C.S Pd. Singh v. State Of Bihar

C.P Sinha, J.:— This application was made by the petitioner on the 27th February, 1950, under section 491 of the Code of Criminal Procedure and Article 226 of the Constitution of India. At that time the petitioner was being detained under the Bihar Ordinance no. II of 1950, the detention order under that. Ordinance having been served, on him on the 17th February, 1950. It appears, however, that after the Preventive Detention Act, 1950 (Act IV of 1950) came into force, an order of detention was passed against the petitioner on the 27th February, 1950. This order was served upon him on the 28th February, 1950 and the grounds of detention were communicated to him on the 17th March, 1950. As this application was made before the present Act IV of 1950 came into force, no specific grounds relating to this Act were mentioned in the petition. Mr. B.C Ghose, appearing for the petitioner, has however, made submissions as if the application was made after the order of detention against the petitioner was passed, under the Preventive Detention Act of 1950, and no objection having been raised by the State, the Court has heard Mr. Ghose's arguments as if objection was taken to the detention of the petitioner under the present Act. Mr. Ghose has submitted that the petitioner has been in detention since 1st August, 1949, under one or other of the Bihar Acts or Ordinances.

The following points have been taken in support of the application:—

1. that the order of detention is illegal because it does not prescribe the period of detention;

2. that the grounds of detention communicated to the petitioner do not relate to public order;

3. that the date of detention must be counted from the date of detention under previous orders;

4. that the grounds of detention were not communicated to the petitioner as soon as possible; and

5. that all the grounds on which the order of detention has been made have not been communicated to him.

I would like to consider the points in the order in which they have been, mentioned. To understand the argument, it is necessary to mention some, of the relevant provisions of the Preventive Detention Act (Act IV of 1950).

Section 3(1) The Central Government or the State Government may—

(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to…

(ii) the security of the State or the maintenance of public order … it is necessary so to do, make an order directing that such person be detained.

Section 7(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order…

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.

Section 12 sub-section (1) Any person detained in any of the following classes of cases or under any of the following circumstances may 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 his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to—

(b) the security of a State or the maintenance of public order;

(2) The case of every person detained, under a detention order, to which the provisions of sub-section (1) apply, shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government, or a State Government by such Government, and where the order was made by any officer specified is sub-section (2) of section 3, by the State Government to which such officer is subordinate, in consultation with a person who is, or has been, or is qualified to be appointed is a judge of a High Court nominated in that behalf by the Central Government or the State Government, as the case may be.

The words which I considered important have been italicised by me.

Now take up the arguments of Mr. Ghose. He says that the order of detention is had because no period of detention has been mentioned in the order. From the provisions of the sections which I have mentioned above—and there is no other section in the Act bearing on the point—it is apparent that the detaining authority is not required, under the Act, to mention the period for which the detaining authority intends the detenu to be detained. If there is no provision for mentioning the period, the detaining authority is not bound or obliged to mention the period. The learned Counsel has, however, relied upon an unreported judgment of the Allahabad High Court in M.M Bashir v. State delivered by Bhargava, J. in support of his contention. I have perused the judgment with care and attention and with great respect to the learned. Judge, I do not subscribe to his view or to the reason he has given for holding that the order of detention must contain; the period of detention. One reason which appears to have appealed to his Lordship is that, because in punitive detentions, that is to say, in punishments or some offences under the Criminal Law, a period is prescribed for the imprisonment of the accused, so also, he says, in a case of preventive detention the period must be mentioned. I think, the analogy is not correct. In the first place, in the case of punitive detentions, the Court which passes a sentence of imprisonment has to determine, with reference to the gravity of the offence proved, as to for how long a period the man should be put in prison. The facts, are before it and it is in a position to know exactly. What the offence is and, having regard to the nature of the Offence, it has to decide as to how long the accused should be imprisoned. This is not the case in regard to preventive detentions. By the very nature of it the detaining authority has to proceed, more, or less, upon suspicion based upon confidential reports against the person to be detained. He is not in a position to judge at the time he passes the order as to the exact nature of the act or acts which the person to be detained was going to commit or for how long it will be necessary to detain him. This will depend upon circumstances which may be obtaining in future. He only knows at the time that upon the reports which he has received if the man is allowed to remain at large, his so remaining at large will be prejudicial to public safety or public order. It is not, therefore, possible for the detaining authority, at the time of his making, the order, to exactly know the nature of the act the detenu was going to commit or the circumstances prevailing in future and, therefore, in my opinion, he is not in a position to fix any definite period for which the person has to be detained. Mr. Ghose, by way of analogy, has placed before us section 107 and Other sections occurring in Chapter VIII, Part V, of the Code of Criminal Procedure headed ‘Prevention of Offences’ and has argued that as under section 112 so also under the Preventive Detention Act (Act IV of 1950) the period for which the order is to remain in force has to be mentioned. The analogy does not hold good. It is sufficient to dispose of this part of the argument to say that the Court under section 112, Criminal Procedure Code, is required under law to mention the period and, therefore, it is a statutory obligation whereas there is no such obligation under the provisions of the Preventive Detention Act. In my view, therefore, no period of detention need be mentioned and the order of detention can not be held to be illegal because it mentions no period of detention.

The next point is that the grounds of detention in this case have no relation to the maintenance of public order and, therefore, the order of detention is bad. The learned Counsel for the petitioner has taken us to the various provisions of Article 19 of the Constitution of India and has tried to show, that the expressions ‘security of State’, ‘public order’, ‘public order or morality’, and ‘interest of the general public’ have distinct and different connotations. He has placed before us the grounds of detention passed against the petitioner to show that those grounds do not relate to the maintenance of public order, but that they relate to both ‘public safety’ and ‘public order’. In my view, this point is no longer at large because in the case of Nek Mohammad v. Province Of Bihar* it has been held that ‘public order’ must be taken in a comprehensive sense so as to include ‘public safety’ in its relation to the maintenance of public order and that ‘maintenance of public order undoubtedly involves consideration of public safety’. His Lordship Mr. Justice Das, who delivered the judgment of the Full Bench case, made the following observation:—

“In the context in which the expression ‘public safety’ occurs in the preamble and in section 2(1) of the Act, it is either synonymous with public order or is comprehended by the more general term ‘public order’.”

