10 December 1951
Supreme Court
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MAKHAN SINGH TARSIKKA Vs THE STATE OF PUNJAB.

Bench: SASTRI, M. PATANJALI (CJ),MAHAJAN, MEHR CHAND,MUKHERJEA, B.K.,DAS, SUDHI RANJAN,AIYAR, N. CHANDRASEKHARA
Case number: Writ Petition (Civil) 308 of 1951


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PETITIONER: MAKHAN SINGH TARSIKKA

       Vs.

RESPONDENT: THE STATE OF PUNJAB.

DATE OF JUDGMENT: 10/12/1951

BENCH: SASTRI, M. PATANJALI (CJ) BENCH: SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA

CITATION:  1952 AIR   27            1952 SCR  368  CITATOR INFO :  R          1952 SC 106  (9)  F          1952 SC 181  (5,13,26)  R          1958 SC 163  (12,39,42)

ACT:     Preventive  Detention  Act  (IV of 1950  as  amended  in 1951) ss. 3 (i), 9, 11, 12--Order of detention fixing period of  detention  in initial order itself before  reference  to Advisory     Board--Legality-Deprivation     of     personal liberty--Duty to follow procedure strictly.

HEADNOTE:     Whatever  might  be  the position  under  the  Preventive Detention  Act of 1950 before it was amended in 1951,  under the Act as amended in 1951, the Government should  determine what the period of detention should be only after the  Advi- sory  Board to which the case is referred reports  that  the detention is justified. Fixing of the period of detention in the  initial order itself is contrary to the scheme  of  the Act and cannot be supported.  It cannot be treated as a mere surplusage  as it would tend to prejudice a fair  considera- tion  of the detenu’s case by the Advisory Board, though  he would  have to be released forthwith if the  Advisory  Board reports that there is no sufficient cause for detention.     Before a person is deprived of his personal liberty  the procedure  established by law must be strictly followed  and must not be departed from to the disadvantage of the  person affected.

JUDGMENT:       ORIGINAL  JURISDICTION.  Petition  No.  308  of  1951. Application under article 32 of the Constitution for a  writ in  the nature of habeas corpus praying for the  release  of the petitioner from detention. H.J. Umrigar (amicus curiae), for the petitioner. S.M.  Sikri,  Advocate-General of the Punjab,  (Jindra  Lal, with him) for the respondent.

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   1951.  December 10. The Judgment of the Court was deliv- ered by     PATANJALI SASTRI C.J.--This is a petition under  article 32 of the Constitution praying for the release of the  peti- tioner from his alleged unlawful detention. We accepted  the petition and, at the conclusion of the hearing, ordered  the petitioner  to  be released.,  We now proceed  to  give  the reasons for our order. 369     The petitioner was arrested and detained under an  order dated  1st  March, 1950, made by  the  District  Magistrate, Amritsar, under section3(1) of the Preventive Detention Act, 1950 (hereinafter referred to as "the Act ") and the grounds of detention were communicated to the petitioner as required by  section7 of the Act on 15th March, 1950. The  petitioner challenged the validity of the order on various grounds but, while  the  petition was pending after this Court  issued  a rule  nisi to the respondent, the petitioner was  served  on 6th August with another detention order dated 30th July,1951 1,  purporting  to be made by the Governor of  Punjab  under sub-section(1)  of  section 3 and section 4 of  the  Act  as amended  by the Preventive Detention (Amendment) Act,  1951, and  he was served with fresh grounds of detention  on  16th August, 1951. Thereupon the petitioner filed a supplementary petition  impugning  the validity of the said order  on  the ground, inter alia, that  it  directed the detention of  the petitioner up to 31st March, 1952, the date on which the Act itself  was  to  expire and that this was  contrary  to  the provisions  of  the  Act as amended.  On  behalf     of  the respondent,  the Advocate-General of Punjab urged  that  the said order was not intended to be a fresh order of detention but  was passed only with a view to limiting the  period  of detention till 31st March, 1952, as it had been held in some cases  that an order of detention for an  indefinite  period was bad.  The order runs as follows :-     WHEREAS the Governor of Punjab is satisfied with respect to the person known as Makhan Singh Tarsikka, son of  Gujjar Singh,  Jat, of Tarsikka, Police Station Jandiala,  Amritsar District, that with a view to preventing him from acting  in a  manner  prejudicial to the security of the State,  it  is necessary to make the following order:     Now,  THEREFORE, in exercise  of  the  powers  conferred by  sub-section  (1) of section 3 and section  4     of  the Preventive Detention Act, 1950 (Act IV of 1950), as  amended by the Preventive Detention (Amendment) Act, 1951 (Act IV of 1951), the Governor 370 of Punjab hereby directs that the said Makhan Singh Tarsikka be  committed  to  the custody of  the  InspectorGeneral  of Prisons, Punjab, and detained in any jail of the State  till 31st March, 1952, subject to such  conditions as to  mainte- nance, discipline and punishment for breaches of  discipline as have been specified by a general order or as contained in the Punjab Communist Detenu Rules, 1950.    It will be seen that the terms of the order make it clear that  it  was intended to operate as a fresh order  for  the detention of the petitioner and this view is strengthened by the  fact  that the order was followed by the service  of  a fresh  set of grounds on the petitioner as required by  sec- tion 7 of the Act; a proceeding which would be wholly unnec- essary if no fresh order of detention was intended.  Indeed, it  was suggested on behalf of the petitioner that the  said order  followed by service of fresh grounds only  four  days before  the  date fixed for the hearing of the  petition  by this  Court was a deliberate move by the respondent to  cir-

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cumvent  the  objections  raised by the  petitioner  to  the validity  of the earlier order of 1st March, 1950, and  thus render the proceeding infructuous.  However that may be,  we are clearly of opinion that the order dated 30th July, 1951. must be regarded as a fresh order made for the  petitioner’s detention in superession of the earlier order and the  ques- tion  is  whether  it was illegal in  that  it  straightaway directed  that the petitioner be detained till  31st  March, 1952, which was the date of the expiry of the Act.       Whatever  might be the position under the  Act  before its amendment in February, 1951, it is clear that the Act as amended  requires  that every.case of  detention  should  be placed  before an Advisory  Board constituted under the  Act (section  9)  and provides that if the  Board  reports  that there is sufficient cause for the detention "the appropriate Government may confirm the detention order and continue  the detention  of  the person concerned for such  period  as  it thinks  fit" (section 11).  It is, therefore, plain that  it is only after the Advisory Board, to which the case 371 has been referred, reports that the detention is  justified, the Government should determine what the period    of deten- tion should be and not before.  The fixing of the period  of detention  in the initial order itself in the  present  case was, therefore, contrary to the scheme of the Act and cannot be supported.  The learned Advocate-General, however,  urged that in view of the provision in section 11 (2) that if  the Advisory Board reports that there is no sufficient cause for the detention, the person concerned would be released forth- with, the direction in the order dated 30th July, 1951, that the  petitioner  should be detained till 31st  March,  1952, could be ignored as mere surplusage.  We cannot accept  that view.   It  is obvious that such a direction would  tend  to prejudice a fair consideration of the petitioner’s ease when it  is  placed before the Advisory Board. It cannot  be  too often  emphasised  that before a person is deprived  of  his personal  liberty the procedure established by law  must  be strictly  followed  and  must not be departed  from  to  the disadvantage of the person affected.                                     Petition allowed. Agent for the respondent: P.A. Mehta.