Hari Singh vs State

Teja Singh, C.J.—This is an appln. u/s 491, Code of Criminal Procedure for the release of Hari Singh who was originally arrested u/s 3, Patiala & East Punjab States Union Public Safety Ordinance, 2006 by A.S.I. Partap Singh & was ordered to be detained for one month. Later on this period of detention was extended by the Govt. to three months. Before the three months had expired Anr. order for Hari Singh''s detention was made by the Govt. u/s 3, Preventive Detention Act (IV [4] of 1950).

Three points were raised on behalf of the petns.: (1) that the Detention Act was ultra vires the Parliament; (2) that since, according to the written statement of the State counsel as well as the grounds of detention supplied to the detenu, action had merely been taken because he had committed an offence which consisted of his harbouring dacoits, the order was illegal; & (3) that the Govt. was not satisfied as a matter of fact that the detention was necessary with a view to prevent the detenu from acting in any manner prejudicial to the security of the State or the maintenance of Public order. The first two points were refd. by me to a F.B. See AIR 1951 P&H 123 (F.B.) - Ed. In view of the recent decision of the S.C. in A.K. Gopalan Vs. The State of Madras, that the Act was intra vires the F.B. did not decide the first point. As regards the second point, the decision of the F.B. is that though it is not open to a detaining authority to make an order of detention on the ground that the parson sought to be detained has committed an offence, the evidence of offences committed previously by the detenu or of his antecedent conduct can be used by the detaining authority as an indication of the manner in which the person intended to be detained would conduct himself in the future. The case is now before me for decision on merits.

Sub-section (1), Section 3 of the Act under which Hari Singh has been ordered to be detained reads as follows:

The Central Govt. or the State Govt. may-

(a) If satisfied with respect to any person that 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 & services essential to the community, or

(b) if satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act, 1946 (XXXI [31] of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India,

it is necessary so to do, make an order directing that such person be detained.

The State counsel maintains that so far as the present detenu is concerned Clause (a)(ii) of the sub-section applied to him, that is to say, he was ordered to be detained because the State Govt. was satisfied that it was necessary to detain him with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order. Two questions arise in this connection: (1) which person or persons constituted the Govt.; & (2) whether the person or persons concerned were satisfied as a matter of fact as required by the sub-section. In Section 2 of the Act State Govt. has been defined only in relation to Part C States as meaning the Chief Comr. of the State. This Union is a Part B State but no definition of Govt. is available in relation to such a State or even in relation to Part A States. Article IX of the Covenant entered into by the Rulers of the Covenanting States that formed this Union contains the provision regarding the exercise of the executive authority of the Union. The words of the Article are:

Subject to the provisions of this Covenant & of the Constitution to be framed thereunder the executive authority of the Union shall be exercised by the Rajpramukh either directly or through officers subordinate to him, but the Rajpramukh may from time to time consult the Up-Rajpramukh in important matters connected with the administration of the Union. Nothing in this Article shall prevent any competent legislature of the Union from conferring functions upon subordinate authorities or be deemed to transfer to the Rajpramukh any functions conferred by any existing law on any Ct., Judge, officer, or local or other authority in a Covenanting State.

Article v of the Covenant provides that there shall be a Council of Ministers to aid & advice the Rajpramukh in the exercise of his functions except those under Article VII. Article VII relates to the maintenance & administration of Military Forces of the Union & has no relevancy for the purposes of the question that is now before us.

The Const. Ind. was framed by the Indian Constituent Assembly &, strictly speaking, it cannot be regarded as the Constitution contemplated in Article IX of the Covenant; but by virtue of the Proclamation issued by His Highness the Rajpramukh on 24-11-1949 & published in the Union Gazette of the same date it applies to the Union. The words of the Proclamation are:

WHEREAS with the inauguration of the new Constitution for the whole of India now being framed by the Constituent Assembly of India, the Govt. of India Act, 1935, which now governs the constitutional relationship between this State & the Dominion of India, will stand repealed;

AND WHEREAS, in the best interests of the State of Patiala & East Punjab States Union which is closely linked with the rest of India by a community of interest...it is desirable that the constitutional relationship established between this State & the Dominion of India, should not only be continued as between this State & the contemplated Union of India but further strengthened, & the Const. Ind. as drafted by the Constituent Assembly of India, which includes duly appointed representatives of this State, provides a suitable basis for doing so;

I now hereby declare & direct:

That the Const. Ind. shortly to be adopted by the Constituent Assembly of India shall be the Constitution for the Patiala & East Punjab States as for the other parts of India & shall be enforced as such in accordance with the tenor of its provisions;

That the provisions of the said Constitution shall, as from the date of its commencement, supersede & abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State.

