1. These five applications have been filed for issuing writs of Habeas Corpus in order to obtain release of five persons is custody. The allegations common to all the five are that the persons mentioned in the application have been arrested on 16 1-1950 and have been since detained in jail, without original al proceedings being commenced against them, that snob, detenu on is illegal and the detenus are untitled to be released. Notices were issued to the Government Advocate, and the reply filed discloses that on 18-1 1950, the Sub Inspector of Police, Miriyalguda, has registered offences against them for contravention of Rules 33 and 37, Hyderabad Defence Regulations, as well as Section 15, Hyderabad Public Security Act; that the investigation has since been completed and a challan relating to these offences has been filed on 1-3-1950 in the Magistrate's Court at Miriyalguda. Paragraph 3 of the reply, however, discloses that before the filing of the challan and on the passing of the Preventive Detention Act, fresh orders for their detentions under Section 8 of the Act were passed by the Government with a view to prevent their acting prejudicially to the maintenance of public order and security.
2. Copies of tin first information report, and of the warrants of detention have been produced. It appears that copies of the grounds of detention were later filed, but they were misplaced Fresh copies of these grounds were again furnished by the Advocate General and have been taken on record. No documents, however, showing these person production before the Magistrate or their being remanded to jail by the Magistrate have been filed. On the contrary, from the certified of an order passed by the Magistrate on application for bail, which has been filed in this Court on behalf of the applicants, it appears that one of the objections raised by the prosecution to their being let out on bad was the absence of any order of remand by the Court, Not remanding the accused to jail is also one of the grounds given by the Magistrate for refusing the bail applications It is, therefore, dear that these five persons are being detained under the Preventive Detention Act, While a challan relating to their having committed certain offences is still pending before a Court of law; and further there is no order by that Court directing their detention in Jul. In these circumstances, we have to determine bow far the warrants issued under Section 3, Preventive Detention Act, are legal and in proper exercise of the powers conferred by the Act.
3. The authorities vested with power of directing preventive detention should not over, look the distinction between punitive and preventive detentions. It is true that no authoritative definition of the expression 'preventive detention' has been given in Indian law. The term bas its origin in the language used by Judges in England when explaining the nature of the detention under Regulation 14(B) Defence of Realm Consolidated Act, 1914. Lord Finlay in Rex v. Halliday (1917) A.C. 260 at p. 269 says : "it is not a punitive, but a precautionary measure." Similar language has been used in connection with the Emergency Regulations made during the last World War. Lord Macmillan in Livers dye v. Anderson (1942) A.C. 206 at p. 254 observes:
the question is one of preventive detention justified by reasonable probability, not of criminal conviction which can only be justified by legal evidence.
4. The highest Court in this country has defined both of them in more precise terms. The expression 'preventive detention' appeared as description of the topic of legislation in Item of List II in Sch. VII, Government of India Act, 1935, and in a case where a question arose as to whether the Bihar Maintenance of Public Order Ordinance was intra vires and which is reported in Lakhi Narayan Das v. Province of Bihar A.I.R. 1950 F.C. 59 at p. 66 the Federal Court says:
Preventive detention can properly be contrasted with plaintive detention one having reference to the apprehension of wrong doing and the other coming after the illegal act is actually committed.
5. Recently in A.K Gopalan v. State Of Madras. A.I.R. (37) 1950 SC 27 : 51 CriL.J. 1383 where the validity of the Preventive Detention Act v. as challenged, Mr. Patanjali Bastri observes (art p. 77):
As the very term implies, the detention In such CASES is effected with a view to prevent the person concerned from Acting prejudicially to certain objects which the legislation providing for each detention has in view.
In the same journal at pages 92 and 93, Mr. Mukherjee after referring to the history of the expressions says:
The word 'preventive' is used in contra distinction to the w rd 'punitive'. The object is not to punish a man for having done something, but to intercept him before he does it, and to prevent him from doing it No offence is proved, nor any charge formulated; and the justification of such detention is suspicion or reasonable probability....
6. The expression 'preventive detention,', therefore, means that restraint whose object is to prevent probable, and in some cases possible,' Activity on the part of a person which is deemed' prejudicial and which is apprehended from him on grounds of his past conduct.
