# MosebKaka Chowd/lry alias Moseb Chowdhry and another v. The State of West Bengat

- **Citation:** [1956] 1 S.C.R. 382
- **Court:** Supreme Court of India
- **Decided:** 1955-08-09
- **Case number:** Criminal Appeal No. 126 of 1955
- **Bench:** S. R. Das, Jagannadhadas, Venkatarama Ayyar, B. P. Sinha, Jafer Imam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mosebkaka-chowd-lry-alias-moseb-chowdhry-and-another-v-the-state-of-west-bengat-1316
- **Pages:** 12

## Headnote

Preventive Detention-Espionage activity-GrO'Unds whether
vague-Vagueness due to non-disclosure of facts in public interest--
Whether vitiates order-Claim of privileg.-When slumld be oommunicated-Mala fides.
Appellant was detained under s. S(l)(a)(i) of the Preventive
Detention Act, Act IV of 1950 on the gronnds that with the financial help given by the Portuguese anthorities 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 ma.king suoh 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 pa.rticular 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
~n 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-
S.C.R.
SUPREME COURT REPORTS
383
culars. In the absence of any such request by the detenue, the noncommunication of the decision cannot be held 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.

## Text

1956
MosebKaka
Chowd/lry alias
Moseb Chowdhry
and another
v.
The State of
West Bengat
J agannadhada$ J.
1956
April 24
382
SUPREME COURT REPORTS
[1956]
necessitate a retrial, is one that ought to be put forward at the earliest stage and at any rate at the time
of the regular appeal in the High Court. This cannot
be entertained for the first time in an appeal on special leave.
For all the above reasons this appeal is dismissed.
LA WREN CE JOACHIM JOSEPH D'SOUZA
v.
THE STATE OF BOMBAY.
[S. R. DAS, C.J., JAGANNADHADAS, VENKATARAMA
AYYAR, B. P. SINHA and JAFER IMAM JJ.]
Preventive Detention-Espionage activity-GrO'Unds whether
vague-Vagueness due to non-disclosure of facts in public interest--
Whether vitiates order-Claim of privileg.-When slumld be oommunicated-Mala fides.
Appellant was detained under s. S(l)(a)(i) of the Preventive
Detention Act, Act IV of 1950 on the gronnds that with the financial help given by the Portuguese anthorities 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 ma.king suoh 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 pa.rticular 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
~n 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-
S.C.R.
SUPREME COURT REPORTS
383
culars. In the absence of any such request by the detenue, the noncommunication of the decision cannot be held 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.
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. 0. Setalvad, Attorney-General for India, B. Sen
and R. H. Dhebar, for the respondent.
1956. April 2,4.
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:
1956
Lawrence Joachim
Joseph D"Souza
v.
The State of
Bombay
1956
Lawrtnce Joachim
josejJ!i D'Soiuta
v.
The State of
Bombay
J agannadhadas J,
384
SUPREME COURT REPORTS
[1956]
"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:-
N ow, 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 Bomby 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 191!0) (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.
S.C.R.
SUPREME COURT REPORTS
385
4.
The claim of State that no particulars of the
795G
grounds could be furnished in public interest is unLau~·e11ce Joachim
sustainable and in any case mala fide.
Joseph D'So11za
The last two have been urged before us not only as
v.
independent points but as reinforcing the first t\vo.
Tlte State 01
The challenge to the validity of the order based on
Bombay
the attack of mala fides and non-application of the Jagan11adhadasJ.
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:
(l)(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 l\fahim 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 J oaquim Carlos, a Portuguese soldier
386
SUPREME COURT REPORTS
[1956)
1956
attached to Goan forces, was arrested on a charge
LawrcncoJoachim ofentering Indian territory without the requisite
Joseph o·s0,..a authority, the appellant rendered professional assist-
•·
ance to him and obtained an order of release on bail
The State of
from the Chief Presidency Magistrate, Bombay, which
Bombay
was foiled by the police by removing him away to
J
di d
J Sawantwadi before the requisite sureties could be
aganna ia as •
,
obtamed at Bombay, The trial was hu_!:ried 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 affectlld 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 UnderSecretary 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
' •
S.C.R.
SUPREME COURT REPORTS
387
l,
order for the purpose of suppressing the freedom of
7956
the appellant, to ventilate his point of view on the
. -
.
G
1. .
d
k
"
.
ll
h
LawrenceJoachm1
oan po it1cs an to ~a e up pro1ess10na y t e cause
Joseph D'Souza
of persons in the position of Carlos.
We have been
"·
taken through all the material relating to the above
The State of
allegations and have given our consideration to the
Bo,.iliay
same. It is enough to say that we are unable 1to see
-·
f
d.
.
'th th
l .
f th
JagamurdiladasJ.
any reason or isagreemg w1
· e cone us10n o
e
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 bas 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 at;? tht>
non-application of mind, on the part of the detaining
authority, viz. the Government, which for. this pur- .
pose must be taken to be different from the police.
It is also clear that the allegation of non-appliC'ation
of mind by the detaining authority is without uny
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 (i) of clause (a) of subsection (I) 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-
1956
388
SUPREME COURT REPORTS
[1956)
guese authorities.
These activities which are being
carried on by you with the object of causing further
f_,a;:vrc11cc Joachi11t
JoS<·Ph v•so""''
deterioration in the relations between the Portuguese
v.
Government and the Indian Government over the
Tim State of
question of Goan National Movement, are prejudicial