It may be noted that His Lordship was considering the validity of the Bihar Maintenance of Public Order Act (Act V of 1947), but that makes no difference to the meaning of the expression ‘public order’ as used in the present Act under consideration. I do not like to dilate upon this point any further and I hold that the word ‘public order’ has been used in a comprehensive sense.

After the hearing of this case was concluded, my attention was drawn to two more cases of the Supreme Court. In the case of Romesh Thappar v. State Of Madras the majority judgment has been given by Patanjali Shastri, J. This case involved the consideration of the validity of the Madras Maintenance of Public Order Act, 1949 (Act XXIII of 1949). His Lordship has made the following observation which is relevant to the point I have been considering:—

“Now ‘public order’ is an expression of wide connotation and signifies that state of tranquillity prevailing among the members of a political society as a result of the internal regulations enforced by the Government which they have instituted. Although section 9(1-A) [of the Madras Maintenance of Public Order Act, 1949] refers to ‘securing the public safety’ and the ‘maintenance of public order’ as distinct purposes, it must be taken that public safety is used as a part of the wider concept of public order.”

In the other case of Brij Bhushan v. State of Delhi the majority judgment was given by Patanjali Shastri, J. His Lordship relied mainly upon his judgment given in the other case, referred to above, but His Lordship Fazl Ali, J. gave a dissenting judgment. But so far as the expressions ‘public order’ and ‘public safety’ are concerned, His Lordship made the following observation, after having held that ‘public order’ and ‘public safety’ are allied matters:—

“In my opinion, the word ‘or’ (between ‘public safety’ and ‘maintenance of public order’) is used here not so much to separate two wholly different concepts as to show that they are closely allied concepts and can be used almost interchangeably in the context.”

These two decisions also, in my opinion, support the view which I have taken in regard to this point.

Now, looking to the grounds in the present case, I find that they relate to public order and in support of my view I need only quote an extract, from the grounds of detention served upon the petitioner:—

“The police recovered during his arrest a eyclostyled Hindi leaflet entitled ‘RAILWAY HARTAL AUR KISAN MORGHA KE SATHION KA KARTABYA’ dated the 5th March, 1940, containing incitement, to railway men, kisans and field labourers to hold demonstrations, to attack zamindars, Mahajans, profiteers, rich kisans, etc., to face the police and military paying them back in the same coin, uproot rails, etc.”

In my view the extract quoted above is closely connected with the maintenance of public order. Besides the above quotation, there are a number of other grounds given which, in my opinion, have reference to the maintenance of public order. I am satisfied, therefore, that the grounds served upon the petitioner relate to the maintenance of public order and as such the order is good and valid.

The third ground taken is that the period of previous detention under any other provision of law, should be counted for the purpose of section 12 of the Act which prescribes the maximum period of one year. The learned Counsel contends that if the, detenu has been in detention for more than a year before his detention under the present Act, his present detention would be illegal. In my view, the interpretation put upon section 12 by the learned Counsel for the petitioner is not borne out by the section itself. The section says that if a person has been detained with a view to preventing him from acting in any manner prejudicial to the security of a State or the maintenance of public order (I am omitting the other portions of the section), the man 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 his detention. The expression

‘from the date of his detention’

must refer to the detention under the Act under which the person is to be detained, that is to say, the Preventive Detention Act (Act IV of 1950). If Parliament has enacted that if a person should be detained without his case having been referred to an Advisory F Board for a period not exceeding one year from the date of his detention, it must have reference to the detention under the Preventive Detention Act and it, would be ridiculous to hold that this maximum period of one year could be made up by taking into consideration the previous detention under some previous enactments the argument is good, the result would be absolutely absurd; for example, if a man who has been detained for one year, say 20 years ago, he can not again be detained under the Preventive Detention Act, 1950, although there may be good reasons for his detention. That could never have been the intention of the Parliament and I must hold that the maximum period of one year mentioned in section 12 means one year from the date of detention of the person under the Preventive Detention Act, 1950.

Now I come to the fourth contention of Mr. Ghose. He says that the grounds of detention in this case have not been communicated to the petitioner in time, as required by section 7 of the Preventive Detention Act, 1950, or Article 22(5) of the Constitution. In this case the order of detention under the Preventive Detention Act as I have already said, was passed on the 27th February, 1950; it was served on the petitioner on the 28th February, 1950; and the grounds were communicated to him on the 17th March, 1950. Thus there has been a delay of only 18 days from the date of the order of detention. I consider that a delay of 18 days between the date of the order of detention and the actual service of the grounds of detention is not an unreasonable delay. In the case of Muratpatwa v. Province Of Bihar* had to consider the same expression “as soon as may be”, as we find in the present Preventive Detention Act, and they, held that it meant a reasonable time, although on the facts of that particular case, Their Lordships did hold that the delay between the date of order of detention and the service of the grounds was not reasonable, because as the facts of that case showed, the order of detention was passed on the 16th April, 1947; the man was arrested on the 9th May, 1947 and the grounds were served upon him on the 24th of July, 1947. Thus in that case there was delay of two months and a half and Their Lordships held that the authorities did not comply with the mandatory provision of the Bihar Act V of 1947, which Their Lordships were considering in that particular case. In the present case, however. I find that the delay was not unreasonable and that the petitioner was given the earliest opportunity, in the circumstances of this case, to make a representation against the order. In that view of the matter, I hold that there is no merit in this contention.

Having disposed of the first four points, I now come to the most important contention of the petitioner. The submission is that all the grounds on which the order of detention is made have not been communicated to the petitioner. Reliance is placed by the learned Counsel, in support of his submission, on the grounds themselves. Paragraph 4 of the grounds, which is a long paragraph, has the second sentence as follows:—

“The Provincial Government is of opinion that it would be against the public interest to disclose all the grounds of the order of detention passed against Sri Chandra Shekhar Prasad Singh.”

