Joginder Singh vs The State

Chopra, J.—This is an application u/s 491, Code of Criminal Procedure, for the release of Ganda Singh, son of Narain Singh, of Nagri from the Central Jail, Patiala, where he was alleged to be illegally detained. It was submitted that no order of detention had been served upon or communicated to the detenu & that if any order had been made, that was not by a competent authority & was passed with some ulterior motives without the required satisfaction of the detaining authority. As regards the grounds of detention communicated to the detenu, it was stated that they were baseless & concocted. In the reply on behalf of the State it was urged that Ganda Singh was detained for six months by a valid order of the Govt. which had been duly served to the detenu. It was further maintained that the order had been made by a competent authority on the satisfaction that the detention was necessary with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. The particulars supplied in the grounds of detention communicated to the detenu on the very day of his arrest, were stated to be all true & within the scope of the Act. A copy of the detention order, dated 21-10-50, purporting to be signed by the Deputy Secretary to the Govt. & also a copy of the grounds of detention served on the detenu were put in with the reply. The order says that His Highness the Rajpramukh was satisfied with respect to Ganda Singh that his detention for six months under Sub-section (1) of Section 3, Preventive Detention Act, was necessary for preventing him from acting in a manner prejudicial to the maintenance of public order. He was, therefore, ordered to be detained for the said period in the police lock-up Sangrur. In the grounds of detention it was mentioned that the detenu was a habitual harbourer of dacoits & that he had harboured the gang of a notorious dacoit, Dulla Singh, on 1st, 2nd, 3rd & 4th October, 1950 in the crops of his village & supplied them with meals.

A number of points are raised by Shri Daya Sarup, the learned Counsel for the Petitioner, against the validity of the detention order & the legality of further detention of the detenu. In the first instance it was contended that the resp. had not produced the order by which the detenu was arrested & detained, What had been placed on the record was only a copy of some order certified as a true copy by Shri Chetan Das, A.A.G. The argument is that the Govt. should have on the issue of this Rule produced the original order & that the copy placed with the reply could serve no useful purpose. Refuting the argument Shri Chetan Das urges that a copy of the original order which had been & was still with him was placed on the record according to the general practice in such cases and that the original was shown in Court & also to the counsel on the opposite side. No objection on any of the previous hearings of the case & when the evidence of the parties was recorded having been taken, the original remained with him, & that he was now putting it on the record. Technically the objection of the counsel for the Petitioner is correct. The resp. should have produced & placed on record the original order, or a copy thereof permissible under the law. But in view of the fact that no objection to the placing on record of the copy was taken at any previous stage of the case & the original having been now put in, it cannot be said that the arrest & detention of Ganda Singh were without any order of the Govt. or that the same were unauthorised. I is also significant that the Petitioner examined S. Balwant Singh who signed the order on behalf of the Govt., as his witness & got elicited from him facts that resulted in the said order. He deposed that on receipt of information regarding the subversive activities of the detenu the matter was got verified from various officers of the C.I.D. as well as the Inspector General of Police. All the material along with the proposal of the Inspector General of Police was placed before the Minister-in-charge who made the detention order in this case. The counsel during examination of this witness did not ask for the original to be produced or put to the witness. He in fact did not challenge the allegation of the resp. that there was an order of the Govt., which was signed by the witness on its behalf. In the face of these facts & the original being now before me & having been put on the record, the objection looses all its force. The facts of the case, Gokulchand v. Emperor AIR (32) 1945 Nag. 203, cited by the learned Counsel in support of his argument were, however, quite different. In that case the original order of detention was never brought before the Court & the Crown relied only on an uncertified copy of the order. The District Magistrate to whom a notice had been issued to produce the order under which the applicant was detained, said in reply that it was not with him & that it could be obtained from the Superintendent of the Jail. On a requisition made to the latter, he produced an order which had been superseded by the one on which the Crown wanted to rely, & a copy of which had been produced. Under these circumstances it was observed that it was not the business of the Court to go from one authority to the other to get the original order or detention, & that the Court could not act merely on an uncertified copy that had been brought on the record.

