1. These are applications for writs in the nature of habeas corpus filed by persons detained under the Preventive Detention Act, 1950 as amended by the Preventive Detention Act of 1951. A number of the detenus were detained under orders made in February 1950 and in the cases of these detenus what are called supplementary grounds were served in July, 1950 and in some instances additional supplementary grounds were served later in the same month. In other cases the grounds served contained very detailed particulars, and in those cases the grounds were served either at the time the orders were made or very shortly afterwards.
2. These applications were made after the Act of 1951 amending the Preventive DetentionAct of 1950 was passed and it was contended on behalf of all the detenus that this Amending Act was ultra vires the Constitution. We heard a full argument on this question before the Supreme Court delivered judgment in the cases of -- 'S. Krishnan v. State of Madras', : 2SCR621 and -- 'Ram Prasad Rabha v. The State of Assam (SC)'. After hearing an argument on this point all the cases were adjourned to enable them to be placed before the Advisory Board as the detenus were apprehensive that an adverse decision by this Court might affect their chances before the Advisory Board.
3. The Advisory Board have now dealt with all the cases and released about thirty detenus. We have only heard the cases which were dismissed by the Advisory Board.
4. It is now unnecessary to consider the argument that the Amending Act of 1951 is ultra vires because the Supreme Court in the case of -- 'S. Krishnan v. The State of Madras', : 2SCR621 have expressly held that this Act is intra vires. It must therefore be held that there is no force whatsoever in this first contention made on behalf of all the detenus.
5. On behalf of the detenus against whom orders were made in February 1950 it was contended that the supplementary grounds or the particulars which were delivered in July, were delivered too late and therefore these detenus were entitled to be released.
6. The so-called supplementary grounds or particulars did not state any new grounds for the orders of detention. They were in the nature of particulars of the rather general grounds given earlier. They merely amplified those grounds giving specific instances to support the general statements made earlier. It was not seriously contested that if these particulars or supplementary grounds could be regarded as having been served on the detenus within time such would not be sufficient to maintain the orders of detention made in each case.
7. With regard to the other class of cases where detailed grounds were served either with the order or within a matter of a week or fourteen days after the order, it has not been seriously suggested that the grounds, if honestly believed in, were not sufficient to sustain the orders. In fact only in a few cases was it contended before us that the orders made were mala fide and with those cases I shall deal later in this judgment.
8. With regard to the cases in which orders were made in February 1950 and further particulars or supplementary grounds delivered in July 1950, the cases would appear to be governed by the decision of the Supreme Court in the cases of -- 'State of Bombay v. Atma Ram Shridhar Vaidya', : 1951CriLJ373 and -- 'Tarapada De v. The State of West Bengal', : 1951CriLJ400 .
9. In the case of -- 'The State of Bombay v. Atma Ram Shridhar Vaidya', : 1951CriLJ373 it was contended on behalf of the applicant that the grounds for detention which were served upon the detenu shortly after the order was made were too vague and that further particulars which were served on the detenu some months later were served too late and could not be looked at to support the order of detention in that case. The High Court of Bombay had expressed the opinion that if these particulars had been served on the detenu ator about the time when the grounds for the order were served upon him such would have been sufficient to maintain the order for detention, but that as they were served some months later the State of Bombay could not rely upon these grounds to justify the continued detention of the detenu.
10. In the Bombay case the detenu was arrested on April 21, 1950 under the Preventive Detention Act of 1950 and on April 29, 1950 the grounds for his detention were served upon him in compliance with Article 22(5) of the Constitution of India. These grounds were somewhat vague and on August 9, 1950 the detenu filed a petition for a writ in the nature of habeas corpus in the Sigh Court of Bombay. Notice was issued to the Commissioner of Police and pending the disposal of the Rule the Commissioner of Police on August 26, 1950 delivered certain particulars or supplemental grounds on the detenu. On August 30, 1950 the Commissioner of Police filed an affidavit in which certain facts were stated and eventually the High Court of Bombay directed the release of the detenu. The State of Bombay appealed and the Supreme Court allowed the appeal and held that the detention of the respondent detenu was valid.
