Gurdev Singh, J.
1. This order will dispose of six criminal miscellaneous petitions (Nos. 1087, 1101, 1103, 1106, mi and 1113 of 1963) Under Section 491 of the Criminal Procedure Code for the release of Harkishan Singh Surjeet, Des Raj Chadha, Dalip Singh Tapiala, Chanan Singh Dhut, Hazara Singh Hamdum and Satwant Singh, respectively, who are being detained by the Stale of Punjab under the Defence of India Rules, 1962, as they involve common questions of fact and law for determination.
2. On 20th November, 1962, the Governor of Punjab acting under Rule 30 (1)(b) of the Defence of India Rules, 1962, (hereinafter referred to as the Rules) passed orders for detention of several communist workers, including the six petitioners (Des Raj and others), 'with a view to preventing them from acting in a manner, prejudicial to the defence of India and civil defence.' The order was made in the name of the Governor and did not specify the period for which each of the petitioners was to be detained. Having been arrested in pursuance of these orders, the petitioners were committed to the custody of the Superintendent, District Jail, Hissar, where they are still being detained. As Rule 30 of the Defence of India Rules, 1962, does not prescribe the maximum period for which a person may be detained, the Central Government, with a view to ensure that a person once detained under that rule may not remain in detention for an indefinite period, has made provision in Rule 30-A for periodic review of the cases of such detenus. Sub-rule (9) of Rule 30-A, which is relevant for our purposes, runs as under:
30-A (9). Every detention order made by the Central Government or the State Government shall be reviewed at intervals of riot more than six months by the Government who made the order and upon such review that Governmentshall decide whether the order should be continued or cancelled.
3. It is common case of the parties that in accordance with this provision the cases of all the six detenus had to be reviewed by the State Government in the first instance before 20th May, 1963. and in case of non-compliance with Rule 3O-A(9), their detention after 19th May, 19&3, would be void. Failing to get any intimation from the authorities about any action taken under this Rule, each of the petitioners decided to move this Court Under Section 491 of the Criminal Procedure Code. For that purpose, each of them, excepting Satwant Singh, swore an affidavit before the Superintendent, District Jail, Hissar on 9th September, 1963. Satwant Singh also made a similar affidavit, but that was on 10th September, 1963. On the basis of these affidavits, these six petitions and others were moved in this Court in the last week of September, 1963, through Shri Balbir Singh Bindra, Advocate, questioning the validity of the petitioners' detention and seeking directions in the nature of habeas corpus.
4. The legality of the petitioners' detention was assailed on the ground that the petitioners' cases had not been reviewed within the prescribed period of six months from the date of the detention Order (20th November, 1962) in accordance with the provisions of Sub-rule (9) of Rule 30-A of the Defence of India Rules, 1962, nor had any decision of the Punjab Government to continue-their detention beyond six months been communicated to the Jail Superintendent, to whose custody they were originally committed, or to the petitioners themselves, and because of non-compliance-with this mandatory provision of law, their detention after 19th May, 1963, had become unlawful.
5. A rule was issued to the State of Punjab and the Superintendent District Jail, Hissar (respondents 1 and 2). By way of return, only an affidavit of Shri J. D, Khanna, Deputy Secretary to the Government, Punjab, Home Department, Chandigarh, dated 8th October, 1963, was placed on record in all these cases. In that affidavit it was stated that there had been no non-compliance with Rule 30-A of the Defence of India Rules, 1962, and as a matter of fact the cases of the various detenus, including the petitioners, were reviewed by the State Government on 14th May, 1963, which was well within the period of six months of the date of the original order of detention, and that the decision of the Government or such review to continue their detention was communicated to the petitioners on 13th September, 1963, though it was not necessary to do so. O the basis of these facts it was asserted that the-detention of each of the petitioners was valid, and they were not entitled to any relief Under Section 491 of the Criminal Procedure Code.
6. At the hearing on nth October, 1963, the-petitioners' counsel admitted that an intimation. garding the review of their cases was served upon each of the petitioners in jail on 13th September, 1963, but it was pointed out that the date of review mentioned therein was 13th May, 1963, and not 14th May, 1963 as alleged in the affidavit of the Deputy Secretary (Home). It was contended that since this communication was issued after the petitioners had sent the ffidavits to their counsel for moving this Court Under Section 491-A (sic) of the Criminal Procedure Code, it was obvious that it was only on getting information of the fact from the Superintendent, District Jail, Hissar, before whom the affidavits had been sworn that the petitioners intended to challenge their detention i this Court, that the authorities had suddenly realized the lapse on their part and put forward an incorrect claim that the case of each of the petitioners had been reviewed by the State Government on 13th May, 1903, before the expiry of sis months from the date of their detention order. In view of the circumstance that the intimation regarding the review was given to each of the petitioners only after he had sworn an affidavit before the Superintendent District Jail, Hissar, for the purpose of making an application Under Section 491 of the Criminal Procedure Code, and there was a discrepancy about the date on which the review was alleged to have been made by the State Government in the intimation served upon the petitioners and the affidavit of Shri J. D. Khanna, Deputy Secretary, Government Punjab, Home Department much reliance could not be placed on the affidavit of the Deputy Secretary in which no effort had been made to reconcile the conflict about the date on which the cases of the petitioners were reviewed.
