Showkat-un-nissa Begum and Others vs State of Hyderabad

Naik, C.J.—These ten applications are under Article 228 of the Constitution of India and in the alternative, under the Sections of the Hyderabad Criminal Procedure Code, relating to the revisional powers of the High Court. The facts of the case are that Mir Laik Ali, the former Prime Minister of Hyderabad was confined to his house after the police action. A Regulation, called the Hyderabad Public Safety and Public Interest Regulation, No. 8 of 1858 Fasli was Issued on 16th Dai 1358 Fasli (16th November 1948 A.D.) by the Military Governor and an order under it was served on Laik Ali by Mr. Patro, Inspector-General of Police, on 19th December 1948 in the following words:

Where as I think fit that the following order should be passed for safe guarding public interest:

Now, therefore, in exercise of the powers conferred on me by Section 2, Public Safety and Public Interest Regulation, I make the following order:

Mr. Laiq Ali son of Mahboob Ali of....shall not leave the house he is occupying without my permission in writing.

He shall not send any letter to any person outside the house or receive any letter from any person outside the house without my permission in writing.

No person shall enter the house or leave the house without my permission in writing.

Any person who is authorised by me to enter the house or leave the house may do so after searched by the Head Constable appointed by me to guard the house and to see that my orders are not contravened.

The petitioners are charged under Sub-section 5 and 15 of the Regulation, read with Section 77(B), Hyderabad Penal Code, which is equivalent to Section 120 (B), Penal Code, and it is alleged that they aided and abetted Laik Ali in escaping,

Before the lower Court where the trial is proceeding the validity of the Hyderabad Regulation, of the order passed hereunder and of the consequent detention of Laik Ali were unsuccessfully contested. Against the order of the lower Court the petitioners have come before us.

Though the hearing of the case before us occupied several days and many legal points cropped up during the arguments the issues were considerably narrowed down as the hearing proceeded by admissions made on behalf of the parties.

These applications were ably argued by Messrs. Peerbhoy, Walford, Murtuza Khan and other advocates on behalf of the petitioners and by the Advocate-General on behalf of the Government, and would like to acknowledge the assistance they have given us by their able arguments on different points arising in the case. They have also been frank enough to admit the amenability of certain points urged by them. It is admitted on behalf of the petitioners (though Mr. Walford, advocate, later on called it "an admission of despair") that in view of the power B of H.E.H the Nizam before the Constitution came into force the Regulation was valid till 26th January 1950, and the Advocate-General admitted that Sections 8, 8 and 4 of the Hyderabad Regulation cannot remain in force after 26th January 1950 being repugnant to and inconsistent with the provisions of the Constitution, and these are the sections which apply to the order against Laik Ali.

Because of these admissions. I need not go into the arguments of the petitioners that the Regulation-is void under the Constitution being against the mandatory provisions o� Article 22 thereof inasmuch as : (1) no provision is made in the Hyderabad Regulation for limiting the detention to a period of 3 months, as per Article 22, Clause (4); (2) no Advisory Board ia constituted as per Article 22, Clause (4)(a); (3) no provision is made therein for the furnishing of grounds as per Article 22, Clause (6); (4) no provision is made for making representation as per Article 22, Clause (5); and (5) Courts jurisdiction is taken away which is contrary to Article 223.

Therefore, the point for decision is Could the detention of Laik Ali under the Hyderabad Regulation continue to be legal in spite of the Regulation having become void.

It is admitted by the Advocate General that if Laik All''s detention is held unlawful on the day he escaped, i.e., 3rd March 1950, then the petitioners, even if they assisted Laik Ali to escape from such detention (which they do not admit), could not be deemed to have committed any offence.

In the lower Court, it was contended on behalf of the Government that Laik Ali was not detained but merely his movements were restricted, and the lower Court''s judgment is based on the ground that Laik Ali''s movements were merely restricted and the restraint was not unreasonable under Article 19 of the Constitution. I need not go into the fine distinctions that were made between ''restriction'' and ''detention'' and how far restrictions are permitted by the Constitution, nor need I go into the different points urged against the judgment of the lower Court, because the Advocate-General has given up that stand before us and has based his arguments on the ground that Laik Ali''s confinement amounted to detention. Even if he had not given up that stand, I would have had no hesitation in holding it to be detention, in view of (1) the encoding of the order served on Laik Ali by Mr. Patro, Inspector General of Police and (2) the letter of Mr. Jetly, the succeeding Inspector General of Police, later on as well as (3) the letter of Major General Chaudhury, the Military Governor, dated 4th August 1949, to Mr. Roberts, K.O., wherein the words "house-arrest" and "detention" are expressly mentioned, and (4) in view of the admitted fact that there were Police guards all round his house.

Now the question is what was the nature of the detention? (1) was it a pure and simple detention, or (2) was it a punitive detention, or (3) was it a preventive detention?

The learned advocate for the petitioners argued that this detention of Laik Ali could only be a simple detention which became illegal on the expiry of twenty four hours both under Article 22, Clause (2) of the Constitution and also under the Hyderabad Criminal Procedure Code, as it is admitted that he was not produced before a Magistrate within the prescribed period. He argues that it cannot be punitive detention because there was no charge against him and it cannot also be preventive detention because the Regulation does not profess to be made for the purposes of preventive detention. According to him, the preamble of the Regulation must distinctly state that it was a Regulation for preventive detention. The Advocate General is not prepared to admit that Laik Ali''s detention was a simple detention because simple detention can only be after arrest and in view of an impending prosecution for an offence committed, in which case it was necessary to produce the person detained before a Magistrate. I do not agree with the contention of the advocate for the petitioners that Laik Ali''s detention cannot be preventive. The Regulation was promulgated by the Milita-y Governor under the order of H.E.H. the Nizam (who admittedly, had full legislative powers). It was promulgated at a time when the Government had to meet an abnormal and even dangerous situation in the State. The Regulation did give very wide flowers to the executive as has been 30 vehemently urged on behalf of the petitioners. I think that the powers under the Regulation were both punitive and preventive, as is indicated not only from the words ''to ensure public safety and safeguard public interest" appearing in the preamble but also the other provisions of the Regulation'', which authorise the officers concerned to impose punishment. In a Regulation like this one cannot expect all those provisions which the Constitution has now nude necessary. According to the law, as it stood, before 26th January 1950 the Nizam could order punitive detention without the necessity of framing of a charge or even a regular trial. Therefore, under the Hyderabad Regulation Laik Ali�s detention could and might have been both punitive and preventive for acts done or for acts likely to be done by him. But the Advocate-General has emphatically asserted that Laik Ali''s detention was not Punitive. Therefore, there remains only the question of it being a preventive one.

We have now to see how far this preventive detention of Laik Ali is legal after 26th January 1950. As stated above, the petitioners are not prepared to challenge the legality of the Regulation and the detention under it before 26th January 1950. Their contention is that this preventive detention came to an end as soon as the law authorising the detention became void or expired. They argue that the law authorising the detention having become void, the detention under it became illegal. The Advocate-General argues that though the Regulation became void the detention under it cannot be held illegal even under Article 13, Clause (1) of the Constitution. According to him, detention for three months is not to the Constitution, lie contends that Article 22 of the Constitution expressly permits detention for three months and the failure to give reasons does not make detention repugnant to the Constitution although it may be open to the detune to come to a Court of law and say that he ought to be given grounds for detention or that he ought to be released for the reason that no grounds were given to him. The Advocate-General maintains that the President''s Preventive Detention (Extension of Duration) Order, 1950, validates even a detention order of more than three months for a period of three months from "the commencement of the Constitution. He argues that the President''s Order is an adaptation of the various States'' legislations relating to preventive detention and validates detentions for three months. He further argues that even if the President''s'' order was not there, the detention of Laik Ali is valid u/s 6 (b), General Clauses Act.

I do not agree with him. Just because the Constitution permits under certain circumstances and with sufficient safeguards detention for 3 months, it does not mean that preventive detention in all circumstances and without those safeguards is in consonance with the Constitution or that the repugnancy is removed. The Constitution tolerates preventive detention as a necessary evil and insists that it can be ordered only under; a law duly passed specifying the circumstances and enumerating all the safeguards mentioned in Article 22 of the Constitution. Without the law, the special circumstances and the safeguards, the detention would be repugnant to the Constitution.

The argument of the Advocate General is that u/s 6(b), General Clauses Act, the detention remains legal as "anything duly done or suffered." He relies on the President''s order as an extra support for his case and he argues that it is an extra caution on the part of the President.

