Mohan Punamia and Others vs State of Rajasthan and Others

Bhargava, J.—These six applications are for a writ of habeas corpus u/s 491 of the Code of Criminal Procedure and since they raise common question of law, they are being disposed of by this common judgment.

Petitioner Mohan Punamia was detained under Rule 30 (1) (b) of the Defence of India Rules 1962 (hereinafter referred to as the Rules) by the order of the District Magistrate, Jaipur dated 29th December 1964 which was subsequently confirmed by the State Government on 6th February 1965. The detention was further continued by the orders of the State Government dated 24th June, 1966 and 14th December, 1965. The petitioner filed an application through his counsel challenging his detention on 9th March, 1966 and another application D. B. Criminal Misc. No. 246 of 1966 was also forwarded to this Court through the Superintendent District Jail, Bikaner.

Pritamsingh petitioner was detained under Rule 30 (1) (b) of the Rules by the Order of the District Magistrate, Gariganagar dated 18th January, 1965 which was subsequently confirmed by the State Government on 6th February, 1966 and was further continued by orders dated 24th June and 14th December, 1965. An application u/s 491 of the Code challenging the aforesaid detention was made by the petitioner through the Deputy Superintendent District Jail, Ganganagar on 10th March, 1966. Another application u/s 491 of the Code has been made through counsel on 9th March, 1966.

Ramsingh petitioner had been detained in the District Jail, Bikaner under Rule 30 (1) (b) of the Rules by the order of the District Magistrate, Pali dated 29th December, 1964 which was subsequently confirmed by the State Government on 22nd January, 1965. The detention was continued by further orders of the State Government dated 24th June and 14th December. 1965 Application u/s 491 of the Code was submitted to this Court on 9th March, 1966 on behalf of the petitioner by his counsel.

Anokhasingh was detained in the District Jail, Ganganagar by the order of the District Magistrate. Ganganagar dated 9th November, 1964 which was subsequently confirmed by the State Government on 7th December, 1964. The detention of the petitioner was further cot tinued by the order of the Stale Government dated 6th May and 2nd November, 1965. An application u/s 491 of the Code was forwarded by the petitioner through the Deputy Superintendent. District Jail Ganganagar and was received in this Court on 24th March, 1966.

During the pendency of all these applcalions the Stale Government in the case of Mohan Punamia, Pritamsingh and Ramsingh cancelled the previous order of detention on 21st March, 1966 and issued a fresh order of detention on the same date under Rule 30 (1) (b) of the Rules. In the case of Anokhasingh the previous order of detention was cancelled by the State Government on 30th March, 1966 and on the same date a fresh order of detention was passed. In view of the fresh orders of deters tion being passed against the petitioners fresh grounds challenging the order of detention dated 21st March, 1966 were submitted on behalf of Mohan Punamia, Pritamsingh and Ram Singh on 28th March. 1966.

It is unquestionable that in these applications u/s 491 of the Code what is to be seen is the legality of the present detention of the petitioners. Since the previous orders have been cancelled by the State Gov eminent, it is unnecessary for us to examine the validity of those orders because the petitioners are now under detention by the orders passed on 21st and 30th March, 1966. The petitioners challenge their detention under the fresh orders on these grounds:

that the detention order was served upon the petitioners without releasing them at all.

that the order detaining the petitioners does not bear the signatures of any one and at any rate of the detaining authority,

that the order is not in accordance with law not having been made by the proper authorities nor properly authenticated,

that the order has been passed in most mechanical manner without applying the mind and purports to have been issued because the petitioners'' detention was considered necessary with a view to preventing them from acting in any manner prejudicial to the Defence of India and Civil Defence, the public safety and the maintenance of public order, all different grounds, of which all the petitioners could not be held responsible at a time. The authority ordering detention has not acted with full sense of responsibility keeping in view the interest of the country and the importance of the citizens in democracy.

