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Bhanudas Krishna Gawde Vs. K.G. Paranjape and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1976CriLJ534
AppellantBhanudas Krishna Gawde
RespondentK.G. Paranjape and ors.
Excerpt:
- - 1) against the detaining authority as well as the superintendent of the than a central prison, the state of maharashtra, and the union of india for writs under articles 226 and 227 of the constitution, (a) quashing and setting aside the conservation of foreign exchange and prevention of smuggling activities (maharashtra conditions of detention) order, 1974 (hereinafter referred to as 'the conditions of detention order'); (b) requiring the respondents to keep the detenu under detention in accordance with the maintenance of internal security (maharashtra conditions of detention) order. chagla that, in view of the presidential declaration under article 359 (1). pending proceedings like those in the-present case which were suspended cannot be revived by a mere statement mad by counsel.....vimadalal, j.1. this is a petition filed by a detenu (petitioner no. 2) and his son (petitioner no. 1) against the detaining authority as well as the superintendent of the than a central prison, the state of maharashtra, and the union of india for writs under articles 226 and 227 of the constitution, (a) quashing and setting aside the conservation of foreign exchange and prevention of smuggling activities (maharashtra conditions of detention) order, 1974 (hereinafter referred to as 'the conditions of detention order'); (b) requiring the respondents to keep the detenu under detention in accordance with the maintenance of internal security (maharashtra conditions of detention) order. 1971. as applicable to detenus under the misa. or in accordance with the conditions applicable to undertrial.....
Judgment:

Vimadalal, J.

1. This is a petition filed by a detenu (petitioner No. 2) and his son (petitioner No. 1) against the detaining authority as well as the Superintendent of the Than a Central Prison, the State of Maharashtra, and the Union of India for writs under Articles 226 and 227 of the Constitution, (a) quashing and setting aside the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 (hereinafter referred to as 'the Conditions of Detention Order'); (b) requiring the respondents to keep the detenu under detention in accordance with the Maintenance of Internal Security (Maharashtra Conditions of Detention) Order. 1971. as applicable to detenus under the MISA. or in accordance with the conditions applicable to undertrial prisoners, or civil prisoners in accordance with the rules contained in the Jail Manual or rules made under the prisons Act. 1894, and in conformity with that Act; and (c) requiring the respondents not to put the detenu in solitary confinement, to permit the detenu to supplement his diet at his own expense from outside the Jail, to permit the detenu at his own expense an allowance of Rs. 200/- per month, to permit the detenu to have medical treatment by a physician of his own choice at his own expense, to grant the detenu all interviews and the right to correspond, to give the detenu all books, periodicals and newspapers subject to censorship, and to retain the detenu at the Than Central Prison as long as he is under detention. Though, as stated above, in prayer (a) of the Petition, the petitioners have challenged the whole of the Conditions of Detention Order, at the hearing before us, only certain clauses of the said Order were challenged, and Mr. Mehta who appeared for the petitioner made it clear that he was not challenging the whole of the Conditions of Detention Order. The clauses of the Conditions of Detention Order to which that challenge was confined were Clauses 9 (iii). 10, 12 (ii) and (xi). 15, 19. 20, 21, 23, 24 and 31. It may be clarified that in the present petition there is no challenge to the validity of the Detention Order itself under which the second petitioner is being detained, but the challenge is confined to the Conditions under which he is detained. It may, however. be mentioned that the second petitioner was first detained under the Maintenance of Internal Security Act by an Order made on the 25th of September. 1974, which was revoked, and the second petitioner was then served with a detention order dated the 19th of December. 1974. made by the first respondent under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the Act'), and continues to be detained under the said Detention Order.

2. After hearing Mr. Mehta who appeared for the petitioners in the present petition, we also heard Mr. Jethamalani who appears for the petitioner in Criminal Application No. 96 of 1975, and Mr. A. B. Diwan who appears for the petitioner in Criminal Application No. 792 of 1975. in both of which identical questions arise, in order to avoid repetition of arguments when those Applications are called out. Separate orders will, however, be passed in those applications after this judgment is delivered.

3. The clauses of the Conditions of Detention Order mentioned above have been challenged by Mr. Mehta on behalf of the petitioners on two grounds, and they are, that the said Conditions are ultra vires Section 5 of the Act under Sub-section (a) of which the Conditions of Detention Order has been made, and also ultra vires the object of the Act which provides for preventive detention and not for punitive detention, and. secondly, on the ground that the said Conditions are contrary to Section 31 of the Prisons Act, 1894. Mr. Mehta further contended that the power contained in Sub-section (b) of Section 5 of the Act to remove the detenu from one place of detention to another should also not be exercised in a punitive manner, for the same reasons. In the petition, as filed, the Conditions of Detention Order was also challenged as being in violation of Articles 14. 19, 21 and 22 of the Constitution, In view, however, of the Presidential Orders suspending Article 19 of the Constitution, and also suspending all actions, including pending proceedings, for the enforcement of the rights conferred by Articles 14. 21 and 22 of the Constitution, at the very commencement of the hearing, Mr. Mehta made a statement that, in the present case, he gives up Grounds (c) and (d) in paragraph 5 of the Petition, as also the plea in the last sentence of Ground to in the said paragraph, and confines his challenge only to Ground (a), and to Ground (b) excluding the last sentence thereof. By another statement made at the same time. Mr. Mehta also made it clear that in the present petition he does not challenge the validity of Section 5 of the Act, In view of these statements made by Mr. Mehta, the Court is not precluded from proceeding with the rest of the petition by reason of the Presidential Orders suspending the enforcement of certain fundamental rights of citizens. It may be mentioned that in view of the wide ambit of the petition, as originally filed, the learned Judges who admitted the same had directed notice to be issued to the Advocate-General under Rule 1 of Order 27-A of the Code of Civil procedure. That notice was duly despatched to the Advocate-General by the office of this Court, but neither the Advocate-General nor anybody on his behalf appeared on the hearing before us. In any event, in view of the statements made by Mr. Mehta. since there is no constitutional challenge, nor even a challenge to the validity of Section 5 or any other provision of the Act. the question of the Advocate-General being heard under Order 27-A. Rule 1 does not survive. This view which we take finds support, on a plain reading of Rule 1, Order 27-A itself in so far as a notice to the Advocate-General is required only if 'it appears to the Court' that any question of constitutionality is involved, and not merely because a petitioner or a plaintiff may purport to raise a far-fetched question of that nature! in his petition or plaint, as the case may be. If. even in a case in which a constitutional challenge contained in a petition or a plaint is not given up, the Court can hear such proceeding without giving a notice under Order 27-A, Rule 1 if in its opinion such challenge is ill-founded, a fortiori, it can proceed to hear a petition or a suit where the constitutional challenge contained in a petition or a plaint! is given up by the petitioner himself. We1 have, therefore, rejected the preliminary abjection raised by Mr. Chagla in regard to the same and have proceeded to Rear the petition on merits.

