CHANDRA PARKASH AGARWALA v. S. G. BOSE MULLICK — 1966 DIGILAW 55 (DEL)

R. S. Narula, J. ( 1 ) THE petitioner was arrested arid detained under rule 30 of the Defence of India Rules by the order of District Magistrate, Delhi on 14-8-1965. The order of dentention stated that the District Magistrate was satisfied from information received by him that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, public safety, the defence of India and civil defence. He filed Criminnal writ petition No. 59-D/ 1965 in this Court impugning the legality and validity of his detention on 25. 8. 1965. The writ petition was admitted by the Motion Bench (Dulat and Shamshar Bahadur, JJ.) on 13-9-1965. In the return made to the rule in that case by Shri S. G. Bose Mullick, District Magistrate he averted that the order of detention had been passed after carefully considering the circumstances and after being satisfied that it was necessary to do so in order to prevent the petitioner from acting in any manner prejudicial to the defence of India, civil defence, maintenance of public order and public safety. It was further sworn by the District Magistrate in the said writ stated that the petitioner had been exploiting the employees of the Delhi hospitals, University colleges, the Corporation and even members of the Police Force in Delhi and creating dissatisfaction in their ranks and threatening to agitate on very minor issues. Mr. S. G. Bose Mullick added in the said affidavit that the petitioner had recently been engaged in activities aimed at subverting the loyalty of the Police Force and that the petitioner had been openly advocating disobedience of the lower Police officials to the orders of their superiors. ( 2 ) THE petitioner s criminal Writ Petition No. 59 -D of 1955 was dismissed by this Court (Dulat, J) on October 12, 1965. Mala fides were attributed in that case to the District Magistrate on the ground that the detention order was claimed to be due to some personal hostility between the petitioner and the District Magistrate and on the ground that the petitioner in his capacity as General Secretary of several trade unions in Delhi had been engaged in activities which somehow displeased the district authorities. Dulat, J. disposed of the petition on merits in the following words :- "the crux of the matter, however, is that the order of detention was made by the District Magistrate according to his affidavit, on the ground that the petitioner had been telling the lower police officials not to obey the orders of their superiors, which could well lead to the conclusion that he was engaged in subverting the loyalty of the police force. Mr. Sethi admits that it is not open to me to enquire into the truth otherwise of the information which the District Magistrate had with him. He content however, that I can look at the record of the District Magistrate to ensure that in fact this was the real ground on which he acted and to eliminate the possibility that the state made in the return of the District Magistrate may be an afterthought. I have consequently looked at the file, and the note of the District Magistrate made before the detention order shows that reports had reached him to the effect that the petitioner was engaged in such activities as mentioned by the District Magistrate. It is, therefore, not possible to say that in reality the District Magistrate did not act on the ground and on the information which he had with him". ( 3 ) ALL other contentions raised by the petitioner were also repelled by Dulat, J. While dismissing the writ petition. However, the learned Judge made the following observations towards the end of the judgment while dismissing the writ petition :- "i am not persuaded, in the circumstances, that the order of detention was in this case illegal or beyond the terms of the Defence of India Rules or the Act under which they are made. This petition must for this reason fail. I wish only to add that I hope now that conditions have perhaps altered, these cases like the petitioner s will be reviewed in the light of the existing circumstances, so that unnecessary hardship does not occur to individuals ordered to be detained in perhaps other circumstances. The petition, as it stands, is dismissed. " ( 4 ) THEREAFTER the petitioner filed Criminal Writ No. 251-D of 1965 in this court on 2-12-1965. The petition, as it stands, is dismissed. " ( 4 ) THEREAFTER the petitioner filed Criminal Writ No. 251-D of 1965 in this court on 2-12-1965. That writ petition was ultimately dismissed by H. R. Khanna, J. on January 7, 1966 on the ground that a fresh petition to challenge the order of detention which had been upheld in the previous case by Dulat, J. was barred in accordance with the law laid dowd by a Full Bench of this Court on 28th May, 1965 in Ram Kumar v. Distrct Magistrate, Delhi. Khanna, J. held that although it was open to the petitioner in appropriate circumstances to urge a new ground of attack against his detention he would not be entitled to file a second petition merely because he wanted to urge a fresh argument. One of the grounds sought to be urged before Khanna, J. was contained in the petitioner s first writ petition and was, therefore, not allowed to be urged as it was deemed not to have been pressed before Dulat, J. All the new grounds urged in the second writ petition were repelled. It is admitted by both sides that subsequent to the orders of Dulat, J. and Khanna, J. the case of petitioner s detention has again been reviewed by the Administrator of the Union Territory of Delhi on 4-2-19^6 and he has stated that he is satisfied that it is necessary to continue the detention of the petitioner on the grounds contained in the District Magistrate s original order of 14th August, 1965. He has now filed this writ petition on 22.