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Manekben Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectConstitution;Criminal
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 1 of 1975
Judge
Reported inILR1975Delhi820
ActsConstitution of India - Articles 14 and 352
AppellantManekben
RespondentUnion of India
Advocates: M.K. Nambiar,; S. Venkiteswaran,; Hardev Singh,;
Cases ReferredInDwarka Parshad v. State of Bihar
Excerpt:
(i) constitution - detention - articles 14 and 352 of constitution of india and conservation of foreign exchange and prevention of smuggling activities act, 1974 - petition for writ of habeas corpus in respect of detention of petitioner's husband - petitioner challenging validity and constitutionality of detention order - whether presidential proclamation issued under article 352 justifiable - scheme of constitution makes exercise of power by president sacrosanct - need for continuation of proclamation must be adjudged by executive and not courts - issue of order under article 359 made subject to condition to be judged by executive - nexus between order of proclamation and order under 359 established - held, detention order valid and constitutional. (ii) competency - petitioner challenged.....prakash narain, j. (1) this petition for habeas corpus lias been filed by smt. manekben in respect of the detention of her husband, sukur naran bakhia who has been detained by virtue of an order of the central government passed on december 19, 1974 under the conservation of foreign exchange and prevention of smuggling activities act, 52 of 1974, hereinafter referred to as the act 52 of 1974. before proceeding with the petition it will be advantageous to briefly set out the historical background leading to the impugned detention of sukar naran bakhia. the maintenance of internal security act, no. 26 of 1971. hereinafter referred to as the misa, came in to force on july 21, 1971. in december, 1971 hostilities broke out between india and pakistan. consequent thereto the president made a.....
Judgment:

Prakash Narain, J.

(1) This petition for Habeas Corpus lias been filed by Smt. Manekben in respect of the detention of her husband, Sukur Naran Bakhia who has been detained by virtue of an order of the Central Government passed on December 19, 1974 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 52 of 1974, hereinafter referred to as the Act 52 of 1974. Before proceeding with the petition it will be advantageous to briefly set out the historical background leading to the impugned detention of Sukar Naran Bakhia. The Maintenance of Internal Security Act, No. 26 of 1971. hereinafter referred to as the Misa, came in to force on July 21, 1971. In December, 1971 hostilities broke out between India and Pakistan. Consequent thereto the President made a Proclamation of Emergency under Article 352 of the Constitution on December 3,1971. It is alleged that the detenu. Sukur Naran Bakhia suffered a heart attack on September 4, 1974 and was hospitalised. Hhe is stated to be still in hospital. On September 17, 1974 the President promulgated an ordinance amending the MISA. By this amendment smuggling and activities connected therewith were brought within the ambit of the -MISA as originally enacted. The detenu was arrested under an order of detntion dated September 17, 1974 on grounds purportedly falling under the amended MISA. On September 21, 1974 grounds of detention numbering 18 in the English language were served on the detenu. He was, however, not removed to the jail on the strength of a medical cartificate issued on September 22, 1974 but was detained in the hospital wing of the jail. On October 17, 1974 Special Criminal Application No. 810 of 1974 was filed in Bombay High Court for issue of a writ of Habeas Corpus in respect of the detenu. Rule nisi was issued by that High Court. On November 16, 1974 the President made an order under Article 359 of the Constitution suspending the enforcement of Fundamental Rights covered by Articles 14, 21, 22 etc. of the Constitution. The Ordinance amending the Misa stood repealed on the midnight of December 18, 1974. In the meanwhile Parliament had enacted Act 52 of 1974 on December 13. 1974 and it came into fores on December 19, 1974 immediately after midnight of December 18, 1974. On the morning of December 19, 1974 the detenu was served with and detained under the impugned detention order passed by the Central Government under the provisions of Section 3(1) of Act 52 of 1974. He was not produced before any Magistrate and indeed remained hospitalised. The grounds for detention in the English language numbering seven in respect of the impugned order of the Central Government dated December 19, 1974 were given to the detenu on December 23, 1974. On the same day the President ' made an order in exercise of the powers conferred by clause ( I ) of Article 359 of the Constitution in the following terms and published in the gazette :-

Thegovernment Of India Extraordinary Part II-SECTION 3-SUB-SECTION(1 ) Published By Authority New Delhi, Monday, December 23, 1974. Ministry Of Home Affairs Order New Delhi, the 23rd December 1974 G.S.R. 694(E)-In exercisc 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 been made or which may hercafter 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 making of any declaration under Section 9 of the said Act) which has already been or may hereafter be, taken or omitted to be taken in respect of detention under such orders, for 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 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 making of any declaration under the said Section 9) 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 on the 3rd December 1971 is in force, whichever period expires earlier. 2. This Order shall extend to the whole of the territory of India. N. K. MUKARJI. Secy.'

(2) Inasmuch as the detention, of the detenu under orders of detention dated September 19, 1974 under Misa had come to an end on account of the aforesaid ordinance being repealed on December 18, 1974, Special Criminal Application No. 810 of 1974 filed in the Bombay High Court became infructuous and was withdrawn on January 6, 1975. The wife of the detenu thereupon moved this Court and obtained Rule nisi in the present petition on January 30, 1975.

(3) The petition challenges the validity of the impugned detention not only as being illegal and without authority of law in itself but also on several other grounds. Briefly stated the first challenge is to the validity of Act 52 of 1975 as being beyond the legislative competence of Parliament and stated to have been enacted in colourable exercise of the power of legislation. The contention is that the enactment of the statute is a colourable attempts to bring it within the ambit of Entry 9, List I and/or Entry 3, List Iii of the Seventh Schedule of the Constitution. It is also urged that the said Act is vocative of the Fundamental Rights guaranteed by Articles 14, 19, 21 and 22 especially as the Misa is still on the Statute Book and there is no guideline as to who may be detained under the Misa and who under Act 52 of 1974. It is further stated that the power of the Parliament to enact a statue like Act 52 of 1974 is not traceable to Entry 97, List I or Aritcle 248 of the Constitution. Preventive Detention Law, it is urged, as postulated by Article 22(3) of the Constitution has to be in consonance with and incorporate the provisions of sub-clauses (4) to (7) of Article 22 otherwise the statute cannot qulify to fall within the ambit of clause (3) of Article 22 of the Constitution. If that be correct, the impugned detention would be vocative of clauses (1) and (2) of Article 22 of the Constitution and liable to be struck down. The contention is that Act 52 of 1974 being a void Act, the Presidential Order of December 23, 1974 cannot put life into a still born statute and it can be urged on behalf of the detenu that his detention is vocative of clause (1) and (2) of Article 22.

(4) The second challenge is to the validity of the Presidential Order of December 23, 1974. It is urged that the said Order is void and unconstitutional. Inasmuch as (a) the emergency declared under Article 352 of the Constitution is no longer justified and its continuation is a fraud on the Constitution ; and (b) the emergency declared under Article 352 of the Constitution was due to threat of external aggression and inasmuch as the impugned Presidential Order is not in furtherance of the object for which the emergency was declared, there is no nexus between the impugned Presidential Order and the declaration of emergency. In other words the continuation of the state of emergency is no longer Constitutional and, in any case, even if the emergency is continued, the impugned Presidential Order is not relatable to the object for which emergency was declared way back in December, 1971.

(5) The next challenge is to the detention order itself passed in December, 1974. It is contended that the petition is not moved to enforce any Fundamental Rights but statutory rights under Act 52 .of 1974 which are unaffected by the aforesaid Presidential Order of December, 1974. The further contention is that the detenu has been in continuous detention from September 17, 1974 and his continued detention under Act 52 of 1974 is not justified by the provisions of the statute. It is also urged that Act 52 of 1974 came into force immediately after midnight of December 18, 1974 on December 19, 1974. The impugned order of detention served on the detenu,on the morning of December 19, 1974 could not humanly be passed in such a short time after coming into force of Act 52 of 1974. Regarding the detention order and the grounds for detention it is said that the same were in English, a language unknown to the detenu and so, communication thereof was no communication in fact or in law. As far as the validity of the grounds for detention are concerned it is claimed that the same are more or less similar grounds on which the detenu was detained under the Misa and there has only been clubbing of the grounds which shows that there was no fresh application of mind but the same old satisfaction which resulted in detention under the Misa was utilised for detention under Act 52 of 1974. Indeed it is contended that all the grounds which may have led the detaining authority to pass an order of detention have not been disclosed and that would be evident on comparing the grounds communicated to the detenu when he was detained under the Misa and the grounds delivered to him for the present detention. The seven grounds given to the detenu are claimed to be mala fide, non-existent, remote or irrelevant from which, it is urged, the court must come to the conclusion that there was no requisite satisfaction as postulated by Section 3(1) of Act 52 of 1974.

(6) The relevant provisions of the Constitution for our purposes arc Articles 21, 22, 352, 358 and 359. These read :-

''21.No person shall be deprived of his life or personal liberty except according to procedure established by law. 22. (1) No person who is arrested shall be detained in custody without b^ing informed as soon as may be, of the grounds for such arrest nor shall be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply :-- (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. (4) No Jaw providing for preventive detention shall authorise -the detention of a person for a longer period than three months unless- (a) an Advisory Board consisting of persons who are. or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under subclause (b) of clause (7) or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) nnd (b) of clause (71. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe- (a) the circumstances under which, and the class or classes of cases in which, a person may be detained lor a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4). 352. (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect. (2) A Proclamation issued under clause (1)- (a) may be revoked by a subsequent Proclamation, (b) shall be laid before each House of Parliament; (c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament: Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub-clause (c), and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first site after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People. (3) A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be made before the actual occurrence of war, or of any such aggression or disturbance if the President is satisfied that there is imminent danger thereof. 358. While a Proclamation of Emergency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part Iii to make any law or to take any exclusive action which the State would but for the provisions contained in that Part be competent co make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so cease to have effect. 359. (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part Iii as may be mentioned in the order and all proceedings pending in any court lor the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. (2) An order made as aforesaid may extend to the whole or any part of the territory of India. (3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.'

The relevant provisions of Act 52 of 1974 which may be read are Sections 3, 10 and 11.

