TMI Blog1951 (6) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... the Preventive Detection Act, 1950, as it stood originally, an order of detention would have remained in force only for a period of one year from the date of the order; but on 22-2-1951 the Preventive Detention Act was amended by an amending Act, and Section 12 of the amending Act provided: For the avoidance of doubt it is hereby declared that- (a) every Selection order in force at the commencement of the Preventive Detention (Amendment) Act, 1951, shall continue in force and shall have effect as if it had been made under this Act as amended by the Preventive Detention (Amendment) Act, 1951; and (b) nothing contained in Sub-section (3) of Section 1, or Sub-section (1) of Section 12 of this Act as originally enacted shall be deemed to affect the validity or duration of any such order. The effect of this Section was to continue the order of detention under which the applicant was detained up to the commencement of the amending Act, provided, of course, the order was a valid order at the date of the commencement. The point of Clause (b) was that merely because Section 12 of the original Act provided a maximum period of detention for one year the order which was continued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to challenge his detention as invalid, that must be on some fresh grounds accruing to the applicant after his first application for release from detention was dismissed by this Court. Now, one could under-stand such an argument, in case an appeal from the decisions of this Court was not pending before the Supreme Court, not to mention an original application for release from detention made to that Court. It has got to be remembered that the question which is before this Court now is whether the detention of the applicant now is a valid detention. In order that that detention should be pronounced to be valid, there must be a valid detention order, and the contention on behalf of the State being that there was originally a valid order for detention in force against the applicant at the time of the coming into operation of the amending Act; and that order was continued by Section 12 of the amending Act, the question resolves itself into the question of the validity of the order under which the applicant was being detained just before the amending Act came into force. Now, I have no doubt that when the previous application of the applicant was dismissed, it was held by this Court tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is contended on behalf of the applicant that, therefore, the Legislature had taken upon itself to do an executive act. The argument is exactly the opposite of that which was addressed to the Supreme Court in A.K Gopalan v. The State 1950 CriLJ 1383. In our view, there is no substance in this contention. It is quite true that the Legislature has continued for a further period, which was to be regulated by certain procedure mentioned in the amending Act, the detention of the persons who had already been detained by a valid order of detention in force at the date of the coming force of the amending Act; but that does not render the Act invalid It is true that it may often be found that orders of detention are passed by executive officers whom the Legislature empowered by suitable legislation; but that does not come in the way of the Legislature legislating that, if there was in respect of any person a valid order of detention in force, the person shall be continued to be detained for a period to be stated or for a period to be regulated. It is not the question of an encroachment by Legislature upon the powers of the executive. The executive gets its powers to direct detention, bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut such delegation can obviously not validate a transfer if it is made of a detenue detained under the provisions of the Preventive Detection Act, 1950. That is why Mr. Sule, who appears on behalf of the applicant contends that there was no valid order for detaining the applicant is the Thana jail. 6. Now, assuming that the order of 15-3-1950, of the Assistant to the Inspector General of Prisons (it may be mentioned here that under para, 37 of the Jail Manual the Personal Assistant to the Inspector General of Prisons is placed in immediate charge of the Inspector General's office in all its branches and is empowered to conduct all routine work; signing communications relating to routine matters) was not a valid order, the detention of the applicant in Thana jail would be illegal as regards the place. The place had to be determined, however, by an order passed under the provisions of Section 4, Preventive Detention Act, 1950, as it stood before the amending Act came into operation and after the amending Act under the provisions of new Section 4. Assuming that the place of detention is not in accordance with Section 4 whether of the original Act or the amending Act, what would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e he was to be detained, the detenue would obviously have to be detained in one Central jail where the State Government had by a suitable general order directed that all the detenues should be detained. I fail to understand how then it could possibly be argued that the failure to mention in the detention order the place where he is going to be detained renders the order vague. As a matter of fact, the place where a detenue is to be detained will be determined in accordance with Section 4. The Local Government may provide that the detenue may be detained in one of a specified number of prisons, the actual prison where he is going to be detained being left by a general order to the choice of the detaining authority. In such a case, the detaining authority might have to pass an order stating what was its choice. But the detaining authority could do this by another order passed under Section 4. In my view, considering the wording of Section 3 and Section 4, there is nothing in the Preventive Detention Act which requires that the order passed under Section 3 should mention the place of detention. If the place of detention is mentioned either because it is necessary to mention it the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any of the places specified hereunder: The Yeravda Central Prison, Poona, The Ahmedabad Central Prison, Ahmadabad, and soon. The Than District Prison, Thana, follows. 