minal Appeals Nos
109 111 of 1963
Appeals from the judgment and order dated May 31 1963 of the Bombay High Court in Criminal Applications Nos 217 218 and 114 of 1963
The appellants in Cr A Nos 109  110 of 1963 appeared in person
Janardan Sharma and Appellant also for the Appellant in Cr A No 111 of 1963
N section Bindra and R H Dhebar for respondents in Cr A Nos
109 111 of 1963
Purushottam Trikamdas and R H Dhebar for the respondents in Cr A No 110 of 1963
449 January 29 1964
The Judgment of the Court was delivered by WANCHOO J
These three appeals on certificates granted by the Bombay High Court raise common questions of law and will be dealt with together
They arise out of three habeas corpus petitions filed by the appellants in the High Court under section 491 of the Code of Criminal Procedure challenging their detention under r 30 of the Defence of India Rules hereinafter referred to as the Rules
A large number of constitutional questions were raised in the applications and were decided by the High Court against the appellants
These appeals came up for hearing in August 1963 along with some other appeals from decisions of other High Courts and the constitutional questions were decided by this Court on September 2 1963 see Makhan Singh Tarsikka vs State of Punjab 1
It was held therein that the applications under section 491 1 of the Code of Criminal Procedure were incompetent in so far as they sought to challenge the validity of the detention on the ground that the Defence of India Act and Rules framed thereunder suffer from the vice that they contravened the fundamental rights guaranteed by articles 14 21 224 5 and 7
The other points raised in the appeals were not considered at that time and it was directed that the appeals should be set down for hearing before a Constitution Bench to be dealt with in accordance with law
Consequently these appeals have been put up before this Bench for disposal of the other points raised therein
A preliminary objection has however been raised on behalf of the State to the hearing of these appeals on the ground that the orders under which the appellants were detained and which are under consideration in these appeals had been revoked by the State Government and fresh orders of detention had been passed and in consequence these appeals had become infructuous
Reliance in this connection is placed on the decision of the Federal Court in Keshav Talpade vs King Emperor2
In that case the detenu was released while his appeal was pending before the Federal Court
It was however urged on his behalf that even 1 ATR 2 134 859 SC 29 450 though he had been released and no order could thereafter be made on the habeas corpus application the court should pronounce an opinion on the correctness of the High Court a  judgment
The Federal Court refused to do so and dis missed the appeal on the ground that no order in the appeal could be made after the release of the detenu
Generally speaking no useful purpose would be served by the appeal court deciding the appeal in a habeas corpus matter where the detenu has been released before the appeal comes up for final hearing
But the facts in the present case are different
Here what has happened is that the earlier order of detention which is the basis of the present appeals has been revoked by the Government of Maharashtra on the ground of a technical defect and a fresh order of detention was passed on the same date and the appellants were immediately rearrested after their release from jail under the fresh order of detention
In the Federal Court case however it appears that the detenu was released and there was no question of a fresh order of detention being made on the same day leading to his re arrert
In the circumstances it is urged by the appellants that though technically the appellants were released before the present appeals came up for final hearing in substance they are under detention even now and the points of law raised by them
against the earlier order of detention will apply equally to the fresh order of detention
It is therefore urged that the Court should decide the present appeals as that would settle the law and help the detenus in case they make fresh application under section 491 of the Code of Criminal Procedure against the fresh order of detention
It is further urged that the appellants intend after the emergency is over to sue for damages for false imprisonment and the order of the Bombay High Court would stand in their way in case such a suit is brought and therefore an authoritative pronouncement on the questions of law raised should be made by this Court in the present appeals even though technically the order out of which the present appeals have arise  in has been revoked
We are of opinion that the circumstances of the present cases are different from the circumstances in Keshav Talpade scase1 and therefore it would be in the interests of justice to decide 1 451 the points raised in the present appeals
We may add that there is nothing to preclude this Court from deciding the appeals even though the order from which these appeals have arisen has been revoked though ordinarily this Court would not do so
But as we have already indicated it seems to us just and fair in view of the fact that the appellants have not been filially released and are still under detention under a fresh order of detention under the Rules that the points raised in these appeals should be decided
The points are of general importance and are likely to arise in many cases
We therefore over rule the preliminary objection
The facts in the three appeals are similar and we shall therefore briefly refer to the facts in Appeal No 1 1 0 for the purposes of dealing with the points raised on behalf of the appellants
The appellants were first detained on November 7 1962 by an order made by the Commissioner of Police Greater Bombay under the  No IV of 1950
The matter was then reported to the Government
Before this however the security of India had been threatened by the Chinese invasion and an Emergency had been declared under article 352 of the Constitution
