No 170 of 1959
Petition under Article 32 of the Constitution of India for enforcement of Fundamental rights
785 R V section Mani
for the petitioner
C K Dephtary Solicitor General of India B R L lyengar and R H Dhebar for the respondent
1960 January 20
The Judgment of the Court was delivered by IMAM J
This petition was heard on January 4 1960 and we intimated that it was being dismissed and reasons for the same will follow later
We proceed to give our reasons now
The petitioner was detained by an order dated May 4 1959 of the Central Government under the provisions of section 3 of the hereinafter referred to as the Act
The grounds of detention dated May 7 1959 were served on the petitioner
His case was considered by the Advisory Board constituted by the Central Government under section 8 of the Act
On the report of the Advisory Board the Central Government by its order dated June 23 1959 directed that the petitioner be detained until May 4 1960
It is against this order of detention that the present petition under article 32 of the Constitution has been filed by the petitioner
The grounds of detention contained 5 grounds upon which the Central Government was satisfied that it was necessary to detain the petitioner as he was likely to act further in a manner prejudicial to the security of India and the relations of India with foreign powers
It was further stated in the grounds of detention that the Central Government considered it against the public interest to disclose to the petitioner any facts or particulars as to dates persons places nature of activities and the assistance given by him other than those which had been mentioned in the grounds of detention
The grounds of detention further mentioned that some of the specimen despatches sent by the petitioner and some of the reports appearing in a newspaper published in Pakistan were annexed thereto
From the grounds of detention it would appear that the allegation against the petitioner was that he had been engaged in carrying on propaganda against the Government of India and the Government of the 786 State of Jammu and Kashmir established by law and against the administration of that State Government in a manner calculated to bring into hatred and contempt the Government of tile State and the Government of India that in furtherance of his propaganda the petitioner had been inter alia sending for publication in a foreign newspaper despatches of news and views relating to the State of Jammu and Kashmir containing false incomplete one sided and misleading information about the administration of the State by the Government of that State about the policy of the Government of India in relation to that State and about the conditions in India in general and in the State of Jammu and Kashmir in particular that the said despatches were published prominently by the said newspaper having a large circulation in Pakistan and other foreign countries in a manner prejudicial to India and her cause in relation to the State of Jammu and Kashmir and also prejudicial to the relations of India with foreign powers  that the petitioner was in regular touch and closely associated with several persons who are hostile to the cause of India in relation to the State of Jammu and Kashmir and were engaged in activities prejudicial to the security of India and that the cumulative effect of the petitioner s aforesaid activities was prejudicial to the relations of India with foreign powers in general and particularly in regard to the cause of India in respect of the State of Jammu and Kashmir and the maintenance of public order therein
We have examined the various extracts from the despatches sent by the petitioner annexed to the grounds of detention served upon him
They disclose sufficient particulars to enable the petitioner to make a representation to the Advisory Board
Having regard to what appears in these extracts from the despatches sent to the newspaper concerned they disclose sufficient grounds for the action taken by the Central Government in detaining the petitioner
On behalf of the petitioner it was urged that the order of detention was confined only to two matters 1 that it was made with a view to preventing the 787 petitioner from acting in a manner prejudicial to the relations of India with foreign powers and 2 to the security of India
As to the first matter it was argued that Pakistan not being a Foreign State there could be no question of any act of the petitioner being prejudicial to the relations of India with foreign powers
It was pointed out that under article 3673 of the Constitution for the purposes of the Constitution Foreign State meant any State other than India
The proviso however enabled the President subject to the provisions of any law made by Parliament by order to declare any State not to be Foreign State for such purposes as may be specified in the order
Reference was made to the Constitution Declaration as to Foreign State Order 1950 hereinafter referred to as the Order made by the Governor General of India under article 3923 of the Constitution read with article 3673
The Order directed that it shall come into force at once that is to say on January 23 1950
Clause 2 of the Order states Subject to the provisions of any law made by Parliament every country within the Commonwealth is hereby declared not to be a Foreign State for the purposes of the Constitution
On behalf of the petitioner it was urged that by the Order Pakistan being a member of the Commonwealth was declared not to be a Foreign State
Although the Order was subject to the provisions of any law made by Parliament no law had yet been enacted by Parliament contrary to the declaration made by the Order
Pakistan not being a Foreign State could not therefore be regarded as a foreign power and none of the acts of the petitioner referred to in the grounds of detention could therefore be regarded as acts prejudicial to the relations of India with foreign powers
The ground in this respect being an invalid ground the order of detention must be set aside because even if one ground was an invalid ground the entire order of detention must be set aside though other grounds appeared to be valid grounds having regard to certain decisions of this Court
It was also urged on behalf of the petitioner that none of the extracts of the despatches and the grounds 788 of detention disclose any word or phrase suggesting incitement to violence or subversion of the Government of the State of Jammu and Kashmir or of the Government of India
Accordingly there could be no question of any act of the petitioner being prejudicial to the security of India
