G.N. Das, J.
1. This case was heard by a Bench of this Court, Sarkar and P.N. Mookerjee JJ.
2. The learned Judges having differed in their decisions, the matter was directed by the learned Chief Justice to be placed before me as the third Judge, to hear the case.
3. On the prayer of the learned Counsel for the parties, the case was adjourned from time to time and finally came up before me for hearing on the 29th February 1952. Though the learned Judges differed on one point only, the whole case was open for discussion.
4. Mr. J. P. Mitter, learned Counsel for the petitioner, however urged only the following points and did not press the other points which were agitated before the Division Bench. The grounds pressed were : (1) That the events in the remote past are not relevant grounds for detention in the facts of this case; (2) That the detention was in fact mala fide; and (3) That Section 5 of the Preventive Detention Act, 1950 (Act IV of 1950) as amended by Act IV of 1951 does not justify the detention of the detenue as the order of detention was a deliberate assumption of extra-territorial jurisdiction by the State Government.
5. On 30th August 1951 an order for detention of the would-be detenue Ram Chandra Chatterjee, was made by the Government of the State of West Bengal under Section 3(1) (a) (ii) of the Preventive Detention Act, IV of 1950 as amended by Act IV of 1951. On the following date Ram Chandra Chatterjee was taken into custody in French Chandernagore and was removed to the Dum Dum Central Jail where he was detained.
6. The case has proceeded on the footing that French Chandernagore where the would-be detenu was taken into custody is French Territory.
7. Gourgopal Mukherjee, the petitioner, moved this court for the issue of a writ of Habeas Corpus for the release of the detenu and obtained the present rule.
8. I have already said that the rule was heard by Sarkar and P.N. Mookerjee, JJ. who differed in their decisions. This case was directed to be placed before me.
9. I shall now deal with the points pressed before me.
10. The first ground taken was that the events in the remote past are not at all relevant grounds for detention in the facts of this case. It was contended that items (2) and (3) of the grounds supplied to the detenu related respectively to events which took place in March to July 1949 and August 1949 to February 1950. The order of detention was made in August 1951. Items (2) and (3) have to be taken along with items 4, 5 and 6 which relate to events which occurred in November 1950, March 1951 and August 1951. The acts mentioned in items 2, 3 and 4, 5 and 6 form a chain of acts which might imperil the security of the State or the maintenance of public order. All the acts referred to show the mental make-up of the would-be detenu at the relevant dates and are useful aids in finding out the potential activities of the would-be detenu. Such past acts if they are not wholly irrelevant form the basis of the subjective satisfaction of the detaining authority. The degree of relevancy is not a matter which is justiciable. The test of relevancy was thus stated by Kania C. J. in -- Tarapada De v. State of West Bengal', : 1951CriLJ400 :
'An irrelevant ground is a ground which has no connection 'at all' with the satisfaction of the Provincial Government which made the order of detention.'
In a later decision -- 'Bhim Sen v. State of Punjab', : 1952CriLJ75 , Kania C. J. observed that
''instances of past activities are relevant to be considered in giving rise to the subjective mental conviction of the District Magistrate that the appellants are likely to indulge in objectionable activities.' (page 483).
11. It was further contended that the past acts mentioned in items 2 and 3 are irrelevant in the present case, as after the dates on which these events are alleged to have happened, the would-be detenu was enrolled as a member of the volunteer crops and given military training in August, September and October 1950. This fact does not necessarily show that there was a radical change in the mental tendencies of the would-be detenu. The later events stated in items 4, 5 and 6 show that there was no such change. The court 'can only go into the question whether the grounds supplied to the detenu are irrelevant or vague and can afford a basis for the subjective satisfaction of the detaining authority. In the above circumstance it is impossible for me to say that the past acts specified in the grounds supplied to the detenu were either vague or irrelevant.
12. It was also argued that the acts referred to constitute offences under the Indian Penal Code and though they might have been the basis of punitive action by the State, they should not be regarded as relevant grounds for detention under the Preventive Detention Act, the sole object of which is prevention. This contention cannot be accepted. It is no doubt true that the object of a Preventive Detention Statute is mainly prevention but it does not follow that previous penal acts of the would-be detenu are irrelevant. The normal process of a criminal trial may be inappropriate or ineffective. As already stated, the court can only investigate into the question whether the acts of the would-be detenu were such as are vague or irrelevant and can form the basis of the subjective satisfaction of the detaining authority. In this perspective, past acts even if they have gone beyond the stage of preparation or of attempts to commit penal offences and have even resulted in the commission of penal offences, are relevant for sustaining an order of detention.
13. For the reasons given above, the first ground taken by Mr. Mitter must be overruled.
14. The second ground pressed by Mr. Mitter raises a question of fact viz., whether the allegations made and sworn to by or on behalf of the detenu prove mala fides on the part of the detaining authority which in the present context connotes the Joint Secretary to the State of Government of West Bengal who according to the rules of business made the order of detention.