The Advocate General has argued that for any country preventive detention of dangerous elements is far more important for the security of the State than the punishment for offences. Thereby he argues that if the General Clauses Act can apply to punitive detention it would apply with greater force to preventive detention. I think that preventive and punitive detention stand on different footing. Punitive detention as a rule is a punishment for acts done, whereas preventive detention is a precaution against acts likely to be done. These precautions may be necessary under certain circumstances and for a limited period but to continue the detention even when those circumstances are no more and for an indefinite period, as in this particular case cannot be held legal and is certainly against the Constitution.

The question is not whether preventive detention is more important for the security of the State or punitive detention but the question is to which of these the principals of the General Clauses Act apply.

As regards Section 6(b), General Clauses Act, my opinion is that it does not apply to preventive detentions. Preventive detention as against punitive detention requires the existence of the law authorizing the detention and the General Clauses Act can be invoked only when the law under which the detention has been ordered is repealed and the repealing Act makes a provision for its continuance. But when the law becomes void the detention becomes illegal. When Section 6, General Clauses Act, expressly refers to the effect of a repeal of an Act, I do not think that we can apply it to an Act which becomes void. For some purposes repeal and being void may be the same but for the purposes of the General Clauses Act the word ''repeal'' has a special significance. The word ''repeal'' connotes the existence of an repealing Act or, as has been argued by the advocate for the petitioners, the abrogation of one Act by Anr. . In the General Clauses Act, we cannot read the word ''void,'' where the word ''repeal'' is expressly used.

The Advocate General relies on J.K. Gas Plant Manufacturing Co. Rampur Ltd. v. Emperor A.I.R 1947 F.C. 38, particularly para. 26, wherein he urges that it is held that in spite of the repeal of the Special Tribunal Ordinance of 1944, the Tribunal had still the authority to try those cases. His argument is that in spite of the Hyderabad Regulation becoming void after 26th January 1950, the Inspector-General of Police, who had passed the order of detention, was still clothed with the authority to deal with the detenus. He relies on In re A.N.G. Sundara-rajalu Chetty AIR 1949 Mad. 893 and argues that even after the expiration of the Act prosecution can be launched. The Advocate-General also cites Wicks v. Director of Public Prosecution (1947) A.C. 362.

As has been pointed out by Mr. Peerbhoy, advocate for the petitioners, these authorities do not help the Advocate-General in any way. According to the Federal Court judgment reported in J.K. Gas Plant Manufacturing Co., Rampur Ltd. v. Emperor AIR 1947 F.C. 38 the subsequent Tribunal had the authority to try those cases because it was specially provided that the Special Tribunal should have jurisdiction to try the cases species in the schedule to the Act as if it had been constituted by an Act of the Provincial Legislature and those cases were included in the schedule (vide para. 22, p. 45), whereas there is no such similar saving clause in the case before us. As regards the case reported in In re A.N.G. Sundararajalu Chatty AIR 1949 Mad. 893 the launching of a prosecution which is saved by Section 6(e), General Clauses Act, is one thing and the continuation of detention under an Act which has since become void, is Anr. thing. The continuation of detention cannot be said to be included in the moaning of the words "anything duly done" used in Section 6(b), General Clauses Act. The Court rightly decided that when the prosecution could be launched the necessary pre requisites for the prosecution like sanction could be granted. In the case reported in Wicks v. Director of Public Prosecution 1917 A.C. 362, it appears that the Act provided that "expiry of the Act shall not affect the operation thereof as respects things previously done or omitted to be done." (vide p. 367). There is no such provision" as regards the Hyderabad Regulation. This authority also does not support the Advocate-General.

As for the President''s Order making such, detention legal, I do not think that it satisfies the requirements of the Constitution. If the President s intention was to give breathing time, as it were, to the different States or he felt the necessity to continue the old regime for three months longer, he would have framed the order in different words and invoked other Articles of the Constitution, if any, in support of his Order. The Article of the Constitution referred to in the President''s Order is Article 22 read with Article 373. Article 373 gives the President the same powers as the Parliament has under Article 22, Clause 7, and that Article expressly mentions that the Parliament by law can prescribe the circumstances, etc. To prescribe by law is one thing and to extend a law passed by a State, which is not in conformity with the-Constitution is quite Anr. thing. I do not think that the Constitution permits the President to extend a law which is not in conformity with the Constitution nor do I think the President meant to do any such thing What he really did mean to do was what was actually done later on by Parliament by the Preventive Detention Act, No. IV [4] of 1950. The President''s Extension Order should have been expressed in words similar to Act iv[4] of 1960 and even then, it could not properly be called an Extension Order nor could it be called an Adaptation Order. The Calcutta High Court in the case reported in Sunil Kumar Bose v. Chief Secy. to the Government of West Bengal AIR 1950 Cal. 274 the Patna High Court in Brahmeshwar Prasad Vs. The State of Bihar and Others, and the Orissa High Court in Prahalad Jena and Others Vs. State of Orissa, have exhaustively dealt with the President''s Order and have hold it ultra virus. I need not go into the different observations made by the learned Judges and it is enough for mo to say that I respectfully agree with them in holding that the President''s Order cannot be invoked to validate an invalid detention. It cannot be seriously maintained, as has been done by the Advocate-General that the provision of Section 6(b), General Clauses Act escaped the notice of the learned Judges.

If the President''s Order was really a provision necessary for the security and safety of the State to keep undesirable and dangerous persons in detention till their cases were examined and appropriate laws passed, as has been argued by the Advocate-General, then it really amounts to suspension of the Constitution, in this regard for three months from its commencement and such a provision should have been made in the Constitution itself. Under the Constitution as it stands even the Parliament cannot extend indefinitely the autocratic detention, for three months. The framers of the Constitution, who sacrificed so much and struggled so-hard for freedom and to whom detention with, out trial has been an anathema, could not have thought of permitting it even for a single day. They wanted to give full freedom to all. Their seem to tolerate preventive detention as a necessary evil under pertain circumstances and permitted it only with many safeguards. If possible, they would have liked to do away with preventive detention altogether. I hope the day is not far off when this will become possible for the people of this ancient land.

Arguments were submitted before us about the effect of the taking of the oath by the President. The learned advocate for the petitioners argued that the President was sworn in at 10-15 A.M. on 26th January 1950, and as such, the law could not have become law during the period he was not the President. His argument is that the President should have been sworn in before he was competent to promulgate any law, whereas the Advocate General argues that the oath-taking is a mere ceremony and it should not affect the general principles laid down in the General Clauses Act in Section 5, Sub-section (3) by which it is ordered that every "Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement." He quotes the Orissa judgment referred to above in his favour. He calls the oath-taking as a mere moral obligation and quotes Willoughboy on the u/s Constitution, para. 952, p. 1473, vol. 3 (Edn. 2) He also relies on Article 56 of the Constitution, wherein the words "The President shall hold office for a term of five years from the date on which ho enters upon his office" occur. He emphasises the word ''date'' and states that the hour of taking oath is not important. He also cites Chenchiah v. Commr. of Police AIR 1948 Mad. 288, in which the arrest of the accused at 4.30 A.M. was held valid in spite of the fact that the Act empowering such arrest was printed and published only after 9 A.M. He also relies on In re Court-fees, 46 Mad. 685 : AIR 1924 Mad. 257 S.B. in which an amending Act in regard to court-fees published after 5 P.M. was held applicable to all cases filed earlier in the day.

I have gone through the Orissa judgment and say with great respect to the learned Judges that though by virtue of Section 5, Sub-section (3) read with Section 3, Sub-section (12), General Clauses Act, the President''s Order should be deemed to have come into force from the midnight of 25th and 26th January 1950, it cannot be said that under the General Clauses Act, the author of the Act also is considers to have the power to make the law. The fiction applies to the law or the signature but not to the author. The exact time of signing of the Order by the President may be immaterial but the exact time of the President having the power to make an enforceable law becomes-material. The oath-taking ceremony may be a mere ceremony for ceremonial and administrative purpose, but for promulgating a law the oath has an importance of its own and without oath, the President has no power to make an order which will be recognised by a Court of law. A High Court Judge cannot do any judicial work merely on the strength of the order of his appointment. He has to take oath of his office before he can discharge any of his judicial functions. By a legal fiction, one can consider the law as having been passed at the earliest moment of the day but it cannot be held by the same fiction that, the President had the capacity to make the law when the President was not the President at that time. The cases cited by the Advocate-General in Chenchiah v. Commr. of Police AIR 1946 Mad. 288 and In re Court-fees AIR 1924 Mad. 257 S.B. cannot help him, because in those cases it is the law that was-considered and not the author of the law.