Accordingly, the State was called upon to place all relevant material before the Court to satisfy it that the cases of each of the six detenus were reviewed before the 20th of May, 1963. The operative part of that order, dated nth October, 1963, runs as follows:
Thus, there is a serious dispute between the parties as to the date on which the petitioner's case was reviewed under Sub-rule (9) of Rule 30-A of the Defence of India Rules. Considering the fact that the result of the review was communicated to the petitioner after he had expressed his intention to move this Court Under Section 491-A of the Criminal Procedure Code, it is for the State to satisfy this Court that the provisions of Sub-rule (9) of Rule 30-A of the Defence of India Rules were complied with. The affidavit of Shri J. D. Khanna, Deputy Secretary, which has been placed on record, does not suffice for that purpose as the State has not taken up the position that he was the Reviewing Authority. I, accordingly, direct that all relevant material relating to the review of the petitioner's case should be placed before this Court on 21st October, 1963. If any affidavits have to be produced in that connection, the respondents should furnish the same before 19th October, 1963, with copies to the counsel for the opposite party.
7. At the adjourned hearing, the State of Punjab contented itself by merely placing on record the affidavits of Shri Mohan Lai, Home Minister, Shri A. N, Kashyap, Home Secretary, and Shri Santokh Singh, Superintendent, Emergency Branch of the C. I. D. Office at Chandigarh. No documentary evidence with regard to the review of the case of any of the petitioners, not even the final order passed on review, or its copy, was produced before the Court. This withholding of the documentary evidence concerning the reyiew of the petitioners' cases was sought to be defended by the Assistant Advocate General, who was then appearing for the State of Punjab, on the strength of the averments contained in paragraph 5 of the affidavit of Shri A. N. Kashyap, dated 19th October, 1963, which runs as follows:
I say that as the office noting with regard to detention and review of the cases of 47 communists including that of petitioner forms part of the unpublished official records relating to the affairs of the State and being of confidential nature, the deponent is not in a position and is not willing, to produce the official confidential records in Court.
8. In reply, learned Counsel for the petitioners pointed out that nobody ever wished to pry into the confidential notings relating to the review of the petitioners' cases but they merely wanted that the relevant order concerning the review should be produced in Court as it was the best evidence of the date on which it was made, and such an order was not privileged as on the respondent's own admission the result of the review had already been> communicated to the petitioners. Even on the next day, to which the proceedings were adjourned-at the request of the Assistant Advocate General, no further material was placed on record by the State and the learned Advocate General, who appeared for the State on that day assisted by one-of his Deputies, again stated that the State was not willing to produce any documentary evidence-relating to the proceedings concerning the review of the petitioners' cases, not even the final order, as all the proceedings were contained in a confidential file and the order embodying the result of the review was passed by the Home Minister in the same file on the notings recorded by various-officials including the Superintendent of Police-(C.I.D.), D.I.G., (C.I.D.), and Secretary to the Government, Home Department. He, howeyer, offered to give verbal information about the final-order of review.
The only information then given by him was-that on receiving the note of the D.I.G. (C.I.D.), Punjab, on 14th May, 1963, the Home Secretary, Government Punjab, recorded his own note on a fresh page of the file, which reproduced in extensoread:
For approval as at A,
and then marked the file to the Home Minister, who merely appended his signature below this-endorsement of the Home Secretary on 14th May, 1963, and returned the file to the Home Secretary. This signature of the Home Minister, according to> the learned Advocate General, was in token of his approval to the recommendation of the Home Secretary that the suggestion made by the D.I.G., (C.I.D.) in the concluding portion of his not (which was held back) be accepted.
9. The learned Advocate General admitted. that consequent upon this approval of the Home Minister, no formal order containing the decision; of the Reviewing Authority concerning the detention of the petitioners was ever drawn up or communicated either to the Superintendent, District-Jail, Hissar, where the petitioners were confined or to any other authority. He, however, maintained that no formal order embodying the result of % review was necessary and, in any case, the irmrrmnirntinn which was addressed to the detenus by the Deputy Secretary, Home Department, on nth September, 1963, and delivered to them on 13th September, 1963 could be considered as an order pissed under Sub-rule (9) of Rule 30-A of the Defence of India Rules. This order of 11% September, 1963 which reached Satwant Singh petitioner was produced by his counsel in the course of these proceedings. Reproduced in extenso, it reads as follows:
Subject:'- Review of Detention Order issued toy the State Government as required by Rule 30-A(g) of the Defence of India. Rules:In pursuance of the provisions of sub-r. (9) of Rule 30-A of the Defence of India Rules, 1962, the State Government on 13-5-63, on review of the detention order made on 20-11-1962 in respect of Shri Satwant Singh, son of Niranjan Singh, leaiicat of Ludhiana, district Ludhiana, detaining turn under Rule 30(1)(b) of the aforesaid rule, had decided that the aforesaid detention order continue.