Further on October 26 1962 the Defence of India Ordinance 1962 was passed followed by the Rules framed thereunder
When the matter came before the Government it decided that the order of November 7 1962 made by the Commissioner of Police should be revoked and ordered accordingly on November 10
On the same day the Government decided to detain the appellants and passed an order under r 30 of the Rules
This order said that with a view to preventing the appellants from acting in a manner prejudicial to the defence of India the public safety and the maintenance of public order it was necessary to detain them
and therefore in exercise of the powers conferred upon the Government by r 30 of the Rules the Government directed the detention of the appellants
This order was served on the appellants in jail
It was challenged by the appellants by filing habeas corpus petition under article 226 of the Constitution and under section 491 of the Code of Criminal Procedure
The 452 High Court as already indicated dismissed the applications but granted leave to the appellants to appeal to this Court
The constitutional points raised as already indicated were decided by this Court on September 2 1963 and now we are concerned with the other points raised on behalf of the appellants
The first contention that has been urged is that the de tention is illegal inasmuch as the detention order was served on the appellants while they were in jail and reliance in this connection is placed on the judgments of this Court in the cases of Rameshwar Shaw vs District Magistrate Burdwan1 and Makhan Singh Tarsikka vs The State of Punjab2
In those cases it was held by this Court that where a person is detained in jail as an under trial prisoner no order of detention either under the preventive Detention Act or under the Rules could be served on him because one of the necessary ingredients which go to make up the satisfaction of the detaining authority is necessarily absent in such a case
It was pointed out in Rameshwar Shaw s case1 that before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner the authority has to be satisfied that if the person is not detained he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time
If a person is already in jail custody how can it rationally be postulated that if he is not detained he would act in a prejudicial manner At the point of time when an order of detention is going to be served on a person it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention The same principle was reiterated in the case of Makhan Singh Tarsikka2
There is however a vital difference between the facts of those two cases and the facts in the present appeals
Those two cases were concerned with the service of an order of detention under the or under the Rules on a person who was in jail in one of two 1 A I 1964 SC 334
2 A I R 453 circumstances namely 1 where he was in jail as an under trial prisoner and the period for which he was in jail was indeterminate or 2 where he was in jail as a convicted person and the period of his sentence had still to run for some length of time
In those cases the service of the order of detention under the or under the Rules in jail would not be legal for one of the necessary ingredients about which the authority had to be satisfied would be absent namely that it was necessary to detain the person concerned which could only be postulated of a person who was not already in prison
In the present cases however the appellants were not under detention either as under trial prisoners for an indeterminate time or as convicted persons whose sentences were still to run for some length of time
They were detained under the Pre ventive Detention Act by an order of November 7 1962 which had been reported to Government for approval and which order could only remain in force for 12 days under section 3 3 of the unless in the meantime it had been approved by the State Government
The State Government however decided on November 10 1962 to revoke the order of the Commissioner of Police under the and to pass an order itself under the Rules
In those circumstances the principle of the two cases referred to above would not in our opinion apply for the detention of the appellants depended upon the approval of the State Government
The State Government however decided to revoke the order of November 7 1962 and instead decided to pass an order under the Rules on the same day namely November 10 1962
In these circumstances it would be in our opinion an empty formality to allow the appellants to go out of jail on the revocation of the order of November 7 and to serve them with the order dated November 10 1962 as soon as they were out of jail
Where the detention is not of the two kinds considered in the cases of Rameshwar shaw1 and Makhan Singh Tarsikka 2  and is either under the or under the Rules and its duration is dependent upon the will of the State Government we cannot see any reason for holding that if the State Government decides 1964 SC 334
2 A I R 1964 SC I 120
454 to revoke an earlier order of detention it cannot pass a fresh order of detention the same day and serve it on the detenu in jail for the two orders are really of the same nature and are directed towards the same purpose
Further the order of the Commissioner dated November 7 1962 was subject to the approval of the State Government without which it could only be in force for 12 days
In these circumstances the order passed by the State Government on November 10 under the Rules when it had decided to revoke the order of November 7 1962 would in our opinion be perfectly valid so far as the time of the making of the order was concerned and its service in jail on the persons who were detained not as under trials or as convicted persons but as detenus could not be assailed on the ground on which the order of detention was assailed in the cases of Rameshwar Shaw1 and Makhan Singh Tariskka2
The principal of those two cases cannot in our opinion be applied to a case where a fresh order of detention is passed after the cancellation or revocation of an earlier order of detention
