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PETITIONER: THE STATE OF BOMBAY

       Vs.

RESPONDENT: PURUSHOTTAM JOG NAIK

DATE OF JUDGMENT: 26/05/1952

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

CITATION:  1952 AIR  317            1952 SCR  674  CITATOR INFO :  R          1961 SC1381  (10)  RF         1961 SC1762  (25)  R          1962 SC 113  (32)  R          1964 SC1823  (4,32)  R          1967 SC 295  (6,57)  RF         1967 SC1145  (16)  F          1974 SC1957  (12)  D          1987 SC 294  (38)  R          1988 SC1987  (3)  F          1988 SC2090  (32)  R          1990 SC1361  (10)  RF         1991 SC1557  (21)

ACT:       Preventive Detention Act (IV of 1950), s. 3--Constitu- tion  of India, 1950, Art. 166--Order of detention--Form  of order--Order  stating  that  Government  is   satisfied--Not stating  expressly  that  it is issued in the  name  of  the Governor--Validity--Proof by other evidence--Value of Secre- tary’s evidence--Form of verification.

HEADNOTE:        The  material portion of an order of  detention  made under  3 of the preventive Detention Act 1950, ran  as  fol- lows: 675     "Whereas  the  Government of Bombay  is  satisfied  with respect  to the person known as J. N  .......  that  with  a view  to preventing him from acting in a manner  prejudicial to  the maintenance of public order it is necessary to  make the  following order: Now,  therefore,  .........  the  Gov- ernment of Bombay is pleased to direct that the said J.N. be detained.                    By order of the Governor of Bombay                       (Sd.) V.T.D.                  Secretary to the Government of                    Bombay, Home Department".     The High Court of Bombay held that the order was  defec- tive  as  it  was not "expressed to be in the  name  of  the

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Governor"  within  the meaning of Art. 166 (1) and  was  not accordingly protected by Art. 166 (2):      Held,  that the order was not defective merely  because it  stated that the Government of Bombay was  satisfied  and that  the  Government of Bombay was pleased to  direct  that J.N. be detained, and, though the addition of the words "and in  his  name"  to the words "By order of  the  Governor  of Bombay" would have placed the matter beyond controversy, the order  was really one expressed to be taken in the  name  of the Governor of Bombay within Art. 166.      Held further, that, assuming that the order was  defec- tive  it was open to the State Government to prove by  other means  that such an order has been validly made.  It is  not absolutely  necessary in every case to call the Minister  in charge; if the Secretary or any other person has the  requi- site means of knowledge and his affidavit is believed,  that will be enough.     Verification should invariably be modelled on the  lines of  O. XIX, r. 3, of the Civil Procedure Code,  whether  the Code applied in terms or not, and when the matter deposed to is  not based on personal knowledge the sources of  informa- tion must be clearly disclosed.

JUDGMENT:     APPELLATE JURISDICTION:Case No. 30 of 1950. Appeal under Art. 132 (1) of the Constitution of India from the  Judgment and  Order  dated 24th October, 1950, of the High  Court  of Judicature  at  Bombay (Bavdekar and Vyas JJ.)  in  Criminal Application No. 1003 of 1950.     M.C.  Setalvad  (Attorney-General for India)   and  C.K. Daphtary (Solicitor-General for India), with G.N. Joshi  for the appellant. Respondent ex parte. 676     1952.  May 26.  The judgment of the Court was  delivered by      Bose  J  ....  This is an appeal from an order  of  the Bombay  High Court  directing the release of the  respondent who  had  been detained under section 3  of  the  Preventive Detention Act of 1950.     ’The learned Attorney-General states at the outset  that Government   does not want to re-arrest the  respondent  but merely desires to test the High Court’s decision on  certain points  which will have far-reaching effects on   preventive detentions  in the State of Bombay. Following the  precedent of  their Lordships of the Privy Council in King-Emperor  v. Vimlabai  Deshpande(1) we proceed to decide the  appeal  but direct  that  the respondent shall not in any event  be  re- arrested  in  respect  of the matters to  which  the  appeal relates.    The respondent was originally arrested under an order  of the  District Magistrate, Belgaum, dated the 26th  February, 1950,  though  he was then beyond the jurisdiction  of  that authority.   On  the 11th of .July, 1950,  the  Bombay  High Court  held that a detention of that kind was invalid.   The decision  was given in the case of In re  GhateC-(2).   This necessitated  a review of 57 cases, among them the  respond- ent’s.  Orders were passed in all those cases on the 17th of July,  1950.  About 52 of the detenus were released  and  in the remaining cases fresh orders of detention were passed by the Government of Bombay.     In the respondent’s case the order was in these terms:     "Whereas  the  Government of Bombay  is  satisfied  with