15. The onus of proving mala fides rests on the petitioner. The facts proved by the petitioner must be such as to amount to proof of mala fides. The court cannot base its decision on suspicion.
16. We have to appraise the materials on record in the light of the above principles. These materials consist of the three affidavits filed in support of the petition.
17. The substance of the allegation is that the detenu and a certain Minister of the State Government were previously on good terms but subsequently fell out on certain matters; that in consequence thereof the latter was instrumental in getting the order of detention passed by th State Government and that as such the making of the order was a mere colourable exercise of the powers under the Preventive Detention Act 1950.
18. The affidavit of the Joint Secretary who made the order stated that in making the order of detention, he was entirely guided by the materials placed before him by the Deputy Inspector General of Police, Intelligence Branch, Government of West Bengal, and was not influenced by the existence or otherwise of the alleged disputes between the detenue and the Minister concerned or by any extraneous consideration. The Minister concerned was not in charge of the department of State Government which ordinarily dealt with cases of preventive detention or dealt with the present case or of the department which supplied the materials on which the Joint Secretary acted. There is no specific averment that the Joint Secretary had any knowledge of the existence of those alleged disputes. The fact that the Joint Secretary did not traverse the allegations made about the said dispute is not relevant in view of the aforesaid facts. In my opinion, the materials on record fall far short of proving that the order for detention was made mala fide.
19. The second contention of Mr. Mitter must therefore be overruled. The third ground urged by Mr. Mitter is that Section 5 of the Preventive Detention Act 1950, as amended by Act IV of 1951 cannot justify the detention of the detenu in the facts of the present case. The facts relied on are that at the time the order was made, the would-be detenue was residing outside the territorial jurisdiction of the State of West Bengal, the Government whereof made the order.
20. The learned Judges of the Division Bench differed in their opinion on this point.
21. Sarkar J. held that Section 5 of the Preventive Detention Act is a prima facie answer and that it was not contended before him that Section 5 was invalid on any ground or that it should not for any reason have the plain meaning of the language used therein. The learned Judge therefore rejected the contention.
22. P.N. Mookerjee J. while observing that prima facie the words of the section are in favour of the State, added that the section should be narrowly construed on certain principles stated by him in his judgment and that as such the section should not be made applicable to cases of deliberate assumption of extra-territorial jurisdiction. P.N. Mookerjee J. further observed :
'The present case appears to me to be one of deliberate assumption of extra-territorial powers and the impugned order cannot, therefore, claim the protection of Section 5 of the Act.'
The learned Judge also gave the following reason in support of his decision:
'The State of West Bengal had no authority to pass this order under Section 3 of the Preventive Detention Act and its validity cannot also be upheld merely on the strength of Section 5 of the Act.'
23. I shall first deal with the second ground viz: that the State Government had no authority to pass the order of detention which was made under Section 3(1) (a) (ii) of the Act. This ground was not specifically pressed by Mr. Mitter.
24. As P.N. Mookerjee J. was of opinion that the order of detention was not valid on this ground also, I have to consider the point.
25. By Notification No. 131-Enr. X dated May 1, 1950, issued by the Central Government in exercise of the powers conferred by Section 4 of the Foreign Jurisdiction Act, 1947 (XLVII of 1947), the Central Government promulgated an order called the Chandernagore (Application of Laws) Order, 1950. Section 1(1) (3) of the Order read with the Schedule extended the Preventive Detention Act 1950, to the Free City of Chandernagore. The effect of Section 4 of the Order read with the Table had the effect of substituting the Central Government for the State Government in the Preventive Detention Act, 1950, when applicable to the Free City of Chandernagore. The result, according to P.N. Mookerjee J. was that the power of detention conferred by Section 3 of the Act, could only be exercised by the Central Government and not by the State Government. P.N. Mookerjee J. repelled an argument advanced by the learned Advocate General appearing for the State that Section 6 of the Order would justify a construction of Section 3 of the Preventive Detention Act 1950, as might be necessary or proper in the circumstances but not so as to affect the substance and that on such a construction, the words 'Central Government' should not be read as State Government in Section 3, as this would result in tautology and incongruity.
26. It is not necessary, for the purpose of this case, to examine the correctness or otherwise of the view taken by P.N. Mookerjee J. The line of reasoning adopted by the learned Judge would, at the most, preclude the State Government from making an order of detention directing that a person in French Chandarnagore be detained in French Chandernagore.