The contention therefore that the making of the order of detention on November 10 1962 or its service in jail in these cases makes the detention illegal must be negatived
It is next urged that the detaining authority has failed to arrive at that kind of satisfaction which the Rules require
This contention is based on the words of the order dated November 10 1962
Rule 30 inter alia lays down that the State Government if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence the public safety the maintenance of public order India s relations with foreign powers the maintenance of peaceful conditions in any part of India the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community it is necessary so to do may make an order directing that the person be detained
Now the order of November 10 1962 is in these terms No SBIIIDOR1162 IV Home Department Special 1  2 AIR 1964 SC1120 455 ORDER Whereas the Government of Maharashtra is satisfied with respect to the person known as Shri Shamrao Vishnu Parulekar of Bombay that with a view to preventing him from acting in a manner prejudicial to the defence of India the public safety and the maintenance of pub lic order it is necessary to make the following order Now therefore in exercise of the powers conferred upon it by rule 30 of the Defence of India Rules 1962 the Government of Maharashtra does hereby direct that the said Shri Shamrao Vishnu Parulekar be detained
By order and in the name of the Governor of Maharashtra Sd
Deputy Secretary to Government of Maharashtra Home Department Sachivalaya Bombay this 10th day of November 1962
The contention of the appellants is that the first part of the order does not say that it is necessary to detain the appellants
The words used in the first part of the order are it is necessary to make the following order and then follows the second part which says that the Government directs that the said person be detained
We are of opinion that when the first part says it is necessary to make the following order it in effect says that it is necessary so to do which is what r 30 of the Rules requires
Reading the order as a whole in substance it does say that it is necessary to detain the person with a view to preventing him from acting in a manner prejudicial to the defence of India etc
In r 30 the words are so to do while in the order they are to make the following order
The two expressions in our opinion mean the same thing and we cannot 456 accept the argument that the satisfaction necessary under r 30 of the Rules was not arrived at in these cases by the authority making the order
Then it is urged that as the State Government is equivalant to the Governor it is the Governor who should
be satisfied and not the Home Minister as is the case according to the affidavit filed on behalf of the State Government
The State Government in this connection relies on the Rules of Business copy of which has been made available to us
These rules have been framed by the Governor under article 166 of the Constitution for the more convenient transaction of the business of Government and for the allocation among Ministers of the said business
In the affidavit on behalf of the State Government reliance is placed on item 2 b of the First Schedule to the Rules of Business dealing with subjects allocated to the Home Department Special entry 7 which provides for preventive detention for reasons connected with the security of a State the maintenance of public order or the maintenance of supplies and services essential to the community
During the hearing our attention was drawn to item 1 of the First Schedule to the Rules of Business dealing with subjects allotted to General Administration Department entry 44 which provides for preventive detention for reasons connected with defence foreign affairs or the security of India
It is obvious from the Rules of Business that preventive detention has been divided into two parts and allocated to two different departments
Where preventive detention is for reasons connected with the security of a State the maintenance of public order or the maintenance of supplies and services essential to the community it can be dealt with by the Minister in charge of item 2 b dealing with subjects allocated to the Home Department Special but where the preventive detention is for reasons connected with defence foreign affairs or the security of India it can be dealt with by the Minister in charge of item 1 relating to subjects allotted to the General Administration Department
The detention order in the present cases states that it was made with a view to preventing the appellants from acting in a manner prejudicial to the defence of India the public 457 safety and the maintenance of public order
As the deten tion order mentions both the defence of India and the maintenance of public order such an order could only be made by a Minister who was in charge both of item 1 relating to subjects allotted to the General Administration Depart ment and of item 2b relating to subjects allotted to Home Department Special
In the affidavit on behalf of the State the order was sought to be justified on the round that it was made by the Home Minister in charge of item 2 b relating to subjects allocated to the Home Department Special
We are of opinion that as the detention order was for reasons connected with the defence of India also it could not be dealt with under item 2 b entry 7 only which item deals with subjects allocated to the Home De partment Special and had to be dealt by a Minister who was in charge of both item 1 relating to subjects allotted to the General Administration Department and item 2 b relating to subjects allotted to Home Department Special
In the original affidavit filed on behalf of the State it was however not clear whether the Minister who dealt with these orders was also in charge of the subjects allotted to the General Administration Department but it was stated at the bar that the Minister who dealt with the matter and passed the order on the basis of which the appellants were detained was in charge not only of item 2 b relating to subjects allocated to the Home Department Special but was also in charge of item 1 relating to subjects allotted to the General Administration Department
