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PETITIONER: SHAMARAO V. PARULEKAR

       Vs.

RESPONDENT: THE DISTRICT MAGISTRATE, THANA, BOMBAY AND TWO OTHERSPetitio

DATE OF JUDGMENT: 26/05/1952

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN

CITATION:  1952 AIR  324            1952 SCR  683  CITATOR INFO :  R          1953 SC  52  (8)  R          1956 SC 614  (7)  RF         1986 SC2146  (9)  R          1991 SC 704  (B,7)

ACT:      Preventive  Detention Act (IV of 1050)--Amendment  Acts of  1951  and  1952--Detention order under Act  of  1950  as amended  in 1951 --Extension of duration of Act by  Amending Act of 1952 until 1st October, 1952--Whether extends  period of detention--Amendment Acts--Rule  of  construction__"Prin- cipal  Act,"  meaning of-Validity ors. 3 of Amending Act  of 1952--Legality of detention after 1st April, 1952--Constitu- tion  Of India Arts. 14, 22(4) and (7). 89 684

HEADNOTE:      An order directing the detention of the petitioner  was made  on  the 15th of November, 1951, under  the  Preventive Detention  Act  of 1950 as amended by the  Amending  Act  of 1951, which prolonged the duration of the Act of 1950 up  to the  1st April, 1952.  The Preventive Detention  (Amendment) Act of  1952 extended the duration of the Act of 1950 for  a further period of six months, that is to say, until the  1st October, 1952. Section 3 of the Act of 1952 provided further that detention orders confirmed under the principal Act  and in  force immediately before the commencement of the Act  of 1952, shall, where the period of detention is not  specified in the order, remain in force "for so long as the  principal Act (which was defined as the Act of 1950) was in force." It was contended on behalf of the petitioner that his detention after 1st April, 1952, was illegal.       Held,  (i)When a subsequent Act amends an earlier  one in  such a way as to incorporate itself or a part of  itself into  the earlier, then the earlier Act must  thereafter  be read and construed (except where that would lead to a repug- nancy,  inconsistency or absurdity) as if the altered  words had  been written into the earlier Act with pen and ink  and

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the  old words scored out so that there is no need to  refer to the amending Act at all.  After the passing of the Act of 1952  the expressions "the Act of 1950" and  "the  principal Act"  meant the Act of 1950 as amended by the Act  of  1952, and  the  effect  of s. 3 of the Act of 1952  was  that  the detention of the petitioner would remain in force until  the 1st  October,  1952, without prejudice to the power  of  the Government to modify or revoke it;    (ii) section 3 did not contravene Art. 14of the Constitu- tion as there was a rational classification of the cases  of detention orders in the section, and the period of detention was left in every case to the discretion of the State;     (iii)  the words "any person" in sub-cl. (b) of c1.7  of Art. 22 of the Constitution do not contemplate that individ- ual attention should be paid to each case; on the  contrary, the words used in the said sub-clause empower the Parliament to prescribe the maximum for a class taken as a whole as  it has done in s. 3, and s. 3 does not therefore offend cl. (4) or cl. (7) of Art. 22;     (iv)  the  power of the  Parliament  to  fix  a  maximum period does not  exhaust itself once  it has exercised  that power  but  can be exercised again in respect  of  the  same detention;     (v)  section 3 is not repugnant tO the  Constitution  on the ground that it does not fix a time limit, for it  speci- fies  the period as until the expiry of the Act; nor on  the ground that it introduces the idea of potentially indefinite detention  by periodical amendments; for the Parliament  has the power to do that: 685

