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Dr. Teja Singh Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1951CriLJ33
AppellantDr. Teja Singh
RespondentThe State
Excerpt:
.....ordered to be detained bad been measured with the same yard-stiok of appraisal and circumspection, and that the detaining authority intended that the imposition of the longest period of detention provided by law was called for. it is, therefore, imperative for the detaining authority to prescribe the term of detention and the failure to do so and leaving it to the maximum period permissible under the law if intended would make the order of detention doubtlessly vague. the district magistrate in the case under examination has not applied his own mind and exercised his own discretion regarding the specific period for which it was necessary to detain the applicant for the purposes mentioned in section 3 of act iv 4. of 1960 and since he did not do the order of detention being bad in..........of clause (7). sub clause (b) of ol. (7) authorise the parliament to frame law to prescribe the maximum period for which any person may in any class or classes of cases be detained. no advisory board, as contemplated by sub-clause (a) or clause (4) has so far been constituted in the patiala and east punjab states union, but a person's detention beyond three months bat not exceeding one year would not be illegal as the parliament has, under authority -given by the constitution and in conformity (with?) sub-clause (b) of clause (7), prescribed, as is given in section 19, preventive detention act, 1950, the maximum of one year, for which any person to whom section 3 of act iv 4. of 1960 can be made applicable and whose detention is necessary for the security of the state or maintenance.....
Judgment:
ORDER

Passey, J.

1. This is an application under Article 226, Constitution of India, for issue of a writ of habeas corpus and for release of the detenu. Shri R. S. Piilta, District Magistrate, Patiala, on being satisfied that with a view to preventing him from acting in a manner prejudicial to the -seourity of the State or the maintenance of publics order, it was necessary to detain the petitioner, made an order in the exeroise of the powers conferred by Section 3 (2), Preventive Detention Act, 1950, that he be detained in the Central Jail. The grounds on which the detention order was based were supplied to the detenu that very day and they stated that he had in his speech in the Qaumi Sadhar Conference held at village Barketpur on 8/9-19-2006 incited the tenants against the biswedars, that he was a regular subscriber of communist literature and was circulating that literature among Comma-nist sympathisers, and that he was in communication with certain under ground Communists. In his application, the detenu has urged that the grounds of detention;, as supplied to him, are vague, insufficient and incomplete and that there was entirely no material in possession of the District Magistrate on the basis of which he could be ordered to be kept in custody. He baa added that he never delivered any speech on 8/9-12-2006 at Barketpur and never incited tenants against the bisweiars. Tbe allegations of his being a member of the Communist party, or of his having been a subscriber to Communists literature or of his having distributed that lite. rature among other people have also been denied. The applicant was, at bis request, given opportunity to prove that his detention was illegal or improper, and he examined Shri R. S. Palta, District Magistrate, and put himself in the witness-box. The District Magistrate has repeated that he was for reasons mentioned in the order of detention satisfied that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the safety of the State or the maintenance of order. The detenu has, however, in his statement denied his association with the Communist party or the alleged under-ground Communists and has farther not accepted as true that he made any speech at Barketpur.

2. It is contended by Mr. Puran Chand that the order of detention and the grounds on which it is based are vague and indefinite and, therefore, the detention of the petitioner is illegal, He has described the order of the District Magistrate as vague as it does not specify the period for which the detention of the person concerned has to be operative and has urged that since in making the order of detention under Section 3 of Act iv 4. of 1960 the detaining authority has not observed the prescribed rules of procedure, inasmuch as he has not laid down the period for which the detenu is to remain in custody, the detention is not in consonanoa with law and is void. The learned Assistant Advocate-General on the other hand in repelling the argument has relied upon S3. 12 and 19, Preventive Detention Act, 1960, and contended that there is no provision in the Preventive Detention Act or tha Constitution of India requiring the detaining authority to specify the period of detention when making an order under Section 3 of Act IV 4. of 1950 and before an order of detention can be asked to be vacated on this ground it must be shown that a distinot rule has been infringed and that that rule enjoined upon the authority concerned to frame the order of detention so as necessarily to include the time for which the person affected was to be -detained. He has farther argued that Section 12, Preventive Detention Act, 1950, lays down a maximum of one year for such detention and that where the order of detention fails to give the specified period of detention it should be taken that the detaining authority intended that the detention should continue for the period of one year. Continuing his argument, Shri Chetan Das urged that in the present case the petitioner has not remained under detention for two months even and he has, therefore, not been prejudiced at all since ten months have yet to expire before the maximum term is reached. Finally he has contended that a safeguard against Any hardship that might be occasioned by the non-specification of the period of detention in the order of detention is provided by B. 13, Preventive Detention Act, 1960, and the Government would, if satisfied that an earlier release is warranted make an order accordingly even before the one year laid down in Section 12, Preventive Detention Act, 1960.

