Case: Smt. Aruna Kumari Vs. Government Of Andhra Pradesh And Others

2. The grounds served on the detenu for making the detention order dated 15-3-1987 allege that he (the detenu Madhava Rao) undertakes contract works of various types under South Central Railway (SCR) and indulged in clandestine business of diversion of levy cement meant for use in the Masonry Ballast Wall along with the railway track on the suburban section between Kachiguda and Falaknuma Railway Stations, and thus acted in a manner prejudicial to the maintenance of supplies of cement, an essential commodity. The facts mentioned are, that on receipt of an information on 18-12-1987 that levy cement was being transferred into non-levy cement bags for its diversion to works not intended, the Inspector of Police, Vigilance Cell with his staff made a surprise visit in presence of witnesses at about 1 p.m. the same day, to the site of a private building under construction, and found the information passed on to him to be correct. On inquiry it was discovered that a house belonging to one Smt. Mahati Singh, daughter of Y. Krishna Murthy, Divisional Railway Manager, was under construction under the supervision of the detenu, and the levy cement transferred into non-levy cement bags, was being stored in a nearby shed for use in the construction of the said house. The watchman of Y. Krishna Murthy, named Varala Vollaiah, was kept there as guard. The detenu was supervising the construction of the house through his employee James George. The workmen engaged in the work were also examined by the police. The facts which came to light indicated that two days earlier, that is, on 16-12-1986, 200 bags of levy cement reached the site and were unloaded in the shed. James George instructed the labourers to transfer the cement into non-levy cement bags, and his instruction was carried out on the following day, the 17th of December, 1986 and non-levy cement bags were restitched. Vollaiah, the watchman, further stated that the cement was sent by the detenu through James George who had informed the witness that cement on two other lorries had also been unloaded in the nearby Kakatiyanagar and stored in a room belonging to the Nageshwar Rao for similar misuse. On receiving this information the Police Inspector raided the plot in Kakatiyanagar mentioned by the witness and recovered 400 bags of levy cement. A criminal case under Clauses 12 and 13 of the A.P. Levy Cement Distribution (Licensing and Regulation) Order, 1982, read with Sections 7 and 8 ofthe Essential Commodities Act, 1955 was commenced, and further investigation proceeded.3. The investigation continued for three months till 18-3-1987. Smt. Mahati Singh and her father Y. Krishna Murthy were also examined by the police and they confirmed that the detenu Madhava Rao was looking after the construction of Smt. Mahati Singhs house. The evidence collected by the police indicated that 1000 bags of levy cement was handed over to the detenu through his employee Babu on 16-12-1986 and out of this stock 600 bags on three lorries were despatched to Habshiguda, which were discovered by the Inspector on the 18th of December, 1986. Both Madhava Rao and his servant James absconded and were ultimately arrested on 18-3-1987, when the detenu is alleged to have confessed before the Inspector of Police. The detenu was released on bail the following day, that is, 19-3-1987. All these facts were mentioned in the grounds and it was stated that on a consideration of the entire circumstances the District Magistrate was of the opinion that mere launching of the criminal case against the detenu would not effectively prevent him from acting in a manner prejudicial to the maintenance of supplies of cement. The order was later confirmed by the Advisory Board.4. The detenu filed his first representation on the 20th of May, 1987 which was rejected by the State Government as also the Advisory Board later. In the meantime a writ application being W.P. No. 6636 of 1987 was filed before the High Court on 1-6-1987 challenging the detention order. The Writ Petition in this Court was filed on 13-7-1987.5. A second representation on behalf of the detenu was filed by his cousin P. Lakshmana Rao on 5-6-1987, in which a prayer was made for revocation of the detention order. It has been contended on behalf of the petitioner that it was the duty of the Central Government to consider and dispose of this representation promptly which was not done. It is said that the representation remained unattended, until the State Government reminded the Central Government in this regard after filling of the present writ petition and it was only then that the Central Government rejected the same on 2-9-1987. The reply is that by this representation the detenus cousin merely reiterated the points already taken in the first representation of the detenu which had been after consideration dismissed, and it was, therefore, not necessary to deal with the same points over and over again. Besides, this representation also was considered and rejected by the Central Government later.

