Full Judgment Text
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PETITIONER:
UJAGAR SINGH
Vs.
RESPONDENT:
THE STATE OF THE PUNJABandJAGJIT SINGHv.THE STATE OF THE PUN
DATE OF JUDGMENT:
23/02/1951
BENCH:
AIYAR, N. CHANDRASEKHARA
BENCH:
AIYAR, N. CHANDRASEKHARA
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
CITATION:
1952 AIR 350 1952 SCR 756
CITATOR INFO :
RF 1957 SC 281 (6)
RF 1964 SC 334 (9)
D 1967 SC1797 (7)
RF 1968 SC 327 (5)
R 1972 SC2431 (5)
R 1972 SC2481 (6)
F 1973 SC 844 (2)
RF 1973 SC 897 (6)
E&R 1974 SC1214 (7)
F 1982 SC1539 (5)
R 1982 SC1543 (11)
RF 1990 SC 231 (9)
F 1990 SC1086 (13)
ACT:
Preventive Detention Act (IV of 1950), ss. 3, 12--Deten-
tion order--Non-specification of period of detention--Ground
supplied vague and same as in earlier order--Particulars
supplied after 4 months--Legality of detention--Duty to
supply particulars’as soon as may be --Form of detention
order---Order signed by Home Secretary--Validity.
HEADNOTE:
Non-specification of any definite period in a detention
order made under s. 3 of the Preventive Detention Act, IV of
1950, is not a material omission rendering the order invalid
in view of the provisions contained in clauses (4) (a) and
(7) (a) of Art. 22 the Constitution and s. 12 of the Act.
An order of detention which expressly states that the
Government of the State concerned was satisfied of the
necessity of
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making such an order and that it was made by the order of
the Governor is not defective merely because it is signed by
Home Secretary.
Communication of the grounds of the order need not be
made directly by the authority making the order but may be
made through recognized channels prescribed by the adminis-
trative rules of business.
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The past conduct or antecedent history of a person can
be taken into account in making a detention order, and as a
matter of fact, it is largely from prior events showing
tendencies or inclinations of a man that an inference could
be drawn whether he is likely even in the future to act in a
manner prejudicial to the maintenance of public order. If
the authority making an order is satisfied that the ground
on which the detenue was detained on a former occasion is
still available and that there was need for detention on its
basis no mala fides can be attributed to the authority from
the fact that the ground alleged for the second detention is
the same as that of the first detention.
Whether grounds have been communicated "as soon as may
be" must depend on the facts of each case. No arbitrary time
limit can be laid down.
The recent rulings of the Supreme Court establish (a)
that mere vagueness of grounds standing by itself and with-
out leading to an inference of mala fides or lack of good
faith is not a justiciable issue in a court of law for the
necessity of making the order, inasmuch as the ground or
grounds on which the order of detention was made is a matter
for the subjective satisfaction of the Government or of the
detaining authority; (b) that there is nothing in the Act to
prevent particulars of the grounds being furnished to the
detenu within a reasonable time so that he may have the
earliest opportunity of making a representation against the
detention order--what is reasonable time being dependent on
the facts of each case; (c) that failure to furnish grounds
with the speedy addition of such particulars as would enable
the detenu to make a representation at the earliest opportu-
nity against the detention order can be considered by a
court of law as an invasion of a fundamental right or safe-
guard guaranteed by the Constitution, viz. being given the
earliest opportunity to make a representation; and (d) that
no new grounds could be supplied to strengthen or fortify
the original order of detention.
Where the petitioners against whom detention orders
were made were given only vague grounds and there was inex-
cusable delay of nearly 4 months in acquainting them of the
particulars, held that their detention was illegal and they
should be released.
JUDGMENT:
ORIGINAL JURISDICTION:-Petitions Nos. 149 and
167 of 1950.
758
Application under Art. 32 of the Constitution for a
writ in the nature of habeas corpus I
Bawa Shiv Charan Singh for the petitioner in petition
No. 149.
N.s. Bindra for the petitioner in Petition No. 167.