JUDGMENT: ORIGINAL JURISDICTION:  Petitions (Nos. 86, 147,     and 155 of  1952) under article 32 of the Constitution for writs  in the nature of habeas corpus.   Petitioners  in person in ,petitions Nos. 86, 147 and  157 of 1952.   Rajani Patel for the petitioner in petition No. 155.      M.C.  Setalvad,  Attorney-General  for  India,  (G.  N. Joshi, with him) for the respondents.     R.  Ganapathi Iyer for the intervener (State of  Hydera- bad).      1952.  May 26.  The Judgment of the Court was delivered by      BOSE  J.--This petition and three others, namely  peti- tions Nos. 147, 155 and 157 of 1952, raise issues  regarding the  vires and applicability to these cases of section 3  of the Preventive Detention (Amendment) Act, 1952.  This  judg- ment is confined to those points and will govern these cases only  in so far as they raise those points.   The  remaining points which do not touch these issues will be dealt with by another  Bench.   The only exception is a  point  raised  in petition No. 155 of 1952 with which the other petitions  are not concerned.  We will deal with that separately.      The  present petition (No. 86 of 1952) was argued  very ably  and with commendable conciseness by the petitioner  in person.   The fact that he has not been able to persuade  us to his view is not due to any defect in his presentation  of the case.     The  petitioner  was arrested on the 15th  of  November, 1951, and an order of detention under the Preventive  Deten- tion Act of 1950 was served on him the same day, and he  was given  the  grounds of detention on the following  day,  the

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16th.   His case was placed before an Advisory Board and  on the 8th of February, 1952, the Bombay Government  "confirmed and  continued"  the detention under section 11 (1)  of  the Preventive Detention Act of 1950.    This  Act, as it originally stood, was due to  expire  on the 1st of April, 1951, but in that year an amending 686 Act was passed which, among other things, prolonged its life to  the 1st of April, 1952.  The order of detention in  this case  was passed under the Act of    1950 as amended by  the ,Act  of 1951.  According to past decisions of  this  Court, the detention would have expired on the 1st of April,  1952, when  the Act of 1950 as amended in 1951 would  itself  have expired.   But a fresh Act was passed in 1952 (Act XXXIV  of 1952),  the Preventive Detention (Amendment) Act, 1952.  The effect  of  this Act was to prolong the life of the  Act  of 1950 for a further six months, namely till the 1st of  Octo- ber,  1952. The question is whether that Act also  prolonged the detention and whether it had the vires to do so.     It was contended that the mere prolongation of the  life of  an  Act does not, by reason of that alone,  prolong  the life  of  a detention which was due to expire when  the  Act under  which  it was made expired.  Therefore,  as  the  Act under which the present detention was made was due to expire on the 1st of ApriL, 1952, the mere prolongation of its life by  the  amending Act did not affect a prolongation  of  the detention.  Accordingly,  the petitioner  should  have  been released on the 1st of April, 1952, and as there is no fresh order of detention he is entitled to immediate release.      We  need not express any opinion on that point  because there  is present in the amending Act something more than  a mere  prolongation  of the life of the old  one.   There  is section a which is in these terms: "Validity  and duration of detention in certain  cases- Every  detention  order confirmed under section  11  of  the principal Act and in force immediately before the  commence- ment  of this Act shall have effect as if it had  been  con- firmed under the provisions of the principal Act as  amended by this Act; and accordingly, where the period of  detention is either not specified in such detention order or specified (by whatever form of words) to be for the duration or  until the  expiry  of the principal Act or until the 31st  day  of March, 1952, such detention order shall continue to 687  remain  in  force for so long as the principal  Act  is  in force, but without prejudice to the power of the appropriate Government to revoke or modify it at any time."       It  will be noticed that the concluding part  of  this section  states  that the detention order  shall  remain  in force  "for so long as the principal Act is in force."  Sec- tion  2 of the amending Act defines the "principal  Act"  to mean the Act of 1950.  Therefore, it was argued, as the  Act of  1950  was due to expire on the 1st of April,  1952,  the present  detention also came to an end on that date and  so, in the absence of a fresh order of detention, the  petition- er’s detention after that date was illegal.  This  argument, though ingenious, is fallacious.       The  construction of an Act which has been amended  is now  governed by technical rules and we mast first be  clear regarding  the  proper canons of construction. The  rule  is that  when a subsequent Act amends an earlier one in such  a way as to incorporate itself, or a part of itself, into  the earlier,  then the earlier Act must thereafter be  read  and construed  (except  where that would lead to  a  repugnancy, inconsistency or absurdity) as if the altered words had been