10. Admittedly, the petitioners are being is pursuance of the orders passed by the Punjab, under Rule 30(b) of the Before of India, Rules, 1962, on 20th November, 1962. Curiously enough, even the original detention orders or copies of the same were not filed with the return. It is, however, common case of & parties that the order was passed in the name of %e Governor committing the petitioners to the custody of the Superintendent Jail, Hissar, for -detention without specifying the period for which the had to be detained. Rule 30(1)(b) does not prescribe the maximum period for which a person eas be detained, but under Sub-rule (9) of Rule 30-A the State Government is required to review the caw of such a detenu within six months of the date of the detention order. It was conceded by the learned Advocate General that this provision re-giurdisg the review of the cases of the detenus was mandatory, and if the revive was not made within sir moftths of the date of the detention order, the custody of the detenu subsequent to the expiry of six Months would be unlawful and he would be entitled to relief Under Section 491-A (sic) of the Criminal Procedure Code. The learned Advocate Teatime, however, submitted that in this case the affidavits furnished by the Home Minister, Home Secretary, Superintendent of the Emergency Branch of the C.I.D. Office, and the Deputy Home Secretary asserting that the cases of the petitioners were reviewed on 14th May, 1963, were sufficient evidence of the fact that the provisions of Sub-rule (9) of Rule 30-A had been complied with, and on review the State Government had decided that the we their detention, be continued.
Shri Anand Samp, appearing on behalf of the petitioners, however, argued that the material 'Section for consideration of the Court being the lacquer which the cases of the petitioners were reviewed, the mere affidavits of its four officials rinsed on record by the Government, Punjab, could mot be accepted and there was sufficient material of the record which indicated that their averments with regard to the date of the review were not correct. In this connection, he pointed out that the detenus who were under detention could possibly have no personal knowledge of the date on which their cases were reviewed, but there was abundant circumstantial evidence to disprove the assertion of the State that their cases were reviewed on 14th May, 1963, by the State Government. The various circumstances upon which he placed reliance are:
(a) that despite opportunity, no order of review had been produced;
(b) that the date of rerview given i the four affidavits filed on behalf of the respondents (14th May, 1963) is in conflict with the date conveyed to the petitioners in the communication addressed to them by the Deputy Home Secretary on 11% September, 1963, as in that memorandum it was clearly stated that it was on 13th May 1963, that the State Government had decided on reviewing their cases to continue the. order of their detention;
(c) that the entire documentary evidence relevant to the matter in controyersy had been withheld by the respondent;
(d) that if their cases had been reviewed in May, 1963, the decision of the Government would have been communicated to the detenus soon after, but in the instant case it was only on 13th September i 1963, after the detenus had taken steps with a view to approach this Court under Sectioa 491 of the Criminal Procedure Code that they received the communication from the Government;
(e) that the final order embodying the result of their review was not a privileged document and its withholding by the State led to the presumption that if the original had been produced, it would have gone against it;
(f) that the assertion of the Advocate General that no formal order embodying the result of the review was drawn up or conveyed to the Superintendent Jail or any other authority was sufficient proof of the fact that the petitioners' cases were never reviewed within the prescribed period;
(g) that the assertion of the Respondent that the cases of all these 47 communist detenus, including those of the six petitioners, were considered together on 14th May, 1963, by the Home Secretary and thereafter by the Home Minister, and each of them bestowed individual attention on the cases of each of the 47 detenus on the basis of the reports submitted by the District Magistrate and other authorities, was intrinsic evidence of the fact that the affidavits were false as it could not have been possible .both for the Home Secretary and the Home Minister acting separately to go through the record of the activities of such a large number of detenus as 47 on a single day besides attending to their other routine work, and
(h) that as stated by Des Raj in his affidavit, dated 9th October, 1963, four of the 47 communist detenus whose cases, according to the State of Punjab, had been reviewed in the month of May, 1963, were arrested only in the last week of April, 1963, and it could not be believed that their cases would also be taken up for review withim a few days of their detention.
The circumstances enumerated above, according to Shri Anand Sarup, are sufficient for the rejection of the four affidavits produced on behalf of the respondents. In any case, he further urged, hey were sufficient to raise a serious doubt in the mind of the Court with regard to the correctness of the 1 date on which their review is claimed to have been made, and if an element of doubt lurked in the mind of the Court, the benefit of the same should go to the petitioner-detenus in accordance with the general principles of criminal jurisprudence and the petitioners' detention subsequent to the expiry of six months from the date of the original order should be declared .void and unlawful.