11. It had been contended before the Supreme Court that the original grounds served upon the detenu were too vague and did not comply with the fundamental right given to the detenue by Article 22(5) to have the grounds of the order served upon him as soon as may be so that he could have the earliest opportunity of making a representation.
12. The Supreme Court held that the grounds of the order could be supplemented or further particulars of the grounds could be given at some later date and in that particular case the Supreme Court were of opinion that the requirements of Article 22(5) had been met.
13. In the case of -- 'Tarapada De v. The State of West Bengal', : 1951CriLJ400 the actual order of detention was made on February 26, 1950 and the grounds of detention were served upon the detenus about the middle of March. Particulars on the supplementary grounds were later served on the detenus on or about July 22, 1950 and that was a day after the Rules had been issued in the cases by this Court.
14. Again it was contended on behalf of the detenus that the original grounds served upon the detenus were too vague and that the particulars delivered in July could not be taken into consideration as they were not delivered in time and therefore it could not be said that the earliest opportunity had been given to the detenus to make their representations. The Supreme Court however held that the requirements of Article 22(5) had been substantially met by serving a copy of the grounds for the order in the middle of March and by service of the further particulars on or about July 22.
15. It was strenuously argued before us that the delivery of particulars either in one document or two documents towards the end of the month of July was far too late and that those particulars could not be taken into consideration to justify the continued detention. These further particulars in the cases before us were delivered roughly between July 22 and July 26, that is round and about the time in which the particulars were delivered in the cases which were dealt with by the Supreme Court. It mightbe said that the detenus could not possibly be said to have been given the earliest opportunity of making a representation if the particulars, which were necessary before a proper representation could be made, were not delivered with despatch. It was urged that particulars delivered a fortnight or so after the grounds of the order of detention had been served would be too late, because the detenu should be given the earliest opportunity of making his representation. Delay in providing particulars, if they were necessary, would only allow the detenu to make a belated representation,
16. On the other hand it was contended by the learned Advocate General on behalf of the State that the decisions of the Supreme Court in the Bombay and Calcutta cases compelled us to hold that particulars delivered in July of the grounds delivered in the middle of March were sufficient to comply with the requirements of Article 22(5). The learned Advocate General pointed out that in the Bombay case the particulars were not delivered until practically four months had elapsed from the time the original grounds were delivered and further these particulars were not delivered until a considerable time had elapsed after a habeas corpus petition had actually been presented. Nevertheless the Supreme Court held that the grounds for making the order for detention had been served as soon as may be and that the. detenu had been given the earliest opportunity of making his representation.
17. The learned Advocate General further pointed out that the dates of the delivery of the grounds of the orders and of the particulars in the present case are the same as the dates in the cases of -- 'Tarapada De v. The State of West Bengal', : 1951CriLJ400 which were considered by the Supreme Court. In these particular cases now before us the orders were made towards the end of February and they appear to belong to a batch of cases some of which were considered by the Supreme Court in -- 'Tarapada De's case.' There can be no doubt that the facts of these cases are indistinguishable from the facts in the cases of --'Tarapada De' and that being so the Advocate General contends that we are bound to follow the decision of the Supreme Court and hold that these further particulars must be looked at and the orders of detention upheld.
18. It has been frequently contended that a case is only an authority for what it actually decides. It is certainly an authority for that and it appears to me that the decisions of the Supreme Court cannot possibly be questioned and must be followed. There have been express decisions of the Supreme Court that in cases precisely similar to those now before us the delivery of the grounds by the middle of March and particulars towards the end of July complied with the Constitution.
19. Reliance was placed upon certain observations in judgment of Kania C. J. in -- 'Atma Ram's case', ( : 1951CriLJ373 ) which would suggest that the particulars should be delivered without loss of time. Dealing with this aspect of the case the learned Chief Justice observed:
'This detailed examination shows that preventive detention is not by itself considered an infringement of any of the fundamental rights mentioned in Part III of the Constitution. This is, of course, subject to the limitations prescribed in Clause 5 of Article
22. That clause, as noticed above, requires two things to be done for the person against whom the order is made. By reason of the fact that Clause (5) forms part of Part III of the Constitution, its provisions have the same force and sanctity as any other provision relating to fundamental rights. As the clause prescribes two requirements, the time factor in each case is necessarily left fluid.