4. The second preliminary objection of Mr. Chagla that, in view of the Presidential Declaration under Article 359 (1). pending proceedings like those in the-present case which were suspended cannot be revived by a mere statement mad by counsel from the Bar giving up certain grounds of challenge is, in our opinion, of no substance for the simple reason that what is suspended is not dead, and no question of reviving it can possibly arise. The petition as a whole was still before | us when it reached hearing, and what was suspended was only the petitioner's right to enforce that part of the petition which related to the enforcement of the petitioners' rights under Articles 14, 21 and 22 of the Constitution which the petitioners have now expressly given up by the statement made by their counsel from the Bar, We have, therefore, rejected this preliminary objection of Mr. Chagla also, and have proceeded to hear the rest of the petition which is not affected by the Presidential Declaration, The third preliminary objection of Mr. Chagla that the Act having now been included in Schedule 9 of the Constitution, there can, by reason of Article 31-B, be no challenge to the Act or to the Conditions of Detention Order made under Section 5 of the Act which has become part and parcel of the Act, must also be rejected. First and: foremost, there is no challenge to the Act or to Section 5 thereof. Secondly, it is too well settled to need authority that it is only those clauses of a statutory rule or order which are valid that become part and parcel of the Act as if they had been incorporated therein. If Mr. Chela's contention on this point were to be accepted, it would lead to the reductio ad absurdum that no statutory rule or order can have to be challenged as being ultra: vires the statute. Mr. Chagla relied on the judgment of the Supreme Court in the case of Sukhdev Singh v. Bhagatram. : (1975)ILLJ399SC on this point, but the judgment in the said case itself makes it quite clear fpara, 17) that subordinate legislation has the full force and effect of a statute only if it has been 'validly made', and the said judgment, therefore, cannot be of any use to Mr. Chagla in support of this preliminary objection.

5. The next contention of Mr. Chagla. is in our opinion, not really in the nature of a preliminary objection at all, as Mr. Chagla urged, but relates to the merits of the petitioners' claim before us. That contention was that the petitioners do not have any legal right which they can enforce by a writ in the nature of Mandamus other than the fundamental right of personal liberty under Article 21 of the Constitution the enforcement of which has now been suspended by the Presidential Order. Mr. Chagla's contention was that, in the ultimate analysis, the clauses of the Conditions of Detention Order, the validity of which the petitioners seek to impugn by the present petition, are merely different facets of the fundamental right of personal liberty under Article 21 and do not exist apart from the right of personal liberty, Mr. Chagla sought to contend that the right to eat, to spend, to meet people, to write, to smoke, to play games, are all parts of the fundamental right of personal liberty contained in Article 21. In fact, Mr. Chagla went so far as to suggest that if the Conditions of Detention Order contained a clause that detenus are not to be allowed to eat any food, it could not be challenged and the petitioner would have no remedy by way of a petition under Article 226 as long as the Presidential Order suspending the enforcement of the fundamental right under Article 21. of which the right to eat is a part, is in force. Emboldened by this proposition of Mr. Chagla, which we cannot help observing is a startling proposition, the learned Government Pleader interposed and said that even if the Conditions of Detention Order were to authorise that the detenu should be shot, such a clause could not be challenged during the subsistence of the Presidential Order. Happily, we are not compelled to take such an extreme view and, as observed by the Supreme Court in regard to a similar argument advanced before it in the case of the State of Maharashtra v. Prabhakar. : 1966CriLJ311 , 'in the matter of liberty of a subject such a construction shall not be given to the said rules and regulations, unless for compelling reasons', and far from there being compelling reasons for giving such a construction, the same would be contrary to well-alerted canons of construction of statutes. It is beyond doubt that by a writ of Mandamus the Court can not only compel the performance of a statutory duty, but can also compel public authorities to forbear from acting in violation or breach of a statute. In any event, as laid down by the Supreme Court in the case of Dwarka Nath v. Income-tax Officer : [1965]57ITR349(SC) , Article 226 is much wider than the power of English; Courts to issue prerogative writs, and under that Article this Court can certainly issue a direction or order which j would compel a public authority to for bear from acting in violation of a pr-; vision of a statute, which is quite different' from the enforcement of a fundamental-right. If, therefore, there is any clause in the Conditions of Detention Order which goes beyond the Act under which that Order is made, as a clause which provides for starving or shooting a detenu certainly would, this Court has the jurisdiction to issue a direction or order against the respondents that they should forbear from doing so. To put it in another way, a citizen has the right to say that a public authority should act in conformity with the law, viz., in the present case the Act, and' it is that right that the petitioners seek' to enforce in the present case, and not, their fundamental right of personal liberty under Article 21. as Mr. Chagla contends. If the respondents in the present case do not act in conformity with the! Act. but enforce a clause of the Conditions of Detention Order which is ultra vires the Act, to the detriment of the detenu, as a person adversely affected there-' by, he is certainly a 'party aggrieved'; who can come to the Court by way of a proceeding under Articles 226 and 227 of the Constitution. In the case of S. Sinha v. S. Lal and Co.. AIR 1978 SC 2720. dealing with a contention advanced before the Court in that case that the first respondent had no interest in the lease which was the subject-matter of that case, following the English law on the point, it was laid down (paras. 9-10) by the Supreme Court that when the application for a writ is made by a party or by a person aggrieved, the Court would intervene ex debito justitiae, in justice to the applicant; and when it is made by a stranger, the Court considers whether the public interest demands its intervention. It was further stated that in either case it was a matter which rested ultimately in the discretion of the Court. There can be no doubt that the petitioner in the present case being adversely affected by tile impugned clause of the Conditions of Detention Order is a party aggrieved, and if his contentions are accepted, the Court must intervene ex debito justitiae. There can also be no doubt that the matters involved in the present petition are matters of public interest which demand the intervention of the Court. Mr. Mehta rightly contended that merely because certain fundamental rights are declared by the Constitution, it does not mean that all other rights of citizens are gone, In support of that contention, he has relied on five decisions of the Supreme Court which, in our opinion, completely bear out his proposition. In the case of the State of Maharashtra v. Prabhakar, already cited above (paras. 4-5). it has been stated that notwithstanding Presidential Orders under Articles 358 and 359 of the Constitution, if a detenu's liberty has been restricted in contravention or in derogation of the law whereunder he is detained, the High Court can issue an appropriate writ or direction to the authority concerned to act in accordance with law. In the case of Durgadas v. The Union of India : 1966CriLJ812 , the effect of an emergency declared under Article 358 as well as under Article 359 (1) of the Constitution, as in the present case, has been explained. It has been stated that if the petitioner sought to challenge a statute on a ground other than .contravention of Articles 14, 19, 21 or 22 of the Constitution, such a challenge would be outside the purview of a Presidential Order under Article 358 or under Article 359 (1). As an illustration of the same, it is stated that a citizen would not toe deprived of his right to move the Court for a writ of habeas corpus on the ground that his detention was mala fide, or 'on the ground that any of the grounds given in the order of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view.' What is .stated in the words just quoted is precisely the main ground of challenge in the present case. Durgadas' case was cited and followed by the Supreme Court in the case of Jaichand Lai v. The State of West Bengal : 1967CriLJ520 in which it was reiterated that the limitation imposed by Presidential Orders under Articles 358 and 359 (l of the Constitution cannot preclude a citizen from challenging the validity of an impugned provision on any ground other than contravention of Articles 14, 19. 21 and 22, e.g.. on the ground of mala fides, or on the ground that the ground given had no real and proximate connection with the object of the legislature. It was explained that that only meant that the power conferred by the statute had been 'utilised for some indirect purpose not connected with the object of the statute or the mischief it seeks to remedy'. In the case of the State of Madhya Pra. v. Bharat Singh AIR 1967 SC 1170 it was stated by Shah, J,. speaking on behalf of the Court, that the argument that a proclamation under Article 358 protected both legislative and executive action and that, therefore, any executive action taken by the State would not be liable to be challenged on the ground that it infringed the fundamental freedoms under Article 19 was characterised as involving 'a grave fallacy'. Shah. J., then went on to observe as follows:-