11. The relevant part of the Home Minister's affidavit is in these words:
I say that detention cases of 47 communists including that of petitioner were received by me on 14-5-63 from the Home Secretary to Government, Punjab, for review as required by Sub-rule (9) of Rule 30-A of the Defence of India Rules. I considered each individual case in the light of the material supplied along with the case and on 14-5-63 decided that detention of the petitioner and other 46 communist detenus should continue. I further say that this file was returned to Home Secretary vide U, O. No. 1477-HMS-63, dated 15-5-63
12. The Secretary, Home Department, in his affidavit stated :
2. I say that the petitioner was directed to be detained under Rule 30 (1)(b) of the Defence of India Rules, 1962, by the State Government on 20-11-62, with a view to preventing him from acting in a manner prejudicial to the Defence of India and Civil Defence. The review of his case as required by Sub-rule (9) of Rule 30-A of the Defence of India Rules, 1962, was due before 30-3-63. I further say that the office put up a detailed note giving full background of the detention of the 47 communists (including that of the petitioner) whose cases were to be reviewed. This office note with the comments of S.P./SB i, and DIG/CID was received by the deponent on 14-5-63. On the same day the deponent after giving due consideration to every individual case forwarded this review case to Home Minister, Punjab, for favour of his decision that the detention orders be continued. The relevant material was also submitted for favour of his information. The Home Minister took a decision to continue their detention on 14-5-63 and returned the file to me. The deponent in turn returned this file to DIG/CID on 15-5-63-
3. I further say that it is incorrect that this review was not taken on 14-5-63, but was taken some time between 9-9-63 to 11-9-1963, as alleged by the petitioner. I further say that Shri Dharatn Singh, S.P. /S.B. 1, whose recommendation is appended on the office note of this case had been transferred from CID Punjab to Special Police Establishment, Delhi, Ambala Cantt; and he relinquished charge of his office in Secretariat on 2-9-63.
13. The scanty attention that has been given to the drafting of these affidavits is apparent from their -verification clause. Eyen the recital of acts which the deponents claimed to have performed personally are stated to be true on information received from official records and not from personal knowledge. As held in State of Bombay v. Purushottam Jog Naik : 1952CriLJ1269 , the verificartion of the affidavit should invariably be modelled on the lines of Order XIX Rule 3 of the Civil Procedure Code.
14. I would be extremely reluctant to reject the affidavits of responsible Government Officials, especially the Home Minister and the Home Secretary, but in the case before us the various circumstances, to which the petitioners' counsel has referred, make it incumbent upon the Court at least to scrutinize carefully the evidence of these officials furnished by their affidavits. The best evidence of the date on which the petitioners' cases were reviewed was the order of review itself, but unfortunately that has not been produced on the plea that it is contained in confidential official records. It is true that notings may be privileged, but nobody ever wished to pry into the official noting, and all that the petitioners had been insisting upon was the production of the order em' bodying the decision of the Reviewing Authority. Unfortunately even that was not produced. In fact, as has been observed earlier the Advocate General conceded that no such formal order existed on the relevant official file, and all that was contained therein was the signature of the Hoisa Minister, who according to him had reviewed that petitioners' cases, signifying his approval to the suggestion of the D.I.G. (C.I.D.), Punjab, that the petitioners' detention should continue.
15. Further difficulty in accepting the statement of the four deponents, whose affidavits have been filed, concerning the date of the review is created by the fact that their statements are im conflict with the information conveyed to the petitioners by the memorandum of the Deputy Secre-ary (Home), dated nth September, 1963, to which a reference has already been made. Whereas in that memorandum it is specifically stated that on review of their cases a decision t continue their detention was taken by the State Government on 13th May, 1963, the averment U the affidavits filed by the respondents is that it ws on 14th May, 1963, and not on 13th May, 1963. The best way to reconcile this conflict in the dates was to produce the original order, but that was cot done. In fairness to the learned Advocate General, I would, however, like to note that he offered to show to the Court the signature (and nothing more) of the Home Minister signifying his approval to the continuation of the petitioners' detention, cot at the same time he represented that this signature by itself would be of no assistance, as it was on a separate sheet of paper which opened with the endorsement of the Home Secretary 'For approval as at A', and this signature could not be co-related to the petitioners' cases for review without reference to the previous page on which the D.I.G. (C.I.D.) had made certain recommendations and which as a privileged document could not be shown to any one, much less the petitioners or their counsel. In a recent case, their Lordships of the Supreme Court have condemned the practice of a Court looking at the record which is not available to all the parties before it. In these cir- cumstances, the mere offer of the Advocate General to show the signature of the Home Minister has no value.