27. In the present case, the would-be detenu was arrested in French Chandernagore by virtue of an order passed by the State Government. If the view taken by P. N. Mookerjee J. be correct, the arrest would be illegal. The question, however, is whether the detention in West Bengal is justified. In -- 'Ex parte Susannah Scott', (1829) 9 B and C 446 Lord Ten-terden C. J. said at page 448 :
'The question therefore is this, whether if a person charged with a crime is found in this country it is the duty of the court to take care that such a party shall be amenable to justice or whether we are to consider the circumstances under which she was brought here. I thought, I still continue to think that we cannot inquire into them.'
28. The above passage was quoted with approval in -- 'Parbhu v. Emperor', 71 Ind App 75 (PC).
29. In -- 'Parbhu's case', 71 Ind App 75 PC Lord Macmillan also quoted the following observations of Lord Chancellor Halsbury made in the course of argument in -- 'Muhammad Yusufuddin v. Queen Empress', 24 Ind App 137 (PC) :
'It may well be that the procedure taken was irregular and improper and brought a person wrongfully within the jurisdiction, but if he is there and if he has committed an offence, whatever else may be said about it, it is no answer to the offence committed within the jurisdiction that he has been brought irregularly within the jurisdiction.'
30. Judged by the above principles which in my opinion, also apply to cases of preventive detention, the illegality of the arrest does not per se make the order of detention invalid. In this petition for the issue of a writ of Habeas Corpus we are concerned with the question whether an order should be made on the opposite parties directing a release of the detenu from the Dum Dum Jail where the detenu is under detention. It is the propriety and legality of this detention within the jurisdiction of the State Government which is in controversy. I do not see any reason why the State Government cannot detain the detenu at Dum Dum Jail which is within its jurisdiction on grounds which are neither vague nor irrelevant and which in the opinion of the State Government imperil the security of the State or the maintenance of public order.
31. I am accordingly of opinion that the second ground does not render the detention invalid.
32. I shall now deal with the first ground that the validity of the order of detention cannot be upheld merely on the strength of Section 5 of the Act.
33. Section 5 of the Act is in these terms:
'No detention order shall be invalid or inoperative merely by reason--
(a) that the person to be detained thereunder is outside the limits of the territorial jurisdiction of the Government or Officer making the order, or
(b) that the place of detention of such person is outside the said limits.'
34. The section therefore envisages the assumption of extra-territorial jurisdiction by the Central or the State Government or by officers authorised to make order of detention.
35. The competence of Parliament to enact legislation conferring extra-territorial powers has not been questioned. Indeed the power is expressly conferred on Parliament by Article 245 of the Constitution which is in the following terms:
'1. Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State;
2. No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation'.
P.N. Mookerjee J. was however of the opinion that the wide terms of Section 5 must be construed in a narrow sense as limited to cases of unintentional assumption of extra-territorialjurisdiction by the Government. The reasonssuggested for such a construction were thatthe court must be guided by 'the golden ruleof intention' and 'by the rule of reason andcommon sense'. It was also pointed out thatin construing Section 5, the following principles should be borne in mind:
'1. All legislation is prima facie territorial,and should be so construed', i
2. 'In a federation of states -- and ours is admittedly a federal Constitution -- no State has, under normal circumstances, extra-territorial powers', and
3. 'No detaining authority is normally entitled to order detention outside its own territorial jurisdiction'.
36. In applying the 'golden rule of intention' P.N. Mookerjee J. referred to the use of the word 'merely' occurring in Section 5 and to the context viz. Sections 3A, 4 (a) and 4 (b) of the Act.
37. The cardinal rule for the construction of a statute is generally said to be that it should be construed according to the intention of the legislature that enacts it. But as Lord Watson said in -- 'Salomon, v. Salomon & Co. Ltd.', (1897) A. C. 22 at p. 38.
'Intention of the Legislature' is a common but very slippery phrase, which, popularly understood, may signify anything from intention...... embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact'.
38. The intention of the Legislature is legitimately ascertained from what it has chosen to enact, either in express words, or by reasonable and necessary implication.
39. In the early case of -- 'Warburton v. Loveland', (1831-32) 2 Dow & Cl 480 at page 489, it was observed that
'where the language of an Act is clear and explicit, we must give effect to it, whatever be the consequences, for in that case the words of the statute speak the intention of the Legislature'.
40. In the recent case of -- 'Magor & St. Mellons v. New Port Corporation', (1951) 2 All E R 839 Lord Simonds observed;
'It is sufficient to say that the general proposition that it is the duty of the court to find out the intention of Parliament -- and not only of Parliament but of Ministers also -- cannot by any means be supported. The duty of the court is to interpret the words that the Legislature has used. Those words may be ambiguous, but even if they are, the power and the duty of the court to travel outside them on a voyage of discovery are strictly limited.'