'3.(1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from-- (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goo '10. The maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 9 do not apply and which has been confirmed under clause (f) of section 8 shall be one year from the date of detention and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 9 apply and which has been confirmed under clause (f) of section 8 read with- sub-section (2) of section 9 shall be two years from the date of detention : Provided that nothing contained in this section shall affect the power of the appropriate Government in either case to revoke or modify the detention order at any earlier time.' '11. (1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897, a detention order may, at any time, be revoked or modified :- (a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government; (b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government. (2) The revocation of a detention order shall not bar the making of another detention order under section 3 against the same person.'

(7) Section 3(1) of the Misa was similar to Section 3(1) of the present Act- Section 8 of the Misa provided for furnishing of grounds within fifteen days from the date of detention and in terms embodied the requirements of Article 22(5) and the power contemplated by Article 22(6). In Act 52 of 1974 the somewhat similar provision is Section 3(3).

(8) Four other petitions, namely, Criminal Writ No. 2 of 1975 to Criminal Writ No. 5 of 1975 were also admitted by this Court and rule nisi issued. They also pertain to detentions under Act 52 of 1974. Inasmuch as many of the constitutional and legal points raised were common, we heard counsel in all the five cases on the common aspects. There were some contentions which were pressed in some cases but not in others and even divergent arguments were addressed on the constitutional and legal aspects. Since the points involved were of considerable importance and we had the benefit of hearing counsel on points common in all the five cases, we intend to deal with the legal aspects in this judgment and will deal with aspects restricted to individual cases in separate judgments.

(9) Before we proceed to deal with the common questions of law arising in the five petitions, inasmuch as the specific points raised in this petition (Criminal Writ No. 1 of 1975) will be dealt with by us in this judgment, the salient features thereof may be first noticed.

(10) The facts leading up to the detention of the detenu have already been set out. As noticed earlier, the detenu was first detained under the Misa and is now detained under Act 52 of 1974. With regard to his detention under the Misa grounds of detention were given on September 21, 1974. In respect of the present detention the grounds were given on December 23, 1974. The contentions raised by the petitioner have already been noticed. The affidavit in support of the contentions and statement of facts has been sworn in this case by the petitioner. No affidavit of the detenu was originally filed. As some argument turned on the existence or non-existence of certain facts mentioned in the grounds of detention, it will be advantageous to extract some portions of the affidavit of the petitioner. Paragraphs 2 and 3 of the said affidavit read as under :-

'2.I say that what is stated in paragraphs 1, 2, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16 and 17 are true to my own knowledge and what is stated in paragraphs 3 and 9 are on information and legal advice received which I believe to be true and what is stated in paragraph 10 from I to Xv are grounds which are on legal advice and information which I believe to be true. 3. I submit that the entire contentions of the petitioner are to my knowledge and I believe the same to be true.

(11) By way of return to the rule nisi, affidavit is made on behalf of the Central Government by Mr. Pillai. Additional affidavits of Mr, Chandrakant Shamrao Phatale, Jailor of Hospital Prison, St. George's Hospital, Bombay, where the detenu is detained, and Mr. S. S. Pali, an Assistant Collector of Customs have also been filed. Rejoinder affidavits have been filed by Mr. Haribhai V. TandeL a brother-in-law of the petitioner. On the controversy raised regarding explaining the contents of the detention order in a language known to the detenu an affidavit was filed of Mr. R. S. Chauhan, Sub Inspector of Police, C.T.D. Branch, Bombay and almost at the close of the hearing an affidavit of the detenu was also produced before us with an application that the said affidavit may be taken oh the record. To this an objection has been raised in the affidavit of the first respondent Mr. S. S. Pali. We shall deal with the contentions raised in the various affidavits as we proceed to deal with the various points agitated before us.

(12) A preliminary objection has been raised on behalf of the respondents that in view of the Presidential Order under Article 359 of the Constitution this Court should decline to hear the Habeas Corpus petition inasmuch as what is sought to be enforced are Fundamental Rights conferred by Articles 19 and 21 of the Constitution. The argument is that inasmuch as the detenues are detained under a law of preventive detention falling within clause (3) of Article 22 of the Constitution and the enforcement of the rights under Articles 14 and 21 and clauses (4) to (7) of Article 22 has been suspended by the Presidential Order of December, 1974 the writ does not lie so long as the said Presidential Order is in force, i.e. a period of six months from the date of issue of the said order, viz., December 23, 1974, or during the period in which the Proclamation of Emergency under Article 352 of the Constitution is in force, whichever expires earlier. To this objection the reply is that the continuation of the declaration of emergency under Article 352 of the Constitutioa as well as the validity of the Presidential Order under Article 359 is under challenge. Further, it is urged, what is sought to be urged is that the detention is under an invalid law and the invalidity of detention ordered under such law. No enforcement is sought of Fundamental Rights guaranteed by part Iii of the Constitution enforcement of which has been suspended by the Order under Article 359 or the suspended Fundamental Rights guaranteed by Article 19 as a result of the Proclamation of Emergency in 1971. Further that if Act 52 of 1974 is void or the detention docs not fall under that Act the detenu's fundamental rights under Artick 22(1) and (2) have been violated, which rights are not touched by the Presidential Order of December.. 1974.

(13) The first aspect, thereforee, tu be considered is the validity of the continuation of the emergency declared by the President under clause (1) of Article 352 of the Constitution by the notification of December 3,1971.

(14) Mr, M. K, Nambyar, appearing in Criminal Writ No. 1 of 1975, very frankly conceeded that the validity of the declaration of emergency or its continuation has been ruled upon by the Supreme Court and so, perhaps, it may not be open to agitate about it in the High Court so long as the law laid down by the Supreme Court holds the field. He, thereforee, reserved his arguments in this behalf without giving up the plea. Counsel in some of the other connected matters, however, did agitate the question about the alleged fraud on the Constitution in continuing a state of a emergency which) was brought about by the Proclamation of December, 1971. The contention on behalf of the detenues in a nut-shell is that although there may be a justifiable reason for declaration of emergency in December, 1971, with the cessation of hostilities a long time back and there being no danger of aggression, it would be unconstitutional for the State to continue the Proclamation of Emergency now. We are conscious of the fact that the Constitution establishes a Sovereign Democratic Republic in which not only citizens but others have been guaranteed Fundamental Rights which are in consonance with basic human values in a civilised society. All the same we cannot lose sight of the fact that the same Constitution gives to the Executive power to determine and proclaim a state of emergency if it is satisfied that the security of India or any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance. Clause (1) of Article 352 gives this power but it may be noted that the power is not absolute. It is to be exercised on due satisfaction. Further, as provided by clause (2) of Article 352 such proclamation is to be laid before each House of Parliament and shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. It follows, thereforee, that the action of the Executive in declaring an emergency under clause (1) of Article 352 is sanctified by resolutions of the Houses of Parliament. In other words, the representatives of the people and the States put their seal on the executive action. It is not disputed or urged that this was not done in the case of the emergency declared in 1971 and so, on the very scheme of the Constitution it can well be said that the continuation of emergency is not merely an executive action but has the sanction and approbation of the supreme legislature also. Indeed, the Supreme Court in Binit Nafh Mate v. The State of West Bengal, : 1974CriLJ690 repelled a similar attack on the continuation of the Proclamation of Emergency. As was said by V. R. Krishna Iyer, J. : 'It was argued that there was no real emergency and yet the Proclamation remained unretracted with consequential perial to fundamental rights. In our view, this is a political, not justiciable issue and the appeal should be to the polls and not to the courts......'. After noticing several American and English decisions it was observed that it is not for the courts to adjudicate upon the existence or otherwise of the emergency. That is a matter within the sphere of the Executive. We may respectfully add that where the elected legislature representing the people puts a seal on the executivel act, the Proclamation of Emergency and the existence of emergency is an accepted fact on which the courts will not pronounce as neither have they the material nor is the material required to be disclosed for any such pronouncement. Further, it being basically a political issue and a situation created by virtue of several factors which have to be taken into consideration the courts are not at all a suitable forum to debate the validity of such executive decisions. The justifiability of the issue is advocated more as an academic question in such circumstances than on material which could be adjudicated upon. To borrow the words of Krishna lyer, J. : 'Academic exercises in constitutional law are not for courts but jurists and we decline to held the continuance of emergency void.' Accordingly, the first contention is rejected.

(15) The Proclamation of Emergency in clause (1) of Article 352 of the Constitution has certain results. Article 353 lays down that while a Proclamation of Emergency is in operation, then notwithstanding anything in the Constitution the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised; and the power of Parliament to make laws with respect to any matter shall include power to make laws, conferring powers and imposing duties etc. notwithstanding that such power is not to be found in the Union List or List I of the Seventh Schedule. There are certain other effects of the Proclamation of Emergency including the suspension of Article 19 itself as postulated by Article 358 of the Constitution. It is noteworthy that the only Article whi'ch stands suspended is Article 19 and no other. With regard to the Fundamental Rights guaranteed by the rest of the Articles in Part Iii of the Constitution an order can only be made under Article 359 and the said order can only suspend the enforcement of the rights guaranteed by any of the other Articles in Part Iii as specified other than Article 19 and not that the Articles themselves can be suspended. It is by virtue of this provision that the Presidential Order of December, 1974 was made. As is apparent on a reading of the said Presidential Order of December, 1974 under Article 359 of the Constitution it is the enforcement of the rights guaranted by Article 14, 21 and clauses (4) to (7) of Article 22 of the Constitution that has been suspended. The rights are not suspended, only the enforcement thereof is suspended. There is a challenge to this Order and its validity.

