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PETITIONER: DATTATREYA MORESHWAR PANGARKAR

       Vs.

RESPONDENT: THE STATE OF BOMBAY AND OTHERS.

DATE OF JUDGMENT: 27/03/1952

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

CITATION:  1952 AIR  181            1952 SCR  612  CITATOR INFO :  D          1954 SC 236  (38)  R          1955 SC 160  (8)  R          1958 SC 163  (12,40,41,42)  E&D        1959 SC  65  (10)  R          1961 SC1762  (25)  R          1962 SC 113  (32)  R          1964 SC1823  (4,27,32)  RF         1965 SC 596  (11)  RF         1967 SC1145  (16)  R          1972 SC1242  (14)  R          1972 SC1446  (8,9)  D          1972 SC1924  (6,11,12)  R          1974 SC1336  (8)  R          1978 SC1155  (7)  R          1982 SC 710  (106)

ACT:     Preventive  Detention Act (IV of 1950), s. 11  (1)--Con- firmation  of  detention  order  after  report  of  Advisory Board--Period of further detention not specified--Order  not expressed to be in the name of Governor--Validity  of deten- tion--Executive decisions--Mode  of expression--Constitution of India, Art. 166 (1) and (2)--Whether directory or  manda- tory.

HEADNOTE:     Section 11, sub-s. (1), of the Preventive Detention Act, 1950,  provided that "in any case where the  Advisory  Board has  reported that there is in its opinion sufficient  cause for  the detention of a person, the  appropriate  government may  confirm the detention order and continue the  detention for  such period as it thinks fit".  The case of  the  peti- tioner  who was arrested under the Act was referred  to  the Advisory Board and on receiving a report from the Board that in its opinion there was sufficient cause for the  detention of  the  petitioner the Government decided  to  confirm  the order of detention and this decision was communicated to the District  Magistrate by a confidential letter signed by  the Assistant  Secretary to the Government for the Secretary  to

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the Government. The material portion of the letter ran  thus :--  "The Government is accordingly pleased to  confirm  the detention  order  against  the detenu.   Please  inform  the detenu  accordingly and report compliance."  In an  applica- tion  for a writ in the nature of habeas corpus it was  con- tended  on behalf of the petitioner that his  detention  was illegal:  (i)  because  the Government had at  the  time  of confirming  the order omitted to specify the  period  during which  the detention should continue; (ii)because the  order of confirmation was not expressed to be made in the name  of the  Governor as required by Art. 166 (1) of  the  Constitu- tion:     Held,  per  PATANJALI SASTRI C.J.,  MUKHERJEA,  DAS  and CHANDRASEKHARA  AIYAR JJ. (MAHAJAN J. dissenting)--that  the omission  to  state the period of  further  detention  while confirming  the detention order under s. 11 (1) of the  Pre- ventive Detention Act could not render the detention illegal because, per PATANJALI SASTRI. C.J. and DAs J.--on a  proper construction  ors. 11 (1), a specification of the period  of continuation  of  the detention is  not  necessary,  however desirable it may be;per MUKHERJEA and CHANDRASEKHARA  AIYAR, JJ.--though s. 11 (1) does contemplate that a period  should be mentioned during 613 which  the further detention of the detenu is  to  continue, mere  omission to do so would not make the order  a  nullity and justify release of the detenu. Held  also,  per PATANJALI SASTRI C.J., MUKHERJEA,  DAS  and CHANDRASE  KHARA  AIYER,  J J, that  though  the  Preventive Detention  Act  contemplates and requires the taking  of  an executive decision for confirming a detention order under s. 11  (1),  omission to make and authenticate  that  executive decision in the form mentioned in Art. 166 will not make the decision  itself illegal for the provisions in that  article are  merely directory and not mandatory. Per  MUKHERJEA  and CHANDRASEKHARA  AIYAR, JJ.--Section 11(1)of  the  Preventive Detention  Act does contemplate a formal order of  confirma- tion and Art. 166(1) of the Constitution would apply to  the case;  clauses (1) and (2) of the said article must  however be  read  together.  While cl. (1) relates to  the  mode  of expression of an executive order or instrument, cl. (2) lays down the way in which such order is to be authenticated, and when both these forms are complied with, an order or instru- ment would be immune from challenge in a court of law on the ground that it has not been made or executed by the Governor of the State.  Even if cl. (1) is taken to be an independent provision unconnected with cl. (2) and having no relation to the purpose indicated therein, cl. (1) is directory and  not imperative in its character.     MAHAJAN  J.--Section 11 (I)of the  Preventive  Detention Act contemplates that when the report of the Advisory  Board reaches the Government it has to come to a decision and pass an order in accordance with that decision against the detenu to  the  effect that in view of the report of  the  Advisory Board the detention order is continued for a certain  period and  failure  to fix the period of further  detention  would make the detention illegal.     A.K.  Gopalan  v. The State ([1950] S.C.R.  88),  Makhan Singh  Tarsikha v. The State of Punjab ([1952] S.C.R.  368), S.  Krishnan  v. The State of Madras  ([1951]  S.C.R.  621), Chakar  Singh  v. The State of Punjab (Petition No.  584  of 1951)  and J. K. Gas Plant Manufacturing Co. Ltd. and Others v. KingEmperor ([1947] F.C.R.141) referred to.

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JUDGMENT:    ORGINAL  JURISDICTION. Petition (No. 683 of  1951)  under Art.  32  of  the Constitution of India for a  writ  in  the nature of habeas corpus.  The facts are set out in detail in the judgment.     Bawa Shiv Charan Singh (amicus curiae) for the petition- er.     M.C.  Setalvad, Attorney-General for India (Jindra  Lal, with him) for the respondents. 614      1952.   March 27. The Court delivered judgment as  fol- lows:--     DAS J. --This is an application under article 82 of  the Constitution for the issue of a writ in the nature of habeas corpus  and for the immediate release of the petitioner  who is alleged to have been kept in illegal detention in  Baroda Central Prison.     On February 15, 1951, the petitioner was arrested  under an  order  made on February 13, 1951, by the  then  District Magistrate, Surat, in exercise of powers conferred on him by the  Preventive  Detention Act, 1950.  A copy  of  the  said order  was served on the petitioner at the time of  his  ar- rest.  On the same date grounds of detention were served  on the petitioner as required by section 7 of the Act.  It  was specifically mentioned in the grounds that it was not in the public  interest to disclose further facts.  The  petitioner moved  the  High Court of Bombay under article  226  of  the Constitution complaining that his detention was illegal  and praying that he should be forthwith released. In that appli- cation  one  of  the points urged was that  the  grounds  in support of the detention were false, vague and fantastic and that the detention order was made in bad faith. Two  affida- vits  were  filed on behalf of the State in support  of  the detention  order. That application was, on April  17,  1951, dismissed  by the Bombay High Court.  In the  meantime,  the case of the petitioner was placed before the Advisory  Board which  on  Aprils, 1951, made a report stating that  in  its opinion there was sufficient cause for the detention of  the petitioner.   According to the affidavit of Venilal  Tribho- vandas Dehejia, Secretary to the Government of Bombay,  Home Department, filed in answer to the present application, this report  of the Advisory Board was placed before the  Govern- ment  and,  on  April 13, 1951, the  Government  decided  to confirm the order of detention. This decision was, on  April 28, 1951, communicated to the District Magistrate, Surat, in a confidential letter in the terms following :-- 615 Confidential letter  No. B.D. II/1042-D (11)    Home Department                                     (Political)                             Bombay Castle,  To                           28th April, 1951. The District Magistrate,             Surat. Subject:-Preventive Detention Act, 1950- Review of detention orders issued under the-- Reference your letter No. Pol. 1187/P, dated the 23rd Febru- ary, 1951, on the subject noted above.     2.   In  accordance  with section 9  of  the  Preventive Detention  Act,  1950, the case of  detenu  Shri  Dattatreya Moreshwar  Pangarkar  was placed before the  Advisory  Board which  has reported that there is sufficient cause  for  his detention. Government is accordingly pleased to confirm  the detention  order issued against the detenu.   Please  inform

