SHIBBAN LAL SAKSENA versus THE STATE OF UTTAR PRADESH AND OTHERS.

MuKHERJEA J.-This is a petition under article 32 of the Constitution praying for the issue of a writ, in the nature of habeas corpus, directing the release of the petitioner, Shibban Lal Saksena, who is said to be unlawfully detained in the District Jail at Gorakhpur.

p. 419

The petitioner was arrested on the 5th of January, 1953, under an order, signed by the District Magistrate of Gorakhpur, and the order expressly directed the detention of the petitioner in the custody of the Superintendent, District Jail, Gorakhpur, under subclauses (ii) and (iii) of clause (a) of section 3 (1) of the Preventive Detention Act, 1950, as amended by later Acts. On the 7th of January following, the grounds of detention were communicated to the detenue in accordance with the provision of section 7 of the Preventive Detention Act and the grounds, it appears, were of a two-fold character, falling respectively under the two categories contemplated by sub-clause (ii) and sub-clause (iii) of section 3 (1) (a) of the Act. In the first paragraph of the communication it is stated that the detenue in course of speeches delivered at Ghugli on certain dates exhorted and enjoined upon the canegrowers of that area not to supply sugarcane to the sugar mills or even to withhold supplies from · them and thereby interfered with the maintenance of supply of sugarcane essential to the community. The other ground specified in paragraph 2 is to the effect that by usmg expressions, some of which were quoted underneath the paragraph, the petitioner incited the cane-growers and the public to violence against established authority and to defiance of lawful orders and directions issued b~ Government officers and thereby seriously prejudiced the maintenance of public order.

pp. 419–420

The petitioner submitted his representation against the detention order on the 3rd of February, 1953, and his case was considered by the Advisory Board constituted under section 8 of the Preventive Detention Act at its sittmg at Lucknow on the 23rd February following. The Advisory Board gave a hearing to the petitioner in person and after it had submitted its report, a communication was addressed on behalf of the Uttar Pradesh Government to the petitioner on the 13th of March, 1953, informing him that the Government, iu exercise of its powers under section 11 of the Preventive Detention Act, had confirmed the detention order against him under sub-clause (ii) of section 3 (1) (a) of the Act and sanctioned the continuation of his detention until further orders, or up to a period of 12 months from the date of detention. The second paragraph of this communication runs as follows: '

p. 420

"The detenue mav please be informed that the Advisory Board did not uphold his detention und·er sub-clause (iii) of clause (a) of sub-section (1) of section 3 of the Preventive Detention Act. Governme:1t have therefore revoked his detention under this sub-clause."

p. 420

The petitioner has now come up before us with an application under article 32 of the Constitution and Mr. Veda Vyas, who appeared in support of the petition, has challenged the legality of the detention order made against his client substantially on two grounds.

p. 420

It is argued in the first place that from the grounds served upon the petitioner under section 7 of the Preventive Detention Act, it appears clear that . the grounds which weighed with the detaining authority in depriving the petitioner of his liberty are that his activities were, in the first place, preJ·udicial to the maintenance of supplies essential to the community and in the second place were injurious to the maintenance of public order. From the communication, dated the 13th of March, 1953, addressed to the petitioner, it appears, however, that the first ground did not exist as a fact and actually the Uttar Pradesh Government purported to revoke the detention order under sub-clause (iii) of section 3 (1) (a) of the Preventive Detention Act. In these circumstances, it is contended that the detention order originally made cannot stand, for if the detaining authority proceeded on two grounds to detain a man and one of them is admitted to be non-existent or irrelevant, the whole order is vitiated as no one can say to what extent the bad ground operated on the mind of the detaining authority.

pp. 420–421

The other contention raised by the learned counsel is that the particulars, which were supplied to his client in connection with the second ground, are manifestly inadequate and of a partial character and do not. enable him to make an effective representation against the order of detention.

p. 421

We may say at once that the second contention does not impress us. It is true that the sufficiency of the particulars conveyed to a detenu in accordance with the provision em bodied in article 22 ( 5) of the Constitution is a justiciable issue, the test being whether they are sufficient to enable the detenu to make an effective representation; but we are not satisfied that the particulars supplied to the detenu in the present case are really inadequate and fall short of the constitutional requirement. We do not think, therefore, that there is any substance in this contention.

p. 421

The first contention raised by the learned counsel raises, however, a somewhat important point which requires careful consideration. It has been repeatedly held by this court that the power to issue a detention order under section 3 of the :Preventive Detentiop Act depends entirely upon the satisfaction of the appropriate authority specified in that section. The sufficiency of the grounds upon which such satisfaction purports to be ba~ed, provided they haYe a rational probative value and are not extraneous to the scope or purpose of the legislative provision cannot challenged in a court of law, except on the ground rnal,a fides( A court of law is not even competent enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenu under section 7 of the Act. What has happened, however, in this case is somewhat peculiar. The Government itself, in its communication dated the 13th of March, 1953, has plainly admitted that one of the grounds upon which the original order of detention was passed is unsubstantial or existent and cannot be made a ground of detention. The question is, whether in such circumstances original order made nnder section 3 (1) (a) of the can be allowed to stand. The answer, in our opinion, can only be in the negative. The detaining authority gave here two grounds for detaining th e petitioner. \Ve can neither decide whether these grounds are good· bad, nor can we attempt to assess in what manner to what ex tent each of these grounds operated on mind of the appropriate authority and contributed the creation of the satisfaction on the basis of which the detention order was made. To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underl:ying the statute. In such cases, we think, position would be the same as if one of these grounds was irrelevant for the purpose of the Act was wholly illusory and this would vitiate the detention order as a whole. This principle, which was recognised by the-Federal Court in the case of Keshav Talpa.de v. The King-Emper<nf), seems to us to quite sound and applicable to the facts of this case.

pp. 421–422

SYidh~r 16~ (~)

p. 422

We desire to point out that the order which the Government purported to make in this case under section 11 of the Preventive Detention Act is not one in conformity with the provision of that section. Section 11 lays down what action the Government is to take after the Advisory Board has submitted its report. If in -the opinion of the Board there is sufficient reason for the detention of a person, the Government may confirm the detention order and continue the detention for such period as it thinks proper. On the other hand, if the Advisory Board of opinion that there is no sufficient reason for the detention of the person concerned, the Government is in duty bound to revoke the detention order. What the Government has done in this case is to confirm the detention order and at the same time to revoke under one of the sub-clauses of section 3 (1) (a) of the Act. This is not what the seotion contemplates. The Government could either confirm the order of detention made under section 3 or revoke it completely and there is nothing in law which prevents the Government from making a fresh order of detention ifit so chooses. As matters stand, we have no other alternative but to hold that the order made on the 5th of January, 1953, under section 3 (1) (a) of the Preventive Detention Act is bad in law and the detention of the petitioner is consequently illegal. The application is allowed and the petitioner is directed to be set at liberty.

p. 423

Petition allowed. Agent for the petitioner: Ganpat Rai.- Agent for the respondent: 0. P. Lal.

p. 423