected the bill books, permits and other papers. They then prepared a mahazar and obtained the signature of Kolappa Pillai who is alleged to have been compelled to do so without being informed about the contents of the Mahazar. The police officers then took away a few bill books and other papers from the premises. Subsequently, the petitioners heard that warrants of arrest had been issued against them. They, therefore, went to the police station at about 6 A.M. on the 10th of November 1950 when they were placed under arrest and taken to the Central Prison in Trivandrum. The business carried on by them at Trivandrum has other partners as well and it is stated in the affidavits that the business is now being carried on by the other partners. 5. The business carried on by them at Trivandrum has other partners as well and it is stated in the affidavits that the business is now being carried on by the other partners. 5. In paragraph 8 of the affidavits it is alleged that the petitioners understood that the arrest and detention were made under an order passed by the District Magistrate of Trivandrum on the 8th of November 1950 for the alleged reason that the petitioners have been disposing of rationed articles in the black market. It is further alleged in the affidavits that the first petitioner is aged about 73 years, that he is suffering from chronic asthma and also from hernia. The second petitioner is stated to be 54 years of age and it is alleged that he has been suffering from diabetes for about five years. They state that they entertain reasonable apprehension that their health will be injuriously affected if the detention continues. The most important averment in the affidavits is contained in paragraph 11 of the first petitioner's affidavit. According to this paragraph, the grounds for the detention were served on the petitioners at about 6.45 P.M. on 13.11.1950, that is to say, three days after they were sent to the Central Prison at Trivandrum, for detention under the order alleged to have been passed by the District Magistrate. Then there is this significant averment 'In spite of the petitioners' request for the orders of detention, they have not yet been served." 6. The facts, therefore, which are relevant for the purpose of considering the objection raised on behalf of the petitioners are that the District Magistrate passed the order of detention on the 8th November 1950, that the petitioners were actually arrested and sent to the Central Prison at Trivandrum on the 10th of November 1950, that in spite of their request for a copy of the order, they have not yet been served with a copy. On the 13th November, however, they were given the grounds of detention. 7. Even in this court there is no affidavit filed to show that an order of detention was passed by the District Magistrate of Trivandrum. A copy of the alleged order is produced along with what is described as a memo presented by the Advocate-General. On the 13th November, however, they were given the grounds of detention. 7. Even in this court there is no affidavit filed to show that an order of detention was passed by the District Magistrate of Trivandrum. A copy of the alleged order is produced along with what is described as a memo presented by the Advocate-General. This memo contains a single sentence which is worded as follows:- "It is submitted that the records noted below are herewith produced." Items 1 and 2 mentioned in this memo are: Copies of (1) the proceedings of the District Magistrate, Trivandrum, dated 8.11.1950 and (2) order dated 8.11.1950 of the District Magistrate, Trivandrum, with the grounds. They are not attested or certified copies and they do not bear any seals. There are two other enclosures to the memo which are (3) grounds under which Sri Thiruvadinatha Pillai and Sri S. Kolappa Pillai, joint owners and proprietors of Messrs S.T.C. Thiruvadinatha Pillai and Brothers, hardware merchants, Chalai, Trivandrum, are ordered to be detained and (4) acknowledgment receipt of S. Kolappa Pillai and S.Thiruvadinatha Pillai dated 13.11.1950 for acceptance of a copy of grounds of detention dated 8.11.1950. It is thus clear that there is no legal proof even before this court that the District Magistrate of Trivandrum passed an order on 8.11.1950 directing the detention of the two petitioners in the Central Prison at Trivandrum. Therefore, it is not possible for this Court to act on the assumption that such an order was passed by the District Magistrate. 8. The question for consideration is whether in such circumstances the detention can be said to be lawful. If it is not lawful, then there is no doubt that this Court has got the power of granting the prayer contained in the two petitions for the issue of a writ of habeas corpus for releasing the petitioners from confinement. For this purpose reference must necessarily be made to the relevant articles in the Constitution which safeguard the liberties of the subject. For this purpose reference must necessarily be made to the relevant articles in the Constitution which safeguard the liberties of the subject. According to Art.3(1) of the Constitution, laws in force in India before the commencement of the Constitution which are inconsistent with or in derogation of the fundamental rights are to that extent declared to be void and it is provided in Art.3(2) that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void. Art. 32 confers right upon a citizen to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution defining fundamental rights. Cl.