We therefore called upon the State Government to file an affidavit to that effect and an affidavit was filed on December 21 1963
That affidavit says that the order of November 10 1962 was passed by the Chief Minister who was at the relevant time in charge both of the General Administration Department as well as the Home Department Special
We have already referred to the terms of the order of detention
That order refers to three reasons as the basis for the order namely i the defence of India ii the public safety and iii the maintenance of public order
Now preventive detention connected with the defence of India could only be ordered under the Rules of Business by the Minister who was in charge of the General Administration Department
458 while preventive detention for reasons connected with the maintenance of public order could only be ordered by the Minister in charge of subjects allocated to the Home Depart ment Special
The order therefore in the present case could only be made by a Minister who was in charge both of subjects allotted to the General Administration Department and subjects allotted to the Home Department Special
In view of the affidavit now filed it appears that the Chief Minister was in charge of both the departments and in the circumstances he could pass the order under challenge
The contention under this head must therefore fail
The next argument is that there is no order of allocation made by the Governor under article 166 of the Constitution after the passing of the Defence of India Ordinance and the Rules framed thereunder and therefore the allocation of business by the Rules of Business which were enforced by an order of the Governor dated May 1 1960 would not be of any effect in allocating the subject of preventive detention arising under the Defence of India Ordinance Act and the Rules to the Minister and the Governor should have passed the order of detention himself
We are of opinion that there is no force in this contention
Allocation of busi ness under article 166 2 of the Constitution is not made with reference to particular laws which may be in force at the time the allocation is made it is made with reference to the three lists of the Seventh Schedule to the Constitution for the executive power of the Centre and the State together extends to matters with respect to which Parliament and the Legislature of a State may make laws
Therefore
when allocation of business is made it is made with reference to the three Lists in the Seventh Schedule and thus the allocation in the Rules of Business provides for all con tingencies which may arise for the exercise of the executive power
Such allocation may be made even in advance of legislation made by Parliament to be available when ever Parliament makes legislation conferring power on a State Government with respect to matters in List I of the Seventh Schedule
It was therefore in our opinion not necessary that there should have been an allocation made by the Governor under article 166 3 of the power to detain under 459 the Defence of India Ordinance Act and Rules after they were passed it will be enough if the allocation of the sub ject to which the Defence of India Ordinance Act and Rules refer has been made with reference to the three Lists in the Seventh Schedule and if such allocation already exists it may be taken advantage of if and when laws are passed
Preventive detention is provided for in List 1 item 9 for reasons connected with defence foreign affairs and the security of India and in item 3 of List III for reasons connected with the security of a State the maintenance of public order or the maintenance of supplies and services essential to the community
The allocation of business made under article 166 is in pursuance of these entries in the three Lists in the Seventh Schedule and would be available to be used whenever any law relating to these entries is made and power is conferred on the State Government to act under that law
The contention of the appellants that fresh allocation should have been made under article 166 3 by the Governor after the passing of the Defence of India Ordinance Act and Rules must therefore fail
Lastly reliance is placed on sections 40 and 44 of the Defence of India Act
Section 40 gives power to the Central Government to delegate its powers under the Act or the Rules to any officer or authority subordinate to the Central Government or to any State Government or any officer or authority subordinate to such Government or to any other authority and the argument is that before the State Government can exercise the power conferred by r 30 there has to be a delegation by the Central Government
This argument in our opinion is misconceived
It is true that section 40 gives authority to the Central Government to delegate its powers under the Act or the Rules to the State Government and others
But no delegation under that section is required for the exercise of the power under r 30 by the State Government for r 30 itself lays down that the power there in can be exercised by the Central Government or the State Government
No further delegation therefore was necessary in favour of the State Government in so far as the exercise of power under r 30 is concerned
460 Next it is urged that the order of detention does not show that section 44 was kept in mind when it was made
Section 44 lays down that any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence
It is urged that an order of detention necessarily interferes completely with the ordinary avocation of life of the person detained and therefore before such an order could be made section 44 should be borne in mind
Therefore the order of detention is to be made when it is the only way of carrying out the purposes of the Act for section 44 provides that there should be as little interference with the ordinary avocations of life as possible under the Act
The argument further is that r 30 1 provides as many as eight clauses which provide for the regulation of conduct of an individual and cl