In our judgment, this argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have the authority of law to support it. and the terms of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and executive action may be taken in pursuance of lawful authority which if the provisions of Article 19 were operative would have been invalid. Our federal structure is founded on certain fundamental principles: (1) the sovereignty of the people with limited Government authority, i.e., the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the Executive Government possess only such powers as have been conferred upon them by the people; (2) There is distribution of powers between the three organs of the State - Legislative, Executive and Judicial each organ having some check direct or indirect on the other, and (3) the rule of law which includes judicial review of arbitrary executive action.

(Underlining supplied).

In the case of Chief Settlement Commissioner v. Om Prakash. : [1968]3SCR655 it was stated by Ramaswami, J.. delivering the judgment of the Court (para. 6) that in our constitutional system, the central and most characteristic feature was the concept of the rule of law which meant, in the context before the Court, the authority of the law courts to test all administrative action by the standard of legality so that administrative or executive action that did not meet the standard would be set aside if the aggrieved person brought the appropriate action in a competent court. The contention of Mr. Chagla that the Presidential Order bars the present proceedings in so far as it seeks to enforce different facets of the right of personal liberty under Article 21, and that the petitioners are. on any other footing, not parties aggrieved who are entitled to seek a writ under Article 226 of the Constitution must, therefore, be rejected.

6. That brings me to the main question that arises in the present petition, viz., whether the impugned clauses of the Conditions of Detention Order are ultra vires S. 5 as well as the object of the Act. Mr. Mehta's contention on this point was that there is no nexus or relation between the impugned Clauses and the object of the Act which, as the Preamble as well as the recitals show, is to provide for the detention of persons with a view to preventing them from indulging in violation of foreign exchange regulations or in smuggling activities. Entry No. 9 in the Union List I. under which the legislation contained in the Act falls, also relates only to 'Preventive detention', and the same is the language of Entry No. 3 in the Concurrent List III. Section 3, which is the kingpin of the Act. itself provides that action can be taken thereunder only 'with a view to preventing' a person from indulging in the prejudicial activities listed therein. Though, therefore, Section 5 itself does not contain any limitation of that nature, as Mr. Jethamalani rightly contended, there must be a presumption of the validity of Section 5, and 'there must, therefore, be an inarticulate premise read into it that the rule-making power contained in Sub-section (a) of Section 5 is limited to the object of the Act which is confined to preventive detention. Mr. Mehta's submission was that the impugned Clauses of the Conditions of Detention Order go beyond what is necessary for preventive detention and are of a punitive nature in so far as the seek to deprive a detenu of the ordinary amenities of the life, and are ultra vires Section' 5 as well as the object of the Act, and must be struck down. Mr. Mehta, however, very fairly conceded that certain restrictions which are necessary for the orderly functioning of the jail might well be imposed upon detenus confined therein, even in cases of preventive detention. In our opinion, each and every one of these contentions of Mr. Mehta and Mr. Jethmalani must be accepted. The contention of the learned Government Pleader Mr. 'Gumaste that Section 5 does not confer a rule-making power, but creates a mere liability must be rejected. Though the said section uses the words 'shall be liable' in the opening para thereof, a plain reading of Sub-section (a) of that section leaves no room for doubt that, in effect, it confers a rule-making power on the appropriate government. We have also no hesitation in rejecting the submission of Mr. Chagla that the power under Section 5 has not been conferred with a view to achieving the object of the Act. and hence no implied restrictions limiting that power to the object of the Act should be read into it. Mr. Chagla's contention was that the powers under Section 5 are Different from the powers under Section 3, inasmuch as the powers under Section 3 are circumscribed and limited by the Preamble, the object and the policy of the Act. but the powers under Section 5 are limited only to the extent that their exercise must relate to detention, and the Conditions of Detention Order merely works out the detention. According to Mr. Chagla, as the power under Section 5 comes into existence after the order of detention has been made, it is a power for administrative convenience and details and. so long as it relates to detention, there is no implied limitation or restriction on it. This argument of Mr. Chagla would once again lead to the extraordinary result that even if a clause in the Conditions of Detention Order provided that every detenu is to be kept in detention with his hands and feet tied with a rope, such a clause in the Conditions of Detention Order could not be challenged in a Court of law. As in regard to similar arguments advanced by Mr. Chagla as well as by the learned Government Pleader which have been referred to earlier, we are not prepared to place such a construction on the rule-making power contained in Section 5 of the Act. which, in our opinion, must be limited to the object of the Act, as disclosed by the Preamble and the recitals, and by the main operative Section 3 itself. We must, therefore, reject this argument of Mr. Chagla.