10. It is contended on behalf of the petitioner detenue that this order merely determines the places where a detenue is liable to be detained. The order is in terms of the new Section 4. But the learned advocate, who appears for the petitioner, says that that order would not be enough for warranting the detention of the detenue in any particular prison. Counsel contends that it is necessary further for someone who has got authority to pass an order saying in which of the prisons the detenue is to be detailed, and in the absence of any notification by Government giving its own powers of mentioning a particular prison to the Commissioner of Police, it is contended that the order of the Commissioner of Police that the detenue should be detained in the Thana jail is an invalid order. 11. In our view, it is not necessary to go into this contention for the reason that it is not in dispute that subsequently on 10-5-1951, the State Government has passed an order directing the removal of the petitioner from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is, in our view, such an order passed by the State Government on 10-5-1951. 12. The learned advocate, who appears on behalf of the petitioner, draws our attention however, to the case of the Calcutta High Court of Sunil Kumar v.- Chief Secy. to the Govt. of West Bengal. A.I.R. 1950 Cal. 274. In that case certain persons who were detained under the provisions of the Bengal Criminal Law Amendment Act, 1930, and the West Bengal Security Ordinance, 1949, were held to have been invalidly detained. The Advocate-General thereupon informed the Court that the orders under the Bengal Criminal Law Amendment Act and the West Bengal Security Ordinance, 1940, had been cancelled and the detention had been continued under the Preventive Detention Act, 1950, and suggested that the rules had become infructuous. The course which the Court took was not to go into the question as to whether the detention was valid in view of the new orders passed under the Preventive Detention Act but to say that the detention under the provisions of the Bengal Criminal Law Amendment Act and the West Bengal Security Ordinance, 1942, was invalid. It is not quite clear from the report whether the order appears to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain reasons there is no proper order confirming the detention of the detenue, but that it will be convenient to consider later He says that assuming even that the Government have confirmed the order of detention, that order is invalid because Government have not stated while making the order how long the detenue should be detained. Now, the question whether when an original order for detention is passed under the provisions of Section 3 it is necessary to state therein the period of detention has been gone into by a division bench of this Court in the case of Pangarkar v. State, Cri. Appln. No, 195L (Bom.) 235 and the view which it took was that it is not necessary to state the period. An argument appear a to have been addressed to them with regard to Section 11 of the Preventive Detention Act, 1950, as it stood before its amendment, and also to the wording of Section 11 as it stands now, and they said that it may be that after the report of the Advisory Committee is received and Government confirms the order, Government ought to state for what period the detenue is to be detained thereafter. But so far as the original detention is concerned, the view which has appealed to this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the period of detention the detention would be indefinite to point out, in reply that the detention could in no case exceed the maximum prescribed. Leaving aside for the moment the condition that the detention could not, in any case ,exceed one year, it is obvious that if the Act had stood with Section 3 without prescribing any maximum, there is nothing wrong with the order which, without stating the period for which the detenue is to be detained, stated that he should be detained. Reference may usefully be made to the case of Liversidge v. Sir John Anderson. 