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PETITIONER: GODAWARI S. PARULEKAR AND ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 17/01/1966

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C. RAMASWAMI, V. SATYANARAYANARAJU, P.

CITATION:  1966 AIR 1404            1966 SCR  (3) 314

ACT: Defence of India Rules, 1962, r.30- State Government whether can exercise authority to order detention delegated by it to District  Magistrate-Detention order passed during  pendency of  habeas corpus proceedings whether vitiated by malice  In law.

HEADNOTE: The appellant was detained from November 1962 onwards  under various  detention orders.  She was released on February  4, 1964 but as won as she came out of the prison gates, she was served  with  a fresh order of detention dated  February  3, 1963  issued  by  the State Government under r.  30  of  the Defence of India Rules, 1962.  She was detained with a  view to  prevent her from acting in a manner prejudicial  to  the defence  of  India,- the public safety  and  maintenance  of public order.  A petition filed by the appellant under  Art. 226 of the Constitution against her detention under the said order  was dismissed by the High Court.  The appellant  came to this Court by special leave. It was contended on behalf of the appellant : (1) The  State Government  having  delegated  its powers  under  r.  30  to District  Magistrate  by a notification dated  9th  November 1962,  it  was not competent to pass an order  of  detention under r. 30. (2) The order of detention was bad because  two ministers cannot legally jointly pass an order of detention. (3)  The Order of detention was vitiated by malice  in  law. (4) The High Court should have insisted on an affidavit from the Ministers. (5) There was no material to show that  there was an apprehension that maintenance of public order  -would be prejudicially affected. HELD  : There was no infirmity in the order under which  the petitioner was detained. (i)  By  delegating  its  power  under  r.  30  to  District Magistrates  the State Government was not itself denuded  of the power to act under 30. [317 H] Huth v. Clarke, 25 Q.B.D. 391, relied on. King Emperor v. Sibnath Banerje, 72 I.A. 241,  distinguished and explained.

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(ii)There  is no difficulty in two  Ministers  successively being satisfied that it is necessary to detain a person  for different reasons and then their decision being carried  out by one order of detention duly authenticated. [318 D] Godavari Samrao Parulekar v. State of Maharashtra, [1964]  6 S.C.R. 446, referred to. (iii)The  mere fact that the detention order is  passed during  the pendency of habeas corpus proceedings cannot  by itself lead to the conclusion that the order is vitiated  by malice  in  law.  If the Government considers  an  order  of detention,  which is the subject-matter of challenge, to  be invalid,  there is no reason why it should not pass a  Valid order [319 B-D] 314 315 Naranjan  Singh Nathawan v. State of Punjab,  [1952]  S.C.R. 395, relied on. (iv)Whether  an  affidavit by the Ministers  concerned  was necessary or not was for the High Court to consider. (v)The Court could not go into to the question whether the material  before the detaining authority was  sufficient  or not.

JUDGMENT: CRIMINAL  APPELLATE JuRISDICTION: Criminal Appeal Nos.  142- 149 and 225-227 of 1964. Appeals from the judgment and orders dated April 13,1964  of the Bombay High Court in Criminal Applications Nos. 180-182, 189,  190,  191,  193  and  194  and  195  to  197  of  1964 respectively. R. K. Garg, for appellant (in Cr.  A. No. 142/1964). The appellants appeared in person. N.S. Bindra and B. R. G. K. Achar, for the respondents. Sikri, J. These appeals by certificate granted by the Bombay High Court are directed against its judgment dated April 13, 1964 in applications filed by the applicants under art.  226 of  the Constitution, and s. 491 of the  Criminal  Procedure Code.    Criminal  Appeal  No.  143  of  1964   has   become infructuous because the appellant, S.   V.  Parulekar,   has died. Mr.  R.  K.  Garg appears on  behalf  of  the  appellant-,in Criminal  Appeal No. 142 of 1964.  It is common ground  that the  points  arising in all the appeals are common,  and  in order  to appreciate the points, it would be  sufficient  if the  facts in Criminal Appeal No. 142 of 1964,  relevant  to the arguments addressed to us, are only given.  The relevant facts given in paragraphs 2 and 3 of the affidavit filed  by the Under Secretary to the Government of Maharashtra are  as follows:                "2.With reference to paragraph 1 of the  said               Petition   I  say  that  the  petitioner   was               detained  under order dated the  7th  November               1962 issued by the District Magistrate, Thana,               under  the Preventive Detention Act 1950.   On               10th   November,  1962,  the   Government   of               Maharashtra  revoked  the order  of  detention               dated  the  7th November 1962  issued  by  the               District Magistrate, Thana, and the revocation                             order was served on the petitioner on the  11th               November 1962.  Thereafter the petitioner  was               served  with another order of detention  dated               the   10th   November  1962  issued   by   the