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written  into the earlier Act with pen and ink and  the  old words  scored  out so that thereafter there is  no  need  to refer  to  the  amending Act at all.  This is  the  rule  in England:see Craies on Statute Law, 5th edition, page 207; it is  the law in Amenca: see Crawford on  Statutory  Construc- tion,  page 110; and it is the law which the  Privy  Council applied to India in Keshoram Poddar v. Nundo Lal Mallick(1). Bearing  this in mind it will be seen that the Act  of  1950 remains  the Act of 1950 all the way through even  with  its subsequent  amendments.   Therefore, the moment the  Act  of 1952  was passed and section 2 came into operation, the  Act of 1950 meant the Act of 1950 as amended by section 2,  that is  to say, the Act of 1950 now due to expire on the 1st  of October, 1952. (1)(1927) 54 I.A. 152 at 155. 688     Turning  now  to section 3, whose vires  is  questioned, and examining it clause by clause we first get these words:      "Every  detention order confirmed under section  11  of the  principal  Act  and in force   immediately  before  the commencement of this Act."      According  to the rule of construction  just  examined, the words "principal Act" mean the Act of 1950 as amended by the  Acts of 1951 and of 1952, ’that is to say, the  Act  of 1950 due to expire on the 1st of October, 1952.  Incidental- ly,  in the particular context it could not mean the Act  of 1950 as it stood in 1950 because no order confirmed under it as it then stood could have been alive "at the  commencement of this Act", namely on the 15th of March, 1952. The section contin- ues--     "shall  have effect as if it had been  confirmed  under the  provisions  of the principal Act as  amended’  by  this Act."      The  underlined  words "as amended by  this  Act"  were relied  on  to show that wherever the words  "the  principal Act" were referred to they meant the unamended original  Act of 1950, otherwise these words would have been  unnecessary. In  our  opinion, they were unnecessary in  the  sense  that their  absence  would not have made any  difference  to  the interpretation though it would have made the section  harder to  follow  and understand.  We say that  for  this  reason. Without  the underlined words the section paraphrased  would read--     "Every detention order confirmed under the original  Act shall have effect as if confirmed under its provisions."      If  this were to be read literally it would lead to  an absurdity, for if the order is actually confirmed under  the original unamended Act it would be pointless to introduce  a fiction  and say that the order shall be deemed to  be  con- firmed  under that Act as unamended. But even apart  from  a strictly technical construction, the language of the section is accurate because, as we 689 have  said, the rule is that an amended Act must be read  as if  the  words of amendment had been written  into  the  Act except  where that would lead to an inconsistency, and  this would  be one of those cases unless the words are  construed in  a sensible and commonsense way.  The draughtsman  there- fore  had  either to leave the words as they were,  with  an apparent inconsistency, or make his meaning clear by  adding the words he did.  But we do not think the addition made any difference to the result.      We now turn to the second half of section 3, that is to say, to the words following the semi-co]on. It is  important

