minal Appeal No 116 of 1973
Appeal by special leave from the judgment and order dated May 28 1973 of the Punjab and Haryana High Court at Chandigarh in Criminal Writ No 9 of 1973
B K Garg and section C Agarwala for the appellant
V M Tarkunde section K Mehta and R N Sachthey for respondents Nos 1 and 2
The Judgment of the Court was delivered by ALAGIRISWAMI J
This is an appeal against the judgment of the High Court of Punjab  Haryana dismissing the appellant s petition under Article 226 of the constitution of India read with section 491 Cr
PC for the issue of a writ in the nature of habeas corpus or any other appropriate writ order or direction for his production before the Court and to be set at liberty
The appellant is a British citizen
employed in the Accounts Branch
Head Post Office Brimingham and General Secretary of the United Kingdom Akali Dal
He came to India oil 6 11 1972 to attend the Bhog ceremony of Sant Fateh Singh who died on 30th October 1972
He was arrested on 16A 1 1972 in pursuance of an order for his detention under the provisions of sub section 2 of section 3 read with section 3 1 a i  ii of the 
This order was approved by the State Government oil 27 11 1972
The Advisory 664 Board s report in respect of the detention was made on 4 1 1973 and the State Government confirmed the order of detention on 16 1 1973
The grounds of detention were as follows  a That you on 11 11 72 held secret meeting in Gurdwara Rani Bazar Sharifpura Amritsar at 700 pm 
In the meeting you told them that the Sikhs could not get justice at the hands of Hindus in India
Therefore it was necessary to secure Home Land for Sikhs by resorting to the use of force as the Bania Government at the Centre could not accept the demand of Sikh Home Land by persuasion or other peaceful means
You further assured them that there was no paucity of funds with U K Akali Dal and sufficient amount could be made available which could be spent in the achievement of Home Land on the lines suggested above
You also informed them that your organisation UK Akali Dal had made  Rs 50000available in India for use for the achievement of the Home Land
You further told them that you could also be receiving sufficient money from your organisation in UK in the near future
You further exhorted them to organise the movement in a systematic manner raising volunteers and setting offices at suitable places in Punjab
You further directed them to collect arms explosives etc for use for the achievement of the object at the proper time
You further instigated them to create hatred amongst Hindus and Sikhs and cause communal disturbances in Punjab
You also advised them to enlist large number of paid workers who could work as suicide squads at the proper time and till then their services could be used in doing propaganda in the villages for creating favorable atmosphere amongst the Sikh masses in support of the creation of Sikh Home Land
b That you on 12 11 1972 again addressed a secret meeting in Gurdwara Rani Bazar Sharifpura Amritsar at 800 pm 
In this meeting you instigated them that the Sikh community could not survive in India in the present Hindu Raj
Therefore the Sikhs must secure separate Home Land by force so that they could live with honour and dignity
You further added that Sikhs could only prosper if separate Home Land for Sikhs is achieved
You further instigated them that they would have to make all sorts of efforts including use of arms and indulgence in violence in order to achieve the Home Land
You further exhorted them to enlist the services of young elements in the Sikhs 665 who would work wholeheartedly for the achieve ment of the Home Land and were prepared to make big sacrifices
You further informed them that your Organisation UK Akali Dal would be prepared to provide them with any amount they would be requiring for organising the movement and for purchasing the arms etc
You further suggested that they should create cells in the Sikh Units of Armed Forces of India and police for enlisting their sympathy and support which would be of great help for the creation of the Home Land
You also instigated them to create hatred amongst the Hindus and Sikhs in order to create tension and communal disturbances which would be great help in achieving their object
c That you again on 14 11 1972 addressed another meeting at Jullundur 
In this meeting you told the participants that if the Sikh Home Land was not achieved the Sikhs would be reduced to status of Ghasiaras  and they could not live an honorable life like a free citizen of India and further told them that the Panth created by sacrifices of great Gurus would be eliminated
You further instigated them that the Sikhs would have to make all sorts of sacrifices to achieve the Home Land for Sikhs
You also suggested to them that the active workers should propagate the ideology of Sikh Home Land amongst the Sikh masses particularly in youth and students
You further assured them that you would arrange funds for them from UK for the purchase of arms which could be used in the struggle for the Home Land
The also suggested that the Sikhs who go to UK should be asked to get arms licenses in India and they would be provided arms in UK by  him free of cost
They on return could make use of these arms in the struggle for the Home Land
You also instigated them to create tension amongst the Hindus and Sikhs and cause communal disturbances