It is said that on their own admission the detaining authority has not given all the grounds of detention, as required by Article 22(5) of the Constitution of India, and section 7 of the Preventive Detention Act of 1950 (Act IV of 1950). Article 22(5) of the Constitution of India which occurs in Part III—“Fundamental Rights”—enjoins upon the authority making an order to communicate to the detained person the grounds on which the order has been made. section 7 of the Preventive Detention Act (Act IV of 1950) borrows exactly the language mentioned in Article 22(5) of the Constitution. This right to receive the grounds on which the order of detention has been made is one of the fundamental rights which has been guaranteed to the detained person under the Constitution and, therefore, it is not open to the executive authority to whittle down the said fundamental right. Article 22(6), however, gives liberty to the detaining authority not to disclose the facts which such authority considers to be against the public interest to disclose. Therefore, a blear distinction has been made between the grounds on which the order of detention has been made and the facts upon which the grounds may have been founded. It is not open to the executive authority to keep back some out of the grounds on which the order has been made. In the case of Lalit Kumar Barman v. State a Full Bench of this Court which considered the validity of the Preventive Detention Act (Act IV of 1950), Das, J. who was one of the Judges constituting the Full Bench and with whom Meredith, C.J concurred considered clauses (5) and (6) of Article 22 of the Constitution, and while considering these two clauses, his Lordship said:—

“A distinction is drawn between ‘grounds’ and ‘facts’. Clause (6) entitles the authority making the order to withhold disclosure of facts, but it does not authorise withholding disclosure of grounds on which the order has been made.”

The Supreme Court also, while considering the validity of the Preventive Detention Act (Act IV of 1950), in the case of A.K Gopalan v. State Of Madras. has also expressed the view similar to the view expressed by Das, J. in the Patna Full Bench case. Their Lordships of the Supreme Court have, by majority judgment, held that the Preventive Detention Act (Act IV of 1950), excepting section 14 of the Act, is a good and valid Act and within the competence of Parliament to enact. Their Lordships have given separate judgments, but so far as Articles 22(5) and 22(6) of the Constitution are concerned. There is no difference of opinion and they have held that the grounds on which the order of detention has been made can not be withheld from the detained person and they must be communicated to him and that so far as the facts are concerned, if the authority passing the order of detention was of the opinion that the disclosure of such facts would be against the public interest, then, the authority could very well withhold such facts. I would, therefore, content; myself by giving a quotation from the judgment of Kania, C.J Dealing with Articles 22(5) and 22(6) His Lordship says:—

“Article 22(5) prescribes that when, any person under a preventive detention law is detained, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. This clause is of general operation in respect of every detention order made under any law permitting detention. Article 22(6) permits the authority making the order to withhold disclosure of facts which such authority considers against the public interest to disclose. It may be noticed that this clause only permits the non-disclosure of facts, and reading clauses (5) and (6) together a distinction is drawn between facts and grounds of detention.”

It is, therefore, quite clear that the authority passing the order of detention can not withhold any of the grounds on which the order of detention has been made. In the case of Nek Mohammad the Full Bench, while considering the validity of the Bihar Maintenance of Public Order Act (Act V of 1947), on the construction of section 4 of the Act, observed as follows:—

“It is clear that under the section the authority passing the order of detention shall communicate the grounds and I emphasise the word ‘shall’; but it need not disclose facts which it considers it would, be against the public interest to disclose. A question has been raised, before us if ‘facts’ and ‘grounds’, mean the same thing. There are some decisions in which it has been held that ‘grounds’ mean the conclusions or reasons based on ‘facts’. Whether such a distinction can be made or not it seems to me that under section 4 of the Bihar Act the facts may be so intertwined with the grounds that the Provincial Government made in a position to say that the grounds can not be disclosed without disclosing the facts.”

The learned Counsel has cited before us the case of Inder Prakash v. Emperor in support of the contention that all the grounds must be disclosed. If appears that some of the Allahabad cases were also placed before the Full Bench in Nek Mohammad v. Province Of Bihar* and the Full Bench in regard to the Allahabad cases had observed as follows:—

“In some of the Allahabad decisions it had been held that all the errands must be disclosed, I do not think one can go to that extent under the Bihar Act.”

Some of the unreported Nagpur decisions which have been placed before us were also placed before the Full Bench in Nek Mohammad's case. The Nagpur judgments were in Madhav Bapat v. Provincial Government of C.P and Berar and Govind Laxman Bedekar v. Provincial Government of C.P and Berar and these are the cases which have been placed before this Court also. Das, J., delivering the judgment of the Full Bench case, has observed in regard to these Nagpur cases as follows:—

“It was there (in Nagpur cases) stated that the Provincial Government was hound to state all the grounds and particulars. As, I have said above, under section 4. Bihar Act, one can not go so far as to say that all the grounds must be disclosed.”

The learned Counsel for the petitioner has also cited before us the case of Shoilen Dey. In my view, however, this case is not of much help in the Present case. What happened in that case was that the detenu was detained for inciting a section of labourers of Tata Air India, Bombay to use violence against the officers of the Tata. Air India and that he was also inciting this section of workers to acts of sabotage. It was found, however, that there was no such company in existence as Tata Air India. Chagla, C.J made the following observation:—

“The detaining authority, as we have had occasion to point out several times, has such wide rowers given to it under the statute that where the Court is left with any discretion at all to investigate the grounds given by the Commissioner of Police, the Court must do so vigilantly in order to find out whether that degree of care and caution has been exercised by the detaining authority which the law requires. The Commissioner of Police need give no particulars, need state no facts. He can take refuge behind public interest and behind the language of sections 2 and 3 (of Bombay Act VI of 1947). But when he does give grounds—and those grounds have to be given by him as a statutory obligation—be must take meticulous care to see that whatever is stated in those grounds is stated with absolute accuracy.”