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to  note here that this part is consequential on  the  first and  merely  explains the effect of the first half.   It  is also  relevant  to note that it deals  with  four  different kinds  of orders, different, that is to say, in the form  of the  words used though in the end they all come to the  same thing.  It deals with the following kinds of order:-     (1)  an  order in which the period of detention  is  not specified  at all; in that event the detention would end  at midnight  on  the night of the gist of March, 1952.   It  is clear  that  in this context the words "the  principal  Act" cannot  mean the Act expiring on the 1st of  October,  1952, because  it envisages an order made before the Act  of  1952 was  in  being and so on the date of its  making  the  order could only refer to the Act then in being;     (2)  an order in which the period is stated to  be  "for the duration of the principal Act", that is to say, till the 31st of March, 1952 ,-     (3)  an  order in which the period is  specified  to  be until the expiry of the principal Act, which again brings us back  to the 31st of March, 1952, as the last day of  deten- tion;     (4) an order in which the period is specified to be till the 31st of March, 1952. In all these four cases the section says  that the detention order shall "continue to remain  in force,  for so long as the principal Act is in force",  that , is to say, till the 1st October, 1952. 690 That follows from the first part of the section because that is  the  meaning which the law directs shall  be  placed  on these  words  unless the context otherwise directs  and  the context  does  not direct otherwise here. This part  of  the section is only explanatory.      But we wish to found deeper than this.  It is the  duty of  Courts to give effect to the meaning of an Act when  the meaning can be fairly gathered from the words used, that  is to say, if one construction will lead to an absurdity  while another will give effect to what common sense would show was obviously  intended the construction which would defeat  the ends of the Act must be rejected even if the same words used in the same section, and even the same sentence, have to  be construed  differently.  Indeed, the law goes so far  as  to require the Courts sometimes even to modify the  grammatical and ordinary sense of the words if by doing so absurdity and inconsistency  can be avoided. See the speech of Lord  Wens- leydale  in Grey v. Pearson (1) quoted with approval by  the Privy Council in Narayana Swami v. Emperor (2); also  Salmon v. Duncombe(3).  The rule is also set out in the text books: See Maxwell on the Interpretation of Statutes, 9th  edition, page  236, and Craies on Statute Law, 5th edition, pages  89 to  93.   The meaning of section 3 is quite plain  and  only desperate  hair  splitting can reduce it  to  an  absurdity. Courts  should not be astute to defeat the provisions of  an Act  whose meaning is, on the face of it, reasonably  plain. Of  course, this does not mean that an Act, or any  part  of it, can be recast.  It must be possible to spell the meaning contended for out of the words actually used.  We hold  that there is no difficulty of construction.     It was next argued that in any event the extended deten- tion  became a fresh detention (because of the Act of  1952) from  the  date the Act came into force,  and  reliance  was placed upon the judgments of two of us, Mahajan and Das  JJ. in  S. Krishnan v. The State of Madras(4). It is  enough  to say  that was not the (1)  (1857) 6 H.L.C. 6 r at 106.    (3) 11 App. Cas. 627  at 634.

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(2)  A.I.R. 1939 P.C. 47.          (4) [1951] S.C.R. 621  at 635 and 640. 691 decision  of the Court in that case, and further,  that  the two  Judges who held it was a fresh  detention  nevertheless considered  that  a fresh order with its  concomitant  fresh grounds and a fresh reference to the Advisory Board were not required; therefore, either way the petitioner must fail.      Reference was made to the equality clause in article 14 of the Constitution but that argument is easily met  because the  classification which section 3 makes is reasonable.  In one class it places all those whose cases have already  been considered  by  the Advisory Board and in  the  other  those whose cases have yet to go before it; also the law is  fair, or  at  any rate as fair as detention laws can  be,  despite this  distinction because power is left to  the  appropriate Government to revoke or modify these orders, or any of them, at any time. Substantially therefore there is no differenti- ation.   Article  14 was considered at length in The Slate of  West Bengal  v.  Anwar Ali Sarkar (1), and according to  the  law laid  down there, the Court must be satisfied on two  points before  it  can strike at a law on the  ground  of  unlawful discrimination.   It must be satis fied (1) that the law  in fact  discriminates and (2) that such discrimination is  not permissible  on the principle of a  rational  classification made for the purposes of the legislation.   The argument here was that section a discriminated against those detenus whose cases had been referred to the  Advisory Board and whose detention was confirmed, on the strength  of its report, under section 11 (1) before the amending Act  of 1952 was passed.  The reason given was that these detentions are  automatically extended up to the 1st of October,  1952, by section 3 without further reference to an Advisory Board, whereas in other cases, that is to say, in the case of those  who were detained before the amending Act but   whose cases had not been referred at the date it came into  force, and in the case of those detained after the  (1)[1952] S.c.R.284 692 amending  Act,  the Advisory Board is called into  play  and individual  attention is given to each case with the  result that  many of those detentions might not be for as  long  as six months.  They might, for example, be  only for one month or two. It was urged that this was discrimination of a  kind which  cannot be supported by any principle  of  permissible classification because classification into the above catego- ries has no reasonable relation to the objects of the legis- lation, such as security of the State, maintenance of public order and so forth.    We  are unable to accept this line of reasoning.  To  say that  section.  3  automatically extends  the  detention  of persons in the petitioner’s position to the 1st of  October, 1952,  and stops there, is only to make a partial  statement of the effect of section 3 because the extension is  subject to  the  power of the appropriate Government  to  revoke  or modify  it at any time.  In other words, the automatic  con- tinuation  of the detention till the 1st of October  is  not absolute and irrevocable but is made dependent on the  power of the appropriate Government to revoke or modify it at  its discretion  under section 13 of the Act.  The State  may  or may not continue the detention for the whole of the extended period.   In both classes of cases the duration  the  deten- tion within the overall limit of the life of the Act is left to the discretion of the State. The only difference is  that

