PETITIONER:
LAWRENCE JOACHIM JOSEPH D’SOUZA
Vs.
RESPONDENT:
THE STATE OF BOMBAY.
DATE OF JUDGMENT:
24/04/1956
BENCH:
JAGANNADHADAS, B.
DAS, SUDHI RANJAN (CJ)
AIYYAR, T.L. VENKATARAMA
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
CITATION:
1956 AIR 531 1956 SCR 382
ACT
Preventive Detention-Espionage activity-Grounds whether
vague-Vagueness due to non-disclosure of facts in public
interest Whether vitiates order-Claim of privilege-When
should be communicated-Mala fides.
HEADNOTE
Appellant was detained under s. 3(1)(a)(i) of the Preventive
Detention Act, Act IV of 1950 on the grounds that with the
financial help given by the Portuguese authorities he was
carrying on espionage on their behalf with the help of
underground workers and that he was also collecting
intelligence about the security arrangements on the border
area and was making such intelligence available to the
Portuguese authorities. Appellant made no application to
the Government for further particulars.
Held, that in these circumstances and having regard to the
fact that what is alleged is espionage activity, the grounds
could not be considered to be vague.
In answer to the objection in the writ application before
the High Court that the grounds were not specific and that
no particular of the alleged activities of the appellant
were given the Under Secretary to the Government in his
affidavit claimed privilege under Art. 22(6) of the
Constitution.
Held, that the right of the detenue to be furnished
particulars is subject to the limitation under Art. 22(6).
Hence even if the grounds are vague due to the reason that
facts cannot be disclosed in the public interest, the order
of detention cannot be challenged on the ground of such
vagueness.
The necessity of communicating the decision to claim
privilege under Art. 22(6) would arise only when the detenue
asks for parti-
383
culars. In the absence of any such request by the detenue,
the noncommunication of the decision cannot be hold to have
hampered his constitutional right to make his
representation.
Mala fides must be made out against the detaining authority
and not against the police. The contention of mala fides is
untenable in the present case having regard to the nature of
the grounds and to the nature of the activities imputed to
the appellant.
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 126 of
1955.
Appeal by special leave from the judgment and order dated
the 9th August 1955 of the Bombay High Court in Criminal
Application No. 726 of 1955.
M. R. Parpia, J. B. Dadachanji and S. N. Andley, for
the appellant.
M. C. Setalvad, Attorney-General for India, B. Sen and R. H.
Dhebar, for the respondent.
1956. April 24. The Judgment of the Court was delivered by
JAGANNADHADAS J.-This is an appeal by special leave against
the judgment of the High Court of Bombay dismissing an
application made to it under article 226 of the
Constitution. These proceedings relate to the validity of
an order of detention passed by the Government of Bombay on
the 8th June, 1955, against the appellant before us, who is
an Advocate of the High Court of Bombay having a standing of
about thirty years. He was in the Indian Air Force as an
emergency Commissioned Officer between 1943 to 1948 and
thereafter on extension for another four years until he
attained the age of 55. It appears that he was also
interested in journalism and in public affairs. On his own
showing, he was concerned over the political future of Goa
and "was opposed to any attempts at intimidation of Indian
residents of Goan origin by other political groups and has
freely expressed these views in his journalistic articles".
He was arrested on the 9th June, 1955, and is in detention
since then under the impugned order, which runs as follows:
384
"No. P. D. A. 1555A.
Political and Services Department,
Secretariat,
Bombay, 8th June, 1955.
ORDER.
Whereas the Government of Bombay is satisfied with respect
to the person known as Shri Lawrence Joachim Joseph DeSouza
of Bombay, that with a view to preventing him from acting in
any manner prejudicial to the relations of India with the
Portuguese Government and to the Security of India, it is
necessary to make the following Order:
Now, therefore, in exercise of the powers conferred by sub-
clause (1) of clause (a) of sub-section (1) of section 3 of
the Preventive Detention Act, 1950 (Act IV of 1950) the
Government of Bombay is pleased to direct that Shri Lawrence
Joachim Joseph DeSouza of Bombay, be detained.
By Order and in the name
of the Governor of Bombay.
Under Secretary to the
Government of Bombay.
Political and Services
Department".
In pursuance of section 7 of the Preventive Detention Act,
1950 (Act IV of 1950) (hereinafter referred to as the Act)
the grounds of detention, also dated the 8th June, 1955, was
served on him along with the order of detention. The
validity of the order is challenged on the following
contentions.
1.The order of detention was mala fide. It was passed for
the ulterior purpose of preventing his freedom of speech and
freedom of professional activity in the sphere of Goan
affairs by reason of his known views in this behalf.