Next it is urged that it is incumbent on the executive to deliver a copy of the order of arrest & detention to the detenu & the same having not been done in this case the detention was illegal. I do not find anything in the law under which the detention was ordered, which makes it obligatory on the detaining authority to supply the person ordered to be detained a copy of the order of detention. The purpose of the Act would be served if he is informed of the purport of the order. It is not contended that no such thing was done in this case. It is, no doubt, salutary that a copy of the order along with the grounds of detention should also be served on the detenu, particularly if one is demanded, but the mere fact that no copy was supplied does not make the arrest or detention illegal.

Another & the main objection taken by Shri Daya Sarup is that the order which had been made on behalf of His Highness the Rajpramukh cannot be held legal unless it is proved that he was personally satisfied that the detention was necessary with a view to preventing the detenu from acting in a manner prejudicial to Public order. It having been brought into evidence that the order which was authenticated by the Deputy Secretary, was made by the Minister & there being nothing to show that the matter ever went up to His Highness the Rajpramukh, it is contended, the order was without authority & illegal.

Section 3(1), Preventive Detention Act, under which the order in question was made, provides that the State Govt. may if satisfied, with respect to any person that with a view to preventing him from acting in a manner prejudicial to the maintenance of Public order it is necessary so to do, make an order directing that such person be detained. Section 2 of the Act does not define "the State Govt." in Part B States. The Covenant entered into by the Rulers of the Covenanting States of this Union authorised His Highness the Rajpramukh to exercise all executive authorities of the Union either directly or through officers subordinate to him. On the formation of the Union, an Ordinance with a view to provide for the administration of the Union was promulgated by His Highness the Rajpramukh under Proviso to Article X(2) of the Covenant. This was Ordinance No. 1 of 2005 & its Section 11 is as follows:

(1) All executive action of the Govt. of the Union shall be expressed to be taken in the name of the Rajpramukh or of the Govt. of the Union.

(2) Orders & other instruments made & executed in the name of the Rajpramukh or the Govt. of the Union shall be authenticated by any Secretary, Additional Secretary, Joint Secretary. Deputy Secretary, Under Secretary or Assistant Secretary to the Govt. of the Union or by such other person or authority as may be prescribed by the Rajpramukh by rules made in this behalf, & the validity of any 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 Rajpramukh or the Govt. of the Union.

This Ordinance was, however, repealed by Ordinance No. XVI of 2005, but Section 10 of the latter Ordinance was substantially the same as Section 11 of the one repealed. By Ordinance No. XVIII of 2005 the Ordinance XVI was further amended & a third clause was added to Section 10. This is the following:

(3) The Rajpramukh may make rules for the more convenient transaction of the business of the Govt. & for the allocation among the ministers of the said business.

The Constitution of India was made applicable to the Union by a proclamation issued by His Highness the Rajpramukh on 24-11-1949 & that is, therefore, now the law for this Union as well. All laws in force in the Union immediately before the, commencement of the Constitution were kept in force for the purposes of the Union, by Article 372(1) of the Constitution so far as they were not repugnant or contrary to the provisions of the Constitution itself. A provision similar to Article 9 of the Covenant was made in Article 154(1) of the Constitution, which reads as follows:

154(1) 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.

Section 10 of Ordinance XVI as amended by Ordinance XVIII is in accord with Article 166 of the Constitution, which is as follows:

166(1) All executive action of the Govt. of the 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 ball 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 in not business with respect to which the Governor is by or under this Constitution required to act in his discretion.

By virtue of Article 238 of the Constitution, the words "Governor" in Articles 154 & 166 are to be read as "Rajpramukh" for their application to Part B States.

In view of these provisions of law, it must be held that the order of detention which purports to be issued on behalf of His Highness the Rajpramukh was only a formal expression of the fact that the State Govt. was satisfied that the detention was necessary for preventing the person ordered to be detained from acting in a manner prejudicial to the maintenance of public order & that the order which was authenticated by the Deputy Secretary, was made by the State Govt. It did not mean that the order had been made by His Highness the Rajpramukh himself or that it was the result of his personal satisfaction.