(16) Mr. Nambiyar appearing for the petitioner vis-a-vis this contention also, reserved his arguments but did not give up the plea. In our view, rightly so. If the emergency declared under Article 352 is in force and that is valid, the order under Article 359, as made, must be assumed to be for valid reasons. An order under Article 359 may not be made despite the Proclamation of Emergency. Yet if it is made it is an Executive act which is authorised by the Constitution. l(s necessity cannot be subjected to judicial review as neither are the courts of law equipped to pronounce upon it nor can they have all the material for any proper adjudication. Besides this an order under Article 359 may be. made on political or other relevant considerations in the larger interest of the State or any part of it which necessarily means that the material or circumstances requiring the making of the order will be such which are regarded as sufficient in the subjective satisfaction and not on the objective satisfaction, of the President. It is not the first time that such an order has been made in our country. During the last 25 years of the existence of our Constitution and the Republican form of Government it and even the country has been in peril more than once, when the Executive had to invoke the Emergency powers in the larger interest oi' the nation even if it meant curtailment of Fundamental Rights. As was observed, by the Supreme Court in Mohd. Yaqub etc. v. State of Jammu and Kashmir, : 1968CriLJ977 : 'It will be seen from the terms of Article 359 that it gives categorical powers to the President during the period when a Proclamation of Emergency is in operation to suspend the enforcement of any of the fundamental rights conferred by Part III. ft is for the President to decide the enforcement of which of the fundamental rights should be suspended during the operation of the Proclamation of Emergency. There is nothing iri Article 359 which in any way limits the power of the President to suspend the enforcement of any of the fundamental rights conferred by Part III. It is to our mind quite clear that the President has the power to suspend the enforcement of any of the fundamental rights conferred by Part Iii and there is nothing there under which makes any distinction between one fundamental right or another. As Article 359 stands, it seems to us, it clearly envisages that once a Proclamation of Emergency has been issued, the security of India or any part of the territory thereof may require that the President should suspend the enforcement of .any of the fundamental rights conferred by Part III. There is in our opinion no scope for inquiry into the question whether the fundamental rights the enforcement of which the President has suspended under Article 359 has anything to do with the security of India which is threatened whether by war or external aggression or internal disturbance, for Article 359 posits that it may be necessary for the President to 'suspend any of the fundamental rights in Part Iii for the sake of the security of India. There is thus a basic assumption in Article 359 that it may be necessary for the President to suspend the enforcement of any of the fundamental rights conferred by Part Iii in the interest of the security of India. If he considers that necessary, it is unnecessary in the fact of that basic assumption to inquire whether enforcement of a particular fundamental right suspended by the President has anything to do with the security of India, for that is implicit in Article 359. It follows, thereforee, that it is open to the President to suspend the enforcement of any of the fundamental rights conferred by Part Iii by an order under Article 359 and this Article shows that wherever such suspension is made it is in the interest of the security of India and no further proof of it is necessary.'

(17) Thus validity of the Presidential proclamation under Article 352 is not justiciable. On the same reasoning its continuance is also not open to judicial scrutiny or review. The very scheme of our Constitution makes the exercise of the power by the President sacoroscant and the need for its continuation must be adjudged by the Executive and not courts. The issue of an order under Article 359 is also made by the Constitution subject to existence- of conditions which can be judged only by the Executive, which alone has the knowhow about their existence. We feel that the security of the State can be threatened by activity as postulated by Act 52 of 1974. thereforee, there is a nexus between the proclamation under Article 352 and the order under Article 359.

(18) The next question for determination is regarding the validity of Act 52 of 1974. The petition challenges the legislative competence of the Parliament to enact such a statute. It is contended that such a law does not fall within the ambit of Entry 9, List I or Entry 3, List Iii of the Seventh Schedule as preventive detention laws, postulated by the said two entries or by clause (3) of Article 22 which should have nexus with defense, foreign affairs or security of India or with the security of a state, the maintenance of public order or the maintenance of supplies and services essential to the community. Reading the Preamble of Act 52 of 1974 it is urged that it would not be possible to say that this statute falls under any of the six heads to be found in the aforesaid two entries. The relevant part of the Preamble of Act 52 of 1974 reads as under :-

'WHEREASviolations 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; And Whereas having regard to the persons by whom and the manner in which such activities or violations are organized and carried on, and having regard to the fact that in certain areas which are highly vulnerable to smuggling, smuggling activities of a considerable magnitude are clandestinely organized and carried on, it is necessary for the effective prevention of such activities and violations to provide for detention of persons concerned in any manner therewith; '

(19) The contention is that the deleterious effect on the national economy on account of violations of foreign exchange regulations and smuggling activities is a concept foreign to any of the six heads of preventive detention laws authorised by the aforesaid two entries in List I and List III. Further, to say that Parliament would have power to legislate for preventive detention under the residuary entry No. 97 in List I or the residuary power contemplated by Article 248 of the Constitution would be incorrect because if power is specifically given to legislate on a subject in a particular field, the field cannot be enlarged by taking recourse to the residuary powers of legislation. Apart from the fact that the argument does not appeal to us for, in our opinion, security of the State or security of India can well be adversely affected by violations of foreign exchange regulations and large scale smuggling activities we are of the opinion that the law clearly falls within the ambit of Entry 9 List I of the seventh Schedule. The concept of State today is far removed from what it was in the middle ages and the old concept of State is no longer valid. In the complexities of present day national life and international relations, the security of the State cannot only be undermined but jeopardised as a result of activities having an adverse effect on its economic life. Political independence of yore is a byegone concept. Today political independence, even existence, is closely linked with economic stability. Money and goods are more and more being used in the world to wield political power internally and internationally. We cannot shut our eyes to it. Indeed we must be positively aware of it. Assuming however, that Entry 9, List I or Entry 3, List Iii docs not provide for such legislation^ as Act 52 of 1974, legislative competence can be traced to the residuary power. No limit can be imposed on the scope of Entry No. 97, List I or Article 248 of the Constitution. We are fortified in coming to this conclusion by the observations of Sikri, C. J- in Union of India v. Harbhajan Singh Dhillon, : [1972]83ITR582(SC) . No doubt that decision pertained to the constitutional validity of the amendment to the Wealth-tax Act, 1957 by the Finance Act of 1969, all the same, the Supreme Court did observe : 'The expression 'any matter not enumerated in the Concurrent List or State List' in Article 248 must mean, in the context of Clause (1) of Article 246, which gives Parliament exclusive power in respect of matters in List I, any matter other than those enumerated in any of the three Lists. Obviously, the residuary power given to Parliament in Article 248 cannot include power which is exclusively given to the Parliament on matters in List I already conferred under clause (1) of Article 246, so that an attempt to distinguish the words 'any matter' in Article 248 and 'any other matter in Entry 97 in List I is a distinction without difference. There had to be dfference in language in the two provisions in the context of the content of Entry 97 as that entry speaks about matters other than those enumerated in the other Lists. Notwithstanding the fact that the residuary power has been vested in the Central Legislature under Article 248 and its consequence translated in Entry 97 in List I, there can be no gainsaying that the idea was to assign such residuary power over matters which at the time of framing the three Lists could not be thought of or contemplated...............'.

(20) It has been urged that the residuary powers postulated by Article 248 of the Constitution or Entry 97 in List I of the Seventh Schedule cannot be availed of for enacting a law of preventive detention which must conform to the concept of preventive detention to be found in the various sub clauses of Article 22 of the Constitution and Entry 9, List I or Entry 3 or List III. Mr. Tarkunde appearing in Criminal Writ No. 3 of 1975 urged that preventive detention as envisaged by Item 9 in List I or Item 3 in List 3 of the Seventh Schedule has to be understood with reference to the legislative history of the adoption on the Lists in the Seventh Schedule by the Constituent Assembly and the adoption of what are now. Articles 21 and 22 of the Constitution. Referring to the debates in the Constituent Assembly our attention was invited to the historical fact that the three Lists in the Seventh Schedule were adopted by the Constituent Assembly prior to approving the draft phraseology of what are now Articles 21 and 22 of the Constitution. Having distributed the legislative powers between the States and the Centre, the Constituent Assembly went on to consider what were later enshrined as Articles 21 and 22 in the Constitution. Article 21 in terms contemplates a society having a Government which was to be governed by the rule of law. It seemed paradoxical that whereas on the one hand an injunction was placed on the State not to deprive any one of life and liberty except according to procedure established by law, yet on the other hand legislative powers were conferred, in given circumstances, on legislatures, to enact laws under which persons may be detained or deprived of liberty without trial. It was to further the rule of law envisaged by Article 21 that clauses (1) and (2) of Article 22 were enacted. But an exception to this was made by adoption of clause (3) to Article 22 to bring it in harmony with the legislative power contemplated by Entry 9, List I and Entry 3 List Iii of the Seventh Schedule. There was a great deal of opposition) to the exception being made but the exception was thought necessary and the legislative powers were considered essential on account of the exigencies of the situation then prevailing due to the partition of the country into Dominions of India and Pakistan. The events leading to the partition and its after-math was fresh in the minds of the Constitution makers. Indeed replying to the serious criticismi by Mr. Mahavir Tyagi and others, the Constituent Assembly debates record the observations of Dr. Ambedkar, the Chairman of the Drafting Committee, wherein he reminded the members of the Constituent Assembly about their having adopted the three Lists in the Seventh Schedule in which) were included two entries dealing with preventive detention. He went on to say about Article 22(3) to (7) :-

'SUPPOSINGnow, this part of the article dealing with preventive detention; was dropped. What would be the effect of it The effect of it would be that the Provincial Legislature as well as the Central Legislature would be at complete liberty to make any kind of law of preventive detention, because if this Constitution does not by a specific article put a limitation upon the exercise of making any law which we have now given both to the Central and to the provinces, there would be no liberty left, and Parliament and the Legislatures of the States, would be at complete liberty to make any kind of law dealing with preventive detention........................ My submission is that if there attitude was as expressed today, that we ought to have no such provision, then what they ought to have done was to have objected to those entries in List I and List III. We are trying to rescue the thing.'

(21) It is in this context that we are asked to consider the present enactment as being outside the scope of the legislative powers conferred by Item 9 in List I or Item 3 in List Iii of the Seventh Schedule. The contention is that the statute has to be tested not from the point of view of legislative powers but limitations on legislative powers.

