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TMI Blog1964 (1) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Criminal Procedure were incompetent in so far as they sought to challenge the validity of the detention on the ground that the Defence of India Act and Rules framed thereunder suffer from the vice that they contravened the fundamental rights guaranteed by Arts. 14, 21, 22(4), (5) and (7). The other points raised in the appeals were not considered at that time and it was directed that the appeals should be set down for hearing before a Constitution Bench to be dealt with in accordance with law. Consequently, these appeals have been put up before this Bench for disposal of the other points raised therein. 2. A preliminary objection has however, been raised on behalf of the State to the hearing of these appeals on the ground that the orders under which the appellants were detained and which are under consideration in these appeals had been revoked by the State Government and fresh orders of detention had been passed, and in consequence these appeals had become infructuous. Reliance in this connection is placed on the decision of the Federal Court in Keshav Talpade v. King Emperor 134 859 S.C. - 29. In that case the detenu was released while his appeal was pending before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f justice to decide the points raised in the present appeals. We may add that there is nothing to preclude this Court from deciding the appeals even though the order from which these appeals have arisen has been revoked, though ordinarily this Court would not do so. But as we have already indicated, it seems to us just and fair in view of the fact that the appellants have not been finally released and are still under detention under a fresh order of detention under the Rules that the points raised in these appeals should be decided. The points are of general importance and are likely to arise in many cases. We therefore over-rule the preliminary objection. 3. The facts in the three appeals are similar and we shall therefore briefly refer to the facts in Appeal No. 110 for the purposes of dealing with the points raised on behalf of the appellants. 4. The appellants were first detained on November 7, 1962 by an order made by the Commissioner of Police, Greater Bombay, under the Preventive Detention Act, No. IV of 1950. The matter was then reported to the Government. Before this, however, the security of India had been threatened by the Chinese invasion and an Emergency had been dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner ? At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention." The same principle was reiterated in the case of Makhan Singh Tarsikka 1964CriLJ269 . There is however a vital difference between the facts of those two cases and the facts in the present appeals. Those two cases were concerned with the service of an order of detention under the Preventive Detention Act of under the Rules on a person who was in jail in one of two circumstances, namely - (1) where he was in jail as an under-trial prisoner and the period for which he was in jail was indeterminate, or (2) where he was in jail as a convicted person and the period of his sentence had still to run for some length of time. In those cases the service of the order of deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances the order passed by the State Government on November 10 under the Rules when it had decided to revoke the order of November 7, 1962, would in our opinion be perfectly valid so far as the time of the making of the order was concerned and its service in jail on the persons who were detained not as under-trials or as convicted persons but as detentes, could not be assailed on the ground on which the order of detention was assailed in the cases of Rameshwar Shaw 1964CriLJ257 and Makhan Singh Tarsikka 1964CriLJ269 . The principal of those two cases cannot in our opinion be applied to a case where a fresh order of detention is passed after the cancellation or revocation of an earlier order of detention. The contention therefore that the making of the order of detention on November 10, 1962 or its service in jail in these cases, makes the detention illegal, must be negatived. 6. It is next urged that the detaining authority has failed to arrive at that kind of satisfaction which the Rules require. This contention is based on the words of the order dated November 10, 1962. Rule 30 inter alia lays down that the State Government, if it is satisfied with respect to any particular p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority making the order. 8. Then it is urged that as the State Government is equivalent to the Governor, it is the Governor who should be satisfied and not the Home Minister as is the case according to the affidavit filed on behalf of the State Government. The State Government in this connection relies on the Rules of Business, copy of which has been made available to us. These rules have been framed by the Governor under Art. 166 of the Constitution for the more convenient transaction of the business of Government and for the allocation among Ministers of the said business. In the affidavit on behalf of the State Government reliance is placed on item 2(b) of the First Schedule to the Rules of Business dealing with subjects allocated to the Home Department (Special), entry (7) which provides for preventive detention for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community. During the hearing, our attention was drawn to item (1) of the First Schedule to the Rules of Business dealing with subjects allotted to General Administration Department, entry (44), which provides for preventive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to subjects allocated to the Home Department (Special) but was also in-charge of item 1 relating to subjects allotted to the General Administration Department. We therefore called upon the State Government to file an affidavit to that effect and an affidavit was filed on December 21, 1963. That affidavit says that the order of November 10, 1962 was passed by the Chief Minister who was at the relevant time in-charge both of the General Administration Department as well as the Home Department (Special). We have already referred to the terms of the order of detention. That order refers to three reasons as the basis for the order, namely, (i) the defence of India, (ii) the public safety, and (iii) the maintenance of public order. Now preventive detention connected with the defence of India could only be ordered under the Rules of Business by the Minister who was in-charge of the General Administration Department while preventive detention for reasons connected with the maintenance of public order could only be ordered by the Minister in-charge of subjects allocated to the Home Department (Special). The order therefore in the present case could only be made by a Minister who was in- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is provided for in List I, item 9, for reasons connected with defence, foreign affairs and the security of India, and in item 3 of List III for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community. The allocation of business made under Art. 166 is in pursuance of these entries in the three List in the Seventh Schedule and would be available to be used whenever any law relating to these entries is made and power is conferred on the State Government to act under that law. The contention of the appellants that fresh allocation should have been made under Art. 166(3) by the Governor after the passing of the Defence of India Ordinance, Act and Rules must therefore fail. 10. Lastly reliance is placed on Sections 40 and 44 of the Defence of India Act. Section 40 gives power to the Central Government to delegate its powers under the Act or the Rules to any officer or authority subordinate to the Central Government or to any State Government or any officer or authority subordinate to such Government or to any other authority, and the argument is that before the State Government can exercise t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations of life as possible when orders are made under the Act or the Rules; but that does not mean that a detention order must show on the face of it that the State Government had considered the various clauses of r. 30(1) and had come to the conclusion that the only way in which the purposes of the Act and the Rules could be carried out was by the use of clause (b) of r. 30(1). In our opinion when the order says that it is necessary to make an order of detention in order to restrain the prejudicial activities mentioned therein it means that that was the only way which the State Government though was necessary to adopt in order to meet the situation. It will then be for the detenu to show that the order had gone beyond the needs of the situation and was therefore contrary to s. 44. No such thing has been shown in the present cases and we are satisfied that the orders in question cannot be said to go beyond the needs of the situation, even assuming that s. 44 is mandatory as urged on behalf of the appellants and not merely directory as urged on behalf of the State.
12. The appeals therefore fail and are hereby dismissed.
13. Appeals dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
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