Their Lordships of the Bombay High Court ordered the release of the detenu because the grounds communicated to the detenu had in fact no existence inasmuch as there was no such company as Tata Air India, Bombay, and it was, therefore, held that the detenu was not afforded the opportunity of making a representation. As I have said above, this case does not give us any assistance. In my view, and upon the authorities mentioned above, it is quite clear that the grounds on which the order of detention has been made must be communicated to the person detained and the right to get the grounds on which the order of detention has been made is one of the fundamental rights. The Preventive Detention Act (Act IV of 1950) has quite properly, if I can say so with respect, given due consideration to that fundamental right embodied in Article 22(5) of the Constitution and the detaining authority, under section 7 of the Preventive Detention Act is bound to furnish the grounds on which the order of detention has been made. He is not at liberty to disclose some and withhold other grounds on which the order is made. If some of the grounds on which the order has been made are not communicated to the detenu, then he is not in a position to make an effective representation which he has the not to do under Article 22(5) of the Constitution. That being the settled position in law, let us consider if the detaining authority in this case has complied with the mandatory provision of Article 22(5) of the Constitution of India or of section 7 of the Preventive Detention Act. There may be a number of grounds in support of the order, but the authority making the order must be held entitled to base the order of detention only upon some out of the many grounds in his possession. It is only those grounds on which the order has been made that have to be communicated to the detenu. When in paragraph 4 of the grounds it is said that

“The Provincial Government is of opinion that it would against the public interest to disclose all the grounds of the order of detention passed against Sri Chandra Shekhar Prasad Singh”,

does it mean that any of the grounds on which the order of detention has been made or is being founded is being suppressed from the detenu? The answer depends on the meaning of the two expressions

“…………the grounds on which the order has been made……….”

which finds place both in Article 22(5) of the Constitution and in section 7 of the Preventive Detention Act, 1950 and

“the grounds of the order of detention passed………….”,

which occurs in paragraph 4 of the grounds of detention communicated, to the petitioner in this case. If there is no difference in the meaning of the two expressions, then it must be held that the detaining authority has failed to comply with the constitutional safeguards and the statutory provision. I have given my anxious consideration to the meaning of these two expressions and I have come to the conclusion that there is no difference at all. The expression ‘ground of the order of detention’ must mean the same thing as ‘the ground on which the order of detention has been made’. It has, therefore, to beheld that all the grounds of detention have not been communicated to the petitioner which was one of the fundamental rights guaranteed under the Constitution and which under the Act under consideration he was entitled to get.

Now let us consider if upon the interpretation of the language implied in paragraph 4 of the grounds it is possible to give any other meaning to the word ‘grounds’ occurring in that paragraph. At one time I was inclined to think that the word ‘ground’ has been used rather loosely and perhaps the authority wanted to use the word ‘facts’ instead of ‘grounds’. As that raised a doubt in my mind, I enquired of the learned Government Advocate whether the State would be able to swear an affidavit as to whether or not there were some other grounds of detention which have not been disclosed. The learned Government Advocate took time to consider the matter and then, after a few days, he said that for some reason it was not possible to file an affidavit. This attitude on the part of the State, therefore, settled the matter beyond doubt that the word ‘grounds’ has not been loosely, used.

It is, therefore, clear that the word ‘grounds’ in the abovementioned sentence in paragraph 4 of the grounds does not mean ‘facts’ and, in that view of the matter, I am bound to hold that the grounds of detention on which the order has been made have not been communicated in full to the petitioner.

In the circumstances mentioned above, the petition must succeed and it is therefore, allowed and the petitioner must be released from detention.

Das, J.:— I take up one by one the points urged by learned Counsel for the petitioner in support of his contention that the detention of the petitioner is illegal.

The first point is that the order of detention passed under section 3(1) of the Preventive Detention Act, 1950 (hereinafter to be referred to as the Detention Act) is invalid, because it does not state the period for which the petitioner is to be detained. In an unreported decision of the Allahabad High Court, (in Criminal Miscellaneous Case nos. 1127 and 1128 of 1950, decided on the 20th of June 1950), Bhargava, J., expressed himself as follows:—

“It is true that section 3 of the Preventive Detention Act, 1950 (Act IV of 1950) did not itself lay down that the period of detention must be prescribed in the order but whether a period is prescribed in the order or elsewhere, it is obviously essential that it must be definitely laid down by the detaining authority. On behalf of the State it was argued that under section 12 of the Preventive Detention Act, 1950 (Act IV of 1950) any person, detained under the provisions of this Act, could be detained for a maximum period of one year and, therefore, the detention of the applicant should be considered to be valid until the expiry of the period of one year from the date from which his detention began. This argument is not acceptable to me. Section 12 of the Act merely lays down the maximum period for which a person can be detained but it does not lay down that in case the detaining authority prescribes no period the detention will continue for the whole of this maximum period. Most of the provisions of the Penal Code also lay down the maximum period of imprisonment that can be awarded for the commission of offences dealt within it. It has, however, always been considered necessary that a court passing a sentence for an offence under the Penal Code must itself lay down the period for which the sentence is to run and if no such period is laid down, it cannot be held that the court must be deemed to have passed the sentence for the maximum period permissible for that offence under the Code.

Similarly, in this case it was essential that the District Magistrate of Aligarh, who passed the order of detention, should have exercised his own mind and arrived at a finding about the period for which the detention of the applicant was necessary for purposes mentioned in section 3 of the Preventive Detention Act, 1950 (Act IV of 1950). If the District Magistrate did not do so, it cannot be said that the maximum period permissible under section 12 of the Act is the period for which the District Magistrate desired the applicant to be detained. In these circumstances, it would appear that the detention of the applicant is not in accordance with the procedure prescribed by law and he is, therefore, entitled to be released”.

