Hari Singh vs The State

Passey, J.—By his order dated 19th of April 1950, the learned Chief Justice referred the following two points of law, (1) whether the Preventive Detention Act of 1950 (No. IV [4] of 1950) is intra vires of the Indian Parliament and (ii) whether it is open to a detaining authority to make an order of detention on the ground that the person sought to be detained has committed an offence, to this Bench, as it was deemed necessary to do so in view of their importance and of the conflict in pronouncements by different High Courts in India and of the fact that they have been raised in several cases and are likely to arise in future.

Hari Singh Petitioner was arrested on the 27th of Magher, 2006 u/s 3 of the Patiala & East Punjab States Union Public Safety Ordinance of 2006 (No. VII [7] of 2006) because he was harbouring dacoits, providing them with meals and information of contemplated police raids and of thus facilitating the commission of dacoities and frustrating police efforts to arrest the dacoits. On 29-9-2006, he moved this Court u/s 491, Code of Criminal Procedure contending that his detention was outside the purview of the provisions of Section 3 and that no report of his arrest and detention had been made to the State Government and that he had not been informed of his right to make a representation. It was also urged by him that the order of his detention was vindictive and had no bona fides behind it. These allegations were being investigated and on 30-12-1949 he was enlarged on bail. On 3-12-2006 the Court was informed that fresh orders for the arrest and detention of Hari Singh u/s 3 of the Preventive Detention Act of 1950 had been made by His Highness the Raj Pramukh on 28-2-1950. In view of that order the application became infructuous and was, therefore, dismissed. A fresh application u/s 491, Code of Criminal Procedure containing a prayer for a writ of habeas corpus upon the State so that the applicant who is alleged to be unlawfully detained in the Patiala Central Jail may be set at liberty, was submitted on his behalf on 3-12-2006 and the validity of the order u/s 3 of the Preventive Detention Act of 1950 was impugned. The reference has arisen out of that application and the same points are also involved in Misc. Application No. 201 of 2006 (Munshi v. State) and No. 202 of 2006 (Kaur Singh v. State).

In view of the judgment of the Supreme Court of India in A.K. Gopalan v. State of Madras decided on the 19th of May 1950, no decision of the question as to whether the Indian Legislature could validly enact the Preventive Detention Act of 1950 should not be called for as the law declared by that Court is binding on all Courts within the territory of India. It has been held by the Supreme Court in the case above mentioned that Act IV [4] of 1950 except Section 14 thereof is not outside the constitutional powers of the Parliament and is, therefore, a valid law of the country.

The Preamble of the Act (No. 1950) and its nomenclature indicate that the object with which this law was passed was to provide for preventive detention in certain cases and matters connected therewith. Section 3 confers powers on the Central Government or the State Government, to direct a person to be detained in case it is satisfied that with a view to preventing him from acting in any manner that may be 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; it is necessary so to do. Detention under orders of the same authority is also permitted if that authority is satisfied 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 to detain a person who is a foreigner within the meaning of the Foreigners Act, 1946 (XXXI [31] of 1946). Powers conferred by Sub-section (1) are exercisable in cases covered by Sub-clauses (ii) and (iii) of Clause (a) also by District Magistrates, Sub-Divisional Magistrates and Commissioners of Police in Presidency Towns. The Legislature in making this law has conferred upon the Central Government, the State Governments and the officers mentioned in Clause (2) of Section 3, the discretion in appropriate cases, falling within their competency, to enforce it. Section 3 does not prescribe or set out any hard or fast rules providing a guide to Courts to determine whether the order of detention is in conformity with what the section contemplates and the words ''if satisfied appear to grant an unfettered discretion to the competent authority to exercise the powers conferred by the section if he is satisfied of the necessity of making an order of detention. So far as the ''satisfaction'' of the detaining authority goes, it need not be based on legal or admissible evidence and it may not be based on as abundant or credible a material as would ordinarily be required to be produced before a Court when a person is put up for judicial trial. Even meagre or hearsay information or strong suspicion can suffice to be an adequate ground for satisfaction but the basis of the satisfaction at the hands of the detaining authority must not be such that no reasonable person or person of ordinary prudence would be satisfied that the person sought to be detained, would act in a manner prejudicial to public safety or Public tranquillity. In the latter class of oases there would be justification for inferring want of good faith on the part of the Government and Courts would not hesitate to declare the detention illegal.

The learned Counsel for the applicant in support of his contention that a person cannot be detained merely because he is alleged to have been concerned in the commission of an offence, has cited Kameshwar and Others Vs. Rex, Gyanendra Kumar Jain Vs. The Crown, Lalu Gope Vs. The King, and In Re: Devata Lakshminarayana,

In Kameshwar v. Rex AIR (35) 1948 All. 440, it was argued that the grounds that were supplied to the detenu made out an offence under the law and that he should have been prosecuted under the substantive law, as it was improper to detain him for something, which amounted to an offence already committed by him. This argument was not accepted, and it was observed by Wanchoo J. that

it may be that the authorities might have prosecuted the applicant for inciting labour to go on illegal strike but that would not take away the power of detention u/s 3 of U.P. Act IV [4] of 1947. After all this Act is meant for action in emergency which requires that the person concerned should be immediately put under restraint and stopped from continuing the course of conduct which led to his detention. That may not be possible to achieve if there can only be prosecution for any offence that might have been committed incidentally. I, therefore, see no reason to hold that the applicant''s detention is improper because he could have been prosecuted for some offence under the labour laws.