2.The detaining authority,in exercising its power, failed to
apply its mind to the existence or otherwise of the
legitimate objects of detention.
3. The grounds of detention are vague.
385
4.The claim of State that no particulars of the grounds
could be furnished in public interest is unsustainable and
in any case mala fide.
The last two have been urged before us not only as
independent points but as reinforcing the first two.
The challenge to the validity of the order based on the
attack of mala fides and non-application of the, mind of the
detaining authority, have been urged before us with great
insistence. We have been taken elaborately into what is
claimed to be the relevant previous background of events.
This part of the argument raises, what ultimately are
questions of fact which have been fully considered by the
High Court. It is, therefore, enough to state, in its broad
outlines, the background, which is alleged as follows:
(1)(a) There was a sudden search by the police on the 24th
August, 1954, at the appellant’s place for alleged
possession of illicit liquor.which, in fact, was not found.
But under the guise thereof the police seized and carried
away a mass of documents, papers and printed material of the
appellant as also a typewriter belonging to him.
(b)On the same day, a search was carried out by the police
also at his residence at Mahim but nothing was found.
(c)Immediately following the searches, the appellant was
taken into illegal police custody and interrogated, and
physically assaulted, and threatened. The above high-handed
action of the police, by way of search and seizure, was the
subject matter of challenge by the appellant by means of a
writ application in the High Court in which the police
officers concerned filed affidavits virtually admitting the
appellant’s allegations relating to seizure of papers, etc.
The State itself could not support the said highhandedness.
As a result, the High Court directed on the 3rd November,
1954, the return forthwith of all the papers and articles
seized. Notwithstanding that order, the materials so
illegally seized were returned only on or about the 21st
January, 1955.
(2) When one Joaquim Carlos, a Portuguese soldier
386
attached to Goan forces, was arrested on a charge of
entering Indian territory without the requisite authority,
the appellant rendered professional assistance to him and
obtained an order of release on bail from the Chief
Presidency Magistrate, Bombay, which was foiled by the
police by removing him away to Sawantwadi before the
requisite sureties could be obtained at Bombay. The trial
was hurried through and the said Carlos was convicted. But
on appeal, filed by the appellant, before the Sessions
Judge, the conviction was set aside and retrial ordered.
These events happened between February to April, 1955.
(3)Between April, 1955 to June, 1955, there occurred certain
incidents which were inspired and instigated by the members
of the Goan Action Committee who were agitating against
Portuguese hold over Goa. There was a raid on certain pro-
Portuguese presses by some private persons, in the course of
which heavy damage was caused. There was also an assault on
himself (appellant) by a gang of persons of whom some were
employees of the Goan Action Committee. In respect of these
two incidents private complaints had been filed by or on
behalf of the affected persons. The attitude and behaviour
of the police in respect of these complaints were clearly
indicative of their being in league with the Goan Action
Committee.
The appellant’s counsel strongly urged that the bona fides
of the detaining authority is to be judged with reference to
the above background of events and that viewed in that light
the vagueness of the grounds and the belated claim of
privilege under article 22(6) of the Constitution strengthen
his contention. He also relied on what are urged as being
certain discrepancies in the affidavits of the Under-
Secretary and the Chief Secretary filed in the High Court in
these proceedings. It is strongly urged that the order of
detention was made without any real application of mind by
the detaining authority, that the authority acted merely at
the instance of the police who were in league with the Goan
Action Committee, and that the police procured the detention
387
order for the purpose of suppressing the freedom of the
appellant, to ventilate his point of view on the Goan
politics and to take up professionally the cause of persons
in the position of Carlos. We have been taken through all
the material relating to the above allegations and have
given our consideration to the same. It is enough to say
that we are unable to see any reason for disagreeing with
the conclusion of the High Court to the effect that the
material is not enough to make out that the detaining
authority was acting otherwise than bona fide. We also
agree with the view of the High Court that, what has got to
be made out is not the want of bona fides on the part of the
police, but want of bona fides, as well as the non-
application of mind, on the part of the detaining authority,
viz. the Government, which for this purpose must be taken to
be different from the police. It is also clear that the
allegation of non-application of mind by the detaining
authority is without any basis, in view of the affidavit of
the Chief Secretary.