However, at the time of arguments, learned counsel for the petitioners did not presses grounds Nos. 2, 3 and 4 and rightly so because the order is ex facie an order regularly made by the Slate Govt. in exercise of the powers under the Rules and is duly authenticated. Learned counsel for the petitioners has now challenged the order of detention on the grounds:

that communication of the order upon the petitioners who were under detention and had not been released, was illegal.

that there was no occasion for the Stale Government to issue fresh orders of detention.

that the order seems to have been passed on the assumption that the petitioners had been released from jail but in fact they were not so released which shows that the orders were mechanically passed.

Before we proceed to deal with the above contentions, we would like to mention some facts which led the State Government as also appears from their reply to pass fresh orders of detention. It appears that one Atmasingh Mann was also detained by the order of the District Magistrate, Ganganagar, on 18th January, 1965 and his order of detention was continued by the State Government by order dated 14th December, 1965. Atmasingh filed an application under Article 226 of the Constitution of India for a writ of habeas corpus before this Court challenging the order of his detention The order of detention dated 14lh December. 1905 in the case of Atmasingh was in terms similar to those of the petitioners. In that case a Divisional Bench of this Court held that the order dated 14th December, 1965 was not valid because the Stale Government did not apply its mind to the recommendation made by the reviewing authority after the 24th June. 1965. Consequently, the order of detention was held to be illegal and was set aside (Cri. Misc. Habeas Corpus No 17 of 1964 decided on 21-2-1966 (Raj)).

It seems that after the above decision, the Slate Government issued what is called a corrigendum dated 8th March, 1966 to the order dated 14th December, 1965 in the case of one Manoranjan Mukerjee whose application for habeas corpus was also pending before this Court. The legality of the corrigendum was questioned in that application and again a Division Bench of this Court in Cri. Misc. Habeas Corpus No. 830 of 1965 (Raj) held that the order dated 14th December, 1965 was illegal and inoperative in law and the corrigendum issued subsequently could not validate it because it is the order of detention which is the basis and which has to be considered. It is in this background that the State Government realising that the order dated 14th December, 1965 was defective, issued two orders dated 21st March, 1966 one for the can cellation of the order dated 14th December, 1965 and the other for the detention of the petitioners (Annexures A and B respectively). In is admitted on behalf of the respondents that in pursuance of the order of cancellation the petitioners were nol released from jail in the sense that they were not set free and allow ed to leave the jail premises and that the fresh older of detention was served upon them while they were in jail.

The question which arises is whether a fresh order of detention of the petitioners would be validly served upon them while they vcre in jail. It is not disputed that a fresh order of detention could be made. What is challenged is this that service of that order could not be made upon the petitioners as long as they were confined in jail. In support of his contention learned counsel has placed reliance on two decisions of the Supreme Court viz., Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, and Makhan Sin(SIC) Makhan Singh Tarsikka Vs. The State of Punjab, though he has also brought to our notice later decisions of the Supreme Court in Godavari Shamrao Parulekar Vs. State of Maharashtra and Others, and Sahib Singh Dugal Vs. Union of India (UOI),

The two decisions relied upon by the learned counsel were considered and distinguished by the Supreme Court in Godavari Shamrao Parulekar Vs. State of Maharashtra and Others, It was held that "those two cases were concerned with the service of an order of detention under the Preventive Detention Act or under the rules on a person who was in jail in one of two circumstances, namely--(1) where he was in jail as an under-trial prisoner and the period for which he was in jail was indeterminate, or (2) where he was in jail as a convicted person and the period of his sentence has still to run for some length of time. In those cases the service of the order of detention under the Preventive Detention Act or under the Rules in jail would not be legal for one of the necessary ingredients about which the authority had to be satisfied would be absent, namely, that it was necessary to detain the person concerned which could only be postulated of a person who was not already in prison. In the present cases, however, the appellants were not under detention either as undertrial prisoners for an indeterminate time or as convicted persons whose sentences were still to run for some length of lime. They were detained under the Preventive Detention Act by an order of November 1, 1962 which had been reported to Government for approval and which order could only remain in force for 12 days u/s 3 (3) of the Preventive Detention Act unless in Ihc meantime it had been approved by the Slate Government. The State Government, however, decided on November 10, 1962 to revoke the order of the Commissioner of Police under the Preventive Detention Act and to pass an order itself under the rules. In those circumstances the principle of the two cases referred to above would not in our opinion apply, for the detention of the appellants depended upon the approval of the State Government. The Slate Government, however, decided to revoke the order of November 7, 1962 and instead decided to pass an order under the Rules on the same day, namely November 10, 1962 In these circumstances it would he in our opinion an empty formality to allow the appellants to go out of jail on the revocation of the orders of November 7, 1962 and to serve them with the order dated November 10, 1962 as soon as they were out of jail. Where the detention is not of two kinds considered in the cases of Rameshwar Shah and Makhan Singh Tarsikka and is either under the Preventive Detention Act or under the Rules, and its duration is dependent upon the will of the State Government, we cannot see any reason for holding that if the State Government decides to revoke an earlier order of detention it cannot pass a fresh order of detention the same day and serve it on the detenu in jail for the two orders are really of the same nature and are direct ed towards the same purpose" The same view was expressed by the Supreme Court in Sahib Singh Dugal Vs. Union of India (UOI), and Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, was distinguished. In a more recent ease decided by the Supreme Court on 27-10-1965 in the case of A.K. Gopalan v. Govt. of India. Writ Petns. Nos. 51 and 53 of 1965: A.K. Gopalan Vs. The Government of India, the Supreme Court has observed that

