Case: S. Krishnan And Others Vs. The State Of Madras(And Other Petitions)Union Of India--In

3. The Amending Act (hereinafter referred to as the new Act) came into force on 22- 2-1951, and by Substituting the figures "1952" for "1951" in Sub-- S.(3) of S. 1, Preventive Detention Act, 1950, (hereinafter referred to as the old Act it continues the operation of the old Act till 31-3-1952.4. The petitioners in all these case were, at the commencement of the new Act, under detention in pursuance of orders made under S. 3 (1) (a) (ii) of the old Act and save in a few cases where the detention was also attacked on some special grounds which have no Sub-stance, the legality of that detention was not open to question. But such detention having commenced more than a year before the date of bearing of these petitions, the petitioners would have been entitled to be released had it not been for the provisions of the new Act which purport to authorise the continuance of their detention .

Reasoning: But this fiction cannot obscure the fact that in the case of the petitioners more than three months had elapsed from the date of their arrest without any Advisory Board making a report on their detention and it is, of course, not possible for the Advisory Board now provided for in such cases to Sub-mit its report before the expiration of that period, with the result that their detention contravened Art. 22 (4)(a). No doubt the detention up to the commencement of the new Act was lawful under S.12 of the old Act, as it was in accordance with Sub--Cl. (b) of Cl, (4) of Art. 22, but that could not make the petitioners continued detention any the less a violation of Art. 22 (4) (a) after the deletion of old S. 12. It is a fallacy to treat what was a lawful detention under Sub--Cl. (b) as being no detention at all for purposes of Sub-- Cl. (a). Detention is a hard physical fact, and the total period of detention of the petitioners having far exceeded three months without an Advisory Board having reported within three months that there were sufficient grounds therefor, it could not lawfully be continued under22 (4) (a). Constitutional provisions regarding fundamental rights cannot be circumvented by resorting to legala question of vires, the intention of the Legislature is immaterial, and I agree that a provision for an Advisory Board is not a hallmark which stamps a preventive detention law as one necessarily falling within Sub-.Cl. (a) of Cl. (4), so as to make its constitutional validity determinable exclusively with reference to the requirements of that Sub--Clause. The law could still be upheld if it fulfilled the conditions laid down in Sub-- Cl. (b) of Cl.contention is devoid of Substance. The new Act can, in my opinion, be regarded as a law made Substantially in accordance with Sub-Cls. (a) and (b) of Cl. (7). According to the majority view in Gopalans case, Sub-. Cl. (a) of Cl. (7) being an enabling provision, the word and should be understood in a disjunctive sense. The combined effect of Ss. 9 (2) (a) and 12 (1) is to provide, in a certain Class of cases, namely, where detention orders were in force at the commencement of the new Act, that the persons concerned could be detained for a period longer than three months if an Advisory Board reports that there are sufficient grounds for detention within ten weeks from the commencement of the new Act, that is to say, without obtaining the opinion of an Advisory Board before the expiration of the three months from the commencement of the detention as provided in Sub--Cl. (a) of Cl. (4). And, although the new Act does not in express terms prescribe in and separate provision any maximum period as such for which any person may in any Class or Classes of cases be detained, it fixes, by extending the duration of the old Act till 1-4-1952, an over- all time-limit beyond which preventive detention under the Act cannot be continued. The general rule in regard to a temporary statue is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it willipso facto terminate as soon as the statute expires (Craies on Statutes, Edn. 4, p. 347). Preventive detention which would but for the Act authorising it, be a continuing wrong, cannot, therefore, be continued beyond the expiry of the Act itself. The new Act thus in Sub-stance prescribes a maximum period of detention under it by providing that it shall cease to have effect on a specified date. It seems to me, therefore, that S. 9 (2)(a) and S. 12 (1) of the new Act Substantially satisfy the requirements of Sub--Cl. (b) of Cl. (4) of Art. 22, and cannot be declared unconstitutional andargument is that the discretionary power given to the appropriate Govt. under that Sub-section to continue the detention "for such period as it thinks fit" authorises preventive detention for an indefinite period, which is contrary to the provisions of Art. 22 (4).But, if, as already observed the new Act is to be in force only up to 1-4-1952 and no detention under the Act can continue thereafter, the discretionary power could be exercised only Subject to that over all limit. The objection, therefore, fails,