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             Government of Maharashtra under Rule 30 of the               Defence of India Rules, 1962.  Further by  its               order  dated  the  25th  September  1963,  the               Government  of Maharashtra cancelled the  said               order  of  detention dated the  10th  November               1962 and in pursuance of the said cancellation               order the petitioner was released from deten-               316               tion  on  27th  September  1963.   After   she               actually  came  out  of  the  Yeravda  Central               Prison  gates and was a free woman, the  fresh               orders  of detention and committal  dated  the               25th  September 1963 issued by the  Government               of Maharashtra were served on her and she  was               again detained in the Yeravda Central  Prison,               Yeravda Poona.  Thereafter, by its order dated               the  3rd  February, 1964,  the  Government  of               Maharashtra  cancelled its order of  detention               dated   the  25th  September  1963   and   the               petitioner  was  again  released  on  the  4th               February 1964.  After she actually came out of               the Arthur Road District Prison gates and  was               a  free  woman, she was served  with  a  fresh               order of detention dated the 3rd February 1964               issued by the Government of Maharashtra  under               rule 30 of the Defence of India Rules 1962 and               redetained  with  a view to prevent  her  from               acting in a manner prejudicial to the  defence               of India, the public safety and maintenance of               public   order.   The  last  two   orders   of               cancellation  and  detention  dated  the   3rd               February   1964  are  attached  to  the   said               petition as Annexures A and B, respectively.               3.With  reference  to paragraph 2  of  the               said  petition  I  say  that  what  is  stated               therein  is generally correct.  I further  say               that  the petitioner is a Communist  belonging               to  the Ranadive Group, which  maintains  that               China  has  not committed  any  aggression  on               India  and  which  actively  propagates   that               view." The  High  Court of Bombay held that the  detention  of  the appellant from May 1963 to February 1964 was illegal but the order of detention passed on February 3, 1964 was legal, and accordingly  the  appellant  could  not  be  ordered  to  be released.   It is this order of February 3, 1964,  which  is now the subject matter of challenge.               Mr.   Garg  for  the  appellant   raised   the               following points before us:               (1)That the State Government having  delegated               its  powers conferred upon it under r.  30  of               the   Defence   of  India  Rules,   1962,   by               Notification  "Home Department  (Special)  No.               S.B. III/DOR.1 162-1, dated the 9th  November,               1962"  to all District Magistrates within  the               limits  of their jurisdiction subject  to  the               conditions mentioned in the Notification,  the               State Government was not competent to pass  an               order of detention under r. 30.               (2)That the order of detention is bad  because               two  Ministers cannot legally jointly pass  an               order of detention.               (3)That the order of detention is  vitiated               by malice in law.                                    317

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             (4)That on the facts of this case the  High               Court  should  have insisted on  an  affidavit               being filed by the Ministers.               (5)That there was no material to show  that               there was any apprehension that maintenance of               public order would be prejudicially affected.               Relying on King Emperor v. Sibnath  Banerje(1)               Mr. Garg argues that the State Government  had               divested itself of its powers to detain.   The               Privy Council observed at p. 265 as follows:               "It  is  for  the  same  reasons  that   their               Lordships    are   unable   to   accept    the               respondents’ contention, also agreed to by the               majority judges in the Federal Court, that the               provision  of sub-s. 5 of S. 2 of the  Defence               of India Act, provides the only means by which               the Governor can relieve himself of a strictly               personal function.  Their Lordships would also               add  on this contention that sub-s. 5 of s.  2               provides  a means of delegation in the  strict               sense  of the word, namely, a transfer of  the               power  or  duty to the  officer  or  authority               defined in the sub-section, with a correspond-               ing   divestiture  of  the  Governor  of   any               responsibility in the matter, whereas under r.               49,  sub-s.1, of the Act of 1935 the  Governor               remains  responsible  for the  action  of  his               subordinates taken in his name." We are unable to agree with Mr. Garg that the Privy  Council laid  down  that the Governor was divested of its  power  of passing an order when the above notification was issued.  It seems  to  us  that the Privy Council was  thinking  of  and comparing the responsibility of the Governor for the  orders passed  by  the delegate and by an officer acting  under  s. 49(1)  of the Act of 1935.  In the case of the delegate  the Privy  Council held that the Governor was  not  responsible, but  that  does not mean that the Governor  could  not  have acted  under r. 26 of the Defence of India Rules made  under the Defence of India Act, 1939. In Huth v. Clarke(2) WillS,J., observed at p. 395:               "  Delegation, as the word is generally  used,               does  not imply a parting with powers  by  the               person  who grants the delegation, but  points               rather to the conferring of an authority to do               things which otherwise that person would  have               to do himself." In  our opinion, by issuing the aforesaid  notification  the State Government has not denuded itself of the power to  act under r. 30. Coming  to the second point, namely, whether the two  minis- ters can jointly pass an order of detention, it is necessary to give a (1) 72 I.A. 241.                               (2) 25 Q.E.D. 391. 318 few relevant facts.  In Godavari Shamrao Parulekar v.  State of Maharashtra(1) this Court observed:               "The  order,  therefore, in the  present  case               could  only be made by a Minister who was  in-               charge  both  of  subjects  allotted  to   the               General Administration Department and subjects               allotted to the Home Department (Special)." Basing on this passage, Mr. Garg contends that it is only if a  Minister is in charge of both the subjects that an  order of detention can be passed.  He further elaborates his point

