Mela Ram Sharma, J.
1. This petition under Article 226 of the Constitution has been filed by Shri Darshan Singh challenging the order of detention of his father Shri Jai Inder Singh, who is a prominent member of the Punjab Congress.
2. On November 1, 1974, the detenu was arrested under orders of the District Magistrate, Amritsar, passed by him in exercise of the powers vested in him under the Maintenance of Internal Security Act, 1971, as amended by the Maintenance of Internal Security (Amendment) Ordinance, 1974, and Clause (c) of Sub-section (6) of Section 6 of the Defence of India Act, 1971. The grounds of detention were served upon him on November 3, 1974. The order of detention was challenged in this Court in Criminal Writ Petition No. 216 of 1974. In the meantime, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called the Act), was passed by the Parliament of India. The earlier order of detention of the petitioner lapsed on December 19, 1974. Thereafter, the petitioner was served with new grounds of detention on December 23, 1974.
3. All the grounds except the ground mentioned in sub-para (d) were the same which had been put forth in justification of the earlier order of detention of the petitioner.
4. The grounds read as under:
(a) that with a view to dispose of your unaccountable Indian paper currency and to obtain smuggled gold in exchange for it, you sent Kuldip Singh alias Golah son of Shri Charan Singh Jat, resident of village Kaleh, P.S. Sadar, Amritsar, district Amritsar, a few days before 22-8-1974 to Ch. Khurshid resident of village Maini P, S. Narang, district Sheikhupura. Pakistan. There, abovesaid Kuldip Singh alias Kolah arranged a deal between you and above said Ch. Khurshid for obtaining gold of foreign markings in exchange of Indian currency at the rate of Rs. 500/- per tola. On this occasion the abovesaid Kuldip Singh gave Rs. 1,25,000/- to above said Ch. Khurshid on your behalf. As arranged, above said Ch. Khurshid, Pak smuggler, sent 25 biscuits of gold weighing 10 tolas each through Asgar alias Chinda s/o Mohd. Sharif a resident of village Daud, P. S. Rayya, district Sialkot (Pakistan) who delivered the same to you at your residence situated at Majitha Road, Amritsar in the early hours of August 23, 1974. Besides, he also delivered chit to you which showed the quantity of gold sent by above said Ch. Khurshid to you and money received by him earlier through above said Kuldip Singh alias Kolah.
(b) That again you sent Rs. 2,00,000/- in Indian currency through above said Kuldip Singh alias Kolah to deliver the same to above said Ch. Khurshid, Pak national, at his residence in village Maini in Pakistan who in exchange sent 40 smuggled gold biscuits of 10 tolas each through above said Kuldip Singh alias Kolah who gave the same to you at your above said residence on 19-9-1974.
(c) That again on the night of October 10, 1974, you received 60 smuggled gold biscuits weighing 10 tolas each at your above said residence from above said Asgar which were sent by above said Ch. Khurshid Pak National to you. In exchange you gave him Rs. 8,00,000/. in Indian Currency to be delivered to above said Ch. Khurshid in Pakistan.
(d) That on 31-10-1974, above said Ch. Khurshid again sent above said Asgar to you with a view to continue smuggling of gold, Above said Asgar crossed the border from near Pul Kanjri and was intercepted by Border Security Force party headed by Shri R.C. Verma, Assistant Commandant 27th Bn. B. S. F. From the personal search of above said Asgar two packets of cigarettes made in Pakistan were recovered. One contained cigarettes and the other was empty. On opening the empty packet of cigarettes it was found that the container contained the following message written in Urdu which was from above said Ch. Khurshid to you for continuing the smuggling activities : --
Sardar Jai Inder Singh Ji; Salam. Pichla Hisab Bebak Hai Aur Mal Tiar Hai. Paise Hamal Ruqa Haza Ke Hath Bhej Dewen Apka, KhurshidNote : The entire gold bearing foreign markings received by you in exchange of Indian currency notes, was smuggled from Pakistan secretly and through unauthorised routes.
