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State of Maharashtra Vs. Prabhakar Pandurang Sangzgiri and anr. - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication;Criminal
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1966SC424; 1966CriLJ311; 1966MhLJ141(SC); [1966]1SCR702
ActsDefence of India Rules, 1962 - Rules 17, 30[1] and 30[4]; Defence of India Act, 1962 - Sections 3, 30 and 44; Constitution of India - Articles 19, 19[1], 21, 22, 226, 358 and 359; Bombay Conditions of Detention Order, 1951
AppellantState of Maharashtra
RespondentPrabhakar Pandurang Sangzgiri and anr.
Cases ReferredA. K. Gopalan v. State of MadrasWherein
Excerpt:
.....a whole day and it could not be said that he had attained the age of 16 years before 12 oclock in the midnight of the previous day, i.e. 9-5-1994. the offence being committed at about 1.00 p.m. on 9-5-1994 he was a juvenile at time of offence. - we are satisfied thatthe manuscript book deals with the theory of elementary particles in anobjective way. briefly stated, the schemeof the said provisions is that a person can be detained if the appropriategovernment is satisfied that in order to prevent him from doing the prejudicialacts mentioned in r......made by such an order not did it comply withs. 44 of the act, it was an illegal restriction on his personal liberty; and[2] neither the detention order not the conditions of detention which governedthe first respondent's detention enabled the government to prevent the saidrespondent from sending his manuscript book out of the prison for publicationand, therefore, the order of the government rejecting the said respondent'srequest in that regard was illegal. 5. article 358 of the constitution suspends the provisions of art. 19 of thepart iii of the constitution during the period the proclamation of emergency isin operation; and the order passed by the president under art. 359 suspendedthe enforcement, inter alia, of art. 21 during the period of the saidemergency. but the president's order.....
Judgment:

Subba Rao, J

1. Prabhakar Pandurang Sanzgiri, who has been detained by the Government ofMaharashtra under s. 30 [1] [b] of the Defence of India Rules, 1962, in theBombay District Prison in order to prevent him from acting in a mannerprejudicial to the defence of India, public safety and maintenance of publicorder, has written, with the permission of the said Government, a book inMarathi under under the title 'Anucha Antaragaat' [Inside the Atom].The learned Judges of the High Court, who had gone throughout the table ofcontents of the book expressed their opinion on the book thus:

'......................... we are satisfied thatthe manuscript book deals with the theory of elementary particles in anobjective way. The manuscript does not purport to be a research work but itpurports to be a book written with a view to educated the people anddisseminate knowledge regarding quantum theory.'

2. The book is, therefore, purely of scientific interest and it cannotpossibly cause any prejudice to the defence of India, public safety ormaintenance of public order. In September, 1964, the detenu applied to theGovernment of Maharashtra seeking permission to send the manuscript out of thejail for publication; but the Government by its letter, dated March 27, 1965,rejected the request. He again applied to the Superintendent, Arthur RoadPrison, for permission to send the manuscript out and that too was rejected.Thereafter, he.filed a petition under Art. 226 of the Constitution in the HighCourt of Maharashtra at Bombay for directing the State of Maharashtra to permithim to send out the manuscript of the book written by him for its eventualpublication. The Government of Maharashtra in the counter-affidavit did notallege that the publication of the said book would be prejudicial to theobjects of the Defence of India Act, but averred that the Government was notrequired by law to permit the detenu to publish books while in detention. TheHigh Court of Bombay held that the civil rights and liberties of a citizen werein no way curbed by the order of detention and that it was always open to thedetenu to carry on his activities within the conditions governing hisdetention. It further held that there were no rules prohibiting a detenu fromsending a book outside the jail with a view to get it published. In that viewthe High Court directed the Government to allow the manuscript book to be sentby the detenu to his wife for its eventual publication. The State ofMaharashtra has preferred the present appeal against the said order of the HighCourt.

3. The contentions of the learned Additional solicitor General may bebriefly states thus: When a person is detained he loses his freedom; he is nolonger a free man and, therefore, he can exercise only such privileges as areconferred on him by the order of detention. The Bombay Condition of detentionorder 1951. which regulates the terms of the first respondent detention, doesnot confer on him any privilege or right to write a book and send it out of theperson for publication. In support of his contention he relied upon theobservations of Das. J. as he then was, in A. K. Gopalan v. State of MadrasWherein the learned judge has expressed the view, in the context of fundamentalrights, that if a citizen loses the freedom of his person by reason of a lawfuldetention, he cannot claim the rights under Arts under Art. 19 of theConstitution as the rights enshrined in the said article are only theattributes of a free man.