While there is the duty on the part of the detaining authority to furnish grounds and the duty to give the detained person the earliest opportunity to make a representation which obligations, as shown above, are co-related, there exists no express provision contemplating a second communication from the detaining authority to the person detained. This is because in several cases a second communication may not be necessary at all. The only thing which emerges from the discussion is that while the authorities must discharge the duty in furnishing grounds for the order of detention 'as soon as may be' and also provide 'the earliest opportunity to the detained person to make the representation', the number of communications from the detaining authority to the detenu may be one or more and they may be made at intervals, provided the two parts of the aforesaid duty are discharged in accordance with the wording of Clause (5).
So long as the later communications do not make out a new ground, their contents are no infringement of the two procedural rights of the detenu mentioned in the clause. They may consist of a narration of facts or particulars relating to the grounds already supplied. But in doing so the time factor in respect of the second duty, viz., to give the detained person the earliest opportunity to make a representation cannot be overlooked. '
20. In the concluding portion of his judgment the learned Chief Justice observed:
'Having regard to the principles mentioned above, we have to consider whether the judgment of the High Court is correct. We have already pointed out that the summary rejection by the High Court of the later communication solely on the ground that all materials in all circumstances must be furnished to the detenu when the grounds are first communicated, is not sound. We have indicated the circumstances and conditions under which the later communication may or may not be considered as falling within the purview of Article 22(5) of the Constitution.
In dealing with the position when the grounds were first communicated, the High Court held as follows: 'this is not a ground which would enable the detenu to make a representation to which he is entitled both under the Act and under the Constitution'. In this case the later communication of the 26th August, 1950, was made after the respondent filed his petition and it appears to have been made to controvert his allegation that he was never in Bombay between January and April 1950, as alleged in his affidavit. After taking into consideration this communication it was observed by Chagla C. J. that if these particulars were furnished on 29th April 1950, very likely the Court would have rejected the petition. The Court set the respondent free only because of its view that after 29th April no further communication was permissible. Inour opinion, this view is erroneous. We think that on the facts of the present case therefore the respondent's petition should have been dismissed.'
21. It appears to me from these observations that the Court was clearly of opinion that the detenu had been given the earliest opportunity to make his representation though the particulars were not delivered until nearly four months after the order had been made and until after the detenu had filed habeas corpus petition.
22. Again in -- 'Tarapada De's case', ( : 1951CriLJ400 ) Kania C. J. in his judgment observed:
'As regards the grounds furnished by the Government in each case in its first communication, it is sufficient to notice that while the first ground is common to all the appellants, the second ground is different in most cases. The High Court has considered the case of each appellant in respect of the communication dated the 14th of March, 1950 sent to him. In their opinion those grounds are not vague. They have held that the procedural requirement to give the detained person the earliest opportunity to make a representation has not been infringed by the communication of the grounds of the 14th of March and by the subsequent communication made to the appellants in July. This point was not seriously pressed before us. After hearing counsel for the appellants we see no reason to differ from the conclusion of the High Court on this point.'
23. From these observations it is clear that the Supreme Court were of opinion in the Calcutta cases that where the orders had been made on or about February 26, 1950 and grounds served in the middle of March and supplementary grounds served towards the end of July, the detenus had been given the grounds of detention 'as soon as may be' and had been given 'the earliest opportunity of making representations'. That being so we are bound to hold that there is no force in the contention made on behalf of the detenus who were detained in February 1950, and who did not receive the particulars of the grounds served in the middle of March, until towards the end of July 1950. There has, as I have already said, been an express decision upon these facts and that decision must be followed.
24. As I have said earlier in the other class of cases the detailed grounds were served either when the order of detention was served or shortly afterwards. In that class of cases there can be no question that the grounds of the orders were served as soon as may be and the detenus were given the earliest opportunity of making their representation.
25. The first ground for detention given in all the cases is that the person detained was a member of the Communist Party which has as its objects the commission of violent crime and the overthrow of the State by violence. It is also stated in this somewhat general ground that the Communist Party has been declared an illegal organisation in this State.
