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PETITIONER: NARANJAN SIGH NATHAWAN

       Vs.

RESPONDENT: THE STATE OF PUNJAB(and 13 other petitions).

DATE OF JUDGMENT: 25/01/1952

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

CITATION:  1952 AIR  106            1952 SCR  395  CITATOR INFO :  R          1966 SC1404  (8)  D          1967 SC1797  (4)  E          1969 SC  43  (9,10)  R          1971 SC2197  (7)  R          1974 SC 510  (3)  R          1990 SC1480  (99)

ACT:    Preventive  Detention--Order of detention  challenged  as illegal-Fresh        order       superseding        previous order--Validity--Question  of bad faith--Habeas corpus  pro- ceeding--Legality of detention must be determined as at date of return.

HEADNOTE:     In the absence of bad faith the detaining authority  can supersede  an  earlier  order of detention  which  has  been challenged as defective on merely formal grounds and make  a fresh order wherever possible which is free from defects and duly  complies  with  the requirements of the  law  in  that behalf.   The  question  of bad faith, if  raised,  must  be decided with reference to the circumstances of each case.      In  habeas  corpus  proceedings the Court  is  to  have regard to the legality or otherwise of the detention at  the time of the return and not with reference to the date of the institution of the proceedings. 396       Basanta  Chandra Ghose v. King Emperor ([1945]  F.C.R. 81)     followed.  Naranjan  Singh v. The  State  of  Punjab unreported) explained. Makhan Singh Tarsikka v. The State of Punjab ([1952]  S.C.R. 368) referred to.

JUDGMENT:     CRIMINAL  JURISDICTION: Petitions (Nos. 513,  566,  568, 570,  591,595, 596, 601, 616, 617, 623, 625, 631 and 632  of 1951) under article 32 of the Constitution for writs in  the nature  of habeas corpus. The facts are stated in the  judg-

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ment.      Raghbir  Singh (amicus curiae) for the  petitioners  in Petitions Nos. 513, 566, 568, 570. 595, 596, 609, 616,  617, 623,625 and 631.     A.S.R.  Chari  (amicus  curiae) for  the  petitioner  in Petition No. 591.     Shiv Charan Singh (amicus curiae) for the petitioner  in Petition No. 632.     S. M Sikri, Advocate-General of the Punjab (Jindra  Lal, with him) for the State of the Punjab.     1952.  January 25. The Judgment of the Court was  deliv- ered by PATANJALI SASTRI C.J.--This is a petition under article 32 of the Constitution submitted through the  Super- intendent, Central Jail, Ambala, for the issue of a writ  of habeas corpus for the release of the petitioner from  custo- dy.      On  5th  July, 1950, the petitioner  was  arrested  and detained under an order of the District Magistrate of Amrit- sar in exercise of the powers conferred on him under section 3 of the Preventive Detention Act, 1950, and the grounds  of his detention  were  served on him as required by section  7 of  the Act on 10th July, 1950. The Act having been  amended by  the  Preventive Detention (Amendment)  Act,  1951,  with effect  from  22nd February, 1951, a fresh order  No.  7853- ADSB,  dated  17th May, 1951, was issued  in  the  following terms :-     "Whereas  the Governor of Punjab is satisfied  with  re- spect  to the person known as Naranjan Singh  Nathawan,  s/o Lehna Singh of village Chak Sikandar, 397 P.S. Ramdas, Amritsar District, that with a view to prevent- ing him from acting in a manner prejudicial to the  security of the State, it is necessary to make the   following order:     Now,  therefore. in exercise of the powers conferred  by sub-section  (1) of section 3 and  section 4 of the  Preven- tive  Detention  Act, 1950, as   amended by  the  Preventive Detention (Amendment)     Act, 1951, the Governor of  Punjab hereby  directs  that the said Naranjan  Singh  Nathawan  be committed  to the custody of the Inspector-General of  Pris- ons, Punjab, and detained in any jail of the State till 31st March,  1952, subject to such conditions as to  maintenance, discipline and punishment for breaches of discipline as have been  specified  by  general order or as  contained  in  the Punjab Detenu Rules, 1950."    This  order  was served on the petitioner  on  23rd  May, 1951, but no grounds in support of this order were served on him.     The petitioner thereupon presented this petition for his release  contending  that the aforesaid  order  was  illegal inasmuch as (1) the grounds of detention communicated to him on 10th July, 1950, were "quite vague, false and  imaginary" and  (2) he was not furnished with the grounds on which  the order  dated  17th May, 1951, was based.  The  petition  was heard  ex-parte  on  12th November, 1951,  when  this  Court issued a rule nisi calling upon the respondent to show cause why the petitioner should not be released, and it was posted for  final  hearing on 23rd November, 1951.  Meanwhile,  the State  Government  issued an order on 18th  November,  1951. revoking the order of detention dated 17th May, 1951, and on the same date the District Magistrate, Amritsar, issued  yet another  order  for the detention of  the  petitioner  under sections  a and 4 of the amended Act; this last order  along with  the  grounds on which it was based was served  on  the petitioner on 19th November, 1951.

