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Ram Prasad Shaw and anr. Vs. Chief Secretary to the Govt. of West Bengal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Misc. Case Nos. 46, 49, 50, 51, 57 and 59 of 1955
Judge
Reported inAIR1955Cal374,1955CriLJ1055
ActsPreventive Detention Act, 1950 - Sections 1(3), 11(A) and 12; ;Preventive Detention (Amendment) Act, 1952; ;Preventive Detention (Amendment) Act, 1954; ;Constitution of India - Article 22 and 22(4); ;General Clauses Act, 1897 - Section 6; ;Preventive Detention (Amendment) Act, 1951
AppellantRam Prasad Shaw and anr.
RespondentChief Secretary to the Govt. of West Bengal
Appellant AdvocateArun Kumar Dutt and ;Anil Kumar Sen, Advs. (in Nos. 50 and 51) and ;Narayan Ranjan Mukherjee, Adv. (in No. 57)
Respondent AdvocateS.M. Bose, Adv. General (in No. 50) and ;N.K. Sen, Adv.
Cases ReferredA. K. Gopalan v. State of Madras
Excerpt:
- mitter, j.1. this is a petition for the issue of a writ in the nature of 'habeas corpus' in respect of the detention of one sanat hazra. it is contended on the detenu's behalf that his detention was and is illegal, on the ground that the order under section 11 of the relative preventive detention act was for a period beyond the life of the act. this is the only point urged.2. the following facts appear to be undisputed: the initial order of detention was made by the district magistrate concerned on 7-8-1954. this order was in exercise of powers conferred by section 3(2), preventive detention act, 1950 (4 of 1950) as amended by the preventive detention (second amendment) act, 1952 (61 of 1952). on the same day, there was a further order by the district magistrate directing that the detenu.....
Judgment:

Mitter, J.

1. This is a petition for the issue of a writ in the nature of 'habeas corpus' in respect of the detention of one Sanat Hazra. It is contended on the detenu's behalf that his detention was and is illegal, on the ground that the order under Section 11 of the relative Preventive Detention Act was for a period beyond the life of the Act. This is the only point urged.

2. The following facts appear to be undisputed: The initial order of detention was made by the District Magistrate concerned on 7-8-1954. This order was in exercise of powers conferred by Section 3(2), Preventive Detention Act, 1950 (4 of 1950) as amended by the Preventive Detention (Second Amendment) Act, 1952 (61 of 1952). On the same day, there was a further order by the District Magistrate directing that the detenu be detained in the Dura Dum Central Jail. The letter addressed to the detenu setting out the grounds for his detention was also dated 7-8-1954, but it was not served upon the detenu until 18-8-1954. By an order dated 17-8-1954, the State Government approved of the initial order of detention.

Upon receipt of the grounds of his detention, the detenu made a representation which was duly placed before the Advisory Board constituted under Section 8 of the Act. After having heard the detenu and considered the materials before it, the Advisory Board reported that there was in its opinion sufficient cause for the detention of the said detenu. By an order dated 29-9-1954, and in exercise of the powers conferred by Sub-section (1) of Section 11 of the Act, the State Government confirmed the detention order of 7-8-1954, and directed that the detenu be detained till the expiration of twelve months from the date of his detention. As the relative Preventive Detention Act was to expire on 31-12-1954, the period so fixed went beyond the life of the Act.

3. Mr. Arun Dutt for the petitioner contends, firstly, that any order detaining a person beyond the life of the Act was illegal and, secondly, that the detention of the person after the Act concerned had expired was also illegal in the absence of a fresh order of a detention under the Act as amended by the Preventive Detention (Amendment) Act, 1954 (51 of 1954). In support of these contentions, Mr. Dutt has relied upon 3 Supreme Court decisions, in all of which, according to him, the Supreme Court emphatically laid down that the duration of a detention must come to an end with the expiration of the Act concerned.

4. In order to appreciate the question involved it is necessary to bear in mind that the main Act, Act 4 of 1950, has from time to time been amended to prolong its life. At the material time, subsection (3) of Section 1 of the main Act as amended by the Preventive Detention (Second Amendment) Act (Act 61 of 1922) was as follows: 'It shall cease to have effect on the 31st day of December, 1954, save as respects things done or omitted to be done before that date.' The last Act, namely, the Preventive Detention (Amendment) Act, 1954 (Act 51 of 1954) received the assent of the President on 24-12-1954. By it, Act 4 of 1950 was to remain in force until 31-12-1957.