7. We will now refer to the authorities that were cited on the point which We are now considering. One of those authorities relates to the Jammu and Kashmir Preventive Detention Act which is in pari materia with our Preventive Detention Act; the second relates to the Maintenance of Internal Security Act, 1971; and the remaining two relate to the provisions in regard to detention in the Defence of India Rules and the Conditions of Detention Order applicable to the same. In the casa of Sampat v. The State of J. & K,. : 1969CriLJ1555 , the petitioner who had been arrested and detained under Section 3 of the Jammu and Kashmir Preventive Detention Act, 1964, filed a petition for a writ of habeas corpus on various grounds challenging the validity of the detention. The Supreme Court held that the challenge to the detention order failed, but whilst dismissing the petition, it proceeded to deal with the complaint of the petitioner in regard to the conditions of his detention in the following terms (para. 10):-

10. One more question needs to be dealt with. The petitioner who was present in the Court at the time of hearing of this petition complained that he is subjected to solitary confinement while in detention. It must be emphasized that a detenu is not a convict. Our Constitution notwithstanding the broad principles of the rule of law. equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty. But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority in his subjective satisfaction believes a citizen to have committed. Power to detain is primarily intended to be exercised in those rare cases when the larger interests of the State demand that restrictions shall be placed upon the liberty of a citizen curbing his future activities. The restrictions so placed must, consistently with the effectiveness of detention, be minimal.

(Underlining supplied).

