Gurbux Singh and another vs State

Teja Singh, C.J.—Criminal Miscellaneous Applications Nos. 59 and 60 of 1950 (Gurbakhsh Singh versus State and Santa Singh versus State) being connected in the sense that the question of law arising in them being the same, they will be disposed of by one order.

Both Gurbakhsh Singh and Santa Singh were arrested by the Deputy Commissioner, Bhatinda under S. 3 of the Preventive Detention Act, 1950, the former on 15-3-1950 and the latter on 14-9-1950 and were ordered to be detained till 31st March, 1951. It is alleged in the petitions inter alia that the arrests and detentions were illegal because the grounds of detention supplied to the detenus were vague and beyond the scope of the Act. My learned brother before whom these petitions came up originally took up the view that the question involved was important and therefore referred them to the Division Bench.

The grounds of detention which are the same in both the cases may be reproduced verbatim:

You are an active member of the Communist party and a believer in the cult of violence;

On 24-7-1950 a meeting of the Communist party was held at Masna which was attended by you and wherein a decision to collect funds for helping the wife of Harnam Singh carpenter under detention was passed and a sum or Rs. 60/- was actually collected for this purpose;

A meeting of the Communist party was held at village Deluana on 14-7-1950 wherein it was decided that the lands of Biswedars already ejected should be repossessed by force and that a large number of arms be collected. You played a prominent part in this meeting.

On 8-7-50 you participated in a meeting of the party to help the Muzaras in every possible way to secure arms and ammunitions for indulging in rioting;

5 You incited the tenants of village Bajewala urging them not to pay land revenue;

In a meeting of the Communist party held at Mansa on 13-8-50 attended by you, it was stressed by you that the Biswedars should be asked to lease the villages by force.

The first question to be determined is whether these grounds suffer from any defect. It was contended by S. Tirath Singh, counsel for the petitioner that grounds Nos. 1 and 2 were beyond the scope of the Act while the others were vague. After examining each ground carefully I am of opinion that so far as grounds Nos. 3, 4 and 6 are concerned there is no substance in learned counsel''s contention. In all these grounds mention is made of definite facts and dates are also given of the meetings which the detenu is alleged to have attended and in which certain decisions were taken, I therefore, see nothing vague in them. The condition is different with regard to ground No. 5 which merely stated that the detenu incited the tenants of Bajewala, urging them not to pay land-revenue. No date of the alleged incitement being given therein, it must be held that the ground was vague.

As regards the first ground two allegations are made therein. The first is that the detenu was an active member of the Communist party. It is now well recognised that since the Communist Party has not so far been declared illegal and if a person belongs to that party it cannot be said that he commits an offence, nor one can be detained merely because of being a member of that party. In the second part of the ground it is mentioned that the detenu is a believer in the cult of violence. This can certainly afford a ground for thinking that he would act in a matter prejudicial to public order or safety but the difficulty is that no facts are quoted in support of this allegation and accordingly it must be held that this part of the grounds is vague.

In the second ground the only allegation is that the detenu attended a meeting of the Communist party held at Mansa on a certain date and in the meeting it was decided to collect funds for helping the wife of a person who had been detained by the authorities and some amount was actually collected. For the reasons already mentioned attending a meeting of a Communist party could not be regarded an illegal act nor could it afford any ground for the belief that the detenu was likely to commit prejudicial act. As regards the decision to collect funds for the support of the wife of a person who is in detention, there is nothing illegal or objectionable in that either. Now it cannot be denied that under S. 3 of the Preventive Detention Act 1950 order for the detention of a person can be made only if the authority making the order is satisfied that it is necessary to detain him with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community. In the present case no question of the Defence of India or the relations of India with foreign powers, the security of India or the maintenance of supplies and services essential to the community arises. The only thing which was urged was that the security of the state and the maintenance of public order was likely to be prejudiced by the detenu and it was for this reason that he was detained. But no such inference could be drawn from the act ascribed to him in ground No. 2.

Learned counsel for the State argued that this question could not be gone into by us but I am not convinced that there is any force in this contention because with a view to determining whether the order of detention was legal the Court has to consider whether the detaining authority was satisfied as a matter of fact or he could be satisfied on the material or information that was before him. If the nature of the material be such that when believed it could afford a ground for satisfaction the order of detention could not be characterised as illegal merely on the ground that the material was not sufficient but when it had no connection whatsoever with any of the three matters referred to in cl. (a) of S. 3 the inference is clear that the ground upon which the order of detention is made is outside the scope of the Act and accordingly the order is illegal and ''ultra vires'' and is made without any authority, I am supported in this view by the observation appearing in the decision of the Madras High Court in M.R.S. Mani Vs. District Magistrate and Another, . One of the points urged before the High Court was that the satisfaction of the detaining authority could not be questioned and canvassed in a proceeding under S. 491 and there was no limit on the grounds open for consideration by the said authority, so much so that, to take an extreme case, if a man was detained on the ground that his nose was long, it would not be open to the Court to consider the legality of the order of detention. The learned Judges held that there was a limit and clear line of demarcation regarding the grounds which are open for consideration by the detaining authority and observed as follows:

The illustration that is given in the course of arguments by the learned Advocate of a person having a long nose and detained on that account under S. 2(1) of the Act would be an instance of a ground which is entirely outside the purview of the Act and the order of detention based upon material which is not within the ambit of the Act would be wholly illegal.