5. The order directing the detenu to be detained till the expiration of twelve months from the date of his detention was passed on 29-9-1954, that is, nearly three months prior to the passing of Act 51 of 1954 which extended the life of the 1950 Act to 31-12-1957. The point raised by Mr. Dutt is that as at the date of the impugned order the life of the relative Act was upto only 31-12-1954, the detention concerned was bound to cease with the expiration of the Act itself on 31-12-1954. According to Mr. Dutt, subsequent legislation in December of that year could not legally prolong the duration of detention without a fresh order being passed under Act 4 of 1950 as amended by Act 51 of 1954. This point does not appear to me to have been directly raised in any of the following cases cited to us: -- 'S. Krishnan v. State of Madras', : [1951]2SCR621 ; -- 'Dattatraya v. State of Bombay', : 1952CriLJ955 ; -- Venkateswaraloo v. Superintendent, Central Jail, Hyderabad State', : 1953CriLJ501 .

6. The Act under which the detenu was first detained was a temporary Act due to expire on the 31st day of December, 1954. As a general rule, and unless it contains a special provision to the contrary, a temporary Act on its expiry ceases to have any further effect. It follows that any detention under a Preventive Detention Act, which is but a temporary Act, must, in the absence of anything to the contrary, be co-terminous with the life of the Act. This proposition was reiterated in the several Supreme Court decisions referred to by Das J. in : 1952CriLJ955 . It seems to me clear, therefore, that an order of detention for a period beyond the life of the temporary Act under which it is made is illegal. To continue the detention of a person beyond the life of the Act under which it is made would be contrary to the provisions of Article 22(4);

For, once the Act ceases to exist, can it be said that the man concerned is being deprived of his personal liberty in accordance with procedure established by law? True, Section 11A provides that the maximum period for which any person may be detained shall be 12 months from the date of detention. But the section cannot be construed to mean that the period of detention may go beyond the life of the Act. What the section means is that during the life time of the Act the maximum period of any detention may be 12 months from the date of detention.

7. It is said on behalf of the State that Sub-section (3) of Section 1 of the Preventive Detention Act, as it stood at the date of the offending order, preserves the validity of both the order and the detention beyond the life of the Act. Sub-section (3) of Section 1 of the relative Act was as follows:

'(3) It shall cease to have effect on the 31st day of December, 1954, save as respects things done or omitted to be done before that date.'

It is to be observed that the expression 'save as respects things done or omitted to be done before that date' has throughout been a part of Sub-section (3) and does not appear to have been directly considered. The question now is whether or not it comprises an order of detention for a period beyond the life of the temporary Act under which it is made. What Sub-section (3) means is that the expiry of the Act shall not affect the operation thereof as respects things done or omitted to be done before that date. If the legislature is minded to keep alive the effect of a temporary Act in certain respects, it may do so by appropriate words. The words which fall to be considered here are 'things done or omitted to be done.' Do the words mean acts or omissions? In my view, they do, and all that the expression saves is the liability or the immunity, as the case may be, in respect of such acts or omissions.

In -- 'Wicks v. Director of Public Prosecutions', (1947) 1 All ER 205 (D), it was held, upon a construction of the phrase 'The expiry of this Act shall not affect the operation thereof as respects things previously done or omitted to be done', that a prosecution for acts committed while the Act was in force could be commenced after the Act had expired. In my view, our Parliament cannot be said to have intended that one's detention beyond the life of the Act was a thing done before the expiry of the Act. In view of the language used, an order for such a detention may well be a thing or an act done, but any such detention after the expiry of the Act cannot be said to be a thing done before that date. The object of the Preventive Detention Act being to detain a person without trial for a specific temporary period, the legislature could not have intended to circumvent the very purpose of the Act by authorising a further detention beyond the life of the Act without a fresh Preventive Detention Act or an Amendment Act prolonging the life of the earlier Act.

These considerations suggest to me the reason why their Lordships of the Supreme Court did not feel called upon to expressly construe Sub-section (3) of Section 1 in laying down that a detention under the relative Act must end with the life of the Act. In my view, an order of detention for a period beyond the life of the temporary Act under which it is made is illegal. It is also clear to me that an order of detention for a period beyond the life of the temporary Act concerned cannot be made in anticipation of the life of the Act being extended by an amending Act. Therefore such an order can be successfully impugned before the life of the temporary Act is extended by subsequent legislation. Once, however, a fresh life is added to the temporary Act by a subsequent legislation, the original order of detention, on the score that it was for a period beyond the life of the temporary Act, under which it was made, cannot be challenged, for, then the order as well as the consequent detention must be deemed to have been under the original Act, as amended.