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in the one class of cases the discretion is exercised  after the  period  has been extended by the amending Act,  in  the other the appropriate Government fixes the period itself  in its  discretion  and can again at its discretion  revoke  or modify it.  In both cases, the substance of the law is  that the  period  of detention is left to the discretion  of  the State, and so there is no substantial discrimination.    It  was argued that however fair this may look on  paper, in practice there will be grave discrimination because, as a matter  of  fact, the State will not apply its mind  in  the majority of cases like the petitioner’s. That is an argument we  cannot  accept and no material Was placed before  us  t0 justify such a conclusion, 693 We  turn now to the next point.  It was contended that  sec- tion  3 offends the Constitution because article 22 (4)  and (7) do not envisage the direct intervention of Parliament in a  whole batch of cases.  The protection guaranteed is  that there  shall  be individual attention and  consideration  to each  separate case by some duly specified  and  constituted authority. In our opinion, this is not accurate.     Article 22 (4) guarantees that there shall be no preven- tive  detention  for more than three months unless  the  law authorising it makes provision for an Advisory Board and the Board  after  considering each  individual  case  separately reports  that there is in its opinion sufficient  cause  for such  detention.  To that extent there  must  be  individual consideration of each case, but once the report is made  and is unfavourable to the detenu, then the detention can be for a  longer  period provided it does not exceed  "the  maximum period  prescribed by any law made by Parliament under  sub- clause  (b)  of clause (7)." Sub-clause (b)  of  clause  (7) empowers  Parliament  to prescribe "the maximum  period  for which  any person may in any class or  ........... of  cases be  detained under any law providing for  preventive  deten- tion."   Parliament  is accordingly empowered to  specify  a class. It has done so. The class is all persons whose  cases have  already been considered by an Advisory Board.   It  is empowered  to prescribe a maximum period.  That also it  has done. The extended detention (that is to say, for more  than three  months)  can  then be "under any  law  providing  for preventive detention." A law made by Parliament falls within these  words.  Parliament is equally authorised to  say  who shall  determine  the period of detention, and as  there  is nothing  in the Constitution to prevent it can itself  exer- cise the authority it is empowered to delegate to others.      Stress was laid on the words "any person" in  subclause (b)  of  clause (7) and it was contended that  this  contem- plates individual attention in each case.  But 694 if  that  is so, then it means that Parliament  must  itself direct  the maximum period for each separate person  falling within  the  class individually.  The words are,  we  think, reasonably  plain and we hold that Parliament can  prescribe the  maximum for a class taken as a whole as it has done  in section 3.      It  was  next argued that once the  power  given  under clause  (7) to fix a maximum period has been  exercised  the power  exhausts  itself  and cannot be  exercised  again  in respect  of  the  same detention. In our  opinion,  no  such limitation is imposed upon Parliament by the Constitution.     Then  it  was said that section 3 stands  on  a  footing different from section 12 of the amending Act of 1951 as  it introduces the idea of potentially indefinite detention  and accordingly  is  repugnant to the Constitution, and  in  any