I have had occasion to consider several petitions under section 491 of the Code of Criminal Procedure against orders of detention passed under the Detention Act or under previous Acts or Ordinances dealing with the preventive detention. So far as I am aware, the period of detention was never mentioned in the initial order of detention, and the point that the detention order is invalid unless it mentions the period of detention, was never taken in any previous case. The fact that a point was never taken previously, is no ground for holding that it is a had point, and in view of the decision of Bhargava, J. quoted above, which is undoubtedly entitled to great respect, it is necessary that the point should be very carefully considered. Bhargava, J. has mainly relied on an analogy from punitive detention. There is, however, a very marked distinction between ‘preventive detention’ and ‘punitive detention’—a distinction which has been often referred to in many judicial decisions, English and Indian. Preventive detention is a purely precautionary measure which “must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof” (per Lord Atkinson in Rex v. Halliday. This is also made clear in the words used in clause (a) of sub-section (1) of section 3 of the Detention Act: the words used are—

“if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to etc.”

I have italicised the words which bring out the main purpose of preventive detention. In cases of punitive detention, the sentence awarded is moulded, so far as humanly possible, to the crime committed. Various Circumstances are taken into consideration in awarding the sentence, e.g age, motive for the crime, mitigating circumstances (if any), provocation, aggravation of the crime, etc. But all these factors are known factors proved in the case. The position is different with regard to preventive detention.

In a criminal trial or enquiry, Under the ordinary procedure of the Code of Criminal Procedure, the judgment or final order comes at the conclusion of the trial, after both parties have been heard. The scheme or procedure envisaged in the Detention Act is and must necessarily be different because the object or purpose of preventive detention is different from that of punitive detention. Let us examine the scheme of the Detention Act, 1950. The order of detention is made under section 3 of the Act. The order is made when the detaining authority is satisfied with respect to any person that with a view to preventing him from acting in a prejudicial manner (I am leaving out clauses which are not relevant for the argument), it is necessary to make an order directing that such person be detained. The section does not require, in express terms, that the period of detention should be mentioned. What is of greater importance, however, is that the order is made on ex parte materials, and before the detenu has had an opportunity of making a representation; in other words, before the detenu has been beard. This must necessarily be so, as the executive on whom rests the responsibility for the maintenance of law and order, must act quickly in order to prevent prejudicial acts. Therefore, it is obvious that there is no real analogy between a detention order passed under section 3 of the Detention Act and a judgment of conviction in which a sentence is awarded. The person against whom a detention order, is made, may be absconding at the time, and action contemplated by section 6 of the Detention Act may have to be taken. If the detention order mentions the period of detention from the date of the order and not from the date of arrest, the order may spend its force by the time the man is arrested. Under section 7 of the Detention Act, the authority making the order shall, as soon as may be, communicate to the detenu the grounds on which the order has been made, and shall afford the detenu the earliest opportunity of making a representation, against the order. This opportunity is meaningless, unless the intention is that the detaining authority shall consider the representation, and in appropriate cases, if satisfied with the representation, order the release of the detenu. If that be the meaning and purpose of section 7 of the Detention Act, how can the period of detention be fixed before the detenu has been heard? Section 8 of the Detention Act deals with the constitution of Advisory Boards, and section 9 states in which cases a reference to the Advisory Board is necessary. Section 10 deals with the procedure of Advisory Boards. Section 11 is, I think, very important. It states—

“In any case where the Advisory Board has reported that there if in its opinion sufficient cause for the detention of the persons concerned, the Central Government or the State Government, the case may be, may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.”

I have italicised the words which, in my opinion, are important for our present purpose. It is clear from section 11 that, at least, in those cases where a reference to the Advisory Board is necessary, the order of detention made at the initial stage need not mention the period of detention; otherwise, the section would not have said

“confirm the detention order and continue the detention of the person concerned for such period as it thinks fit”.

It is true that section 11 has no application to those cases in which there is no reference to an Advisory Board—a point which has been emphasised by Mr. Ghosh for the petitioner; but the words used in section 11 give an insight into the scheme of the Detention Act, and indicate, in my opinion clearly enough, that the detention order passed under section 3 of the Act need not mention the period of detention. section 12 of the Detention Act is the section which applies in the present Case. I accept the argument that the period of one year mentioned in sub-section (1) is the maximum-period prescribed by Parliament under sub-clause (b) of clause (7) of Article 22 of the Constitution of India, for a particular class or classes of cases. The period of one year is the maximum period, and it is not necessary that every person detained must be detained for the maximum period. But there is nothing in sub-clause (1) of section 12 which requires the detaining authority to state the period of detention in the detention order. Sub-section (2) of section 12 requires the case of every person detained under a detention order to which the provisions of sub-section (1) apply, to be reviewed by the appropriate authority in consultation with a, person who is, or has been, or is Qualified to be appointed us a Judge of a High Court. This review further shows that the circumstances in which a person detained may be released and the detention order revoked or cancelled against him, are circumstances which may change and may not be known at the time when the detention order is passed on ex parte materials. Section 13 deals with revocation of detention orders, and sub-section (2) of section 13 states that the revocation of a detention order shall not bar the making of a fresh detention order under section 3 against the same person. This, again, shows that the scheme of the Detention Act is different, as it must necessarily be, from the procedure of an ordinary criminal trial or enquiry, where the punishment comes at the conclusion of the trial and not at the beginning. In my view, it would be wrong and misleading to draw an analogy, and base a decision thereon, between the procedure of an ordinary criminal trial or enquiry and the procedure with regard to preventive detention, a envisaged in the Detention Act.

Our attention has been drawn to the preventive sections of the Code of Criminal Procedure. It is pointed out that under section 112 of the Code of Criminal Procedure, when a Magistrate acting under section 107, section 108, section 109 or section 110 deems it necessary to require any person to show cause under such section, he shall make an order, in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, etc. Learned Counsel had emphasised the words

“the term for which it in to be in force”.