26. It was urged on behalf of all the detenus that the order declaring the Communist Party an illegal organisation in the State of West Bengal was illegal as it was made under the provisions of Section 16 of the Indian Criminal Law Amendment Act a provision which is ultra vires the Constitution of India as it offends against the fundamental right of freedom of association guaranteed to citizens by Article 19(1)(b). It has been held by a Full Bench of the Madras High Court that such an order is illegal and therefore it is said that in each and every case the detenus have been detained upon a ground which cannot be regarded as a valid ground to found an' order for detention. The orders it is contended were made on an erroneous belief that the Communist Party in this State was an illegal organisation whereas in fact it was not. This erroneous belief might well, it is urged, have affected the mind of the Authorities making the orders and the orders might never have been made if the Authorities had appreciated the true position namely that the Communist Party was a perfectly legal organisation.
27. It was further argued that once it is held that one of the grounds for detention was not a valid or proper ground then the orders made must be held to be invalid though they might be supported by other grounds which, were good and valid grounds. When a number of grounds for making an order are given it is contended it is impossible for any Court to say with certainty what were the determining factors for making such order. The Authority might have made the order on one or more of the grounds but on the other hand it might not. It might well be it was urged that the order would not have been made except for the existence of all the grounds stated and that being so if one ground is shown to be no ground at all, it cannot be said with certainty that the order would ever have been made if it had been realised that such a ground was not a proper and valid ground.
28. This view has been taken by Sen and Chunder JJ. in cases now under appeal to the Supreme Court but in my judgment this view though entitled to great respect cannot be followed as the Supreme Court has dealt with this particular ground in a number of cases and in no judgment of that Court has it ever been suggested, much less held, that the ground is not a proper ground to support an order for detention.
29. In the case of -- 'Amulya Banerjee v. The State of West Bengal', the Supreme Court expressly held that the particular ground together with a further ground in which details of the detenus' communistic activities were stated were sufficient to support a valid order for detention. In -- 'Tarapada De v. The State of West Bengal', ( : 1951CriLJ400 ) this ground appeared in each of the hundred cases before the Court. The orders of detention were all held to be valid and if the view of Sen and Chunder JJ. be the correct view all the detenus should have been released and also Amulya Banerjee.
30. It may be contended that as the Supreme Court did not deal specifically with this point it might have been overlooked. Court bound by the decisions of the Supreme Court should not make such an assumption too readily. It must be remembered that it has never been held by the Supreme Court that an order declaring the Communist Party to be an illegal organisation is illegal. As this particular ground has been before the Supreme Court on a number of occasions and as no suggestion has ever been made that it is an improper and a bad ground, I am unable to agree that thepresence of this ground in all the cases vitiates each and every one of the orders of detention now before us.
31. Further it appears to me to be immaterial whether the Communist Party has or has not been declared to be an illegal organisation. The gravamen of the allegation made in this ground is that the detenu belongs to an organisation which is committed to violent and subversive acts and which has as its main objects the overthrow of the State by violence. Such being the case it appears to me to be of little importance whether such an organisation has or has not been declared to be illegal. Assuming the party has the objects stated in this ground a member of it would be equally dangerous whether the organisation had or had not been declared to be illegal. On a fair reading of the ground it would appear that the detenu is regarded as dangerous not because he is, a member of an illegal organisation but because he is a member and assists in the activities of an organisation whose objects are said to be a danger and a menace to the maintenance of public order and the security of the State.
32. For these reasons I must therefore hold that the orders of detention are not invalid because of the statement in the grounds that the organisation to which the detenus belong has been declared an illegal organisation and therefore is an illegal organisation.
33. It was not seriously contended, except in a few cases, that these orders were mala fide. It was suggested on behalf of various detenus that the statements made in the grounds and in the particulars served later were untrue. But this Court is not entitled to go into that question. If the detaining authorities honestly believed these grounds to be true then no question of mala fides can arise. We cannot sit as a court of appeal and hold that the facts alleged are not true or have not been established. If these facts, stated in the grounds and in the particulars, where particulars were delivered, are accepted then there was abundant material in each case upon which the detaining authority could be satisfied that the person detained was a dangerous person and likely to do great mischief.
