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PETITIONER: SHIBBAN LAL SAKSENA

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESHAND OTHERS.

DATE OF JUDGMENT: 03/12/1953

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. BHAGWATI, NATWARLAL H.

CITATION:  1954 AIR  179            1954 SCR  418  CITATOR INFO :  E          1957 SC 164  (2,3)  R          1966 SC 740  (15)  RF         1966 SC1078  (7)  RF         1967 SC 295  (60)  D          1967 SC 908  (10)  F          1968 SC1303  (7)  R          1968 SC1509  (9)  E          1969 SC  43  (9,10)  R          1970 SC 852  (10)  R          1972 SC 739  (11)  R          1974 SC 183  (18)  E&F        1974 SC 255  (8)  D          1975 SC  90  (13)  F          1975 SC 134  (6)  RF         1976 SC1207  (116)  R          1979 SC1925  (8,13,17)  R          1984 SC 211  (11)  R          1984 SC 444  (14)  R          1984 SC1334  (7,18,19)  RF         1987 SC1748  (11)  D          1988 SC1835  (5)

ACT:      Preventive  Detention Act IV of 1950 as amended  by  Act  XXXIV of 1952 and Act LXI of 1952-Sections 3(1) (a) and  11-  Detaining  authority  giving two reasons  for  detention-One  ground found to be non-existent--Whether order of  detention  sustainable-  Confirmation  of  detention  order  under  one  ground   and   revocation  thereof  under   2nd   ground-Not  contemplated by s. 11.

HEADNOTE:   The detention order was made containing two grounds under sub-clauses (ii) and (iii) of clause (a) of section 3 (1) of the  Preventive  Detention Act, 1950, as  amended  by  later Acts.  In exercise of the powers under section 11 of the Act the  Government  confirmed the detention order  against  the detenu under sub-clause (ii) of section 3 (1) (a) of the Act but as respects the second ground under sub-clause (iii)  of section  3 (1) (a) of the Act the Government did not  uphold his detention and revoked it under this sub-clause ^

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Held,  that the original order made under section  3:  (1) (a) is not sustainable. To  say that the other ground which still remains  is  quite sufficient  to sustain the order would be to  substitute  an objective  judicial test for the subjective decision of  the executive  authority which is againstthe legislative  policy underlying the statute.  In such cases theposition would  be the  same as if one of these two grounds was irrelevant  for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. Keshav v. The King-Emperor(1) referred to.  It  is  well settled that the power to issue  a  detention order  under  section  3 of  the  Preventive  Detention  Act depends  entirely  upon thesatisfaction of  the  appropriate authority specified in that section. The sufficiency of  the grounds  upon  which such satisfaction purportsto  be  based provided  they have a rational probative value and  are  not extraneous  to  the  scope or  purpose  of  the  legislative provision  cannot be challenged in a court of law except  on the grounds of mala fides.  State of Bombay v. Atma Ram Sridhar Vaidya(2) referred to.  Section 11 of the Preventive Detention Act lays down  what action  the Government it to take after the  Advisory  Board has  submitted its report.  If in the opinion of  the  Board there is sufficient reason for the detention of a person the Government may confirm the detention order and continue  the detention for such (1) [1943] F.C.R. 88.       (2) [1951] S.C.R. 167. 419 period  asit  thinks  proper.   On the  other  hand  if  the Advisory  Board  isof opinion that there  is  no  sufficient reason  for  the  detentionof  the  person  concerned,   the Government  is in duty bound torevoke the  detention  order. What the Government has done in this case is to confirm  the detention order and at the same time to revoke it under  one of the sub-clauses of section 3 (1) (a) of the Act.  This is not what the section contemplates.