4. Mr. Garg, learned counsel for the detenu, raised before us the followingtwo points : [1] a restriction of the nature imposed by the Government on thedetenu can only be made by an order issued by the appropriate Government undercls. [f] and [h] of sub-r. [1] of r. 30 of the Defence of India Rules. 1962,hereinafter called the Rules, and that too in strict compliance with s. 44 of the Defence of India Act, 1962, hereinafter called the Act, and that as theimpugned restriction was neither made by such an order not did it comply withs. 44 of the Act, it was an illegal restriction on his personal liberty; and[2] neither the detention order not the conditions of detention which governedthe first respondent's detention enabled the Government to prevent the saidrespondent from sending his manuscript book out of the prison for publicationand, therefore, the order of the Government rejecting the said respondent'srequest in that regard was illegal.

5. Article 358 of the Constitution suspends the provisions of Art. 19 of thePart III of the Constitution during the period the proclamation of emergency isin operation; and the order passed by the President under Art. 359 suspendedthe enforcement, inter alia, of Art. 21 during the period of the saidemergency. But the President's order was a conditional one. In effect it saidthat the right to move the High Court or the Supreme Court remained suspendedif such a person had been deprived of his personal liberty under the Defence ofIndia Act, 1962, or any rule or order made thereunder. If a person was deprivedof his personal liberty not under the Act or a rule or order made thereunderbut in contravention thereof, his right to move the said Courts in that regardwould not be suspended. The question, therefore, in this case is whether thefirst respondent's liberty has been restricted in terms of the Defence of IndiaRules whereunder he was detained. It it was in contravention of the said Rules,he would have the right to approach the High Court under Art. 226 of theConstitution.

6. In exercise of the power conferred on the Central Government by s. 3 ofthe Act, the Central Government made the Defence of India Rules. Under s. 30 ofthe Rules the Central Government or the State Government, if it is satisfiedwith respect to any person that in order to prevent him from acting in anymanner prejudicial to the matters mentioned therein, it is necessary so to do,may make an order directing that he be detained. Under sub-r. 4 thereof he shallbe liable to be detained in such place and under such conditions as tomaintenance, discipline and the punishment of the offence and the breaches ofdiscipline as the Central Government or the State Government, as the case maybe, may from time to time determine. In exercise of the power conferred undersub-r. (4) of r. 30 of the Rules, the Government of Maharashtra determined thatthe conditions as to maintenance, discipline and the punishment of offences andbreaches of discipline governing persons ordered to be detained in any place inthe State of Maharashtra, shall be the same as those contained in the BombayConditions of Detention Order, 1951. The Bombay Conditions of Detention Order,1951, does not contain any condition as regards the writing of books by adetenu or sending them out of jail for publication. Briefly stated, the schemeof the said provisions is that a person can be detained if the appropriateGovernment is satisfied that in order to prevent him from doing the prejudicialacts mentioned in r. 30 of the Rules it is necessary to detain him in prisonsubject to the conditions imposed in the manner prescribed in sub-r. (4) of r.30 of the Rules. To put it in a negative form, no restrictions other than thoseprescribed under sub-r. (4) of r. 30 can be imposed on a detenu. If theappropriate authority seeks to impose on a detenu a restriction not soprescribed, the said authority will be interfering with the personal liberty ofthe detenu in derogation of the law whereunder he is detained. If that happens,the High Court, in terms of Art. 226 of the Constitution, can issue anappropriate writ or direction to the authority concerned to act in accordancewith law.

7. We have gone through the provisions of the Bombay Conditions of DetentionOrder, 1951. There is no provision in that order dealing with the writing orpublication of books by a detenu. There is, therefore, no restriction on thedetenu in respect of that activity. Sub rule [iii] of r. 17 of the said orderreads:

'All letters to and from security prisoners shallbe censored by the Commissioner or the Superintendent, as the case may be. Ifin the opinion of the Commissioner or the Superintendent, the dispatch7:13 AM 12/6/2007 ordelivery of any letter is likely to be detrimental to the public interest orsafety or the discipline of the place of detention, he shall either withholdsuch letter, or dispatch or deliver it after deleting any objectionable portiontherefrom. In respect of the censoring of letters of security prisoners, theCommissioner or the Superintendent shall comply with any general or specialinstructions issued by Government.'

8. The Maharashtra Government has not relied upon this rule. In deed, in thecounter affidavit its case was not that it prohibited the sending of the bookfor publication under the said sub-rule, but that it was not required bylaw topermit the detenu to publish books while in detention; nor was it its casebefore the High Court that the publication of this book was detrimental topublic interest or safety or the discipline of the place of detention. Primafacie the said sub rule applies only to letters to and from security prisonersand does not regulate the sending out of prison books for publication. Indeed,the learned Additional Solicitor General does not rely upon this provision.