No definition of the term State Govt. is given even in the Const. Ind., but it makes provision for the exercise of the executive power of the Union as well as the States. Article 154 relates to States specified in Part A & read as follows:

(1) The executive power of the State shall be vested in the Governor & shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.

(2) Nothing in this article shall

(a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or

(b) prevent Parliament or the Legislature of the State from conferring by law funotions on any authority sub-ordinate to the Governor.

By virtue of Article 238 of the Constitution, Article 154 applies in relation to part B States also with this modification that for the word "Governor" the word "Rajpramukh" has to be read. In substance there is no difference between this Article & Article IX of the Covenant & both mean that whenever an act is required to be done by a State Govt. or a State Govt. is permitted to do an Act in an executive capacity, it is the Governor in the case of Part A States, & the Rajpramukh in the case of part B States, who can do it & that the Governor or the Rajpramukh, as the case may be, can exercise the power which the law vests him with, either directly or through officers subordinate to him in accordance with the Constitution. It may here be mentioned that similar powers were given to Governors of Provinces by Section 49, Govt. of India Act, 1935.

The question how far the power given to the Governor for detaining a person could be exercised by officers subordinate to him came up for consideration before the F.C. in AIR 1943 75 (Federal Court) Before referring to the finding of the Ct. on the point, it is as well to point out that the persons whose cases were before the F.C. had been ordered to be detained under Rule 26, Defence of India Rules, which was in the following terms:

The Provincial Govt., if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the Public safety, the maintenance of Public order, (His Majesty''s relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas) or the efficient prosecution of the war it is necessary so to do, may make an order directing that he be so detained.

The order in respect of each person contained the recital that the Governor was satisfied that with a view to preventing the person concerned from acting in any manner prejudicial to the defence of India, the public safety, etc. it was necessary to make the order to continue his detention. It is also necessary to point out that the Defence of India Rules had been framed by the Govt. of India by virtue of the power given to it by the Defence of India Act, 1939, & Section 2 of the said Act, as amended by Section 2, Defence of India (Amendment) Act (XIX [19] of 1940), empowered the Central Govt. to make such rules as appeared to it to be necessary or expedient for securing the defence of the British India etc & also by order to direct that any power or duty, which by rules is conferred or imposed on the Provincial Govt. etc., may be exercised or discharged by any officer or authority subordinate to it.

The majority of the Judges of the F.C. (Varadachariar & Zafrulla Khan JJ.) held that before an order could be issued for the detention of a person the Governor must be personally, satisfied as to the matters therein set out & that in view of the admission by the Crown that in none of the cases before them had the Governor himself consd. the case, the orders for detention were not in conformity with the rule. They based their conclusion mainly on the power of delegation (which had admittedly not been exercised in the cases before them) by Sub-section (5) of Section 2, Defence of India Act, which provided as follows:

A Provincial Govt. may by order direct that any power or duty which by rule under Sub-section (1) is conferred or imposed on the Provincial Govt., or which, being by such rule conferred or imposed on the Central Govt., has been directed under Sub-section (4) to be exercised or discharged by the Provincial Govt. shall in such circumstances & under such conditions, if any, as may be specified in the direction, be exercised or discharged by any officer or authority, not being (except in the case of a Chief Comr.''s Province) an officer or authority subordinate to the Central Govt.