7. It is obvious that where such prejudicial conduct on the part of a person is impossible, e.g., when he is already in jail either undergoing a sentence of imprisonment passed by a Court of law or is awaiting, with not being on bail, any investigation, enquiry or trial, the exercise of power under preventive detention would be meaningless and improper. In such cases there are authorities which say that choice should be made between the two forms and both should not be resorted concurrently. Apart from this, Criminal Procedure Code provides several safeguards in proceedings leading up to punitive detention. When a person is apprehended for commission of an offence, he must be proceed before a Magistrate within twenty-four hours of his arrest. It is only under an order of the Magistrate that be can be re-committed to custody, and from time to time he has got to be produced before the Magistrates and the Magistrates have got to be satisfied about his being remanded. To keep original proceedings pending without conforming to the relevant legal provisions under powers of preventive detention has been condemned in strong language by several High Courts in this country.
8. In Kamla Kant v. Emperor A.I.R. 1944 Pat 354 and in connection with the Defence of India Rules 26(1)(b) it was said that it was not open to the executive once a man had been brought before a Court of Law on some specific charge to substitute for the warrant under which he was detained in jail awaiting his trial an order of detention under Rule 26, and then deprive him of his right to dear himself of the charge entering a knoll Presque, or intimating to the Court that they did not propose to adduce evidence against him; it was very undesirable for an order of detention to be made against him before be had been tried on the charge and his guilt or innocence finally determined; if he was convicted, the necessity for an order of detention ceased to exist, at least until be had served out his sentence. Then again in a case reported in Vimla bai Desphande v. Emperor A.I.R. 1945 Nag. 8 Bose and Sen JJ. observed with reference to Ch. 10. Defence of India Rules, that it was a preventive one and had no reference to offences committed in the past even if they be offences like dacoity.
9. These authorities, though they relate to preventive detention under the Defence of India Rules, also lay down that the use of such powers is wrong where proceedings relating to punitive detention are pending in a Court of Law. This is borne out by the citation of the Nagpur authority with approval in a recent Full Bench of the Bombay High Court reported in Maledath Bharatham v. Commr. of Police A.I.R. (37) 1950 Bom. 202 51 CriL.J. 1123 F.B. where the use of Section 2(a)(1), Bombay Public, Security Measures Act, for the collateral purposes of investigation was condemned. At page 205 of the journal, the Chief Justice observes:
...When the detaining authority makes up his mind to detain a person who is alleged to have committed an offence, then the detaining authority has made his choice, and it would not be permissible to him to investigate the offence while still keeping the person under detention and not complying with the provisions of the law with regard to investigation....
10. In the case of Janki Das v. Imperator A.I.R. 1950 E.P. 172 it was held by a Single Judge of that High Court with reference to the East Punjab Public Safety Act that detention for something already done is not preventive but punitive and illegal.
11. The proposition that these authorities establish is that the two forms of detention cannot be concurrent, and a choice must be made between the two.
12. It should not be forgotten that this distinction between the preventive and the other detention has been recognised in the Constitution. In Clause (2) of Article 22 of the Constitution, at right to be brought to the nearest Magistrate within twenty-four hours of his arrest has been given to the accused under Clause (8). This right is taken away only from alien enemies and persons under preventive detention, and in the latter class some pending criminal proceeding for an act already done is not contemplated. Unless there be a prior preventive detention Order, a person arrested is an ordinary accused and will have to be produced before the Magistrate. The distinction between punitive and preventive detention has, therefore, become fundamental, and should not be allowed to be obliterated. Its disregard leads to his constitutional right and other safeguards given to the accused under the Criminal Procedure Code being rendered nugatory and does not serve the object for which this detention is allowed. In case, pending criminal cases be dropped, these reasonings do not apply.
13. In these particular applications, the challan has been filed after the detention orders were passed; choice, therefore, has been made; no warrants by the Magistrate for the accused, being kept in jail have been produced and the criminal proceeding against them is still pending. In these circumstances, we are of opinion that the detention warrants under the Preventive Detention Act are legally wrong and the detenus, (1) Shaik Lateef, s/o Peer Mohammed, (2) Mohammed Jan, s/o Khattal Mohammed, (3) Bashir Ahmed, s/o Mohammed Hussain, (4) Nalgondala Satyam, s/o Subbaiah, (5) Gori Siddayya, s/o Gurvayya should be released forthwith. This order shall cover all the five applications.