You also suggested the participants that they should propagate in the Sikh masses that the Sikhs were being given step motherly treatment in the matter of selection of services in the Bania  Govern ment and to the Sikh agriculturists
AR the participants assured you to work on the lines suggested by you To complete the narration of facts it is necessary to refer to the proceedings of the Punjab Legislative Assembly on 7 3 1973 in which the Chief Minister of Punjab replying to a representation for the release of the appellant from detention did not mention any of the grounds contained in the order of detention but sought to justify it by saying that the petitioner was in Pakistan at Nankana Sahib at the time of Guru Nanak s Birthday in November 1971 alongwith a Pakistani 666 official that he had been photographed getting down from a Pakistani plane and that he had made a statement to a newspaper that India was a prison house for Sikhs  The petitioner had also alleged in his writ petition that when the Prime Minister of India visited England in 1971 the Sikh community residing in the UK had staged a demonstration expressing its concern against the Government of India s interference in the management of Sikh Gurdwaras of Delhi State by taking over the management of the Gurdwaras and handing over the same to a Board nominated by it from amongst its own henchmen that the Prime Minister of India was annoyed and irritated on account of this demonstration and the petitioner being one of the foremost organisers of that demonstration incurred the displeasure of the Prime Minister s partymen and under their direction a false story has been concocted to harass him and to prevent him to return to England to join his service
Nothing was however said about this during the course of the arguments
Mr Garg did not seek to argue nor could he argue that any of the grounds given for the appellant s detention were vague or irrelevant
It is now settled law that preventive detention is not a punishment for the past activities of a person but is intended to prevent the person detained from indulging in future in activities which may produce the results mentioned in section 3 of the 
It is also well settled that the Court will not go into the truth or otherwise of the facts alleged as grounds of detention
The sufficiency of the grounds for detention is not also a matter which the court will go into
There can also be so doubt that the appellant s activities detailed in grounds a to c bring his case squarely within the ambit of sub clauses i  ii of clause a of subsection 1 of  Section 3 of the 
The argument however was advanced that in respect of a foreign clause a of sub section 31 should be read along with clause b of that sub section and if so read an order of detention in respect of  a foreigner can only be made with a view to regulate his continued presence in India and to making arrangements for his expulsion from India
It was therefore urged that as the appellant had made arrangements for his departure to England on 18 12 1972 his detention for purposes other than that of regulating his presence in India or making arrangements for his expulsion from India was illegal
It was also urged that even at this stage the appellant is anxious to go to England and that he would be satisfied if an order is made to take him wider proper escort and put him on a plane leaving for England
We are not impressed with this argument
The power of a State to deal with foreigners committing offenses inside its territory is not ill dispute The power of a State to detain even a foreigner who is found inside its territory in order to prevent him from indulging in prejudicial activities inside its territory cannot also be questioned
Mr Garg did not seek to question the power of Parliament to legislate with regard to that subject
But he contended however that the power of Parliament in respect of preventive detention is found in Entry 9 of List I Schedule VII of the Constitution
and the power of the Parliament 667 and the State Legislature in entry 3 of the Concurrent list that clause b of section 31 of the Will not fall under either of those entries and that only clause a will fall within the ambit of that power and the power given by clause b can therefore be used only in aid of the power given by cause a
We are unable to accept this contention either
Clause a and clause b deal with two different kinds of powers
Under clause a the power is given to the State to detain any person including a foreigner for any of the purposes mentioned in that clause
Under clause b power is given to detain a foreigner either for regulating his continued presence in India or for making arrangements for his expulsion irom India
It is within the competence of the detaining authority to exercise the power conferred on it under clause a or clause b
In this case the order of detention is made under clause a and therefore clause b does not come into picture at all
We are not able to agree with the contention that clause b would be beyond the legislative competence of Parliament unless it is interpreted in the manner in which Mr Garg wants it to be interpreted
It is well established that the various legislative entries should be interpreted in a broad manner and if any legislation could be brought within the ambit of any one or other of the legislative entries the validity of that legislation cannot be questioned