"It was not necessary to carry out the empty formality of release from jail under the orders of cancellation and then to arrest the persons released immediately they came out of jail and to serve on them the new order of detention dated March 1, 1965."

In this case also Godavari Shamrao Parulekar Vs. State of Maharashtra and Others, was cited with approval. Learned counsel tried to distinguish Godavari Shamrao Parulekar Vs. State of Maharashtra and Others, and pointed out that in that case the detenu was released when fresh order of detention was served on her. Attention is invited in the following on page 1130, Column 2.

"Here what has happened is that the earlier order of detention which is the basis of the present appeals has been revoked by the Government of Maharashtra on the ground of a technical defect and a fresh order of detention was passed on the same date, and the appellants were immediately rearrested after their release from jail under the fresh order of detention. Similarly it is urged that in the case of Sahib Singh Dugal Vs. Union of India (UOI), the order of detention was served on the petitioners after their release from jail. However, we find that in Godavari Shamrao Parulekar Vs. State of Maharashtra and Others, the contention which was raised on behalf of the appellants was that the detention order was served on the appellants while they were in jail and reliance was placed on the two previous decisions i.e., Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, and Makhan Singh Tarsikka Vs. The State of Punjab, If the appellants in that case had been released from jail when the notice of detention was served upon them, there was no room for the argument that service of order was bad because the appellants were in jail at that time. Again the two previous cases in that case could have been clearly distinguishable on the ground that the fresh order of detention was served after they had been released from jail. The above mentioned observations of the Supreme Court leave us in no doubt that notice of order of detention was served upon the appellants in that case while they were in jail, and that is why it was observed "that it would he in our opinion an empty formality to allow the appellants to go out of jail on the revocation of the orders of November 7 and to serve then with the order dated November 10, 1962 is soon as they were out of jail."

At any rate this clearly lays down the law that a fresh order of detention after the can cellalion of the previous order can he made on the same day and served on the detenu in jail. It has to be remembered that when the notice of cancellalion of the previous order of detention and a fresh order of detention of the same detenu are sent to the same authority in whose custody the detenu happens to be, he can only execute the order by serving both orders simultaneously on the detenu and it cannot be expected that he would allow the detenu to go nut of jail in pursuance of the order of cancellation and then re-arrest him in pursuance of the fresh order of detention. It would only he an empty formality, if we may say so with respect, as observed by the Supreme Court in Godavari Shamrao Parulekar Vs. State of Maharashtra and Others, We are therefore, of the view that there was nothing wrong when fresh orders of detention dated 21st and 30th March, 1966 were served on the petitioners while they were in jail

