NATVARLAL JAYSHANKER TRIVEDI Vs. E F DEBOO
LAWS(GJH)-1966-2-9
HIGH COURT OF GUJARAT
Decided on February 02,1966

NATVERLAL JAYSHANKER TRIVEDI Appellant
VERSUS
E.F.DEBOO Respondents

JUDGEMENT

N.M.MIABHOY, N.K.VAKIL - (1.) This is a petition under Article 226 and some other articles of the Constitution of India and also under sec. 491 of the Criminal Procedure Code. Petitioner is Natverlal Jayshanker Trivedi. The first respondent is the Commissioner of Police and the second respondent is the State of Gujarat. The first respondent passed an order on 8th September 1965 under rule 30 of the Defence of India Rules 1962 (hereafter called the Rules) in which he stated that he was satisfied that with a view to preventing petitioner from acting in a manner prejudicial to certain matters it was necessary to make an order to detain him and further directed that petitioner be detained in Rajkot District Prison (Special). The matters in regard to which petitioner was directed to be detained were (1) defence of India; (2) public safety; (3) maintenance of public order and (4) maintenance of peaceful conditions in the city Of Ahmedabad. Petitioner challenges the detention order and his detention on a number of grounds to be presently mentioned. Both the respondents have appeared to show cause in response to a rule nisi issued against each of them. The first respondent has filed an affidavit in reply in which he has contested the grounds on which petitioner has solicited the writ or order of habeas corpus. On 30th November 1965 petitioner gave an amendment application for amending his petition by incorporating certain additional grounds. That application was granted by us on the same day. These additional grounds are also being challenged by the first respondent and affidavits have been filed in support of the challenge by the first respondent and two officers of the second respondent.
(2.) The first ground on which petitioner challenges the detention order is that on the relevant date the first respondent had no materials to detain him under the Rules and that therefore. his detention is illegal. The second ground on which petitioner challenges the detention order is that it was passed in mala fide exercise of the power conferred upon the first respondent. In our judgment it will be convenient to deal with both these grounds together as the factual and the legal submissions in regard to these two grounds overlap. In order to understand these two contentions it is necessary to mention a few facts. Petitioner claims to be a wholesale merchant dealing in ready-made garments. He has annexed some corres- pondence in support of this claim. The first respondent has denied the claim and averred that petitioner is not a respectable citizen; that he has no ostensible means of livelihood; and that he indulges in anti-social activities and acts of terrorism and goondaism. It is common ground that before his detention under the impugned order petitioner was convicted on two occasions for offences punishable under secs. 110 and 117 of the Bombay Police Act 1951 He was also convicted in a prohibition offence by a learned Magistrate but was subsequently acquitted of that offence by an order passed by this Court It is common ground that petitioner has a servant named Chhotu Jeram. This servant was involved in a case of kidnapping and rape alleged to have been committed on 8th August 1965 It is common ground that this Chhotu Jeram had made allegations against officers of the Ellisbridge Police Station in which the aforesaid case was registered the allegations being that Chhotu had been maltreated by them. Petitioner alleges that he had himself also made an allegation against officers of the same Police Station in regard to the same. Petitioner further alleges that he had also complained against the action of the above police before the Sadachar committee and has produced a copy of the application made by him. Petitioner alleges that because of the aforesaid actions taken by him and his servant Chhotu Jeram the police bore a grudge against petitioner and that the police taking advantage of the prevalence of conditions arising out of the aggression by Pakistan against India had got peti- tioner arrested when a number of persons in the city were arrested generally. Both the sides are agreed that petitioner was arrested at 3-35 A.M. on 8th September 1965 from his house. However there are rival versions as to the circumstances in which petitioner was arrested. According to petitioner when the police came to his house he was told that they intended to search his house in connection with a prohibition offence; that some of the police officers rushed into his house and remained in one of his rooms under suspicious circumstances; and that when he was asked to accompany the police he refused to do so because there was no warrant or order for petitioners arrest but that ultimately he was persuaded to accompany the police by his landlord. Petitioner has also alleged that he was harassed and mishandled by the police and one of the Sub-Inspectors had also pointed his revolver against him. The first respondent has denied all these allegations. In addition to this respondents leave filed the affidavit of Kantilal Shivabhai Patel Inspector of the Ellisbridge Police Station. That officer has given his own version. According to that officer petitioner was arrested under sec. 151 Criminal Procedure Code on that night and taken to the Police Station. It is also common ground that on the same morning deponent Manhar the brother of petitioner appeared in the Police Station and gave an application drafted by an Advocate demanding from the police officers the law underhand the grounds on which petitioner had been arrested. The first respondent in his first affidavit in reply dated 20th November 1965 stated that at that time Manhar had been told that petitioner was being detained under take Preventive Detection Act. The first respondent stated in that affidavit that this part of the affidavit was based upon information derived by him from his record. The first respondent however in his affidavit dated 15th December 1965 resiled from the aforesaid statement and stated