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   Thereupon the petitioner submitted a supplemental  peti- tion  to this Court on 28th November, 1951, challenging  the validity of the last order on the ground 398 that  "it  was  only a device to defeat  the  habeas  corpus petition of the petitioner in which a rule had already  been issued  , and he put forward an additional ground of  attack on  the legality of the earlier order dated 17th may,  1951, namely, that it fixed the term of detention till 31st March, 1952, before obtaining the opinion of the Advisory Board  as required  by section 11 of the amended Act. This ground  was evidently based on the view expressed by this Court that the specification  of  the period of detention  in  the  initial order of detention under section 3 of the amended Act before obtaining  the  opinion of the Advisory Board  rendered  the order illegal.      In the return to the rule showing cause filed on behalf of the respondent, the Under Secretary (Home) to the Govern- ment  explained the circumstances which led to the issue  of the  fresh  order of detention dated  18th  November,  1951. After stating that the petitioner’s case was referred to and considered by the Advisory Board constituted under section 8 of the amended Act and that the Board reported on 30th  May, 1951,  that there was sufficient cause for the detention  of the petitioner, the affidavit proceeded as follows:      "That  the Government was advised that the orders  made under section 11 of the Preventive Detention Act’, 1950,  as amended  by the Preventive Detention (Amendment) Act,  1951, but carried out in the form of orders under section 3 of the said Act, should be followed by grounds of detention and, as this  had not been done in most cases, the  detentions  were likely to be called in question. The Government was  further advised  there  were  other technical  defects  which  might render  the detention of various detenus untenable. In  view of this, the Government decided that the cases of all  dete- nus  should  be reviewed by the  District  Magistrates  con- cerned.  Accordingly, the Punjab Government  instructed  the District  Magistrates  to review the cases and  apply  their minds  afresh and emphasised that there must exist  rational grounds  with the detaining authority to justify the  deten- tion  of a person and they were asked to report  clearly  in each case if the District 399 Magistrate concerned wanted the detenus to be detained.  The Punjab Government also reviewed some cases. Accordingly  all cases including the case of the petitioner     were reviewed and in this case the District Magistrate was again satisfied that  it  was necessary that the detenu be detained  with  a view  to prevent him from acting in a manner prejudicial  to the  security  of the State and the  maintenance  of  public order." And it concluded by stating "that the petitioner  is detained  now under the orders of the  District  Magistrate, Amritsar."       The  original and supplementary petitions came  on  in due  course for hearing before Fazl Ali and Vivian Bose  JJ. on  17th December, 1951, when reliance was placed on  behalf of t he petitioner on certain observations in an  unreported decision of this Court in Petition No. 334 of 1951 (Naranjan Singh  v.  The State of Punjab) and it was claimed  that  in view of those observations and of the provisions of Part III of the Constitution, the decision in Basant Chandra Ghose v. King  Emperor(1),  on which the respondent  relied.  was  no longer good law. The learned Judges thought that the  matter should  be considered by a Constitution bench and  the  case was accordingly placed before us.