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respect to the person known as Shri Purushottam Jog Naik  of Ulga  Village, Taluka Karwar, District Kanara, that  with  a view  to preventing him from acting in a manner  prejudicial to the maintenance of public order, it is necessary to  make the following order:     Now,  therefore, in exercise of the powers conferred  by sub-section (1.) of section 3 of the Preventive   (1)  I.L.R.  1946 Nag. 651 at 655.         (2)  (1950)  52 Bom. L.R. 711. 677 Detention  Act,  1950 (No. IV of 1950),  the  Government  of Bombay  is pleased to direct that the said Shri  Purushottam Jog Naik be detained.          By order of the Governor of Bombay,                 Sd/--V. T. Dehejia,    Secretary to the Government of Bombay, Home Department. Dated at Bombay Castle, this 17th day of July, 1950."      He was served with the grounds of detention on the 26th of  July, 1950, and with a fuller set on the 9th of  August. The original grounds were as follows:     "In  furtherance  of your campaign  for  non-payment  of rent,  you were instigating the people in the  Belgaum  Dis- trict to commit acts of violence against landlords.   ‘‘In all probability, you will continue to do so."   The second set gave the following additional  particulars:     "The people in Belgaum District, whom you were instigat- ing to commit acts of violence against landlords in further- ance  of  your campaign for non-payment of  rent,  were  the tenants in Hadalge and round about villages in the  Khanapur Taluka  of  Belgaum District, and the said  instigation  was carried on by you for some months till your arrest in April, 1949."   On the 24th of August, 1950, the respondent applied to the Bombay  High Court under section 491 of the Criminal  Proce- dure  Code for an order of release.  He succeeded,  and  the appeal is against that order.     The first ground on which the learned High Court  Judges proceeded was that the detention order of the 17th July  was defective  as it was not expressed inproper legal form.  The basis  of  their reasoning is this.   Article 166(1) of the Constitution requires that--    " All executive action of the Government of a State shall be expressed to be taken in the name of the Governor."     It  will be seen that the order of detention  states  in the preamble 678  ‘‘  Whereas the Government of Bombay is  satisfied..."  and the operative part of the order runs-    "  Now,  therefore  ......  the Government of  Bombay  is pleased to direct etc."    It does not say that the Governor of Bombay is pleased to direct.   The learned Judges held that this is not an  order expressed to be made in the name of the Governor and accord- ingly  is not protected by clause (2) of article 166.   They conceded  that the State could prove by other means  that  a valid  order  had been passed by the proper  authority,  but they  held that the writing, (Record No. 3), which  purports to  embody the order, cannot be used to prove that  a  valid order was made because the formula set out in article 166(1) was not employed. We are unable to agree.      Now  we do not wish to encourage laxity of  expression, nor do we mean to suggest that ingenious experiments regard- ing the permissible limits of departure from the language of a  Statute  or of the Constitution will be  worthwhile,  but when  all is said and done we must look to the substance  of

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article 166 and of the Order.     The  short answer in this case is that the  order  under consideration  is "expressed" to be made in the name of  the Governor because it says "By order of the Governor."  One of the meanings of "expressed" is to make known the opinions or the feelings of a particular person and when a Secretary  to Government apprehends a man and tells him in the order  that this  is being done under the orders of the Governor, he  is in  substance  saying that he is acting in the name  of  the Governor  and, on his behalf, is making known to the  detenu the opinion and feelings and orders of the Governor.  In our opinion, the Constitution does not require a magic  incanta- tion which can only be expressed in a set formula of  words. What we have to see is whether the substance of the require- ments is there.     It  has to be remembered that this order was made  under the  Preventive  Detention Act, 1950, and therefore  had  to conform to its terms. Section 3 of the Act provides that the State Government may, if satisfied, 679     "make an order directing that such person be detained."        It  is true that under section 3 [(43 a) (a)] of  the General  Clauses Act the words "the State  Government"  mean the Governor, but if that be so, then the expression must be given the same meaning in the order which merely  reproduces the  language of section 3, not indeed because  the  General Clauses  Act applies to the order (it does not) but  because the  order is reproducing the language of the Act  and  must therefore  be taken to have the same meaning as in  the  Act itself, particularly as the order concludes with the words,      " By order of the Governor of Bombay."      It  will  be noticed that section 3 of  the  Preventive Detention Act enables certain authorities specified by it to make  orders  of detention. These include,  not  only  State Governments  but also the Central Government,  any  District Magistrate or Sub-Divisional Magistrate and certain  Commis- sioners of Police. The list does not include the Governor of a  State. Now, though the term "State Government"  appearing in an enactment means the Governor of the State, there is no provision  of law which equates the term Governor  with  the State Government of which he happens to be the head. On  the contrary,  the Constitution invests him with  certain  func- tions  and powers which are separate from those of his  Gov- ernment. It was therefore appropriate that the order in this case  should have set out that the Government of Bombay  was satisfied  and not some other authority not contemplated  by the Act and that that Government directed the detention.  It was  also  proper that the order should have  been  executed under  the orders of the Governor authenticated,  under  the rules,  by the signature of the Secretary. It is  true  that addition  of  the words "and in his name" to the  words  "By order  of  the  Governor of Bombay" would  have  placed  the matter  beyond controversy but we are unable to see  how  an order which purports to be an order 680 of  the Governor of’BombaY can fail to be otherwise than  in his name. If A signs his name to a communication that commu- nication  goes  out in his name. Equally, if he  employs  an agent to sign on his behalf and the agent states that he  is signing under the orders of A, the document still goes forth in  the name of A. In our opinion, the High Court was  wrong on this Point      The  next step in the High Court’s reasoning was  this. The  learned  Judges held that the writing produced  as  the order  did  not prove itself because of the defect  we  have