B.K. Khanna, Advocate-General of the Punjab, for the
respondent in both the petitions.
M.C. Setalvad, Attorney-General for India, for the Union
of India (Intervener in Petition No. 149).
1951. February 23. The Judgment of the Court was
delivered by
CHANDRASEKHARA AIYAR J. --The earlier of the two petitions
has been filed by one Ujagar Singh, under article 32 of the
Constitution of India, for a writ of habeas corpus and for
an order of release from detention. The latter petition is
a similar one by one Jagiit Singh. In both the petitions,
the respondent is the State of Punjab. The orders of deten-
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tion were made under the preventive Detention Act IV of
1950. The petitions are not connected with each other,
except that they raise the same grounds.
In petition No. 149 of 1950, Ujagar Singh was originally
arrested and detained under the East punjab Public Safety
Act on 29th September, 1948.He was released on 28th March,
1949, but on the same date, there was an internment order
against him. On 29th September, 1949, he was rearrested. On
2nd March, 1950, an order of detention under the Preventive
Detention Act, 1950, was served on him, and on 3rd April,
1950, he was served with the grounds of detention dated 11th
March, 1950. Both in September, 1949, and in March, 1950,
the ground alleged was ’ ’You tried to create public disor-
der amongst tenants in Una Tehsil by circulating and dis-
tributing objectionable literature issued by underground
communists." Additional grounds were furnished in July 1950.
In petition No. 167 of 1950, Jagjit Singh was arrested
on 24th July, 1948. under the provisions of the
759
Punjab Safety Act, 1947. After the East Punjab Public Safety
Act, 1949, came into force, a fresh detention order dated
14th May, 1949, was served on him and he continued to be
kept in jail. Grounds of detention were given to him on 7th
September, 1949. A fresh order of detention under the Pre-
ventive Detention Act (IV of 1950) dated 2nd March, 1950,
was served on 7th March, 1950. Grounds of detention dated
11th March, 1950, were served on him on 3rd April, 1950.
Both in September 1949 and April 1950, the same ground was
given, i.e., "In pursuance of the policy of the Communist
Party, you were engaged in preparing the masses for violent
revolutionary campaign and attended secret party meetings to
give effect to this programme." Additional or supplementary
grounds were served on 5th August, 1950.
Several contentions were advanced on behalf of the
petitioners challenging the legality of their detention and
urging that as the detention was unlawful and the petition-
ers’ fundamental right of personal liberty had been in-
fringed, they should be set at liberty. The points taken on
their behalf can be briefly summarised as follows_ As the
ground of detention now mentioned was the same as the ground
specified in 1948 or 1949, i.e., months earlier under the
Provincial Acts, the order of detention was made mechanical-
ly and was really mala fide in the sense that there is
nothing to show that were was any fresh satisfaction on the
part of the detaining authority that detention was necessary
in the interests of public order. Secondly, the grounds were
not given "as soon as may be", which is required under
section 7 of the Act; and as an unusually long period of
time elapsed between the order of detention and the giving
of the grounds, the detention must be held to be unlawful
after the lapse of a reasonable time. Thirdly, the grounds
given originally were so vague that they could not be said
to be grounds at all such as would enable the detenu to make
any representation against the order. Fourthly, supplemen-
tary grounds could not be furnished and should not be taken
into account in considering whether the
760
original order was lawful, or whether the detention became
unlawful after a particular period of time. Two other points
of a subsidiary nature were also raised, namely that the
order was bad as the period of detention was not specified
therein as appears to be required by section 12 and that the
grounds given did not purport to state that the authority
making the order was the Governor of the State.
There is no substance in the last two points. Section
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12 of the Act does not require that the period of detention
should be specified in the order itself where the detention
is with a view to preventing any person from acting in any
manner prejudicial to the maintenance of public order. The
section itself provides that he can be detained without
obtaining the opinion of an Advisory Board for a period
longer than three months but not exceeding one year from the
date of detention. Normally, the detention period shall not
exceed three months, unless an Advisory Board reports
before the expiration of the said period that there is in
its opinion sufficient cause for such detention. See arti-
cle 22, clause (4), sub-clause (a) of the Constitution.