5. Oil account of the activities of the detenu mentioned in the grounds, the Government of Punjab was satisfied that he was abetting smuggling of goods and the orders of his detention had been passed with a view to preventing him from the said activities.
6. On December 23, 1974, a Proclamation issued by the President of India was published in the Government of India Gazette Extraordinary;-
In exercise of the powers conferred by Clause (1) of Article 359 of the Constitution, the President hereby declares that-(a) The right to move any Court with-respect to orders of detention which have already beep made or which may hereafter be made under the Conservation of Foreign. Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974) or with respect to any other action (including the RA/making of any declaration under Section 9 of the said Act), which has already been and/or may thereafter be taken or omitted to be taken in respect of detention under such orders for the enforcement of the rights conferred by Article 14, Article 21 and Clause (4), Clause (5) read with Clause (6) and Clause (7) of Article 22 of the Constitution and, (b) All the proceedings pending in any Court for the enforcement of any of the aforesaid rights with respect to orders of detention made under the said Act or any other action (including the period of declaration under the said sections) taken or omitted to be taken in respect of detention under such orders shall remain suspended for a period of six months from the date of issue of this order or the period during which the Proclamation of Emergency issued under Clause (1) of Article-352 of the Constitution of the 3rd December, 1971, is in force whichever period expires earlier. This order shall extend to the whole of the territory of India.
7. The result of this Proclamation provided of course if it is not open to challenge, is that persons carrying on smuggling activities and detained under the provisions of the Act would not be able to seek their remedies in a Court of law based on Articles .14, 21 and 22 of the Constitution. Nevertheless, the order of detention could be challenged if it is shown that the provisions of the Act had not been complied with. For instance, Section 3 of the Act lays down that the State Government can pass orders regarding the detention of an alleged smuggler only if it is satisfied about his prejudicial activities. The question whether on the given material the State Government could have! formed the necessary satisfaction can be gone into by a Court of Jaw in spite of the aforementioned Proclamation issued by the President.
8. The order of detention has been challenged, inter alia, on the grounds that the Act was not within the legislative competence of the Parliament of India, that the President of India while issuing Proclamation dated December 23, 1974, acted in a colourable exercise of power, the grounds put forth in the order of detention were false and that no reasonable man could come to the conclusion on the basis of the facts alleged that his activities fell within the mischief of Section 3 of the Act.
9. In the return filed on behalf of the State Government, it has stated that the order of detention was passed against the detenu on December 19, 1974, and the same was duly served upon him. The grounds or detention on the basis of which the State Government passed the order were based on the material furnished by the District Magistrate, Amritsar, the competent authority was not actuated by any mala fide motives and the order of detention was passed on account of the activities of the detenu mentioned in the grounds of detention. It was further averred that 'the detenu indulged in these prejudicial activities with a view to get rid of paper currency, the possession of which he could not possibly explain and in exchange wanted to store gold.' The other pleas raised in the petition were also controverted. The District Magistrate, Amritsar, respondent No. 3 and the Senior Superintendent of Police, Amritsar, respondent No. 6 have also filed written statements to which reference would be made at the appropriate stage.
10. Shri H. L, Sibal, the learned Counsel for the petitioner, has argued this case with his usual eloquence and forensic ability. The learned Counsel has drawn ,my attention to Entries 9 and 36 of List 1 and Entry 3 of List III appearing in the 7th Schedule of the Constitution of India and has argued that the subject matter of conservation or augmentation of foreign exchange of the (?- prevention of) smuggling of goods does not fall within either of the aforementioned Entries. It was accordingly submitted that the Parliament was not competent to enact Act No. 52 of 1974. This matter is, however, concluded against the detenu by a judgment rendered by me in Criminal Writ No. 2.15 of 1974 (Punj) (Mahain Singh v. Union of India) on January 22, 1974. In that case, while following Union of India v. Harbhajan Singh Dhillon : 83ITR582(SC) , I held that even if the matter did not fall under any of the aforementioned Entries, the Parliament could exercise legislative power under Entry 97 of List I,
11. The other ground of attack against the constitutional validity of Act No. 52 of 1974 has been raised on the basis of Article 360 of the Constitution, which reads as under:
360. Provision as to financial emergency:
(1) If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect.
