s Nos 513 566 568 570 591595 596 601 616 617 623 625 631 and 632 of 1951 under article 32 of the Constitution for writs in the nature of habeas corpus
The facts are stated in the judg ment
Raghbir Singh amicus curiae for the petitioners in Petitions Nos
513 566 568 570
595 596 609 616 617 623625 and 631
ASR Chari amicus curiae for the petitioner in Petition No 591
Shiv Charan Singh amicus curiae for the petitioner in Petition No 632
section M Sikri Advocate General of the Punjab Jindra Lal with him for the State of the Punjab
January 25
The Judgment of the Court was deliv ered by PATANJALI SASTRI CJ
This is a petition under article 32 of the Constitution submitted through the Super intendent Central Jail Ambala for the issue of a writ of habeas corpus for the release of the petitioner from custo dy
On 5th July 1950 the petitioner was arrested and detained under an order of the District Magistrate of Amrit sar in exercise of the powers conferred on him under section 3 of the  and the grounds of his detention were served on him as required by section 7 of the Act on 10th July 1950
The Act having been amended by the Preventive Detention Amendment Act 1951 with effect from 22nd February 1951 a fresh order No 7853 ADSB dated 17th May 1951 was issued in the following terms  Whereas the Governor of Punjab is satisfied with re spect to the person known as Naranjan Singh Nathawan so Lehna Singh of village Chak Sikandar 397 PS Ramdas Amritsar District that with a view to prevent ing him from acting in a manner prejudicial to the security of the State it is necessary to make the following order Now therefore
in exercise of the powers conferred by sub section 1 of section 3 and section 4 of the Preven tive Detention Act 1950 as amended by the Preventive Detention Amendment Act 1951 the Governor of Punjab hereby directs that the said Naranjan Singh Nathawan be committed to the custody of the Inspector General of Pris ons Punjab and detained in any jail of the State till 31st March 1952 subject to such conditions as to maintenance discipline and punishment for breaches of discipline as have been specified by general order or as contained in the Punjab Detenu Rules 1950
 This order was served on the petitioner on 23rd May 1951 but no grounds in support of this order were served on him
The petitioner thereupon presented this petition for his release contending that the aforesaid order was illegal inasmuch as 1 the grounds of detention communicated to him on 10th July 1950 were quite vague false and imaginary and 2 he was not furnished with the grounds on which the order dated 17th May 1951 was based
The petition was heard ex parte on 12th November 1951 when this Court issued a rule nisi calling upon the respondent to show cause why the petitioner should not be released and it was posted for final hearing on 23rd November 1951
Meanwhile the State Government issued an order on 18th November 1951
revoking the order of detention dated 17th May 1951 and on the same date the District Magistrate Amritsar issued yet another order for the detention of the petitioner under sections a and 4 of the amended Act this last order along with the grounds on which it was based was served on the petitioner on 19th November 1951
Thereupon the petitioner submitted a supplemental peti tion to this Court on 28th November 1951 challenging the validity of the last order on the ground 398 that it was only a device to defeat the habeas corpus petition of the petitioner in which a rule had already been issued  and he put forward an additional ground of attack on the legality of the earlier order dated 17th may 1951 namely that it fixed the term of detention till 31st March 1952 before obtaining the opinion of the Advisory Board as required by section 11 of the amended Act
This ground was evidently based on the view expressed by this Court that the specification of the period of detention in the initial order of detention under section 3 of the amended Act before obtaining the opinion of the Advisory Board rendered the order illegal
In the return to the rule showing cause filed on behalf of the respondent the Under Secretary Home to the Govern ment explained the circumstances which led to the issue of the fresh order of detention dated 18th November 1951
After stating that the petitioner s case was referred to and considered by the Advisory Board constituted under section 8 of the amended Act and that the Board reported on 30th May 1951 that there was sufficient cause for the detention of the petitioner the affidavit proceeded as follows That the Government was advised that the orders made under section 11 of the  as amended by the Preventive Detention Amendment Act 1951 but carried out in the form of orders under section 3 of the said Act should be followed by grounds of detention and as this had not been done in most cases the detentions were likely to be called in question
The Government was further advised there were other technical defects which might render the detention of various detenus untenable
In view of this the Government decided that the cases of all dete nus should be reviewed by the District Magistrates con cerned
Accordingly the Punjab Government instructed the District Magistrates to review the cases and apply their minds afresh and emphasised that there must exist rational grounds with the detaining authority to justify the deten tion of a person and they were asked to report clearly in each case if the District 399 Magistrate concerned wanted the detenus to be detained
