PETITIONER:
MAKHAN SINGH TARSIKKA
Vs.
RESPONDENT:
THE STATE OF PUNJAB.
DATE OF JUDGMENT:
10/12/1951
BENCH:
SASTRI, M. PATANJALI (CJ)
BENCH:
SASTRI, M. PATANJALI (CJ)
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
1952 AIR 27 1952 SCR 368
CITATOR INFO :
R 1952 SC 106 (9)
F 1952 SC 181 (5,13,26)
R 1958 SC 163 (12,39,42)
ACT:
Preventive Detention Act (IV of 1950 as amended in
1951) ss. 3 (i), 9, 11, 12--Order of detention fixing period
of detention in initial order itself before reference to
Advisory Board--Legality-Deprivation of personal
liberty--Duty to follow procedure strictly.
HEADNOTE:
Whatever might be the position under the Preventive
Detention Act of 1950 before it was amended in 1951, under
the Act as amended in 1951, the Government should determine
what the period of detention should be only after the Advi-
sory Board to which the case is referred reports that the
detention is justified. Fixing of the period of detention in
the initial order itself is contrary to the scheme of the
Act and cannot be supported. It cannot be treated as a mere
surplusage as it would tend to prejudice a fair considera-
tion of the detenu's case by the Advisory Board, though he
would have to be released forthwith if the Advisory Board
reports that there is no sufficient cause for detention.
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.
JUDGMENT:
ORIGINAL JURISDICTION. Petition No. 308 of 1951.
Application under article 32 of the Constitution for a writ
in the nature of habeas corpus praying for the release of
the petitioner from detention.
H.J. Umrigar (amicus curiae), for the petitioner.
S.M. Sikri, Advocate-General of the Punjab, (Jindra Lal,
with him) for the respondent.
1951. December 10. The Judgment of the Court was deliv-
ered by
PATANJALI SASTRI C.J.–This is a petition under article
32 of the Constitution praying for the release of the peti-
tioner from his alleged unlawful detention. We accepted the
petition and, at the conclusion of the hearing, ordered the
petitioner to be released., We now proceed to give the
reasons for our order.
369
The petitioner was arrested and detained under an order
dated 1st March, 1950, made by the District Magistrate,
Amritsar, under section3(1) of the Preventive Detention Act,
1950 (hereinafter referred to as “the Act “) and the grounds
of detention were communicated to the petitioner as required
by section7 of the Act on 15th March, 1950. The petitioner
challenged the validity of the order on various grounds but,
while the petition was pending after this Court issued a
rule nisi to the respondent, the petitioner was served on
6th August with another detention order dated 30th July,1951
1, purporting to be made by the Governor of Punjab under
sub-section(1) of section 3 and section 4 of the Act as
amended by the Preventive Detention (Amendment) Act, 1951,
and he was served with fresh grounds of detention on 16th
August, 1951. Thereupon the petitioner filed a supplementary
petition impugning the validity of the said order on the
ground, inter alia, that it directed the detention of the
petitioner up to 31st March, 1952, the date on which the Act
itself was to expire and that this was contrary to the
provisions of the Act as amended. On behalf of the
respondent, the Advocate-General of Punjab urged that the
said order was not intended to be a fresh order of detention
but was passed only with a view to limiting the period of
detention till 31st March, 1952, as it had been held in some
cases that an order of detention for an indefinite period
was bad. The order runs as follows :-
WHEREAS the Governor of Punjab is satisfied with respect
to the person known as Makhan Singh Tarsikka, son of Gujjar
Singh, Jat, of Tarsikka, Police Station Jandiala, Amritsar
District, that with a view to preventing 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
Preventive Detention Act, 1950 (Act IV of 1950), as amended
by the Preventive Detention (Amendment) Act, 1951 (Act IV of
1951), the Governor
370
of Punjab hereby directs that the said Makhan Singh Tarsikka
be committed to the custody of the InspectorGeneral of
Prisons, Punjab, and detained in any jail of the State till
31st March, 1952, subject to such conditions as to mainte-
nance, discipline and punishment for breaches of discipline
as have been specified by a general order or as contained in
the Punjab Communist Detenu Rules, 1950.
It will be seen that the terms of the order make it clear
that it was intended to operate as a fresh order for the
detention of the petitioner and this view is strengthened by
the fact that the order was followed by the service of a
fresh set of grounds on the petitioner as required by sec-
tion 7 of the Act; a proceeding which would be wholly unnec-
essary if no fresh order of detention was intended. Indeed,
it was suggested on behalf of the petitioner that the said
order followed by service of fresh grounds only four days
before the date fixed for the hearing of the petition by
this Court was a deliberate move by the respondent to cir-
cumvent the objections raised by the petitioner to the
validity of the earlier order of 1st March, 1950, and thus
render the proceeding infructuous. However that may be, we
are clearly of opinion that the order dated 30th July, 1951.
must be regarded as a fresh order made for the petitioner’s
detention in superession of the earlier order and the ques-
tion is whether it was illegal in that it straightaway
directed that the petitioner be detained till 31st March,
1952, which was the date of the expiry of the Act.
Whatever might be the position under the Act before
its amendment in February, 1951, it is clear that the Act as
amended requires that every.case of detention should be
placed before an Advisory Board constituted under the Act
(section 9) and provides that if the Board reports that
there is sufficient cause for the detention “the appropriate
Government may confirm the detention order and continue the
detention of the person concerned for such period as it
thinks fit” (section 11). It is, therefore, plain that it
is only after the Advisory Board, to which the case
371
has been referred, reports that the detention is justified,
the Government should determine what the period of deten-
tion should be and not before. The fixing of the period of
detention in the initial order itself in the present case
was, therefore, contrary to the scheme of the Act and cannot
be supported. The learned Advocate-General, however, urged
that in view of the provision in section 11 (2) that if the
Advisory Board reports that there is no sufficient cause for
the detention, the person concerned would be released forth-
with, the direction in the order dated 30th July, 1951, that
the petitioner should be detained till 31st March, 1952,
could be ignored as mere surplusage. We cannot accept that
view. It is obvious that such a direction would tend to
prejudice a fair consideration of the petitioner’s ease when
it is placed before the Advisory Board. It cannot be too
often 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.
Petition allowed.
Agent for the respondent: P.A. Mehta.