I aced with this situation particularly because of the law laid down by the Supreme Court in Sahib Singh Dugal Vs. Union of India (UOI), learned counsel raised an ingenious argument that service of fresh order of detention on the detenu while he is in jail will not be had if his detention is under a valid order which is sought to he cancelled But in case the previous detention is under an illegal order, il would he necessary to release him before fresh order of detention can be served upon him. In out view this distinction is without any difference and does not after the legal position in any way If service of fresh order of detention can be made on a detenu while he is in jail it ia immaterial whether the previous detention is under a valid or invalid order. The validity of the order does not affect the question of service on him while he as in jail. In either case whether the order is valid or Invalid when it is cancelled, the detenu is entitled under the law to be released. We, therefore, do not sec how validity of the previous order which has been cancelled can affect the question of service on a detenu in jail as long as it can be validly made up(SIC) him. In this connection we might refer to two cases where a fresh order of detention was served on a detenu in jail when the former order of detention was found to he defective. See AIR 1945 18 (Federal Court) where it was held that:

"Where the earlier order of detention is held defective merely on formal grounds there is nothing to preclude a proper order of detention being based on the pre-existing grounds themselves, especially in cases in which the sufficiency of the grounds is not examinable by the Court. Order of detention can be passed against a person who is already under detention."

and Naranjan Singh v. State of Punjab. AIR 1052 SC 106 where the previous order of detention dated 17th May, 1951 was revoked and a fresh order was served on 18th November, 1951 because the detention under the previous order was not sustainable in law.

As regards the objection that there was no occasion for the State Government to pass a fresh order of detention and what it has done is in fact to perpetuate the detention under an illegal order. In our opinion the two orders which are as below will make the position quite clear. (Though these orders are separate in each case they are cited here in a consolidated form).

Annexure ''A''

"Government of Rajasthan (Home Department).

F.7/15/Home (A-Gr. D/65 dated Jaipur, the 21-3-1966

F.7/16/Home (A-Gr I)/dated Jaipur. Nil

F.7/l/Home (A-Gr. I)/dated Nil.

F.7/136/Home (A-Gr.I)/64 dated Jaipur 30-3-60

ORDER

Whereas (1) Sbri Mohan Poonamia s/o Anopchand Oswal, R/o Sadri Distt. Pali. (2) Shri Ramsingh s/o Shri Hazari Singb R/o Pali Distt. Pali, (3) Shri Pritam Singh s/o Shri Kala Singh Bhatti R/o Karanpur Distt Ganganagar. (4) Shri Anokhasingh s/o Shri Nandsingh R/o 9-LL-Distt. Ganganagar was ordered to he detained under Clause (b) of Sub-rule (i) of Rule 30 of the Defence of India Rules, 1962 vide order dated (1) 29-12-64. (2) 9-11-64. (3) 18-1-65. (4) 29 12-64 of the District Magistrate. Jaipur. (2) Pali (3) Ganganagar (4) Ganganagar confirmed by Govt. order of even number dated (1) 6-2-05. (2) 22-1-65. (3) 6-2-65 (4) 7-12-65.

And whereas it has come to notice that the last detention continuation order of even number dated 14-13-65 (2) 14-13 65 (3) 14-12-65 (4) 2-11-65 is indicated to have a technical flaw on the ground that the fact of the extention order having been issued as a result of the consideration of the recommendation of the Reviewing Authority has not been mentioned in spite of the fact that the detention continuation order was actually issued as a result of the recommendation of the Reviewing Authority.

Now, therefore, in exercise of the powers conferred by Clause (b) of sub-rule (1) of Rule 30 of the said Rules, the Government of Rajasthan are hereby pleased to cancel the said order of detention due to the technical defect brought to notice and direct that the said Shri Mohan Poonamia (2) Ramsingh. (3) Pritamsingh (4) Anokhasingh be released forthwith

By order of the Governor,

Sd/- H.S. Rawat

Dy. Secretary to Government.

Annexure B.