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the detenu accordingly and report compliance.     3.  The case papers of the detenu are returned herewith. Sd/-G,  K. Kharkar, for Secretary to the Government of  Bom- bay,                  Home Department.     It  also appears from the aforesaid affidavit  that  Sri G.K. Kharkar who signed the letter for the Secretary to  the Government  of Bombay, Home Department, was at the  time  an Assistant Secretary and, as such, was, under rule 12 of  the Rules  of  Business made by the Government of  Bombay  under article  166 of the Constitution, authorised to sign  orders and instruments of the Government of Bombay.     The petitioner has now moved this Court under article 32 of the Constitution complaining that he is being  unlawfully detained.  The only question is whether he has been deprived of his personal liberty in accordance with procedure  estab- lished by law. He          80 616 is  said to be detained by the State in exercise  of  powers conferred  on it by the Preventive Detention Act,  1950,  as amended  in 1951.  The State must, accordingly,  satisfy  us that  the  procedure established by law  has  been  strictly followed.  Although a supplementary petition has been  filed in  this Court complaining that the grounds supplied to  him are false, vague, lacking in particulars and insufficient to enable  the petitioner to make an  effective  representation against  the order of detention, it has not,  however,  been pressed  before  us by learned counsel appearing  as  amicus curiae in support of the application. At the hearing  before us, learned counsel has confined his arguments to  challeng- ing  the  validity  of detention of the  petitioner  on  two grounds, namely, (1) that the State Government has failed to comply with the requirements of section 11(1) of the amended Act in that at the time of confirming the detention order it omitted  to  specify the period during which  the  detention would  continue, and (2) that the order of  confirmation  is not in proper legal form, in that it is not expressed to  be made in the name of the Governor as required by article  166 (1) of -the Constitution.     Ground  No.  1. The validity of this  ground  of  attack depends  on a proper understanding of section 11(1)  of  the Preventive  Detention Act, which, as amended, runs  as  fol- lows:--     "(1)  In any case where the Advisory Board has  reported that there is in its opinion sufficient cause for the deten- tion of a person, the appropriate Government may confirm the detention’ order and continue the detention for such  period as it thinks fit".     The  argument  is that the  sub-section  contemplates  a decision  containing two things, namely, (1) a  confirmation of the detention order and (2) a direction for the continua- tion  of  the  detention. I do not think  this  argument  is sound, for if the intention were that both the things should be included in an order then the sub-section would have been worded differently. It would have ended by saying that  "the appropriate 617 Government may make an order confirming the detention  order and  continuing the detention for such period as  it  thinks fit".  Grammatically  section 11 (1) confers   two   powers, namely (1)the appropriate Government may confirm the  deten- tion  order and (2) the appropriate Government may  continue the detention for such period as it thinks fit.  The confir- mation  of the detention order certainly   contemplates  the taking  of  an.  executive decision, but  the  detenu  being

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already  in custody and the detention order being  confirmed his  detention continues automatically  and,  therefore,  no further  executive  decision is called for to  continue  the detention. It follows that it is not necessary to include  a direction  for  the  continuation of the  detention  in  the decision confirming the detention order.     It is next suggested that the words "such period" in the sub-section  clearly imply that it is necessary  to  specify the period during which the detention would continue, for if the  intention  of Parliament were  otherwise,  the  section would have stopped after the words "may continue his  deten- tion".   It  is  urged that if, as held  by  this  Court  in Petition No. 308 of 1951 (Makha, Singh Tarsikka v. The State of  Punjab), it is illegal, after the amendment of the  Act, to  mention any period of detention in the initial order  of detention  made under section 3 of the Act and if no  period of  detention need be mentioned at the time of  confirmation under section 11 (1) then the  appropriate Government  will, after  confirmation, lose sight of the case and  the  detenu will be detained indefinitely.  It is suggested that if  two constructions are possible, the one that advances the inter- ests of the subject should be adopted.  I do not think  that two constructions are possible at all or that the  suggested construction  will  be of any advantage to  the  detenu  for reasons which I proceed to state briefly.     There  can  be no two opinions  that  detention  without trial  is  odious  at all times and that  it  is  desirable, therefore, in cases of preventive detention that a  definite period of detention should, if possible, be 618 specified.   But whether the Act, on a true construction  of it, requires such  a specification of period is an  entirely different  question and to answer that question regard  must be  had  to  the actual language used in the  Act.   If  the intention  of Parliament were that the period  during  which the   detention would  be continued  must be specified  then the  sub-section 11 (1)  would  have  empowered  the  appro- priate authority to continue the detention for such  "period as it thinks fit to specify" instead of "as it thinks  fit". Further, the notion that nonspecification of the period will continue  the  detention for an indefinite period  need  not oppress us unduly, because the Act itself being of a limited duration  such detention must necessarily come to an end  on the  expiry  of the Act.  In A.K. Gopalan’s  case(1),  Kania C.J. at page 126 said:--     "It  was argued that section 11 of the impugned Act  was invalid as it permitted the continuance of the detention for such  period as the Central Government or the State  Govern- ment thought fit. This may mean an indefinite period.  In my opinion, this argument has no substance because the Act  has to  be read as a whole. The whole life of the Act is  for  a year  and therefore the argument that the detention  may  be for an indefinite period is unsound."     To  the like effect were the following  observations  of Mahajan J. at page 232 :-        "Section 11 of the Act was also impugned on the ground that  it  offended against the Constitution inasmuch  as  it provided for preventive detention for an indefinite  period. This section in my opinion has to be read in the  background of  the provision in subclause (3) of section 1 of  the  Act which  says  that the Act will cease to have effect  on  1st April, 1951".    These observations were made on section 11 of the Act  as it  stood before the amendment of the Act. That section  has been  substantially, if not verbatim. reproduced in  section