The next case on which reliance was sought to be placed by Mr. Mehta is the case of H. Saha v. The State of West Bengal. : 1974CriLJ1479 , in which the constitutional validity of the Maintenance of Internal Security Act, 1971. was challenged by the petitioners on various grounds, one of which was that Section 3 of that Act violated Article 14, because it permitted the same offence to be a ground of detention in different and discriminatory ways, insofar as one person might be prosecuted but not detained preventively, whilst another may not be prosecuted but only detained preventively, and a third may be prosecuted and also detained preventively. In dismissing the petitions, the Supreme Court laid down para. 19 that there is no parallel between a prosecution in a Court of law and a detention under the Act. one being a punitive action and the other a preventive action, that (para. 32) the power of preventive detention was qualitatively different from punitive detention, and the pendency or otherwise of a prosecution was no bar to preventive detention, and that para. 33) whilst in a prosecution an accused was sought to be punished for a past act, in preventive detention the past act was merely the material for inference about the future course of probable conduct on the part of the detenu. This case emphasises the essential distinction between a punitive measure and a preventive law. In the case of the State of Maharashtra v. Prabhakar. : 1966CriLJ311 . which has already been cited in another context, the detenu who had been detained under Rule 30 (1) (b) of the Defence of India Rules, 1962, had written, with the permission of the State Government, a book in Marathi which was a purely scientific work dealing with the Atom and the theory of elementary particles in en objective way. The detenu applied to the State Government for permission to send the manuscript out of the sail for publication, but that permission was refused and the detenu, therefore, filed a petition! under Article 226 of the Constitution for directing the State of Maharashtra to permit him to send out the manuscript of the hook written by him for eventual publication. The State Government in its affidavit in reply did not allege that the publication of the said book would be prejudicial to the object of the Defence of India Act, but averred that the Government was not required by law to permit the detenu to publish books while in detention. The contention of the learned Additional Solicitor General was (see para 2) that when a person is detained he loses his freedom and. being no longer a free man. an exercise such 'privileges' as are conferred upon him by the order of detention, and in support of that contention, he relied on the observations of Das. J. in the Supreme Court case of A. K. Gopalan v. The State of Madras : 1950CriLJ1383 . The learned Counsel for the detenu, on the other hand, raised a twofold contention (see para. 3). The first was that a restriction of the nature imposed by the Government on the detenu could only be made by an order issued by the appropriate government under the Defence of India Rules, and that too, in direct compliance with Section 44 of the Defence of India Act, 1962, which provided that the authorities concerned should interfere with the ordinary avocations of life a? little as possible. Secondly, he contended that neither the detention order nor the conditions of Detention which governed the case enabled the government to prevent the respondent from sending his manuscript out of the prison for publication. On these ground;- it was submitted that the Government's order rejecting the respondent's request was illegal. The Supreme Court rejected (para. 8) the contention of the learned Additional Solicitor General that the Conditions of Detention Order which laid down the conditions regulating the restrictions on the liberty of a detenu conferred only certain 'privileges' on the detenu. The Supreme Court pointed out that if that argument were to be accepted, it would mean that the detenu could be starved to death, if there was no condition providing for food to the detenu, and stated that in the matter of the liberty of a subject such a construction should not be given to the rules, unless for compelling reasons. The Supreme Court, therefore, held that the conditions regulating the restrictions on the personal liberty of a detenu 'are not privileges conferred on him. but are the conditions subject to which his liberty can be restricted', and as there was no condition in the Conditions of Detention Order prohibiting a detenu from writing a book .or sending it out for publication, the State Government had infringed the personal liberty of the first respondent 'in derogation of the law' where under he was detained. The Supreme Court took the view (paras. 4-5) that where the detaining authority acted in contravention or derogation of the law where under the detenu was detained, he would have the right to approach the High Court under Article 226. and the High Court could, in terms of Article' 226, issue an appropriate writ or direction to the authority concerned to act in accordance with law. notwithstanding Presidential Orders under Articles 358 and 359 of the Constitution. The Supreme Court, therefore, upheld the order passed by the High Court at Bombay directing the Government to allow the manuscript book to be sent by the detention to his wife for its eventual publication, and dismissed the appeal filed by the State of Maharashtra from that order. It may be pointed out that the view of Das, J,. in Gopalan's case on which the learned Additional Solicitor-General relied was. in the light of later cases, stated by the Supreme Court (para. 7) as 'not the last word on the subject'. Indeed, that view appears to have been overruled by the Supreme Court itself in the case of S. N. Sarkar v. The State of West Bengal. : [1974]1SCR1 . and again in the case of Khudiram Das v. The State of West Bengal. : [1975]2SCR832 . Mr. Chagla rightly pointed out that the decision of the Supreme Court in Prabhakar's case is distinguishable because, unlike the present case, in the said case there was no condition in the Conditions of Detention Order empowering the government to act in the manner in which it had done. Prabhakar's case is, however, of considerable assistance in the present case on two points, viz.. (1) that the Conditions of Detention of a detenu are not 'privileges' conferred upon him, but are conditions subject to which only his liberty can be restricted; and (2) that the suspension of enforcement of Article 21 during an emergency is no bar to the granting of a writ by the High Court under Article 226, if the authorities concerned act in contravention or in derogation of the law under which the detenu was being detained. To the extent to which the case of Harkishan Singh v. The State of Punjab. . relied upon by the learned Government Pleader is based on the view of Das, J., in Gopalan's case, and to the extent to which it rejects the view (para. 11) that though a person loses many of his personal rights as a result of punitive detention, those rights remain intact if he is under preventive detention, and holds that it makes no material difference in that regard whether the detention is punitive or preventive, the decision of the Punjab High Court in Harkishan Singh's case can no longer be regarded as good law. in view of the decisions of the Supreme Court in Prabhakar's case. Sarkar's case and Khudiram Das's case which have just been cited by me. What is more. I do not agree with the view of the Punjab High Court in Harkishan Singh's case and would, in any event, not follow the same. Mr. Mehta on behalf of the petitioner also relied on the judgment of a Division Bench of this Court in the case of Mahamood Ahmad v-The State of Maharashtra, : AIR1967Bom254 : . The petitioner in the said case who was under detention under Rule 30 of the Defence of India Rules, 1962, had filed the said petition under Article 226 for an order that he should be allowed to purchase at his own cost and to receive certain journals and periodicals, he having failed to receive any reply from the Government to his letter making that request. Under Sub-clause (1) of Rule 16 of the Conditions of Detention Order applicable to the case, security, prisoners were allowed to have at their cost any weekly or daily newspapers which were included in the list of newspapers considered suitable for convicts of Classes I and II, and such other newspapers as might be allowed to them by orders of the State Government. Under Sub-clause for of that Rule, detenus were allowed to receive books (including periodicals which were not treated as newspapers) provided that the delivery of any such book to the detenu could be refused if the Commissioner of Police or the Jail Superintendent considered it 'not suitable'. The petitioner challenged the legality of the said Clause 16 on two grounds - first, that the imposition of such a condition was beyond the powers conferred on the State Government by Sub-rule (4) of Rule 30 of the Defence of India Rules; and secondly, that the imposition of the condition was contrary to the provisions contained in Section 44 of the Defence of India Act, 19G2. Sub-rule (4) of Rule 30 of the Defence of India Rules empowered the appropriate Government to impose conditions relating to the maintenance, discipline and punishment of offences and breaches of discipline on the detenu, and Section 44 of the Defence of India Act enacted that the authorities acting in pursuance of that Act should interfere with the ordinary avocations of life and the enjoyment of property as little as might be consonant with the purpose of ensuring public safety and interest, and the defence of India and civil defence. The Court took the view at pp. 573-S7S of Born LR - (at page 996 of Cri LJ) that the power contained in Rule 16 to prevent a detenu from having, even at his own cost, newspapers and books which can be freely read by the general Public but which are regarded by the authorities to be unsuitable to the detenus was obviously a condition which did not relate to the maintenance of the detenus. It further took the view that it also did not relate to the discipline of detenus which can comprise only those rules of behaviour which promote the orderly functioning of the institution where the detenus were accommodated and such further rules which were necessary for effectuating the specific purposes for which the detenus were detained. In the opinion of the Court, the word 'discipline' in Sub-rule (4) of Rule 30 of the Defence of India Rules could not be utilised to enable the Government or the Jail Authorities to regulate the reading habits of the detenus. It, therefore, held (at p. 579 of Bom LR) :at p. 997 of Cri LJ) that the provisions of Clause 16, in so far as they prevented the detenus from having at their cost newspapers, periodicals and books which can be freely read by the general public, had no rational connection with the maintenance and discipline of detenus and were, therefore, beyond the powers conferred on the State Government by Sub-rule (4) of Rule 30 of the Defence of India Rules. It may be mentioned that in taking that view the Court referred to the decision of the Supreme Court in Prabhakar's case cited above as supporting the conclusion at which it had arrived. The Court, however, observed at d, 580 of Bom LR :at p. 997 of Cri LJ) that the State Government could of course prevent a detenu from receiving periodicals and books which could not be lawfully obtained by people who were not under detention, such as those which were obscene, In that view of the matter, the question of considering the second contention advanced on behalf of the petitioner which was based on Section 44 of the Defence of India Act did not really arise in that case, but Tarkunde J., in the Judgment of the Court, went on to observe at p. 582 of Bom. LR :At p. 998 of Cri LJ) that if it had become necessary to consider the same, they would have held that the restrictions contained in Clause 16 were also viola tide of the principle laid down in Section 44 and that if the State Government had taken into consideration the principle of least interference laid down in Section 44. it could not have rationally come to the conclusion that it was necessary for ensuring the public safety and interest or the defence of India and civil defence that persons kept in preventive detention should be debarred from receiving and reading periodicals and books which could be freely received and read by the general public. {The Court, therefore, granted a writ directing the respondents to remove the said restriction 'and allow the petitioner to receive at his own cost the newspapers and periodicals' in question.

8. In our opinion, from the authorities discussed in the preceding paragraph, the following propositions clearly emerge:-

(1) That a detenu is not a convict, that the power to detain is not a power to punish and that the restrictions which can be placed upon the liberty pf a citizen in cases of preventive detention must, consistently with the effectiveness of the detention, be minimal.

