Kunhi Raman, C.J.
1. These petns. are filed on behalf of Sri S. Thiruvadinatha Pillai & his younger brother Sri. S. Kolappa Pillai respectively who are described as partners carrying on business at Trivandrum as hardware merchants under the name and style of S. T. C. Thiruvadinatha Pillai & Brors. The prayer in each petn. is for the issue of a writ of habeas corpus directing reap. 3 who is the Superintendent of the Central Prison, Trivandrum, to set him at liberty. Respondent 1 is the Dist. Mag. of Trivandrum. Both the petnrs. are under detention under the Preventive Detention Act, IV 4. of 1950. The order directing such detention is alleged to have been passed under the Act by reap. 1, the Dist. Mag. of Trivandrum.
2. Various grounds were alleged in support of the petns. but in the view we are taking of one of these grounds it is unnecessary to deal in detail with other grounds.
3. The contention that appears to us to be well founded is that the detention cannot be supported since a copy of the order made by the Dist. Mag. directing the detention was cot given to the ptnrs. in spite of their request for the earns. To appreciate the argument addressed on behalf of the petnrs. by their learned Counsel in respect of this question, it is necessary to set forth briefly the relevant provisions of the Preventive Detention Act & the steps taken in the present case for detaining the petnrs, Provision is made in Section 3 of the Act entitling the Central Govt. or the Govt. of a State to make an order directing that a person who comes within the category of those described in the section shall be detained. One of the grounds for such detention is that the party concerned should be prevented from acting in any manner prejudicial to the maintenance of supplies & services essential to the community. That is the clause under which the petnrs. have bean ordered to be detained. The power to direct detention for this reason is conferred by the Act also on Dist. Mag. Sub-Divisional Mag. & in Presidency towns on the Comrs. of Police. The Diet. Mag. of Trivandrum has in the present case acted in the exercise of the power conferred upon him by this provision. According to Sub-section (3) of Section 3 when any such order is made by a competent authority subordinate to the Govt.
He shall forthwith report the fact to the State Govt. to which ha is subordinate together with the grounds on which the order has been made & such other particulars as in his opinion have a bearing on the necessity for the order.
The next relevant section for purposes of these petns. is Section 7 which requires that:
When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order has been made & shall afford him the earliest opportunity of making a representation against the order where such order ha9 been made by...an officer subordinate thereto the State Govt.
Sub-section (a) lays down that nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against public interests to disclose.
4. It appears from the affidavits filed in this case by the petnrs. that on 6-11-1950 the Circle Inspector of Police, Trivandrum, accompanied with a pose of constables visited the shop of the petnrs. & inspected the bill books, permits & other papers. They then prepared a mahazir & obtained the signature of Kolappa Pillai who is alleged to have been compelled to do so without being informed about the contents of the Mahazar. The police officers then took away a few bill books & other papers from the premises. Subsequently, the petnrs. beard that warrants of arrest had been issued against them. They, therefore, went to the police station at about 6 A. M. on 10 11-1960 when they were placed under arrest & taken to the Central Prison in Trivandrum. The business carried on by them at Trivandrum has other partners as well & it is stated in the affidavits that the business is now being carried on by the other partners.
5. In para. 8 of the affidavit it is alleged that the petnrs. understood that the arrest & detention were made under an order passed by the Dist. Mag. of Trivandrum on 8-11-1950 for the alleged reason that the petnrs. have been disposing of rationed articles in the black market. It is further alleged in the affidavits that petnr. 1 is aged about 73 years, that he is suffering from shronic asthma & also from hernia. Petitioner a is stated to be 54 years of age & it is alleged that he has been suffering from diabetes for about five years. They state that they entertain reasonable apprehension that their health will be injuriously affected if the detention continues. The most important averment in the affidavits is contained in para, 11 of petnr. l's affidavit. According to this para, the grounds for the detention were served on the petnrs. at about 6-45 P. M, on 13-11-1950, that is to say, three days after they were sent to the Central Prison at Trivandrum, for detention under the order alleged to have been passed by the Dist. Mag. Then there is this significant averment 'Inspite of the petnr's request for the orders of detention they have not yet been served.'
6. The facts, therefore, which are relevant for the purpose of considering the objection raised on behalf of the petnrs. are that the Dist-Mag. passed the order of detention on 8-11-1950, that the petnrs. were actually arrested & sent to the Central Prison at Trivandrum on 10-11-1950, that inspite of their request for a copy of the order they have not yet been served with a copy. On the 13th November, however, they were given the grounds of detention.
