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PETITIONER: BOPPANNA VENKATESWARALOO AND OTHERS

       Vs.

RESPONDENT: SUPERINTENDENT, CENTRAL JAIL,HYDERABAD STATE.UNION OF INDIA-

DATE OF JUDGMENT: 24/11/1952

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H.

CITATION:  1953 AIR   49            1953 SCR  905  CITATOR INFO :  D          1971 SC2081  (4)

ACT: Preventive  Detention (Second Amendment) Act (XLI of  1952), s.  11-A-Act passed on 22nd August, 1952-Brought into  force on   30th   September,  1952-Detention  expiring   on   30th September,  1952 -Order on 22nd September,  1952,  extending detention  upto 31st December, 1952 --Validity of  order  of extension-General Clauses Act (X of 1897), s. 22-Act LXI  of 1952, s. 11-A (2), applicability of.

HEADNOTE: The petitioner was served with an order of detention on  the 20th  October, 1951, and, after a reference to the  Advisory Board, the Government confirmed the detention and  specified 31st March, 1952, as the date up to which the detention  was to  continue,  On the 20th March, 1952,  the  detention  was extended  till  the 30th September, 1952, and  on  the  22nd September, 1952, the detention was again extended up to  the 31st  December,  1952.  It was contended on  behalf  of  the petitioner  that  the  Government  bad  no  power  on   22nd September,  1952,  to extend the detention  beyond  the  1st October,  1952, as the Preventive Detention  (Second  Amend- ment) Act of 1952, even though it had received the assent of the 117 906 President  in August 1952, came into force only on the  30th September, 1952 : Held,  (i) that the order extending the period of  detention made on the 22nd September could not be justified under  the provisions  of s. 22 of the General Clauses Act,  1897;  the word " order" in the said section means an order laying down directions  about the manner in which things are to be  done under  the  Act  and  the  section  does  not  mean  that  a substantive  order against a particular person can  be  made under  a provision of an Act before that Act has  come  into force. (ii) The words "the order" in s. 11-A of the Preventive  De- tention  (Second Amendment) Act, 1952, do not refer  to  the initial  detention  order, as no period of  detention  could

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legally  be  specified in that order, but to  the  order  of detention as eventually confirmed under s. 11(1) of the  Act and  the detention of the petitioner could not therefore  be treated as automatically extended up to the 1st April, 1953, -Under the provisions of s. 11-A by reason of the fact  that in the initial order for the detention of the petitioner  no period of detention had been specified. (iii)     The detention of the petitioner could not continue after  the 30th September, 1952, by force of the  provisions of s. 11-A(2) of the Preventive Detention (Second Amendment) Act, 1952, merely because the date on which the petitioner’s detention  was to expire, namely, the 30th September,  1952, happened by accident or coincidence to be identical with the date  on which the first Amendment Act (Act XXXIV  of  1952) was  to expire, for s. 11 - A(2) merely provides that  if  a shorter  period is specified in the order, the detenu  would be entitled to be released. (iv) The expression "shorter period" in s. 11-A (2) means  a period  which does not extend up to the 1st April, 1953,  or Lip  to the end of the period of 12 months mentioned in  the section  and does not mean a period ending before  the  30th September, 1952. (v)  The   detention  of  the  petitioner  after  the   30th September, 1952, was therefore illegal.