It is true that none of the grounds of detention in the present cases is so absurd as put forward by the counsel in the Madras case, in view of the fact that the Communist Party has not been declared illegal and by attending a meeting of the said party the detenu could not be said to have committed any unlawful act ground No. 2 was outside the scope of the Act.

The question now arises whether the order of detention becomes illegal, when out of the several grounds supplied to the detenu only one or more, but not all are beyond the scope of the Act. Learned counsel for the State urged that in a case of this kind the grounds beyond the scope of the Act should be ignored and since there were other grounds which were perfectly legal and the satisfaction of the detaining authority could be legitimately based thereon, no objection could be taken to the propriety of the order of detention. On consideration of all the rulings cited at the bar the opinion that I form is that the weight of authority is against the counsel''s contention. The leading authority on the points is AIR 1943 1 (Privy Council) The order of detention in that case had been made by the Bombay Government by virtue of the powers given to them by a rule framed under the Defence of India Act and they gave several grounds in support of their order. The application made on behalf of the appellant under S. 491 was rejected by the Bombay High Court on the ground that though some of the grounds were not justified the others were legal and it was within the powers of the Government to take action thereon. This is what the learned Judge, who wrote the judgment of the Division Bench said:

As I have pointed out there is no doubt that it was competent to the Government of Bombay to detain the appellant on the ground that his detention was necessary inasmuch as he was acting in a manner prejudicial to the defence of British India and also for the maintenance of public order. It may be that the other two grounds given in the order are not justified by any of the items in Schedule 7 but if the two or even one of the grounds are justified as coming within the competence of the Indian Legislature, I do not think it makes any difference to the validity of the order if the Government of Bombay proceed to give further reasons which are not well founded.

The judgment of the High Court was set aside by the Federal Court on appeal and the following observations were made by Gwyer C.J. with regard to the passage quoted above:

We doubt whether this is a correct statement of the law. If a detaining authority give four reasons for detaining a man without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons had been before them.

This case was followed by the Full Bench of the Bombay High Court ''In Re: Rajdhar Kalu Patel'', AIR 1943 Bom 334 and it was held that:

if a reason given for the detention of a person is not within the scope and ambit of the Act conferring the power upon Government to detain, then the whole order is vitiated notwithstanding the fact that the other reasons given are good, because something may have operated upon the mind of the detaining authority which is foreign and extraneous to the purpose of the Act.

It was further held in that case that if some of the grounds are not outside the scope and ambit of the Act but are merely vague and indefinite it cannot be said that some extraneous consideration has weighed with the detaining authority in making the order it has made and that the Court must draw sharp distinction between the ground which is outside the purview of the statute and a ground which is bad because it lacks precision and accuracy. In the latter case the ground has to be completely ignored as if no ground was furnished at all. If after eliminating the grounds which are no grounds at all, inasmuch as they furnish no precise information to the detenu, there still remain a ground or grounds which are precise and accurate and which can Justify the order, then there is no reason why the order made by the detaining authority should not stand. The same view was taken by the Madras High Court in M.R.S. Mani Vs. District Magistrate and Another, mentioned above and also by a learned single bench of the Punjab High Court in Har Tirath Singh Vs. The Crown,

The State counsel painted out that all these cases were distinguishable because the grounds that were held to be illegal related to those matters on the strength of which only the Central Legislature could make law for Preventive Detention whereas the respective Acts under which the orders of detention had been made were passed by Provincial Legislatures. The distinction is no doubt there but it is without any point inasmuch as the principle laid down in all the cases is that when out of the several grounds of detention one or more are beyond the scope of the Act under which an order of detention is made even if some of the grounds are legal the entire order of detention is vitiated thereby and in the application of this principle the reason why a particular ground is held to be beyond the scope of the Act is not material at all. In addition learned counsel referred us to Dr. Abdul Ghafoor Vs. Rex, where a contrary view was expressed by Bind Basni Prasad J. but this view is not only opposed to the cases mentioned above, but also contrary to what the learned Judge himself held in Fatyaz Ali v. District Magistrate, Kanpur'' AIR 1949 All 158 only a few months before he decided the other case. This is what he said in Faiz All''s case:

If a reason is given for the detention of a person which is not within the scope and ambit of the Act conferring the powers upon the Government to detain, then the whole order is vitiated notwithstanding the fact that the other reasons given are good, because something may have operated upon the mind of the detaining authority which is foreign and extraneous to the purpose of the Act. Hence in a case where out of three grounds two are beyond the purview of the Act under which the detention has been ordered and one is within the purview of that Act the detention order is illegal.

With all respect I agree with this view and being of the opinion that it is applicable to the facts of the cases that are now before us I would allow the petitions and direct that the detenus to which they relate shall be released forthwith.

Gurnam Singh, J.

I agree.