Entry 10 List I Schedule VH Foreign Affairs all matters which bring the Union into relation with any foreign country would certainly cover clause b
We may also refer to the which confers much more stringent powers in relation to a foreigner than clause b
It has not been argued that those powers are not valid or that the is not a valid piece of legislation
We may legitimately presume that the laws of various countries of the world confer similar powers on their respective Governments in relation to foreigners
In Hans Muller of Nurenburg vs Superintendent Presidency Jail Calcutta  Ors1 this Court held that section 31b of the  which is exactly similar to clause b of section 31 of the  as well as section 3 2c of the  on which it is based are not ultra vires of the Constitution
It was also held that section 31 b of the is reason
ably related to the purpose of the Act namely preventive detention
 inasmuch as the right to expel a foreigner conferred by section 3 2 of the Foreigners Art on the Central Government and the right to make arrangements for expulsion include the right to make arrangements for preventing any breach or evasion of the order and the confers the power to use the means of preventive detention as one of the methods of achieving this end
This decision does not mean that section 3 1 a could not be used for the purposes for which it is plainly intended We are conscious that the whole question at issue in this case is not whether the appellant could be detained in order that he might be expelled but whether he could continue to be detained except for that purpose
In the face of the very clear provisions of section 3 1  a 1 668 we have no doubt on that point
Indeed the Parliament to have specifically contemplated the contingency and provided for it
It is not only in a case where a foreigner wants to continue in India that the power is available but even where in order to avoid preventive detention he offers to go out of the country
it was urged that to place such an interpretation on this provision would be contrary to Article 51 of the Constitution that if it all possible the section should be so interpreted as not to conflict with the provisions of Article 51
We see no such contradiction if it is interpreted as we have done
Reliance was placed upon a statement in Starke s Introduction to International Law 7th Edn found at page 348 where it is stated that Detention prior to explosion should be avoided unless the alien concerned refuses to leave the State or is likely to evade the authorities
Reference was also made to Oppoenheim s International Law 7th Edn where at page 631 it is stated that Just as a State is competent to refuse admission to an alien so in conformity with its territorial supremacy it is competent to expel at any moment an alien who has been admitted into its territory
 It was urged that is the only power which State has in dealing with an alien who had come to a country under a passport which as was held by Lord Alverstone CJ in Rv
Brailsford 1 is a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual intended to be presented to the Governments of foreign nations and to be used for that individual s protection as a Britsh subject in foreign countries
It was therefore urged that to detain a foreigner who has come to the country with a passport would be a breach of international amity
It is obvious in this case that the appellant taking advantage of the fact that by race he is an Indian proposed to indulge in activities which are a danger to the integrity and security of this country
The first duty of a state is to survive
To do so it has got to deal with enemies both overt and covert whether they be inside the country or outside
This fact that the appellant if released would go to England and from there continue to indulge in activities prejudicial to the security and integrity of this country is a relevant factor in determining whether he could be detained in this country when he is found in this country
It is not necessary for the purposes of this case to consider whether if the appellant had not come to this country at all and stayed in England and continued to indulge in activities prejudicial to the integrity and safety of this country a detention order could be passed against him and he could be brought to this country
Even persons whether they are Indian citizens or foreigners
who have committed crimes in this country but have escaped to another country could be brought back only if there are extradition arrangements with the country to which they have escaped and the offence is an extraditable offence
We are aware that there is no law in this country providing for extradition of persons against whom this country would consider it necessary to pass an order for Preventive detention
It is not to be assumed that this country Will indulge in such a useless and pointless exercise
But that is quite different from saying that there cannot be 1 669 a law in this country providing for such detention
But if such a person happens to come to this country we presume he can be detained
We do not accept the argument that a person like the appellant could be detained only if it is apprehended that if not detained he would indulge in prejudicial activities in this country and not if his activities are outside this country even though they may have a prejudicial effect on this country