34. It was however contended in a few cases that the orders must be mala fide because they were only made after the detenus had either been discharged in criminal cases or had been released on bail. Where persons are detained in prison upon criminal charges it would be unnecessary to make any orders of detention, because whilst they were in prison they would be safe and would be unable to commit any acts of a subversive nature. Once an order for their release was passed whether by way of a discharge or by granting bail, different considerations would arise. Such persons would be at large, and if they were dangerous, the fact that they were discharged in some criminal case or the fact that they had been granted bail would in no way prevent them from carrying dangerous activities. Making orders for detention, where persons had been discharged by a criminal court or had been released on bail, does give rise to suspicion. The orders might be made, for example, to defeat the order for bail and I myself held in a case at Lahore -- 'S. Dilbagh Singh v. Emperor', AIR 1944 Lah 373 that an order detaining a person had been made mala fide and solely for the purpose of assisting the police in the investigation of certain charges in respect of which bail had been granted to the detained person.
35. In the present case however there is nothing to suggest that these orders were not honestly made beyond the fact that they were made when it was clear that the detenu would be set at liberty. The fact that the prisoner would be at large might well compel the authorities to make an order if they honestly believed him to be dangerous. I cannot infer that the orders in these cases were mala fide merely because they were made when it became clear that the detained person would be released from custody. To hold that the orders were mala fide, something more than these mere circumstances would have to be established because, as I have said, the very circumstances would by themselves justify the making of the order which up to then would have been unnecessary if it was honestly believed that the person detained under the order was dangerous.
36. In -- 'Sureswar Bhattacharjee v. The State', Misc. Case No. 120 of 1951 it was suggested that the particulars given were not particulars of the ground originally served, but contained entirely new material forming new grounds. The order of detention was made on February 26, 1950 and the grounds were served on March 7, 1950. The first of those grounds is that the detenu had been assisting the operations of the Communist Party of India which had for its objects the commission of serious crimes and thus had been acting in a manner prejudicial to the maintenance of public order. In this ground it was also stated that the Communist Party had been declared unlawful by the State Government under Section 16 of the Indian Criminal Law Amendment Act.
37. The second ground was in these terms:
'That as a member of C. P. I. on its labour front and as a member of the Union of Post and Telegraphs Workers Union, you fomented trouble against the Postal Employees, tampered with their loyalty and incited them to resort to illegal actions leading to disturbances.'
38. In the particulars served on July 16, 1950 it was stated that the detenu was a prominent and active worker of the C. P. I. being on the Executive Committee of the U. P. T. W. and that on or about August 21, 1949 he incited certain employees to stage demonstrations in front of the office of the Post Master General and also to assault high officials. Further, that he participated in the disturbances created by communist members at a meeting on August 18, 1949 addressed by Sri Jai Prakash Narain and at another meeting on September 19, 1949 convened by the U. P. T. W.
39. It was contended that these were not particulars in the true sense of the word and that they related rather to maintenance of supplies and services essential to the community than to maintenance of the security of the State and the maintenance of public order. If they applied to matters concerning the maintenance of supplies and services essential to the community the detenus could not have been detained, without obtaining the opinion of the Advisory Board, for more than three months from their detention, whereas such had not been obtained. It seems to me however that these grounds and the particulars really related to the maintenance of public order, becausewhat is suggested is that this man fomented trouble against the postal employees, incited them to illegal action which led to disturbance and in the particulars one example is given of staging a demonstration in front of the office of the Post Master General and inciting men to assault officials, presumably of the department of the Post Master General. I do not think it can be said that the particulars given were not particulars of the grounds originally served and further that this was not an order made because a person was likely to act in a manner prejudicial to the security of the State or the maintenance of public order.
40. In two cases--Miscellaneous Case No. 63 of 1951 (Sripati Bhowmick) and Miscellaneous Case No. 66 of 1951 (Kishori Mohan Patra) it was contended that the representations of these detenus had not been placed before the Advisory Board. Sripati Bhowmick was detained by an order of December 17, 1950 and on December 23, 1950 very detailed grounds were served on him. Kishori Mohan Patra was detained by an order of November 27, 1950 and equally detailed grounds were served on him on December 1, 1950.