16. The learned Advocate General attempted to explain the contradictory statements with regard to the date of the review contained in the affidavits filed on behalf of the respondents and the communication addressed to the detenus by saying that it was a typing error. The error is stated to have occurred in the communication addressed by the Deputy Home Secretary to the detenus. This error is admittedly in all the letters addressed to the detenus. In support of the contention that it was a mere typing error, reliance is placed on the affidavit of Shri Santokh Singh, Superintendent, C.I.D. Office. It is not asserted by him that the letters sent to the various detenus concerning the review of their cases were typed out by him. Consequently, his affidavit on the point has no value. The letters addressed to the detenus were signed by the Deputy Secretary to the Government, Punjab, Home Department. Curiously enough, no affidavit of that official concerning the typing error was produced, and in the affidavit of Sari J. D. Khanna (who is admittedly the Deputy Secretary, Home Department) sworn on 8th October, 1963, it is not even asserted that there was any error in the communication addressed to the detenus, and the date 13th May, 1963, given therein was not correct.
17. Besides challenging the respondent's assertion that the petitioners' cases were reviewed within six months, the learned Counsel for the petitioners urged that the order on which the respondents rely, even if it was accepted to have been made on 14th May, 1963, was unlawful and there had been no proper compliance with the provisions of Sub-rule (9) of Rule 30-A. In this connection, he submitted that;-
(i) the order of review was not made by competent authority as it was only the State Government that was empowered to review the original order of the petitioners' detention, and not the Home Minister;
(ii) in view of the statement of the learned Advocate-General that no order was recorded by the Home Minister but he merely signified his assent to the proposal of the D. I. G., C. I. D., by putting his signature on the relevant file, there was 110 order in the eye of law;
(iii) even if the Home Minister was competent to review the cases of the detenus under Sub-rule (9) of Rule 30-A, it was incumbent upon him to apply his own individual mind to the case of each detenu, and since his order does not show that he had personally considered the case of each detenu, it had no legal value; and
(iv) that the language of Sub-rule (9) of Rule 30-A was mandatory, and since the Defence of India Rules under which the petitioners had been detained constituted a serious encroachment on the liberty of the subject and he could be kept in detention for an indefinite period, the provision with regard to review, which is intended as a safeguard against detention even after the ground for detention had ceased to exist, had to be strictly complied with.
18. The learned Advocate-General contested these propositions, and took up the position that no formal order recording the result of the review was necessary, nor its want invalidated the decision of the Government to continue the petitioners' detention. He further contended that the Horw Minister constituted the 'State Government' of the purpose of Sub-rule (9) of Rule 30-A, and was competent to review the, petitioners' cases.
19. The orginal order of the petitioners' detention was passed Under Clause (b) of Sub-rule (1) of-Rule 30. The authority competent to make that order is either 'the Central Government' or 'the State Government'. The Reviewing Authority under Sub-rule (9) of Rule 30-A is also the Central Government or the State Government depending upon the fact whether the original order was made by one or the other. It is thus evident that in the case of orders passed Under Clause (b) Sub-rule (1) of Rule 30 the Reviewing Authority is the same as the authority that made the original order. The expression 'State Government' is defined in Sub-rule (1) of Rule 30-A, but that definition does not help us in determining whether the Home Minister could act as Reviewing Authority as the definition given in Clause (b) of this sub-rule is of a negative character, being in these words:-
30-A (1)(b) 'State Government' does not include the Administrator of a Union territory (hereafter in this rule referred to as the Administrator).
Rule 2 of the Defence of India Rules, 1962, also contains definition of the 'State Government', but again that is of no assistance as it merely states: -
2 (II). 'State Government' in relation to a Union territory means the Administrator thereof.
This very definition is to be found in Clause (i) of Section 2 of the Defence of India Act, 1962. Thus, we have to turn to the General Clauses Act. In Section 3(60) of the Central Act X of 1897, the 'State Government' is thus defined in Clause (c) which is relevant for our purposes:-
3(60)(c) 'State Government' as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a State the Governor, and in a Union territory, the Central Government; and shall, in relation to functions entrusted under Article 258A of the Constitution to the Government of India, include the Central Government acting within the scope of the authority given to it under the Article.
20. The learned Advocate-General argued that it was in this sense that the expression 'State Government' had to be construed in Sub-rule (9) of Rule 30-A of the Defence of India Rule, 1962. While he was conscious of the fact that under this definition the 'State Government' meant the Governor of the State, he argued that since the Governor had appointed Pt. Mohan Lai as the Home Minister under the Rules of Business framed Under Article 166 of the Constitution the latter constituted the State Government so far as the affairs of the Home Department were concerned, which included the executive action taken by the Government under the Defence of India Rules, He fur there contended that the decision of the State Government need not be formally recorded nor a formal order embodying the result of the review was necessary. In this connection, he cited Emperor v. Sibnath Banerji AIR 1945 PC 156. That was a case under Rule 26 of the Defence of India Rules, 1939, which contained a similar provision empowering the Central Government or the Provincial Government to detain any person
with a view to prevent aim from acting in any manner prejudicial to the defence of British India, public safety, the maintenance of public order ....
