Case: Lawrence Joachim Joseph D Vs. The State Of Bombay

These proceedings relate to the validity of an order of detention passed by the Government of Bombay on 8-6-1955, 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 ofappears 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 9-6-1955, and is in detention since then under the impugned order, which runs as followsP.D.A. 1555 A.Political and Services Department,Secretariat,Bombay, 8th June, 1955ORDERWhereas the Government of Bombay is satisfied with respect to the person known as Shri Lawrence Joachim Joseph De-Souza 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 (i) of clause (a) of Sub-s. (1) of S. 3 of the Preventive Detention Act. 1950 (Act 4 of 1950). The Government of Bombay is pleased to direct that Shri Lawrence Joachim Jospeth DeSouza of Bombay, be detained.By order and in the nameof the Governor of Bombay,Under Secretary to theGovernment of Bombay,Political andpursuance of S. 7 ofthe Preventive Detention Act, 1950 (Act 4 of 1950) (hereinafter referred to as the Act) the grounds of detention, also dated 8-6-1955, were served on him along with the order of detention. The validity of the order is challenged on the following contentions.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, powers, failed to apply its minds to the existence or otherwise of the legitimate objects of detention.3. The grounds of detention are vague.The claim of State that no particulars of the grounds could be furnished in pubic interest is unsustainable and in any case mala fide.The last two have been urged before us not only as independent points as reinforcing the first two.2. 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 arguments raises, what ultimately are questions of facts 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 followsThere was a sudden search by the police on 24-8-1954, at the appellants 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 appellants allegations relating to seizure of papers, etc. The state itself could not support the said high-handedness. As a result, the High Court directed on 3-11-1954, the return forthwith of all the papers and articles seized. Notwithstanding that order, the materials so illegally seized were returned only on or about 21-1-1955.(2) When one Joaquim Carlos, a Portuguese solider 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 person, 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.

Reasoning:
We have been taken through all the material relating to the above allegation 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 of the detaining authority is without any basis, in view of the affidavit of the Chief Secretary.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 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 tofact that he had 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 the fact that what is alleged is espionage activity at a 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 beit follows that both the obligation to furnished 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 non-disclosure, by the Under-Secretary himself and that too at the time of filing theare unable to imply any such obligation under Article 22(5) and (6). The necessity for such a communication would arise only if the detenu, 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 detenu, 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 thesethe appellant had 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 affidavit in answer to para 15 (g) of the appellants petition both of which have been already set out above.