Gyanendra Kumar Jain v. The Crown AIR 1950 E.P. 162 was a case in which a man was arrested and ordered to be detained u/s 3, East Punjab Public Safety Act of 1949 after having been originally arrested on a specific charge which had collapsed. It was under those circumstances held that there must always remain strong suspicion, that his detention had been ordered on the very facts which formed the basis of the specific charge against him and which could not be substantiated in a Court of law. After the date of his first arrest the detenu''s conduct could not have furnished any fresh material against him and to that extent the bona fides of the order had become doubtful.

The case In Re: Devata Lakshminarayana, came up before Satyanarayana Rao J., on a difference of opinion between the two Judges who had heard it originally. The detenu had been arrested for having committed an offence punishable under the Explosive Substances Act, 1908 by transporting certain explosive substances from Bezwada to Jeggayyapet, but instead of being brought to trial for that offence an order of detention under Madras Act I [1] of 1947 was served on him a month after. The grounds of detention supplied to the detenu merely stated that the detenu was clandestinely transporting certain explosive substances to Communist camps in Hyderabad State but they did not show how the supply of those explosives to Communists in Hyderabad State would endanger the tranquillity of the Madras Province. Satyanarayana Rao J. agreed with the view of Horwill J. that as the ground mentioned was entirely outside the purview of the Act, the order of detention was not justified, and he further held that if the object of the detenu was to supply explosives to the Communists in Hyderabad State it was difficult to see how that activity of his could be calculated to endanger the public safety and maintenance of public order in the Presidency. The Government in the first instance wanted to prosecute the detenu under the Explosives Act but abandoned the idea later. This conduct of the Government was taken to afford basis for inferring lack of good faith and that the Government did not really believe in the truth of the allegations that were made against the detenu. It was further observed by the learned Judge that the Madras Maintenance of Public Order Act was not intended to enable the Government to deprive the liberty of a subject by first putting forward a case which they knew fully well could not be substantiated in a Court of law and then taken advantage of the provisions of the Madras Act, I [1] of 1947 and detain the person in jail.

In Lalu Gope Vs. The King, the fact were also different. Lalu Gope had been detained under the Bihar Maintenance of Public Order Act (V [5] of 1947) on the ground that he was a habitual criminal, convicted and suspected of committing theft in running goods trains and that if allowed to remain at large, he would again commit similar thefts. It was held by a Division Bench consisting of Shearer and Reuben JJ. that the words ''public safety used in the Bihar Maintenance of Public Order Act, 1947 could not be read as meaning the safety of the goods of individual members of the public and that ''public safety'' meant the safety of the community. The Act under which action had been taken, so far as it empowered detention of persona on grounds of their being habitual criminals was held to be ultra vires of the Provincial Legislature, as no order of the Governor General as contemplated by Section 104 of the Government of India Act had been obtained by the Provincial Government. Regarding the ultra vires nature of the Act, a different view, however, has been held in Muzaffer Mahmood v. The Crown A.I.R.1950 Sind 18 by a Division Bench consisting of Tyabji C.J. and Constantino J.

It will thus be seen that none of the authorities cited by S. Tirath Singh is directly. relevant and that those cases were decided in view of their peculiar facts. The learned Assistant Advocate-General has on the other hand referred to S.S. Yusuf Vs. Rex, in which it was held by Kidwai J. that:

Section 3 does not authorise the detention of any person who has acted in a manner prejudicial to Public safety, etc. but only of a person who is to be prevented from acting in a prejudicial manner. The enactment is not penal but preventive, and the past conduct of a person is only to be considered in so far as it provides a clue to what is expected of him in the future. If the authority to be satisfied is convinced that the actions of the detenu, though they relate to private property in the past, give indication that he will so conduct himself in the future as to cause prejudice to Public safety or Public order, it is not for the Court to sit in judgment over this.... The satisfaction may depend upon materials available to the detaining authority....

In Venkataraman v. The Commissioner of Police, Madras AIR 1949 Mad. 605, it was held that

it is not correct to say that while passing an order of detention u/s 3, the antecedent conduct of the detenu cannot be taken note of by the authority concerned to satisfy himself whether he is acting or is about to act in a manner prejudicial to public safety. The antecedent conduct will certainly afford data or furnish reasonable grounds in finding out the present attitude of the person concerned.

With this observation and interpretation of the law I am in complete agreement. An order of detention would not be protected from being impugned and reversed if it was not made in compliance strictly and within the range of powers given by the Act to the detaining authority. In A.K. Gopalan v. State of Madras, it was held by the learned Chief Justice of India (Sir H.J. Kania) that for ''preventive detention'' action must be taken on good suspicion. It has to be borne in mind and the language of Section 3 of Act IV [4] of 1950 is plain enough that the intention of the Legislature is not to send persons to jail for acts of offences committed by them in the past but to ensure that no person within the territory of India indulges in subversive activities or activities that are likely to provoke a breach of the public tranquillity or are likely to be prejudicial to the defence of India etc. mentioned in Section 3. It cannot be possible to draw up an exhaustive list of actions that can be styled as subversive or prejudicial and in each case the question has to be left to be determined according to the light and discretion of the detaining authority.

Although, therefore, the mere fact of a person having committed an offence or of his having been convicted for one before would not by itself be a ground for detaining him under the provisions of Section 3 of Act IV [4] of 1950, yet it cannot be laid down that his antecedent activities cannot be taken into account by the detaining authority in forming the view that he was likely to act in a manner prejudicial to public safety. In view of what has been observed and discussed by me above, I would answer the second question raised in the reference in the negative but would add that 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.

Teja Singh, C.J.

I agree.

Chopra, J.

I concur.