b relating to detention which amounts to complete interference with the avocation of life of the detenu could only be resorted to in view of section 44 when it is shown that no other way of regulating the conduct of the person de tained as provided in the other clauses of r 30 1 would meet the needs of the situation
So it is urged that unless the order shows on the face of it that the State Government thought that the detention was the only mode in which the purposes of the Act and the Rules could be carried out the order would be bad in view of section 44 of the Act
We are of opinion that there is no force in this contention
It is true that section 44 provides that there should be as little interference with the ordinary avocations of life as possible when orders are made under the Act or the Rules but that does not mean that a detention order must show on the face of it that the State Government had considered the various clauses of r 30 1 and had come to the conclusion that the only way in which the purposes of the Act and the Rules could be carried out was by the use of cl
b of r 30 1
In our opinion when the order says that it is necessary to make an order of detention in order to restrain the prejudicial activities mentioned therein it means that that was the only way which the State Government thought was necessary to adopt in order to meet the situation
It will then 461 be for the detenu to show that the order had gone beyond the needs of the situation and was therefore contrary to section 44
No such thing has been shown in the present cases and we are satisfied that the orders in question cannot be said to go beyond the needs of the situation even assuming that section 44 is mandatory as urged on behalf of the appellants and not merely directory as urged on behalf of the State
The appeals therefore fail and are hereby dismissed


Summary:
Appellants were first detained on November 7 1962 under 
That order was revoked by the Government and the appellants were released but re arrested under Rule 30 of the Defence of India Rules
The orders of detention were served on appellants in Jail
The appellants challenged those orders in the High Court by filing habeas corpus petitions under article 226 of the Constitution and section 491 of the Code of Criminal Procedure
The writ petitions were dismissed by the High Court and the appellants came to this Court under a certificate from the High Court
The contentions raised by the appellants were that their detention was illegal because the detention order was served on them when they were in jail that the orders of detention were passed without the satisfaction of the authority concerned regarding their necessity the satisfaction was to be that of the Governor and not of any Minister that there should have been fresh allocation of business by the Governor under article 1663 of the Constitution after the passing of the Defence of India Ordinance Act and Rules that before the State Government could exercise the power conferred by Rule 30 there had to be delegation by the Central Government that the order of detention did not show that section 44 of Defence of India Act was kept in mind when the order was made and that unless the order showed on the face of it that the State Government thought that detention was the only mode in which the purpose of the Act and Rules could be carried out the order was bad
Dismissing the appeals
Held The orders of detention passed by the State Government and their service on the appellants in jail were perfectly valid and did not make the detention illegal
The appellants were detained not as undertrials or as convicted persons but as detenus and hence the cases of Rameshwar Shaw and Makhan Singh Tarsikka did not apply in the present case
Reading the detention order as a whole it was clear that it did Ray in substance that it was necessary to detain the appellants with a view to preventing them from acting in a manner prejudicial to the Defence of India public safety and maintenance of public order
There was no difference between the words so to do in Rule 30 and the words to make the following order  in the detention order
As the detention order mentioned both the defence of India and maintenance of public order such an order could be made on the satisfaction of a Minister who was incharge of both the subjects in view of the Rules of Business promulgated by the Governor
It was not necessary that fresh allocation of business should be made by the Governor under article 1663 after the passing of the Defence of India Ordinance Act and Rules
It Is enough if the allocation of the 448 subject to which the Defence of India Ordinance Act and Rules refer has been made with reference to the three lists in the Seventh Schedule and if such allocation already exists it may be taken advantage of if and when laws are passed
Rule 30 of the Defence of India Rules lays down that the power can be exercised by the Central Government or the State Government and hence no further delegation is necessary in favour of the State Government for the exercise of power under Rule 30
It is true that section 44 of the Defence of India Act provides that there should be as little interference with the ordinary avocation of life as possible when orders are made under the Act or the Rules but that does not mean that a detention order must show on the face of it that the State Government had considered the various clauses of Rule 301 and had come to the conclusion that the only way in which the purpose of the Act and the Rules could be carried out was by the use of Rule 301 b
When the order says that it is necessary to make an order of detention in order to restrain the prejudicial activities mentioned therein it means that that was the only way which the State Government thought was necessary to adopt in order to meet the situation
It is for the detenu to show that the order had gone beyond the needs of the situation and was therefore contrary to section 44
Makhan Singh Tarsikka vs State of Punjab AIR 1964 SC 381 Keshav Talpade vs King Emperor  Rameshwar Shaw vs District Magistrate Burdwan   Alakhon Singh Tarasikka vs State of Punjab AIR  referred to