7. Even in this Ct. there is no affidavit filed to show that an order of detention was passed by the Dist. Mag. of Trivandrum. A copy of the alleged order is produced along with what is described as a memo, presented by the Advocate-General. This memo contains a single sentence which is worded as follows; 'It is submitted that the records noted below are herewith produced.' Items 1 & a mentioned in this memo are : Copies of (1) the proceedings of the Dist. Mag. Trivandrum, dated 8-11-1950 & (2) order dated 8-11-1950 of the Dist. Mag. Trivandrum, with the grounds. They are not attested or certified copies & they do not bear any seals.. There ace two other enclosures to the memo,. which are (3) grounds under which Sri Thiruvadinatha Pillai & Sri S. Kolappa Pillai, joint owners & proprietors of Messrs. S. T. C. Thiravadinatha Pillai and Bros, hardware merchants, Chalai, Trivandrum, are ordered to be detained' & (4) acknowledgment receipt of S. Kolappa Pillai & S. Thiruvadinatha Pillai dated 13-11-1950 for acceptance of a copy of grounds of detention dated 8 11-1950. It is thus clear that there is no legal proof even before this Ct. that the Dist.. Mag. of Trivandrum passed an order on 8-11-1950 directing the detention of the two petnrs. in the Central Prison at Trivandrum. Therefore, it is. not possible for this Ct. to act on the assumption that such an order was passed by the Dist. Mag.
8. The question for consideration is whether in such circumstances the detention can be said to be lawful. If it is not lawful then there is no doubt that this Ct. has got the power of granting the prayer contained in the two petns. for the issue of a writ of habeas corpus for releasing the petnrs. from confinement. For this purpose reference must necessarily be made to the relevant articles in the Constitution which safeguard the liberties of the subject. According to Article 13(1) of the Constitution laws in force in India before the commencement of the Constitution which are inconsistent with or in derogation of the fundamental rights are to that extent declared to be void & it is provided in Article 13(a) that the State shall not make any law which takes away or abridges the rights conferred by this Part & any law made in contravention of this clause shall to the extent of the contravention be void. Article 32 confers right upon a citizen to move the S.C. by appropriate proceedings for the enforcement of the rights conferred by Part. III of the Constitution defining fundamental rights. Clause (2) of the Article recognises the jurisdiction of the S.C. to issue directions or orders or writs including writs in the nature of habeas corpus Article 22, in Clauses (1) and (2), refers to persons who are arrested & detained in custody. According to Clause (1) a person so arrested shall not be detained without being informed as soon as may be of the grounds for such orders. According to Clause (2) such a person shall be produced before the nearest Mag. within 24 hours of the arrest. But in Clause (8), Sub-clause (b) it is provided that these provisions shall not apply to a person who is arrested or detained under any law, providing for preventive detention. According to Clause (5), in the case of a person detained under an order for preventive detention, the authority making the order shall as soon as may be, communicate to such person the grounds on which such order has been made & shall afford him the earliest the time the detention begins & the date on which the grounds of detention are communicated. opportunity of making a representation against the order, It is thus clear from the concluding part of this clause that the person who is directed to be detained has got the right of making a representation against 'the order' which moans the order of detention. To enable him to do that & to seek redress in a t. of law, it is necessary that he should get a copy of that order. With, out getting that, it will not be possible for him to say whether the order was passed by a competent authority or whether the order is valid. With the idea of seeking redress, when the petnrs. asked for a copy of the order, their request was not granted & as already stated, even now it has not been proved to the satisfaction of this Ct. that an order was passed by the Dist. Mag. of Ttivandrum, All that has been established is that three days after the detention of the petnrs. commenced, they were served with a copy of the grounds for the detention. The right vested in the petnr. is not merely to take exception to the grounds or to show that those grounds are not tenable, but also to take exception to the validity of the order, for doing which they must be put in possession of a copy of the Older especially when they have made a request for it. There is a specific provision in the Constitution that the grounds of detention shall be communicated to the party concerned as soon as possible There is no provision that the order need not be served upon the person. But when refusal to comply with the request that a copy of the order may be given, deprives the party concerned of his right to object to the validity or legality of the order, it is a case in which he can seek redress in a Ct. of law. According to Article 326 the H. Cts. in the various States are invested with the jurisdiction to issue writs in the nature of habeas corpus. The obvious course which a person who is detained will adopt is to approach the H. C. of the State in which he is detained for this relief & it will be practically depriving him of that right, if in response to his request, a copy of the order is not served.
9. The right to move the H. C. can be exercised by a person undergoing preventive detention not only after he baa been served with a copy of the grounds of the order, but also during the period of the interregnum between the commencement of the detention & the date on which the grounds are served on him. In the present case, because the request of the petnrs. was not granted, they were debarred from raising any contentions during that interregnum. There is no definite period fixed within which grounds should be served. All that the Article lays down is that as early as possible after the arrest & detention, the party concerned should be informed of the grounds of detention. It will be against the rules contained in the Constitution to deprive a person of the right of moving the appropriate Ct. for relief in the interval between the time the detention begins & the date on which the grounds of detention are communicationted.
10. In the present case, therefore, we hold that the detention is not legal because in response to the request of the petnrs. a copy of the order of detention was not given to them to enable them to see whether it is a proper order or not & even now there is no legal proof that such an order was passed by the Dist, Mag. of Trivandrum, All that appears from the records & all that has been established in this Ct. is that the grounds of detention were served on the petnra. three days after they were arrested & their period of detention began.
11. We are not expressing any opinion upon the other grounds urged on behalf of the peters, but for the reasons given above, we direct resp. 2 to set free the two petnrs. as soon as a copy of this order is received by him. Transmit the order forthwith.
12. The learned Advocate General moves orally that a certificate for leave to appeal to S.C. be granted. We are not satisfied that there is any reason for granting such a certificate in the present case. The appln, therefore, cannot be granted.