1942 A.C. 206 where a detention order made under a similar enactment merely directed that the detenue be detained without mentioning any particular period during which the jailor was to detain the detenue. It is true that Section 12, Preventive Detention Act, 1950, as it stood before its amendment, made some difference, inasmuch as the detenue could in no case be detained for a period longer than one year; but that did not mean that the detention order had necessarily to state the period. It is true that the detention could not exceed one year, but the jailor would naturally know the requirement of the law that all detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um term for which the convict would be sentenced. But this result is due to the wording of the Sections concerned. Take, for example Section 258, Criminal P. C. It directs that when an accused person is convicted the Court shall pass upon him a sentence in accordance with the law, and if we look to any penal Section, it wilt say that the person convicted is liable to be sentenced to imprisonment for a term not exceeding a particular period. The penal Section does not say how much the sentence would be but the Section implies that a period of imprisonment must be mentioned. There is no corresponding Section which compels in regard to a detention the period to be mentioned. The argument that in spite of a maximum being prescribed by a penal Section the warrant committing a prisoner to jail upon being sentenced has got to mention what the sentence was cannot, therefore, be availed of in deciding as to whether when passing an order for detention it is necessary to mention any particular period. There was some argument addressed to us that if the original order for detention does not mention what is the period during which the detenue is to detained, he would not know whether to make a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod as it though , fit; but that is obviously due to the fact that the Advisory Committee would not only opine as to whether there was sufficient cause for the detention of a person but in a proper case it may say that in its view detention for a, longer period than that mentioned by it was not necessary. The Legislature obviously thought fit to provide that once the Advisory Committee was of the view that the detention at the time when it made its report was a valid detention and there was sufficient cause for it, what action should be taken subsequently was a matter which should be left to the appropriate-Government. Under the old Act the Advisory Committee had not got much power. Under the Act after its amendment, if the Advisory Committee is of the view that there was no longer any cause for detaining him in custody, he must be released; but whether under the old Act or under the new Act once the Advisory Committee was of the view that there was sufficient cause for the detention of the detenue at the time when it made its report the Legislature thought that what was the period for which the detenue should be detained thereafter should be left not to the Advisory Committee bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich might have been inflicted under the law in force at the time of the commission of the offence. Mr. Sule relied upon the words nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. He says that the further detention is a penalty. That in itself is arguable because a penalty obviously envisages the idea of punishment and detention which is preventive is obviously not penal. Preventive detention, as a matter of fact, is contra-distinguished from penal detention; but leaving this apart for the moment, it is obvious that what Sub-article (l) of Article 20 prevents is the infliction of a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the same offence. The sub article has, therefore, reference to a penalty to be imposed in respect of an offence, and where the question is one of preventive detention, the article has no application. 16. It is contended nest that if we are of the view that the present detention cannot be challenged upon the ground that there is at present no valid order for detaining the detenue at any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the representation which is made to the appropriate Government, and it-is after considering such a representation that the Advisory Committee is to come to a conclusion. In such a case it is open to the Advisory Committee to call for such further information as it may deem fit either from the Government or from the detenue. It is also entitled, in case it considers it essential, to hear the detenue in person; but there is nothing whatever which requires the appropriate Government to give an opportunity to the detenue to make a representation to the advisory Committee, The ground, therefore, that no such opportunity was given to the detenue must, therefore, fail. 17. Mr. Sule has made a further point that, in so far as the amending Act continued that detention which had already been ordered by the detaining authority, the detention from the commencement of the Act or from the expiry of the period of one year from the of detention was a new detention, and he has got a right to make a representation against that detention to Government if not to the Advisory Committee and he must be given a new opportunity to make it, But so far as the amending Act is concerned, all that it Contemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of that detenue the case of these detenue must also fail. The rule will, therefore, be discharged. Re: Criminal Application No. 248/51. 