Under sub-clause (7) (a) of the same article, Parliament may
by law prescrib, the circumstances under which, and the
class or classes of cases in which, a person may be detained
for a period longer than three months under any law provid-
ing for preventive detention without obtaining the opinion
of an Advisory Board in accordance with the provisions of
sub-clause (a) of clause (4)." Therefore, detention for
more than three months can be justified either on the ground
of an opinion of the Advisory Board sanctioning or warrant-
ing longer detention or on the ground that the detention is
to secure the due maintenance of public order, in which case
it cannot exceed one year in any event, as stated. in sec-
tion 12 of the Preventive Detention Act. It is thus clear
that the period is not to exceed three months generally, but
may go up to one year in certain special cases. In view of
these provisions, the non-specification of any definite
period
761
in the detention order is not a material omission rendering
the order itself invalid.
Under section 3 of the Preventive Detention Act, the
authority to make the order is the State Government. Sec-
tion 166 (1) of the Constitution provides that all executive
action of the Government of a State, shall be expressed to
be taken in the name of the Governor. The orders of deten-
tion expressly state that the Governor of Punjab was satis-
fied of their necessity and that they were made by his
order. The orders are signed no doubt by the Home Secre-
tary, but this is no defect. The communication of the
grounds need not be made directly by the authority making
the order. Section 7 does not require this. The communica-
tion may be through recognized channels prescribed by the
administrative rules of business.
Let us now turn our attention to the main contentions.
There is nothing strange or surprising in the fact that the
same grounds have been repeated after the lapse of several
months in both the cases, when it is remembered that the
petitioners were under detention and in jail during the
whole of the intervening period. No fresh activities could
be attributed to them. There could only be a repetition of
the original ground or grounds, whether good or bad. It
does not follow from this that the satisfaction of the
detaining authority was purely mechanical and that the mind
did not go with the pen. The past conduct or antecedent
history of a person can be taken into account when making a
detention order, and, as a matter of fact, it is largely
from prior events showing the tendencies or inclinations of
the man that an inference could be drawn whether he is
likely even in the future to act in a manner prejudicial to
the maintenance of public order. If the authority satisfied
himself that the original ground was still available and
that there was need for detention on its basis, no mala
fides can be attributed to the authority from this fact
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alone.
The Act does not fix the time within which the grounds
should be furnished to the person detained.
762
It merely states that the communication must be "as soon as
may be". This means reasonable despatch and what is reasona-
ble must depend on the facts of each case. No arbitrary
time limit can be set down. The delays in the communication
of the grounds in the two petitions have been adequately
explained by the Home Secretary who says in this affidavits
that grounds had to be supplied to nearly 250 detenus and
that the printing of the necessary forms occupied some time.
According to him, he made an order even on 11-3-1950 for the
supply of the grounds.
The extreme vagueness of the grounds is alone left as
the chief line of attack. As stated already, the original
ground communicated in Petition No. 149 of 1950 is "to
create public disorder amongst tenants in the Tehsil by
circulating and distributing objectionable literature issued
by underground communists." In the other petition, the
ground is "In pursuance of the policy of the Communist Party
you were engaged in preparing the masses for violent revolu-
tionary campaign and attended secret party meetings to give
effect to this programme." We shall leave aside for the
moment the supplementary grounds furnished later.
There can be little doubt that in both the cases the
grounds furnished in the first instance were highly vague.
If we had only Iswar Das’s case to go by, Petition No. 30 of
1950, such vagueness by itself would constitute a justifica-
tion for release of the petitioners. Since the date of that
decision, however. this Court had to consider the question
at great length in two cases from Bombay and Calcutta re-
spectively--Cases Nos. 22 and 24 of 1950--where the subject
of the meaning and scope of section 7 of the Preventive
Detention Act and article 22, sub-clauses (5) and (6)of the
Constitution of India. came up for elaborate consideration.
The said cases were decided on 25th January, 1951, and we
are now governed by the principles laid down in these judg-
ments. It was held by a majority of the Judges in Case No.