41. Section 5 plainly provides for passing an order of detention of the would-be detenue even though he is out-side the territorial limits of the jurisdiction of the Government, which may mean either the Central or the State Government. This connotes the exercise of the power of detention of a 'person to be detained' i.e. the would-be detenue even when he is in a foreign country. The section does not draw any distinction between deliberate and unintentional exercise of extra-territorial powers.
42. The use of the words 'merely' was not intended to restrict the exercise of extraterritorial powers. The word 'merely' was used for an entirely different purpose viz. that a detention order, otherwise valid, cannot be challenged solely on the grounds specified in Section 5(a) and (b).
43. Sections 3A, 4 (a) and 4 (b) cannot be read as limiting the scope of Section 5.
44. The Amending Act IV of 1951 incorporated Section 3A and substantially amended old Sections 4 and 5 of the Preventive Detention Act, 1950 (IV of 1950). The intention was to enlarge the extra-territorial power of the Central Government or the State Government or its officers to order detention.
45. Section 3A provides for the mode of execution of an order of detention in India. It does not connote the absence of a power to order detention outside India. The execution of an order for detention outside India cannot be provided for in a statutory enactment. It will be regulated by agreement or treaty with the foreign state concerned.
46. Section 4 Clauses (a) and (b) as amended confers on the appropriate Government the power to regulate the place of detention or removal from one State to another or the conditions of detention. The appropriate Government as defined in Section 2 (c) means the Government, Central or State or the Officer making the order of detention. Section 4 Clauses (a) and (b) therefore clearly contemplates the exercise of extra-territorial powers.
47. The context does not therefore narrow down the plain meaning of Section 5.
48. P.N. Mookerjee J. referred to the Bench decision of the Bombay High Court in the case of -- In re: S. V. Ghate', 52 Bom LR 711 in support of his view that a restricted interpretation of Section 5 was justifiable. In this case, the detenue was already under detention in Yeravada Jail, Poona, under the Bombay Public Security Measures Act, 1947, since May 1948. The detenue while under detention was again served with an order of detention passed by the Commissioner of Police, Greater Bombay, under the unamended Preventive Detention Act 1950. It was held that the Commissioner of Police had no jurisdiction to make an order against the petitioner who was not resident in Bombay and who was not within his jurisdiction.
49. The 'ratio decidendi' of the above decision was that 'in a Federal Constitution like ours', the State Government or its officers have no authority to exercise extra-territorial jurisdiction and that this view was supported by the provisions of the unamended Preventive Detention Act, 1950.
50. It is not necessary to examine the correctness or otherwise of the above decision. Suffice it to say that the above decision was pronounced on July 11, 1950 and the Preventive Detention Act, was amended on February 2, 1951 by Act IV of 1951,
51. The Amending Act recast Sections 4 and 5 of the Act of 1950 and inserted a definition of the words 'appropriate Government' and also added Section 3A. The- effect of the amendment was to express in clear terms the existence of extra-territorial powers of the Government.
52. The 'fundamental and well recognised principles' referred to are not conclusive of the matter before us. These rules admit the legislative competence to confer extra-territorial powers but lay down that to warrant an intention on the part of the legislature to enact legislation, having extra-territorial effect, it is necessary that the intention must be clearly expressed. See also -- 'In re: Tolten', (1946) 1 All E R 79 affirmed on appeal (1946) P.. 135.
53. The Bench decision in -- 'Radharani v. Rahim Sardar', 50 Cal W N 552 which was referred to by P.N. Mookerjee J. turned on a construction of Section 531 of the Code of Criminal Procedure. I do not think that the above section is structurally similar to Sec. 5 of the Preventive Detention Act, 1950. The two sections are also dissimilar in their wording and object. It is, in my opinion, unsafe to put a restricted meaning on Section 5 of the Preventive Detention Act by reference to a decision which turns on the construction of Section 531 of the Code of Criminal Procedure.
54. In my opinion, the unambiguous meaning of Section 5 of the Preventive Detention Act cannot be whittled down for the reasons suggested by P.N. Mookerjee, J. Section 5 should be interpreted in its ordinary sense.
55. I am therefore unable to concur in the view taken by P.N. Mookerjee J. that Section 5 is limited to cases of unintentional exercise by the detaining authority of extra-territorial powers.
56. Assuming, however, that such is the meaning of Section 5, I can find no basis for the conclusion of the learned Judge that 'the present case appears to me to be one of deliberate assumption of extra-territorial power'.
57. There is no foundation for this case either in the petition or in the affidavits filed in support thereof. The only allegation is that on the date of the order, the would-be detenu was in Trench Chundernagore and was arrested there. It lay on the petitioner to make the above allegations and place proper materials in support thereof. Sarkar J. pointed out in his judgment that the point was not argued by learned Counsel for the petitioner before the Division Bench.
58. As a result of the above discussion, my conclusion is that the order of detention is not invalid. The petition must, therefore, fail.