By the last Act, namely, the Preventive Detention (Amendment) Act, 1954 (Act 51 of 1954), the life of Act 4 of 1950 was extended till 31-12-1957. The last-named proposition is concluded by the decision of the Supreme Court in -- 'Sham Rao v. District Magistrate, Thana', : 1952CriLJ1503 . Delivering the judgment of the Court, Bose, J, observed:

'The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except whether that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. This is the rule in England; see Craies on Statute Law, 5th edition, page 207; it is the law in America: See Crowford on Statutory Construction, p. 110; and it is the law which the Privy Council applied to India in -- 'Keshoram Poddar v. Nundo Lal Mallick . Bearing this in mind it will be seen that the Act of 1950 remains the Act of 1950 all the way through even with its subsequent amendments. Therefore, the moment the Act of 1952 was passed and Section 2 came into operation, the Act of 1950 meant the Act of 1950 as amended by Section 2, that is to say, the Act of 1950 now due to expire on the 1st of October, 1952.'

As a result of the Preventive Detention (Amendment) Act, 1954 (Act 51 of 1954) the Preventive Detention Act (4 of 1950) is to remain in force until 31-12-1957. That being so, the detention complained of must be regarded as being within the life time of the Act. The present detention is, therefore, not illegal.

8. In the result, this application fails and the Rule is discharged.

9. The common question of law raised in this and the other applications is the one which I have just disposed of and which is about to be exhaustively dealt with by my learned brother. Although we differ as to our reasons, we have reached the same conclusion, namely, that the applications fail. My learned brother will deal with the facts giving rise to the other applications. I do not, therefore, think it necessary to deal with them.

10. In the result, all these six petitions are dismissed and the relative Rules discharged.

Guha Ray, J.

11. These six petitions for writs in the nature of habeas corpus are dealt with together, as there is one common point of law involved in all. In the first two, namely cases Nos. 46 and 49 and in the last namely case No. 59, which were filed by the detenus Ram Prosad Saw, Anil Kumar Das Gupta and Manik Chandra Das themselves from jail, the grounds of detention were impugned on the further grounds of vagueness, irrelevancy, etc., but copies of the detention orders, of the grounds and of the order of confirmation were not annexed tc the petitions and we had to call for them from the Deputy Legal Remembrancer. The petitioners are alt detained under the Preventive Detention Act.

12. Ram Prosad Saw, the petitioner in case No. 46 was served with an order under Section 3(2) on 13-8-1954. The grounds are dated 16-8-1954. The order was confirmed on 20-9-1954 and by the same order the detention was to continue for 12 months from the date of detention i.e., upto 12-8-1955.

13. Anil Kumar Das Gupta, the petitioner incase No. 49 was served with an order under Section 3 (2) on 22-7-1954 and the grounds were communicated on 26-7-1954. The date of the order of confirmation is 7-9-1954 and by this order the detention is to continue for 12 months from the date of detention, i.e., upto 21-7-1955.

14. Madan Chandra Hazra, the petitioner in case No. 50 is the uncle of the detenu Gopal Mondal 'alias' Hazra 'alias' Phata Gopal and Kishori Mohan Hazra, the petitioner in case No 51 is the father of the detenu Sanat Hazra 'alias' Sannyasi Hazra 'alias' Murari Hazra. The detenus in these two cases were first proceeded against under Section 107, Criminal P. C. but they were discharged in that case on 12-7-1954. Orders under Section 3(2) were served on both of them on 7-8-1954 when the grounds of detention were also communicated to them. On 29-9-1954, the orders of detention were confirmed and the detention in each case was to continue for 12 months i.e., up to 6-8-1954.

15. Bhagyalaxmi Mondal, the petitioner in case No. 57 is the mother of the detenu Mrityunjoy Mondal who was arrested in 4-10-1954 and served with an order under Section 3(2). The date of confirmation is 22-11-1954 and the detention is to continue for 12 months i.e., upto either 3-10-1955 when one year from the date of his arrest expires or 13-10-1955 when one year from the date of service of the order under Section 3(2) is completed.

16. Manik Lal Das alias Manik Chandra Das, the petitioner in case No. 59 was served with an order under Section 3(2) on 31-7-1954. The grounds were communicated on 4-8-1954 and the order was confirmed on 11-9-1954 and detention is to continue for 12 months, i.e., upto 30-7-1955.