Coming into operation of an enactment is one thing and coming into existence of the authority to make an enactment is Anr. ; thing. Similarly, the word ''commencement'' used in Section 3, Sub-section (12), General Clauses Act-has reference to an Act and not to the author of an Act. I agree with the advocate for the-petitioners that this aspect of the question was-not brought before the learned Judges of the Orissa High Court when they decided the case reported in Prahalad Jena and Others Vs. State of Orissa, .

The Advocate-General relies on his Lordship the Chief Justice of India''s opinion reported in Dr. N.B. Khare Vs. The State of Delhi, where his Lordship has observed with regard to the restriction on Dr. Khare that three months restriction is not unreasonable. I think that his Lordship the Chief Justice of India was at that time thinking, of the period of three months for the purpose of reasonability and did not decide the detention for three months to be valid without the safeguards mentioned in the Constitution;, his Lordship referred to the period of detention merely for the purpose of reasonability.

There is a further point about the detention of Laik Ali, that is, even if the President''s Order is considered as an Extension Order, when it was repealed by Act IV[4] of 1950, a fresh order should have been served on Laik Ali under that Act as the State law was no more enforceable under Article 254. It is admitted that no order for detention was passed under this Act. Laik Ali had perhaps the means of getting the beet legal advice even though in custody and managed to escape before the order could be served on him under the new Act. He seems to have taken full advantage not only of the want of vigilance on the part of the police that was guarding him but also of the change in his legal position that was brought about by the advent of our sublime Constitution.

The spirit and the letter of the Constitution have to be guarded more zealously than the detention of a few persons however necessary their detention may be and however in-convenient their escape. When momentous changed take place in a country some undeserving persons are bound to escape from their liabilities because of the lacunae due to the changes. It is far better that a few persons should take unmerited advantage of the law guaranteeing freedom rather than that the liberty of the people be in any way endangered and the sublimity of our Constitution be affected.

I, therefore, hold that the detention of Laik Ali after 26th January 1950 cannot be held as legal and those who helped him to escape have incurred no criminal liability, with the result that the prosecution against them under Sub-section 5 and 15, Hyderabad Regulation, read with Section 77B, Hyderabad Penal Code, cannot be sustained. The revision applications are allowed and the lower Court''s order is set aside and the proceedings against the petitioners are quashed.

This judgment will cover all the contacted revision petitions.

Leave to appeal to the Supreme Court under Articles 132 and 13 (c) of the Constitution is granted.

Sripat Rao, J.

Mir Laik Ali, Ex Prime-Minister of Hyderabad was served with an order dated 19 December 1948 signed by the Inspector General of Police seating inter alia that "he shall not leave the house he is occupying" without the permission of the Inspector-General of Police in writing. This order was issued u/s 2, Public Safety & Public Interest Regulation 8 of 1358F. It is alleged that in pursuance of a conspiracy Mir Laik Ali escaped from his house in contravention of the said order on 3rd March 1960 He has been charge sheeted for his escape in contravention of the said order and the present petitioners have been charged with abetment or attempt to abet under Sub-section 5 and 15 of the said Regulation read with Section 77 (b), Hyderabad Penal Code. In the lower Court the petitioners raided the plea that the order against Mir Laik Ali which amounted to his detention was unlawful in view of the provisions of the Constitution, and as such, Mir Laik Ali committed no offence in escaping from such detention and the present petitioners cannot therefore be held to have committed any offence even assuming that they had abetted or attempted to abet Mir Laik Ali in his escape. Certain other pleas were also taken. The lower Court has held against the petitioners and the petitioners besides invoking the revision powers of this Court state that their case involves a substantial question of law as to the interpretation of the Constitution of India, the determination of which is necessary for the disposal of the case and that therefore this Court should withdraw the case pending in the-lower Court and decide the question under Article 228. We have heard the parties at length.

The legality of the detention of Mir Laik Ali has been challenged on the ground that the provisions of the Public Safety & Public Interest Regulation (issued by H.E.H. the Nizam are void under Article 13 (1) of the Constitution as they are repugnant to the provisions of Article 22 (4), (5), (6) and (7).

It is argued on behalf of the petitioners that the said order against Mir Laik Ali is tantamount to his detention in his own house. Assuming this detention to be in the nature of preventive detention, it became unlawful on the commencement of the Constitution as the Regulation under which he was detained and kept in imprisonment became void being inconsistent with Article 22 of the Constitution and the other provisions of part m of the Constitution which give protection of personal liberty. It was argued before us that detention may be of three kinds : (1) Simple detention, i.e., detention pending enquiry and trial of an offence alleged to have teen committed by the person under detent on in which case the provisions of Article 22(1) and (2) must be complied with (2) Punitive detention, i.e. detention in which a person is kept in imprisonment after due trial, conviction and sentence by a competent Court. (3) Preventive detention, i.e. detention in which a person is kept under detention so that ho may be prevented from committing any act which he is apprehended to commit which may be described as prejudicial under a law for preventive detention.

It is conceded by the learned Advocate General that Mir Laik Ali was neither under punitive detention nor under simple detention but that the order of the Inspector General of Police, referred to above, passed against him, was intended to beep him under preventive detention. Hence it is not necessary for us to go into the various aspects of law concerning the nature of punitive detention or simple detention. It was argued before the lower Court that the said order dated 19th December 1948 was meant to impose restrictions on the movements of Mir Laik Ali under Article 19(e) of the Constitution and that it did not amount to detention, but the loamed Advocate General has given up this plea before us and has confined himself to the argument that the said order against Mir Laik Ali amounted in effect to his detention which is preventive in its nature and that it was lawful even after the commencement of the Constitution.

In view of the points conceded as above by the learned Advocate-General the issue that has got to be decide by us becomes narrow. We have to decide, (A) as to what is the effect of the Constitution on the Public Safety and Public Interest Regulation ; and (B) if the said Regulation is inconsistent with Article 22 and other Articles of the Constitution, how far they will affect the detention of Mir Laik Ali.

The main Section of the Regulation for the purposes of this case is Section 2 which states that "a, Military Officer or a Civil Officer may make such order as he may think fit for maintaining law and order or for safe-guarding public interest".

There is an explants on to this suction which defines as to what is meant by a military Officer and a Civil Officer Section 3 lays down that the order ma la under the above Section 2 shall not be called in question by any Court. Section 4 provides that the order issued u/s 2 may be cancelled or varied. Section 5 lays down the punishment for the contravention of the order made u/s 2. Sections 7 to 14 are not relevant for the purpose of this case. Section 15 provides that any person who abets or attempts to abet the commission of an offence punishable under the Regulation shall be deemed to have committed the offence. It is obvious that we have to examine the provisions of Sub-section 2, 5 & 15 and see how far they are in consonance with or in conflict with Article 22 of the Constitution.

Section 2 of the Regulation gives very wide and unlimited powers to the executive, inasmuch as it lays down that a Military Officer or a Civil Officer may make such order as he may think tit. Mr. Peerbhoy for the petitioners argued that this Section gives arbitrary and autocratic powers to the officers mentioned and the officers may under this Section deprive any person of his life or liberty or may make any conceivable order. It is conceded by the learned Advocate-General that the provisions of this Section are inconsistent with Article 22 of the Constitution. Article 22 of the Constitution in so far as it related to preventive detention provides that improvising for the detention of a person for a period longer than 3 months one o� its necessary ingredients should be the creation of an Advisory Board consisting of persons who - are or have been or are qualified to be appointed "as Judges of a High Court and that they should report regarding the matters as specified in the said Article. It is clear that the Hyderabad Regulation does neither provide for the constitution of an Advisory Board nor does it mention the maximum period for which any person may be detained under preventive detention. The Regulation is therefore Inconsistent with the provisions of Article 22 and hence void.

The learned Advocate-General relies on the Preventive Detention (Extension of Duration) Order, 1960, passed by the President on 26th January 1950 and argues that even if the Hyderabad Regulation became void in so far as the Sections under discussion are concerned, the effect of the President''s Order is to extend the duration of the Regulation for-a further period of 3 months from 26th January 1950. The President''s Order runs as follows:

No. CO8--The following Order made by the Governor-General is published for general information:

THE PREVENTIVE DISTENTION (EXTENSION OF-DURATION) ORDER, 1950.