(2) That the power of preventive detention is qualitatively different from that of punitive detention, that the purposes of preventive detention and of punitive detention are different, and that the nature of the proceedings is also different a prosecution being a proceeding in which the accused is sought to be punished for a past act, whereas in preventive detention the past act is merely the material for inference about the future course of probable conduct on the part of the detenu:

(3) That the conditions of detention of a person preventively detained are not privileges conferred on the detenu, but are conditions subject to which alone his liberty can be restricted, and if the detaining authority acts in contravention or derogation of the law under which a person is preventively detained, the High Court can issue a writ under Article 226 to that authority to act in accordance with law, notwithstanding the subsistence of Presidential Order under Articles 358 and 359;

(4) That unless there is a specific provision in the law under which a person is detained imposing a particular restriction upon the detenu doing what any member of the general public could do, a clause in the Conditions of Detention Order imposing such a restriction would be unlawful and such a condition would also be contrary to the principle of least interference. It may be mentioned that the principle of least interference which was expressly laid down in Section 44 of the Defence of India Act. 1962. is precisely the principle of 'minimal' restriction laid down by the Supreme Court in Sampat Prakash's case upon the tendril principles applicable to preventive detention, even in the absence of any provision of the nature of Section 44 of the Defence of India Act, 1962.

9. These propositions, taken together, undoubtedly support the main contention of Mr. Mehta in this petition that the object of the Act, as disclosed by the Preamble and the recitals, and by the operative Section 3 thereof, begun preventive detention for the purposes laid down in the Act. conditions which are of a punitive nature would have no nexus or relation with that object and would be ultra vires and void, except such conditions as might be necessary for the orderly functioning of the jail. We, therefore, accept that contention of Mr. Mehta. We must now proceed to consider which of the Clauses of the Conditions of Detention Order in the present case must be held to be ultra vires Section 5 and the objects of the Act, in the light of the above principles.

10. The first of the impugned provisions is Clause 9 (iii) of the Conditions of Detention Order which prohibits a detenu from supplementing his diet even at his own expense. The learned Government Pleader sought to justify it on the ground that it is intended to minimize contact with the outside world as otherwise the whole object of the Act might be defeated, but we see no substance in that contention for the food supplied to a detenu from outside at his own cost can easily be subjected to such check as the jail authorities might consider necessary. We see no relation whatsover between the object of preventive detention and a restriction of this nature under which, except on medical grounds, and that too at the sweet will of the Jail Authorities, detenus are prohibited from having their own food supplied from outside of their own cost. Mr. Gumaste sought to point out that there was no averment that the food supplied to them in jail was inadequate, and he also relied on the fact that certain additional diet is provided for by Sub-rule (i) of Rule 9 itself, but there can be no doubt that, with all that, the food which a detenu who is accustomed to a different mode of life can get in the jail would certainly not be food which is palatable to him. We see no requirement of jail discipline which would necessitate the imposition of such a restriction. We have, wherefore, no hesitation in holding Rule 9 J(iii) to be ultra vires Section 5 as well as ]the objects of the Act.

11. The next Clause which was impugned before us was Clause 10 of the Conditions of Detention Order under which a detenu is allowed to receive from his own relatives or friends every month not more than Rs. 30/ which can be utilised by him on such objects and in such manner as might be permissible under the Rules. There is absolutely no reason, and no relation with the objects of the Act, which should compel the imposition of such a drastic restriction on the amount which a detenu can be permitted to receive from his relatives and friends, nor can such a requirement be necessary in the interest of jail discipline. The learned Government Pleader contended that if more money is made available to a detenu in jail, it might be 'misused' thereby, according to us, faintly suggesting that it might be used for the purpose of bribing the jail staff, though that was not expressly stated by him. It is a sad commentary on Jail Administration, if that is to be regarded as something which can be normally expected to happen. We have, therefore, no hesitation in striking down! this provision also.

12. The next impugned provision is Clause 12 (ii) restricting the number of interviews with any person other than a police officer, ordinarily, to one per month. From Sub-clause (iii) of the same Clause it is clear that this interview would, also include interviews with near relatives such as the members of the detenu's own family. The object of preventive detention is not to cut out the detenu off from the outside world, but the object is to prevent him from acting in a manner prejudicial to the conservation of foreign exchange, or from indulging in the other prejudicial activities listed in Section 3 of the Act. Under Sub-clause (vii) of Clause 12 every such interview has to take place in the presence and also within the hearing of an officer attached to the place of detention or a police officer who is given the right to terminate that interview at any time, if in his opinion, the conversation is detrimental to the public interest or safety. In view of that safeguard which is adequate, no such interview can be utilised by the detenu for doing anything which would be prejudicial to the conservation of foreign exchange or for indulging in any of the other prejudicial activities listed in Section 3 of the Act. There is, therefore, no reason to impose this extremely unreasonable restriction of permitting only one interview per month which, it may be mentioned, would include not only an interview with his friends, but also with his own family members, to one per month. The learned Government Pleader sought to contend' that if a large number of interviews is permitted, it would create difficulties for the Jail Administration in providing the necessary staff knowing different languages required to be present at each such interview under Sub-clause. (vii) of Clause 12. The obvious answer to that is that it is for the State to provide staff of which the strength is commensurate with the number of persons detained. In our opinion, the provision of one interview per month has no relation to the objects of the Act and cannot be justified on considerations of sail discipline. It is true that under Sub-clause fix) of Clause 12 the Jail Authorities might permit additional interviews in excess of what is provided for in Sub-clause (ii) thereof, but the detenu would in that matter be at the mercy of the Jail Authorities who may or may not grant the same. It is also true that Sub-clauses (x) to (xiii) of Clause 12 provide for additional interviews with the detenu's legal adviser, with his business contacts, and for certain other specific purposes, but what we are now considering is the ordinary interview which a detenu would look forward to with his own family members, relatives and friends. A drastic .land unreasonable restriction of the nature to be found in Sub-clause (ii) of Clause 12 might in the long run have a very serious effect on the mental equilibrium or the nervous system of a detenu which may not be able to stand the strain of being isolated from the outside world. We, ; therefore, hold that Sub-clause (ii) of ^Clause 12 must be struck down. The 'petitioners have also challenged the validity of Sub-clause (xi) of Clause 12 under which only two special interviews can be permitted for the settlement of the business or professional affairs of the detenu, which must take place only within two '.months from the date of detention. It has been pointed out to us that most of the detenus are persons who have had large businesses and extensive properties and it would be impossible for each of them to arrange, his affairs in the course of only two interviews within a time limit of two months from the date of detention. In our opinion, this drastic restriction on business or professional affairs is also uncalled for and has no relation to the objects of the Act. As already stated in regard to Sub-clause (ii) of Clause 12. so long as the interview is held 'under conditions which prevent any abuse of the same for purposes contrary to the Act, for which adequate provision has been made in Clause 12 itself, the restriction of business and professional interviews to two interviews in all has no relation to the object of preventive detention. The object of preventive detention is not to ruin the detenu in his business or profession, or to j reduce him to penury. It must not be |forgotten that, after all. the detenu has also to provide adequately for the maintenance and support of his family members. For the same reasons as have been discussed in connection with Sub-clause (ii) of Clause 12, considerations of sail discipline also do not apply to this drastic restriction on the liberty of the detenu. We must, therefore, strike down this Clause also.