22 of 1950
(1) State of Bombay v. Atmaram Sridhar Vaidya [1951] S.C.R.
167.
763
(a) that mere vagueness of grounds standing by itself and
without leading to an inference of mala fides or lack of
good faith is not a justiciable issue in a court of law for
the necessity of making’ the order, inasmuch as the ground
or grounds on which the order of detention was made is a
matter for the subjective satisfaction of the Government or
of the detaining authority; (b) that there is nothing in the
Act to prevent particulars of the grounds being furnished to
the detenu within a reasonable time, so that he may have the
earliest opportunity of making a representation against the
detention order--what is reasonable time being dependent
on the facts of each case; (c) that failure to furnish
grounds with the speedy addition of such particulars as
would enable the detenu to make a representation at the
earliest opportunity against the detention order can be
considered by a court of law as an. invasion of a fundamen-
tal right or safeguard guaranteed by the Constitution, viz.,
being given the earliest opportunity to make a representa-
tion;and (d) that no new grounds could be supplied to
strengthen or fortify the original order of detention.
We are not concerned so much with the earlier history of
the detenus as with what happened to them under the Preven-
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tive Detention Act, 1950. OverloOking the fact that the
ground mentioned In March 1950 was the same as that given in
September 1949, and condoning the vagueness in the original
ground furnished in both the cases to support the making Of
the order, it is impossible to justify the delay of nearly
four months in furnishing what have been called additional
or supplementary grounds,
Let us take up Petition No. 149 first. In the grounds
furnished in July 1950, there are several which do not
apparently relate to the original ground. "You were respon-
sible for hartal by labourers working on Bhalera Dam in
October 1947".... "You instigated labourers working in
Nangal in 1948 to go on strike to secure the acceptance of
their demands" "After release you absconded yourself from
your village and
99
764
remained untraced for a considerable period" .... "When
you were re-arrested on 29-9-1949, lot of objectionable
communist literature was recovered from your personal
search"--are instances of new grounds, and they have to be
eliminated therefore from consideration. In Jagjit Singh’s
petition No. 167 of 1950, the supplemental grounds, which
are as many as ten in number, are dated 31-7-1950, but they
were served on him on 5-8-1950, that is two days after he
had prepared his petition to this court under article 32 of
the Constitution. The grounds may be taken as particulars
of the general allegation made against him on 3-4-1950
when the original grounds of detention were served. But
the time factor to enable him to make a representation at
the earliest opportunity was not borne in mind or adhered
to. In the affidavit of Shri Vishan Bhagwan, Home Secretary
to the Punjab Government, dated 6th September, 1950, no
explanation has been offered for this abnormal delay in the
specification of the particulars. This delay is very unfor-
tunate indeed. But for its occurrence the petitioner would
not have been able to urge that one of the valuable rights
guaranteed to him by the Constitution has been violated.
It is not alleged b.y the Home Secretary that the detenu
was furnished with these particulars when he was arrested
and detained under the Provincial Act and that consequently
it was considered unnecessary to give him the same particu-
lars once over. On the other hand, the detenu’s complaint
has throughout been that he was given no particulars at all
till the 5th August, 1950.
As the petitioners were given only vague grounds which
were not particularised or made specific so as to afford
them the earliest opportunity of making representations
against their detention orders, and their having been inex-
cusable delay in acquainting them with particulars of what
was alleged. the petitioners have to be released, the rules
being made absolute. Ordered accordingly.
765
PATANJALI SASTRI J.--I concur in the order proposed by
my learned brother Chandrasekhara Aiyar J.
DAS J.--In view of the majority decision in Case No. 22
of 1950 (The State of Bombay v. Atma Ram Sridhar Acharya), I
concur in the order proposed by my learned brother.
Order accordingly.
Petition No. 194 of 1950
Agent for the petitioner: R.R. Biswas.
Agent for the respondent: P.A. Mehta.
Agent for the intervener: P.A. Mehta.
Petition No. 167 of 1950
Agent for the petition: R.S. Narula.
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Agent for the respondent: P.A. Mehla.