-2.-1966. The mainstay of the petitioner as disclosed in the writ petition is the observation of Dulat, J. relating to the possibility of the changed circumstances justifying reconsideration of the matter. The petitioner has averred in his writ petition that the District Magistrate had ordered petitioner s detention for unmeritorious reasons and that the affidavit of the District Magistrate filed in the previous two cases of the petitioner was false, in connection with which alleged falsity the petitioner has already filed a complaint. Violation of section 44 of the Defence of India Act has also been pleaded in the writ petition. Violation of section 44 of the Defence of India Act has also been pleaded in the writ petition. ( 5 ) IN the affidavit of the District Magistrate dated 19th March 1966 filed in this case it has been stated that the detention order was passed for valid reasons and that the allegations of the petitioner that the same was passed for unmeritorious reasons is baseless and further that the mere filing of a complaint by the petitioner against the District Magistrate cannot furnish an additional ground for filing a fresh petition. In paragraph 10 of the return the District Magistrate has sworn that the petitioner was engaged in extremely prejudicial activities and the detention order was passed to prevent him from doing so. ( 6 ) AT the hearing of the petition it has firstly been contended by Shri N. C. Kochhar, Advocate that the petitioner should have been released on a reconsideration of the matter in view of the observations made by Dulat, J. in the end of the judgment of this court in Criminal Writ No 59-D of 1965. There is no force in this contention. It is probably in view of the said observations of this Court that the Administrator of the Union Territory has again reviewed the case of the petitioner on 4. 2,1966. This Court cannot go behind the satisfaction of the Administrator in this respect. ( 7 ) IT is then contended by the learned counsel that there is no valid declaration of emergency under Article 352 (1) of the Constitution. The relevant notification reads as follows :- "in exercise of the powers conferred by clause (1) of article 352 of the Constitution, I, barvapalli Radhakrishnan, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression. "the objection of the counsel to the above notification is that the President has not stated in the notification that he is "satisfied" that national emergency existed on the 26th October, 1962. He argued that Article 352 (1) of the Constitution states that emergency can be proclaimed only if an and when the President is "satisfied" that a grave emergency exists and that in as much as the President has not stated in the proclamation that he is so satisfied the proclamation is neither valid nor legal. He argued that Article 352 (1) of the Constitution states that emergency can be proclaimed only if an and when the President is "satisfied" that a grave emergency exists and that in as much as the President has not stated in the proclamation that he is so satisfied the proclamation is neither valid nor legal. I regret I am unable to see any force in this argument of the learned counsel. No particular form has been prescribed by the Constitution for the proclamation under Article 352 (1) of the Constitution Specific reference has been made to the Article itself in the President s proclamation. A declaration to the offect that a grave emergency exists presuposes the satisfaction of the President to that effect. Even otherwise this Court can take judicial notice of historical events and it is not disputed by the learned counsel that in fact national emergency did exist on 26th October, 1962 as China had launched a massive attack on India a few days before 26-10-1962. ( 8 ) THE next contention of Mr. Kochar is that while passing the order under rule 30 of the Defence of India Rules the District Magistrate has completely ignored and has not considered the mandatory provisions of section 44 of the Defence of India Act. The said section reads as follows :- "any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring ihe public safety and interest and the defence of India and civil defence. "there is no quarrel with the statutory provisions contained in section 44 of the Defence of India Act. It has not, however, been shown by the petitioner that the desired object of preventing him from acting in a prejudicial manner complained of against the petitioner could be achieved by taking any step short of detaining him. Moreover section 44 has to be read alongwith the other provisions of the Act and it cannot be argued that where good grounds for detaining a person under the Defence of India Act are made