41. The Act amending the Preventive Detention Act came into force on February 22, 1951 and the cases of both these detenus had to be sent to the Advisory Board by April 6, 1951 apd the papers were actually sent to the Advisory Board before that date. In fact they were submitted in both the cases on March 16, 1951. Section 9 of the Amending Act provides that the appropriate Government must within six weeks from the date the Act came into force in the case of orders of detention made before the Amending Act was passed, place before the Advisory Board the grounds on which the order of detention had been made and the representation, if any, made by the detenu.
42. No representation had been made by these two detenus up to April 6, 1951 which was the last day for forwarding the papers to the Advisory Board. On April 7, however, Sripati Bhowmick wanted fourteen days time to make a representation and he was informed by Government that the papers had been forwarded to the Board and that he could make his representation direct to the Board. He appears to have sent a representation on April .20 to Government. But Government returned it to him and said that they could not forward it to the Board and that the detenu himself should send it to the Board. On April 28 the Board apparently made an order upholding the detention of Bhowmick.
43. Technically Government was possibly correct in the attitude they took because they had to send all the necessary papers to the Advisory Board before April 6, 1951 and there is nothing in the statute expressly empowering them to send any subsequent representations to the Advisory Board. However it appears to us that the representation when it was received on April 20, 1951, should have been sent to the Board and not returned to the detenu with an intimation that he should if he desired, send it direct to the Board. The Advocate-General on behalf of the State contended that the State had no right to forward any representation received after April 6, 1951, but he agreed that Government should forward this representation to the Board and that the Board should con-sider the case in the light of this representation. Though as I have said the Government may have been technically correct, it would havebeen far better if these technicalities had been waived and the representation placed before the Advisory Board who could have dealt with it as they deemed proper.
44. In the case of Kishori Mohan Patra the papers were sent to the Board on March 16, 1951 and the order of the Advisory Board in his case was made on March 30, 1951 before any request was received from him for permission to make a representation. That being so, no representation could be forwarded. But again the Advocate-General on behalf of the Government has agreed that Kishori Mohan Patra's case should be sent to the Board to be considered by them if they think proper.
45. A number of detenus had made previous applications to this Court for writs in the nature of habeas corpus and such applications had been dismissed by various Benches of this Court. It was contended on behalf of the State that as previous applications had been dismissed this Bench had no jurisdiction to consider subsequent applications. Whether successive application for writs in the nature of habeas corpus would lie is unnecessary to decide in this case. It might well be argued that there is nothing in law to prevent successive applications. In civil matters there is the rule of res judicata and in criminal matters the rules of autre fois convict and autre fois acquit. But these proceedings are neither civil nor criminal and it is contended that there is no express provision prohibiting successive applications even based on the same facts. In my view however even if successive applications would not be permissible, if based on the same facts, which as I have said it is unnecessary to decide in this case, these applications were proper applications which this Court was bound to entertain, because the circumstances in which they were made were entirely different from the circumstances in which the earlier applications were made.
46. These applications now before us were made after the Act of 1951 was passed amending the earlier Preventive Detention Act of 1950. In these applications it was contended that the later amending Act was ultra vires and further that if it was intra vires, certain new rights were granted to the detenus. It appears to me that a decision under the Preventive Detention Act of 1950 could never prevent an application made when that Act had been amended in the manner in which it was amended by the 1951 Act. The fact that an application had been dismissed under the 1950 Act might afford no answer whatsoever to the contentions of the detenu under the Act as amended in 1951. That being so, this Court was bound to hear these applications even if the law prohibits successive applications. Whether successive applications are prohibited must be considered when an appropriate case arises,
47. I do not think that it is necessary to consider each case individually because as I have said earlier, unless these general contentions are acceded to, it is conceded that the original grounds together with the further particulars in one class of cases and the original grounds in the other class of cases are sufficient to maintain the order of detention in each case.
48. The result therefore is that these petitions fail and are dismissed.
G.N. Das, J.
49. I agree.