Take the case of a person acting prejudicially to the security of a State in this country while residing in another State
We have no doubt that he can be detained by the former State
The same analogy applies to this case
International Law does not seem to deal with the case of nationals of one country acting in that country to the prejudice of the security and integrity of another country and whether anything could be done about them
To allow a person like the appellant to go bac k to England at his request in spite of the certainty that while in England he will continue to indulge in activities prejudicial to the security and integrity of this country would be like the action of some foolish people who take a rat caught in a trap in their house to the road and release it
It was urged that only where the grounds of detention were based on facts which can be held to amount to an offence either in India or in a foreign country for which he could be punished could he be detained
We are not able to appreciate the import of this argument
As is well known preventive detention is not a punishment for an offence
To accept the argument on behalf of the appellant would make the grounds given in section 31 of the meaningless
Take for instance action prejudicial to the relations of India with foreign powers
As far as we are aware there is no law enabling anybody in India to be punished for acting in a mannerprejudicial to the relations of India with foreign powers
it cannothowever be argued that detention on that ground is not permissible
Take again the case of activities prejudicial to the Defence of India
For the present of course we have the Defence of India Act still in force
Let us assume a period when it was not in force does it mean that a person acting in a manner prejudicial to the defence of India cannot be detained even though there is no law dealing with that question
That is why the  which was passed when there was no war and no emergency provided for detention on the same grounds as in 
In the absence of a law dealing with that question naturally enough the will have to decide whether the activity for which a person is detained is one prejudicial to the defence of India so also an activity prejudicial to the security of India
Defence of a country or the security of a country is not a static concept
The days are gone by when one had to worry about the security of a country or its defence only during war time
A country has to be in a perpetual state of preparedness
Eternal vigilance is the price of liberty
So it is that the founding fathers with considerable wisdom and foresight provided for laws for preventive detention and the limitations thereon mentioned in Article 22 of the Constitution
Preventive detention is of course an anthema to champions of individual liberty
But times being what they are the Constitution makers in their wisdom have 670 provided for it
It is not necessary to give further examples to show that prejudicial activities contemplated under section 31 of the are not necessarily activities prohibited or made punishable by a specific provision of law
The cases relied upon to support the contrary proposition should be confined to the facts of those cases
The only other question that remains to be dealt with is the one that arises out of the statement of the Chief Minister of Punjab in the Legislative Assembly on 7 3 1973
The argument is that the Chief Minister s reply shows that the appellant has been detained and is continued to be detained not for the reasons which were intimated to him in the form of grounds of detention but really for the reasons mentioned in the Assembly and the detention is therefore bad
It is pertinent to remember in this context firstly that the order for the detention of the appellant was made by the District Magistrate of Amritsar
He could not have known of the activities of the appellant which the Chief Minister mentioned in the Assembly
Secondly the approval by the Government of Punjab of the appellant s detention was made on 16 1 1973
There
is nothing to show that on that day the Government of Punjab knew of the matters which the Chief Minister brought up in the Legislative Assembly on 7 3 1973 and the detention was approved by the Government only for those reasons
We arc not prepared to assume as was urged on behalf of the appellant that the three matters mentioned in the Chief Minister s speech should have come to the notice of the Indian High Commission as soon as they took place and that they should have alerted the Punjab Government at once
There is no warrant for such an assumption
Except that one of the activities is said to be in 1971 we do not even know about the dates of the others
Moreover the Chief Minister s reply was in answer to the demand of the Akali Dal Party for the appellant s release
The grounds of appellant s detention must have been known to them
The Chief Minister should therefore have been giving them additional information which came to his knowledge subsequently
We are not therefore prepared to assume that the grounds for approval of the appellant s detention were not the same grounds on which he was detainedbut some others and therefore malice in law has been established
Furthermore by a Presidential order Articles 14 19 and 22 of theConstitution have been suspended during the subsistence of the Proclamation of Emergency
This contention is based on decisions of this Court interpreting Article 22