that petitioners brother had not been so informed. Kantilal the Inspector of Ellisbridge Police Station has stated in his affidavit as already mentioned that he had received the application presented by petitioners brother Manhar and that tale information which he had given to him at that time was that his brother was being detained under sec. 151 of the Criminal Procedure Code. He states that below that application he had made an endorsement at that very time to the effect that application personally presented by Manhar and Janakray brothers of Natverlal Jayshanker. They were informed that Natverlal has been arrested under sec. 151 of the Criminal Procedure Code. The first two submissions of Mr. Raval are based on the aforesaid facts and versions. In so far as the two versions differ from each other in our judgment it will be improper to undertake in the present petition a decision as regards the difference. Therefore we propose to consider the two conten- tions of Mr. Raval on the admitted facts only. The contention that the im- pugned order was not supported by any materials is to be found in paragraph 21 of the petition. From the averments contained in that paragraph it is quite obvious that petitioners contention was that tale first respondent had no materials before him on the basis of which he could have passed the impugned order. That is a perfectly justifiable ground of attack. But the contention which Mr. Raval actually raises before us is different from the contention embodied in paragraph 51 aforesaid. That contention is that petitioner was arrested under Preventive Detention Act at 3-35A.M. On 8th September 1965 and that this supported the contention that there were no materials before the first respondent which supported an action of detention under the Rules. Such a specific contention has not been raised by petitioner in his petition. The present contention comes to be developed on the strength of certain statements which have come to be made by the first respondent in his affidavits. Firstly as already stated the first respondent deposed that petitioners brother had been informed on the morning of 8th September 1965 that petitioner was being detained under the Preventive Detention Act. Not only this but at several other places in his first affidavit the first respondent has stated that action was taken against petitioner under Preventive Detention Act. Mr. Ravals contention is that the present position which is now taken up on behalf of the respondents that petitioner was initially arrested only under sec. 151 Criminal Procedure Code is an innovation and that we should not decide the petition on that basis We have given our careful thought to this contention of Mr. Raval. There is no doubt whatsoever that the afore- said averments are to be found in the affidavit of the first respondent. There is also no doubt whatsoever that the explanation which is offered on behalf of the first respondent for resiling from the aforesaid averments is not satisfactory. The explanation which the first respondent has offered is that there was a typographical error in making the statements in his first affidavit. We are unable to understand this explanation When called upon to explain Mr. Sompura drew our attention to the fact that the relevant averment came to be made in answer to what is contained in paragraph 7 of the petition and he stated that that paragraph did not anywhere state anything about the source of petitioners detention nor could that paragraph give any occasion for stating such a source. But it is difficult to connect this explanation with the explanation of typographi- cal error. Then Mr. Sompura stated that if the word not were to be introduced in the following sentence occurring in paragraph 8 of the affidavit in reply the typographical error would be apparent: Both of them at that time were informed that the petitioner was being detained under the Preventive Detention Act. This explanation also does not fit in. Having regard to the fact that there was no reference to the Preven- tive Detention Act in paragraph 7 of the petition it could not be imagined that the first respondent was out to deny any averment contained in that paragraph. Apart from this this explanation does not fit in with the averments contained in some other parts of the affidavit. For example in paragraph 12 the first respondent states as follows: I say that the conditions prevailing in the city were such that I was obliged to take action under the Preventive Detention Act. x x x x x x . How- ever although the affidavit of the first respondent is in an unsatisfactory state on this point we are unable to conclude therefrom that the first respondent had no materials before him on the basis of which he could have passed the impugned order of detention. In deciding this question the two concepts must be kept separate-concept of arrest and the concept of detention. From the materials on record we have no doubt whatso- ever that petitioner was first arrested by the officers of the Ellisbridge Police Station at about 3-35 A.M. on the 8th September 1965. From the same materials also there is no doubt whatsoever that this arrest was made by those police officers of their own accord. There is absolutely not a tittle of evidence in the case to show that the arrest was made as a result of any order passed by the first respondent. It is petitioners case itself that there were general arrests in the city of Ahmedabad on that night and his name was included mala fides on account of the grudge which the Ellisbridge Police Station officials bore against him. It is true that there is no definite evidence in the case to show as to when the impugned order of detention under the Rules was made. But that lacuna appears in the case not because the first respondent had anything to suppress on that account but the lacuna appears in the case because the aforesaid aspect which Mr. Raval now brings into prominence was never canvassed by petitioner in his petition or in any of the affidavits filed by him or on his behalf. On the contrary the affidavits of both the sides disclose that the order passed by the first respondent was served on petitioner