The Punjab Government also reviewed some cases
Accordingly all cases including the case of the petitioner were reviewed and in this case the District Magistrate was again satisfied that it was necessary that the detenu be detained with a view to prevent him from acting in a manner prejudicial to the security of the State and the maintenance of public order And it concluded by stating that the petitioner is detained now under the orders of the District Magistrate Amritsar
 The original and supplementary petitions came on in due course for hearing before Fazl Ali and Vivian Bose JJ
on 17th December 1951 when reliance was placed on behalf of t he petitioner on certain observations in an unreported decision of this Court in Petition No 334 of 1951 Naranjan Singh vs The State of Punjab and it was claimed that in view of those observations and of the provisions of Part III of the Constitution the decision in Basant Chandra Ghose vs King Emperor1 on which the respondent relied
was no longer good law
The learned Judges thought that the matter should be considered by a Constitution bench and the case was accordingly placed before us
It will be seen from the affidavit filed on behalf of the respondent that the case of the petitioner along with his representation against the detention order of 17th May 1951 was placed before the Advisory Board for its consider ation and the Board reported on 30th May 1951 that in its opinion there was sufficient cause for the detention of the petitioner
It is said that on the basis of that report the Government decided that the petitioner should be de tained till 31st March 1952 but while a properly framed order under section 11 should confirm the detention order and continue the detention for a specified period the order of 17th May 1951 was issued under a misapprehension in the form of an initial order under section 3 of the amended Act
on the same grounds as before without any fresh communication thereof to the petitioner
To 1 52 400 avoid arguments based on possible defects of a technical and formal character the said order was revoked under section 13 and on a review of the case by the District Magistrate a fresh order of detention was issued under section 3 on 18th November 1951 and this was followed by a formal communication of the same grounds as before as there could be no fresh grounds the petitioner having throughout been under detention
It is contended by the Advocate General of the Punjab that the decision reported in is clear authority in support of the validity of the aforesaid order
On essentially similar facts the court laid down two propo sitions both of which have application here
1 Where an earlier order of detention is defective merely on formal grounds there is nothing to preclude a proper order of detention being based on the pre existing grounds them selves especially in cases in which the sufficiency of the grounds is not examinable by the courts and 2 if at any time before the court directs the release of the detenu a valid order directing his detention is produced the court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention
The question is not whether the later order validates the earli er detention but whether in the face of the later valid order the court can direct the release of the petitioner
The learned Judges point out that the analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings has no application to proceedings in the nature of habeas corpus where the court is concerned solely with the question whether the applicant is being lawfully de tained or not
The petitioner s learned counsel conceded that he could not challenge the correctness of the second proposition but took exception to the first as being no longer tenable after the Indian Constitution came into force
It was urged that article 22 lays down the procedure to be followed in cases of preventive detention and the said procedure must be strictly observed 401 as the only prospect of release by a court must be on the basis of technical or formal defects a long line of deci sions having held that the scope of judicial review in matters of preventive detention is practically limited to an enquiry as to whether there has been strict compliance with the requirements of the law
This is undoubtedly true and this Court had occasion in the recent case of Makhan Singh Tarsikka vs The State of Punjab Petition No 308 of 19511 to observe it cannot too often be emphasised that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected
This proposition however applied with equal force to cases of preventive detention before the commence ment of the Constitution and it is difficult to see what difference the Constitution makes in regard to the position
Indeed the position is now made more clear by the express provisions of section 13 of the Act which provides that a detention order may at any time be revoked or modified and that such revocation shall not bar the making of a fresh detention order under section 3 against the same person
Once it is conceded that in habeas corpus proceedings the court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of the institution of the proceeding it is difficult to hold in the absence of proof of bad faith that the detaining authority cannot supersede an earlier order of detention challenged as illegal and make a fresh order wherever possible which is free from defects and duly complies with the requirements of the law in that behalf