3. Clause (4) of Article 92 of the Constitution of India, which falls in chap, III relating to declaration of Fundamental Bights, lays down that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless the Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, constituted for the purpose, has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for each detention, or unless such person has been detained in accordance with the provisions of any law made by Parliament under Sub-clauses (a) and (b) of Clause (7). Sub Clause (b) of ol. (7) authorise the Parliament to frame law to prescribe the maximum period for which any person may in any class or classes of cases be detained. No Advisory Board, as contemplated by Sub-clause (a) or Clause (4) has so far been constituted in the Patiala and East Punjab States Union, but a person's detention beyond three months bat not exceeding one year would not be illegal as the Parliament has, under authority -given by the Constitution and in conformity (with?) Sub-clause (b) of Clause (7), prescribed, as is given in Section 19, Preventive Detention Act, 1950, the maximum of one year, for which any person to whom Section 3 of Act IV 4. of 1960 can be made applicable and whose detention is necessary for the security of the State or maintenance of public order, can be detained without obtaining the opinion of the Advisory Board, It is clear, however, as ia indicated by the provisions of Article 22 of the Constitution of India, read with Section 12, Preventive Detention Act, 1960, that ordinarily a detention should not enure for more than three months to start with but this period could be extended in certain circumstances, regard being; had to the facts of a particular case and the extent of danger to the maintenance of public tranquillity apprehended at the hands of the particular person, to a maximum of one year Section 13, Preventive Detention Act, 1960, deals with the duration of detention in certain cases and lays down that any person detained with a view to preventing him from acting in any manner prejudicial to the Defence of India, relationa of India with foreign powers or the security of India or the security of a State or the Maintenance of Public Order may be detain, ed without obtaining the opinion of any Advisory Board for a period longer than three months but not exceeding one year from the date of his detention. I have used the word 'ordinarily' in contradistinction to the word 'must' because it is open under the law to the detaining authority to direct detention for more than three months' but for less than a year straightway in appropriate cases, but to my mind that would be in view of the particular circumstances of the case and not as a rule. At any rate, it cannot be doubted that the intention of the Legislature is that the period of detention should be proportionate to the extent of the apprehension that the activities of the detenu warrant and that it should be as short as necessary or as short as possible and if this intention is to be given effect) to it would follow as corollary that the period of detention must essentially be prescribed in the detention order itself, I am unable to agree with the argument of the learned Assistant Advocate-General that where the order of detention does not mention the period for which the order has to remain effective, it should be presumed that the detaining authority intended that the detention should be for one year. In the first instance, the argument is out side the four-corners of the Preventive Detention Act or any other law and in the second it would lead to confusion and absurd conclusions. We have had a number of similar cases before us and quite a good number is due to come up for hearing in which no period of detention in the order of detention can be found mentioned. Should we presume in all those oases that the activities of persons ordered to be detained bad been measured with the same yard-stiok of appraisal and circumspection, and that the detaining authority intended that the imposition of the longest period of detention provided by law was called for. The absence of specification of the period would render the order of detention vague as not only would the officer commissioned to detain a particular person not knowing for how long he is to keep him in custody, bat the person affected would also not know as to how long ha is to abide by the preventive treatment administered to him. If the term of his detention is short he may elect not to make any representation to the Government at all. When a maximum punishment is provided for an offence and the order of conviction does not specify the term, within that maximum to which the offender has been sentenced, the order of conviction would be liable to be set aside on that score alone. It is conceded by the State counsel that in that case it would not be possible to urge that the maximum penalty should be presumed to have been awarded. The period for which a person is ordered to be detained is the measure of the scope and extent of his activities that are likely to be prejudicial to the safety of the State ok the Maintenance of Public Order and when no period of detention is specified in the detention order it is impossible to know if the detaining authority had weighed the material before him concerning the detenu on which he founded the order of detention and the inference would be permissible that the detention of the person concerned has been ordered capriciously and haphazardly. Section 12, Preventive Detention Act; 1950, no doubt lays down that under certain conditions mentioned in it, the maximum of one year can be the period of detention but it cannot by any strech of imagination be taken to have also laid down that where the detaining order made under Section 3, Preventive Detention Act, 1950, fails to give the period of detention the detention would be deemed to have been ordered to be for the maximum of one year, The specification of the period of detention is one of the indispensable essentials that would go to make the order of detention legal and valid in the eye of law. It is, therefore, imperative for the detaining authority to prescribe the term of detention and the failure to do so and leaving it to the maximum period permissible under the law if intended would make the order of detention doubtlessly vague.

4. The next point to be decided is whether the defeat caused by the non-specification of the period of detention can be cured by the fact that the Government in the exercise of powers conferred upon it by Section 13, Preventive Detention Act, 1950, can revoke or modify the order of detention. The provisions of the Preventive Detention Act, although they invest the Government with powers of modification or revocation of the detention order, yet they do not contemplate that the original order of detention should be regarded to have been made for the maximum of one year, provided by S. is of Act IV 4. of 1950 and the 'sliding down' can be effected later by the Government under Section 13. The entire order of detention can be quashed by the Government and the period of detention, however small, can be reduced to a still smaller scope, but this cannot mean that the necessity of prescribing the period of detention is obviated, The Government might, subsequent to its having been passed in appropriate oases, rescind the order of detention or reduce the severity of the period of detention on account of any legal or other blunder or indiscreetness in the detaining order yet the blunder or the indiscreetness would be there which would vitiate the order. I am, therefore, definitely of the opinion that the existence of another remedy that may possibly be used by the Government for affording relief cannot validate the order of detention which was unsustainable in law when it was made. The District Magistrate in the case under examination has not applied his own mind and exercised his own discretion regarding the specific period for which it was necessary to detain the applicant for the purposes mentioned in Section 3 of Act IV 4. of 1960 and since he did not do the order of detention being bad in law must be set aside. In view of the law that I have taken it is not necessary for me to consider the other points raised by the learned Counsel of the-petitioner. The application is accepted. The applicant shall be released forthwith


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