Some other submissions were also urged on behalf of the petitioner with respect to the grounds of detention which will be dealt with in due course
It was also urged that in violation of the principles of natural justice the respondent s case was heard by the Advisory Board prior to the case of the petitioner and in his absence and that copies of the further materials which were placed before the Advisory Board by the respondent were not supplied to the petitioner
As already stated the contention on behalf of the petitioner has been that Pakistan is not a Foreign State and therefore cannot be regarded as a foreign power
It is true that in view of the Order for the purposes of the Constitution of India Pakistan is nota Foreign State
There is however a distinction between a country not being regarded as a Foreign State for the purposes of the Constitution and that country being a foreign power for other purposes
The Commonwealth is an Association of Nations each of which has a sovereign status independent of each other in its internal and foreign affairs
They have a sovereign status as complete as that of any nation which is not a member of the Commonwealth
Each member of the Commonwealth can have diplomatic relations with each other and with nations outside the Commonwealth
Indeed in the matter of sovereign status they are as independent as any nation outside the Commonwealth
It follows therefore that in their relations between each other and nations outside the Commonwealth they must be regarded as foreign powers and their affairs as between them are foreign affairs
In our opinion that which is not concerned with the internal affairs of a member of the Commonwealth is its external affair that is to say a foreign affair
789 Under item 9 of List 1 of the Seventh Schedule of the Constitution Parliament is empowered to enact laws with respect to preventive detention for reasons connected with defence foreign affairs or the security of India and persons subjected to such detention
Under section 3 of the Act the Central Government or the State Government may if satisfied with respect to any person with a view to preventing him from acting in any manner prejudicial to the defence of India the relations of India with foreign powers or the security of India make an order directing that such person be detained if it thinks it necessary so to do
The expression  Foreign Affairs  includes the relations of India with foreign powers
The question for decision is whether Pakistan is a foreign power
On a correct interpretation of the meaning of the words  the relations of India with foreign powers  we have no doubt that Pakistan must be regarded as a foreign power although that country may be a part of the Commonwealth as India is
It has sovereignty in matters of internal administration and external relations quite independent and disconnected with the sovereignty of India or any other member of the Commonwealth in these respects
Pakistan has its own diplomatic relations with various countries including India
Apart from its membership of the Commonwealth the independent sovereign status of Pakistan is the same as the sovereign status of any country outside the Commonwealth
It was however suggested that the Order made by the Governor General took Pakistan outside the category of a foreign power
In our opinion this is a fallacious argument because article 3673 itself states that for the purposes of the Indian Constitution Foreign State means any State other than India but the President and before the commencement of the Constitution the Governor General of India under article 3923 may by order declare any State not to be a Foreign State for such purposes as may be specified in the Order
In the Order the Governor General declared that every country within the Commonwealth was not a Foreign State for the purposes of the Constitution
In the Constitution of India there are various Articles in which the expression 790 Foreign State appears eg article 182 3 4 article 192 article 1021d and article 1911d
It is cleartherefore that under the Order for the purposes of these Articles or any other Article where the expression Foreign State appears that expression would not cover a country within the Commonwealth unless Parliament enacted otherwise
The Order cannot be brought into aid for the purposes of construing the expression foreign affairs appearing in item 9 of List 1 of the Seventh Schedule and the expression foreign powers in section 3 of the Act
These expressions must be construed in the ordinary way giving the words their ordinary meaning
We have no doubt that Pakistan is a foreign power
Under the provisions of the Act the Central Government and the State Governments could detain a person who was acting in a manner prejudicial to the relations of India with foreign powers which would include Pakistan
It is to be further remembered that neither in the order of detention nor in the grounds of detention there is any mention of Pakistan specifically
On the contrary in the grounds of detention it is clearly stated that the cumulative effect of the petitioner s activities was prejudicial to the relations of India with foreign powers in general vide grounds 3 and 4
The grounds of detention refer to the publication in a foreign newspaper of despatches of news and views relating to the State of Jammu and Kashmir containing false incomplete one sided and misleading information and about the policy of the Government of India in relation to that State
The extracts of the despatches sent by the petitioner to the foreign newspaper annexed to the grounds of detention show that they are not only prejudicial to the Government of India vis a vis Pakistan but they are prejudicial to the relations of India with foreign powers in general the subject of the affairs of the State of Jammu and Kashmir not being a matter of interest solely to Pakistan but also of interest to other foreign powers
Coming now to objections made as to the grounds of detention  regarding ground No 1 it was urged that this ground was outside the scope of the order of 791 detention
This ground mentions that the petitioner is engaged in carrying on propaganda against the Government of India and the Government of the State of Jammu and Kashmir in such a manner as to bring these two Governments into hatred and contempt
In our opinion it cannot be said that this ground is beyond the scope of the order of detention because the bringing of the Government of India and the Government of the State of Jammu and Kashmir into hatred and contempt does involve the security of India