17. It is thus clear that in each of these cases, the order confirming the order of detention under Section 3(2) and directing the detention to continue for 12 months from the commencement of the detention was made under the Preventive Detention Act as it stood before 24-12-1954 when the Preventive Detention Amendment Act (51 of 1954) received the President's assent and the life of the Preventive Detention Act was extended to 31-12-1957. In each again the period of one year from the commencement of the detention is to expire after 31-12-1954 when the Preventive Detention Act as it stood at the dates of the orders of confirmation was itself to expire. The common question, therefore, that arises in each of them is whether the order confirming the order of detention and fixing the duration of the detention at 12 months from the date of the commencement of the detention as a result of which the detention is to end on a date subsequent to the expiry of the Act itself is illegal.

The point has been raised by Mr. Arun Kumar Dutt specifically in cases Nos. 50 and 51 in which he appeared for the petitioners. Mr. Narayan Ranjan Mukherjee appearing for the petitioner in case No. 57 also adopted the argument of Mr. Dutt in his case. The other three cases were filed from jail. The petitioner in the last case asked for permission to be heard in person but as the point has been fully argued by Mr. Dutt on the one hand and the learned Deputy Legal Remembrancer and the Advocate General who represented the State in one, on the other, there was really no need for hearing the petitioner personally on that point and on the other point raised by him, there was equally no need to hear him again because that point has been already dealt with by this Court on an earlier occasion, namely, in Misc. Case No. 163/1954.

18. Before proceeding to examine the question common to all the cases, it will be convenient to dispose of the special point raised in cases Nos. 46, 49 and 59. Paragraphs 5, 6 and 7 of the petition in the first, and paragraphs 6, 7 and 8 of the second which are almost identical in language challenge the grounds of detention as 'false, mala fide, untenable in equity and law', as containing 'facts which are not relevant to the purpose and objects of the Preventive Detention Act' and as 'so couched that they in effect deprive the petitioners from making an effective representation'.

Paragraphs 6 and 8 of the petition in case No. 59 contain similar grounds of attack.

An examination of the actual grounds of detention, copies of which were supplied to us shows that the grounds merely cite specific instances of rowdyism or high-handedness on the part of the petitioners, clearly mentioning their dates and victims. They are, therefore, neither vague nor irrelevant nor is there anything in them to indicate that they are mala fide. In the last, similar grounds were taken on another occasion before the representation of the petitioner to the Advisory Board was considered by it (Misc. Case No. 163/1954) and it was held by this Court that there was nothing vague in any of the grounds. The special point, therefore, taken in these three cases fails.

19. The Preventive Detention Act as it stood before its last amendment by Act 51 of 1954 was due to expire on 31-12-1954. Each of the orders confirming the order of detention and fixing one year from the commencement of the detention was made before 31-12-1954 but the period of one year fixed in each case is to end after 31-12-1954 when the Act as it stood at the dates of the orders in question was itself due to expire, though in fact it did not expire because Act 51 of 1954 which received the President's assent on 24-12-1954 gave it a new lease of life for another period of three years. The question now is whether or not the orders by which the duration of the detention was fixed so as to end after the expiry of the Act under which the orders were made were themselves wholly illegal or without jurisdiction.

If the orders themselves are wholly illegal or without jurisdiction they must have been illegal from the very beginning so that the detention of the petitioners under those illegal orders must have been illegal equally from the very beginning. This is the extreme position taken up by Mr. Dutt though he did not put it in the same form. If on the other hand, the orders were not wholly illegal or without jurisdiction at the time they were made, could they become illegal at a later date because of the expiry of the Act if in fact it did expire? If the expiry of the Act transforms an order legal at the date when it was made, into one that is no longer legal after a certain date, then the detention instead of being illegal ab initio would be so only when the order itself becomes illegal.

20. Mr. Dutt's argument briefly put, is simply this that the Preventive Detention Act, purely temporary in character, though extended now for a number of years from time to time, puts an overall time-limit to everything done under the Act and that over-all time-limit is the life of the Act itself and when the Act itself expires, everything done under it also expires with it or loses its legal validity and in support of his contention he has cited three decisions of the Supreme Court, namely, : [1951]2SCR621 .