The learned Chief Justice, Sir Patrick Spens, did not agree with the other Judges & held that Sub-section (5) was merely supplementary & afforded no ground for excluding the ordinary method by which the Provincial Govt.''s executive business was authorized to be carried on by Chap. 11 Part 3, Govt. of India Act, 1935. From the decision of the F.C. the Crown preferred an appeal to the P.C., who set aside the judgment of the majority as regards the necessity of the Governor being personally satisfied when an order for detention under Rule 26 was to be made, AIR 1945 156 (Privy Council) The following observations were made by Lord Thankerton:

Their Lordships are unable to agree with such a narrow reading of these provisions, which would involve the necessity of the Federal Legislature making provision In each case for the executive machinery to carry out the powers & duties so imposed, instead of using the existing Provincial machinery. This view is supported by Sub-section (4) of Section 124.... Their Lordships construe Sub-section (2) of Section 49 as providing an extensible limit & not a maximum limit, & the provisions of Sub-section (2) of Section 124 as affording a means of such extension.... It is for the same reasons that their Lordships are unable to accept the resps'' contention, also agreed to by the majority Judges in the F.C., that the provisions of Sub-section (5) of Section 2, Defence of India Act, provides the only means by which the Governor can relieve himself of a strictly personal function.

His Lordship upheld the dictum of Spens C.J. that the Governor need not be personally satisfied as to the matters set out in Rule 26 & that if there was satisfaction of a subordinate officer of the Govt. duly authorised to Act in this behalf, this was quite sufficient. In view of the words of Article 154 of the Constitution, the principle laid down by their Lordships of the P.C. must be applied to the present case.

S. Balwant Singh, Deputy Secretary, Home Dept. who was examined as a witness for the petnr. stated in clear words that the order for Hari Singh''s arrest & detention was made by the Chief Secretary. The petnr.''s counsel, S. Tirath Singh, contended that the order cannot be held legal unless it is proved that the Caief Secretary was duly authorized by His Highness the Rajpramukh to Act on his behalf & that he was duly satisfied that the detention was necessary with a view to preventing the detenu from acting in any manner prejudicial to Public safety, etc The contention of Mr. Chetan Dass, who appears for the State Govt. is that because of the provision contained in Article 166 of the Constitution, the Ct. is bound to presume that the order made by the Chief Secretary was legal & valid & the Ct. had no power to investigate whether the Chief Secretary was a person duly authorized to Act on behalf of the Rajpramukh or whether he passed the order after being duly satisfied. The words of Article 166 are:

(1) All executive action of the Govt. of a State shall be expressed to be taken in the name of the Governor;

(2) Orders & other instruments made & executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, & the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor;

(3) The Governor shall make rules for the more convenient transaction of the business of the Govt. of the State & for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.

It is in the evidence of S. Balwant Singh that the order relating to the arrest & detention of Hari Singh, though made by the Chief Secretary, was authenticated by him & according to the Rules of Business made by His Highness the Rajpramukh, he was authorized to authenticate such orders. Relying upon this statement of S. Balwant Singh, Mr. Chetan Dass, argued that the validity of the Chief Secretary''s order duly authenticated as it was by the Deputy Secretary could not be called in question. It is no doubt correct that the order in question was duly authenticated by the Deputy Secretary & according to the Rules of Business, which though not made under the Const. Ind., are still binding by virtue of Article 372 of the Constitution, he had the power to do so, but the effect of authentication is not that the order must be regirded as valid for all purposes. The concluding words of Clause (2), Article 166 are that when an order is duly authenticated, the validity of it shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. This means that if it is sought to attack the order on any other grounds, one cannot be prevented from doing so. This was the view taken by Spena C.J. in the F.C. case & was upheld by their Lordships of the P.C. later on.

Section 59, Govt. of India Act, 1935 upon which the Crown reld. in those cases was similarly worded as Article 166. Clause (ii) of the section read as below:

Orders & other instruments made & executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor & the validity of an order or instrument which is be authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.

While referring to the arguments advanced on behalf of the Crown, this is what Lord Thankerton remarked:

In the opinion of their Lordships, the contention of the Crown goes too far, as the sub-section only relates to one specified ground of challenge, viz, that the order or instrument was not made or executed by the Governor.

His Lordship approved the observations made by Spena C.J. in the F.C. which I may quote here with advantage:

The first question which arises is whether having regard to the recital contained in these orders, which on the face of them appear to be validly made, it is permissible for the truth & accuracy of the recital to be inquired into by this Ct. It was suggested that Section 59(2), Constitution Act, made it impossible for any such inquiry to take place. In my judgment, however, Section 59(2) prohibits a duly authenticated order being called in question on one ground & one ground only, viz. that it is not an order or instrument made or executed by the Governor. It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where that recital purports to Slate as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case, the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a Ct. as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate. If, however, in any case, a detenu can produce admissible evidence to that effect, in my judgment, the more existence of the recital in the order cannot, prevent the Ct. considering such evidence, & if it thinks fit, coming to a conclusion that the recital is inaccurate.