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just  considered  but that nevertheless it was open  to  the State Government to prove by other means that such an  order had  been validly made. The learned Judges therefore  called upon Government to make an affidavit setting out the  facts. An affidavit was made by the Home Secretary but the  learned Judges were not satisfied and asked for a further affidavit. The  Home  Secretary  thereupon made a second  one  but  the learned  Judges  were i still not satisfied  and  considered that  the Minister in charge should have made  an  affidavit himself.     We do not intend to discuss this matter because once  an order  of this kind is unable to prove itself and has to  be proved by other means it becomes impossible to lay down  any rule  regarding either the quantum of evidence necessary  to satisfy  the  Court    which is called upon  to  decide  the question  or the     nature of the evidence required.   This is  a question     of fact which must be different  in  each case.  Of     course, sitting as a court of appeal, it would have been     necessary for us to decide this had we reached a different conclusion on the first point and had the  State Government desired the re.arrest of the respondent.      But as we are only asked to deal with general principles, all we need say as regards this is that it is not     necessary  in every case to call the Minister in charge.     if the Secre- tary.  or any other person, has the requisite      means  of knowledge  and  his affidavit is believed,  that    will  be enough. 681     We  wish, however, to observe that the  verification  of the affidavits produced here is defective. ’The body of  the affidavit  discloses that certain matters were known to  the Secretary  who made the affidavit personally. The  verifica- tion however states that everything was true to the best  of his  information and belief. We point this out  as  slipshod verifications  of this type might well in a given case  lead to a rejection of the affidavit. Verifications should invar- iably be modelled on the lines of Order XIX, rule 3, of  the Civil  Procedure Code, whether the Code applies in terms  or not.  And when the matter deposed to is not based on person- al  knowledge the sources of information should  be  clearly disclosed. We draw attention to  the remarks of Jenkins C.J. and Woodroffe J. in Padmabati Dasi v. Rasik Lal Dhar(1)  and endorse the learned Judges’ observations.      In  fairness to the Home Secretary we deem it right  to say  that his veracity was neither doubted nor  impugned  by the  High  Court, but only his means of  knowledge.  He  was speaking of the "satisfaction" of the Minister and the  High Court was not satisfied regarding his knowledge of the state of the Minister’s mind.  The learned Judges considered  that the  Minister  himself would have been a  more  satisfactory source of information, but as we say, this is not a question of law. As a matter of abstract law, of course, the state of man’s mind can be proved by evidence other than that of  the man  himself,  and if the Home Secretary has  the  requisite means  of knowledge, for example, if the Minister  had  told him  that he was satisfied or he had indicated  satisfaction by his conduct and acts, and the Home Secretary’s  affidavit was regarded as sufficient in the particular case, then that would constitute legally sufficient proof. But whether  that would  be  enough in any given case. or whether  the’  ’best evidence  rule" should be applied in strictness     in  that particular case, must necessarily depend upon its facts.  In the  present case, there was the element that 57 cases  were dealt with in the course of 6 days  (1) (1910) I.L.R. 37 Cal. 259.

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682 and  orders passed in all on one day.  But we do not  intend to  enter into the merits.  All we desire to say is that  if the learned Judges of the High Court intended to lay down as a proposition of law that an affidavit from the Minister  in charge of the department is indispensable in all such cases, then they went too far.      The learned Attorney-General contended that the  Minis- ter  in charge could not be asked to divulge  these  matters because  of  article 163 (3) of the Constitution.  We  donor decide this question and leave it open.    Another  point which was argued related to the  privilege which  the  Home Secretary claimed on behalf  of  the  State Government under article 22 (6) of the Constitution. Govern- ment disclosed certain facts in the grounds furnished to the detenu and claimed privilege regarding the rest of the facts in  its  possession.  In-our opinion, the  grounds  supplied were  sufficiently  specific and they could  form  a  proper basis for the "satisfaction" of the Government.  As  regards the rest, Government has claimed privilege in the  affidavit of the Home Secretary on the ground of public interest. This raises  further questions which we do not intend to  examine as the respondent is not to be re-arrested.    The  order of release was, in our opinion, wrong, but  in view  of Government’s undertaking not to re-arrest  the  re- spondent, we direct that he be not re-arrested in respect of the matters to which this appeal relates.                    Order of High Court set aside. Agent for the appellant: P.A. Mehta. 683