JUDGMENT:    ORIGINAL JURISDICTION : Petition No. 298 of 1953.   Under article  32 of the Constitution of India for a writ  in  the nature of habeas corpus.   Veda  Vyas, Senior Advocate (S.  K. Kapur, with  him)  for the petitioner.    D. P. Uniyal for the respondent. 1953.   December 3. The Judgment of the Court was  delivered by     MUKHERJEA J.-This is a petition under article 32 of  the Constitution praying for the issue of a writ, in the  nature of  habeas corpus, directing the release of the  petitioner, Shibban  Lal Saksena, who is said to be unlawfully  detained in the District Jail at Gorakhpur.        The  petitioner was arrested on the 5th  of  January, 1953,  under an order, signed by the District Magistrate  of Gorakhpur, and the order expressly directed the detention of the  petitioner  in  the  custody  of  the   Superintendent, District Jail, Gorakhpur, under subclauses (ii) and (iii) of clause (a) of section 3 (1) of the Preventive Detention Act, 1950,  as  amended  by later Acts.  On the  7th  of  January following the grounds of detention were communicated to  the detenue   in  accordance with the provision of section 7  of the  Preventive Detention Act and the grounds,  it  appears, were of a two-fold character, falling respectively under the

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two  categories  contemplated by sub-clause  (ii)  and  sub- clause (iii) of section 3 (1) (a) of the Act.  In the  first paragraph of the communication it is stated that the detenue in  course of speeches delivered at Ghugli on certain  dates exhorted and enjoined upon the canegrowers of that area  not to  supply sugarcane to the sugar mills or even to  withhold supplies   from  them  and  thereby  interfered   with   the maintenance   of  supply  of  sugarcane  essential  to   the community.  The other ground specified in paragraph 2 is  to the effect that by 420 using expressions, some of which were quoted underneath  the paragraph,  the petitioner incited the cane-growers and  the public  to violence , against established authority  and  to defiance   of  lawful  orders  and  directions   issued   by Government,  officers and thereby seriously  prejudiced  the maintenance of ’public order.          The petitioner submitted his representation against the  detention order on the 3rd of February, 1953,  and  his case was considered by the Advisory Board constituted  under section 8 of the Preventive Detention Act at its sitting  at Lucknow on the 23rd February following.  The Advisory  Board gave a hearing to the petitioner in person and after it  had submitted  its  report,  a communication  was  addressed  on behalf of the -Uttar Pradesh Government to the petitioner on the 13th of March, 1953, informing him that the  Government, in  ’exercise  of  its  powers  under  section  11  of   the Preventive Detention Act, had confirmed the detention  order against  him under sub-clause (ii) of section 3 (1)  (a)  of the  Act  and sanctioned the continuation of  his  detention until  further orders, or up to a period of 12  months  from the  date  of  detention.   The  second  paragraph  of  this communication runs as follows :             "The  detenue  may please be informed  that  the Advisory Board did not uphold his detention under sub-clause (iii)  of clause (a) of sub-section (1) of section 3 of  the Preventive Detention Act.  Government have therefore revoked his detention undeR this sub-clause."    The  petitioner  has  now  come  up  before  us  with  an application  under  article 32 of the Constitution  and  Mr. Veda  Vyas,  who appeared in support of  the  petition,  has challenged the legality of the detention order made  against his client substantially on two grounds.     It  is argued in the first place that from  the  grounds served upon the petitioner under section 7 of the Preventive Detention  Act,  it appears clear that  the  grounds  which, weighed with the, detaining authority in                             421 depriving  the  petitioner  of  his  liberty  are  that  his activities  were,  in  the first place, prejudicial  to  the maintenance  of supplies essential to the community  and  in the second place were injurious to the maintenance of public order.   From  the communication, dated the 13th  of  March, 1953, addressed to the petitioner, it appears, however, that the  first ground did not exist as a fact and  actually  the Uttar  Pradesh Government purported to revoke the  detention order  under  sub-clause (iii) of section 3 (1) (a)  of  the Preventive  Detention  Act.  In these circumstances,  it  is contended  that the detention order originally  made  cannot stand, for if the detaining authority proceeded on two grounds to  detain  a  man and one of them is admitted  to  be  non- existent  or irrelevant, the whole order is vitiated  as  no one  can say to what extent the bad ground operated  on  the mind of the detaining authority.       The other contention raised by the learned counsel  is