21. In the second which is the earliest of the three cases cited, the petitioners Krishnan and others were, on 22-2-1951 when the Preventive Detention (Amendment) Act, 1951, i.e., Act 4 of 1951 came into force, under detention in pursuance of orders under Section 3(1)(a)(ii) of the old Act and they would have been entitled to release under the old Act on the expiry of one year from the date of the order of detention, but for Sections 9 and 12 of the new Act. These sections were challenged as offending against Article 22(4)(a) of the Constitution and the whole Act was impugned for its failure to fix the maximum period of detention. These contentions were overruled but Sastri J. as he then was, said at one place:

'The general rule in regard to a temporary statute is that in the absence of a special provision to the contrary, proceedings which are being taken against a person under it ipso facto terminate as soon as the statute expires'

and he refers to Craies on Statutes for this view. Mahajan J., as he then was, made it clearer still by saying that Parliament might have thought it unnecessary to fix a maximum period of detention in the new Statute which was of a temporary character and whose own tenure of life was limited to one year, that such temporary statutes cease to have any effect after their expiry that they automatically come to an end at the expiry of the period for which they have been enacted and nothing further, can be done under them and that the detention of the petitioners would come to an end automatically with the life of the statute.

22. In the first case cited, Dattatraya Moreswar, the petitioner was arrested on 15-2-1951 in pursuance of an order under the Preventive Detention Act 1950 & on 5-4-1951, the Advisory Board reported that there was sufficient cause for his detention and on 13-4-1951, the order of detention was confirmed under Section 11. In confirming the order the State Government did not say anything as to whether the detention would continue and if so, for what length of time. The contention on behalf of the petitioners before the State Government was first, that Section 11(1) required the State Government tc do two tilings, namely, (1) to confirm the order and (2) to direct the continuance of the order; and secondly, that the words 'such period' in the subsection imply that it is necessary to specify the period, without which there was the risk of an indefinite detention of the victims of the Act. Their Lordships negatived both the contentions.

In repelling the second branch of the argument they referred to -- 'A. K. Gopalan v. State of Madras', : 1950CriLJ1383 , where Kania C. J. pointed out that the whole life of the Act being temporary, the argument that the detention might be for an indefinite period was unsound and also to the case of Krishnana (A) and followed the view taken in these two cases. The case of Dattatraya Moreswar (B) was decided by the Supreme Court on 27-3-1952. By then, the life of the original Act had already been extended twice, first from 1-4-1951 to 1-4-1952 by Act 4 of 1951 which received the President's assent on 22-2-1951 and secondly from 1-4-1952 to 1-10-1952 by Act 34 of 1952 which received the assent of the President on 14-3-1952. As the Preventive Detention Act had to be extended from time to time, at the next amendment of the Act by Act 61 of 1952 which came into effect on 30-9-1952, the maximum period of detention was laid down by Section 10 at one year from the date of detention which evidently means the first day of detention.

23. In the third case, namely, that of Venkateswaraloo (C), the date of the order of detention was 20-10-1951, that of the service of grounds of detention was 1-11-1951 and the order of detention was confirmed on 21-1-1952 and it was specifically stated in this order that the detention was to continue up to 31-3-1952. On 29-3-1952, however, the detention order was extended to 30-9-1952 and on 22-9-1952 it was still further extended to 31-12-1952. The contention on behalf of the petitioners before the Supreme Court was that the second extension of the detention order on 22-9-52 was illegal, because by extending it to 31-12-1952 on 22-9-1952 when Act 61 of 1952 which came into force on 30-9-1952 had not yet come into operation, it was really extending the detention beyond the life of the Act under which the order was made.

Mahajan J. as he then was, really based the view of the Court that the contention was well founded on the words 'unless a shorter period is specified in the order' in Section 11(a)(2), the order referred to here being in their Lordships' opinion, the order of confirmation and not the original order and the rest of the judgment was taken up with an examination of the validity of the different contentions put forward on behalf of the State. In the concluding paragraph his Lordship says as follows

'They are in detention by reason of the extension order made on the 22nd September extending their detention upto 31-12-1952. On that date the State Government had no jurisdiction to make that order under the law in force as it stood on that date. The 30-9-1952 had been specified as the date up to which the detention was to last by a subsisting and perfectly valid order and their detention beyond that date is illegal and cannot be justified on the provisions of Section 11-A(2) or on the provisions of Section 11(1) of the original Act.'

24. None of the three cases cited are on all fours with the cases before us as regards the material facts and the point now raised could not be, and was not, raised in any of them. A possible line of argument that in the last case the same point was raised though in a somewhat different form and actually decided, does not appear to be sound for the simple reason that unlike these cases before us, there the order had already been confirmed under Section 11(1) and directed to continue up to a date specified and this specified date also was once extended to another date and it was only the second extension which was impugned and held to be bad.