Government of Rajasthan

(Home ''A'' Department)

(1). F.7/1 (5) Home (A Gr.I)/65 Dated Jaipur 21-3-66

(2) F.7/1(16) Home (A-Gr. I)/65 Dated Jaipur 21-3-66

(3). F.7/1 (26) Home (A-Gr. I)/65 Dated Jaipur. 21-366

(4). F.7/1 (36) Home (A-Gr I)/64 Dated Jaipur 30-3-66

ORDER

Whereas Shri Mohan Poonamia s/o Sbri Anop Chand R/o Sadri Distt. Pali. (2) Shri Ram Singh s/o Shri Hazarisingh R/o Pali Distt. Pali, (3) Shri Pritamsingh s/o Shri Kalasingh Bhatli R/o Karanpur Distl. Ganganagar (4) Shri Anokhasingh s/o Shri Nandsingh R/o 9 LL-Distt. Ganganagar was detained under Clause (b) of Sub-rule (i) of Rule 30 of the Defence of India Rules, 1962, by an order dated 29-12-64 (2) 29-12-64. (3) 18-1-65. (4) 9-11-64.

Whereas the order of continuation of his detention was passed by the Government on (1) 14-12-65 (2) 14-12-66 (3) 14-12-65 (4) 2-11-65 and whereas an order as was passed on 14-12-05 (2) 14-12-65 (3) 14-12-65 (4) 2-11-65 in his case was held to be defective as it did not appear to have been based on the recommendations of the reviewing authority the said Shri Mohan Poonamia (2) Ramsingh, (3) Pritam Singh (4) Anokhasingh was released.

Whereas the State Government is satisfied with respect of Shri Mohan Poonamia S/o Anop Chand Oswal R/o Sadri. Distt. Pali (2) Ramsingh s/o Shri Hazarisingh R/o Pali. (3) Shri Pritamsingh s/o Shri Kalasingh R/o Karanpur Distt. Ganganagar (4) Shri Anokhasingh S/o Shri Nandsingh R/o 9 LL Dist. Ganganagai that with a view to preventing him from acting in any manner prejudicial to the Defence of India. Civil Defence, the Public Safety and the maintenance of public order, it is necessary to detain him.

Now. therefore, in exercise of powers conferred by Clause (b) of Sub-rule (1) of Rule 30 of the Defence of India Rules, 1962, it is hereby ordered that the said (1) Shri Mohan Poonamia (2) Ramsingh (3) Pritamsingh (4) Anokhasingh be detained in Bikaner Distt. Jail, (2) Bikaner, Dislt. Jail. (3) Ganganagar Distt Jail (4) Distt. Jail Ganganagar as a detenu of I, (2) 1st, (3) Ist (4) II Class, under the Rajasthan Conditions of Detention (Defence of India) Order, 1962

By order of the Governor,

Sd/- H. S. Rawat

Dy. Secretary to Government "

The previous order was cancelled because it was realised that there was a technical flaw in it and for the same reason a fresh order of detention was passed. It does not appear that the State Government was in any way trying to cover up its mistakes. On the other hand when they found that the detention of the petitioners was not sustainable in law on account of formal defects, they issued a fresh order of detention to provide a legal basis for the deten tion of the petitioners after 21st March, 1960. By this no attempt was made to validate the previous order and therefore it cannot be said that the State Government was only trying to continue the detention of the petitioners under illegal orders. We also see no force in the argument that there was no occasion for the State Government to pass fresh order of detention upon the present material before us. We do not see anything else that the State Government was satisfied that the detention of the petitioners was necessary under the Rules. It is not for us to go into the question whether the activities of the petitioners prior to their detention could justifiably satisfy the State Gov ernment about the necessity of detaining them. The past activities of the petitioners might have afforded a safe criteria for the satisfaction of the State Authority that the detention of the petitioners was necessary.

Lastly, we may deal with the argument that the fresh order is factually incorrect because it contains a recital about the release of the petitioners, though actually they were not so released In the first instance we do not agree that there is any factual mistake in these orders When once the order of detention is cancelled and is communicated to the detenu, it terminates his detention under the said order and technically it amounts to his release. Il is probably in this sense that this expression was used in the fresh orders issued by the State Government because the previous orders of detention had been cancelled. At any rate when service of fresh order could be made on the petitioners while they were in jail, we do not see how this mistake, if it can be so called, can affect the validity of the order. We, therefore, find that the present detention of the petitioners is legal.

The applications are therefore, dismissed.

Learned counsel prays for leave to appeal to the Supreme Court We are of the view that the law is quite settled so far as the points which have been raised in these applications are concerned. We, therefore, do not see any ground to grant leave. The prayer is rejected.