The further points that remain for consideration are those
which relate to the complaint of vagueness of the grounds
furnished and the alleged unsustainable claim for non-
disclosure under article 22(6) of the Constitution on behalf
of the detaining authority, to get over the alleged
vagueness. To appreciate the points thus raised, it is
necessary to have an idea of the grounds of detention as
furnished. They are to be found from the relevant
communication to the detenue which is as follows:
"In pursuance of section 7 of the Preventive Detention Act,
1950 (Act IV of 1950) you are hereby informed that the
grounds on which a detention order has been made against
you, by the Government of Bombay under sub-clause (1) of
clause (a) of subsection (1) of section 3 of the said Act
are that: With the financial help given by the Portuguese
authorities you are carrying on espionage on behalf of the
Portuguese Government with the help of underground workers.
You are also collecting intelligence about the security
arrangements on the border area and you make such
intelligence available to the Portu-
388
guese authorities. These activities which are being carried
on by you with the object of causing further deterioration
in the relations between the Portuguese Government and the
Indian Government over the question of Goan National
Movement, are prejudicial to the security of India and to
the relations of India with Portugal.
2.If you wish to make a representation against the order
under which you are detained, you should address it to the
Government of Bombay and forward it through the
Superintendent, Arthur Road Prison, Bombay.
3.You are also informed that you have a right to claim a
personal hearing before the Advisory Board and that you
should communicate to Government of Bombay as soon as
possible your intention of exercising or not exercising that
right".
The objection by the appellant relating to this is contained
in paragraph 15(g) of his application before the High Court.
It is as follows:
"The grounds are not specific and no particulars of the
activities alleged to have been carried on by the petitioner
are given, viz. the particulars such as the length of period
for which the petitioner is alleged to have carried on the
so-called espionage activities or the details of financial
aid alleged to have been received by the petitioner from the
Portuguese authorities or the names of any of the so-called
underground workers alleged to be aiding the petitioner or
any details of intelligence alleged to have been collected
by the petitioner or made available by him to the Portuguese
Government".
The answer thereto of the Under-Secretary to the Government
of Bombay is in paragraph 12 of his affidavit dated the 25th
July, 1955, and is as follows:
"With reference to paragraph 15, clause (g), I submit that
it is not necessary to mention particulars of the espionage
activities carried on by the petitioner or the details of
the financial aid received by him or the names of the
persons aiding the said petitioner. It is not in public
interest to disclose these details; nor is it necessary to
mention these matters to afford
389
the petitioner reasonable opportunity to make a
representation"
Now the question as to whether the grounds furnished are
vague or not, is ultimately a question that has to be
determined on a consideration of the circumstances of each
case, as was pointed out by this court in the State of
Bombay v. Atma Ram Sridhar Vaidya(1) in the following
passage:
"The contention that the grounds are vague requires some
clarification...................... If the ground which is
supplied is incapable of being understood or defined with
sufficient certainty it can be called vague. It is not
possible to state affirmatively more on the question of what
is vague. It must vary according to the circumstances of
each case...................... If on reading the ground
furnished it is capable of being intelligently understood
and is sufficiently definite to furnish materials to enable
the detained person to make a representation against the
order of detention it cannot be called vague".
In the present case, the detenue has been intimated why, in
the opinion of the Government the activities of the
appellant are considered prejudicial to the security of
India and to the relations of India with Portugal. They are
the following:
1.With the financial help given by the Portuguese
authorities, he is carrying on espionage on behalf of the
Portuguese Government with the help of underground workers.
2.He is collecting intelligence about the security
arrangements on the border area and making such intelligence
available to the Portuguese authorities.
3.He is carrying on these activities with the object of
causing further deterioration in the relations between the
Portuguese Government and the Indian Government over the
question of the Goan National Movement.
It is true that these allegations are not as precise and
specific as might have been desired. But having regard to
the nature of the alleged activities of the appellant, it is
not unlikely that no more could be gathered or furnished.
In this context it is relevant
(1) [1951] S.C.R. 167,184.
51
390
to notice that the appellant himself does not appear to have
felt that the grounds furnished were so vague as to hamper
him in his right to make a representation under article
22(5) and section 7 of the Act. It does not appear that he
applied to the Government to be supplied with particulars of
the grounds furnished to him. Such a right to call for
particulars has been recognised in the case in the State of
Bombay v. Atma Ram Sridhar Vaidya(1) as flowing from his
constitutional right to be afforded a reasonable opportunity
to make a representation to the Board. In that case it has
been stated that "if the grounds are not sufficient to
enable the detenue to make a representation, the
detenue............ if he likes, may ask for particulars
which would enable him to make the representation". The
fact that be bad made no such application for particulars
is, therefore, a circumstance which may well be taken into
consideration, in deciding whether the grounds can be
considered to be vague. In the circumstances and having
regard to thefact that what is alleged is espionage
activity ata time when relations between the two
Governments on the affairs of Goa were somewhat delicate, we
are inclined to think, with the High Court, that the grounds
cannot be considered to be vague.