In exercise of the powers conferred by Sub-clause (a) & (b) of Clause (7) of Article 22 of the Constitution of India read with Article 378 thereof and of all other powers enabling him in that behalf, the President is pleased to make the following Order namely.

1.(i) This Order may be called the Preventive Detention (Extension of Duration) Order, 1950;

(ii) It shall come into force at once.

Where in any class of oases or under any circum-stenciled in any law providing for preventive detention in force at the commencement of the Constitution of India (hereinafter referred as ''the Constitution'' any person was, immediately before such commencement, or is at any time thereafter, in detention in pursuance of an order made under sub law, each person may be detained for a period longer than 3 months under such law, without obtaining the opinion of an Advisory Board in accordance with the Provisions of Sub-clause (a) of Clause (i) of Article 22 of the Constitution.

The maximum period for which any such person as is referred to in para. 2, may be detained, shall, in the case of a person in detention immediately before the commencement of the Constitution, be three months from such commencement, and in the case of, a part on detained in pursuance of an order made after such commencement, be three months from the date of such order.

(It was subsequently made clear that the Order was made by the President and not by the Governor-General).

This Order has been the subject of discussion in three High Courts and was held ultra vires for various reasons. Reference was also made to the case of A.K. Gopalan decided by the Supreme Court on 19th May 1950 : A.K. Gopalan Vs. The State of Madras, . Article 23(7) referred to in the Order runs as follows:

Parliament may by law prescribe:

(a) the circumstances under which and the class or classes of oases in which a person may be detained for a period longer than 3 months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4).

(b) the maximum period for which any person may in any class or classes of oases be detained under any law providing for preventive detention.

In Sunil Kumar v. Chief Secy to the Government of West Bengal AIR 1950 Cal. 274 the Full Bench of the Calcutta High Court held that the Preventive Detention Extension of Duration Order is void as it does not comply with the provisions of Article 22(7)(a) & (b) of the Constitution. It has made no selection of any class or classes of cases as required by the said Clause (a) & (b) but has extended the period of preventive detention to all cases of persons preventively detained. Nor by Rule 2 does it mention the circumstances as prescribed by Article 22(7)(a) Further, the Order does not specify the maximum period of detention as it is bound to do under Article 22(7)(b). I am of the opinion that in suitable instances the classification of oases may itself amount to a description of the circumstances (vide--observations of my Lord Chief Justice of the Supreme Court in A.K. Gopalan Vs. The State of Madras, . But the President''s Order does not classify the cases of persons to be preventively detained. In my opinion, it is clear that the President''s Order does not specify the circumstances and the class or classes of oases in which a person may be detained for a longer period than 8 months. It is therefore not in conformity with Article 22(7)(a). Another reason in my opinion why the said Order of the President is ultra vires of the Constitution is that though the law providing for preventive detention (of any State) becomes void the President has validated the detention of persons under such invalid law for a period longer than 3 months with regard to persons already in detention. In other words it extends the duration of the void or invalid law. That again is against the provisions of Article 13(2) and therefore void. The President cannot extend for 3 months a law which has become void. Hence, the provision in the Order "such person may be detained for a period longer than 3 months under such laid" is clearly ultra vires of Article 13 of the Constitution.

The reasoning of the Patna High Court in Brahmeshwar Prasad Vs. The State of Bihar and Others, is as follows:

That Article 22(7) was never intended to be a means of avoiding the operation Clause 13(1). It is a provision for action not before but after the Constitution has come into force and it was intended for prospective and not retrospective operation, This is particularly apparent if we read it in connection with Article 22(4)(b). In other words it relates not to Article 13(1) but to Article 13(2) which says:

The State shall not make any law which takes away or abridge the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void.

The second reason why the Older of the President under Article 22 (7) cannot save the Act in any view is that even in the light of the Order, even taking Article 22(4) as modified by that Order, there Instill a clear repugnancy. (p. 270 Col. 1.).

It was argued before us that the Order of the President validates the detention of all persons who were preventively detained under any law for a further period of 3 months from the commencement of the Constitution, and that the President has himself enacted legislation for detention which can stand by itself. With regard to this point Meredith, C.J., observed as follows in the ruling cited above (p. 271)

In my opinion, the position is only to be thus clearly stated to refute the argument. The President never purported to do anything of the sort, nor has he any power to do Sub-article 22(7) merely entitled him the specify circumstances and define classes in which a person may be detained under any pre-existing law for preventive detention, but without those limitations imposed by Article 22(4).

I find myself in complete agreement with these observations of the learned Chief Justices.

In Prahalad Jena and Others Vs. State of Orissa, the Full Bench of the Orissa High Court considered the question of the validity of the President''s Order and came to the conclusion that the Preventive Detention (Extension of Duration) Order, 1960-can be of no avail to the State in justification of the continuance of detention after the Constitution came into force. It differed from the judgment of the Calcutta High Court referred to above regarding the point of time on which the President''s Order was passed and came to the conclusion that both the Constitution and the-Order came into force for legal purposes from the mid-night of 25th-26th January and in considering the validity or otherwise of the relevant pi o visions of the Orissa Act the short interval of time between the mid-night of 25th-26th January and the exact time of signing the Order by the President was immaterial.

As all the three judgments of the said High Courts are agreed on the point that irrespective of this question of time of signing of the Order by the President, the President''s Order is void, it is not necessary for me to express any detailed; opinion on this point, except that respectfully I agree with the reasoning of Narasimham, J. on this point.

The Advocate-General further argued that the President''s Order should be construed to have been passed in exercise of powers conferred on him under Article 372(2) by which he is empowered to make adaptations and modifications-of existing laws for the purpose of bringing the provisions of such laws into accord with the provisions of the Constitution. His contention is that by this Order the President adapted and modified the Hyderabad Regulation so as to validate the detention of persons detained under the said Regulation for a further period of 3 months from the commencement of the constitution. This contention has no force. The President has not adapted the Hyderabad Regulation He has not specified the class or classes of persons and the circumstances under which such persons should be detained for a period longer than 3 months. He has not also adapted the Hyderabad Regulation so that it may read to the effect it that any civil or Military Officer of the rank mentioned in Section 2 of the Regulation may detain a person for 3 months.

A suggestion was made that the President could have exercised his powers under Article 332 and validated the detention of person already under detention on the commencement of the Constitution for a further period of 3 months, hi the absence of specific mention of Article 39a in the said Order, we cannot assume that the President intended by way of removing difficulties to pass such an extraordinary Order. Moreover, supposing for the sake of argument that the President did intend to issue such an Order, it was repealed on 26th February 1950 by Act iv [4] of 1950 and therefore it ceased to have any operation from that date. Mir Laik Ali escaped after the repeal of the said Order and the said Order which had already expired cannot make his detention valid. It is admitted that no order was served on Mir Laik Ali under Act IV[4] of 195O.

The learned Advocate General argued that though Section 2 of the Regulation is void, in view of the provisions of Article 13(1) of the Constitution it will amount to the repeal of the said section and the provisions of Section 6(b), General clauses Act will apply, with the result that the order of detonation passed under it will subsist and will be regarded as lawful. The relevant portion of Section 6, General Clauses Act reads as follows:

Where this Act or any Central Act or Regulation Repeals any enactment nether to made or hereafter to be made, then unless a different intention appears, the repeal shall not,

(a)....

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered there under....