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   It  will be seen from the affidavit filed on  behalf  of the  respondent that the case of the petitioner, along  with his representation against the detention order of 17th  May, 1951, was placed before the Advisory Board for its consider- ation, and the Board reported on 30th May, 1951, that in its opinion there was sufficient cause for the detention of  the petitioner.  It is said that, on the basis of  that  report, the  Government  decided that the petitioner should  be  de- tained  till 31st March, 1952, but while a  properly  framed order under section 11 should "confirm" the detention  order and  "continue"  the detention for a specified  period,  the order of 17th May, 1951, was issued under a  misapprehension in  the  form  of an initial order under section  3  of  the amended Act. on the same grounds as before without any fresh communication thereof to the petitioner.  To (1) [1945] F.C.R. 31. 52 400 avoid arguments based on possible defects of a technical and formal character, the said order was revoked   under section 13, and on a review of the case by the District  Magistrate, a  fresh  order of detention was issued under section  3  on 18th  November,  1951,  and this was followed  by  a  formal communication  of the same grounds as before as there  could be  no fresh grounds, the petitioner having throughout  been under detention.     It  is contended by the Advocate-General of  the  Punjab that  the  decision reported in [1945] F.C.R.  81  is  clear authority in support of the validity of the aforesaid order. On essentially similar facts the court laid down two  propo- sitions  both of which have application here. (1)  Where  an earlier  order  of detention is defective merely  on  formal grounds,  there  is nothing to preclude a  proper  order  of detention  being  based on the  pre-existing  grounds  them- selves, especially in cases in which the sufficiency of  the grounds  is not examinable by the courts, and (2) if at  any time  before the court directs the release of the detenu,  a valid  order directing his detention is produced, the  court cannot direct his release merely on the ground that at  some prior  stage  there was no valid cause  for  detention.  The question is not whether the later order validates the earli- er  detention  but whether in the face of  the  later  valid order  the court can direct the release of  the  petitioner. The  learned  Judges  point out that the  analogy  of  civil proceedings  in which the rights of parties have  ordinarily to  be ascertained as on the date of the institution of  the proceedings has no application to proceedings in the  nature of  habeas corpus where the court is concerned  solely  with the  question  whether the applicant is being  lawfully  de- tained or not.    The  petitioner’s learned counsel conceded that he  could not challenge the correctness of the second proposition, but took exception to the first as being no longer tenable after the Indian Constitution came into force.  It was urged  that article  22 lays down the procedure to be followed in  cases of  preventive  detention  and the said  procedure  must  be strictly observed 401 as  the only prospect of release by a court must be  on  the basis  of technical or formal defects, a long line of  deci- sions  having  held  that the scope of  judicial  review  in matters of preventive detention is practically limited to an enquiry as to whether there has been strict compliance  with the  requirements of the law. This is undoubtedly  true  and this  Court had occasion in the recent case of Makhan  Singh

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Tarsikka  v.  The  State  of Punjab  (Petition  No.  308  of 1951)(1) to observe "it cannot too often be emphasised  that before  a  person is deprived of his  personal  liberty  the procedure  established by law must be strictly followed  and must not be departed from to the disadvantage of the  person affected".   This proposition, however, applied  with  equal force to cases of preventive detention before the  commence- ment  of the Constitution, and it is difficult to  see  what difference the Constitution makes in regard to the position. Indeed,  the position is now made more clear by the  express provisions  of section 13 of the Act which provides  that  a detention  order may at any time be revoked or modified  and that  such  revocation shall not bar the making of  a  fresh detention  order  under section 3 against the  same  person. Once  it is conceded that in habeas corpus  proceedings  the court is to have regard to the legality or otherwise of  the detention  at the time of the return and not with  reference to  the  date of the institution of the  proceeding,  it  is difficult  to  hold, in the absence of proof of  bad  faith, that  the  detaining authority cannot supersede  an  earlier order  of detention challenged as illegal and make  a  fresh order wherever possible which is free from defects and  duly complies with the requirements of the law in that behalf.     As regards the observations in Naranjan Singh’s case, we do  not understand them as laying down any general  proposi- tion to the effect that no fresh order of detention could be made  when  once a petition challenging the validity  of  an earlier  order has been filed in court. The  learned  Judges appear to have inferred from the facts of that case that the later order was (1) Since reported as [1952] S.C.R. 368. 402 not made bona fide on being satisfied that the  petitioner’s detention  was   still necessary but it was   "obviously  to defeat the present petition". The question of bad faith,  if raised would certainly have to be decided with reference  to the circumstances of each case, but the observations in  one case cannot be regarded as a precedent in dealing with other cases.    We  accordingly remit the case for further hearing.  This order  will govern the other petitions where the same  ques- tion was raised.                                    Petitions remitted. Agent for the respondent: P.A. Mehta.