Rolying upon those weighty pronouncements I hold: (i) that when an order expressed to be made by the Rajpramukh & authenticated by a person authorised in this behalf by the rules is produced it shall be accepted as an order made by His Highness the Rajpramukh; & (ii) that if the order contains a recital of a fact under Clause (2) of Article 166, the presumption in so far as it relates to its execution, does not extend to the correctness of that recital, that is to say, the Ct. can go into the matter & decide whether or not the recital was correct or not. This means that it is open to me to decide whether the Chief Secretary who made the order on behalf of His Highness the Rajpramukh satisfied himself about the necessity of detention before he made the order.

There is abundant authority for the proposition that in a case of this kind the onus it initially upon the State to prove that the authority who made the order of detention was satisfied in respect of its necessity. Mr. Chetan Dass contended that since an order expressed to be made in the name of the Rajpramukh & duly authenticated by a person authorised is this behalf has been produced the onus shifts to the other side. This contention is borne out by the observation made by their Lordships of the P.C. in the case mentioned above. The question now to be determined is whether the detenu has been able to prove that the satisfaction of the Chief Secretary did not exist as a matter of fact. It may be observed in this connection that the Deputy Secretary was put in the witness box by the detenu. The reason why this was done was that the Govt. had put in the Deputy Secretary''s affidavit in support of its allegation that the order of detention was made after the Govt. had been fully satisfied & it was thought that the person who was satisfied on behalf of the Govt. was the Deputy Secretary. At the time the counsel for the State put in his written statement he must have been aware that the order for the arrest had been made by the Chief Secretary & it was the Chief Secretary''s satisfaction that had to be established. It is true that the detenu did not take any steps to have the Chief Secretary examined as a witness even after the Deputy Secretary had definitely stated that the Chief Secretary made the order of detention, but he cannot be penalised for this reason alone. After all there was a duty cast upon the Govt. & my opinion is that its failure to put the Chief Secretary in the witness box & give the other side an opportunity of cross-examining him is significant. The other important fact in this connection is that on the day the order for Hari Singh''s detention was made the Chief Secretary made twenty six other orders of the same kind & for all the orders a cyclostyled form which must have been got ready for the purpose was used. As has been mentioned in the earlier part of this order Hari Singh was first arrested under the orders of an Asst. Sub Inspector & was ordered to be detained for a month. Later on, on 9-1-1950 his period of detention was extended to three months. It is within my knowledge that an appln. u/s 491, Code of Criminal Procedure was then made in respect of Hari Singh & I released him on bell. He remained on bail for about a month & while the previous appln. was still pending the order for his detention under the Preventive Distention Act which is the subject matter of the present petn. was made. The Deputy Secretary was definitely asked if all the orders made by the Chief Secretary on the day he made orders for the detention of Hari Singh related to persons who had bean arrested by the same Asst. Sub-Inspector who had detained Hari Singh. In the first instance he expressed his inability to say but he did not deny this assertion. I am aware that the Deputy Secretary also stated that the Govt. had been receiving reports from the Police, including Diaries of the C.I.D. officers regarding the activities of the detenu & other persons & further that the Govt. was satisfied that it was necessary to detain him but he did rot definitely state what he meant by the term Govt. & which officer of the Govt. received the material & was satisfied as alleged by him. In any case, he did not state in so many words that the Chief Secretary was satisfied & this coupled with the fact that the Govt. neither pub the Chief Secretary in the witness-box nor did they produce any affidavit of his, makes me think that the satisfaction of the Chief Secretary was wanting & that the probability is that while making the fresh order of detention on 28-2-1950, the Govt. merely maintained the previous action taken by the Asst. Sub-Inspector.

One other fact may also be mentioned in this connection & it is this, The Deputy Secretary stated that none of the reports received by the Govt. after the period of detention showed that Hari Singh had indulged in any kind of subversive activities after he was released on bail. This further strengthens my conclusion that the present order of detention was made on the strength of the material that existed before Hari Singh was ordered to be detained for the first time & that no fresh material came to exist thereafter.

The result is that I accept the petn & order that Hari Singh be released forthwith.