25. The authorities on which reliance has been placed on behalf of the petitioners do not, therefore, throw any light on the question now before us and it has to be decided with reference to the relevant sections of the Preventive Detention Act as it stood at the time when the orders in question were made.

26. That there is a difference in the matter of the continuance of their effect on expiry, between statutes which are limited in their duration to a specified period and expire by efflux of the time to which they are limited and perpetual statutes or statutes which have to be repealed by legislation is well-settled. Section 6, General Clauses. Act, applies to the latter and not to the former. As regards the former class of statutes, the general rule is that in the absence of a special provision to the contrary, after a temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect (vide Craies on Statutes, 5th Edition, pp. 377-379). The Supreme Court cases already referred to also lay down the same proposition. If, therefore, there is nothing in the Act to the contrary, the life of a detention order under the Preventive Detention Act would certainly be conterminous with the life of the Preventive Detention Act itself.

What one has now to look for in the Act is whether such a provision exists in the Act and almost at the very threshold Section 1(3) stares one in the face and claims recognition as the provision one has been looking for. This section has formed a part of the Act from the very beginning and has always clung to it through its many changes. Unfortunately, however, the Supreme Court has not yet had an occasion to pronounce upon its true meaning. It runs as follows:

'It shall cease to have effect on the (31st day of December, 1957), 'save as respects things done or omitted to be done before that date'.'

The date mentioned within brackets is the date after the last extension of the Act by Act 51/1954. If the Sub-section had not contained the portion underlined (here in ' ') it would obviously have meant that on the date mentioned it would die out root and branch so as to leave nothing behind as its effect. Equally obviously, the portion underlined (here in ' ') is an exception to the sentence of extinction passed upon the Act in the first partnot underlined. In other words it clearly meansthat though the Act ceases to have effect on thedate mentioned, what has been done or omittedto be done, of course, under the Act, would notcease to have effect. An order of detention passedunder the Act is clearly, in the absence of anything to the contrary, a thing done under the Act.There is nothing in the whole o the Act to suggest the imposition of any particular limitation onthe comprehensive terms in which this exception tothe general rule has been couched. It evidentlyseeks to do for temporary Acts precisely what apart of Section 6(b) of the General Clauses Act, namely'affect anything duly done or suffered thereunder'does for perpetual Acts.

In the U. K., Section 11(3), Emergency Powers (Defence) Act, runs as follows: 'The expiry of this Act shall not affect the operation thereof 'as regards things done or omitted to be done'.'

It was an Act of 1939 and after a number of extensions it expired on 24-2-1946. In 1947-1 All ER 205 (D), the section came up for consideration. Wicks, the appellant was convicted on an indictment charging him with acts likely to assist the enemy and with intent to assist the enemy and committed by him in contravention of the provisions of the Defence (General) Regulations 1939, Reg. 2-A, made under Section 1(1), Emergency Powers (Defence) Act, 1939. These acts were all committed between April 1943 and January 1944 and the trial took place on May 27 and 28, 1946, though the Act expired on 24-2-1946. The question for decision which turned entirely on the construction which ought to be put on Section 11(3) was whether it authorised the conviction of the appellant notwithstanding the previous expiry of the Act. It is worth while quoting in extenso what Viscount Simon delivering the unanimous judgment of the House of Lords said in this connection. 'It is pointed out that Section 38(2) of the Interpretation Act, 1889, does not apply to the case of a statute or a regulation which has the power of a statute, when it expires by effluxion of time. The sub-section is addressed to Acts which have been repealed and not to Acts which expire owing to their purely temporary validity. It is, I apprehend, with this distinction in mind which is certainly well known to the authorities who frame statutes, that the draughtsman inserted the words used in Section 11, Emergency Powers (Defence) Act, 1939. Section 11 begins with the words 'subject to the provisions of this Section' which warn anybody that the provisions which follow are not absolute but are subject to qualification. It is therefore not the case that at the date chosen, the Act expires in every sense. There is a qualification.

Without discussing whether the intermediate words are qualifications, Sub-section (3) in my opinion is clearly a qualification. It begins with the phrase 'The expiry of this Act'--a noun which corresponds with the verb 'expire' -- 'shall not affect the operation thereof as respects things done or omitted to be done.' Counsel for the appellant have therefore been driven to argue ingeniously but to admit candidly, that the contention which they are putting forward is that the phrase 'things previously done' does not cover offences previously committed. In my opinion, that view cannot be correct. It is clear that Parliament did not intend Sub-section (3) to expire with the rest of the Act and that its presence in the statute preserves the right to prosecute after the date of expiry. This destroys the validity of the appellant's arguments altogether.'