JUDGMENT: ORIGINAL  JURISDICTION : Petitions (Nos. 335, 350, 356,  362 and  366 of 1952) under article 32 of the  Constitution  for writs in the nature of habeas corpus. A.S.R. Chari (amicus curiae) for the petitioners. B.   Ganapathy  Iyer for the respondents in  Petitions  Nos. 335 and 356 of 1952. Hanmanth  Rao Vaishav for the respondents in Petitions  Nos. 350, 362 and 366 of 1952. C.   K.  Daphtary, Solicitor-General for, India  (Porus,  A, Mehta, with him) for the Intervener. 907 1952.  November 24.  The Judgment of the Court was delivered by MAHAJAN  J.-This petition and four others, viz.,  Nos.  350, 356,  362  and 366 of 1952, raise a question  regarding  the construction of section 11-A, inserted in Act IV of 1950  by the  Preventive  ]Detention (Second Amendment) Act,  LXI  of 1952. Act IV of 1950, as it originally stood, was to expire on 1st April,  1951,  but in that year an amending Act  was  passed which,  among other things, prolonged its life till the  1st April,  1952.  Afresh Act was passed in 1952 (Act  XXXIV  of 1952) called the Preventive Detention (Amendment) Act, 1952. The effect of this Act was to prolong the life of the Act of 1950  for  further six months, viz., till the  1st  October, 1952.  On the 22nd August, 1952, an Act further to amend the Preventive  Detention  Act,  1950,  called  the   Preventive Detention (Second Amendment) Act, LXI of 1952, received  the assent  of the President, by which the life of the  Act  was extended  till  the 3 1 st December, 1954.  It was  to  come into  force on a date appointed by the  Central  Government. By  a notification dated 15th September, 1952,  the  Central Government  appointed the 30th September, 1952, as the  date when the new Act was to come into force. The petitioner was served with an order of detention on  the 20th October, 1951.  The grounds of detention were furnished to  him on the 1st November, 1951. His case was referred  to

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the Advisory Board on the 24th November, 1951.  The Advisory Board submitted its report on the 13th December, 1951.   The appropriate  Government confirmed the detention on the  21st January,  1952.  It specified 31st March, 1952, as the  date up  to  which the detention was to continue.   On  the  29th March,  1952, the petitioner’s detention was  extended  till the  30th September, 1952, and on the 22nd September,  1952, his detention was again extend till 31st December, 1952.  In the  other  petitions also the last order of  extension  was made on 22nd September, 1952, extending the detentions  till 31 st December, 908 1952.   But  for  this extension the  detentions  could  not continue  beyond 30th September, 1952, except by use of  the powers under the new Act. It  was contended on behalf of the detenus that on the  22nd September, 1952, the State Government had no jurisdiction to make  an order of extension so as to continue the  detention beyond the I st October, 1952, viz., beyond the life of  the Act  then in force, and that the order extending the  period of detention upto 31st December, 1952, was illegal.  In  our opinion, this contention is well founded.  On behalf of  the State Government the order made on the 22nd September, 1952, was  sought to be justified on the ground that it had  power to  enlarge the period of detention under the provisions  of the Preventive Detention (Second Amendment) Act of 1952  and it  could  exercise  those powers after that  Act  had  been passed by the Parliament even though the amended Act had not yet  come  into force.  Reliance for  this  proposition  was placed  on  the  provisions of section  22  of  the  General Clauses Act (X of 1897).  Section 22 provides as follows:--- "Where,  by  any Central Act or Regulation which is  not  to come into force immediately on the passing thereof, a  power is  conferred to make rules or bye laws, or to issue  orders with   respect   to   the  application   of   the   Act   or Regulation..........  or with respect to the time  when,  or the place where or the manner in which ......... anything is to be done under the Act or Regulation, then that power  may be  exercised  at any time after the passing of the  Act  or Regulation; but rules, bye-laws or orders so made or  issued shall  not take effect till the commencement of the  Act  or Regulation." This  section  corresponds  to section  37  of  the  English Interpretation  Act of 1899.  It is an  enabling  provision, its  intent  and purpose being to facilitate the  making  of rules,  bye-laws  and  orders before the date  of  the  com- mencement of an enactment in anticipation of its coming into force.   In  other words, it validates rules, bye  laws  and orders made before the enactment comes into 909 force  provided they are made after the passing of  the  Act and  as preparatory to the Act coming into force.   It  does not  authorize  or  empower the  State  Government  to  pass substantive  orders  against any person in exercise  of  the authority  conferred  by any particular section of  the  new Act.  The words of the section " with respect to " prescribe the  limit and the scope of the power given by the  section. Orders  can only be issued with respect to the time when  or the  manner in which anything is to be done under  the  Act. An  order  for  the extension of detention  made  under  the purported  exercise  of the powers conferred by any  of  the provisions  of the new Act is not an order with  respect  to the time when or the manner- in which anything is to be done under  the Act.  Such an order could only be made under  the Act  and  after  the  Act had come into  force  and  not  in