Bombay
to the security of India and to the relations of India
-
with Portugal.
Jag"1uu1dhadasJ.
If
. b
k
.
.
2.
you w1s to ma e a representation agamst
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
Bo<ird and that you should communicate to Govern-
, .
ment of Bombay as soon as possible your intention
of exercising or not exercising that right".
The objection by the appellant. relating to this is conta,iued 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 a,lleged to have been carried on by
the petitioner are given, viz. the particulars such as
the lengt.h 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 qf 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 n!imes of the persons aiding the said petitioner.
It is not in public interest· to disclose these details;
nor is it necE>ssary to mention these matters to afford.
•.\
' ·-
S.C.R.
SUPREME COURT REPORTS
389
1956
the petitioner reasonable opportunity to make a
representation".
d
Lau:rence Joachini
Now the question as to whether the grounds furnishe
Joseph D'Souza
are vague or not, is ultimately a question that has to
v.
be determined on a consideration of the circumstances
The State of
of each case, as was pointed out by this court in the
Bombay
State of Bombay v. Atma Ram Sridhar Vaidya(1) in the J
-
J: 11
·
agannadl111das J.
10 owmg 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 enal:ile the detained person to
make a representation against the order of detention
it cannot be called vague".
In the present ca&e, 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 ap·
pellant, 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
SUPREME COURT REPORTS
[1956]
1956
to notice that the appellant himself does not appear
to ha.ve felt that the grounds furnished were so vague
Lrnvrcucc Joachitn
h
Joseph D'Souza as to am per him in his right to make a representav.
tion under article 22(5) and section 7 of the Act. It
The state of
does not appear that he applied to the Government
B"mbay
to be supplied with particulars of the grounds fur-
--_nished to him.
Such a right to call for particulars
-
J,,ga111wuhadas J. h
b
· <l ·
h
·
7 S
,f B
b
as een recogmse rn t e case rn t1w tate oJ
om ay
v. Atma Ram Sridhar Vaidya(') 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 repre-
-•
sentation, the detenue ............ if he likes, may ask for
particulars which would enable him to make the representation".
The fact 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
Govern men ts 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 su.stained 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(') 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) [19s1J s.c.R. 167, 1s4.
•
S.C.R.
SUPREME COURT REPORTS
3!)1
which implies, the right to be furnished adequate
1956
particulars of the grounds of detention, to enable a Lawrence Joachim
proper representation being made.
Joseph D'Sotiza
These rights involve corresponding obligations on the
v.
part of the detaining authority. It follows that the
The State of
authority is under a constitutional obligation to
Bombay
..
furnish reasonably definite grounds, as well as ade- JagannadlwdasJ.
quate 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
SUPREME COURT REPORTS
[1956]
1956
clusion is incorrect. But what has been urged before
L
-
1
. us is that the decision not to disclose the facts as
awrence oachin'
.
.
Joseph o•souza well as the ambit of the non-disclosure must be
v.
clearly communicated to the detenue at the time
The State of
when the grounds are furnished. It is urged that if
Bombay
the detenue is furnished information, at least to that
-
extent, it will enable him to present to the Advisory
]agannadhadas ]. B
d h• d•ffi It'
·
k'
t
oar
is
1 cu Jes m ma mg a proper represen a-
---
tion 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 ifthe 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 noncommunication 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 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'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 consti tutiona 1
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
S.C.R.
SUPREME COURT REPORTS
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
appealis dismissed.
CH. TIKA RAMJI & OTHERS, ETC.
v.
THE STATE OF UTTAR PRADESH & OTHERS.
(S. R. DAS, C.J., BHAGWATI, VENKATARAMA AYYAR,
B. P. SINHA and JAFER IMAM JJ.]
Sugarcane, Regulation of Supply and Purchase of-Act passed
by State Legislature and notifications issued thereunder by the State
Government-Constitutional validity-If repugnant to Parliamentary
Acts and notifications made thereunder-If violative of fundamental
rights-Parliament's power of repeal-Delegation of siich power, if
permissible-U.P. Sugarcane (Regitlation of Supply and Pitrchase)
Act, 1958 (U.P. Act XXIV of 1958), ss. 15, 16-U.P. Sugarcane
Regulation of Supply and Purchase Order, 1954-Industries (Development and Regulation) Act, 1951 (Act LXV of 1951) as amended by
Act XXVI of 1958, ss. 18-G, 15, 16-Essentfo.l Commodities Act,
1955 (Act X of 1955), s. 16(1)(b)-Sugarcane Control Order, 1956,
cl. '1(1)-Constitution of India, Arts. 14, 19(1)(c), (J) and (g), 81,
801, 804, 254.
The petitioners challenged the constitutional validity of the
U.P. Sugarcane (Regulation of Supply and Purchase) Act of 1953,
and two notifications issued by the State Government on September
27, 1954 and November 9, 1955, the former under sub-sec. l(a) read
with sub-sec. 2(h) of s. 16 of the impugned Act providing that where
not less than three-fourths of the canegrowers ·within the area of
operation of a Canegrowers' Co-operative Society were members
thereof, the occupier of the factory to which that area is assigned
should not purchase or enter into an agreement to purchase cane
except through that society and the latter under s. 15 of the Act
assigning to different sugarcane factories specified cane-purchasing
centres for supply to them of sugarcane for the crushing season of
1955-56. They contended that the impugned Act was itltra vires the
1956
Lau·re11ce Joac/1im
Joseph D'So11za
v.
Tile State of
Bombay
]agannadliadas J.
1956
April 24