The learned Advocate-General cited, In re Keshav Madhava Menon 52 Bom. L.R. 540 in which it is held that Section 6, General clauses Act, applies to those laws which have become void as a result of their being inconsistent with the provisions of part 3 of the Constitution. This was a case in which the prosecution (for an offence punishable under the Indian Press Emergency Powers Act) was launched before the Constitution came into force. The Bombay High Court held that the prosecution will not be affectedly the said Act being declared to be void under Article 18(1) of the Constitution. It is clear that it was not Section 6(b), General Clauses Act that was under discussion before their Lordships but the dissuasion related to Section 6(e). The same section was under discussion in Anr. case before the Bombay High Court, Emperor Vs. Jeshingbhai Ishwarlal, in which it was held that the application of Section 6, General Clauses Act does not mean that the State is entitled after 26th January 1950 to deprive a citizen of a fundamental right which is guaranteed to him by the Constitution. My opinion, therefore, is that Section 6, General Clauses Act, should be read subject to the conditions mentioned in the section itself. The section expressly states that it should be applied "unless a different intention appears." The intention of the Constitution--which is the repealing law in this case--as is made blear from the preamble, is to secure to all its citizens justice, liberty and equality. Article 21 lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. It is, therefore, clear that the intention of the Constitution cannot be held to legalize Act a done previous to the commencement of the Constitution though they are repugnant to Part 3 of the Constitution. Hence, in my opinion, the provisions of Section 6, General Clauses Act, though they may be held applicable in suitable cases, cannot be held applicable in this case. Otherwise the result will be that in spiffed of the Constitution prohibiting detention for an indefinite period, the detenu may still be kept in such detention. As has boon observed in the judgment of the Bombay High Court in Emperor Vs. Jeshingbhai Ishwarlal, .

the saving of the order u/s 6 does not mean that the State is entitled after 26th to deprive a citizen ;of a fundamental right which is guaranteed to him.

I am, therefore, unable to agree to the contention advanced u/s 6, General Clauses Act.

We do not know the reasons for which Mir Laik Ali was detained. The learned Advocate-General when questioned stated that there were good reasons for his detention but it was unnecessary to explain and specify those grounds and reasons inasmuch as this case was being fought on the issue as to the validity of the detention order served on him and the effect of the Constitution on the said detention order. It may be that the methods employed by Mir Laik Ali in effecting his escape were objectionable and undesirable, but we are not concerned with the morality of the methods. The question to be decided is whether Mir Laik Ali was under lawful detention on the date of his escape.

If he was not under lawlul custody it is conceded that the law gives him the right to escape. There is no allegation that any original force was used by him at the time of escaping, nor is it alleged that he committed any crime at that time. The fact, whether he committed any crime or not at the time of his escape is not under consideration before us.

The result, therefore, in my opinion, is as follows: The provisions of Sub-section 2, 3, 4, 5 and 15 to the extent that refer to this case of the Hyderabad Regulation are void in view of Article 18(1) of the Constitution and the Regulation is to that extent void. Section 6, General Clauses Act, has no application in this case. The Preventive Detention (Extension of Duration) Order, 1960, while prescribing the limits within which every law providing for preventive detention must the, does not purport to be self contained law, fixing the duration of preventive detention of a person and is therefore void. The Order assumes the existence of a valid law providing for preventive detention, but the Hyderabad Regulation having become void, the President''s Order cannot validate it for a further period of 8 months. The local legislature has out amended the Hyderabad Regulation so as to bring it in conformity with the provisions of the Constitution. Even assuming that the President''s Order was made under Article 892 it ceased to have any effect and relevancy in this case as Mir Laik Ali had escaped on 3rd of March 1950, and the President''s Order was repealed on 26th February 1950 by Act IV(4) of 1950. It is thus clear that there was no valid Order of detention against Mir Laik Ali on the date of his escape and his escape from unlawful custody is no offence u/s 5 of the Hyderabad Regulation as the escape would not be considered to have contravened any Order made u/s 2 of the Regulation. The petitioners who are charged with abetment or attempt to abet the commission of the offence u/s 2 of the Regulation cannot be considered to have committed any offence under the Regulation as the detune had committed no offence nor had he contravened any order made u/s 2 of the Regulation while making good his escape. The offence u/s 77(b), Hyderabad Penal Code, is that of criminal conspiracy and when no offence is committed by the escapee, it is clear that a charge under this Section cannot stand. It is not necessary to discuss in detail the point namely that if a person who is not under lawful custody or lawful detention escapes from such detention he commits no offence. In Jogendra Nath Laskar Vs. Hiralal Chandra Poddar and Others, , it was held that escaping from illegal custody is no offence : See also Appasami Mudaliar v. King-Emperor AIR 1924 Mad. 555 in which it was held that a person in an unlawful custody is entitled to object to such arrest and escape from; custody. In Kala v. Emperor AIR (12) 1926 Lab. 623 it was held that where an arrest of a person by the Police-is not justified by law and the person escape from Police custody, he is not guilty u/s 225-B. The result is therefore the petitioners assuming that they bad abetted or attempted to abet the escape of Mir Laik Ali have not committed any offence inasmuch as the detention of the litter was unlawful. The prosecution instituted against them cannot stand allow these petitions and order that the proceedings against the petitioners be quashed.

Leave to appeal to the Supreme Court under Articles 132 and 134(o) of the Constitution is granted.

S. Ali Khan, J

These are ten applications under Article 288 of the Constitution of India (hero after referred to in this judgment as the Constitution) that substantial questions of law as to the inter potation of the Constitution necessary for the disposal of the case, are to be determined and therefore this Court is to withdraw the case from the Court below either to dispose of it itself or return it after determining the said question The case is about the-escape of Mir Late Ali, the former Premier of Hyderabad. Laik Alt together with 25 other accused is challenged under Sub-section 5 and 15 of the Hyderabad Public safety and Public Interest Regulation (No. 8 of 1358 F.)(hereafter referred to as the Regulation) read with Section 77-B, Hyderabad Penal Code. The facts alleged by the prosecution are that Laik Alt was served with an order u/s 2. of the Regulation and was told not to leave his house or write to anybody or see anybody without the permission in writing of the Inspector-General of Police; that he contravened this order by surreptitiously escaping on 3rd March 1960; and that the rest of the accused aided and abetted him in escaping and therefore Laik Ali and the accused are liable to be punished under Sub-section 5 and 16 of the Regulation respectively. Laik Ali and seven Ors. (A-18 to A-20) are absconding. The result viz, A-1 to A-17 have been arrested and are challenged before a special Judge who has by judgment dated 22nd June 1950 determined the questions of hw involved in his own way, of which mention will be made later on. The case was argued before a Division Bench of this Court and after reference to the Full Bench before it. Only ten accused have come up under Article 288 and also under the reversionary power of this Court and they were ably represented by council from Bombay and eminent local counsel also. The arguments began on 21th July and after a the in diem hearing ended on 4th August 1950.

The substantial questions of hw referred to above together with their corollaries may be summed up as follows:--(a) Whether Section 2 of the Regulation (No. 80/1358 F) is inconsistent with Act 22 of the constitution and is therefore void under its Article 13(1); (b) Whether the said regulation on is save by operation of two other enactments of H.E. the President of Indian Republic viz. the Preventive Detention (Extension of Duration) Order 1950 and the Adaptation of Laws Order 1950; and (c) whether the detente Order served on Mr. Laik Ali on 19th December 1948 is saved by the operation of the Section of the General Clauses Act.

I will begin with a consideration of the question at serial (a). This involves in the first place a consideration of the nature and scope of Article 22. In view of the full consideration that this article has received in all the six learned judgments of the Supreme Court in the A.K. Gopalan Vs. The State of Madras, , no elaborate discussion is necessary. Suffice it to say that all the learned Judges of the Supreme Court are agreed that this article is to be read with the solemn words of the declaration contained in the preamble to the constitution; that it is this declaration that makes our Constitution sublime and it is the guarantees mentioned in the Chapter on Fundamental Rights that make it one of the greatest charters of liberty of which the people of this country may well be proud. In other words the liberty of the individual is fully guaranteed; but when it conflicts with the interests of the society, provisions are made to interfere with it according to the procedure established by law. A mention of this procedure is made in Article 22 also. Sub-articles 1 and 2 of this article deals with arrest and detention necessitated by allegation of commission of crime and the safe-guards provided are that in such detention (1) grounds for such arrest shall be furnished to the person detained as soon as may be that (2) he should not be denied the right to consult and be defended by a counsel of his choice; that (3) he shall be produced before the nearest Magistrate within 24 hours of such arrest and that (4) he shall not be detained in custody beyond the said period without the authority of a Magistrate. It will be observed that more or less these are also the provisions of the Criminal Procedure Code; but their mention here in the Constitution places them outside the legislative competence of the central and the state legislatures. Similarly where there is no allegation of commission of an offence but a suspicion, of it, this article allows preventive detention in its Sub-article 3. But this again is subject to the-safe guards provided in Article 4 to 7. Briefly these are that (1) No law providing for preventive detention shall authorise the detention of a person for a longer period than 3 months, un-less an Advisory Board advises that there is sufficient cause for such donation or unless ha is detained in accordance with the provision of any law made by Parliament prescribing a. maximum period of detention that (2) in cases, where the opinion of the Advisory Board is to-be dispensed with the Parliament will by law prescribe the circumstances under which and the class or classes of cases in which a person, may be preventively detained for a period beyond 3 months that (3) in any case, every preventive detention shall be subject to the maximum period which Parliament will by ft law prescribe; and lastly that (4) every person so detained shall be communicated the ground on which the detention order against him has been made and afforded the earliest opportunity of making a representation against the order, even though such facts as may be against the public interest to disclose need not be disclosed. The important print to note is that ii is evident from the above provisions that the Constitution requires that there shall be a law of preventive detention before a person can preventively be detained, and whether this law -is a law existing before 26th January 1960 or is made thereafter it shall contain the provisions of Article 22 (4 to 7) specified above Of these provisions the most essential is the Communication of grounds to the detenu, and though there has been a difference of opinion-among their Lordships of the Supreme Court in the A.K. Gopalan Vs. The State of Madras, on other points, there is a complete unanimity among them on'' this-point and that is why they have all held Section 14, Preventive Detention Act (NO. IV [4] of 1950 to be ultra vires the Constitution, i.e., its Article 22(5). Hence, if any existing law of preventive detention dots not contain any of the above provisions of Article 22 (4 to 7), or contains provisions which are, or can be deemed to be inconsistent with the said provisions, they and possibly the whole law containing them will be void under Article 13(1) of the Constitution; and if any law of preventive detention made after 26th January 1950 is similarly defective it or its inconsistent provisions will be void under Article 13 (2) of the Constitution. The question whether the whole lay or the inconsistent provisions only will be repugnant will depend upon whether the good and bad portions can be served or not.