27. It must be at once conceded that between the words of the Section of the English statute which the House of Lords was construing in this case, and Section 1(3), Preventive Detention Act, there is at least one important difference while at the same time there is one important similarity also. The opening words of Section 11 of the English statute 'subject to the provisions of this section' on which their Lordships laid considerable stress are absent horn Section 1(3), Preventive Detention Act, but the phrase 'as respects things done or omitted to be done before that date' in Section 1(3), Preventive Detention Act, is almost identical with the phrase 'as respects things previously done or omitted to be done' of Section 11(3) of the English Statute. On a comparison of the words used in the two sections, however, it seems pretty clear that the qualification introduced in the English statute by the words 'subject to the provisions of this section' is secured in a different manner, namely by stating the general rule with a saving clause in the same sentence and as stated in Kent's Commentary on American Law, 12th Edn., Vol. I, 463 quoted in Maxwell on Statutes, 10th Edn., p. 162:

'The true principle undoubtedly is that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause and proviso, taken and construed together, is to prevail.'

28. The scope, however, of the qualifications in the English statute and in Section 1(3), Preventive Detention Act, may conceivably differ because of the different devices used in the two and if for the English statute it may be said, as has been said by the House of Lords, that Sub-section (3) of Section 11 did not expire with the rest of the Act, one can hardly go as far with regard to Section 1(3), Preventive Detention Act. This is an integral part of the act like any other part of it and expires with the rest of the Act but its expiry cannot obviously mean that the Courts of law will never afterwards be called upon to interpret its provisions for determining the validity of an order made under it when it was in force, and whenever such a contingency arises before a Court, it has to unearth the Act in question from the lumber room as it were, of the country's dead laws and try to ascertain its meaning and scope as a whole or the meaning and scope of any of its provisions.

29. On a proper construction, the true meaning of Section 1(3), Preventive Detention Act, appears to me to be that even after the expiry of the Act, things done under the Act, i.e., done legally or within the limits prescribed by the Act, will run their course as prescribed by the Act. The over-all limit spoken of by the Supreme Court seems, if I might say so in all humility and with the utmost deference, subject to this qualification only that if certain things are done legally under the Act before its expiry, they need not necessarily cease to have effect like the rest of the Act on the date mentioned in the section. This construction of Section 1(3) will save from expiry with the expiry of the Act an order of detention which is directed to continue for a period ending on a date which is subsequent to the Act and will be a complete answer to Mr. Dutt's arguments.

30. Mr. Dutt, when I pointed out Section 1(3) to him, tried to meet it by reference to Section 12(b) on the strength of which he argued that Section 1(3) does not affect the validity or duration of any order of detention. As rightly pointed out by the learned Advocate General in the cases in which he appeared for the State, Section 12 has no application to any order of detention which was not in force at the commencement of the Preventive Detention (Amendment) Act 1951 i.e., Act 4/51 i.e., on 22-2-1951. The orders in these cases were passed long after this date and so Section 12 has no application to them, the words 'such order' in Sub-section (b) clearly meaning an order referred to in Sub-section (a) i.e., an order in force on 22-2-51.

31. As the construction I have put upon Section 1(3) seems to militate against the dicta of the Supreme Court that the overall time-limit for an order of detention is fixed by the life of the Act and that an order of detention would automatically come to an end with the expiry of the Act itself, I shall not base my judgment solely on that ground, though 1 am of opinion that these dicta of the Supreme Court, uttered at a time when the maximum period of detention had not yet been fixed by Section 10 of Act 61 of 1952 which came into force on 30-9-52 and uttered as an answer to the question if without the specification of a period in the order as confirmed under Section 11(1) there was the risk of an indefinite detention of a person, mean that in the absence of a provision to the contrary, as actually observed by Sastri J., in the case of Krishnana (A), the order of detention would cease to have effect as soon as the Act ceases to have effect and if their Lordships did not in this connection feel called upon to construe Section 1(3) it was simply because the maximum period of detention had not then been fixed and the question could not therefore have arisen at the time whether if the period fixed in the order under Section 11(1) ended on a date subsequent to the expiry of the Act, the order would still be in force on the expiry of the Act. What I have done is to construe Section 1(3) which the Supreme Court did not consider it necessary to take into account, so that there is not and could not possibly be any real conflict between the view of the Supreme Court and that taken by me. Even if Section 1(3) be left out of consideration altogether, and if the Supreme Court be taken to have laid down without any reservation whatever that the overall time limit for an order of detention is fixed by the date of expiry of the Act itself, the question arises whether an order of detention confirmed under Section 11(1) and directed to continue for twelve months from the date of detention, when this period of twelve months expires after the expiry of the Act is illegal from the very beginning or becomes illegal only on the expiry of the Act.