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11 (1) of the amended Act and (1)[1950] S.C.R. 88. 619 accordingly the above observations will apply to the present section  11 (1) with equal force and cogency. indeed  in  S. Krishnan  v.  The State of Madras(1) Sastri J., aS  he  then was,  expressed  himself as follows in connection  with  the present section 11 (1):-     "The objection to the validity of section 11 (1) can  be disposed  of in a few words.  The argument is that the  dis- cretionary  power given to the appropriate Government  under that sub-section to continue the detention "for such  period as  it  thinks fit" authorises preventive detention  for  an indefinite  period, which is contrary to the  provisions  of article  29. (4).  But, if as already observed, the new  Act is to be in force only up to 1st April, 1982, and no  deten- tion under the Act can continue thereafter, the  discretion- ary  power could be exercised only subject to that  over-all limit."     Two points clearly emerge out of these observations as I comprehend them.  The very argument as to the invalidity  of the  section could not be raised at all except on the  basis that the section, by itself and on a true interpretation  of it, permitted an indefinite detention. In the second  place, this argument was met by the Court, not by saying that  that was  not the correct meaning of the section and that on  the contrary  the words "such period" necessitated the  fixation of  a definite period of detention but, by saying  that  the life  of  the Act being limited, the duration  of  detention permitted by the section was in any event co-terminous  with the life of the Act and could not go beyond it.  This answer of the Court makes it clear that the Court fully  recognised that the section, by itself and on its true  interpretation, sanctioned  an indefinite detention but held that that  con- tingency  had been averted by the fact that the  Act  itself was  of  a limited duration.  It is said  that  the  section should  be construed irrespective of whether it occurs in  a temporary  statute or a permanent one, and it is urged  that if  the  statute were a permanent one the  section,  on  the aforesaid interpretation, would have permitted an indefinite detention. The answer is given by Mahajan J. in the (1) [1951] S.C.R. 621 at p. 629. 620 following  passage  in his judgment in S.  Krishnan  v.  The Static of Madras (suprat) at page 639 with which I concurred "It may be pointed out that Parliament may well have thought that  it  was  unnecessary to fix any    maximum  period  of detention in the new statute which was of a temporary nature and whose own tenure of life was limited to one year.   Such temporary  statutes  cease  to have any  effect  after  they expire,  they automatically come to an end at the expiry  of the  period  for which they have been  enacted  and  nothing further can be done under them.  The detention of the  peti- tioners  therefore is bound to come to an end  automatically with  the  life of the statute and  in  these  circumstances Parliament  may  well have thought that it would  be  wholly unnecessary  to  legislate and provide a maximum  period  of detention for those detained under this law."     For  all  I know, such drastic and  extensive  power  to continue  the detention as long as it may think fit may  not be  given  by Parliament to the executive  Government  in  a permanent  statute.  But if it does think fit to do  so,  it will not be for the Court to question the knowledge,  wisdom or  patriotism of the Legislature and to permit its  dislike for the policy of the law to prevail over the plain  meaning

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of  the language used by the Legislature.  Apart  from  this consideration,  there is a period specified in the  sub-sec- tion itself, for as soon as the appropriate Government  will cease to think fit to continue the detention it will  revoke the detention order under section 13 and the period       of detention  will automatically come to an end. Again, if  the idea of indefinite detention were so repugnant as to  induce us  to  construe sub-section 11 (1) by reading into  it  the requirement  that the period of detention must be  specified at  the  time the order of detention is confirmed,  it  will lead us to a situation which cannot be maintained in view of a  decision of this Court. The section, it will be  noticed, does  not authorise the appropriate Government to  "continue the detention for such period as it thinks lit from time  to time." 621 Therefore, the power conferred on the appropriate Government by this sub-section will be exhausted by its single exercise and  it will not be possible to extend the period of  deten- tion any longer.  This view of the matter will, however, run counter to our decision in Petition No. 584 of 1951,  Chakar Singh  v. The State of Punjab, where it has been  held  that there is nothing in section 11 (1) to prevent the  appropri- ate  Government from directing the detention of a person  to continue further so long as the period fixed  by the  previ- ous  order has not expired and the person     has  not  been released.   According  to  this  decision   the  appropriate Government  may direct the detention to continue even  after the  expiry of the period fixed by the order confirming  the detention order or any subsequent order provided such direc- tions are given before the expiry of the period fixed by the immediately  preceding  order.  From what  source  does  the appropriate  Government derive its power to direct the  fur- ther  continuation  of the detention after  having,  in  the order  of confirmation, once specified the period of  deten- tion ? Section 13 of the Act gives power to the  appropriate Government  to revoke or amend a detention order which  must mean  the initial order of detention under section 3 of  the Act but not an order made under section 11 (1) confirming  a detention order or fixing a period of detention.  Therefore, the  authority to extend the period of detention  previously fixed which, in view of our decision, must be held to exist, will  have to be derived from the very words  "may  continue such  detention for such period as it thinks fit".  It  fol- lows,  therefore,  that the specification of the  period  of detention  does  not destroy or abridge  the  wide  over-all power of the appropriate Government to direct the  continua- tion  of  the  detention as long as it thinks  fit.  If  the specification  of  the  period of detention is  not  at  all sacrosanct  and the appropriate Government may  nevertheless continue  the detention as long as’it thinks fit to  do  so, why  is  the  specification of a period to  be  regarded  as vitally  or at all necessary ? So far as the detenu is  con- cerned, his detention Wilt 622 not  be any more definite and less irksome if it is open  to the  appropriate Government to continue the detention by  an indefinite number of orders made from time to time until the expiry of the Act itself by efflux of time in the case of  a temporary  statute or by its repeal in the case of a  perma- nent  Act.  It is said that if we insist on a  specification of a definite period when the confirmatory order is made and thereafter  each  time the period of detention  is  extended then the appropriate Government will have to apply its  mind to  the case of the detenu before it will make an order  for

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further  continuation of the detention, but that if  we  say that  no time need be specified, the appropriate  Government will lose sight of the case and the detenu will be  detained indefinitely.  I do not see why we should impute such  dere- liction  of duty to the appropriate Government; but even  if we  do so and insist on the specification of the  period  of detention  we shall perhaps be driving the appropriate  Gov- ernment  to fix the longest permissible period of  detention ending  with the expiry of the Act itself and then  to  lose sight of the case of the detenu. That, I apprehend, will  do no  good to the detenu. Section 13 gives ample power to  the appropriate Government to revoke the detention order at  any time and it is expected that it will apply its mind to  each case  and revoke the detention order and release the  detenu as  soon as it is satisfied that his detention is no  longer necessary.   In  any event, the considerations  of  hardship urged upon us may make it desirable that a period of  deten- tion should be fixed but this cannot alter the plain meaning of  the language of the section. The Court is not  concerned with any question of policy.  It has to ascertain the inten- tion  of the Legislature from the language used in the  Act. In my judgment, on a proper construction of section 11  (1), a specification of the period of continuation of the  deten- tion is not necessary, however desirable one may consider it to be.     Ground  No.  2:  On this head the  argument  of  learned counsel for the petitioner is that no valid order of confir- mation has been made in proper legal form at all and that  a confidential communication from the 623 Home Department to the District Magistrate cannot be regard- ed as an order under section 11(1)of the Act. Learned Attor- ney-General  urges  that section 11 (1) of the  Act  contem- plates only the taking of an executive decision, namely. the confirmation  of the detention order and contends  that  the sub-section  does  not contemplate the making  of  a  formal order. He draws our attention to section 3 of the Act  which expressly  refers  to an order of detention and  points  out that section 11 (1) does not refer to any order of confirma- tion.  Reference may, however. be made to section  13  which authorises  the appropriate Government to revoke  or  modify the  order of detention.  In this section also there  is  no reference  to  any order of revocation or  modification  but nevertheless revocation or modification must imply an execu- tive  decision. Under section 11 (1), as under  section  13, the appropriate Government has to apply its mind and come to a  decision.Whether we call it an order or merely an  execu- tive  action makes no difference in the legal  incidents  of the  decision. Section 11 (1) plainly requires an  executive decision as to whether the detention order should or  should not  be confirmed.  The continuation of the detention  as  a physical fact automatically follows as a consequence of  the decision  to  confirm the detention order and,  for  reasons stated  above, does not require any further executive  deci- sion to continue the detention. It follows, therefore,  that the  Preventive Detention Act contemplates and requires  the taking  of an executive decision either for  confirming  the detention  order  under section 11 (1) or  for  revoking  or modifying the detention order under section 13. But the Act is  silent as to the form in which the  executive  decision, whether it is described as an order or an executive  action, is to be taken. No particular form is prescribed by the  Act at all and the requirements of the Act will be fully  satis- fied  if it can be shown that the executive decision has  in fact  been taken. It is at this stage that  learned  counsel