After the conclusion of the enquiry, when the Magistrate makes a final order under section 118 of the Code of Criminal Procedure, he cannot ask a person to give ??? for a period longer than which, was specific in the order made under section 112. Learned Counsel has also referred to section 117(3) of the Code of Criminal Procedure under which the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may direct the person in respect of whom the order under section 112 has been made to execute a bond, with or without sureties, for keeping the peace, etc. until the conclusion of the enquiry, and may detain him in custody until such bond is executed or, in default of execution, until the enquiry is concluded. If there is any analogy between, the procedure laid down in the aforesaid sections of the Code of Criminal Procedure and the procedure of the Detention Act, the object or purpose for which a detention order is passed has, perhaps, some resemblance to that of sub-section (3) of section 117 of the Code of Criminal Procedure, at least as regards the immediacy of action for preventive purposes. The detention under sub-section (3) of section 117 is not for a definite, period but

“until the enquiry is concluded”.

The obvious reason for this is that until the enquiry is concluded, it would not be known finally whether its is necessary to ask the person to execute a bond; yet even before the conclusion of the enquiry, the person is asked to execute a bond or in default of execution, is detained until the enquiry is concluded.

Then, there is another aspect of the matter. There are decisions to the effect that the failure to comply with the provisions of section 112 of the Code of Criminal Procedure, does not necessarily make the order null and void, unless the accused person has been prejudiced by the omission. Therefore, even if the analogy of the procedure of the preventive sections of the Code of Criminal Procedure is pressed fully into service, it would not result in any such axiomatic statement that a detention order is invalid because it does not mention the period of detention at the initial stage.

The Detention Act came under examination of the Supreme Court in the recent decision of A.K Gopalan v. The State of Madrds. There are observations in the judgments delivered by their Lordships which seem to me to indicate that the view contended for on behalf of the petitioner is not correct. Dealing with the argument that section 3 of the Detention Act prescribes no limit of time for detention, and therefore, the legislation is ultra vires, his Lordship Kania, C.J observed as follows:

“It was also contended that section 3 prescribes no limit of time for detention and therefore the legislation is ultra vires. The answer is found in Article 22(7)(b). A perusal of the provisions of the impugned Act, moreover, shows that in section 12 provision is made for detention for a period longer than three months but not exceeding one year in respect of clauses (a) and (b) of that section. It appears, therefore, that in respect of the rest of the clauses mentioned in section 3(1)(a) the detention is not contemplated to be for a period longer than three months, and in such cases a reference to the Advisory Board under section 9 is contemplated.”

Dealing with section 11 of the Detention Act, his Lordship made the following observations:—

“It was argued that section 11 of the impugned Act was invalid as it permitted the continuance of the detention for such period as the Central Government or the State Government thought fit. This may mean an indefinite period. In my opinion this argument has no substance because the Act has to be read as a whole. The whole life of the Act is for a year and therefore, the argument that the detention may be for an indefinite period is unsound. Again, by virtue of Article 22(7)(b), the Parliament is not obliged to fix the maximum term of such detention. It has not so fixed it, except under section 12, and therefore, it cannot be stated that section 11 is in contravention of “Article 22(7)”.

Similar observations will be found in the other judgments. Though the point was not specifically taken in the Supreme Court in the form in which it has been taken before us and there is no decision on the point, it seems to me, and if may say so with respect, that the observations quoted above explain the true meaning and import of sections 3, 11, and 12 of the Detention Act.

For these reasons, J hold that the detention order under section 3 of the Detention Act is not invalid by reason of a failure to mention therein the period of detention.

I now proceed to a consideration of the second point I agree generally with what my learned brother has said on this point. There is, however, one point urged by Mr. Basanta Chandra Ghosh which, I think, requires a more detailed consideration. The Detention Act, in section 3, refers to several matters, e.g, the defence of India, the relations of India with foreign powers, the security of India, the security of the State or the maintenance of public order, the maintenance of supplies and services essential to the community, etc. Section 12 of the Act refers to some of these subjects only in clauses (a) and (b). The order of detention passed in the present case states that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of public order; in other words, the detention in the present case comes under clause (b) of section 12 of the Detention Act. It is contended before us that the grounds of detention relate either to the security of the State or the maintenance of supplies and services essential to the community. It is contended that if the grounds of detention do not relate to the maintenance of public order but relate to the maintenance of supplies and services essential to the community, then the detention of the petitioner does not come under section 12 but will attract section 9, and a reference to the Advisory Board should have been made. Having examined the grounds, I am satisfied that they relate to the maintenance of public order, though indirectly; they may affect other matters. The decision in Rex v. Basudeva on which Mr. Ghosh placed reliance, has been explained in the later decision of Machindar Sivaji v. King. Even applying the, test laid down in Basudeva's case, I am satisfied that the activities referred to in the grounds of detention against the petitioner are such as have a cross and direct relation to the maintenance of public order. Learned Counsel for the petitioner further drew our attention to the decision of the Supreme. Court in Romesh Thappar v. The State of Madras. He particularly relied on the following observation of Patanjali Sastri, J.

“Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in Article 19(1) has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole justification for legislative, abridgement of freedom of speech and, expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to, freedom of speech and expression, While the right of peaceable assembly [sub-clause (b)] and the right of association [sub-clause (c)] may be restricted under clauses (3) and (4) of Article 19 in the interests of ‘public order’, which in those clauses includes the security of the State. This differentiation is also noticeable in Entry No. 3 of List III (Concurrent List) of Schedule 7 which refers to the ‘Security of a State’ and ‘Maintenance of public order’ as distinct subjects of legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, more or less roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance treating for this purpose differences in degree as if they were differences in kind”.

It is to be observed, however, that the distinction which his Lordship was drawing, was with reference to Article 19 of the Constitution of India, clauses (2) to (5); in clause (2), amongst other things, the expression that occurs is “the security of the State”. In clauses (3) and (4), however, the expression which occurs is “the interests of public order”. His Lordship made, a distinction between these two expressions, and further referred to a similar distinction made in Entry No. 3 of List III of the Seventh Schedule of the Constitution of India. I am unable to agree that the distinction made has any application to the facts of the present case, or that the detention order in the present case is bad, because the grounds do not relate to the maintenance, of public order. In my opinion, they relate primarily to the maintenance of public order though indirectly they may affect other matters.