21. This is an application under Section 491, Criminal P. C, and Article 226 of the Constitution of one Shah Bhogilal Ratilal who has been detained under an order dated 2-2-1961, passed by the District Magistrate of Ahmedabad under the Preventive Detention Act, 1950, the order having been passed on 2-3-1951, it was passed under the provisions of the Preventive Detention Act as it stood before its amendment on 22-3-1951. The order stated that the petitioner should be removed and detained in the Ahmedabad Central Prison and shall for the purpose of the Bombay Conditions of Detention Act, 1950, be treated as class 2nd prisoner. Assuming that this order was a valid order to make, the order was continued by Section 12 of the amending Act. Then on 27-2-1951, the State Government passed an order in exercise of the powers conferred by Section 4, Preventive Detention Act, 1950, as it stood after its amendment directing that a person in respect of whom a detention order is in force shall unless otherwise provided by a special order of the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er says that it was not in the public interest to disclose any particular fact, he was not really of that opinion. There is nothing whatsoever in this case to show that the detaining authority, who has refused to disclose farther facts, has been acting mala fide in keeping them back. That being so, we must take it that the grounds may be vague; but they are vague, because the detaining authority has not disclosed certain facts in the public interest. These he was entitled not] to disclose. 22. The next point which is made by Mr. Chitale is that, even though in this case the State Government has issued a general order under Section 1 of the old Act mentioning the prisons where the detenues are liable to be detained, and the Ahmedabad Central Prison is one of these prisons, the order detaining the petitioner there was issued not by the State Government, but by the District Magistrate. Mr. Chitale says that the order which was issued by the State Government merely stated where the detenues were liable to be detained. It did not say where a particular detenue was to be detained, and inasmuch as the Section says that the detenue will be liable to be detained in such place as the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said District Prison, Thana. On 31-3-1950, the petitioner was actually removed to District Prison, Thana and detained i there. From that date onward, the detention continued in the District Prison, Thana. 26. Now, Mr. Sule for the petitioner contends that the Inspector General of Prisons had no jurisdiction to pass or make an order under Section 4, Preventive Detention Act. Order Section 4, Preventive Detention Act the Central Government or, as the case may be, the State Government, may from time to time by general or special order specify a place to which a detenue shall be liable to be removed or in which he shall be liable to be detained, it is contended by Mr. Sule that under Section 4 of the Act, which is the only Section under which an order of removal of a detenue to, or detention of a detenue in, a particular place can be passed, the Inspector General of Prisons has no jurisdiction to pass an order as to removal or detention, That being so, it is contended than the order of the Inspector General of Prisons dated 15-3-1950, which was executed on 31-3-1959, was illegal and that the detention of the detenue thereafter became illegal. 27. In this connection the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, would not be sufficient to confer upon the person concerned a character of a prisoner. If he is not a prisoner, as we hold he is not, obviously the provisions of Section 3, Prisons Act, cannot help the State for the purpose of validating the order dated 15-3-1950, passed by the Inspector General of prisons. 29. Next our attention was invited by the Government Pleader to the Jail Manual where at p. 11 it is stated:-- The Personal Assistant to the Inspector General of Prisons shall be in immediate charge of the Inspector General's Office in all its branches and shall conduct all routine work, signing communications relating to routine matters. Now, in our opinion, these provisions cannot be called into assistance for justifying the order of the Inspector General of Prisons dated 15-3-1850, by which the detenue in question was ordered to be removed to and detained in the District Prison, Thana. Obviously the conduct of routine work, signing communications, etc. is a totally different affair from determining an important question as to where a particular detenue should be detained, and we are of the opinion that the abovementioned provisions of the Jail Manual cannot th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the appropriate Government. 32. Next in point of time comes an order dated 10th May 1951, passed by the Assistant Secretary to the Government of Bombay, Home Department, by order of the Governor of Bombay. The text of the said order was as under: In exercise of the powers conferred by Section 4, Preventive Detention Act, 1950 (IV [4] of 1950), the Government Of Bombay is pleased to direct that the person known as Shri P.K. Kursne, who has been detained under Order dated 28th February 1950 made by the Commissioner of Police. Greater Bombay, shall to removed from the Thana. District Prison to the House of Correction, Bye Bombay, and detained therein. It would thus be noticed that the detenue, who was originally detained in the House of Correction, Byculla, and was thereafter removed to and detained in the District Prison, Thana, by the order of the Inspector General of Prisons, Bombay, was transferred back to the House of Correction, Byculla Bombay, and directed to be detained there by the order of the appropriate Government under Section 4 of the Act. Now even in respect of this order Mr. Sale's contention is that it is a bad order. The contention is made in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment Act and that without passing any such fresh order a valid order under Section of the amending Act could be passed. In these circumstances it is contended by the Government Pleader that today, in this particular case, there are two perfectly valid orders: (l) the order of detention passed under 3. 