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event  is  a  fraud upon it. In so far as  this  means  that section  a  fixes no time limit, the contention  is  unsound because the section specifies the exact period of the deten- tion, namely till the expiry of the Act of 1950, that is  to say,  till the 1st of October, 1952.  In so far as it  means that  Parliament is enabled to continue  detentions  indefi- nitely by the expedient of periodic amendments in the Act of 1950, the answer is that Parliament has the power.  This was precisely  the power exercised in the amending Act  of  1951 and  upheld  by this Court in S. Krishnan v.  The  State  of Madras(1). The present Act is no different from that in this respect.     So far, we have dealt with the facts in petition No.  86 of  1952. The facts in the other three  petitions  naturally differ  in  their details but they all conform to  the  same general  pattern  so far as the points discussed  above  are concerned, so there is no need to discuss them individually. We hold that section 3 of the amending Act of 1952 is  intra vires  and  that the detentions are not bad on  any  of  the grounds  discussed above.  The rest of the points raised  in each  individual  case are left open except  for  one  point which (1) [1951] S.C.R. 621. 695 arises  in petition No. 155 of 1952. That point is  as  fol- lows.      The  first ground of detention given to the  petitioner in this case reads:     "Being  the  President of Jamat of Agris you  have  used your  position as such to increase your influence  over  the residents of Uran Peta, have created a band of obedient  and trusted associates, have inflicted heavy fines on  villagers in  Uran  Peta  who have disregarded your  wishes  and  have imposed on them boycott or excommunication in cases of their refusal to pay the fines. "      It was argued that at the very outset’these allegations import  nothing more than an exercise of functions  such  as the infliction of fines and excommunication which the  peti- tioner as head of the caste had authority to do. They do not touch any of the matters covered by section 3 (1) (a) of the Preventive  Detention Act, 1950, under which the  petitioner is detained. For example, they do not touch the security  of the  State or the maintenance of public order or any of  the other  matters specified in section 3.  They  are  therefore irrelevant to the detention, and as it is impossible to  say how  far these irrelevant matters influenced the  detention, the  petitioner is entitled to release. Reliance was  placed upon  certain  observations of the Federal Court in  Rex  v. Basudev(1).   We think it unnecessary to examine this  point because  we do not think the ground is irrelevant nor do  we agree that it means what the petitioner says.   In our opinion, the grounds of detention must be  regarded as a whole and when that is done the relevance of the  first ground  becomes plain.  The gravamen of the  charge  against the  petitioner  is that he aimed at setting up  a  parallel government  in  the  Uran Peta area and  that  in  order  to achieve  that end he did various acts such  as  intimidating the workers in the salt pans with threats of murder, and his own  workers with threats of death, unless they carried  out his (1) [1949] F.C.R. 657 at 651. 696 orders;  and among the lesser instances given to  illustrate the exercise of parallel governmental authority are the ones set out in the first ground, namely the infliction of  fines

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with  the sanction of excommunication and boycott to  ensure their  payment and due obedience to his orders.  This  point has no force and is decided against the petitioner.  It will not  be open to him to re-agitate this afresh when his  case is reheard on the remaining issues.     All  the four cases will now be set down for hearing  on the  remaining  points which arise in them. As they  do  not involve  constitutional  issues they need not  go  before  a Constitution Bench.     Agent  for  the petitioner in Petition No.  155:  M.S.K. Sastri for P.G. Gokhale.     Agent for the respondents and Intervener:P. A. Mehta.