The next question that arises is whether His Highness the Rajpramukh could delegate his powers to act under the Preventive Detention Act to any of his subordinates, including the Minister by whom the order of detention in this case was made. Shri Daya Sarup maintains that the Act being a Central Act, the Governor or the Rajpramukh, as the case may be, who represents the Provincial Govt., could not delegate the powers enjoined by the Act to be exercised by him, to any of his subordinates in the usual course of business of the State. The argument is that since the Preventive Detention Act provided that the State Govt. by which is meant the Rajpramukh in Part B States, could make an order of detention after the required satisfaction it was for his Highness the Rajpramukh himself to pass the order after the necessary satisfaction. The delegation of his powers for other matters of administration of the State did not & could not include his powers to act under the Act. The argument is based upon the majority view expressed in a decision of the Federal Court in AIR 1943 75 (Federal Court) & Harkishan Das v. Emperor AIR 1944 Lah. 33 , in which that view was followed. The majority decision of the Federal Court as regards the necessity of the Governor being personally satisfied when an order of detention was to be made, was, however, set aside by their Lordships of the Privy Council in AIR 1945 156 (Privy Council) & it was held that:

such matters as those which fell to be dealt with by the Governor under Rule 26 could be dealt with by him in the normal manner in which the executive business of the Provincial Govt. was carried on.

It may be mentioned here that the case related to an order under Rule 26, Defence of India Rules & the powers of the Governors under consideration were those conferred by Section 49, Govt. of India Act, 1935. The dictum of their Lordships that the Governor need not be personally satisfied as to the matter set out in Rule 26, Defence of India Rules, would be applicable with the same force to a case under the Preventive Detention Act & to the powers conferred by Article 154 of the Constitution, since the two are almost identical with the provisions of the law then in force. The view was accepted as applicable to the present set of laws by the learned. Chief Justice of this High Court in a recently decided case Hari Singh v. State 2 Pepsu L.R. 402, with which I am in respectful agreement.

For the more convenient transaction of business of the Govt. of the Union, Rules of Business were framed by His Highness the Rajpramukh & they came into force on 20-8-1948. Rule 5 of these Rules provides that the Rajpramukh shall allot among his Ministers the business of the Govt. by assigning each department of the Secretariat to the charge of a Minister. By Rule 7 all orders or instruments made or executed by order or on behalf of the Govt. of the Union are to be expressed to be made by or by order of the Rajpramukh. Rule 8 reads as follows:

Every order or instrument of the Govt. of Patiala & East Punjab States Union shall be signed by either the Chief Secretary, the Secretary, the Additional Secretary, the Joint Secretary, the Deputy Secretary the Additional Deputy Secretary, the Under Secretary, the Additional Under Secretary, the Assistant Secretary, or the Additional Assistant Secretary to the Govt. of Patiala & East Punjab States Union & such signatures shall be deemed to be the proper authentication of such order or instruments.

Now, it is not disputed before me that the questions of detention fall to be transacted in the Home Department & therefore, the Minister in charge of this Department was competent to make the order of detention on behalf of His Highness the Rajpramukh & the order could be authenticated by the Deputy Secretary dealing with the department.