Their Lordships of the Judicial Committee held, on construction of Sections 49, 52 and 59 of the Government of India Act, 1935, relating to the powers and functions of the Governor, as follows:-
Such matters as those which fell to be dealt with by the Governor under Rue 26 could be dealt with by him in the normal manner in which the executive business of the Provincial Government was carried on under the provisions of Chapter z of Part 3 of the Act of 1935, and, in particular, under the provisions of Section 49 and the rules of business made Under Section 59.
21. Their Lordships rejected the contention that for a valid order under Rule 26 of the Defence of India Rules, 1939, personal consideration of the case by the Governor was necessary, and held that the Home Minister being an officer subordinate to the Governor could act in accordance with the Rules of Business framed by the Governor.
22. What is meant by the 'State Government' subsequently came up for consideration before the Supreme Court in Nageswara Rao v. Andhra Pradesh State Road Transport Corporation : AIR1959SC308 , a case under the Motor Vehicles Act, 1939. Subba Rao, J., who delivered %e majority judgment of the Court, in this connection observed at page 325 of the report as follows:-
A State Government means the Governor; the executive power of the State vests in the Governor; it is exercised by him directly or by officers subordinate to him in accordance with the provisions of the Constitution; the Ministers headed by the Chief Minister advise him in the exercise of his functions. The Governor made rules enabling the Minister in charge of particular department to dispose of cases before him and also authorizing him, by means of standing orders, to give such directions as he thinks fit for the disposal of the cases in the department. Pursuant to the rule, the record discloses, the Chief Minister, who was in charge of Transport, had made an order directing the Secretary to Government, Home Department, to hear the objections filed against the scheme proposed by the State Transport Authority.
23. The recent decision of the Supreme Court in Bachittar Singh v. State of Punjab : AIR1963SC395 further supports the Advocate-General on this point. Dealing with the question whether the order of the Revenue Minister of the erstwhile Patiala and East Punjab States Union was the order of the State Government, their Lordships referred to Rule 25 of the Rules of Business of the Government of Pepsu, which is in the same words as Rule 18 of the Rules of Business of the Punjab Government, Part 2, as corrected up to 31st January, i960, except for the substitution of the word 'Governor' for the 'Raj Pramukh', and held that the Revenue Minister could make an order on behalf of the State Government.
24. This, however, does not conclude the matter as we have still to consider whether the action of the Home Minister in appending his signature below the endorsement of the Home Secretary relating to the review of the cases of 47 detenus including the petitioners amounted to an order of the State Government under Article 166 of the Constitution. The Advocate-General in this connection urged:-
(i) that under Sub-rule (9) of Rule 30-A of the Defence of India Rules the State Government is required only to take a decision whether the order of detention should continue or be cancelled, and it is not incumbent upon it to pass an order in that connection;
(ii) that the signature appended by the Home Minister signifying his approval to the recommendation of the D. I. G. for continuation of the detention order of the petitioners and 41 other communist detenus amounted to an order and no further order was necessary; and
(iii) that in any case the letters issued to the detenus on nth September, 1963, under the signature of the Deputy Home Secretary, one of which has been produced by Satwant Singh petitioner, could be considered as an order of the State Government made under Rule 30-A (9) of the Defence of India Rules, 1962.
25. So far as the first contention is concerned, emphasis is placed on the word 'decide' occurring in the concluding portion of Sub-rule (9) of Rule 30-A, which says that 'Government shall decide whether the order should be continued or cancelled' and it is pointed out that it does not enjoin upon the Government to pass an order in pursuance of the decision taken on review of the case of a detenu. This argument, in my opinion, is un- j tenable. As the decision under this provision may be either for continuation of the detention order or its cancellation, it is obvious that in a case where the Government decides to cancel the detention order, its decision, without an order to that effect, will be of no consequence, as without such an order the detenu, who is committed to the custody of the Superintendent District Jail on a warrant which does not specify the period of his detention, may still continue in detention, not-withstanding the fact that such detention has become unlawful because of the decision of the Government to cancel the detention order.
26. The Advocate-General sought support for his argument from the Supreme Court decision in Dattatraya Moreshwar y. State of Bombay AIR 1952 SC 1S1 where S. R. Das, J., (as he then was), with whom Patanjali Sastri, C. J., concurred, while considering a similar provision in the Preventive Detention Act, 1950, observed: -
The Preventive Detention Act contemplates and requires taking of an executive decision either by confirming the detention order Under Section 11 (1) or for revoking or modifyifig the, detention order Under Section 13. but the Act is silent as to the form in which the executive decision, whether it is described as an order or an executive action, is to be taken. No particular form is prescribed by ,the Act, and the requirements of the Act will be fully satisfied if it can be shown that the executive decision has, in fact, been taken ....