(2) The provisions of Clause (2) of article 352 shall apply in relation to a Proclamation issued under this article as they apply in relation to a proclamation of Emergency issued under article 352.
(3) During the period any such Proclamation as is mentioned in Clause (1) is in operation, the executive authority of the Union shall extend to the giving of directions to any State to observe such canons of financial propriety as may be specified in the directions, and to the giving of such other directions as the President may deem necessary and adequate for the purpose.
(4) Notwithstanding anything in this. Constitution : --
(a) any such direction may include:
(i) a provision requiring the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a State;
(ii) a provision requiring all money Bills or other Bills to which the provisions of article 207 apply to be reserved for the consideration of the President after they are passed by the Legislature of the State;
(b) It shall be competent for the President during the period any Proclamation issued under this article is in operation to issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the Union including the Judges of the Supreme Court and the High Courts.
12. It was argued that conservation and augmentation of foreign exchange has direct relationship with the financial stability or credit of India, and the same could be affected by smuggling activities : If the President issued a Proclamation under Article 360 of the Constitution for meeting the situation created by the smugglers, he could not have suspended the operation of Article 22 of the Constitution because this Article does not give any such power to him. By issuing a Proclamation under Article 352, the President has indirectly done something which he could not have done in the ordinary course. It was further submitted that even under Article 352, a Proclamation could be issued only if the security of India had been threatened whether by war, or by external aggression, or by internal disturbances and the activities of the smugglers did not fall under any of these contingencies. The Proclamation dated December 23, 1974, issued by the President, according to the learned Counsel for the petitioner, was a colourable exercise of power.
13. A close examination of the Emergency provisions contained in Part XVIII of the Constitution reveals that if the President is satisfied that a grave emergency exists whereby the security of India is threatened whether by war, external aggression or internal disturbances, he may, by Proclamation, make a declaration to that effect. So long as the Emergency continues, the fundamental rights guaranteed under Article 19 of the Constitution are automatically suspended. Further, it is open to the President to act under Article 359 of the Constitution and by order declare that the right to move any Court for the enforcement of such of the fundamental rights as may be mentioned in his order shall remain suspended for the period during which the grave Emergency continues to exist, The two Proclamations, namely, one under Article 352(1) and the other under Article 359 of the Constitution may either be issued simultaneously or the latter may follow the former. It cannot be disputed that a valid Proclamation under Article 352(1) was made by the President in 1971 when hostilities with Pakistan broke out. This Proclamation continues to be in force. Therefore, on the plain language of Article 359, it must be held that it was open to the President to suspend the right to move any Court for the enforcement of any of the fundamental rights.
14. The President, in his wisdom, did not think it proper to put a blanket ban on the right of the citizens to move any Court for the enforcement of all the fundamental rights and only took away the rights of those who were guilty of smuggling as defined in Section 2(e) or the Act. Frankly speaking, II fail to see how the President of India can be said to have exercised his powers in a colourable manner.
15. It is not a case in which the President may have thought of issuing a Proclamation under Article 352(1) merely because the smuggling activities had increased. This Proclamation had been issued earlier for valid reasons, During the continuation of the Emergency, it was open to the President to make use of this Proclamation for exercising powers under Article 359 to bar the rights of a class of citizens indulging in any undesirable activities to approach a Court of law for the enforcement of the fundamental rights. The issuance of a Proclamation under Article 352(1) is a political question which is not justiciable in a Court of law. An aggrieved party which asserts that this Proclamation is being utilised by the party in power for unreasonably suppressing the fundamental rights of the citizens can only appeal to public opinion. In the very nature of things, the power of the President to issue a Proclamation under Article 360 of the Constitution should also be regarded as a political question which is outside the scope of judicial review. While a Proclamation under Article 352(1) continues to operate it is not necessary for the President to duplicate matters by issuing another Proclamation under Article 360, provided of course if he feels that the measures which he can adopt under Article 359 would be sufficient to cope with the situation. When power lies in, a functionary to act under one or the other provision of law, the exercise of power by him cannot be struck down merely because he acted under one provision instead of the other.