As regards the observations in Naranjan Singh s case we do not understand them as laying down any general proposi tion to the effect that no fresh order of detention could be made when once a petition challenging the validity of an earlier order has been filed in court
The learned Judges appear to have inferred from the facts of that case that the later order was 1 Since reported as  402 not made bona fide on being satisfied that the petitioner s detention was still necessary but it was obviously to defeat the present petition
The question of bad faith if raised would certainly have to be decided with reference to the circumstances of each case but the observations in one case cannot be regarded as a precedent in dealing with other cases
We accordingly remit the case for further hearing
This order will govern the other petitions where the same ques tion was raised
Petitions remitted


Summary:
Section 102xi of the Income Tax Act 1922 provided for deduction of bad and doubtful debts
The proviso thereto laid down that if the amount ultimately recovered on any such debt was greater than the difference between the whole debt and the amount allowed the excess shall be deemed to be a profit of the year in which it was recovered
These provi sions were re enacted in the Income Tax Act 1961 as section 361vii provides subject to the provisions of sub section
2 for deduction of amount of any debt established to have become a bad debt in the previous year whereas section 414 provides for bringing to tax amounts of such bad debts if recovered subsequently as the income of the previous year in which it was recovered whether the business in respect of which the deduction had been allowed was in existence in that year or not
Certain amounts which had been allowed to be written off as bad debts in terms of section 102xi of the Income Tax Act 1922 in the year 1959 60 but subsequently received by the assessee were sought to be brought to tax in the assessment years 1964 65 1965 66 and 1967 68 under section 414 of the Income Tax Act 1961
The assessee s business had discontin ued prior to the relevant years of recovery of the amounts
The orders of assessment were confirmed by the Appellate Assistant Commissioner
The Tribunal however held that the amounts could not be taxed under section 414 of the 1961 Act for that section had no application to amounts written off in 1959 60 in terms of section 102xi of the 1922 Act when it was in force
On a reference the High Court held that the amounts in question were includable in computing the taxable income of the assessee in respect of the relevant years under section 414 of the 1961 Act
It took the view that there was no incon sistency between the relevant provisions of the two enact ments and that section 24 of the was attracted as a result of which the order in terms of which the amounts 207 had been written off was deemed to have been made under the reenacted provisions as contained in section 361vii
In these appeals by certificate it was contended for the appellant that the relevant provisions of the 1922 Act and 1961 Act were not in pari materia that section 414 would be attracted only where the bad debt had been written off in terms of section 361vii and that what has been allowed as a deduction in terms of section 102xi of the 1922 Act could not on recovery be brought to tax under section 414 of the 1961 Act unless the business itself had continued to exist at the time of recovery
Dismissing the appeals the Court HELD 1
If the amounts had been received prior to the repeal of the 1922 Act the entire transaction would have been covered by the provisions of section 102xi of the Act and the business having been discontinued prior to the relevant years of receipt these amounts would not have been taxable
209H 210A Commissioner of Income Tax Madras vs Express Newspapers Ltd referred to
21 The effect of section 24 of the  in so far as it is material is that where the re pealed and re enacted provisions are not inconsistent with each other any order made under the repealed provisions would be deemed to be an order made under the re enacted provisions
212B 22 Section 102xi of the 1922 Act is equivalent to sections 361vii 362 and 414 of the 1961 Act
The repealed section 102xi is thus a composite section containing the ingredients of the re enacted sections 361vii 362 and 414
Consequently when a debt is written off by an order in terms of section 102xi of the 1922 Act the Income Tax Officer exercises the same power as he would have exercised on the enactment of section 361vii of the 1961 Act
These two provisions are there fore consistent with each other
Section 361vii is subject to the provisions of sub section 2 of that sec tion
Therefore both sections 361vii and 362 of the 1961 Act being two of the ingredients of section 102xi of the 1922 Act must be read together with reference to an order under which debts had been written off
Accordingly in the light of section 24 of the General Clause Act 1897 the relevant order made under section 102xi of the 1922 Act with reference to which the debt in question had been written off would be 208 deemed to be an order made under section 361vii of the 1961 Act and such order is what is contemplated under sec tion 414 of that Act
Any amount which is recovered on any such debt is attracted by the provisions of section 414 of the 1961 Act and is therefore chargeable to tax in terms of that sub section to the extent of the excess  specified therein
212C G