Reasoning:
It is true that it may not be a legally recorded confession which can be used as substantive evidence against the accused in the criminal case, but it cannot be completely brushed aside on that ground for the purpose of his preventive detention. The records further show that the oral evidence of the watchman and the labourer engaged in the house construction proved that it was the levy cement issued to the detenu which was being diverted at his instance. Before closing this chapter it may be restated that the sufficiency of the material available to the detaining authority is not to be examined by the Court.9. So far as the second representation filed by Madhava Raos cousin Lakshmana Rao is concerned, it has, in fact, been disposed of by the Central Government but about 3 months later after its filling. It was argued that Section 14 of the Act clothes the authority with the power of revoking the detention order, and such a power carries with it the duty to exercise it whenever and as soon as changed or new factors call for the exercise of that power. Reliance was placed on the observations of this Court at page 786 in Haradhan Saha and Another v. The State of West Bengal and Others - 1975 (1) SCR 778  and those in paragraph 9 of the Judgment in Sat Pal v. The State of Punjab - 1982 (1) SCC 12. It is true that such a power coupled with the duty exists but the duty to exercise it arises only where new and relevant facts and circumstances come to light. This was not so here, and as observed in para 13 of the Judgment in State Of Uttar Pradesh v. Zavad Zama Khan - 1984 (3) SCC 505 , there is no right in favour of the detenu to get his successive representations based on the same grounds rejected earlier to be formally disposed of again. In any event no period of limitation is fixed for disposal of an application under Section 14 and as we have seen earlier the second representation filed by Lakshamana Rao indeed, was considered and rejected.The High Court has rightly repelled a similar argument, pointing out that in the application for anticipatory bail of Smt. Mahati Singh it was categorically stated that the vigilance police had gone to the residence of her father and thoroughly interrogated her and her father. Krishna Murthy also made a similar statement in his application for anticipatory bail. It will, therefore, be idle to suggest otherwise merely for the reason that the Criminal Court did not choose in its order to mention these facts. Besides, it has along been established that the subjective satisfaction of the detaining authority as regards the factual existence of the condition on which the order of detention can be made, namely the grounds of detention constitute the foundation for the exercise of the power of detention and the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. Nor can the Court, on a review of the grounds, substitute its own opinion for that of the authority. In the instant case the ground of detention is only one, viz. the detenu was acting prejudicial to the maintenance of supplies of commodity, that is, levy cement, essential to the community by diverting it to the open market. The grounds of detention served along with the order are nothing but a narration of facts. The question whether the detenu was acting in a manner prejudicial to the maintenance of supplies essential to the life of the community is a matter of inference to be drawn from facts. The learned Advocate General was fair enough to accept before us that the applications for grant of anticipatory bail moved before the Criminal Court were not placed before the detaining authority. Even so, it could not be said that there was no material upon which the subjective satisfaction of the detaining authority could be based. It appears from the grounds, i.e., the facts set out that the detenu had made a statement admitting that he had diverted 600 bags of levy cement issued to him for use in the masonry ballast wall along the railway track and therefore the District Magistrate was justified in coming to the conclusion that he (the detenu) was acting in a manner prejudicial to the maintenance of supplies of the commodity essential to the community. The three decisions in Asha Devi v. K. Shiveraj, Additional Chief Secretary to the Government of Gujarat and Another - (1979) 2 SCR 215 , Mohd. Shakeel Wahid Ahmed v. State of Maharashtra and Others - (1983) 2 SCR 614  and Kurjibhai Dhanjibhai Patel v. State of Gujarat - (1985) 1 Scale 964 were cases where there was failure on the part of the sponsoring authority in not furnishing the relevant material to the detaining authority which was a vitiating factor. This Court had occasion to deal with them in Pushpadevi M. Jatia v. M. L. Wadhawan, Additional Secretary, Government of India and Others - (1987) 3 SCC 367 = 1987 (30) ELT 13 (S.C.), in para 12 of the its judgment. These decisions proceed on the well settled principle that if material and vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed, it would vitiate the subjective satisfaction rendering the detention order illegal. That is not so in the present case. There was ample material before the District Magistrate for him to base. His subjective satisfaction as to the necessary for passing impugned order, as stated by him in hisrepeatedly asked learned counsel for the petitioner to show any material indicating that the detenu was present on any date before the Criminal Court or was available to the police but it was conceded that there was no such document. In the second application for anticipatory bail reliance was placed on a medical certificate issued by a doctor. The diary indicates that the police inquired from the doctor on the 3rd of March, 1987 about the same pointing out that the accused was an absconder. There was, therefore, no doubt at all that in the police records the detenu was considered to be an absconder throughout till his arrest on the 18th of March, 1987. The affidavit of the District Magistrate filed before the High Court indicates that the further investigation in the case continued even after the arrest of Madhava Rao and the details of the ownership of the house in construction and the neighbouring shed and other similar relevant information could be collected only later and thus the investigation was complete onThe matter was placed before the District Magistrate onand he passed the impugned order on the following day, that is,A.I.R. 1974 SC 957 wherein the orders of detention were passed five months later. The first point urged on behalf of the petitioner, therefore, iscourse, a detention order not supported by any evidence may have to be quashed, but that is not the position here. There was clearly sufficient material before the District Magistrate to justify the forming of his opinion as stated earlier. The question was not raised in the writ petition filed before the High Court, and the plea based upon the brand of cement was belatedly taken in the case and has been dealt with at some length in the judgment of the High Court which is under challenge in the Special Leave Petition. We do not consider it necessary to repeat them but we would mention briefly the argument of the learned Advocate General which appears to be well founded. Our attention was drawn to the Gatepass (page 154 of the paperbook of the writ petition) showing the issuance of the levy cement "to the contractor", that is, Madhava Rao, which was signed by Mohammad Chand on behalf of the Railways and Babu, Madhava Raos employee. This does to mention the name of Eashwar Rao, the other employee of the contractor. It is not denied on behalf of the detenu that he has been executing many contract works for the Railways, and therefore it cannot be presumed that the same consignment was the subject matter of the Gatepass as well as the certificate relied upon on behalf of the petitioner. The point now urged on the basis of the brand of cement was taken on behalf of the petitioner belatedly as mentioned earlier. Besides, the detenu accepted the allegations against himself in his statement recorded under Section 161 of theCode of Criminal Procedure.It is true that it may not be a legally recorded confession which can be used as substantive evidence against the accused in the criminal case, but it cannot be completely brushed aside on that ground for the purpose of his preventive detention. The records further show that the oral evidence of the watchman and the labourer engaged in the house construction proved that it was the levy cement issued to the detenu which was being diverted at his instance. Before closing this chapter it may be restated that the sufficiency of the material available to the detaining authority is not to be examined by the Court.