out he should still not be detained because of anything contained in section 44. Moreover section 44 has to be read alongwith the other provisions of the Act and it cannot be argued that where good grounds for detaining a person under the Defence of India Act are made out he should still not be detained because of anything contained in section 44. In any case it is for the appropriate State Authority to determine the extent to which interference with the ordinary avocations of life of a person is necessary for ensuring the public safety and interest and the defence of the country and its civil defence. In reply to the allegations under section 44 of the Act contained in para 10 of the writ petition it has been sworn by the District Magistrate in his written statement that the petitioner was engaged in extremely prejudicial activities and, therefore, the detention order had to be passed to prevent him from indulging in the same. That being so, it is not open to this court to apply its own standards for judging whether the interference in the petitioners normal avocatios of life has or has not exceeded the limits of necessity I have, therefore, no hesitation in repelling this contention of the petitioner. ( 9 ) I have not been able to follow the next argument of Mr. Kochhar. He urged that rule 30 (1) (b) of the Defence of Indian Rules is ultra vires section 3 (2) (4) of the Defence of India Act because the said section of the Act provides for making a rule even in a case where a person is suspected of acting in a particular manner but the rule does not contain the word "suspect. " If the rule went further than the Act some valid argument could possibly be advanced which might have deserved consideration. But in this case the scope of the section in the Act is definitely wider than the scope of the rule. It is not disputed that the impugned order of petitioner s detention does fall within the rule. In any case the petitioner has not been detained for any suspicion but on definite information. There is, therefore no force in this argument of the learned counsel. ( 10 ) THE last argument of Mr. Kochhar is based on an affidavit which he has filed before me to-day. In any case the petitioner has not been detained for any suspicion but on definite information. There is, therefore no force in this argument of the learned counsel. ( 10 ) THE last argument of Mr. Kochhar is based on an affidavit which he has filed before me to-day. In that affidavit it is stated that a detention order had been served on one Shri Brij Mohan who had been kept under detention on the basis of the order which bears the seal of the District Magistrate but which is not signed by him (by the District Magistrate ). It is stated by the petitioner that Brij Mohan was detained for about two months in the Central Jail, New Delhi under the said order though he was thereafter released because he had filed a writ petition. The petitioner has filed in this Court with his affidavit to-day a document purporting to be the original order of the District Magistrate, Delhi dated 3rd September, 1965 directing the detention of Brij Mohan son of Shori Lal under rule 30 of the Defence of Indian Rule The document produced by the petitioner is indeed not signed by the District Magistrate. But it is wholly irrelevant for me to go into this matter in the present case. Mr. Kochhar wants to build an argument on the basis of these allegations to the effect that this particular District Magistrate is careless and issues such orders even without signing them. I am not prepared to raise any such inference from the allegations made by the petitioner in his to-day s affidavit about which the District Magistrate has had no opportunity to say anything. ( 11 ) MR. P. C. Khanna, the learned counsel for the State urged that this writ petition is an abuse of the process of this Court and is barred on the principles laid down by the Full Bench in Ram Kumar s case. In that case it was held that no petition for a writ of habeas corpus lies to the High Court on a ground which a similar petition had already been dismissed. In that case it was held that no petition for a writ of habeas corpus lies to the High Court on a ground which a similar petition had already been dismissed. Their Lordships of the Full Bench held that a second petition would lie when a fresh and and new ground of attack against the legality of detention or custody has arisen after the decision on the first petition, and where for some exceptional reason a ground has been omitted in earlier petition, in appropriate circum- stances, the High Court might hear the second petition on such a ground for ends of justice. It was authoritatively laid down in that case that merely because an argument was missed at the time of the hearing of the earlier petition in support of a ground, that would not justify the entertainment of the second petition. It appears to me that prima facie this petition was not maintainable. But in view of the liberty of the citizen being involved, I have heard the learned counsel on all possible points which he urged in support of the writ petition and have dealt with the same. ( 12 ) NO other point was argued before me in this case. The writ petition, therefore, fails and is dismissed.