on the night of 8th and 9th of September 1965 the only variation between the two versions being that according to petitioner he was served with the order at about 0-45 A.M. on 9th September 1965 and according to the first respondent petitioner was served at about 10 P M. on 8th September 1965. Now it is hardly probable that if petitioner was being arrested under any order of the first respondent the police officers arresting him should not have showed him that order or that that order should not have been served on petitioner until 10-00 P.M. after a lapse of nearly eighteen hours. Therefore the only reasonable inference which can be drawn from the materials on record is that peti- tioner was first arrested by the police officers of the Ellisbridge Police Station at about 3-35 A.M. on 8th September 1965 and that arrest could have been only under sec. 151 Criminal Procedure Code 1898 This part of the version propounded on behalf of respondents is corroborated by an endorsement made by the deponent Kantilal the genuineness and the veracity of which we have no reason to doubt. In any case we do not want to decide this case of the basis that that deponent was guilty of forgery. However we are not called upon in the present case directly to decide the bona fides or the genuiness of the arrest under sec. 151 Criminal Procedure Code. It may be that that circumstance may have repercussions on the question of mala fides. But in any case) we are not called upon to decide directly whether there were or were not any materials with the aforesaid officials to arrest petitioner under sec. 151 Criminal Procedure Code. The question that we are called upon to decide is whether petitioner has established that the impugned order of detention passed by the first respondent was passed and that petitioner was being detained without there being any materials with the first respondent. Petitioner has failed to discharge this burden which initially lies on him. The averment of petitioner that there were no materials with the first respondent has been denied by the first respondent. But the serious question to be tried is whether the impugned order was passed mala fides. Now having regard to the facts which have emerged on the record there is no doubt whatsoever that this part of the allegation of petitioner requires serious consideration. Having regard to the fact that petitioners servant had been arrested and serious allegations were made by this servant in one of the averments in regard to which petitioner himself was a party against officials of the Ellisbridge Police Station in our judgment petitioner has laid a foundation for a serious consideration of the case against the aforesaid police officials. But the impugned order of detention has not been passed by those officials. The authority which has passed that order is the first respondent. In order to succeed in the plea of mala fides it is quite clear that it is not enough for petitioner to show that the aforesaid police officials of the Ellisbridge Police Station bore a grudge against him. What petitioner is requited to prove is that the first respondent had either a grudge against him or that he was abusing his authority at the instance or in collusion with the aforesaid officials. We have no doubt whatsoever that this connection between the aforesaid officials and the first respondent has not been showed by petitioner. It is true that there cannot be any direct evidence on this subject. But there are no circumstances present in the case on the basis of which any reasonable inference in favour of petitioner could be drawn. The First respondent is a highly placed police officer. We are not prepared to presume that he would bear a grudge against petitioner simply because he made allegations against his subordi- nates. In fact the first respondent denies any knowledge of any such allegations having been made by petitioner. All that he says is that the allegations made against his subordinates by Chhotu Jeram were investigated into by his Superintendent of Police and they were found to be false. Therefore it is not possible to uphold the contention of petitioner that the first respondent was actuated by malice in making the impugned order of detention.
(3.) The next contention of petitioner is that the first respondent had not applied his mind on the question of his detention and that the order had been passed mechanically. This submission is being made on his behalf on the basis of a part of the material which we have considered above. The contention is that even at the present stage of the case the first respondent did not know actually under what detention law he had detained petitioner. In the affidavit at first he stated that petitioner had been detained under the Preventive Detention Act whereas the fact is that the impugned order has been passed under the Defence of India Rules. Now this may at the most mean carelessness in filing the aforesaid affidavit. It may disclose a certain amount of irresponsibility. But we fail to see how the aforesaid set of circumstances can substantiate the plea of lack of application of mind or the making of a mechanical order. Mr. Ravals contention is that in any case the record shows that the first respondent was wavering at the initial stage as to weather petitioner should be detained under the Preventive Detention Act or the Defence of India Rules and that this was evidence of want of application of mind. We cannot agree with this submission. On the contrary in our judgment the aforesaid circumstance would be an indication of the application of the first respondents mind to the facts of the case. The mere fact that an officer considers and at one stage even hesitates that a detenu on the materials before him should be arrested under one law or the other can hardly be regarded as a piece of evidence of lack of application of mind. On the contrary this bespeaks presence of materials and an attempt to evaluate them and to decide which detention law should be applied to the facts of the case. Therefore in our judgment there is no substance in the afore- said contention of Mr. Raval also.;


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