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for the petitioner passes on to article 166 of the Constitu- tion  and contends that all executive action of the  Govern- ment of a State must be 624   expressed and authenticated in the  manner therein provided.  The learned  Attorney-General points out that there is a distinction between the taking of an  executive decision and giving formal expression  to  the decision  so taken. Usually executive decision is  taken  on the office files by way of nothings or endorsements made  by the  appropriate  Minister or officer.  If  every  executive decision  has  to  be given a formal  expression  the  whole governmental  machinery, he contends, will be brought  to  a standstill.  I agree that every executive decision need  not be  formally expressed and this is particularly so when  one superior  officer directs his subordinate to act or  forbear from  acting  in a particular way, but  when  the  executive decision affects an outsider or is required to be officially notified  or  to be communicated it should normally  be  ex- pressed  in the form mentioned in article 166 (1). i.e.,  in the  name  of the Governor.  Learned  Attorney-General  then falls  back upon the plea that an omission to make  and  au- thenticate  an executive decision in the form  mentioned  in article  166 does not make the decision itself illegal,  for the  provisions of that article, like their  counterpart  in the  Government of India Act, are merely directory  and  not mandatory  as  held  in J.K.  Gas  Plant  Manufacturing  Co. (Rampur)  Ltd.  and Others v. The  King-Emperor(1).   In  my opinion,  this  contention of the  learned  Attorney-General must prevail. It is well settled that generally speaking the provisions of a statute creating public duties are directory and  those conferring private rights are  imperative.   When the  provisions of a statute relate to the performance of  a public duty and the case is such that to hold null and  void acts done in neglect of this duty would work serious general inconvenience  or injustice to persons who have  no  control over  those  entrusted with the duty and at  the  same  time would not promote the main object of the legislature, it has been  the practice of the Courts to hold such provisions  to be  directory  only, the neglect of them not  affecting  the validity of the acts done.  The considerations which weighed with (1) [1947] F.C.R. 141 (154-9). 625 their Lordships of the Federal Court in the case referred to above  in the matter of interpretation of section 40 (1)  of the  9th  Schedule  to the Government of  India  Act,  1935, appear  to me to apply with equal cogency to article 166  of the  Constitution.   The fact that the old  provisions  have been  split  up  into two clauses in article  166  does  not appear  to me to make any difference in the meaning  of  the article.  Strict compliance with the requirements of article 166  gives  an immunity to the order in that  it  cannot  be challenged on the ground that it is not an order made by the Governor.  If, therefore, the requirements of  that  article are  not  complied with, the resulting  immunity  cannot  be claimed  by the State.  This, however, does not vitiate  the order  itself.  The position, therefore, is that  while  the Preventive  Detention  Act requires an  executive  decision, call  it an order or an executive action, for the  confirma- tion of an order of detention under section 11 (1) that  Act does not itself prescribe any particular form of  expression of  that executive decision. Article 166 directs all  execu- tive action to be expressed and authenticated in the  manner therein  laid  down  but an omission to  comply  with  those provisions  does not render the executive action a  nullity. Therefore,  all  that the procedure established by  law  re-

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quires is that the appropriate Government must take a  deci- sion  as to whether the detention order should be  confirmed or  not under section 11 (1). That such a decision has  been in fact taken by the appropriate Government is amply  proved on  the  record. Therefore, there has been, in  the  circum- stances of this case, no breach of the procedure established by law and the present detention of the petitioner cannot be called in question.     For the reasons stated above, in my opinion, this appli- cation must fail.     PATANJALI  SASTRI C.J.- I agree with the  judgment  just delivered  by my learned brother Das and I have  nothing  to add.     MUKHERJEA  J.--In my opinion this application should  be dismissed and I deem it proper to state 626 succinctly  my  own views on the questions  that  have  been raised in the case.     The validity of the detention of the petitioner has been challenged before us on a two-fold ground. The first  ground urged is that it was imperative on the part of the appropri- ate  Government,  when it confirmed the order  of  detention under  section  11 (1) of the Preventive Detention  Act,  to specify the period during which the detention was to contin- ue; and an omission to state the period vitiates the  order. The  other contention raised is that the order of  confirma- tion  not  being  expressed to be made in the  name  of  the Governor,  as is required under article 166 (1) of the  Con- stitution, is void and inoperative.     So  far  as the first ground is concerned, it  would  be necessary to advert to the language of section 11 (1) of the Preventive Detention Act which runs as follows :--    "11. Action upon the report of Advisory Board’(1) In any case where the Advisory Board has reported that there is  in its opinion sufficient cause for the detention of a  person, the  appropriate Government may confirm the detention  order and continue the detention of the person concerned for  such period as it thinks fit."      It is to be noted that section 3 (1) of the  Preventive Detention Act under which the initial order of detention  is made  is  worded differently in this respect and  it  merely empowers the Central Government.or the State Government,  as the  case may be, to make an order, under the  circumstances specified  in  the section, directing that a person  be  de- tained; and nothing is said about the period for which  such detention  should be directed. It is now settled by  a  pro- nouncement(1)  of this court that not only it is not  neces- sary  for the detaining authority to mention the  period  of detention  when passing the original order under  section  a (1)  of  the Preventive Detention Act, but  that  the  order would  be bad and illegal if any period is specified, as  it might      (1) Vide Makhan Singh Tarsikka v. The State of  Punjab, Petition No. 308 of 1951. 627 prejudice the case of the detenu when it goes up for consid- eration before the Advisory Board. The Advisory Board  again has  got  to  express its opinion only on the  point  as  to whether  there  is  sufficient cause for  detention  of  the person concerned. It is neither called upon nor is it compe- tent  to  say anything regarding the period for  which  such person should be detained. Once the Advisory Board expresses its view that there is sufficient cause for detention at the date  when it makes its report, what action is to  be  taken subsequently is left entirely to the appropriate  Government