27. On going through that case, we, however, find that proceeding further his Lordship expressed the legal position in these words.-
I agree that every executive decision need not lie formally expressed and this is particularly so when one superior officer directs his subordinate to act or forbear from acting in a particular way, but when the executive decision affects an outsider or is required to be officially notified of to be communicated it should normally be expressed in the form mentioned in Article 166(1), i. e., in the name of the Governor.
28. His Lordship, however, did not attach much importance to the omission to make a formal order being of the opinion that 'generally speaking, the provisions of a statute creating public duties are directory and those conferring private rights are imperative.'
29. This later view was, however, not shared by the three other members of the same Bench, B. K. Mukherjea, J., with whom Chandrasekhara Aiyar, J., concurred, expressed himself on this point is the following words:-
I cannot, however, agree with the learned Attorney-General that Section 11 (1) of the Preventive Detention Act does not contemplate the passing of a formal order. It is true that Section n (1) does not speak of an order of confirmation, but when there is an initial order of detention made Under Section 3 of the Preventive Detention Act, it could normally be confirmed only by passing another order. This would be clear from the pro vision of Section 11 of the Act which empowers the detaining authority to revoke or modify a detention order any time it chooses. Neither revocation nor modification is possible without any order being made to that effect and yet Section 13 like Section (1) does not speak of an order at all The first contention of the Attorney-General, therefore, cannot succeed.
30. Mahajan, J., (as he then was), who wrote a separate judgment, took the same view, which he expressed thus:-
The contention that the Government need make no order at all Under Section is and that it can indicate its intention by some other method seems to me to be unsound ............
It is obvious that the modification of an order is only possible by passing a fresh order and not in any other manner. No particular significance can attach to the omission of the words 'make an order' in Section 11. The word 'order' has numerous meanings but the meaning relevant in the present context is 'decision'. It also means 'an authoritative direction or mandate.' It cannot be contended that Government can confirm or continue the detention without taking a decision or issuing a direction. Such a decision or direction tantamount to an order. I am, therefore clearly of the view that it is the intention of the law that when the report of the Advisory Board reaches the Government, it has to come to a decision and pass an order in accordance with that decision against the detenue to the effect that in view of the report of the Advisory Board the detention order is continued for a certain period.
31. This view is in consonance with the unanimous decision of the Constitution Bench of that case in the recent case of Bachittar Singh : AIR1963SC395 (supra). As observed earlier, that was a case in which certain notings, which according to one of the parties amounted to an order relating to the reversion of a revenue official, came up for consideration. One of such notings was of the Revenue Minister, who wrote that instead 64 being dismissed the official concerned should only be reverted. In dealing with it, Mudholkar, of who delivered the judgment of the Court, after examining the provisions of Article 166, summed up the legal position in the following words:-
The business of State is a complicated one-and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires, and so did the Rules of Business framed by the Rajpra-mukh of Pepsu provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the-head of the State the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor, whatever the Minister or the-Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is-accepted or deemed to be accepted by the Head of the State. Indeed it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the 'order' of the State Government? Therefore, to make the opinion amount to a decision of the Government, it must be communicated to the person concerned.
32. In support of the concluding observations,' reliance was placed upon an earlier decision of the Court in State of Punjab v. Sodhi Sukhdev Singh : 2SCR371 , where in dealing with ant order recorded by a Minister, and assuming it to be an order of the Council of Ministers, their Lordships laid down (at page 398): -
It is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order, for until the order is communicated to the person affected by it, it would be open to the Council of Ministers to reconsider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.
33. In this view of the matter, it was held that before something could amount to an order of the State, two things were necessary; firstly, the order had to be expressed in the name of the Government as required by Clause (i) of Article 166 of the Constitution, and, secondly, it had to be communicated, and till this formality was observed, it was no more than an advice of the Minister to the Head of the State. Even in the judgment of S. R. Das, J., (as he then was) in Dattatraya More-shwar's case : 1952CriLJ955 , which has been relied upon by the learned Advocate-General in support of his contention that an order made in the name of the Government alone, and not that of the Governor was valid, the necessity of making an order in the form prescribed by Article 166(1) was recognized by his Lordship, as would be evident from the observations at page 185 of the report that have already been quoted.
34. As has been noticed earlier, in the case before us even if we accept the affidavits filed on behalf of the respondent State of Punjab that the petitioners' cases were reviewed and their orders of detention confirmed on 14th May, 1963, it is an admitted fact that neither a formal order was passed by the Home Minister (Except appending his signature to the official notings), nor such an order drawn up embodying the result of the review and it was only on 13th September, 1963, long after the expiry of six months of issuing the detention orders, that the petitioners were informed of the decision of the State Government to continue their detention. In view of the clear dictum of their Lordships of the Supreme Court in Bachit-tar Singh's case : AIR1963SC395 (supra), there is no escape from the conclusion that there was no valid order under Rule 30-A (9) of the Defence of India Rules for continued detention of the petitioners after 19th May, 1963, when the initial period of six months had admittedly expired.