13. The next Clause which was sought to be impugned by Mr. Mehta is Clause 15 under which a detenu is ordinarily permitted to write two letters per week and to receive four letters per week which, of course, are subject to being censored by the Jail Authorities. In our opinion, a provision of this nature for writing two letters per week, without any restriction in regard to their length, cannot be considered to be unreasonable. It cannot also be considered to be unrelated to the objects of the Act in so far as it pertains to communication with the outside world which may well take place in a coded form. We are, therefore, not prepared to accept Mr. Mehta's contention. We hold that Clause 15 is valid.

14. The next impugned provision is Clause 19 under which, it is not disputed by the learned Government Pleader, it would not be open to a detenu to be attended or treated by his own physician or surgeon. There is absolutely no reason why a detenu should not be allowed to be treated by a physician or surgeon of his own choice who may be acquainted with his entire medical history. Not permitting a detenu to be so treated has absolutely no nexus with the object of preventive detention, and, in our opinion, apart from anything else, humane considerations would require that he should be so permitted. The Jail Authorities may well provide for the presence of any jail attendant or jail doctor at the time when a detenu is being visited by his own physician or surgeon, so as to prevent the same being misused for any sort of contact with the outside world which might be considered prejudicial to the objects of the Act. We cannot conceive of any considerations of jail discipline that should prevent the permitting of private medical attendance and treatment to a. detenu. The whole approach appears to us to be wrong in so far as it seeks to regard such normal requirements as being in the nature of privileges, an approach which the Supreme Court has categorically rejected in Prabhakar's case cited above. The learned Government Pleader sought to contend that Civil Surgeons are the best of doctors in the town, but in our opinion, that is a proposition that can hardly stand scrutiny, particularly in view of the fact that the detenu's choice of his own physician or surgeon would not be confined to a physician or surgeon practising at the place where he is detained. We have, therefore, no hesitation in striking down Clause 19 by reason of the fact that it does not contain any provision permitting the detenu being attended to and treated by a physician or surgeon of his own choice, and by necessary implication prohibiting the same, a restriction which has no relation with the objects of the Act.

15. The restriction contained in Clause 20 of the Conditions of Detention Order is, in our opinion, purely punitive nature. There is no reason whatsoever, and no relation with the objects of the Act, which would demand that a detenu should not be permitted to use normal toilet requisites like tooth-paste, tooth brush, tooth-powder, or toilet soap of his own choice at his own cost. The learned Government Pleader has very fairly admitted that this clause has been understood and acted upon as prohibiting the use of any toilet requisites other than those provided for therein, and indeed, that appears to be its -proper construction, by necessary implication. No considerations of jail discipline can possibly require such a restriction to be imposed on a detenu, and we have, therefore, no hesitation in striking down the same. The same remarks apply to the Conditions contained in Clause 21 under which a detenu |is not permitted to use shaving equipment |of his own, and can be allowed only to have the services of the sail barber once a 'week. Needless to say, provisions of the nature that are to be found in Clauses 20 and 21 inevitably lead to the conclusion that they are not meant to subserve the objects of the Act, but the executive thereby intends to punish detenus for unproved offences. If it is considered inadvisable to allow detenus to handle razors, there is no reason why they should not he allowed to use their own electric shavers or at any rate, to have the services of the jail barber as often as they choose, if necessary, at their own cost. The Condition contained in Clause 21 must, therefore, also be struck down without the (slightest hesitation.

16. That brings me to Clauses 23 and 24 of the Conditions of Detention Order which were also sought to be impugned by Mr. Mehta. The observations which we have made in the preceding paragraph in respect of Clauses 20 and 21, in our opinion, apply a fortiori to the restriction sought to be imposed by Clauses 23 and 24, under which a detenu is not permitted to smoke a cigarette or use tobacco of his own choice, or to play any indoor games like cards, chess, draughts, far carrom. It passes our comprehension |how such prohibitions can have any nexus with the object of the Act or could be considered to be necessary in the interest of .jail discipline. There can be no doubt whatsoever that these restrictions have been imposed with a punitive intent and are entirely uncalled for. It was faintly sought to be contended by the learned Government Pleader that permitting indoor games might result in the detenus gambling within the precincts of the sail, but there is no substance in that contention for the simple reason that in order to gamble one requires neither cards, nor a chess-board, or a draught-board, or a oarisommboard. The detenus may. if they so desire, very well gamble on the spin of a coin. The apprehension voiced by the learned Government Pleader appears to us to be far-fetched, and in any event, !is one which can certainly be taken care of by the sail attendants. The provisions contained in Clauses 23 and 24 must, therefore, also be held to be ultra vires Section 5 as well the object of the Act, and therefore, void.

17. There only remains for consideration the residuary Clause 31 of the Conditions of Detention Order which empowers the State Government, by general or special order, to withhold any 'concessions or facilities' provided by or under any of the provisions of that Order. The learned Government Pleader stated that Clause 31 only confers a power to alter, vary or delete any of the Conditions of Detention, a power which is implied in Section 5 itself. What is, however, objectionable in Clause 31 is the use of the words 'concessions or facilities', as if by the Conditions of Detention Order the authorities were graciously conferring any favours on detenus which they could withdraw at their own sees will regardless of the consideration as to whether the restriction so imposed has or does not have any nexus or relation with the object of the Act. As stated by the Supreme Court in Prabhakar's case : 1966CriLJ311 such an approach is entirely erroneous. and in the matter of the liberty of the subject, such an approach cannot be permitted. The various Clauses of the Conditions of Detention Order are, as stated by the Supreme Court in Prabhakar's case, merely conditions regulating the restrictions on the personal liberty of the detenu and are not privileges conferred on him. Rule 31, worded in the manner in which it is worded, is contrary to that salutary principle and empowers the imposition of restrictions which have a relation to the objects of the Act and must, therefore, be struck down.