3, Preventive Detention Act, no. IV [4] of 19-50, which was kept in force by Section 12 of the amending Act and (a) an order under Section 4 of the amending Act directing the detection of the petitioner in the Correction House, Byculla, Bombay. 34. While on this point of the validity of an order, as to detention of the petitioner in a particular place, under Section 4 of the amending Act, it is the contention of the Government Pleader that even the order of the Commissioner of Police, Greater Bombay, dated 28-2-1951, was a perfectly good order. Our attention is invited to the order dated 27-3-1951, made by the Government of Bombay in the Home Department (Political). It was an order made under Section 4, Preventive Detention Act, 1950, and was to the following effect: In exercise of the powers conferred by Section 4, Preventive Detention Act, 1950 (IV [4] of 1950], and in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person concerned is to be detained is a totally different thing- It is quite possible in our opinion that the former may be a good order and the later may be a bad order for want at jurisdiction or on account of some other defect. In Our opinion the order of detention under Section 3 of the Act is not required to specify a place where the person is to be detained. Section 3 says that if the Central Government or the State Government is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary to detain him, it may make an order directing that such person shall be detained. Section 3 does not require that the detention order must specify the place where he is to be detained. It is argued for the petitioner that unless the order of detention mentions the place where the person is to be detained, do effect can be given to it and that therefore it is implicit in Section 3 of the Act that the place of detention must be mentioned in the order of detention. We cannot agree at all. It need scarcely be stated that the District Magistrate of a district has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood order. 38. Next, if the factum of detention in a particular place becomes illegal by reason of an order under Section 4, being bad, it can be subsequently validated by a proper order made under Section 4. In (In re Sushilabai Govindrao Jadkav) Cri. Appln. No. 1671 of 1643 under Section 491 of the Criminal Procedure Code in the case of Prabhakar Kondaji Bhapkar it was observed by the learned Chief Justice as follows; What we are concerned with today is not whether his confinement at some stage in Poona was legal or not, but whether to-day he bus been legally confined in the prison at Yeravda and in out opinion in view of the order of the 15th November it cannot be said that Mr. Bhapkar's confinement to-day in Poona is contrary to law. It is to be remembered that in that case the contention was that the order as to the removal of the detenue from the Visapur jail to the Yeravda jail at Poona which was passed on November 11 was an invalid order and that therefore the detention of the detenue from that date onward became illegal. Subsequently however a valid order was passed on November 16, 1948, by the Inspector-General of Police, Province of Bombay, and the learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. From the words for such period as it thinks fit an argument is made by Mr. Sule that it was incumbent on Government, while confirming the detention order and while continuing the detention of the petitioner, to mention also the period daring which the detention shall continue. We have considered this submission but have felt constrained to reject it. Wherever the Act contemplates that a certain thing must be done a specific provision to that effect is made in so many words. For instance, the Act requires that the grounds of detention must be disclosed to persons affected by the order of detention and therefore in Section 7 of the Act we find a specific provision to that effect. We find it laid down that the Authority making an order of detection shall, as soon as may be, communicate to the detenue the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation. We have no doubt, therefore, that if the intention of the Legislature was that under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace before an Advisory Board the grounds on which the order has been made and the representation if any made by the person affected by the order. It is clear, therefore. that whatever the number of representations which the detenue might have-made to Government before his case is sent to the Advisory Board. Government is bound to forward them to the Board for consideration and examination. The Board is not called upon to ask for any representation from the detenue. Section 10 says that when the case is referred to the Advisory Board, the said Board shall, after considering the materials placed before it and after calling for such further information, as it may deem necessary, from the appropriate Government or from the person concerned, and, if in any particular case it considers it essential, after hearing him in person, Submit its report to the appropriate Government. It is clear, therefore, that the question whether the Advisory Board should call for any further information from the detenue or should give him an opportunity of being heard in person is left entirely to the discretion of the Advisory Board, It is not incumbent upon the Board to give an opportunity to the deten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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