(22) Reliance for the contention that the approach for testing the validity of Act 52 of 1974 should be with reference to limitations on legislative power rather than the scope of the power to legislate on a particular subset is sought from the decision of the Supreme CourD in S. N. Sarkar v. The State of West Bengal and other, : [1974]1SCR1 . It is urged that this decision approved the minority view in A. K. Gopalan v. State of Madras, A.I.R. 1950 SEC 27(5). Shelat, A.C.J., in his speech observed as under :

'THEnon-applicability of els. (1) and (2) provided by clause (3) of Art. 22 in the case of an enemy-alien and a person detained under a preventive detention law was provided for, as is notorious, as a sequel to the tragic incidents and the danger to both the internal and external security of the country following the partion. Clause (3) consequently was inserted as an exception to the rule laid down in els. (1) and (2) of Article 22. There can be no doubt whatsoever that the Constitution-makers accepted preventive detention as a necessary evil, to be tolerated in a constitutional scheme which, otherwise, guaranteed personal liberty in its well-accepted form. Having thus recognised the necessity of preventive detention laws, the Constitution-makers first delineated in clear and precise terms certain heads or subjects in respect of which only Parliament by itself and concurrently with State legislatures was empowered to enact detention laws under Entries 9 and 3 of Lists I and Iii respectively.'

Dealing with the effect of clause (4) and (7) of Article 22 it was observed :-

'..................CLAUSE(4) (a) thus lays down a limitation on the legislative power conferred on both the Central and State legislatures while exercising their power under the said entries.'

Again in para 36 it was observed :-

'IFcl. (7) (a) were construed to permit mere enumeration of the subjects in respect of which there is power to enact preventive detention laws, all those subjects can be -set out verbatim, in which event clause (4) (a) would be rendered otioso. An act prejudicial to the maintenance of essential supplies and services, e.g. possession of controlled or rationed food articles in excess of statutory limits, would be equated for treatment with an act prejudicial to the security of India or a State. On the other hand, an act sabotaging, for instance, lines of supplies and communication in times of an emergency, prejudicial to the maintenance of essential supplies and services would be equated with an act prejudicial to maintenance of public order in one locality or affecting a section of the community. Clause (7) (a), thus envisages Parliament to apply its mind and prescribe specific situations and types of cases which require a drastic law dispensing with the intervention of an advisory board on the ground that such intervention would in such exceptional circumstances and in cases of dangerous individuals woul

(23) It was urged that the observations in Union of India v. Harbhajan Singh Dhillon, : [1972]83ITR582(SC) , reproduced hereunder were irrelevant as the question is not of power to legislate but limitations on that power. These observations in Dhillon's case are PARA 'It was also said that if this was intention of the Constitution makers they need not have formulated List I at all- This is the point which was taken by Sardar Hukum Singh and others in the debates referred to above and was answered by Dr. Ambedkar. But apart from what has been stated by Dr. Ambedkar in his speech extracted above there is some merits and legal effect in having included specific items in List I for when there are three lists it is easier to construe List Ii in the light of Lists I and II. If there had been no List I, many items in List Ii would perhaps have been given much wider interpretation than can be given under the present scheme. Be that as it may. we have the three lists and a residuary power and thereforee it seems to us that in this context if a Central Act is, challenged as being beyond the legislative competence of Parliament, it is enough to enquire if it is a law with respect to matters or taxes enumerated in List II. If it is not, no further question arises.'

(24) From the above opinions, it is contended that preventive detention has a special meaning in Article 22(3) and that is what is understood or postulated by Entry 9 List I or Entry 3 List III. Reading the purpose of Act 52 of 1974 may relate to the stability of the State referred there under cannot mean what is contemplated by this phrase in the aforesaid two entries in the two Lists. The argument is that the purpose of Act 52 of 1974 may relate to the stability of the State which is quite distinct from security of the State; and if that be the correct interpretation, Act 52 of 1974 is beyond the legislative competence of Parliament.

(25) In support of the above contention reliance was also placed on Romesh Thappar v. State of Madras : 1950CriLJ1514 Ram Nandan v. State, : AIR1959All101 and Dr. Ram Manohar Lohiya v. State of Bihar, : 1966CriLJ608 .

(26) In Romesh Thappar's case the phrase 'security of the State' was construed as disturbance of public peace or tranquillity assuming such grave proportion as to threaten the security of the State by reference to Section 56 of the Government of India Act, 1935. A distinction was also made between crimes of violence intended to over throw the Government and criminal acts endangering the peace or tranquillity of the province.

(27) - In the Allahabad decision a Full Bench of that Court drew a distinction between public disorder with the object to flout the Constitution by changing the Government in a manner not contemplated by it and some internal disturbances of a lesser degree.

(28) Similarly in Ram Manohar Lohiya's case a distinction was made between acts affecting public order as opposed to acts affecting law and order.

(29) The purport of relying on the above decisions is this that the economic activities contemplated by Act 52 of 1974 cannot affect the security of the State though it may adversely affect the stability of the State, or bring about economic distress in the country. We cannot accept this contention. We have already observed that in the present day concept of security of the State one cannot ignore the use of money and goods to wield international political power or even disturb the balance of power. In any case, we are of the view that whether a particular activity has assumed such magnitude that it will affect the security of the State is a matter which can only be judged by the executive by reasons of its position as also the expertise available to it, and cannot be judged in courts.

(30) Mr. Nambyar's attack on the validity of the statute is, consequently, based on another plane. The first contention is that as Act 52 of 1974 does not embody the Constitutional right guaranteed by clause (5) of Article 22 of the Constitution in it, the Act was void ab initio and the suspension of the enforcement of the rights under clause (5) of Article 22 by a Presidential order under Aticle 359 made five days later cannot put life into a statute which was still born. If that be correct, it is urged, the detenues' fundamental rights guaranteed by clauses (1) and (2) of Article 22 have admittedly been violated. So, they are entitled to be set at liberty as the Presidential order under Article 359 does not suspend the enforcement of the rights conferred by Article 22(1) and (2).

(31) In support of the contention that the rights guaranteed by clause (5) of Article 22 had to be embodied in Act 52 of 1974, reliance is placed on certain observations in Gopalan's case, : 1950CriLJ1383 . The speech of Das J. is quoted in support of the contention. The learned Judge said (para 245 of the report).

'IN my judgment as regards preventive detention laws, the only limitation put upon the legislative power is that it must provide some procedure and at least incorporate the minimum requirements laid down in Article 22(4) to (7).'

(32) In our opinion these observations have been read by the learned counsel out of context. These observations were not meant to lay down the proposition that the safeguards contemplated by clause (5) of Article 22 have to be incorporated verbatim, or as was done by Section 8(1) of the Misa, but that some procedure is provided which complies with the requirements of Article 22(5). Indeed in an earlier part of his speech (paras 243 & 244 of the report) Das J., observed as under :- 'Clauses I and 2 of Article 22 lay down the procedure that has to be followed when a man is arrested...............'. Clauses (4), (5), (6) and (7) of the Article 22 in terms relate to preventive detention........................'(After dealing with clause 4). Then comes clause (5). It lays down the procedure that has to be followed when a . person is detained under any law providing for preventive detention, namely, (a) the grounds of the order oi detention must be communicated to detenu as soon as may be and (b) the detenu must be afforded the earliest opportunity of making a representation against the order. The first requirement takes the place of notice and the second that of a defense or hearing. These are the only compulsory procedural requirements laid down by our Constitution. There is nothing to prevent the Legislature from providing an elaborate procedure regulating preventing detention but it is not obliged to do so. If some procedure is provided as envisaged by Article 21 and the compulsory requirements of Article 22 are obeyed and carried out nobody can, under our Constitution, as I read it, complain of the law providing for preventive detention.'

(33) Immediately after the observations of Das J' relied upon we find that the learned Judge had gone on to say:-

'THEREFORE,a preventive detention law which provides some procedure and complies with the requirements of Article 22(4) to (7) must be held to he a good law, however odious it may appear to the Court. to be.'

(34) The contention, thereforee, cannot be accepted. A bare reading of sub-section (3) of Section 3 of Act 52 of 1974 makes the legislative intent absolutely clear. This sub-section starts with the words 'For the purposes of clause (5) of Article 22 of the Constitution'. The obvious implication of this phrase is that the grounds should be communicated to the detenu to fulfilll the requirements of Article 22(5), namely, (a) to let the detenu know the grounds on which he is detained, and (b) to afford an opportunity to him to make a representation. If such was not the intention the opening phrase quoted above need not have been enacted. In our view the minimal safeguards postulated by the Constitution are provided for by subsection (3) of Section 2 as enacted. To hold otherwise would amount to not giving -effect to the opening words of the sub-section. Indeed the construction that we have given is the only possible construction is amply demonstrated by the fact that the grounds of detention was given to the detenues reminding them that they could make representations if they so wish. In our view, so long as the procedure prescribed by a law is not repugnant to the Constitution and the minimal safeguards are provided for, it is unnecessary to re-enact the Constitutional safeguard in a statute.

(35) Another contention is that the Act is void inasmuch as Clause (7) of Article 22 is also infringed. The argument is that Section 10 of Act 52 of 1974 provides for a maximum period of detention but sub-section (2) of Section 11 makes the provisions of Section 10 illusory- It is urged that a detenu on revocation of the detention order may be detained on the same grounds on which he was detained earlier in respect of which the detention order is revoked and in that way be detained beyond the maximum period provided by Section 10. Reference was made to Section 13 and Section 14(2) of the Misa and Section 13(2) in the Preventive Detention Act, 1950. In these two enactments it is laid down that a person cannot be detained again on the same grounds on which he was detained earlier, if the earlier detention is revoked, unless fresh facts come to light. There is no such provision in Act 52 of 1974 and so it is urged it is vocative of clause (7) of Article 22. There is no force in this contention. The Parliament has by law prescribed the maximum period for detention. It has also by Section 11(2) given power for fresh detention. If this power is misused then the exercise of the power may be questionable but the conferment of power is not repugnant to the provisions of the Constitution. The statute cannot be said to be void or being vocative of Article 22(7) by the conferment of the powers under Section 11(2). Indeed a preventive detention law so long as it conforms to the limitations postulated by clause (4) of Article 22 would be a valid law. All that is required is that the preventive detention law should not contain anything contrary to the requirements of clauses (4) to (7) of Article 22. If additional power is given, in consonance with and not repugnant to the provisions of the Constitution, the law would not be had by the mere conferment of additional power. In State of Bombay v. Atma Ram, : 1951CriLJ373 , Kania, C.J- observed that Article 22 prescribes the minimum procedure that must be included in any law permitting preventive detention. The term preventive detention and the scope of Article 22(7) has to be understood in the context of what the Kania, C.J. said in Gopalan's case in paragraph 25 of the report : 1950CriLJ1383 . Apart from this Article 22(7) can be said to be permissive and not obligatory. We need not, however, dilate on this aspect because factually Section 10 of the Act provides for the maximum period and Section 11(2) contemplates a fresh order. As stated by us earlier, if the fresh order is repugnant to Article 22(7)(b) it may be struck down as abuse of power or mala fide exercise of power. That does not make the statute bad. Possible abuse or misuse of power is no ground to declare a statute invalid. (See: Collector of Customs, Madras v. Nathella Sampathu Chetty, : 1983ECR2198D(SC) . We, thereforee, hold that Act 52 of 1974 is not void. In that view of the matter prima facie there is no violation vis-a-vis the detenu of the provisions of Article 22(1) and (2). Whether these Fundamental Rights have been violated on any other ground would be quite another matter.

