ON 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 section N Andley for the appellant
M C Setalvad Attorney General for India B Sen and R H Dhebar for the respondent
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
O R D E R
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 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 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
1The 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
2The detaining authorityin exercising its power failed to apply its mind to the existence or otherwise of the legitimate objects of detention
The grounds of detention are vague
385 4The 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 1a There was a sudden search by the police on the 24th August 1954 at the appellant s place for alleged possession of illicit liquorwhich 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
bOn the same day a search was carried out by the police also at his residence at Mahim but nothing was found
cImmediately 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
3Between 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 226 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 226 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 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
2If 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
3You 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 15g 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 vs Atma Ram Sridhar Vaidya1 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 1With 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
2He is collecting intelligence about the security arrangements on the border area and making such intelligence available to the Portuguese authorities
3He 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  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 225 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 vs Atma Ram Sridhar Vaidya1 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 case1 by the majority of the Court that the constitutional right of a detenue under article 225 comprises two distinct components
1The right to be furnished grounds of detention as soon as may be and 2The right to be afforded the earliest opportunity of making a representation against his detention 1  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 226 whereby disclosure of facts considered to be against public interest cannot be required
It is however to be observed that under article 226 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 225 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 15g 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 226 of the Constitution overrides the constitutional right to be furnished particulars under article 225 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


Summary:
Appellant was detained under section 31ai 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 article 226 of the Constitution
Held that the right of the detenue to be furnished particulars is subject to the limitation under article 226
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 article 226 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