The various provisions of our Regulation via, the Publics Safety and Publics Interest Regulation (No. VIII[8] of 1359-F.) have to be examined in the above context to sea whether they are inconsistent with the provisions of Article 22 (4 to 7) and are therefore void under Article 13(1) of the Constitution. A brief resume of the provisions of its various sections will be this. Section 1 is preliminary; Section 2 provides that a Military or a Civil Offence may make such orders as he may think fit, for maintaining law mid order or for safe guardian public interest. Section 3 lays down that no order u/s 2 shall be called in question by any Court of this state. Section 4 permits variation or cancellation of the order. Section 5 prescribes the punishment of the contravention of the order u/s 2 and of the-varied order u/s 4. Section 6 validates orders passed before the publication of the Regulation in the Jarvis. Sections 7 to 9 provide for punishment for causing hurt etc., to public servant, for dissimulating false intelligence or false rumors and for cursing hurt to guard. Sections 10 to 11 prohibit misleading signaling to armed forces and punishes it. Sections 12 to 13 deal with the control of wireless telegraphy apparatus and punishment for unauthorized passion of the same. Section 14 penalises promoting of enmity between classes. Section 15 lays down that

any person who attempts to or 1 abuts or attempts to abet the commission of an offence punishable under this Regulation shall be doomed to have committed the offence.

Section 16 provides that offenses under existing law and this Regulation shall be punished with a sentence either under the former or the latter whichever carries greater sentence. Section 17 protects acts done under the Regulation. Section 13 defines a public servant as a servant of Government of India employed in the administration of the Hyderabad State and the last Section 19 makes the Hyderabad General Clauses Act applicable to the interpretation of the Regulation. This bird''s-eye-view picture of the provisions of the Regulation will show that it was primarily meant for establishing the authority of the new administration that was set up after the police action in the State; and though it is dear from the prescribing of 5 years imprisonments in Sub-section 5, 7, 13 and 14 and 2 years imprisonment in Section 8 and 11 that the primary object of the Regulation was punishment and not preventive detention, still form the generality of the expression that a Civil or Military officer may make such order as he thinks fit, it cannot be denied that among the various measures required for establishing law and order preventive detention may also be one. Assuming therefore that among the powers of the authorities specified in the Regulation preventive detention was also included, I have to determine whether the Regulation is not inconsistent with Article 22 (4 to 7) and if so whether it is not void under Article 13(i) of the Constitution. In the above lines I have set forth the provisions of Article 22 (4 to 7) and also those of the Regulation. It does not require much efforts to see that for a law of preventive detention the Regulation makes no provision for advisory Board, fixes no maximum period of detention or no such period as may come within the maximum period of 1 year fixed by the Parliament in the Preventive Detention Act IV [4] of 1950, makes no provisions for communication of grounds of detention or for allowing representations to be made by the detenue. In the circumstances I am obliged to hold the Regulation as inconsistent with the provisions of Article 22 (4 to 7) and particularly with the provisions of sub Article 22 (4 to 7) of Article 22. In the result Section 2 of the Regulation balconies void under the provisions of Article 13(1) of the Constitution and I hold accordingly. I may mention here that a Special Bench of the Calcutta High Court comprising of their Lord ship Sen, K.C. Chunder and Lahiri, JJ in Sunil Kumar v. the Chief Secretary to the Govt of West Bangal A.I.R 1950 Cal. 274 has on 27th February 1950 declared the Bengal Criminal Law Amendment Act vi [6] of 1930 and the west Bengal Security Ordinance (1949) void on the ground that they did not contain provisions for Advisory Boards and have held the detention of the date illegal as the authorities concerned did not form an opinion as to whether the detenu was member of a Communist organization or not. They have held the Bengal Criminal Law Amendment Act VI [6] of 1030, void even though it contained many provisions similar to the provisions in preventive detention in Article 22 for failure, already stated to provide for Advisory Boards. Similarly a Division Bench of the Patna High Court consisting of my Lords Meredith, C.J. and Sarjoo Prasad, J. in Brahmeshwar Prasad Vs. The State of Bihar and Others, on 14th February 1950 have held the Bihar Maintenance of Public Order Act (III [3] of 1950) void on the ground that though many of its provisions are similar to the provisions on preventive detention in Article 22, yet its Section 5(6) prevents the Court from ascertaining if detention beyond 3 months is in accordance with the report of the Advisory Council, holding that

the detention provisions in Act III [3] of 1950 are completely inconsistent with the fundamental rights prescribed in Article 22(4) and (5) of the Constitution; and that consequently, directly the Constitution came into force on the midnight of 25th January 1950, these provisions became void under Article 13(1) of the Constitution.

To cite one more example, the Orissa High Court also in a Fall Bench decision Prahalad Jena and Others Vs. State of Orissa, comprising of their Lordships Ray. O.J. Jaganadha Das Panigrahi and Narsimham JJ., on 3rd March 1950 have similarly declared the provisions of the Orissa Maintenance of Public Order Act IV [4] of 1948 dealing with preventive detention void under Article 13(1) on the ground, inter alia, that the period of detention specified therein was six months and not 3 months as laid down in Sub-article (4) of Article 22 of the Constitution. These examples will show that the advent of the Constitution has been recognised by all these High Courts as a great event, taking away from the executive authority to preventively detain except in cases in which the detention orders are passed under laws which are in accordance with the provisions on....preventive detention in Article 22 of the Constitution. I repeat therefore that Section 2 of the Regulation is void under the aforesaid Articles of the Constitution. I may mention here that the learned Advocate-General, gave up the stand he took in the trial Court, that the confinement of Mr. Laik Ali was not a preventive detention, but was only restriction. He admitted that it was preventive detention only. He explained that it was not simple detention as Laik Ali was not arrested and detained with a view to prosecute him for an offence which he had committed and that it was not punitive detention either, for he was neither charged, tried nor convicted for any offence and detained to undergo the terms of imprisonment imposed. In view of the provisions of the order of detention of 19th December 1948 set forth in detail in para. 1 of this judgment I agree that the detention of Mir Laik Ali can only be deemed to be a preventive detention u/s 2 of the Regulation. And I have shown above that Section 2 of the Regulation has become void since 26th January 1960.