(36) We now proceed to consider the construction to be put on and the effect of the Presidential Order under Article 359 made on December 23, 1974. The demurrer of the respondents is that substantially what is sought to be enforced by the Writ of Habeas Corpus are the rights conferred by Articles 21 and 22 under clauses (4) to (7) but this is suspended by the Presidential Order and so the petitions are not maintainable or, in any case, cannot be heard at present. The Presidential Order in question has already been set out earlier. The first aspect is to appreciate the meaning and scope of this Order. For on that would depend the scope of enquiry by us as to the validity or tenability of the impugned detention orders.

(37) Mr. F. S. Nariman, Additional Solicitor General urged that the Presidential Order of December 1974 is different from Presidential Orders issued under Aticic 359 on earlier occasions and particularly the one issued in 1962 after the declaration of emergency in the wake of hostilities between India and China. It is contended that the 1962 Order was a conditional order whereas the present Order is not so, and indeed has to be construed as suspending the writ of Habeas Corpus in certain circumstances. We are of the opinion that substantially there is no difference between the earlier order under Article 359 and the present order.

(38) The Presidential Order under Article 359 issued on November 3, 1962 as amended by an order dated November 11, 1962 reads as under:-

'INexercise of the powers conferred by Clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person to move any Court for the enforcement of the rights conferred by Arts. 14,21 and 22 of the Constiution shall remain suspended for the period during which the Proclamation of Emergency issued under Clause (1) of Art. 352 thereof on the 26th October, 1962, is in force, if such person has been deprived of any such rights under the defense of India Ordinance, 1962 (4 of 1962) or any rule or order made there under.

(39) Paraphrased this Order sets out that the enforcement of rights conferred Articles 14, 21 and 22 of the Constitution are suspended if any person is deprived of such rights by the defense of India Ordinance (Later on the Act) or any order made there under.

(40) The order of December 23, 1974 paraphrased lay down that where any person is detained under Act 52 of 1974 he cannot enforce rights conferred by Articles 14, 21 and 22(4) to (7) of the Constitution.

(41) The learned Additional Solicitor General contents that the order of December 1974 unconditional bars the remedy to enforce rights conferred by Articles 14, 21 and 22(4) to (7), whereas the order of 1962 was conditional and barred the enforcement of rights under Articles 14, 21 and 22 of the Constitution if a person was deprived of any such rights under the defense of India Act or any rules or Order made there under. We do not find any such material difference between the two orders. In either case the detention postulated is under a particular statute or order passed there under and the remedy of moving the court is barred only in such a contingency. Substantially both the orders have the same purport and effect.

(42) It is obvious on a reading of the Presidential Order of December 1974 that the order contemplated is one made under Act 52 of 1974. The question that arises for consideration is whether the order of detention challenged must confom strictly to the povisions of the Act under which the same is purported to have been made or whether merely because the order of detention purports to be under the Act a Writ of Habeas Corpus would be barred. In other words whether an order under the Act has to be m accordance with the provisions of the Act or requirements of the Act to be an order under the Act-

(43) Mr. Nariman urges that the order of detention cannot be challenged even for non-compliance of the mandatory requirements to the Act so long as the Presidential Order is in force because on a true construction of the Presidential Order the right to move any court with respect to the detention under the Act is suspended if the plea is that the detention is not according to the statutory procedure. Such a plea, says the Counsel, really amounts to enforcement of the protection guaranteed by Article 21 which right cannot be enforced on account of the Presidential Order. Elaborating on this contention it was urged that the expression 'procedure established by law' in Article 21 of the Constitution means the mode and manner of enforcing the law; and in the context of the Presidential Order, the right to move the court with respect to order of detention made under the Act cannot mean validly made or duly made under the Act. It is contended that if detention orders were validly made or duly made under the Act. It is contended that if detention orders were validly made or duly made under the Act the detenu will be deprived-ot liberty in accordance with the procedure established by law as postulated by Article 21 of the Constitution. If such a construction was to be given it would be unnecessary and futile to suspend the enforcement of rights conferred by Article 21 by an order under Article 359. In a nutshell, thereforee, the contention is that an order made and an order validly made under the Act are two different concepts.

(44) We may, thereforee, proceed to first examine these contentions and notice the some of 'the decisions relied upon.

(45) In Gopalan's case Kania C. J. observed that it 'seems very arguabic that in the whole set up of Part Iii of our Constitution the rule enunciated in the King v. Secretary of State for Home Affairs, 1923 (2) Kb 361(11), only remains guaranteed by Article 21. The rule enunciated in the King v. Secretary of State for Home Affairs, undoubtedly guilty of murder must yet be relased if due forms of law have notbeen followed in his conviction.'

(46) , Patanjali Sastri J. in the same case observed 'the truth is that the Article 21, like its American prototype in the 5th and 14th Amendments of the Constitution of the United States presents an example of the fusion of procedural and substantial rights in the same provision.'

(47) In Makhan Singh v. State of Punjab, Air 1964 Sc 380(12), after observing that a right to ask for a writ in the nature of Habeas Corpus which could once have been treated as a matter of common Law has become a statutory right after 1923 under Section 491 of the Criminal Procedure Code and may be regarded as having become a Constitutional right after the Constitution, it was held that if there is a Presidential order issued under Article 359, 'the obvious and the necessary implication of the suspension of the right of a citizen to move any Court for enforcing his specified fundamental rights is to suspend the jurisdiction of the Court protanto in that behalf.'

(48) In Kamla Mills vs. Bombay State, : [1965]57ITR643(SC) , while construing Section 20 of the Bombay Sales Tax Act, 1946, in the context of Article 19 and 31 of the Constitution, it was observed :-

'SECTION 20 protects 'assessment made under the Act or the rules made there under' by appropriate authorities. There can be little doubt that the clause 'an assessment made' cannot mean the assessment properly or correctly made. The said clause takes in all assessments made or purported to have been made under the Act. In its plaint, the appellant is undoubtedly calling into question the assessment order made against it, and such a challenge to the assessment order is plainly prohibited by S. 20. An Order of assessment, though erroneous, and though based on an incorrect finding of fact, is, nevertheless, an order of assessment within the meaning of Section 20; and S. 20, in terms, provides that it will not called in question in any civil court-'

(49) In, Ram Manohar Lohiya's case, referred to earlier, the order was ex facie held not to be one under the defense, of India Act or Rules. It is urged that the order of detention was struck down because it did not have the sanction of the Statute or the Rules made there under. Applying the Presidential Order then in force to the facts of the case it was held that the Presidential Order stopped all claims to enforce rights arising from laws other than defense of India Act and the Rules and the provisions of Article 22 at variance with defense of India Act and the Rules are of no avail but the President's Order does not say that even if a person is proceeded against in breach of the defense of India Act or the Rules he cannot move the court to complain that the Act and the Rules, under the colour of which some action is taken, do not warrant it. Earlier in the judgment in paragraph-28 it has been observed that 'the provisions of Article 22 would have applied to arrest and detention under the defense of India Act also, if the President's Order had not taken away from such a person the right to move any court to enforce the protection of Article 22'. It may be remembered that clauses (1) and (2) of Article 22 create a protection against illegal arrest and detention and is in furtherance of the guarantee enshrined in Article 21. Clause (3) of Article 22 creates an exception with regard to aliens and preventive detention.

(50) From the above decisions, and we need not notice any more cases, no support can be found for the proposition urged by the Additional Solicitor General. To quote from the speech of Gajendragadkar, J. (as he then was) in Makhan Singh's case :-

'ITstill remains to consider what are the pleas which are now open to the citizens to take in challenging the legality or the propriety of their detentions either under Section 491(1)(b) of Code, or Article 226(1) of the Constitution. We have already seen that the right to move any court which is suspended by Article 359(1) and the Presidential Order issued under it is the right for the enforcement of such of the rights conferred by Part-111 as may be mentioned in the Order. If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the Order, his right to move any court in that behalf is not suspended, because it is outside Article 359(1) and consequently outside the Presidential Order itself. Let us take a case where a detenu has been detained in Violation of the mandatory provisions of the Act. In such a case it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened. Such a plea is outside Article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential Order- Take also a case where the detenu moved the court for a writ of Habeas Corpus on the ground that his detention has been ordered mala fide. It is hardly necessary to emphasise that the exercise of a power mala fide is wholly outside the scope of the Act conferring the power and can always be successfully challenged. It is true that a mere allegation that the detention is mala fide would not be enough; the detenu will have to prove the mala fides. But if the mala fides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of bar created by Article 359(1) and the Presidential Order, That is another kind of plea which is outside the purview of Article 359(1).'

(51) In this very context and at this stage we may consider an argument advanced on behalf of the detenu by Mr. Nambyar that what is sought to be enforced are not the rights enforcement of which has been suspended, namely, rights guaranteed by Article 21 of the Constitution but the basic rights which are independent of Article 21. Learned counsel contended that the writ of Habeas Corpus was available long before Articles 21 and 22 came into existence and the writ cannot be suspended merely because the enforcement of rights under Article 21 has been suspended by the Presidential Order. To this the reply on behalf of the State is that the basic rights as agitated are now enshrined in Part-111 of the Constitution and there are no rights independent thereof. Rights have to be either Constitutional or statutory in the present context and not independent thereof.