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that  the particulars, which were supplied to his client  in connection with the second ground, are manifestly inadequate and of a partial character and do not enable him to make  an effective representation against the order of detention.     We  may say at once that the second contention does  not impress  us.   It  is  true  that  the  sufficiency  of  the particulars  conveyed  to a detenu in  accordance  with  the provision ’embodied in article 22 (5) of the Constitution is a  justiciable  issue,  the  test  being  whether  they  are sufficient  to  enable  the’ detenu  to  make  an  effective representation;   but   we  are  not  satisfied   that   the particulars  supplied to the detenu in the present case  are really  inadequate  and  fall short  of  the  constitutional requirement.  We do not think, therefore, that there is  any substance in this contention.     The  first  contention  raised by  the  learned  counsel raises,however,    a   somewhat   important   point    which requires careful consideration.  It has been repeatedly held by  this  court that the power to issue  a  detention  order under section 3 of the Preventive Detention Act 5-93 S. C. India/59 422 depends  entirely upon the satisfaction of  the  appropriate authority specified in that section.  The sufficiency of the grounds  upon which such satisfaction purports to be  based, provided  they have a rational probative value and  are  not extraneous  to  the  scope or  purpose  of  the  legislative provision cannot be challenged in a court of law, except  on the  ground of mala fides (1).  A court of law is  not  even competent  to  enquire into the truth or  otherwise  of  the facts  which  are mentioned as grounds of detention  in  the communication  to  the detenue under section 7 of  the  Act. What  has  happened,  however,  in  this  case  is  somewhat peculiar.  The Government itself, in its communication dated the  13th of March, 1953, has plainly admitted that  one  of the  grounds upon which the original order of detention  Was passed is unsubstantial or nonexistent and cannot be made  a ground  of detention.  The question    is, whether  in  such circumstances      the original order made under  section  3 (1) (a) of the Act can be allowed to stand.  The answer,  in our  opinion,  can only be in the negative.   The  detaining authority   gave   here  two  grounds  for   detaining   the petitioner.  We can neither decide whether these grounds are good or bad, nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the  satisfaction on the basis of which the detention  order was  made.   To  say  that the  other  ground,  which  still remains, is quite sufficient to sustain the order, would  be to  substitute  an objective judicial test for  the  subject decision  of  the executive authority which is  against  the legislative  policy underlying the statute.  In such  cases, we think, the position would be the same as if one of  these two grounds was irrelevant for the purpose of the Act or was wholly  illusory and this would vitiate the detention  order as  a whole.  Principle, which was order as a  whole.   This principle, which was recognised by the Federal Court in  the case of Keshav Talpade v. The Kingb Emperor (2), seems to us to be quite sound and applicable to the facts of this case. (1)  Vide state of Bombay v. Atma Ram Sridhar Vaidya, [1951] S.C.R. 167. (2)  [1943] F.C.R 88. 423   We  desire  to  point  out  that,  the  order  which   the

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Government purported to make in this caseunder   section 11 of the Preventive Detention Act is notone          in conformity  with the provision of that section.  Section  11 lays  down what action the Government is to take  after  the Advisory Board has submitted its report.  If in the  opinion of the Board there is sufficient reason for the detention of a person, the Government may confirm the detention order and continue the detention for such period as it thinks  proper. On the other hand, if the Advisory Board is of opinion  that there  is  no  sufficient reason for the  detention  of  the person concerned, the Government is in duty bound to  revoke the  detention order.  What the Government has done in  this case is to confirm the detention order and at the same  time to  revoke it under one of the sub-clauses of section 3  (1) (a) of the Act.  This is not what the section  contemplates. The  Government could either confirm the order of  detention made  under section 3 or revoke it completely and  there  is nothing  in law which prevents the Government from making  a fresh  order  of  detention if it so  chooses.   As  matters stand,  we  have no other alternative but to hold  that  the order made on the 5th of January, 1953, under section 3  (1) (a)  of the Preventive Detention Act is bad in law  and  the detention  of the petitioner is consequently  illegal.   The application is allowed and the petitioner is directed to  be set at liberty.                      Petition allowed. Agent for the petitioner : Ganpat Rai. Agent for the respondent: C. P. Lal. 424