Now, I will consider the question at serial (b) in para. (1) of this judgment, viz., whether detention order u/s 2 of the Regulation is saved by operation of two orders of H.E., the President of the Indian Republic. These two orders are the Preventive Detention (Extension of Duration) Order 1960; and the Adaptation of Laws Order 1950. Taking the first mentioned order first, it is to be observed that the learned Advocate-General for the-State has argued that the detention order served on Mr. Laik Ali u/s 2 of the Regulation is saved in this way. The order can only become void on the advent of or coming into force of the Constitution on the midnight of 25th January; the order of H.E. the President now under consideration was promulgated on 26th January; having regard to Section 5(3), General Clauses Act, 1897, the order even though it may have been, signed on 26th is deemed to come into force from the previous mid. night; and it has not only done away with the necessity of an Advisory Board in its Section 2 but has also laid down in its Section 3 that persons detained in any class of cases or under any circumstances specified in any law providing for preventive detention in force at the commencement of the Constitution shall in the case of a person in detention immediately before the commencement of the Constitution be three months from such commencement, and in the case of a person detained in pursuance of an order made after such commencement, be 3 months from the date of such order. This means, according to learned Advocate-General, that the detention of Laik Ali was regularized till 26th April 1950, and therefore the order detaining him is saved. I regret that I cannot agree with him in this contention. Granted that H.E. the President has powers of legislation in the transitional period and also during Parliamentary recesses under Articles 378, 392 and 123 of the Constitution, the question still remains whether the order under consideration is in conformity with the powers conferred by Sub-article (7) of Article 22 of the Constitution. I will not enter into a discussion as to whether H.E. the President should have prescribed in the order both the class'' of oases and the circumstances in which advice of the Advisory Board can be dispensed with; for the matter is precluded by authority, inasmuch as the four Hon''ble Judges of the Supreme Court have held that even repeating of the wording of Article 22(7)(a) is enough and no further specification is necessary. But apart from this, of course, the plain language of this sub-article read with Article 873 cannot be ignored. It has in both the Sub-articles (a) and (b) of Sub-article 7 of Article 22 the words "under any law providing for preventive detention" and clearly it means that H.E., the President is only empowered to prescribe the circumstances under which and the class or classes of oases in which a person may be detained for a period longer than 3 months under any law providing for preventive detention without taking the opinion of the Advisory Board; and he is also only empowered to prescribe the maximum period for which any person I may be detained under any law providing for preventive detention. This means quite clearly that the H.E. the President can only prescribe the circumstances or the class of cases and the maximum period of detention. And even assuming that H.E. the President has the power to make a law of detention by virtue of Article 123 which allows the President to enact legislation during a parliamentary recess, it should be a law of detention as juristically understood, i.e., as is provided by Article 29. The order under consideration is professedly not a law of preventive detention; it is professedly only an extension of duration of preventive detention order. It has thus not complied with the provision of Article 22(7). Moreover, to quote the words of My Lord, the Chief Justice of Orissa

what H.E. the President hag done under this order amounts to authorizing or validating the detention of the, persons in detention immediately before the commencement of the Constitution under self-same law under which the primary orders of detention had been made by the State authorities.

Put broadly H.E. the President say that the Regulation that remain in full force for the maximum period of 3 months despite the constitutional inconsistencies and repugnancies therein. This, in my opinion clearly amounts to over-riding the mandatory provisions of Article 13(1) and (to say the least also of) Article 82(5) of the Constitution, and is therefore ultra vires the powers of H.E. the President. Similar views have been expressed by other learned Judges in the Orissa case, and also of Calcutta full Bench case cited above. Hence the detention order u/s 2 of the Regulation or Section 2 it self is not saved by the extension of duration order under consideration and the argument of the learned Advocate General of Hyderabad cannot be upheld.

Now I will consider whether Section 2 of the Regulation or the order of detention served on Mir Laik Ali is saved by operation of the Adaptation of Laws Order, 1950. The only rule relevant to purpose now before us is Rule 28 runs as follows:

Any Court, Tribunal or authority required or empowered to enforce any law in force in territory of India immediately before the appointed day (26th January 1950) shall not withstanding that this order makes no provision or insufficient provision for the adaptation of the law for the purpose of bringing it into Court with the provisions of the Constitution construe the law with all such adaptations, as were necessary for the purpose.

The learned Advocate-General has seriously maintained that not only it should be considered that Preventive Detention (Extension of Duration) Order has adapted the Regulation so as to bring in into accord with Article 22 of the Constitution under the authority of this RULE 28 but that this Court should also adapt the Regulation under the authority of this Rule 28. He argues that this Court should consider that after Section 2 of the Regulation the Preventive Detention (Extension of Duration) Order 1950 has by its Section 2 inserted in the Regulation provisions regarding dispensing with the opinion of the Advisory Board and by its Section 3 prescribed the maximum period. Similarly, he goes on to state that this Court should read after Section 2 of the Regulation and also after the sections inserted by the Preventive-Detention (Extension of Duration) Order the various provisions of Article 22 of the Constitution-It is unnecessary to refute this argument. If lam-to act as suggested I would, as held by My Lord the Chief Justice of Patna, legislating myself; as I would be making a new law by piecing together all the pieces suggested by the learned Advocate-General, and legislation is not a function that has fallen to my lot under the Constitution. Then again, as held in Calcutta Full Bench case cited above, it does not appear that the Constitution has empowered H.E. the President to delegate his legislative power. The power-of legislation under Articles 373, 392 and 123 is really a delegation of legislative powers of the Parliament and the Constitution is silent as regards his power to delegate. It is a principle of law that delegates non posttest delegate, and therefore H.E. the President does not appear to be correct in delegation of his delegated power of legislation to the Courts Thus Rule 28 of the Adaptation of Laws Order, 1950 does not seem intra vires of the powers of H.E. the President and consequently the argument of the learned Advocate-General that this Court should do the adaptation fails on the ground that H.E. the President cannot validly delegate his power of legislation to the Court in addition to the aforesaid ground that in principle also legislation does not pertain to Courts. This argument also of the learned Advocate-General is, therefore rejected.

Lastly there remains consideration of the question whether the detention order served on Mir Laik Ali on 19th December 1948 u/s 2 of the Regulation is saved by operation of Section 6 (d and e), General Clauses Act of 1897 or its equivalent Section 5, Hyderabad General. Clauses Act III [3] of 1808 F. The learned Advocate General Mr. Raja Ram Iyer has laid great stress on this argument and has called it act one of the two sheet-anchors of his case, the first being the effect of Preventive Detention-(Extension of Duration) Order, 1960, which I have already considered in the foregoing lines. Mr. Raja Ram Iyer argues that even assuming that Section 2 of the regulation become void by virtue of Article 13(1) of the Constitution the detention order is saved u/s 6(e), General Clauses Act as that Sub-clause (e) of Section 6 lays down that even a fresh legal proceeding can be instituted, continued or enforced even after the repeal of an Act, provided that the liability was incurred before the law became void. Here Mir Laik Ali had incurred the liability to be detained before Section 2 of the Regulation became void and, therefore, it can be enforced, and continued oven after the Regulation has become void. In support of this argument he has cited marginally noted cases, J.K. Gas Plant Manufacturing Co. Rampur Ltd. v. Emperor AIR 1947 F.C. 38; In re A.N.G. Sundararajulu Chetty AIR 1949 Mad. 893; Wicks v. Director of Public Prosecution (1947) A.C. 362 and In re Keshav Madhava Menon 1950 52 Bom. L.R. 510, laying particular emphasis on the one at serial 4. Discussing the cases at serial 1 and a he has pointed out that though the Special Tribunals wore not constituted for any definite period and the Special Tribunal Ordinance was repealed, the jurisdiction of the Tribunal was held in these cases to be saved in respect of proceedings already instituted. Similarly, in case at social 3 sanction for prosecution was given by the concerned authority even after the law had been repealed on the ground that

where after the expiry of an Act, a prosecution can be launched u/s 6(e), General Clauses Act, the pre requisite for the prosecution will also be deemed to exist.

As already stated he has emphasized the case at serial 4. There it was held by his Lordship Mr. Chagla, C.J. of Bombay that Section 6, General Clauses Act, applies not only to Acts which have been repealed, but also to acts which have become void as a result of their being inconsistent with the provisions of Part III of the Constitution; that in substance and in effect there is no difference between an Act that is repealed and an Act which is declared void; and hence a prosecution for an offence punishable u/s 18(1), Press (Emergency Powers) Act, 1931 already launched before the Constitution came into force is not affected by Section 18(1) of the Act being declared void under Article 13(1) of the Constitution.

On full consideration of the above argument, I am convinced that it is wholly untenable, and the cases cited therein are more or less irrelevant. And this for two reasons, (1) In the first place the very wording of Section 6, Sub-section (d) and (e) does not apply to the case before us, Section 6(d) and (e) are as follows:

Where this Act or any central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made, or hereafter to be made, then unless a different intention appears, the repeal shall not

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment BO repealed; or

(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, forfeiture as aforesaid; and any such investigation, local proceeding or remedy may be instituted; continued, or enforced, and any penalty, forfeiture or punishment may be imposed an if the Repealing Act or Regulation had not been passed.