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by  saying  that once one Minister is satisfied that  it  is necessary  to  detain a person under one head, say  for  the maintenance of public order’ there is no question of another satisfaction  by  another Minister that it is  necessary  to detain  that very person, say for the reason  of  preventing him  from acting in a manner prejudicial to the  defence  of India.   He  says  that as soon as  the  first  Minister  is satisfied  that  it  is necessary to  detain  a  person  for reasons of maintenance of public order, no power remains  to consider  other reasons.  We are unable to accept the  above line  of  reasoning.  We do not see any  difficulty  in  two Ministers successively being satisfied that it is  necessary to  detain  a person for different reasons, and  then  their decision  being carried out by one order of  detention  duly authenticated.  We agree with the High Court that this Court did not mean to lay down an absolute proposition of law that unless  all  the relevant subjects in respect of  which  the orders of detention are passed are concentrated in the hands of one Minister, valid orders of detention cannot be passed. Regarding  the  next  point, namely, whether  the  order  of detention is vitiated by malice in law, Mr. Garg urges  that no order of detention can be passed to defeat habeas  corpus proceeding.   We  are unable to agree with  the  proposition submitted  by  the learned counsel.  The Court  observed  in Naranjan  Singh  Nathawan  v.  The  State  of  Punjab(2)  as follows:               "Once  it  is conceded that in  habeas  corpus               proceedings the court is to have regard to the               legality or otherwise of the detention at  the               time  of the return and not with reference  to               the date of the institution of the proceeding,               it  is  difficult to hold, in the  absence  of               proof   of  bad  faith,  that  the   detaining               authority cannot supersede an earlier order of               detention  challenged  as illegal and  make  a               fresh  order wherever possible which  is  free               from  defects  and  duly  complies  with   the               requirements of the law in that behalf."  This               Court observed further at p. 400, as follows:               "If  at any time before the court directs  the               release of the detenu, a valid order directing               his detention is pro- (1) [1964] 6 S.C.R. 446, at p. 458. (2) [1952] S.C.R. 395. 319               duced,  the  court cannot direct  his  release               merely on the ground that at some prior  stage               there  was no valid cause for detention.   The               question is not whether the later order  vali-               dates the earlier detention but whether in the               face  of the later order the court can  direct               the release of the petitioner." The mere fact that the detention order is passed during  the pendency of habeas corpus proceedings cannot by itself  lead to  the conclusion that the order is vitiated by  malice  in law.   It  depends on the circumstances of  the  case.   The detenu would have to prove not only that the detention order has  been  passed  during  the  pendency  of  habeas  corpus proceedings  but  also that there are  other  facts  showing malice.   Mr. Garg has not been able to point out any  other facts in this case.  If the Government considers an order of detention,  which is the subject matter of challenge, to  be invalid,  there is no reason why it should not pass a  valid order.  Mr. Garg says that there was no fresh  consideration of  the  facts  and the  Ministers  acted  on  pre-conceived

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notions  and  passed the new order dated February  3,  1964, without  any fresh consideration.  We are unable  to  accept this  argument because it is quite clear from the  affidavit filed   by  the  Under  Secretary  to  the   Government   of Maharashtra,,  Home  Department and  General  Administration Department, that before the order was passed the Minister of Home  and  the Chief Minister were satisfied  in  accordance with  the  rules  of business made under  art.  166  of  the Constitution. We may at this stage deal with the question whether the High Court  should  have  insisted on the  Ministers  filing  the affidavit.   It  is for the High Court to consider  in  each case whether it is satisfied with the affidavit filed in the case.  In this case it does not appear from the judgment  of the  High Court that this point was raised before  the  High Court. The  only  point  that  remains is  whether  there  was  any material for detaining the appellant for the maintenance  of public  order.  It has been consistently held by this  Court that  it  is  for the detaining authority  to  be  satisfied whether on the material before it, it is necessary to detain a  person  under  r.  30, and  that  this  question  is  not justiciable.  There is no force in this point. Accordingly we hold that there is no infirmity in the  order of detention dated February 3, 1964. In  Criminal  Appeal  No. 144 of 1964,  the  appellant  P.P. Sanzgiri,  adopted  the arguments of Mr.  Garg  and  further urged  that  he had been validly detained by  order  of  the District  Magistrate dated November 11, 1962, and there  had been no proper cancellation of this order.  But he says that this order was bad because there was no confirmation of  it. As pointed out above, we are not concerned with the previous orders of detention because the appellant is detain- 320 led now under the order dated February 3, 1964, and we  need not go into the point. We  may mention that in three appeals, Criminal  Appeal  No. 225/64,  Criminal Appeal No. 226/64 and Criminal Appeal  No. 227/64, the orders of detention are dated February 14, 1964, but  nothing  turns  on  this difference  in  the  dates  of detention. In  the result the appeals fail and are  dismissed.  Appeals dismissed. 321