18. Mr. Mehta also sought to rely on the provisions of Section 31 of the Prisons Act. 1894, which enact that a civil prisoner or an uncompleted criminal prisoner must be permitted to maintain himself, and to purchase, or receive from private sources at proper hours, food, clothing, bedding or other necessaries, but subject to examination and to such rules as may be approved by the Inspector General. A person preventively detained would fall within the definition of the expression 'civil prisoner' in Section 3 (4) of that Act. It was Mr. Mehta's contention that the application of the Prisons Act to detenus like the petitioner has not been excluded by Section 5 of the Act under which the Conditions of Detention Order has been made, and that the provisions of the Prisons Act must, therefore, be enforced, notwithstanding anything to the contrary in the Conditions of Detention Order. Mr. Mehta submitted that we should, for that purpose, issue appropriate directions of a positive nature as sought in prayer (c) (i) to (vii) of the Petition. It is true that a positive direction was given by the Supreme Court in Prabhakar's case cited above, in so far as the Government was directed to allow the manuscript book to be sent by the detenu to his wife for publication, and also by this Court in Mahmood Ahmed's case when it directed the respondents to allow the petitioner to receive, at his own cost, the newspapers and periodicals which had been refused to him. In both those cases, however, the granting of the positive order was the necessary consequence of the striking down of the impugned restriction. To that extent, a positive direction can be issued by us also in regard to the matters dealt with in clauses 9 (iii) and 19 of the Conditions of Detention Order which we have struck down on the ground that there is no nexus or relation between those clauses and the object of the Act-In our opinion, however, it would not be open to the Court to substitute its own judgment in place of the power statutorily conferred on the executive by Section 5 of the Act. and to give any positive direction as to the precise amount of pocket money, or the number of interviews that should be permitted to the detenu, or in regard to the nature of the toilet and other requisites as well as the recreational facilities dealt with in Clauses 20. 21. 23 or 24 of the Conditions of Detention Order. In so far. however, as Section 31 of the Prisons Act, 1894. which is a Central Act, contains a provision of a positive nature to the effect that a civil prisoner (which, as stated above, would include a detenu under preventive detention) 'shall be permitted' to maintain himself, and to purchase, or receive from private sources at proper hours, food, clothing, bedding or other necessaries, subject of course to routine examination, and in so far as Section 40 of that Act lays down that provision 'shall be made' for visits to the prison by persons whom the detenu may desire to meet, a positive direction in the nature of mandamus or under Articles 226 and 227 if the Constitution can certainly be issued by us compelling the authorities concerned to carry out the mandate of the legislature. As, in our opinion, there has been a breach of that statutory obligation with regard to Clauses 9 (iii). 10, 12 (ii) and (xi). 20 and 23. we are entitled to enforce the sama by appropriate directions of a positive nature. It may be mentioned that positive directions have not been sought in prayer (c) of the Petition in regard to Clauses 20 or 23. but the same would be covered by the relief claimed in prayer (b) thereof. Sub-clause (ii) of Clause 19 of the Conditions of Detention Order is clearly contrary to the Prisons Act, 1894, under, Sub-section (4) of Section 3 of Which a detenu would fall within the category of a 'civil prisoner', and cannot be treated as a convicted criminal prisoner as provided in Clause 19 (ii). A positive direction to treat the detenu as a civil prisoner for all purposes, including medical treatment in the event of illness, in accordance with the provisions of the Prisons Act must, therefore, be issued.

19. It was strongly urged before us both by Mr. Mehta and Mr. Diwan that the power contained in Sub-section (b) of Section 5 of the Act empowering the Government to remove a detenu from one place of detention to another, whether within the State or outside it, must not be allowed to be so exercised as to make the detention punitive, or to render the order passed by a Court at a particular place of detention nugatory by transferring the detenu within the jurisdiction of another Court There can be no doubt that there is implied a two-fold limitation on all statutory powers, viz., (1) that they must be exercised so as to subserve the-object, policy and spirit of the enactment, and (2) that they must be exercised, fairly, honestly and reasonably (vide Halsbury 's Laws of England, 4th Edition, Volume 1, page 67, para 60). It was contended that looking to the history of withdrawal of facilities to detenus, they have a reasonable apprehension that the executive government wants to treat this. class of detenus in a harsh and punitive-manner, and that we should mould our relief so as to provide a reasonable safeguard against the hardship that would be-occasioned by the improper exercise of the power of removal. In so far. however, as the validity of Section 5 of the-Act which confers that power is not sought to be challenged in the present case, we are unable to see how we can act in anticipation of the abuse of that power. We are, therefore, unable to grant any relief of the nature of that sought in prayer (c) (viii) of the Petition, or to impose any safeguard of the nature suggested by the learned Counsel for the petitioners. Whatever be the effect of the removal of the detenu to a place of detention situated in another State on that part of this judgment which strikes down certain clauses of the Conditions of Detention Order, the positive directions that we propose to give to the Union of India-(respondent No. 4) will be binding on it even if the second petitioner is removed to and/or detained in any other State. To that extent, at any rate, the Orders passed by this judgment cannot be rendered nugatory by removing the second petitioner to a place of detention in another State.

20. In the result, we make the Rule absolute, and issue writs, directions and orders under Articles 226 and 227 of the Constitution quashing and setting aside Clauses 9 (iii). 10, 12 (ii) and (xi). 19. 20. 21. 23. 24 and 31 of the Conditions of Detention Order. We also make the Rule absolute and issue writ, directions and orders under Articles 226 and 227 of the Constitution in terms of prayer (c) (ii) and (iv) of the Petition, We further make the Rule absolute, and issue writs, directions and orders under Articles 226 and 227 of the Constitution requiring the respondents to keep the detenu under detention as a 'civil prisoner' within the terms of and in all respects in conformity with the provisions of the Prisons Act, 1894, In accordance with the provisions of that Act. we direct that the second petitioner should be permitted to maintain himself by receiving such funds, not exceeding the sum of Rs. 200/- per month which he has claimed in prayer (c) (iii) of the Petition, as he may desire to have for that purpose from any of his relatives or friends, and to purchase or receive from private sources at proper hours food, clothing, bedding, and other necessaries, including toilet requisites, toilet soap, cigarettes and tobacco, subject to examination and to such rules (if any) as may be approved by the Inspector-General, as well as to meet persons with whom he may desire to communicate at proper times and under proper restrictions.


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