9. Let us now consider the validity of the argument of the learnedAdditional Solicitor General. He relies upon the following observations of Das,J. as he then was, in A. K. Gopalan's case([1950] S.C.R. 88), at p. 291.

'If a man's person is free, it is then and thenonly that he can exercise a variety of other auxiliary rights, that is to say,he can, within certain limits, speak what he likes, assemble where he likes,form any associations or unions, move about freely as his own inclination maydirect, reside and settle any where he likes and practice any profession orcarry on any occupation, trade or business. These are attributes of the freedomof the person and are consequently attached to the person.'

10. Relying upon these observations it is argued that freedom to publish isonly a component part of that of speech and expression and that in the light ofthe said observations, as the detenu ceased' to be free in view of hisdetention, he cannot exercise his freedom to publish his book. In other words,as he is no longer a free man, his right to publish his book, which is only anattribute of personal liberty, is lost. The principle accepted by Das, J., ashe then was, does not appear to be the basis of the conclusion arrived at bythe other learned Judges who agreed with his conclusion. Different reasons aregiven by the learned Judges for arriving at the same conclusion. As has beenpointed out by this Court in the second Kochunni's case : [1960]3SCR887 ,the views of the learned Judges may be broadly summarized under the followingheads: f 1) to invoke Art. 19(1) of the Constitution, a law shall be madedirectly infringing that right; (2) Arts. 21 and 22 constitute a self-containedcode; and (3) the freedoms hi Art. 19 postulate a free man. Therefore, itcannot be said that the said principle was accepted by all the learned Judgeswho took part in A. K. Gopalan'a ^casef1). The apart, there are five distinctlines of thought hi the matter of reconciling Art. 21 with Art. 19, namely, (1)if one loses his freedom by detention, he loses all the other attributes offreedom enshrined in Art. 19(2) personal liberty in Art. 21 is the residue ofpersonal liberty after excluding the attributes of that liberty embodied inArt. 19(3) the personal liberty included in Art. 21 is wide enough to includesome or all of the freedoms mentioned in Art. 19, but they are two distinctfundamental rights -a law to be valid shall not infringe both the rights; (4)the expression 'law' in Art. 21 means a valid law and, therefore,,even if a person's liberty is deprived by law of detention, the said law shallnot infringe Art. 19 and (5) Art. 21 applies to procedural law, whereas Art.19 to substantive law relating to personal liberty. We do not propose to pursuethe matter further or to express our opinion one way or other. We have onlymentioned the said views to show that the view expressed by Das, J., as he thenwas, in A. K. Gopalan's case : 1950CriLJ1383 is not the last word on thesubject.

11. In this case, as we have said earlier, we are only concerned with thequestion whether the restriction imposed on the personal liberty of the firstrespondent is in terms of the relevant provisions of the Defence of IndiaRules. Here, the first respondent's liberty is restricted under the Defence ofIndia Rules subject to conditions determined in the manner prescribed in Sub-r.(4) of r. 30 thereof. We find it difficult to accept the argument that theBombay Conditions of Detention Order, 1951, which lays down the conditionsregulating the restrictions on the liberty of a detenu, conferred only certainprivileges on the detenu. If this argument were to be accepted, it would meanthat the detenu could be starved to death, if there was no condition providingfor giving food to the detenu. In the matter of liberty of a subject such aconstruction shall not be given to the said rules and regulations, unless forcompelling reasons. We, therefore, hold that the said conditions regulating therestrictions on the personal liberty of a detenu are not privileges conferredon him, but are the conditions subject to which his liberty can be restricted.As there is no condition in the Bombay Conditions of Detention Order, 1951,prohibiting a detenu from writing a book or sending it for publication, theState of Maharashtra infringed the personal liberty of the first respondent inderogation of the law whereunder he is detained.

12. The Appellant, therefore, acted contrary to law in refusing to send themanuscript book of the detenu out of the jail to his wife for eventualpublication.

13. In the view we have taken, another argument advanced by Mr. Garg,namely, that the restriction can only be imposed by an order made under s. 30[f] or [h] of the Rules and that too in strict compliance with s. 44 of the Actneed not be considered. That question may arise if and when an appropriatecondition is imposed restricting the liberty of a detenu in the matter ofsending his books for publication. We do not express our view on this questionone way or other.

14. In the result, the order passed by the High Court is correct. The appealfails and is dismissed.


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