(52) Mr. Nambyar invited our attention to several decisions given by courts both in India and England prior to the enforcement of the Constitution in 1950 and urged that the rule of law enunciated therein still holds good despite confeennent of Fundamental Rights by Part Iii of the Constitution and suspension of the enforcement of some of those rights by President's Order under Article 359, which does not affect enforcing that rule of law. In Emperor v. Shiv Nath Banerji, , the respondent who had been detained under the defense of India Rules, 1939 moved the High Court of Calcutta for a writ of Habeas Corpus under Section 491 of the Code of Criminal Procedure. In those days no Fundamental Rights were available to be pleaded. Repelling the contention on behalf of the Crown that the court has no jurisdiction to investigate the validity of the orders, it was observed :-

'IT is quite a different thing to question the accuracy of a a recital contained in a duly authenticated order, particularly where that recital purports to state as a fact the carrying out of a condition necessary to the valid making of that order. In the normal case, the existence of such a recital in a duly authenticated order will. in the absence of any evidence as to inaccuracy be accepted by a court as establishing that the necessary condition was fulfillled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima fade case that the recital is not accurate. Hence the court has jurisdiction to investigate the validity of the orders.'

(53) In England citizens have no Fundamental Rights as guaranteed by Part-111 of our Constitution yet it was held in the King v. Secretary of State of Home Affairs, 1923(2) K.B. 361 (11) that even a person guilty of high treason can be deprived of his liberty but only by due process of law.

(54) It is not necessary to dilate on whether the principles of British Jurisprudence inherited by us now stand codified in Articles 21 and 22(1) and (2) of the Constitution or whether there arc some rights available to a citizen de hors Fundamental Rights. Suffice it to say that even if rights under Article 21 cannot be enforced, it does not absolvethe State from showing that its action is lawful. We cannot persuade ourselves to agree with the learned Additional Solicitor General that if the enforcement of rights under Article 21 are suspended a writ of Habeas Corpus stands virtually suspended and a person deprived of his liberty cannot call upon the State to justify that its action is lawful. Reliance by the State on Liversidge v. Sir John Anderson and Another, 1942 A.C. 206(15) and Greenc v. Secretary of State for Home Affairs, 1942 A.C. 284(16) is of little avail. In the Liversidge case the Secretary of State acting in good faith made an order under the defense (General) Regulations 1939 regarding a person whom he believed of hostile associations. An action was brought by the detenu for damages for false imprisonment. It was observed that the court cannot compel the defendant to give particulars of the ground on which he has reasonable cause to believe the plaintiff to be a person of hostile associations or that by reason of such hostile associations it was necessary to exercise control over him. The production of the order of detention, if it was ex fade regular and duly authenticated, constituted sufficient defense.

(55) In Greene's case also the same rule was reiterated. It is, however, significant that while laying down the above rule Viscount Maugham in his speech approved the dicta earlier laid down by Goddard L- J., who had said :--

'Iam of the opinion that where on title return an order or warrant which is valid on its face is produced it is for the prisoner to prove the fact necessary to controvert it, and in the present case this has not been dune. I do not say that in no case it is necessary for the Secretary of State to file an affidavit. It must depend on the ground on which the return, is controverter, but where all that the prisoner says in effect is I do not know why I am interned. I deny that I have done anything wrong', that does not require an answer because it in no way shows that the Secretary of State had not reasonable cause to believe or did not believe, otherwise.'

(56) In Jai Chand Lal Sethia v. The State of West Bengal, : 1967CriLJ520 , the Supreme Court has approved of what was said by the Privy 'Council in case of Shiv Nath Ban'erjee or what was said in Greene's case or in the case of Liversidge. It was further laid down:-

'IT is manifest that an order of detention under R. 30 of the defense of India Rules can only be passed if the Slate Government is satisfied that the detention of a particular person is necessary on any ground referred to in that Rule. Even though the order as drawn up recites that the State Government was satisfied, the accuracy of that recital can be challenged in Court to a limited extent. The accuracy can be challenged in two ways either by proving that the State Government never applied its mind to the matter or that the authorities of the State Government acted mala fide. In a normal case the existence of such a recital in a duly authenticated order will. in the absence of any evidence as to its inaccuracy, be accepted by the Court as establishing that the necessary condition was fulfillled. In other words, in a normal case the existence of such a recital in a duly authenticated order that the State Government was satisfied will, in the absence of any evidence to the contrary, be accepted by the Court as establishing that the State Government was so satisfied. If the order of detention itself suffers from any lacuna it is open to a Court in a proper case to call for an affidavit from the Chief Minister or other Minister concerned or to call for the relevant file from the State Government in order to satisfy as to the accuracy of the recital made in the order of detention.'

(57) Thus the principle is that a duly authenticated order of detention would be good answer to the Rule Nisi but depending upon the allegations made the State can be called upon to justify its action in law.

(58) One may look at it from another point of view also and that is this. Article 21 in terms does not confer any rights, it injuncts the State not to deprive any one of life or liberty except according to procedure established by law. The assurance postulated by Article 21 may be taken as creating a corresponding right in persons living in India, but that is quite another thing. Now Article 21 as such has not been suspended. The enforcement of what we have called the corresponding right, stands suspended. So though a citizen or other person will not be able to enforce the corresponding right the State is still under an obligation to act in consonance with the injunction placed on it by Article 21. It is perhaps in this context that one may recall the celiberated words of Eidyatullah, J. (as he then was) in Makhan Singh's case :-

'WHENthe President suspended the operation of Article 21 it took away from any person dealt with under the terms of this order, the right to plead in court of law that he was deprived of his life and personal liberty otherwise then according to the procedure established by the laws of the country. In other words, he could not invoke the procedure established by ordinary law. But President did not make lawless actions lawful.'

(59) If she argument of the learned Additional Solicitor General is to be accepted on this aspect one may well ask the question as to where was the need for enacting Act 52 of 1974. The very fact that such an Act was enacted, though before making of the order under Article 359, and thereafter the right to enforce specified Fundamental Rights are suspended, shows that the State knew it had to have sanction of law before attemping to detain persons on suspicion. The necessity for the State to act in accordance with law does not stand suspended. Accordingly we hold that an order of detention under Act 52 of 1974 must be in accordance with the provisions of that Act and if it is not it cannot be regarded as detention having sanction of any law. The State must show the sanction of law, despite the fact whether the person detained can complain of violation of any Fundamental Right or not. We are fortified in coming to this conclusion by what was laid down by Supreme Court in Makhan Singh's case. namely:-

'BUTto be able to show that the right to move the Court for the enforcement of Right under Article 21 is suspended, it is necessary to establish that such person has been deprived of any such right under the defense of India Act or any rules or order made therein, that is to say under the Authority of the Act- The action of the Authority empowered by the defense of India Act is not completely shielded from the scrutiny of court. The scrutiny with reference to the procedure established by laws other than the defense of India Act is of course, shut out but an. enquiry whether an action is justified under the defense of India Act itself is not shut out.'

(60) Likewise 'the impugned detentions have to be under Act 52 of 1974 and whether they are so can always be inquired into.

(61) This brings us to the scope of the enquiry in the present cases despite the existence of a Presidential Order under Article 359(1) of the Constitution.

(62) On behalf of the delenues it has been urged that the approach of the Court should be that when a person is deprived of a valuable right like personal liberty the Executive action has to be very strictly construed and in favor of detenu. The rules laid down by the Supreme Court, it is urged, would justify Court's interference if the order is not made by an appropriate authority; or if there is no valid statutory satisfaction; or the order is mala fide. As sub heads of the requisite satisfaction, detenue is entitled to urge that there was non-application of mind, taking of irrelevant matter into consideration, or the satisfaction being based on stale or remote grounds, or there being no grounds, or the satisfaction being based on nonexistent facts. It is urged that the satisfaction could also be vitiated if it is arbitrary exercise of power or based on circumstances in which no reasonable person could arrive at the conclusion said to have been arrived at. The satisfaction may be vitiated if it is on grounds which are indefinite or imprecise or vague.

(63) The learned Additional Solicitor General has urged that the requisite satisfaction can be vitiated only if it is found to be based either on admittedly false grounds or made mala fide and for no other reason.

(64) One of the most precious rights that any person living in a civilised society has is that of personal liberty. He can be deprived of it only under a valid law and. in accordance with it. This need hardly be emphasised. Indeed, in our country, such sanctity has been given to the aspect of personal liberty that the right stands. guaranteed by the Constitution enshrined as a Fundamental Right. In an emergency, when the Nation is in peril, the Executive has, however, been given power to deprive a person of personal liberty even without trial provided there is legislative sanction for it and the Executive acts within the ambit of such law. The Executive has no absolute power to deprive a person of personal liberty. As we said earlier, the Executive has to comply with the norms of law providing for detention without trial. In ordinary circumstances, a person can be deprived of his liberty only after trial in accordance with procedure established by law as postulated by Article 21 of the Constitution; but the Constitution does envisage that the bar of trial stands removed in given circumstances. Such laws are called preveniive detention laws sanctioned by entry 9 of List I and entry 3 of List Iii in the Seventh Schedule read with clauses (3) to (7) of Article 22. Act 52 of 1974 is such a law. It allows detention of a person in given circumstances on the subjective satisfaction of the Executive. This subjective satisfaction cannot be adjudicated upon objectively, but we cannot agree to the contention on behalf of the State that such satisfaction could only be vitiated if it is either mala fide or is based on admittedly false, or incorrect facts. These would be two grounds to vitiate the subjective satisfaction but cannot be the only grounds. Indeed right from Makhan Singh's case to the latest decisions of the Supreme Court and the various High Courts we find that courts have struck down subjective satisfaction on diverse grounds other than the two grounds conceded by the respondents.