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anticipation  of its coming into force.  The Act  having  no retrospective  operation, it cannot validate an  order  made before  it  came  into  force.  It  seems  to  us  that  the expression  " order " in the section means an  order  laying down  directions about the manner in which things are to  be done  under the Act and it is an order of that  nature  that can  be issued before the Act comes into force but  it  does not  mean  that  a substantive order  against  a  particular person can be made before the Act comes into force.  In  our opinion,  therefore, the contention raised on behalf of  the State  Government has no force and the order  extending  the detention  of the detenus on the 22nd September, 1952,  upto the 31st December, 1952, is illegal. The  learned  Solicitor-General  on  behalf  of  the   Union Government  intervened and contended that the  detention  of the  petitioner  as  well  as of  others  concerned  in  the connected  petitions was legal because in the initial  order of detention made in all these cases no period of  detention had  been  specified and by force of  section  11-A(2),  the detention  of the petitioners stood  automatically  extended till 1st April, 1953. Section  10  of the new Act  [Preventive  Detention  ,Second (Amendment) Act, 1952], adds the new section 11 -A, which is in these terms 910 "(1) The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under  section  11 shall be twelve months from the  date  of detention. (2)Notwithstanding  anything  contained in  subsection  (1), every detention order which has been confirmed under section 11  before  the  commencement of  the  Preventive  Detention (Second Amendment) Act, 1952, shall, unless a shorter period is specified in the order, continue to remain in force until the  1st  day  of April, 1953, or until  the  expiration  of twelve  months from the date of detention, whichever  period of detention expires later. (3)The  provisions  of  sub-section (2)  shall  have  effect notwithstanding  anything  to  the  contrary  contained   in section 3 of the Preventive Detention (Amendment) Act,  1952 (XXXIV of 1952), but nothing contained in this section shall affect the power of the appropriate Government to revoke  or modify the detention order at any earlier time." It was suggested that on a grammatical construction of  this section  the  word  "order" in  sub-section  (2)  means  the initial order of detention and cannot refer to the order  of confirmation  as no such order is contemplated by  the  Act. In  our opinion, this contention is not sound.  It was  held by  this  Court in Petition No. 308 of  1951  [Makhan  Singh Tarsikka  v. The State of Punjab(1)] that the fixing of  the period  of  detention in an initial order  of  detention  is contrary to the scheme of the Act and cannot be supported as it   tends  to  prejudice  a  fair  consideration   of   the petitioner’s  case  when it is placed  before  the  Advisory Board.  That decision was pronounced on the 10 th  December, 1951, and according to well known canons of construction  of statutes and principles of legislation it has to be presumed that when Parliament enacted section 11-A in Act LXI of 1952 it  was aware of the decision of this Court that  no  period could  be specified in the initial order of  detention.  -It follows  that  when Parliament in sub-section  (2)  provided that "every detention order (1)  [1952] S.C.R. 368. 911 which  has  been  confirmed under section  1  1  before  the