Regarding ground No 2 it was urged that it does not disclose a single suggestion about the subversive activities of the petitioner nor does it disclose what portions of the despatches were false incomplete misleading or one sided
It was further pointed out that this ground speaks of the conditions in India in general and the policy of the Government of India in relation to the State of Jammu and Kashmir
What the policy of the Government of India is concerning that State is not stated
All these allegations were so vague that they gave no real opportunity to the petitioner to make a representation
Similarly concerning grounds 3 and 4 it was urged that the grounds did not disclose what was the cause of India in relation to the State of Jammu and Kashmir
Here again sufficient particulars were not given to enable the petitioner to make an effective representation to the Advisory Board
In our opinion none of these contentions has any substance because with the grounds of detention were annexed extracts from the despatches sent by the petitioner to the newspaper  Dawn  published in Pakistan
These extracts gave sufficient particulars to enable the petitioner to make a represen tation with respect to all matters stated in the grounds of detention
Coming now to the submission that the respondent s case was heard before the petitioner s case and in his absence and that copies of further materials placed before the Advisory Board by the respondent were not supplied to the petitioner it is necessary to refer to the procedure to be adopted by the Advisory Board under 101 792 the provisions of the Act
Under section 9 in every case where a detention order has been made the appropriate Government must within 30 days from the date of detention place before the Advisory Board the grounds on which the order has been made and the representation if any made by the detenus and in a case where an order has been made by an officer also the report by such officer under sub section
3 of section 3
Section 10 sets out the procedure which the Advisory Board must follow when reference has been made to it under section 9
Section 101 states   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 any person called for the purpose through the appropriate Government or from the person concerned and if in any particular case it considers it essential so to do or if the person concerned desires to be heard after hearing him in person submit its report to the appropriate Government within ten weeks from the date of detention
 It is clear from these provisions that the Advisory Board after considering the materials placed before it under section 9 can call for further information from the appropriate Government and that thereafter if in any particular case it considers it essential so to do or if the detenue desires to be heard after hearing him submit its report to the appropriate Government
In such a situation the Advisory Board must of necessity obtain further information from the appropriate Government before it hears the detenue
In our opinion there is nothing in section 10 which offends against the principles of natural justice
Furthermore the petition does not assert as a matter of fact that the respondent s case was heard in the absence of the petitioner
Indeed the respondent s affidavit does not admit that any such thing happened
As for the copies of the further materials placed by the respondent before the Advisory Board not being supplied to the petitioner it has to be observed that in paragraph 3 of the grounds of detention it was 793 clearly stated that the Central Government considered it against public interest to disclose to the petitioner any facts or particulars as to dates persons places nature of activities and the assistance given by him other than those which had already been mentioned in the grounds of detention
Under article 226 of the Constitution it is clearly stated that nothing in cl
5 of that Article shall require the authority making an order of detention to disclose facts which such authority considers to be against public interest to be disclosed
In the present case the authority concerned had declined to disclose in the public interest any facts or particulars as to dates persons places nature of activities and the assistance given by the petitioner other than those which had already been mentioned in the grounds of detention
In such circumstances it would have been entirely inappropriate for the respondent to supply copies of the further materials placed before the Advisory Board although the Advisory Board may have required further information in order to satisfy itself The petition is accordingly dismissed
Petition dismissed


Summary:
The confession of an accused person against a co accused is not evidence in the ordinary sense of the term
It does not come within the meaning of evidence contained in sec
3 of the Indian Evidence Act inasmuch as it is not required to be given on oath nor in the presence of the accused and cannot be tested by cross examination
It is a much weaker type of evidence than the evidence of an approver which is not subject to any of these infirmities
Such a confession can only be used to tend assurance to other evidence against a co accused
The proper way to approach a case of this kind is first to marshal the evidence against the accused excluding the confession alto gether from consideration and see whether if it is be lieved a conviction could safely be based on it
If it is capable of belief independently of the confession then it is not necessary to call the confession in aid
But cases may arise where the judge is not prepared to act on the other evidence as it stands even though if believed it would be sufficient to sustain a conviction
In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify him self in believing what without the aid of the confession he would not be prepared to accept
Bhuboni Sahu vs The King 76 IA 147 relied upon
Emperor vs Lalit Mohan Chuckerbutty at 588 and In re Periyaswami Moopan ILR referred to
A conviction can be based on the uncorroborated testimo ny of an accomplice provided the judge has the rule of caution which experience dictates in mind
Rameshwar vs State of Rajasthan  referred to
The rule of caution is that save in exceptional circum stances one accomplice cannot be used to corroborate anoth er nor can he be used to corroborate a person who though not an accomplice is no more reliable than one
It is not proper or desirable for the prosecution to examine as a witness the magistrate who recorded the confes sion 527