Now it is admitted that a person preventively detained is not detained for having committed any offence, but is detained on account of suspicion and for preventing him from committing the apprehended offence or offences. Hence it is difficult to see how the words of Clause (d) of Section apply to such a person that he has incurred any penalty, forfeiture or punishment. And if the words of this clause do not apply, how can it be said in the words of Clause (e) that any investigation, legal proceeding or remedy in respect of any penalty, for feature or punishment is saved or any investigation, legal proceeding or remedy can be instituted continued or on forced. Thus, in my opinion, as in cases of preventive detention no offence is committed but apprehended commission of offences is prevented. Section 6, General Clauses Act, is not applicable. In the case before us, Major General Chaudary has in a letter stated that there was no charge against Mir Laik Ali and, therefore, he had incurred no penalty, forfeiture or punishment that can be continued after Section 2 of the Regulation had become void by virtue of Article 13(1) of the Constitution. (2) Secondly, as his Lordship the Chief Justice of the Bombay High Court has himself laid down in Emperor v. Jesinghbhai Ishwarlal 52 Bom. L.R. 544:

The saving of the order u/s 6 does not mean that the state is entitled after January 26 to deprive a citizen of a fundamental right which is guaranteed to him. These fundamental rights have come into existence after January 26. Our Constituent Assembly has provided remedies for safeguarding these rights. They have been made justifiable and, therefore, even though the operation of the order may have been saved by Section 6, General Clauses Act, we are not so much concerned with the validity of the order as the violation of fundamental rights which have come into existence after 26th January 1950.

That is why I think that Mr. Raja Ram has towards the end of his argument admitted that the only criterion is whether Section 2 of the Regulation is inconsistent with the Constitution. If it is inconsistent or repugnant, Section 6, General Clauses Act, will not avail. In my opinion of the two reasons I have advanced above, the first appeals to me more for when Section 6(d) and (e) are by their very wording not applicable to a detention order, the question of saving such orders does not arise at all. The oases cited by Mr. Raja Ram are I think irrelevant. In serial 1 to 3 the Courts jurisdiction after repeal was saved because of an express saving provisions in the Repealing Act, and not by operation of Section 6, General Clauses Act, and the Bombay case at serial 4 is also evidently irrelevant, inasmuch as, there an offence u/s 18 (l), Press Act, had been committed before the Act became void; and here, of course, no such allegation is made here that Laik Ali was guilty of any offence before Section 2 of the Regulation became void by the commencement of the Constitution, and moreover, the Bombay case does not decide that Section 6, General Clauses Act, is applicable to cases of preventive detention. After writing so far I found in my notes of the case that Mr. Baja Earn has relied on Sub-clause (b) of Section 6 also. This clause lays down that the repeal of an Act does not affect anything duly done or suffered under the repealed enactment. Ho means that even if Section 6 is deemed to have been repealed or rendered void by Article 13 (1) of the Constitution, the detention order on Mir Laik Ali is a thing done and is, therefore, saved. My answer to this contention is that even agreeing with his Lordship the chief justice of Bombay that there is no difference between the repeal of an Act and declaring it to be void, as was held by him in In re Keshav Madhava Menon 52 Bom. L.R. 540 we should also agree with his subsequent finding in Emperor v. Jesinghbai Ishwarlal 52 Bom. L.R. 514 quoted above in extenso that saving of the order u/s 6 does not mean that the State is entitled after 26th January to deprive a citizen of a fundamental right which is guaranteed to him from 26th January; and that these rights having been made justifiable, we are not concerned so much with the saving and validity of the order as the violation of the fundamental right. I need hardly refer again to the admission of the learned Advocate-General himself that in the last analysis the only criterion is whether Section 2 of the Regulation and the order based on it is inconsistent with and repugnant to the Constitution and that if they are so, the whole of Section 6 will not avail. Hence this last argument of the learned Advocate-General also falls to the ground.

I have so far tried to answer the three questions of law mooted in para, 1 of the judgment. Before I state my conclusion flowing from them, I may avert briefly to the argument of the learned Counsel for accused Arifuddin and Naziruddin. It is that apart from the advent of the Constitution, the Regulation is ultra vires the powers of the Military Governor and that even if it be deemed to be intra vires, it had lapsed by virtue of Section 25 of the Alienee Maqarranah, which prescribes that Regulations promulgated by Sadre-Azam (Chief Minister) will remain in force for six months only and if not renewed will lapse. The learned Counsel points out that the Regulation has never been renewed and even had it been renewed it would have lapsed and did in fact lapse in October 1919. Hence Mir Laik Ali was not detained under any law that was in force and his client even assuming without admitting that they aided and abetted Mir Laik Ali in escaping, committed no wrong. I cannot agree to this. For I have in my judgment in case of Kallur Yedla v. State No. 666 of 1950, Dt.- 29th March 1950, dealt with a similar argument and has disagreed with it. It is need-less to repeat here all the points that I made there. Suffice it to say that Section 25 has been repealed by Anr. Regulation; that even in the Aieen-Mukannah H.E. II. the Nizam''s legislative soverguity was preserved in full and that the Regulation under consideration was and can only be considered to have been passed in exercise of that power, as it was sanctioned by him.

My conclusions, therefore, are that Section 2 of the Regulation being inconsistent with Article 22 (1 to 7) is void under Article 13(1); this section or the order based on it, is not saved by the two orders of H.E. the President discussed above, nor the order of detention served on Mir Laik Ali is saved by Section 6, General Clauses Act. In effect, the learned Advocate-General has rested his case on there being no repugnancy between Article 22 of the Constitution, and Section 2 of the Regulation when considered in the light of H.E. the President''s abovementioned two orders. I have shown above, I hope clearly, that there is very great repugnancy between the two and that the two orders of the President do not help. Hence, if Section 2 of Regulation and an order based on it are void, because of advent of the glorious Indian Constitution, it is dear that Mir Laik Ali was under detention which had become un-lawful from 26th January 1950. Had the authorities acted in time and were alive to the impending changes to be ushered in by the Constitution since its passing by the Constituent Assembly in November 1949 they could have made the detention lawful, that is, of course, for a period permitted by Article 22 of the Constitution. They could have through proper channels moved H.E. the President to adapt the Hyderbad Regulation under Article 872, or to promulgate an ordinance for the State under Article 123 or they could have even moved H.E. the Governor-General while he held the office to act similarly under Article 893. They have not moved so. Hence as it is, the Constitution has made the Courts the guardian of the fundamental rights of the people guaranteed in its part III, and in a long view of the matter it is far better in the interest of the State itself that many an accused may escape than even the slightest blame is attached to the impartial lofty attitude of the Courts. It is up to the Courts to act up to the high standard of justifiable integrity Bet up by the Constitution. AS is well said amidst the trident clamor of political strife and the tumult of the clash of conflicting classes the Courts must remain impartial. Courts are no respecters of persons and their endeavor must be to ensure that above this clamor and tumult the strong calm voice of justice shall always be heard. The learned Advocate-General has admitted the proposition that if the detention was unlawful, Laik Ali had committed no offence in escaping and if his escape was not an offence under the law, no question of abiding and abetting arises. It is not necessary to quote authorities on this point; but those cited by the learned Counsel of the petitioner and noted in the margin (1) Halsbury vol. 27, (2) Halsbury vol 9, p. 5, (3) In Re: Appaswamy Mudali and Others, , (4) Jogendra Nath Laskar Vs. Hiralal Chandra Poddar and Others, , (5) Kala v. Emperor AIR (12) 1925 Lah. 623, (6) 1858 Empire Digest vol. 42 P. 458, (7) 12 D L.R. 169, may be referred to Serial 1 and 2 will show that if detention is unlawful the person detained may escape even by use of force. Serial 3 has laid down that abetting in freeing a man from unlawful detention is no offence and so on with the arrest, viz. Serial 3 to 7. I end by quoting the maxim that it is in the interest of the safety and permanence of the State itself that justice should be done at all costs and in all circumstances, even if, as the Nowwans say, heaven would fall, Fist Justicia ruat Coolum. In the result the revision petition and the petitions under Article 228 are allowed and I direct that the case against the petitioners in the Court below shall be closed, as the proceedings against them are hereby quashed.

Leave to appeal to the Supreme Court under Avis. 122 and 104 (c) of the Constitution is granted.