(65) In Makhan Singh's case the Supreme Court observed that despite an order under Article 359 if the detention was mala fide or if it was contended that the operative provision of the law under which a person is detained suffers from the vice of excessive delegation or any other plea is raised which falls outside the purview of Article 359(1) the Court can examine the validity of detention in the context of pleas raised. The court cautioned that these three categories arc not exhaustive. Similarly, in Mohd. Yakub v. State of Jammu and Kashmir : 1968CriLJ977 , it was observed that though non-furnishing of grounds under Article 22(5) cannot be pleaded in view of the suspension of the enforcement of that right, yet if the order was not under the Act the detention would stand vitiated. In Rameshwar Lal Patwari v. The State of Bihar : [1968]2SCR505 , it was held that the grounds of detention must not be vague or indefinite, or if they are the detention would not be valid. In Moti Lal Jain v. The State of Bihar : 1969CriLJ33 , vague and irrelevant grounds were held as affecting the validity of detention. The latest decision of the Supreme Court in Khudiram Das v. The State of West Bengal : [1975]2SCR832 , lays down:-

'THEbasic postulate on which the courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive,. the court can always examine whether the requisite satisfaction is arrived at by the authority, if it is not, the condition precedent to the exercise of the power would not be fulfillled and the exercise of the power would be bad. There are several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all : in such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v. Shibnath Banerji is a case in point. Then there may be a case where the power is exercised dishonestly or for an improper purpose; such a case would also negative the' existence of satisfaction on the part of the authority. The existence of 'improper purpose', that is, a purpose not contemplated by the statute, has been recognised as an independent ground of control in several decided cases. The satisfaction, moreover, must be a satisfaction of the authority itself, and thereforee, if, in exercising the power, the authority has acted under the dictation of another body as the Commissioner of Police did in Commr. of Police v. Gordhandas Bhanji, : [1952]1SCR135 and the officer of the Ministry of Labour and National Service did in Simms Motor Units Ltd. v. Minister of Labour and National Service, (1946) 2 All. E.R. 201 the exercise of the power would be bad and so also would the exercisc of the power be vitiated where the authority has disabled itself from applying its mind to the facts of each individual case by self-created rules of policy or in any other manner. The satisfaction said to have been arrived ai by the authority would also be had where it is based on the application of a wrong test or the misconstruction of a statute, Where this happens, the satisfaction oi the authority would not be . in respect of the thing in :cgard to which it is required to be satisfied. Then again the satisfaction must be grounded 'on materials which are of rationally probative value': Machinder v. King : 1950CriLJ1525 . The grounds on which the satisfaction is based must' be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad : Paratp Singh v. State of Punjab, : (1966)ILLJ458SC . If there are to be found in the statute expressly or by implication matter which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those matters. The authority must call its attention to the matter which it is bound to consider.

There is also one other ground on which the subjective satisfaction reached by an authority can successfully be challenged and it is of late becoming increasingly important. The genesis of this ground is to be found in the famous words of Lord Halsbury in Sharpa v. Wakefield, 1891 Ac 173 at p. 179: '..... .when it is said that something is to be done within the discretion of the authorities...... that something is to be done according to the rules of reason and justice, not according to private opinion. ...... .according to law and not humour. It is to be, not arbitrary, vague, fanciful, but legal and regular.'

(66) It is not necessary to refer to other decision cite at the bar for the law seems well settled,

(67) Although the area of court's scrutiny has now been well dilated upon, yet it has to be remembered that the court has not to sit in appeal over the subjective satisfaction of the detaining authority. It is clear from a reading of section 3(1) of Act 52 of 1974 that the exercise of the power of detention is dependent on the subjective satisfaction of the detaining authority in the circumstances enumerated. The words used are 'if satisfied' and they clearly import subjective satisfaction on the part of the detaining auhority before an order of detention can bemade. This necessarily had to be so as the power of preventive deictition is to be contrasted with punitive detention. The power is to be exercised in the jurisdiction of suspicion and not by way of punishment for a crime. Since preventive detention is based on the principle that .the person should be prevented from doing something in the future which if left free and unfettered he may do, it necessarily follows that the suspicion or anticipation alone comes into play as district from proof or established facts. To quote the words of Patanjali Sastri, C.J., in State of Madras v. V. G. Row, AIR 1972 Sc 196, (21) preventive detention is 'largely precautionary and based an suspicion'. Lord Finlay in Rex v. Halliday, 1917 Ac 260, (22) observed :-

'THECourt was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based.'

(68) Keeping the above judicial principles in view, that the area of judicial scrutiny is very limited, we have now to examine whether in this limited field a case is made out by detenues to challenge their detention.

(69) The detenu in Criminal Writ No. 1 of 1975 is one Sukar Naran Bakhia. He was earlier detained under the Misa but is now detained under Act 52 of 1974. Seven grounds of detention were communicated to him by memorandum dated December 23, 1974. It is urged that ground No. 5 is irrelevant and grounds 1, 6 and 7 are non-existent. Mr. Nambiyar has primarily rested his case on a challenge to these four grounds. He has urged that if these four or any one of them are shown by him to be either irrelevant or non-existent, the entire order of detention would stand vitiated, as, it would be difficult for the court to objectively determine as to what effect the irrelevant or non-existent grounds had on the subjective satisfaction of the detaining authority. The contention is that inasmuch as it is not possible to asses in what manner and to what extent the valid and invalid grounds operate on the mind of the detaining authority and contributed to the creation of a subjective satisfaction, the whole order would stand vitiated even if one ground falls. In support of this contention reliance is placed on a Bench decision of this Court in Criminal Writ No. 37 of 1974 (Daya Shankar Kapoor v. Union of India and others decided on November 22, 1974 (23) to which one of us (Ansari J.) was a party. This proposition of law is not disputed. Accordingly, we proceed to examine the four grounds commented upon by Mr. Nambiyar. Grounds No. 5 reads as under :-

'ON28-9-1972, intelligence as given was received that a truck Mrs 7491 will pass through Bhiland Check Post on its way to Bombay loaded with smuggled goods. It was further learnt that the smuggled goods carried in the truck were landed on the coast of Dandi by Railal Deva for you and that the truck was to be piloted either by you or your associates. The truck was not 'noticed on 28th or 29th September, 1972. However, on 3-10-72 ' the truck was noticed near Chikhli and was intercepted near R.T.O. Check Post Vapi. Just before the truck was noticed at Chikhli, a Morcendez Benz Car was seen coming in speed towards Bulsar. It was further seen that some of your associates were sitting in the said car. Search of the truck resulted in seizure of 115 packages of textiles of foreign origin-valued at Rs. 8,25,588. Two occupants of the truck Were apprehended. A show cause memo has been issued on 23-3-1972. No show cause memo has been issued to you. Adjudication proceedings are pending.'

(70) The challenge to this ground is that no connection is shown with the detenu in respect of the incidents mentioned in the ground. Relying on Machinder Shivaji v. The King AIR 1950 Fc 129 (24). it is urged that what is stated in the ground has no rational probative value. It is said that this ground is substantially the same as ground No. 11 given after the earlier detention in September, 1974. The mere suspician mentioned in this is not enough to connect the detenu with the incident. We find no force in this contention. It is clearly stated that according to the intelligence received, the smuggled goods, carried in the truck, had been landed on the coast of Dandi by Ratilal Deva for the detenu. It is not within the ambit of the proceedings in this court to investigate the truth or falsity of the intelligence report. The Court cannot take evidence as to whether in fact the goods were landed as alleged. The connection of the detenu is clearly indicated -and so it cannot be said that the ground is irrelevant. It is next urged that the names of the associates have not been disclosed and that makes the ground untenable. Reliances for this is placed on the decision of the Supreme Court in w. p. No. 406 of 1974 (Gopal Bauri v. District Magistrate, Burdwan and others) (25) decided on January 17, 1975 (25). There is no force in this contention also. In the grounds of detention given to the detenu the provisions of Article 22(6) have been invoked that further facts cannot be disclosed. Such was not the case in the decision relied upon wherein it was observed that non-discloure of the names of the associates makes the subjective satisfaction one influenced by an unreal and non-existent material or circumstance.

(71) It has not been argued that the incident or the intelligence report are non-existent. Indeed the circumstance that the very truck mentioned in the intelligence report as the one which will carry contraband goods was in fact found carrying such goods shows the authenticity of the intelligence. We, thereforee, cannot accept the challenge to ground No. 5. Ground No. 1 is communicated reads as under :--

'ON30-9-1969, the Cutoms officers during routine patrolling on board the departmental vessel M.S.V. Mayavati intercepted an Arab Vessel A1-Mashoor. Before interception, it was noticed that some packages were thrown over-board from the Arab Vessel. The vessel along with stores and some foreign currency was seized. The tindal, Ibrahim Bharu, ten crew members .and two passengers on board the vessel were apprehended, lbrahim Bharu in his statement before the Customs Officers deposed on 2-10-69 that they were carrying 500 gold lagadies valued at Rs. 10 lakhs for delivery to you as per instructions from Abdulla Bim Salem of Dubai, owner of vessel, that 'the Arab vessel had to hoist a red flag on 1-10-69 and some vessel from Daman was to show the same signal of red flag that he had to receive silver from the Daman Vessel and in return hand over the gold that he was carrying on one half portion of a currency note of 100 riyals and had been instructed by the owner of the gold -that the remaining portion of the note will be produced by the person at Daman who will come with the boat to take delivery of gold at sea; and that due to chase by the Customs officers, Bharu and two more crew members threw away the gold in the sea. Two crew members, Dada Haji Yakub and Sahid Jumma confirmed that they along with Bharu threw the gold Lagadies over board. Your residential premises were searched on 8-10-1969 and the other half of the note of 100 riyals was recovered there from. In your statement dated 22-6-70, you denied any involvement with the vessel A1-Mashoor or with the gold thrown overboard. You also denied knowledge about any arrangements for the delivery of gold to you or to your accomplice on production of half portion of note of 100 riyals. You challenged the veracity of panchnama about the seizure of half portion of note of 100 riyals from your residential premises on 8-10-69. Additional Collector of Customs and Control Excise, Baroda, in his order No. VIII./10-48/Cus/70 dated 10-3-70 confiscated the goods on board the vessel under section 111(d) of the Customs Act, 1962. In the same order he also confiscated the vessel but fixed a fine in lieu of confiscated of Rs. 2 : lakhs. He also imposed a personal penalty of Rs. 30 lakhs on you amongst others. This order was set aside by the Gujarat High Court, Ahmedabad. on 12-4-1973 in Special Civil Application No. 619/71 on the ground that 'the order was passed ex parte without giving notice of the date of hearing to you. The denovo proceedings are in progress. A conspiracy complaint No. 20/74 under section 120-B of Indian Penal Code . and section 135 of the Customs Act, 1962 has been filed against you and 12 others in the Court of Judicial Magistrate, Daman, on 23-2-74 and the same is pending. On 6-5-74 an application was made in the Court of J.M.F.C. Daman for cancellation of your bail on the ground that you were hobnobbing with the prosecution witness, Akbar Ali Lukmanji, who was a panch witness to the search of your residential premises on 8-10-69. The Court in their order dated 28-5-1974 issued a formal. warning to you to desist from tampering with prosecution evidence and witnesses.'