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and  it  can under section 11 (1) of the  Act  "confirm  the detention  order  and continue the detention of  the  person concerned for such period as it thinks fit." In my  opinion, the words "for such period as it thinks fit" presuppose  and imply that after receipt of the report of the Advisory Board the detaining authority has to make up its mind as to wheth- er  the original order of detention should be confirmed  and if so, for what further period the detention is to continue, Obviously  that is the proper stage for making an  order  or decision  of  this  description as  the  investigation  with regard to a particular detenu such as is contemplated by the Preventive Detention Act is then at an end and the appropri- ate  Government is in full possession of all  the  materials regarding  him. It could not have been in the  contemplation of the legislature that the matter should be left indefinite and  undetermined  even then.  This, in my opinion,  is  the reason for the difference in the language of section 11  (1) of  the  Preventive Detention Act as compared with  that  of section  3  (1) of the Act.  I do not think  that  once  the appropriate Government in making the order under section  11 (1)  specifies the period during which the detention of  the person concerned is to continue. it becomes functus  officio and  is incapable of extending the detention for  a  further period at a subsequent time if it considers necessary. In my opinion, section 13 of the Act gives very wide powers to the detaining  authority  in this respect and it can  revoke  or modify  any detention order at any time it chooses  and  the power of modification would 628 certainly  include  a power of extension of  the  period  of detention,  provided  such  power is  exercised  before  the period originally fixed has expired and provided the extend- ed  period does not exceed the over-all limit which  is  co- extensive with the life or duration of the Act itself.  This is quite in accordance with the view taken by this court  in Chakar Singh v. The State of Punjab(1).      The  question now is whether the omission to  state  the period  of further detention while confirming the  detention order  under section 11 (1) of the Preventive Detention  Act makes  the  detention illegal ? The point is not  free  from doubt, but having regard to the fact that the new Preventive Detention  Act  is a temporary statute which was  to  be  in force  only up to the 1st of April, 1952. and has only  been recently extended to a further period of six months. and  no detention  under  the  Act can continue after  the  date  of expiry of the Act, I am inclined to hold that non-specifica- tion of the further period in an order under section 11  II) of  the Act does not make the order of detention a  nullity. If no period is mentioned, the order might be taken to imply that  it would continue up to the date of the expiration  of the  Act  itself  when all detentions made  under  it  would automatically  come to an end.  Of course, the   appropriate Government  is always at liberty to terminate the  order  of detention  earlier, if it considers proper, in  exercise  of its  general powers under section 13 of the Act.  I  am  not much  impressed by the argument that the  non-mentioning  of the  period in the order of confirmation is likely to  cause serious prejudice to the interests of the detenu. It may  be that if a period is mentioned, the attention of the  Govern- ment  is likely to be drawn to the case near about the  time when  the period is due to expire and the facts of the  case may be reviewed by the appropriate authority at    that time before it decides to extend the detention   any further; but it seems to me to be clear from the provision of section  13 that the Act contemplates review of individual cases by the

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(1) Petition No. 584 of 629 appropriate Government from time to time irrespective of any period  being  mentioned in the order of detention.  It  can legitimately be expected that the detaining authority  would discharge the duties which are imposed upon it, but even  if it  does not, there is nothing in the law which prevents  it from fixing the period of detention up to the date of expiry of  the Act itself, which is by no means a long one, and  in that case the Court would obviously be powerless to give any relief to the detenu. It is perfectly true that an order for detention  for  an  indefinite period is  repugnant  to  all notions of democracy and individual liberty, but the indefi- niteness  in the case of an order made under section 11  (1) of  the  Preventive Detention Act is in a way cured  by  the fact  that there is a limit set to the duration of  the  Act itself,  which  automatically  prescribes a  limit  of  time beyond  which  the  order cannot operate.   In  my  opinion, section 11 (1) of the Preventive Detention Act does  contem- plate  that  a period should be mentioned during  which  the further  detention  of  the detenu is to  continue  and  the Government  should see that no omission occurs in  this  re- spect,  but  I am unable to hold that  this  omission  alone would  make  the order a nullity which will  justify  us  in releasing the detenu.     The  other  question for consideration is,  whether  the order is invalid by reason of the fact that it has not  been expressed  in  the manner laid down in article  166  of  the Constitution. Article 166 runs as follows :--     "166  (1).  All executive action of the Government of  a State  shall  be expressed to be taken in the  name  of  the Governor.     (2)  Orders and  other  instruments  made  and  executed in the  name of the Governor  shall be authenticated in such manner as may be specified in rules to be made by the Gover- nor, and the validity of an order or instrument which is  so authenticated shall not be called in question on the  ground that  it is not an order or instrument made or  executed  by the Governor. 630      (3) The Governor shall make rules for the more  conven- ient  transaction of the business of the Government  of  the State,  and  for  the allocation among  Ministers  the  said business  in  so far as it is not business with  respect  to which the Governor is by or under this Constitution required to act in his discretion."     In  the case before us the order confirming  the  deten- tion  purports  to be signed by Mr. G.K.  Kharkar,  for  the Secretary to the Government of Bombay, Home Department.  The affidavit  filed in  this  case by V.T. Dehejia  shows  that Mr.  Kharkar  was then the Assistant Secretary to  the  Home Department  and was authorised under the rules framed  under article (3) of the Constitution by the Governor of Bombay to sign  orders and instruments for the Government  of  Bombay. The order admittedly is not expressed to be made in the name of  the Governor and if article 166 (1) of the  Constitution applies  to  this  case, it certainly does  not  fulfil  the requirement of that provision. To get round this  difficulty the  learned  Attorney-General has put  forward  a  two-fold argument. He has argued in the first place that article  166 (1)  of the Constitution applies to a case where the  execu- tive action has got to be expressed in the shape of a formal order;  and it is only such order that requires  authentica- tion  in the manner laid down in clause (2) of the  article. Section 11 (1) of the Preventive Detention Act, it is  said,

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does  not necessitate the passing of a formal order at  all. It is enough if the detaining authority decides by any  form of  executive  action that the original order  of  detention should be confirmed. The other argument put forward is  that the  provisions  of clauses (1) and (2) of article  166  are directory  and  not mandatory in the sense that  even  if  a particular  order is not expressed or authenticated  in  the way mentioned in these provisions, it would not be an  inef- fective or invalid order provided it is proved to have  been made  by the proper authority to whom that particular  busi- ness has been allocated by the rules framed under clause (3) of  article  166.  The only result of such omission  may  be that the order would not enjoy an 631 immunity  from challenge on the ground specified  in  clause (2) of the article.     So  far as the first point is concerned, it seems to  me to  be  quite correct to hold that article 166  (1)  of  the Constitution is confined to cases where the executive action requires  to be expressed in the shape of a formal order  or notification  or  any other instrument. I  cannot,  however, agree  with the learned AttorneyGeneral that section 11  (1) of  the  Preventive Detention Act does not  contemplate  the passing  of a formal order. It is true that section  11  (1) does not speak of an order of confirmation but when there is an  initial order of detention made under section 3  of  the Preventive  Detention  Act, it could normally  be  confirmed only by passing another order.  This would be clear from the provision  of section 13 of the Act which empowers  the  de- taining authority to revoke or modify a detention order  any time  it  chooses. Neither revocation  nor  modification  is possible without any order being made to that effect and yet section 13 like section 11 (1) does not speak of an order at all. The first contention of the Attorney-General  therefore cannot succeed.     The other contention raised by the learned  AttorneyGen- eral  involves consideration of the question as  to  whether the  provision  of article 166 (1) of  the  Constitution  is imperative  in the sense that non-compliance with  it  would nullify  or invalidate an executive action. The clause  does not  undoubtedly  lay down how an executive  action  of  the Government of a State is to be performed; it only prescribes the  mode in which such act is to be expressed.  The  manner of expression is ordinarily a matter of form, but whether  a rigid compliance with a form is essential to the validity of an act or not depends upon the intention of the legislature. Various  tests  have  been formulated  in  various  judicial decisions for the purpose of determining whether a mandatory enactment  shall be considered directory only or  obligatory with  an  implied  nullification for  disobedience.   It  is unnecessary for our present 82 632   purpose  to  discuss  these  matters  in  detail.   In  my opinion, article 166 of the Constitution which purports   to lay down the procedure for regulating business    transacted by  the Government of a State should be read   as  a  whole. Under  clause  (a) the Governor is to make   rules  for  the more convenient transaction of such business and for alloca- tion of the same among the Ministers   in so far as it  does not  relate to matters in regard to   which the Governor  is required to act in his discretion. It is in accordance  with these rules that business   has to be transacted. But  what- ever executive action   is to be taken by way of an order or instrument, it   shall be expressed to be taken in the  name