As to the think point that the date of detention must be counted from the date of detention under previous orders, I agree entirely with my learned brother. Mr. Ghosh has emphasised before us that section 12 of the Detention Act states

“not exceeding one year from the date of his detention”.

He has contended that the expression is not “detention order”, which expression is defined in section 2 of the Detention Act. He has further pointed out that in some other sections, the expression used is “detention order”. I think that the argument is sufficiently answered by stating that the reference to detention under section 12(1) of the Act can mean only detention under the Act of which section 12 is a part. This is made more clear by sub-section (2). It states—

“The case of every person detained under a detention order to which the provisions of sub-section (1) apply shall, etc.”

The expression “detention order” is used in this sub-section, and means an order made under section 3. If the detention referred in sub-section (1) of section 12 meant detention under any other law, nothing could have been easier for the legislature than to say so. If sub-section (1) refers to previous detention under any other law, then the question of the legality of that detention would also have to be considered for the purpose of calculating the period of one year. In the course of the arguments, I put to Mr. Ghosh whether he contended that previous illegal detention, if any, would also go into the computation of one year. Mr. Ghosh reserved his opinion on, the matter. Other absurdities are likely to result if the period of one year mentioned in section 12(1) is computed in the way desired by Mr. Ghosh. The word “detention” in the ordinary sense will include preventive detention as well as punitive detention. If the word “detention” in sub-section (1) of section 12 has no reference to a detention order under the Detention Act, then a person who had been previously imprisoned for any offence for more than a year, cannot be detained under section 12(1). Similarly, a person who had been detained (under any Ordinance or Act for preventive detention) sometime in the past for more than a year, cannot be detained again. I do not think any such result was intended by Parliament; nor do the plain words of the section convey any such result. For these reasons, I am unable to read sub-section (1) of Motion 12 in the by desired by Mr. Ghosh.

As to the fourth point, I have nothing further to add to what my learned brother has said. What is reasonable time, within the meaning of the expression “as soon as may be” in section 7 of the Detention Act, which is a reproduction of clause (5) of Article 22 of the Constitution of India, will depend on the facts and circumstances of each case. No hard and fast rule can be laid down.

I now come to the last and most important point of all. clause (5) of Article 22 of the Constitution of India is in the following terms:

“When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall ??? him the earliest opportunity of making a representation against the order.”

Section 7 of the Detention Act reproduces the exact words of clause (5). In the grounds communicated to the detenu in this case the following sentence occurs in paragraph 4 of the grounds—

“The Provincial Government is of opinion that it would be against the public interest to disclose all the grounds of the order of detention passed against Sri Chandra Shekhar Prasad Singh.”

This sentence occurring in the grounds communicated to the petitioner has caused all the trouble in this case. It is contended by Mr. Basanta Chandra Ghosh that it is not open to the State Government to withhold some of the grounds on which the order of detention has been made, and such withholding amounts to a violation of clause (5) of Article 22 of the Constitution of India. It is necessary here to refer to the clause which immediately follows clause (5), namely, clause (6), which is in these terms:

“Nothing in clause (6) shall require the authority making any suck order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.”

If clauses (5) and (6) are read together, it is clear that a distinction is drawn between the grounds on which the order of detention has been made and the facts relating to those grounds. The detaining authority need not disclose facts which such authority considers to be against the public interest to disclose; but no such power or saving is given with regard to the grounds on which the order of detention has been made. If the intention were that the grounds could also be withheld in the public interest, nothing would have been easier than to say so in the Constitution. It must be remembered that the constitution-making body must be taken to have been aware of the existing law on the subject. In the Bihar Maintenance of Public Order Act, 1949, which came into force on the 4th of January, 1950, the relevant section was section 5, sub-section (1). A proviso to that sub-section said that

“a detention order shall not be invalid or unlawful or improper on the ground of any defect, vagueness or insufficiency of the communication made to the detenu”;

Therefore, under the law as it stood in Bihar, before the constitution of India came into force on the 26th of January, 1950, it was open to the State Government to withhold some grounds, and any detect in the communication made to the detenue would not, in the very express terms in the Bihar Maintenance of Public Order Act, 1949, render the order detention invalid, that position, however, changed when the Constitution of India came into force. Though the word “all” does not occur in clause (5) of Article 22, it seems clear to me that no exception is made in respect of the grounds on which the order of detention has been made, and no power has been given to withhold any of the grounds on which the order of detention has been made. In my view, this result inevitably follows from reading together clauses (5) and (6) of Article 22 of the Constitution in the background of the existing law on the subject on the date on which the Constitution of India came into force.

One point must, however, be made quite clear. The detaining authority need only communicate grounds on which the order of detention has been made or is founded. The position may be made clear by the following example. The State Government gets a report against ‘A’ alleging several grounds, founded on a series of facts, for his detention. The State Government, or whoever be the detaining authority, considers the report and accepts only some of the grounds and not others. In that case, the order of detention is made or based only on those grounds which the detaining authority accepts, and the detaining authority need communicate to the detenu only those grounds on which the order of detention has been made. This, I think, is the true meaning of clause (5); because the word “grounds” is followed by the adjectival clause “on which the order has been made.” But the detaining, authority has no power to make a further distinction in the grounds on which the order of detention has been made, and say to the detenu: “I have detained you on several grounds, but I shall disclose to you only some and not all the grounds of the order of detention.” This, in my opinion, will be a denial of the right guaranteed to a person under clause (5) of Article 22 of the Constitution, I emphasise here the words in clause (5)—

“shall afford him the earliest opportunity of making a representation against the order”.