(72) The only substantial argument regarding this ground is that what is stated as recovered from the detenu in the Panchnama (Copy Ex. 'G' to the petition) is a torn note which is quite different from a note torn into two pieces as now mentioned in the ground. We do not find force in this argument. Indeed photostat copies of the two portions of the 100 riyal note were shown in this Court which had signatures on its back. Without trying to take evidence we are fully convinced that describing the note as a torn note in the Panchnama does not vitiate the ground.

(73) Ground No. 6 is said to be non-existent. It reads as under :-

'ON-receipt of intelligence regarding movement of smuggled goods, a watch was kept on Umbergaon Talaseri Road. Pursuant to this a car Mrh 5042 was intercepted near village Karambeli on national highway on 5-8-73. Search of the car resulted in seizure of 10 silver slabs weighing 293-300 Kgs. valued at Rs. 1,96,511. The car was also seized. Ishwarbhai Gopalbhai Tindel the driver and Devehand Kalanbhai Tandal, the other occupant of the car were detained. Ishwar Gopal and Dev Chand, in their statements dated 5-8-73, denied any connection with the silver and car Mrh 5042 under seizure. At the time of interception, you with your associates tried to pressurise the Customs officers to release the silver and the car with its occupants. Investigations made revealed that the car was sold by one Felix D. Moraes registered owner of the car, on 4-5-73 to one Gafarbhai of Lal Darwaja, Sural On enquiry Gafarbhai was found to be a fictitious person. On 8-10-73 Chaganbhai Kikabhai Patel, an employee of petrol pump of M/s. C. P. Shah & Sons of Daman deposed that one Gopalbhai had taken petrol in car Mrh 5042 on 8-6-73 and that he was aware that car Mrh 5042 belonged to you. On 8-10-73, Jagubhai Govindbhai Bhandari, another employee at the same petrol pump deposed that he was told by Jerambhai, when Jerambhai had come to take petrol in car Mrh 5042 on 15-6-73, that Devchandbhai was working with you. A show cause notice No. VIII/10-7/Collr/74 dated 28-1-74 was issued to you and 12 others. The adjudication proceedings are pending.'

(74) The challenge to this ground is that it does not conform to the earlier grounds given in September, 1974 and the link now sought to be established is farfetched and concocted. It is further urged that some of the important facts mentioned in the ground were not mentioned in the show cause notice issued by the Customs authority to the detenu on January 28, 1975 despite the said notice being very exhaustive. A copy of the said show cause notice has been filed as annexure 'I' to the petition. In reply, it is urged on behalf of the State in its return that merely because the ground is exhaustive is no reason to say that any facts have been concocted. Furthermore, not mentioning certain facts in the show cause notice does not vitiate the ground. Regarding the show cause notice what is stated in paragraph 29 of the return is:-

'THEshow cause notice issued to the detenu contained all the details . It is denied that the incident is not existent as alleged. In fact the report was made to the Customs Officer concerned soon after seizure regarding pressurising by the detenu and his associates as stated in the said ground.'

(75) It is rather strange that one of the most important incidents connecting the detenu with the alleged smuggling, namely, his alleged pressurisation of Customs Officers to release the silver and the car with its occupants said to have taken place well before September, 1974 was not mentioned in the earlier grounds given in September, 1974 or even mentioned in the very exhaustive show cause notice, which, according to the return, 'contained all the details'. It may be said that the facts leading to the satisfaction of the detaming authority on the earlier occasion need not have been the same facts in their entirety which satisfied the present Authority; but surely in the wake of a categorical averment that the story of pressurisation is a concocted story, some Explanationn should have been given at least in the affidavit filed on behalf of the State. Indeeed not satisfied with the affidavit filed on behalf of the State, we had given it an option to place relevant material before us to enable us to judge whether in fact the report of the Customs officials relied upon was in existence since August 1974 and looked into by the detaining authority. It is unfortunate that relevant record was not placed before us. The counsel for the respondents was prepared to 'place the record before us with the- reservation that it would not be shown to the detenu or his counsel. The Court was not even given the option to decide for itself whether (he documents shown to the Court could fall in the category of documents protected by Article 22(6) of the Constitution. In this situation, we declined to look at the record-

(76) We may here ovserve that the privilege under Article 22(6) of the Consitution can be claimed only in relation to the right under Article 22(5) and against the detenu. This claim cannot be extended to keeping back documents from the Court within the ambit of the limited scrutiny in such proceedings. Production of record to satisfy the Court about existence of material, as-distinguished from sufficiency thereof, was desirable. : 1967CriLJ520 .

(77) In the absence of record the only material on which we can rely to determine whether the report of Customs officials was concocted or not are the affidavits filed by the parties, the earlier grounds given in September. 1974 and the show cause notice dated 28-1-1974. By looking at these, it is obvious that whereas in the eearlier ground the connection of the detenu with the seized silver and the car was sought to be established by a report that it was being brought for delivery to him, him new ground the principal connection is established by the story of pressurisation. An important event like this could not have been missed by the earlier detaining authority. In any case, it was a material and relevant fact. Furthermore, the show cause notice is most exhaustive and reiterates all sorts of things except the incident of pressurisation. The affidavit on behalf of the State says the show cause notice 'contained all the facts' but this is correct. We are, thereforee, inclined to accept the contention on behalf of the petitioner that the story of pressurisation is a concocted story and was placed before the present detaining authority as a padding up of the grounds on which the detenu could be detained. Ground No. 6 is thus based on a non-existent fact.

(78) Ground No. 7 which is claimed to be non-existent reads as under:-

'ON9-1-1974, 2 vehicles Mrh 5188 and Mrj 1181 were intercepted on Naroli Road and Udwada Kolak Road: respectively. These two vehicles were brought to the Vapi Customs House. Their search resulted in seizure of silver valued at about Rs. 2 lakhs and Rs. 7 lakhs. When the said vehicle was being searched by the Customs Officers in Vapi Customs House, you, Nanu Desai and others came there and attempted to forcibly enter the said Customs House with a view to preventing Customs, Officers from effecting the seizure. This shows your interest in the silver which was liable to confiscation under the Customs Act. Show cause notices No. VIII/10-41/ Collr/74 dated 2-7-74 and No. VIII/10-39/Collr/74 dated 3-7-74 have been issued in respect of the goods seized from the two vehicles. No show cause notice has been given to you.'

(79) Here also the principal connection is the attempt on the part of the detenu to allegedly forcibly enter into the Customs House. ft is greatly at variance with the earlier grounds of September, 1974 This also appears to be concocted. Surprisingly enough the only, connection with the silver in this incident is the alleged attempt to forcibly enter into the Customs House. No action was taken. Not even a show cause notice was issued. The ground, thereforee, has hardly any probative value. The incident is, thereforee, also held as nonexistent.

(80) We may, in passing, mention some other discrepancies in the earlier grounds and the new grounds Nos. 6 and 7 which suggest padding up and improvement. In the present grounds the search of the two vehicles is stated to have taken place in Vapi Customs House, In the earlier grounds vehicle Mrj 1181 was stated to have been searched at Daman. Then in the old grounds vehicle No. Mrj 1181 was stated to have been abandoned. Now it was intercepted.

(81) It is urged that the old grounds are irrelevant when it comes to considering the subjective satisfaction of the present detaining authority. It is also said that Mr. Pillai's affidavit that reports about the pressurisation in ground No. 6 and attempt to forcibly enter the Custom House in ground 7 must be accepted unless affirmatively proved false. We are not commenting upon the existence of the said reports now. These may be there before the present detaining authority. We are concerned with the facts of pressurisation and forcible entry being real or non-existent. The absence of any mention about these two facts in the old grounds throws doubt on the genuiness of the alleged incidents. The old grounds were issued by Mr. Ray, a responsible officer of the Central Government under the MISA. If the reports were in existence then, as is now suggeted. Mr. Ray could not have missed them. So, the old grounds are admissible evidence to show that the allegations have no probative value. The affidavit made by Mr. Pillai may be true according to the present record. But the question is not about the state of the record as at present but soon after the alleged incidents prior to September, 1974.

(82) In view of what we have held above, the inclusion of nonexistent facts in the grounds vitiates the entire detention order. It is then urged that the totality of the grounds must be seen and not individual grounds. There is no force in this conteiilion. InDwarka Parshad v. State of Bihar, : 1975CriLJ221 , it has been, clearly held that even if one of the grounds of reasons which led to the .subjective satisfaction of the detaining authority is non-existent or misconceived or irrelevant, the order of detention would beinvalid and it would not avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmity because it can never be predicated to what extent the bad grounds or reasons operated on the mind of the detaining authority or whether the detention order would have been made at all if the bad ground or reason were excluded and the good grounds or reasons alone were before the detaining authority. The impugned order is, accordingly, quashed.

(83) In view of our above findings, it is not necessary to consider the other grounds of attack to the validity of the detention order or the validity of the rules of detention.

(84) We, thereforee, accept the petition, make the rule absolute and direct that the detenu, Sukar Naran Bakhia, be set at liberty forthwith.


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