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of  the   Governor in whom the executive power of the  State is  vested  and  it shall further be  authenticated  in  the manner  specified  in  the rules  framed  by  the  Governor. Clauses (1) and (2) of article 166 in my opinion are   to be read  together. Clause (1) cannot be taken separately as  an independent  mandatory provision detached   from the  provi- sion of clause (2). While clause (1)  relates to the mode of expression of an executive order  or instrument, clause  (2) lays  down the way in which   such order is to be  authenti- cated;  and  when both   these forms are complied  with,  an order  or instrument   would be immune from challenge  in  a court  of law   on the ground that it has not been  made  or executed   by the Governor of the State. This is the purpose which  underlies  these  provisions and  I  agree  with  the learned  Attorney-General  that  non-compliance  with    the provisions  of  either of the clauses would lead  to    this result  that the order in question would lose the    protec- tion  which it would otherwise enjoy, had the   proper  mode for expression and authentication been   adopted.  It  could be challenged in any court of law   even on the ground  that it  was not made by the   Governor of the State and in  case of such challenge   the onus would be upon the State author- ities  to  show   affirmatively that the order was  in  fact made  by the   Governor in accordance with the rules  framed under   article 166 of the Constitution.  This view receives support from a pronouncement of the Federal Court 633 in  J.K. Gas Plant Manufacturing Company Limited and  Others v.  King-Emperor(1),  where a somewhat  analogous  provision contained in section 49(1) of Schedule IX of the  Government of  India Act came up for consideration and  the   provision was held to be directory and not imperative.     Even  ii  clause (1) of article 166 is taken  to  be  an independent provision unconnected with clause (2) and having no  relation  to the purpose which is indicated  therein,  I would  still  be  of opinion that it is  directory  and  not imperative  in its character. It prescribes a formality  for the doing of a public act.  As has been said by  Maxwell(2), "where the prescriptions of a statute relate to the perform- ance  of  a public duty and where the invalidation  of  acts done in neglect of them would work serious general inconven- ience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be  generally understood as mere instructions for the guidance and govern- ment of those on whom the duty is imposed, or in other words as  directory  only." In the present case  the  order  under section  11 (1) of the Preventive Detention Act purports  to be an order of the Government of Bombay and is signed by the officer  who  was competent to sign according to  the  rules framed  by the Governor under article 166 of  the  Constitu- tion,  and in these circumstances I am unable to  hold  that the order is a nullity even though it has not been expressed to  be made in the name of the Governor. The result is  that both the grounds fail and the petition is dismissed. CHANDRASEKHARA  AIYAR  J.--I concur in the order  just   now pronounced  by  my  learned  brother Mukherjea J. and I have nothing useful to add.     MAHAJAN  J.--The legality of the detention of the  peti- tioners  in all the above-mentioned petitions is  challenged on two grounds:(1) That the order of (1)[1947] F.C. R. 142. (2)Maxwell on Interpretation of Statutes, pp. 379-80. 634 continuance  of the detention made under section 11  of  the

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Preventive Detention Act, 1950, as amended, does not specify the  period of detention. (2) That it is not  expressed  "in the name of the Governor" as required by article 166 (1)  of the Constitution.  The petitioners were informed through the District Magistrate that government had confirmed the deten- tion  orders  but they were not told for what  period  their detentions  were  to continue.  No order  expressed  in  the manner contemplated by article 166 (1)was served on them.     It  was contended on behalf of the petitioners that  the requirements  of  the  Preventive Detention  Act  should  be strictly complied with, that it was one of the  requirements of  section 11 of the Act that the government should at  the time of confirming the detention order specify the period of the continuance of such detention and that non-compliance in this  particular  vitiated the continuance  order.   It  was further  urged  that unless the order was expressed  in  the manner  required under article 166 (1) of  the  Constitution and served on the person concerned it had no force.     The  learned Attorney-General contested both these  con- tentions.  He argued that it was not incumbent on government to  make any formal order under section 11 and all that  the section  contemplates is an executive action  indicating  an intention  of the government to confirm the detention  order and  continue the detention after receipt of the  report  of the  Advisory Board, that there was nothing in the  language of  the section which obliged the government to specify  the period  of such detention and that any omission  to  mention the period would not make the continuation of the  detention illegal.  It was also argued that the action of the  govern- ment  under section 11 need not necessarily be expressed  as required  in  article  166 (1) that  these  provisions  were merely directory and not mandatory and had been substantial- ly complied with.     For a proper appraisal of these contentions it is neces- sary to set out the relevant provisions of the 635 Constitution  and of the Preventive Detention Act.  Articles 22 (4) and (5) of the Constitution are in these terms :--     "(4)  No  law providing for preventive  detention  shall authorise the detention of a person for a longer period than three months unless--     (a) an Advisory Board consisting of persons who are,  or have been, or are qualified to be appointed as, Judges of  a High  Court has reported before the expiration of  the  said period  of three months that there is in its opinion  Suffi- cient cause for such detention  ............     (5) When any person is detained in pursuance of an order made under any law, providing for preventive detention,  the authority making the order shall as soon as may be, communi- cate to  such person the grounds on which the order has been made  and shall afford  him  the  earliest  opportunity   of making representation against the order."     Sections 3, 9, 10, 11 and 13 of the Preventive Detention Act provide as follows:--     "  3.  The Central Government or  the  State  Government may--(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to   ............  it is necessary so to do, make  an  order directing that such person be detained.     "9. In every case where a detention order has been  made under this Act, the appropriate Government shall, within six weeks from the date specified in subsection (2) place before an  Advisory  Board constituted by it under  section  8  the grounds on which the order has been made and the representa- tion, if any, made by the person affected by the order,  and