(2) of the Article recognises the jurisdiction of the Supreme Court to issue directions or orders or writs including writs in the nature of habeas corpus Art.22, in Cls. (1) and (2), refers to persons who are arrested and detained in custody. According to Cl. (1) a person so arrested shall not be detained without being informed as soon as may be of the grounds for such orders. According to Cl.(2) such a person shall be produced before the nearest Magistrate within 24 hours of the arrest. But in Cl.(3), sub-cl. (b) it is provided that these provisions shall not apply to a person who is arrested for detained under any law, providing for preventive detention. According to Cl.(5), in the case of a person detained under an order for preventive detention, the authority making the order shall as soon as may be, communicate to such person the grounds on which such order has been made and shall afford him the earliest opportunity of making a representation against the order. It is thus clear from the concluding part of this clause that the person who is directed to be detained has got the right of making a representation against "the order" which means the order of detention. To enable him to do that and to seek redress in a court of law, it is necessary that he should get a copy of that order. Without getting that, it will not be possible for him to say whether the order was passed by a competent authority or whether the order is valid. To enable him to do that and to seek redress in a court of law, it is necessary that he should get a copy of that order. Without getting that, it will not be possible for him to say whether the order was passed by a competent authority or whether the order is valid. With the idea of seeking redress, when the petitioners asked for a copy of the order, their request was not granted and as already stated, even now it has not been proved to the satisfaction of this Court that an order was passed by the District Magistrate of Trivandrum. All that has been established is that three days after the detention of the petitioners commenced, they were served with a copy of the grounds for the detention. The right vested in the petitioner is not merely to take exception to the grounds or to show that those grounds are not tenable, but also to take exception to the validity of the order, for doing which they must be put in possession of a copy of the order especially when they have made a request for it. There is a specific provision in the Constitution that the grounds of detention shall be communicated to the party concerned as soon as possible. There is no provision that the order need not be served upon the person. But when refusal to comply with the request that a copy of the order may be given, deprives the party concerned of his right to object to the validity or legality of the order, it is a case in which he can seek redress in a court of law. According to Art.226, the High Court in the various States are invested with the jurisdiction to issue writs in the nature of habeas corpus. The obvious course which a person who is detained will adopt is to approach the High Court of the State in which he is detained for this relief and it will be practically depriving him of that right, if in response to his request, a copy of the order is not served. 9. The obvious course which a person who is detained will adopt is to approach the High Court of the State in which he is detained for this relief and it will be practically depriving him of that right, if in response to his request, a copy of the order is not served. 9. The right to move the High Court can be exercised by a person undergoing preventive detention not only after he has been served with a copy of the grounds of the order, but also during the period of the interregnum between the commencement of the detention and the date on which the grounds are served on him. In the present case because the request of the petitioners was not granted, they were debarred from raising any contentions during that interregnum. There is no definite period fixed within which the grounds should be served. All that the Article lays down is that as early as possible after the arrest and detention, the party concerned should be informed of the grounds of detention. It will be against the rules contained in the Constitution to deprive a person of the right of moving the appropriate court for relief in the interval between the time the detention begins and the date on which the grounds of detention are communicated. 10. In the present case, therefore, we hold that the detention is not legal, because in response to the request of the petitioners a copy of the order of detention was not given to them to enable them to see whether it is a proper order or not and even now there is no legal proof that such an order was passed by the District Magistrate of Trivandrum. All that appears from the records and all that has been established in this Court is that the grounds of detention were served on the petitioners three days after they were arrested and their period of detention began. 11. We are not expressing any opinion upon the other grounds urged on behalf of the petitioners, but for the reasons given above, we direct the second respondent to set free the two petitioners as soon as a copy of this order is received by him. Transmit the order forthwith. Petition allowed. The learned Advocate-General moves orally that a certificate for leave to appeal to the Supreme Court be granted. Transmit the order forthwith. Petition allowed. The learned Advocate-General moves orally that a certificate for leave to appeal to the Supreme Court be granted. We are not satisfied that there is any reason for granting such a certificate in the present case. The application, therefore, cannot be granted.