The detenu can make a representation, only with reference to the grounds which have been communicated to him. It is obvious that he can say nothing, about grounds of which he has no information. Suppose, for example, that the detenu is in a position to clear the apprehension or suspicion against him with regard to the grounds which have been communicated to him. If the detaining authority is satisfied with the representation, it ought to release the detenu. If, however, the detaining authority keeps some of the grounds up its sleeve, then how does the detenu get an opportunity of making a representation against the order of detention. The opportunity then ceases to be a real or effective opportunity. Let us take another example. Suppose there is only one ground for the detention of a person, and the detaining authority considers that ground should not be disclosed in the public interest. Then, the person detained can have no opportunity of making a representation against the order of detention, if he is denied information of that one ground. The learned Government Advocate has urged two points in support of his contention that a failure to disclose all the grounds need not necessarily invalidate the older of detention firstly, he has urged that the only effect of not disclosing some of the grounds is that the detaining authority shall be deemed to have waived those grounds; secondly, if the grounds disclosed are good grounds, then the failure to disclose other grounds should not invalidate the order of detention. I am Unable to accept these contentions of the learned Government Advocate. If the detaining authority is entitled to withhold some of the grounds on which the order of detention has been made, then logically the detaining authority will be entitled to withhold the ground of detention even in a case where there is only one ground of detention that would make clause (5) of Article 22 of the Constitution meaningless. The principle, of waiver which the learned Government Advocate has invoked, does not, in my opinion, apply. This Court does not sit in appeal or review over the detaining authority, so far as the grounds of detention are concerned. Whether the grounds are adequate or not is a matter for the detaining authority only. The safeguard provided by clause (5) of Article 22 of the Constitution of India it a safeguard in favour of the detenu, and the detenu is entitled, as a matter of right, to know the grounds on which the order of detention has been made against him. No question of waiver can arise in such circumstances. The second contention of the learned Government Advocate is apparently based on the decision In re Rajdhar Kalu Patil. That was a case under the Bombay Public Security Measures Act, 1947. Some of the grounds given for the detention were vague and indefinite, though not outside the scope and ambit of the Act. It was held that if some of the grounds given were not outside the scope and ambit of the Act but were merely vague and indefinite, it could not be said that some extraneous consideration had weighed with the detaining authority in making the order it had made therefore, the Court must draw a sharp distinction between a ground which is outside the purview of the statute and a ground which is bad because it lacks precision and accuracy. It was further observed that if after eliminating the grounds which were no grounds at all, there still remained a ground or grounds which were precise and accurate and which could, justify the order, then there was no reason why the order made by the detaining authority should not stand. The principle laid down in the aforesaid decision does not apply, in my opinion, to the present case. The distinction between the two cases is obvious in the Bombay case, all the grounds were disclosed, though some were vague and indefinite; whereas in the case before us, the detaining authority has itself stated that it would be against the public interest to disclose all the grounds of the order of detention passed against Sri Chandra Shekhar Prasad Singh. In a case where all the grounds are disclosed, though some are vague and indefinite, it cannot be said that the detenu was kept in the dark and had no opportunity of making an effective representation. He could make a representation with regard to those grounds which were not indefinite or vague, and if the detaining authority were not satisfied with the representation with regard to those grounds which were clear and precise, it had power to keep the detenu in detention. The position is, I think, different where some of the grounds on which the order of detention has been made, are not disclosed at all. Thus, there is no real analogy between the Bombay case and the case before us. Moreover, the position has now to be considered with reference to clauses (5) and (6) of Article 22 of the Constitution of India, and those clauses, in my opinion, lend no support to the contention of the learned Government Advocate.

There are observations in Gopalan's case referred to above, which support the view I have, expressed. Referring to clause (5) of Article 22, his Lordship Kania, C.J stated—

“This clause is of general operation in respect of every detention order made under any law permitting detention. Article 22(6) permits the authority making the order to withhold disclosure of facts which such authority considers against the public interest to disclose. It may be noticed that this clause only permits the non-disclosure of facts, and reading clauses (5) and (6) together a distinction is drawn between facts and grounds of detention”.

In another part of his judgment, his Lordship stated—

“The Parliament by the Act has expressly given a right to the person detained under a preventive detention order to receive the grounds for detention and also has given him a right to make a representation.”

Therefore, the right given under clause (5) of Article 22 is a guaranteed right, and cannot be whittled away by cutting out some of the content of that clause in the manner suggested by the argument of the learned Government Advocate.

I must concede that the grounds, so far as they have been disclosed by the detaining authority, are precise and undoubtedly relate to the maintenance of public order. If the sentence to which I have made a reference in the earlier part of this judgment, relating to the non-disclosure of some grounds of the, order of detention passed against the petitioner, were not there, I would have had no hesitation in saying that there was no reason for interference by us. We found it rather difficult to understand why it was necessary to state, in the midst of the grounds detailed in paragraph 4, that

“it would be against the public interest to disclose all the ground of the order of detention passed against Sri Chandra Shekhar Prasad Singh”.

We thought at one time that, perhaps, a mistake had been made, and the word “grounds” was loosely used for “facts”: it might even be that really there were no other grounds on which the order of detention was passed, and the old formula in vogue under the Bihar Maintenance of Public Order Act, 1949, was being blindly copied. Accordingly, we suggested to the learned Government Advocate to consider the advisability of filing an affidavit on behalf of the State of Bihar to clear up the mistake, if any. The learned Government Advocate took time and then stated that, for some reason or other, if was not possible to file an affidavit. In the absence of any affidavit, I fail to see how the sentence in paragraph 4 can be taken in any sense other than what the words used therein ordinarily mean it is difficult to hold that the detaining authority was referring to grounds other than those on which the order of detention had been made. The words used are

“to disclose all the grounds of the order of detention passed again it Sri Chandra Shekhar Prasad Singh”.

I have italicised the words which, I think, are important. Those words clearly qualify the word “grounds”, and can have only one meaning; that is, the detaining authority considered it against the public interest to disclose all the grounds on which the order of detention was passed against Sri Chandra Shekhar Prasad Singh.

This, in my opinion, is a clear violation of clause, (5) of Article 22 of the Constitution of India.

I would, accordingly, hold that the present order of detention is bad. The application is allowed, and the petitioner must be released from detention.

G.N.P

Rule made absolute.