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in  case where the order has been made by an  officer,  also the  report  made by such officer under sub-section  (3)  of section 3."     "10. (1) the Advisory Board shall, after considering the materials  placed  before  it and, after  calling  for  such further  information,  as it may deem  necessary,  from  the appropriate Government or from the person concerned, and  if in  any  particular case it considers  it  essential,  after hearing him in person, submit its 636 report  to the appropriate Government within ten weeks  from the date specified in sub-section (2) of section 9.     (2) The report of the Advisory Board shall specify in  a separate  part thereof the opinion of the Advisory Board  as to  whether or not there is sufficient cause for the  deten- tion of the person concerned."     "11.  (1) In any case where the Advisory Board  has  re- ported that there is in its opinion sufficient cause for the detention  of a person, the appropriate Government may  con- firm  the detention order and continue the detention of  the person concerned for such period as it thinks fit.     (2)  In any case where ,the Advisory Board has  reported that  there  is in its opinion no sufficient cause  for  the detention  of the person concerned, the appropriate  Govern- ment  shall revoke the detention order and cause the  person to be released forthwith."     "13.  (1)Without prejudice to the provisions of  section 21 of the General Clauses Act, 1897 (X of 1897), a detention order     may     at    any    time    be     revoked     or modified,.......,........     The  revocation of a detention order shall not  bar  the making  of a fresh detention order under section  3  against the same person."     The  answer  to the first question depends on  the  con- struction  to  be placed upon the words "such period  as  it thinks  fit" occurring in section 11 of the Act.  The  words have  to  be given their plain meaning irrespective  of  the circumstance that they occur in a temporary statute and have to  be  construed in the same manner if they occurred  in  a permanent statute.     It has been held by this Court in Makkan Singh  Tarsikha v. State of Punjab, Petition No. 308 of 1951, that fixing of the  period of detention in the initial order  of  detention under  section 3 is contrary to the scheme of the Act  inas- much  as such a construction tends to prejudice the case  of the  detenu when placed before the Advisory Board.   It  was emphasized that before a person is deprived of his  personal liberty, the procedure established by law must be  strictly- followed 637 and  must  not be departed from to the disadvantage  of  the person affected.  The language employed in section 11 of the Act  is different from the language of section 3 and  to  my mind,  this difference indicates a contrary intention.   The words  "such period as it thinks fit" have the meaning  that government has to specify and fix the period of such  deten- tion. If these words were construed in the manner  suggested by the learned Attorney-General, it will lead to the  result that the Preventive Detention Act would authorise  detention of  a  person without specification of the  period  of  such detention  at any moment of time, subject of course  to  the over-all  limit  fixed for the life of the Act  itself,  and that  the government would not be obliged to apply its  mind to the question of duration at all. Such a conclusion, to my mind, has to be avoided unless the language employed conclu-

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sively points to it.     Under the Constitution, the detention of a person  under any  law providing for preventive detention cannot be for  a period  of more than three months unless the Advisory  Board is  of  the opinion that there is sufficient cause  for  the detention of the person concerned. The Constitution   itself has  specified  the maximum limit of the  initial  detention and detention for a period longer than three months can only be  made on the basis of the report of the  Advisory  Board. The  words "longer period than three months" to my  mind  do not indicate that the period can be of indefinite  duration, as it could be under the unique Regulation III of 1818.   On the  other  hand, they indicate a specified  period,  though longer than three months. The Constitution visualizes, in my opinion,  a period of detention initially for three  months, which  may subsequently be extended for a further period  of time; but it rules out the idea of detention without a fixed duration,  i.e.  with a beginning but without  an  end.  Any notion  of an indefinite period of detention is wholly  for- eign to a democratic constitution like ours. As pointed  out by me in Gopalan’s ease(1), the law of (1) [1950]  S.C.R, 88. 88 638 preventive detention during peace times is an evil of neces- sity as it deprives a person of his personal liberty without a  trial and even without a personal hearing and that  being so,  the safeguards provided against  unregulated  executive action  have to be construed as widely as possible  for  the benefit  of  the person detained. The  words  "such  period" imply  that there has to be a beginning and an end  of  that period;    in other words, it has to be for a certain  dura- tion  the  extent depending on the pleasure of  the  govern- ment.Though the government is entitled to fix the period  of detention  at  its choice, it is bound to  make  a  decision about it. If this was not the true import and meaning of the language employed in the section and the intention was  that the  government need not specify the duration of the  deten- tion,  the  section,  in my view. would  have  been  drafted differently.   There was no necessity to use  the  words:for such period as it thinks fit" therein at all.  The intention would have been well expressed if the section was worded  as follows:-  "The  appropriate  Government  may  confirm  the  detention order".       It  was on these lines that rule 26 of the Defence  of India  Rules  was  drafted and the same was  the  scheme  of Regulation  III of 1818.  The warrant to the jailer  in  the regulation  directed him to receive the person into  custody and  to deal with him in conformity with the orders  of  the Governor-General.  The  same  phraseology  could  have  been employed in section 11.       It has been held by this Court in Chakkar Singh v. The State  of Punjab (Petition No. 584 of 1951), that the  power of the detaining authority under section 11 is not exhausted once  it specifies the period of detention but that it  can, before the expiration of the period initially fixed,  direct the detention of a person to continue for a further period I took  this view for the simple reason that it was in  accord with the provisions of the General Clauses Act which provide that  the  authority which has the power to make  a  certain order  or  to give a certain direction has  also  the  power before  it becomes functus officio to revise and  reconsider that 639 order or to amend or to alter it.  That decision does not by

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implication suggest that it was not obligatory on government to specify the period of detention under section 11.  On the other  hand,  it presupposes that such a  period  should  be fixed but the Government can change its mind if it considers necessary.     The conclusion that the section authorizes detention for an indefinite period was negatived by the late Chief Justice and  by me in Gopalan’s case(1).  The learned Chief  Justice in  that case in dealing with section 11 made the  following observations :--     "It  was argued that section 11 of the impugned Act  was invalid as it permitted the continuance of the detention for such  period as the Central Government or the State  Govern- ment thought fit. This may mean an indefinite period. In  my opinion  this argument has no substance because the Act  has to  be read as a whole. The whole life of the Act is  for  a year  and therefore the argument that the detention  may  be for an indefinite period is unsound."  In the same case I said as follows :--     "Section  11 of the Act was also impugned on the  ground that  it  offended against the Constitution inasmuch  as  it provided for preventive detention for an indefinite  period. This section in my opinion has to be read in the  background of  the provision in subclause (3) of section 1 of  the  Act which  says  that the Act will cease to have effect  on  1st April, 1951."  In  S. Krishnan v. The State of Madras(2), the question  of the  validity  of section 11 was again examined.  The  court took the view that the section was good. Bose J.  dissenting held that the section was bad as it provided for an  indefi- nite period of detention.   Patanjali Sastri J., as he  then was,  and with whom the learned Chief Justice agreed  as  to the validity of the section observed as follows:-- "The  objection  to the validity of section 11  (1)  can  be disposed  of in a few words.  The argument is that the  dis- cretionary  power  given to the appropriate (1) [1950] S.C.R. 88.:                (2) [1951] S.C.R. 621. 83 640 Government under that sub-section to continue the  detention ’for  such  period as it thinks fit’  authorises  preventive detention for an indefinite period, which is contrary to the provisions of article 22 (4).  But, if, as already observed, the  new Act is to be in force only up to 1st  April.  1952, and no detention under the Act can continue there after  the discretionary power could be exercised only subject to  that over-all limit." In the same case while upholding the validity of section 11, I made the following observations :-- "It may be pointed out that parliament may well have thought that it was unnecessary to fix any maximum period of  deten- tion in the new statute which was of a temporary nature  and whose  own  tenure of life was limited to  one  year.   Such temporary  statutes  cease  to have any  effect  after  they expire,  they automatically come to an end at the expiry  of the  period  for which they have been  enacted  and  nothing further can be done under them.  The detention of the  peti- tioners  therefore is bound to come to an end  automatically with  the  life of the statute and  in  these  circumstances Parliament  may  well have thought that it would  be  wholly unnecessary  to  legislate and provide a maximum  period  of detention ’for those detained under this law." The  point  for  decision in that case was  whether  it  was necessary while enacting the Preventive Detention Act to fix a  maximum period for the detention of a person  as  contem-