35. Though the position of the State had always been that the signature appended by the Home Minister to the official file relating to the review of the petitioners' cases on 14th May, 1963, was an order under Rule 30-A (9) of the Defence of India Rules, towards the close of arguments, the Advocate-General took up the alternative plea that even if a formal order was necessary, the communication addressed to the detenus by the Deputy Secretary, Government Punjab, Home Department, on nth September, 1963, and received by the petitioners on 13th September, 1963, fulfilled that requirement, and in view of that letter, the petitioners' continued detention was perfectly valid. As has been observed earlier, no such communication was produced by the State with its return, and it was only in the course of arguments that Satwant Singh, one of the petitioners, placed on record the letter that he had received from the Deputy Secretary, Home Department on 13th September, 1963. On going through its contents, which have been reproduced in an earlier part of this order, we find that even this is not in the name of the Governor as required by Article 166(1) of the Constitution but it merely refers to the decision taken by the State Government. It is true that in Dattatraya Moreshwar's case : 1952CriLJ955 and Purushottam Jog Naik's case : 1952CriLJ1269 to which a reference has already been made, it was held that this defect in making the order in the name of the State was not fatal, yet we m. that the latter case is distinguishable facto. There the signature of the Secretary, Home Be-partment, on the order were preceded by the words 'by order of the Governor of Bombay'. In the communication to which reliance is placed is the case before us there is no such expression.
36. Even if we accept the contention that the failure to express the order in the name of the Governor as required by Article 166 is of the Constitution did not invalidate the order, these is yet another hurdel in the way of treating this communications of nth September, 1963, as an order justifying the petitioners' detention after 19th May, 1963. Rule 30-A (9), which is admittedly naaiidatory, enjoins upon the State Government to review the case of a person detained under Rule 30 (1)(b) and to decide whether the order of detention should be continued or cancelled 'at intervals of not more than six months'. This communication of nth September, 1963, on which reliance is placed, having been admittedly issued long. after the expiry of the first six months cannot be of any avail to the State. If no order is made within six months, the detenu will be entitled to release, and his continued detention thereafter will become invalid. An order made subsequently cannot in my opinion, operate retrospectively so as to legalise the detention during the period which bad elapsed after the expiry of the six months, nor can it serve as a charter for continuing the detention of the person concerned after the passing of such an order.
37. The provision contained in Section 30 (r)(b) of the Defence of India Rules is a serious encroachment on the liberty of the subject, especially when power has been conferred on the Executive to detain a person without specifying any period, and as such it is incumbent upon the authorities concerned to act in strict compliance with the provisions regulating the detention, including those relating to the review of the detenus' cases, and within the ambit of the powers conferred on them. The use of the words such as 'satisfied' and 'decide' in the relevant rules indicates beyond any manner of doubt that the powers conferred on the authorities concerned for detaining a person under these rules must not be exercised in an arbitrary or light-hearted manner as a master of routine but after due deliberation and careful consideration of the relevant facts.
38. The position that emerges after this discussion may be summed up thus: No formal order was passed by the Home Minister or the Governor, Punjab, within six months of the orders of the. petitioners' detention passed tinder Section 30 (1)(b). Though the State claims to have taken a. decision under the signature of the Home Minister to continue the petitioners' detention on 14th May, 1963, there is a serious conflict about this date, as in the communication addressed to the petitioners on nth September, 1963, the date of review was communicated as 13th May, 1963, and the Deputy Secretary, Home Department, whose signatures the letter bear, made no attempt to reconcile the conflict. No order in accordance with the provisions of Article 166(1) of the Constitution was ever drawn up, nor the result of review communicated to the petitioner within six months of their detention or within a reasonable time thereafter. The letter addressed to the detenus giving the result of the review was issued from the Home Department, Government Punjab, long after the expiry of the six months, and it referred to the decision of the State Government and not of the Governor, but even this communication was issued two days after the petitioners had sworn affidavits before the Superintendent, District Jail, Hissar (where they are confined) with a view to move this Court Under Section 491 of the Criminal Procedure Code questioning the validity of their detention.
39. All these facts considered in the light of the legal position regarding the requirements of an order under Rule 30-A (9) of the Defence of India Rules 1962 lead to the inescapable conclusion that no valid order exists, or was passed on review of the petitioners' cases for continuation of their detention after 19th May, 1963, when the initial period of six months admittedly expired. The detention of the petitioners thereafter thus being without authority must be declared as illegal and they are entitled to relief Under Section 491, Criminal Procedure Code. I, accordingly, direct that each of the petitioners, Harkishan Singh Surjeet, Des Raj Chadha, Dalip Singh Tapiala, Chanan Singh Dhut, Hazara Singh Hamdum and Satwant Singh, be set at liberty. The necessary directions to the respondents shall issue forthwith.