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commencement of the Preventive Detention (Second  Amendment) Act,  1952, shall, unless a shorter period is  specified  in the  order,  continue to remain in force "  till  a  certain date,  it  plainly intended by the words " the  order  "  to refer, not to the initial order of detention, for no  period of  detention could legally be specified in that order,  but to  the  order of detention as  eventually  confirmed  under section 11 (1).  We are not on any debatable ground when  we say  that  at  that  stage it  is  open  to  an  appropriate government to specify the period of detention in the case of every  detenu.  We are satisfied that when  sub-section  (2) refers to specification of a period in the order, it intends to  refer to the detention order as confirmed under  section 11 (1) and not the initial order of detention. It was next contended that the period specified in the order in  question being coterminous with the date fixed  for  the life of the Act, the specification of the period was  wholly unnecessary  and  therefore  the order  of  detention  could continue  till the 1st April, 1953, by force of  sub-section (2) of section 11 -A in the new Act, as if no period had  in fact  been specified in the order.  This argument cannot  be sustained on the language employed in section 11-A(2).   The phraseology employed in the section is in sharp  distinction to  the language employed in section 3 of Act XXXIV of  1952 and  if  the object was to convey the same  intention,  then Parliament  would have used similar language in section  11- A(2)  as  in section 3 of Act XXXIV of 1952.   That  section runs thus:- -- "Every  detention  order confirmed under section 11  of  the principal   Act   and  in  force  immediately   before   the commencement of this Act shall have effect as if it had been confirmed  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 31  st day of March, 1952, such 912 detention  order  shall continue to remain in force  for  so long as the principal Act is in force. " The  Parliament,  when it intended to say that if  the  date specified  in an order is coterminous with the life  of  the Act  the  detention  will  continue  for  a  further  period automatically, said so in clear and unambiguous language and by  use  of apt words.  It knew that there may be  cases  in which  the  date  specified for  the  determination  of  the detention may be coterminous with the date on which the  Act is to expire, and it made a clear provision in section 3  to cover  all  such  cases.  In section  11-A(2),  however,  it simply  said  that if a shorter period is specified  in  the order,  then the detenu would be entitled to his release  on that  date.  In the order passed against the petitioner  and also  in the orders passed in the connected petitions,  30th September,  1952,  was  the  date  specified  up  to   which detention  could continue and that being so,  their  present detention  cannot continue after that date by force  of  the provisions of subsection (2) of section 11 -A merely because that date by accident or coincidence happens to be identical with  the  date  on which the first  amendment  Act  was  to expire. Then  it  was contended that even if the date  up  to  which detention  was  to continue was specified in the  order,  it does  not  fix a period shorter than 30th  September,  1952, (the date on which Act XXXIV of 1952 was to expire), and the detenus are not entitled to the benefit of the provisions of

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sub-section  (2)  of  section  11-A.   This  contention   is difficult  to sustain grammatically.  The words "  unless  a shorter  period  is specified in the order  "  clearly  have reference  to the periods mentioned immediately  thereafter, namely,  the  first April, 1953, or the date  of  expiry  of twelve  months  from the date of detention.   They  have  no reference  at all to the date of the expiry of Act XXXIV  of 1952.   When the attention of the learned  Solicitor-General was  drawn  to  the plain reading of  the  section  and  the grammar  of  it, he conceded that the  adjective  shorter  " there  bad reference to the 1st April, 1953, or the date  of expiry of the period of twelve months 913 mentioned  in  the  section  and  could  not  mean  a   date antecedent to 30th September, 1952. For  the  reasons  given  above,  in  our  judgment,  the  I detention of the petitioner in this petition and of those in the   other  petitions  mentioned  above,  after  the   30th September, 1952, became illegal and we therefore direct that the petitioners in this petition. and in petitions Nos. 350, 356, 362 and 366 of 1952 be released forthwith.  They are in detention by reason of the extension order made on the  22nd September  extending  their detention up to  31st  December, 1952.  On that date the State Government had no jurisdiction to  make  that order under the law in force as it  stood  on that  date. 30th September, 1952, had been specified as  the date up to which their detention was to last by a subsisting and  perfectly valid order and their detention order  beyond that  date  is  illegal  and  cannot  be  justified  on  the provisions  of  section 11 -A (2) or on  the  provisions  of section 11 (1) of the original Act. Petitions allowed. Agent   for   the   respondents  and   intervener:   G.   H. Rajadhyaksha.