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plated  by article 72 (7) of the Constitution,  and  whether for want of such fixation the statute was void. That conten- tion was negatived. The point that arises for  determination in the present case,however, is whether the Government  when making  an  order  under section 11 of the Act  has  got  to specify  a period for the continuance of the detention.  The question as to the meaning of the words "such period as it thinks fit  was neither argued nor decided in either of  the cases mentioned above.  The result of the above decisions to my  mind  is this:that section 11 does not  provide  for  an indefinite  period  of  detention and is  not  bad  on  that ground, though Bose J. took a contrary 641 view.   The section in view of these decisions  should  read thus :-     "In any case where the Advisory Board has reported  that there  is in its opinion sufficient cause for the  detention of  a  person. the appropriate Government  may  confirm  the detention  order  and continue the detention of  the  person concerned for such period as it thinks fit, (but not  beyond the period of the life of the Act itself)."     Within the period of the life of the Act the  Government can  fix any period for the duration of the  detention.  The words "such period as it thinks fit", in my opinion,  oblige the  Government  to  fix a period of the  detention  of  the person concerned within the over-all limit of the period  of the  life of the Act.  The government must make up its  mind and decide in each individual case after the receipt of  the report of the Advisory Board whether a particular detenu has to be kept in detention for the whole of the over-all  peri- od,  or for any period shorter than that. It cannot be  pre- sumed  that  every case requires detention for  the  maximum period.  That  decision  is however subject  to  review  and alteration before the time originally determined runs out.     The contention that the Government need make no order at all under section 11 and that it can indicate its  intention by some other method seems to me to be unsound. This  result was sought to be spelt out of the phraseology of sections  3 and  11 of the Act. Section 3 provides for the making of  an order  of  detention,  while section 11 does  not  use  that phraseology.  In my opinion, however, this difference in the phraseology of the two sections does not in any way  support the contention raised. The making of an order is implicit in the language of the section itself. Confirmation of an order already  passed can only be by making an order. The  section in  another part provides for the revocation of  an   order. Revocation of an order again can only be made by passing  an order of revocation and cannot be done by any other process. Section 13 provides not only for 642   revocation  of an order but for modification of the  order of  detention.  It is obvious that the  modification  of  an order is only possible by passing a fresh order and not   in any  other manner.  No particular significance can    attach to  the omission of the words ’ ’make an order"  in  section 11. The word ’ ’order" has numerous meanings but the meaning relevant  in the present context   is "decision".   It  also means  "an authoritative direction  or mandate".  It  cannot be  contended that   Government can confirm or continue  the detention    without taking a decision or issuing  a  direc- tion.  Such    a decision or direction is tantamount  to  an order.  I am   therefore clearly of the view that it is  the intention  of  the law that when the report of the  Advisory Board   reaches the Government, it has to come to a decision and pass an order in accordance with that decision   against

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the detenu to the effect that in view of the   report of the Advisory  Board  the detention order is    continued  for  a certain period.   Reliance  was placed by the learned  Attorney-General   in support  of  his contention on two decisions of  the    High Courts  in  India.  In Prahlad Krishna v.  The  State     of Bombay(1),  it was held that it was not necessary to    men- tion  the period during which the detenu will  be    further detained after the State Government had confirmed the deten- tion  order. This conclusion was reached   on the  following reasoning :-  "The  words of the section are exactly similar in    effect to  the words of a contract between two parties    in  which one said to the other that the latter should   keep a  cycle lent  by  the former for such period as  he    thought  fit. There would be no necessity in such a case   for the  person to  whom the cycle was lent to say how   long he would  keep the  cycle  ....... .. If the legislature had intended  that the  appropriate Government should make an order  after  re- ceiving  a report of the Advisory Committee as to  how  long the  detenu should be detained, it would have said not  that the detenu’s detention should continue as long as the appro- priate Government thought fit, but ’pass an order for the (1) A.I.R. 1952 Bom. 1. 643 detention of the person concerned for such further period as it deemed fit."     The  analog  of the cycle contract, in  my  opinion,  is neither  happy nor apposite, in the construction of  section 11 of the Preventive Detention Act. Further I am not able to see  how  the draft suggested by the High Court  would  have more appropriately brought out the intention of the legisla- ture  than  the words of the section as it now  stands.  The addition of the word "further" does not necessarily indicate that  the  Government is bound to specify a  period  if  the original words "such period" do not so indicate.     In Ram Adhar Misra v. The State(1), it was held that  an order  of  detention which does not specify  the  period  of detention cannot be regarded as illegal. Reliance was placed on the observations of the late Chief Justice and myself  in Gopalan’s  case(2),  and  cited earlier  in  this  judgment. These observations do not support the conclusion reached  by the  High Court, as already observed.  The decision  is  not supported on any other independent reasoning.     The nearest analogy to the language employed in  section 11  is  found in the provisions of Part IV of  the  Code  of Criminal  Procedure relating to prevention of offences.   In sections 106 to 110 of this Part the language employed is "a person  can  be called upon to execute a bond for  his  good behaviour  etc.  for such period not exceeding one  year  or three years as the Magistrate thinks fit to fix." It is  not possible to argue that the magistrate can call upon a person to  execute  a bond without fixing a period for  which  that bond is to be good, and that in the absence of such determi- nation it has to be presumed that the bond has to be execut- ed  for the maximum period mentioned in the section.  In  my opinion, failure to fix the period for which the bond is  to be  operative  would  make the order  ineffective.  and  any default  on the part of the person called upon to  give  the bond  would  not  be punishable.  The  discretion  given  to Government by (1) A.I.R. 1951 All. 18..            (2) [1950] S.C.R. 644 the phrase "as it thinks fit" is limited by the duty imposed on it by the provisions of the section.

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   The next question that falls to be determined and  which is of some difficulty, is whether failure to fix the  period makes  the detention illegal. After considerable  thought  I have  reached  the conclusion that the  nondetermination  by Government of the period of the continuance of the detention operates  prejudicially  against the detenus and  makes  the detention illegal. It is possible and even probable that had the  Government  on receipt of the report  of  the  Advisory Board applied its mind and come to a decision on the  point, it might well have fixed the duration of the detention at  a point  of time that would have expired by now, though it  is also likely that it might not have expired by now. In such a situation  when  the matter is in doubt it is not  right  to hold  that the detention of the petitioners at  the  present moment  is  lawful. The onus of  establishing  affirmatively that  the  detention of these petitioners is lawful  at  the present  moment rests on the detaining authority and in  the circumstances  it  has  to be held that  this  onus  remains undischarged.  The subsequent conduct of the  Government  in resisting these petitions is not relevant in this enquiry in the absence of an order as prescribed by the statute. If the Government  finds that the detention of the  petitioners  is necessary up to 31st March, 1952, it can give effect to that intention in these cases by issuing a fresh order of  deten- tion.     The result therefore is that, dissenting from the  deci- sion of the majority of the court, I hold that the petition- ers  are not detained according to procedure established  by law  and are entitled to their release. I  therefore  direct that they be released forthwith.     In  this view of the case I do not feel called  upon  to decide the second point raised in these eases. Petitions dismissed. Agent for the respondents: P.A. Mehta. 645