Case number/Citation:Criminal Appeal No. 96 Of 1957
Court:Supreme Court of India Crl. Appellate Jurisdiction
Decided on:May 24, 1957
Relevant Act/Sections:Art. 22(4)(a) -Preventive Detention Act, 1950 (Act IV of 1950) as amended by the amending Act of 195I (No. IV of 1951), s. II(I).                            
    • On July 24, 1956, the grounds of detention were communicated to the appellant under S. 7 of the Preventive Detention Act No. 4 of 1950. The case of the appellant was then sent to an Advisory Board constituted under S. 8 of the Act, and the Advisory Board having reported that there was, in its opinion, sufficient cause for detention of the appellant, the Central Government confirmed the order of detention on August 20, 1956, and stated further that the appellant “shall continue in detention for a period of twelve months from the date of his detention.”
    • This order was passed under sub-s. (1) Of S. 11 of the Act. Before that date, however, the appellant moved the Punjab High Court as also this Court challenging the legality of his detention and asked for the issue of a writ in the nature of a writ of habeas corpus. The petition to this Court was dismissed. In the petition to the Punjab High Court under Art. 226 of the Constitution, the appellant was permitted to urge an additional ground to the effect that sub-s. (1) Of S. 11 of the Act was unconstitutional inasmuch as it offended against Art. 22 (4) (a) of the constitution.
    • This constitutional point was referred to and decided by a Division Bench of the Punjab High Court by an order dated September 24, 1956. The High Court held that sub-s. (1) Of S. 11 of the Act was neither repugnant to nor inconsistent with the provisions of Art. 22 (4) of the Constitution. A single Judge of the High Court then dealt with the petition of the appellant on merits and dismissed it by an order D/- 26-9-1956.
    • The appellant moved the Punjab High Court unsuccessfully for leave to appeal to this Court. He then moved this Court, and obtained special leave to appeal from the aforesaid orders of the Punjab High Court dated September 24, and September 26, 1956, respectively.
    • Whether the sub-s. (1) Of S. 11 of the Preventive Detention Act does not conform to the constitutional mandate given by sub-cl. (a) of Cl. (4) of Art. 22 of the Constitution?
    • The learned counsel for the appellant argued that the sub section 1 of section 11 of the Act goes against the constitutional mandate under Article 22 (4) which the learned counsel for the Union of India opposed by submitting that that the expression ‘such detention’ occurring in sub-cl. (a) of Cl. (4) of Art. 22 refers back to ‘preventive detention’ occurring in the first line of Cl. (4) ,and under the said sub-clause the Advisory Board is to give its opinion as to whether there is sufficient cause for the detention of the person concerned; there is no duty cast on the Advisory Board to determine the period of detention, and the failure of the Advisory Board to state in its report that there is sufficient cause for the detention of the person concerned for more than three months no violation of the constitutional mandate contained in the said sub-clause.
    • The court examined the provisions of Art. 22 and observed that the Constitution has in one case given discretion to the Executive not to furnish facts in certain circumstances and in the other case left it to Parliament to prescribe cases or classes of cases in which reference to the Board need not be made. Considering the circumstance that the detention is of a preventive nature, the Executive has necessarily to consider whether a person should be detained and the period for which he should be detained.
    • The court further opined that it could not have been the intention to give the power of determining the necessity of detention of a particular person to the Executive, and leave to another authority – the Board in this case – to say whether the detention should be for three months or more. In the very nature of things the decision as to the period of detention must be of the detaining authority, because, it is the authority upon which responsibility for detention has been placed.
    • The court held that the reference to the Board is only a safeguard against Executive and is not a limitation on the Executive’s discretion as to the discharge of its duties connected with preventive detention; it is a safeguard against misuse of power.
    • The court also dwelled upon the obligation upon the govt. to coumminicate the grounds of detention and facilitate the detenu’s representation and determining the detention period after considering the finding of advisory committee under s. 7, 8, 9 of the Act. The court relied upon Makhan Singh Tarsikka v. State of Punjab, 1952 SCR 368 at p. 370: (AIR 1952 SC 27 at p. 28) wherein it was held that the period of detention should be fixed after the findings of the advisory board and not before. The court held that the constitution provides for detention longer than the period of three months after the consideration of the advisory board. Therefore, the sub section was not ultra vires.
    • As opposed to the appellant’s arguments that the detention had no relation to the past conduct the court held that what the appellant is likely to do in future must, to a large extent be inferred from his past conduct and that the ground has a rational connection with the objects which the appellant has to be prevented from attaining. The objects of the appellant’s detention were to prevent him from acting in a manner prejudicial to (1) the security of India and (2) her relations with foreign powers. The court held that both these objects came within the ground in question.
    • The court also disagreed that the order was mala fide. It held that the activities of the appellant and the events of 1954 to 1956 referred to by the appellant, did not in any way show that the order of detention made against the appellant was made for any ulterior purpose or for purposes other than those mentioned in the detention order. On the question of mala fides, it is not a relevant consideration whether the activities of the appellant were liked or disliked by the authorities concerned. The only relevant consideration was if the order of detention was made for ulterior purposes or purposes other than those mentioned in the detention order and the court did not find any such purpose.
    • Appeal was dismissed.
  1. As a matter of pure construction of the language used in sub-cl. (a), the words “such detention” must mean detention for a longer period than three months. The word “such” means, of the kind or degree already described. Of the meanings of the word “such” given in the Oxford Dictionary this I find to be the only one appropriate in the present context. The learned judge held that such detention means detention for a longer period than three months. Therefore, the provision is ultra vires.
  2. The learned judge also held that it is not intended that when detention for a period longer than three months is contemplated, it is not necessary to obtain the opinion of the Advisory board as to whether there was sufficient cause for detention for the period. Such a detention beyond three months cannot be preventive in tits nature.

He therefore, allowed the appeal.

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