They are therefore irrelevant in considering a petition under section 491 Cr
We see no merit in the points raised on behalf of the appellant
The appeal is dismissed


Summary:
The appellant a British citizen was detained under section 32 read with section 3 1 a i and ii of 
The grounds of detention were that he was engaged in subversive activities by instigating and creating hatred between the Hindus and Sikhs and by calling upon the Sikhs to establish a separate homeland by resorting to violent methods
In reply to I representation by the Akali party for the release of the appellant from detention the Chief Minister of Punjab stated in the State Assembly that the appellant was in Pakistan in November
1971 alongwith a Pakistani official that he had been photographed getting down from a Pakistani plane and that he had made a statement to a newspaper that India was a prison house for Sikhs but he did not mention any of the grounds contained in the order of detention
The appellant s petition for the issue of a writ of habeas corpus on the ground that he had made arrangements to leave the country was dismissed by the High Court
Dismissing the appeal to this Court HELD  Clauses a and b of section 31 of the deal with two different kinds of powers
Under clause a power is given to the State to detain any person including a foreigner for any of the pur poses mentioned therein and under el
b power is given to detain a foreigner either for regulating his continued presence in India or for making arrangements for his expulsion from India
It is not only in a case where a foreigner wants to continue in India that the power to detain under el
a was available but it is available even where in order to avoid preventive detention the foreigner offers to go out of the country
667 B C 2It is not correct to say that el
b is beyond the legislative competence of Parliament and that therefore the order under el
a could only be made with a view to regulate the presence of the appellant in India and not when the appellant wanted to leave India
It is well established that various legislative entries should be interpreted in a broad manner and if any legislation could be brought within the ambit of any one or other of the legislative entries the validity of the legislation cannot be questioned
Entry 10 List I Schedule VII to the Constitution deals with foreign affairs and all matters which bring the Union into relations with a foreign country would certainly cover el
Therefore it is within the competence of the detaining authority to exercise the power conferred on it either under el
a or
667 C D 3The decision of this Court in Hants Muller of Nurenburg vs Superintendent Presidency fail Calcutta that section 31b of Preventive Detention Act which is exactly similar to section 3 1 b of the conferred power to use the means of preventive detention as one of the methods of achieving expulsion of a foreigner does not mean that section 3 1 a of the cannot be used for the purpose for which it is plainly intended
667 E F 4The appellant taking advantage of the fact that by race he is an Indian proposed to indulge in activities which were a danger to the integrity and security 663 of tile country
The first duty of the State is to survive
To do SO it had got to deal with enemies both overt and covert whether they be inside the country or outside
The fact that the appellant if released would go to England and from there continue to indulge in activities prejudicial to the security and integrity of this country was a relevant factor in determining whether he could be detained when he was found in this country
It is true that there is no law in this country providing for extradition of persons against whom this country would consider it necessary to pass an order for preventive detention
But if such a person hap pened to come to this country he could be detained
It is not correct that a person like the appellant could be detained only if it was apprehended that if not detained he would indulge in prejudicial activities within the country
669 E F H 5Preventive detention is not a punishment for an offence
To accept the argument of the appellant that only where the grounds of detention were based on facts which could be held to amount to an offence either in India or in a foreign country that he could be detained would make the grounds given in section 31 of the  meaningless
Preventive detention is an anathema to champions of individual liberty but times being what they are the Constitution makers in their wisdom have provided for it in article 22
In the absence of a law dealing with the matter the courts will have to decide whether the activities for which a person was detained was one prejudicial to the defence and security of India
669 D EH 6The District Magistrate who made the order of detention could not have known of the activities of the appellant which the Chief Minister mentioned in the Assembly
Moreover the Chief Minister s reply was in answer to a demand of the party for the appellant s release
The grounds of the appellant s detention must have been known to them
The Chief Minister was therefore only giving them additional information which came to his knowledge subsequently
There fore it could not be contended that the grounds for approval of the appellant s detention were not the same grounds on which he was detained but some others Hence no malice in law has been established
670 C E F