16. Further, the scope of Article 360 of the Constitution is wholly different, This Article has been designed to enable the President to effect drastic cuts in State expenditure for enforcing economy. Resort can be had to its provisions even for reducing the salaries of the Judges of the Supreme Court and the High Courts which are guaranteed under the Constitution. In other words, Article 360 has a limited scope and its provisions may perhaps be found wholly inadequate if the activities of the smugglers having reached alarming proportions are to be combated on a war scale. The concern evinced by the Parliament about the activities of the smugglers is apparent from a reading of the following portion of the Preamble to the Act:
Whereas violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State.
17. The Parliament was of the view that the smugglers and those who indulged in violation of the foreign exchange regulations not only amassed wealth for themselves but they have completely paralysed the national economy which had adversely affected the very security of the State. In a situation like this, it was open to the President of India to issue a Proclamation under Article 359 to debar persons whose activities came within the mischief of the Act from enforcing their fundamental rights in the Courts of law.
18. If the arguments raised by the learned Counsel for the petitioner were to be accepted, then even if a smuggling potentate became powerful enough to overthrow the Government by law established, the President of India would only be left with a remedy to curtail budgetary expenses and salaries etc. by taking action tinder Article 360 of the Constitution instead of remedying the evil by having resort to Articles 352(1) and 359 of the Constitution.
19. It is no doubt true that while issuing a Proclamation under Article 360 of the Constitution, the President cannot bar remedies for the enforcement of the fundamental rights but there is no such thing in this Article to expressly prohibit the President to take action under any other provision of the Constitution, provided of course the relevant considerations are satisfied. A state of emergency under Article 352(1) is declared when there is a serious threat to the security of the State. In order to meet the serious situation, the executive Government has to adopt extraordinary measures; for during that period individual rights are of secondary importance. The paramount consideration at that time is to see that the State does not disintegrate. The citizens can enjoy their rights only if there is an organised State which is competent to enforce sanctions against those who violate these rights. A temporary suspension of the fundamental rights during an Emergency is, in essence, a step taken to protect the same rights of the citizens.
In order to achieve this end, the executive Government should be invested with unhampered discretion to take even the most drastic measures which may well have a bearing upon the financial, economic or political rights of the citizens guaranteed by different provisions of the Constitution, It would be DO argument to say that since financial difficulties can be solved by having resort to Article 360 of the Constitution under normal conditions, action should of necessity be taken under the same Article even if a Porclamation of Emergency under Article 352(1) is in valid operation. In my considered opinion, the Proclamation issued by the President on December 23, 1974, taking away the right of the smugglers detained under the Act to move any Court for the enforcement of fundamental rights conferred by Articles 14, 21 and Clauses (4) and (5) read with Clause (6) and Clause (7) of Article 22 of the Constitution as also its application to the pending proceedings are unexceptionable. It was not necessary for the President to invoke his powers under Article 360 during the period when a Proclamation under Article 352(1) was in operation,
20. Coming now to the submissions made on the merits of the controversy, it may be observed that if the action taken by the Government is mala fide, no other consideration would arise in the case. Any action which is taken as an oblique motive or for grounds which are extraneous to the statute would be liable to be struck down. At the same time it lies very heavily on the petitioner to prove that the action taken by the State Government was mala fide. The allegations in support of such a plea should be clear and cogent. All the necessary facts must be pleaded so that the opposite party is given sufficient notice to rebut the same. In the instant case, the petitioner has merely alleged that the detenu was holding important offices in the Punjab Pradesh Congress and some of the decisions which he took on policy matters had annoyed some of the unscrupulous persons who were opposed to these policies. No reference has been made to the decisions which the detenu took nor has any indication been given of the persons who were annoyed by such decisions. The order of detention in this case has been passed by the Minister-in-charge of the Home Portfolio. There is not even the slightest suggestion in the petition that the Minister-in-charge was displeased with the detenu. In this state of affairs, the allegation that the order of detention of the detenu has been passed on account of mala fide considerations remains wholly unsubstantiated.