Assuming however that the grounds furnished in this case are
open to the challenge of vagueness, the further question
which arises is whether the validity of the order of
detention can be sustained by reason of the claim, in public
interest, of non-disclosure of facts made by the Under-
Secretary to the Government of Bombay by means of his
affidavit filed in the High Court. Now it has been held in
Atma Ram Sridhar Vaidya’s case(1) by the majority of the
Court, that the constitutional right of a detenue under
article 22(5) comprises two distinct components.
1.The right to be furnished grounds of detention as soon
as may be; and
2.The right to be afforded the earliest opportunity of
making a representation against his detention
(1) [1951] S.C.R. 167,184.
391
which implies, the right to be furnished adequate
particulars of the grounds of detention, to enable a proper
representation being made.
These rights involve corresponding obligations on the part
of the detaining authority. It follows that the authority
is under a constitutional obligation to furnish reasonably
definite grounds, as well as adequate particulars then and
there, or shortly thereafter. But the right of the detenue
to be furnished particulars, is subject to the limitation
under article 22(6) whereby disclosure of facts considered
to be against public interest cannot be required. It is
however to be observed that under article 22(6) the facts
which cannot be required to be disclosed are those "which
such authority considers to be against public interest to
disclose". Hence it follows that both the obligation to
furnish particulars and the duty to consider whether the
disclosure of any facts involved therein is against public
interest, are vested in the detaining authority, not in any
other. It was accordingly attempted to be argued in the
High Court that the claim of non-disclosure made in the
affidavit of the Under-Secretary indicated a decision for
nondisclosure, by the Under-Secretary himself and that too
at the time of filing the affidavit. On this assumption it
was contended that the claim for non-disclosure was invalid.
The High Court, however, on a consideration of the material,
felt satisfied that what was stated in the affidavit related
to the decision of the detaining authority itself, taken at
the time. The learned Judges expressed their conclusion as
follows:
"There is nothing in the affidavit of Mr. Bambawala to
suggest that it is now that the detaining authority is
claiming privilege or applying its mind to the question of
privilege.......................... The meaning is clear
that at no time it was in public interest to disclose the
details referred to in the particular paragraph of the
affidavit and there is nothing to suggest that this question
was not considered by the detaining authority at the time
when the grounds were furnished".
No argument has been addressed to us how this con-
392
elusion is incorrect. But what has been urged before us is
that the decision not to disclose the facts as well as the
ambit of the non-disclosure must be clearly communicated to
the detenue at the time when the grounds are furnished. It
is urged that if the detenue is furnished information, at
least to that extent, it will enable him to present to the
Advisory Board his difficulties in making a proper
representation and to convey to it a request for obtaining
the requisite particulars from the State under section 10 of
the Act for their own information and consideration. We are
unable to imply any such obligation under article 22(5) and
(6). The necessity for such a communication would arise
only if the detenue, feeling the grounds to be vague, asks
for particulars. An obligation to communicate the decision
not to disclose facts considered prejudicial to public
interest may well be implied in such a situation. But in
the absence of any such request by the detenue, the non-
communication of the decision cannot be held to have
hampered his constitutional right of representation and an
obligation to communicate cannot be implied in these
circumstances. In the present case there is no merit in
this contention. If the appellant bad exercised his right
to ask for particulars, at the time, from the detaining
authority, there can be no doubt that he would have been
furnished then the very information which has been supplied
in paragraph 12 of the Under-Secretary’s affidavit in answer
to para 15(g) of the appellant’s petition, both of which
have been already set out above.
A faint suggestion has been made in the course of the
arguments before us that the decision not to disclose
particulars is mala fide and that such mala fides has to be
imputed in a case where no particulars are at all furnished.
It is suggested that the power not to disclose facts
considered against public interest cannot be so exercised as
to nullify the constitutional right of the detenue for being
afforded a proper opportunity of representation. Such a
contention as to the mala fide exercise of the power is
untenable in the present case having regard to the nature of
the
393
grounds on which the detention is based and the nature of
activities imputed therein to the appellant. It is
unnecessary, therefore, to deal in this case with a
theoretical contention as-to whether or not article 22(6) of
the Constitution overrides the constitutional right to be
furnished particulars under article 22(5) to the extent of
denying all particulars and leaving the grounds absolutely
vague.
All the contentions raised before us fail and this appeal is
dismissed.