Lastly it is urged that the facts stated in the grounds of detention supplied to the detenu could not possibly be true & therefore it should be concluded that the detaining authority was not in fact satisfied that the detention was necessary. Reliance in this connection is placed on the fact that the Minister only said "Yes" to a proposal made by the Inspector General of Police. The order of the Minister is described by the counsel as only a formal "Yes" without devoting his mind to the material placed before him & satisfying himself that the detention was necessary to restrain the person detained from acting in a manner prejudicial to the maintenance of Public order. Much stress is being laid on a report made by the detenu to M. Brij Lal Head Constable, Sunam on 30-9-50, on which a case u/s 364, I.P.C., was registered in Sunam Police Station. A copy of this report (Ex. D.A.) was placed on the record & M. Gurnam Singh S.H.O. was examined to prove it. The detenu in the report alleged that on 29-9-1950 some dacoits came to his village (sic) & kidnapped his son & a grand-son & that Rs. 10,000 were being demanded from, him for the return of the boys. Some witnesses were also examined to prove the truth of these allegations & also to show that the detenu was a respectable person bearing a good moral character. The argument advanced is that a person whose own children had been kidnapped by dacoits on 29-9-1950 & who was seeking the help of the Custodians of peace & order for the return of the body, could not be expected to have harboured the gang of Dulla Singh dacoit on 1st, 2nd, 3rd & 4th October, 1950 in his village as stated in ground No. 1, nor would he be a habitual harbourer of (sic) as alleged in ground No. 2. Shri Chetan Dal, on the other hand, contends that the facts stated in the report & relied upon by the counsel rather go to show that the detenu had some sort of association with the gang of Dulla Singh & the boys might have been kidnapped for that reason by members of an opposite gang, or that the detenu might be seeking the help of Dulla Singh for the restoration of his boys, & therefore, giving him shelter in his village That may or may not be so. But the scope of a petition u/s 491, Code of Criminal Procedure being very much limited, I am not here to enquire into the truth or falsity of the allegations made against the detenu, nor am I to see to the sufficiency of the material on which the satisfaction of the detaining authority was based. To allow a Petitioner to show that an order of arrest or detention is based upon incorrect or wrong information would tantamount to an enquiry into the merits of the order. u/s 491, Code of Criminal Procedure, this Court can order that a person be sot at liberty if it is made out that he is illegally or improperly detained, but if the conditions regarding competency of the authority who makes the order & his satisfaction are shown to exist, the fact that he was misled by the material on the strength of which he acted or the information that was placed before him was wrong, does not make the arrest illegal or improper. The Court is not also to see if the detaining authority should have been satisfied on the material placed before him. If the material is relevant the quantum of evidence as well as the propriety of the inference drawn therefrom would not be matters for consideration of the Court, they being matters left with the executive which has latitude of choice. Even if I were to take into consideration the facts relied upon by the counsel I do not find any impossibility in the facts alleged against the detenu.

The mere fact that the Minister only noted "Yes" on the proposal of the Inspector General of Police does not lead me to conclude that he passed the order without devoting his mind to the material before him & without in fact satisfying himself that the detention was necessary.

It is well settled that the more fact that a person has committed an offence or that he has been convicted for an offence would not by itself afford a ground for detaining him u/s 3, Preventive Detention Act, but his antecedent conduct in committing the offence may he taken into consideration by the detaining authority in arriving at the conclusion that he was likely to act in a manner prejudicial to the maintenance of the public order. In the present case the detenu was complained of being in the habit of harbouring dacoits & affording thorn projection & supplying information be them of movements of the police, & particular instances of when & where he had harboured certain dacoits were mentioned in support of the belief that he was likely to do so in future also with a view to avoid which the detention was considered necessary There is, therefore, no force in the contention of Shri Darya Sarup that the Act being only preventive & not punitive the detenu could have been tried for harbouring the dacoits & should not have been detained under the Act. Again I cannot agree with him that harbouring of dacoits is not a matter for consideration for the maintenance of public order. The atrocities that dacoits are now-a-days committing in villages are too well known, & parsons who facilitate these dacoits in the commission of their misdeeds by supplying them protection & information of the movements of the police, & thereby render efforts to arrest them futile, are no less dangerous to the public safety. The facts of the case Lalu Gope Vs. The King, cited by the learned Counsel in support of his argument, are clearly distinguishable. The person detained in that case was complained of being in the habit of committing thefts in running goods trains & he was ordered to be detained because if left at large, he would again indulge in thefts of goods from the running trains. The detention was held to be illegal because committing thefts in running goods trains is not an Act prejudicial to the maintenance of public safety or order. Public safety which meant the safety of the community, could not be meant to include the safety of the goods of individual members of the public. The activities of the dacoits, however, are not restricted only to property of the people; they are a direct menace to their lives & personal safety also.

I do not feel convinced that there is anything illegal in the detention & do not find any force in the petition. It is, consequently, dismissed.