21. Faced with this situation, the learned Counsel for the detenu submitted that the validity of the order of detention be considered in the background of the prominent position enjoyed by the detenu and it should 'be assumed that because of the political decisions which he might have taken some persons in authority must have been annoyed with him. In the first place, it is difficult for a Court of law to entertain such conjectures. Secondly, an argument like this cuts both ways. Sometimes, the persons holding responsible positions do cause annoyance to the members of their own political parties but it can also be argued that if action is taken against a prominent member of the party which is in power, there must be some basis for that action. After all there is an initial presumption in favour of the proper performance of duties by the Ministers of the State Government and the public servants. This presumption cannot be rebutted by the vague allegations of the kind made in this petition,
22. A brief reference to the grounds of detention may now be made. Ground (a) discloses that a few days before August 22, 1974, the detenu detailed Kuldip Singh alias Kolah to deliver a sum of Rs. 1,25,000/- to one Ch. Khurshid, a Pak National, so that the latter may send 25 biscuits of gold weighing ten tolas each. This gold is said to have been actually delivered to the detenu by one Asgar, a carrier engaged by Ch. Khurshid. Ground (b) discloses that Rs. 2,00,000/- were again sent through Kuldip Singh to Ch. Khurshid, who in exchange for this money sent 40 biscuits of smuggled gold of ten tolas each through the said Kuldip Singh. This gold was delivered to the detenu on September 19, 1974, at his residence. Ground (c) discloses that the said Asgar delivered 60 smuggled biscuits of gold weighing ten tolas each to the detenu on the night of October 10, 1974, in exchange for Rs. 3,00,000/- in Indian currency to be delivered to the said Ch. Khurshid in Pakistan. Ground (d) discloses that on October 31, 1974, the said Asgar was sent with a message to the detenu indicating to him that the previous account had been squared up, more goods were ready and money should be sent through the bearer of the letter.
This message implies that more quantities of gold were ready for being despatched to India. Prima facie all these grounds show that the detenu was actively abetting the smuggling of gold into this country and his activities fell squarely within the mischief of Section 3 of the Act. On the basis of the facts mentioned in the grounds, it could not be argued that the State Government could not at all feel satisfied that the detenu was acting in a manner prejudicial to the conservation or augmentation of foreign exchange by abetting the smuggling of gold. The argument raised is that these grounds are totally false and have been manufactured to falsely implicate the detenu.
23. It is submitted that a criminal complaint was filed against the detenu, two Congress workers and the General Secretary of the City Congress Committee by one Surinder Singh Sandhu of Hussainipura, Amritsar, under Sections 324 and 325 read with Section 34, Indian Penal Code. In this complaint, the detenu had been summoned by the learned trial Magistrate to appear in Court and the dates of appearance were August 23, September 19 and October 10, 1974. It is alleged that these three dates had been specifically chosen so that the detenu may not be able to set up a plea of alibi. The precise argument raised is that by no law of probability would the three dates regarding the appearance of the detenu in Court coincide with the dates on which he received the smuggled gold.
24. The price at which smuggled gold was being supplied by Ch. Khurshid, a Pak National, was also criticised op the ground that according to the Pakistan newspapers the price of gold at Karachi and Lahore was Rs. 600/- per tola, and that the same could not have been sent to India with the attendant risks of capture etc, for being sold at the rate of Rs. 500/- per tola. In this connection, reliance was placed on grounds of detention served upon another detenu, namely, Roshan Lal Wazirabadi, by the same District Magistrate which discolsed that the smuggled gold was being supplied at the rate of Rs. 600/- per tola from Pakistan. The disparity in the supply price of gold was pressed into service for an argument that the District Magistrate did not apply his mind.
25. It was also submitted that Asgar, the Pak National, was admittedly arrested at 12.15 P. M. on October 31, 1974, when the incriminating writing on the container of an empty packet of cigarettes was recovered from his possession. The Assistant Commandant of the Border Security Force who arrested Asgar near Pul Kanjari sent a raqa for the registration of the case at Police Station, Gharinda. The registration of the first information report, the consequent preliminary investigation and the reporting of the matter to the Senior Superintendent of Police, Amritsar, must have taken considerable time. In ether words, this matter could not have been brought to the notice of the District Magistrate, Amritsar, who passed the impugned order of detention on October 31, 1974. Kuldip Singh was also arrested on the same date even though some warrants for his arrest had been issued earlier. The argument raised is that the result of the interrogation of Asgar and Kuldip Singh could not have been brought to the notice of the District Magistrate on the same date so that the latter could justifiably pass an order of detention of the detenu.
The aforementioned criticism of the grounds of detention reminds one of the arguments which are usually advanced on behalf of the defence in the trial of a criminal case, but I cannot lose sight of the fact that in a criminal trial a Court determines the guilt or innocence of the accused on the basis of the facts determined by it. In this process, due weight is given to various considerations, namely, the prompt lodging of the first information report, the mention of the names of the prosecution witnesses therein, the credibility of the prosecution witnesses and the overall probabilities of the case. The same approach cannot be adopted while determining whether the State Government could have been satisfied or not within the meaning of Section 3 of the Act regarding the unlawful; activities of a smuggler. Satisfaction as mentioned in Section 3 of the Act denotes a state of mind of the authority concerned. If the mind of the authority is shown to be vacillating, it could be said that it was not satisfied with regard to the existence of a particular state of affairs but if the decision arrived at by it, may be on the basis of slender or conflicting evidence, is firm no finding regarding the absence of its satisfaction can be given.
26. These considerations apart, the points raised by the learned Counsel for the detenu are not wholly susceptible of one interpretation. If the detenu was a busy man and he had to receive gold at Amritsar, he might have chosen the three dates when he had to be present in Amritsar in connection with the criminal case. If the authorities are expected to be vigilant in putting an end to smuggling activities, their actions cannot be criticised on the ground that they took prompt remedial action. Again, the rates at which the two international smugglers agreed to supply commodities to one another may depend upon a variety of considerations of mutual interest. This Court in exorcise of jurisdiction under Article 226 of the Constitution cannot sift the evidence to determine whether an order of detention should have been passed against a detenu or not. The Parliament in its supreme wisdom has conferred this duty upon the Advisory Boards constituted under Section 8 of the Act. The Board constituted under the Act is being presided over by an ex-Judge of this Court. I have no doubt in my mind that ii the submissions made before me about the merits of the grounds of detention are urged before the Board, they would receive the consideration which they deserve.
27. Last of all, it was submitted with reference to ground (a) that possession of unaccounted currency did not fall within the ambit of Section 8 of the Act. Since this irrelevant ground had also been urged in support of the order of detention the order should be struck down because it cannot be said as to what extent the mind of the detaining authority had been affected by this irrelevant ground. This argument is also devoid of any merit. The allegation that the detenu sent Kuldip Singh to Pakistan for arranging supply of gold with a view to disposing of his unaccountable Indian paper currency has a. definite nexus with the grounds mentioned in Section 3 of the Act.
28. As a result of the foregoing discussion, I hold that the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act No. 52 of 1974) is within the legislative competence of the Parliament of India, the Proclamation issued by the President and published in the Government of India Gazette Extraordinary dated December 23, 1974, has been issued in proper exercise of power and the order dated December 19, 1974, passed by the State Government regarding the detention of the detenu was unexceptionable, This petition deserves to be dismissed and I order accordingly.