It will be, in my opinion, ab initio illegal only if the authority that makes the order is without any jurisdiction to make it That in each of these cases, the authority that made the confirming order and the order fixing the duration of the detention had the jurisdiction to make it is not questioned and I have no doubt whatever that it had the jurisdiction to do so. But an authority having jurisdiction to pass an order may pass a right order or a wrong order, ah order which is legal or an order which is not legal or within the four corners of the Act under which it has jurisdiction to make the order. The illegal character of the order that is made in exercise of its jurisdiction does not take away its jurisdiction and the question that arises when such an illegal order or an order in excess of its legal powers is made is not whether it had jurisdiction at all to pass an order, but whether it was legally competent to pass the order that was actually passed.

The jurisdiction to pass an order and the legal competency to pass an order in exercise of that jurisdiction are, in my opinion, two different things. A lack of the one makes the whole order void ab initio but a lack of the other makes only that part of the order void which is in excess of the legal competency of the authority on which the jurisdiction to make the order is conferred by the statute. Where the authority acts in excess of its powers, it acts not without jurisdiction but beyond the limits of its powers, and therefore, illegally, in exercise of its jurisdiction and therefore only what is in excess of its legal powers becomes illegal and not the whole of the order, namely, the portion which is within its legal powers and the portion which is not. In other words, the illegality in such a case attaches not to the whole order but only to that part of the order which is in excess of the powers.

If a Court in trying a person on a particular section of the Indian Penal Code passes a sentence beyond the maximum prescribed by the section, is the whole sentence illegal or only that part is illegal which goes beyond the maximum? In my opinion, only that part is illegal which is in excess of the Court's powers. If that be so, the entire order of detention the duration of which is fixed for a period going beyond the expiry of the Act cannot be held to be void ab initio but only that part of the order which goes beyond the expiry of the Act becomes illegal on the actual expiry of the Act, but as the Act did not in fact expire, no part of the detention in any of these cases has become illegal.

32. Before concluding, it is necessary to dispose of a contention raised by the learned Advocate General on the strength of the decision of the Supreme Court in -- ' : 1952CriLJ1503 to which the Deputy Legal Remembrancer also referred earlier. In this case, the petitioners were arrested on 15-11-1951 when orders of detention were served on them. On the day following the grounds of detention were communicated to them and on 8-2-1952 the order was confirmed under Section 11(1) and directed to continue. The Act of 1950 as it stood originally was due to expire on 1-4-51 but by Act 4 of 1951 which came into effect on 22-2-51 it was extended to 1-4-52 and ordinarily under the previous decisions of the Supreme Court the detention orders would have expired on 1-4-52. But by Act 34 of 1952 which came into force on 14-3-52 the life of the Act was extended still further to 1-10-52.

The question in the case was whether the prolongation of the life of the Act by Act 34 of 1952 to 1-10-52 prolonged also the duration of the detention and whether it had the vires to do so, the contention un behalf of the petitioners being that the mere prolongation ot the life ot the Act did not, by reason ot that alone, prolong the life of a detention which was due to expire when the Act under which, it was made expired. Their Lordships did not express any opinion on this point in view ot Section 3 of Act 34 ot 1952 which provides that every detention order confirmed under Section 11 of the principal Act and in force immediately before the commencement of Act 34 of 1952 on 14-3-1954 shall have effect as if it had been confirmed under the principal Act as amended by Act 34 of 1952 and shall continue to remain in force so long as the principal Act is in force.

It was argued that as the principal Act was due to expire on 1-4-1952 the present detention also came to an end on that date and in the absence of a fresh order of detention, the petitioners' detention beyond that date was illegal. Their Lordships negatived that contention as fallacious because the moment the Act of 1952 was passed and Section 2 came into operation the Act of 1950 meant the Act ot 1950 as amended by Section 2 of the Act of 1952, i.e., the Act of 1950, due in consequence of the amendment to expire on 1-10-1952. The learned Advocate General contended that their 'Lordships were here laying down a proposition that an amendment once it has taken effect must be deemed to have taken effect, not from the day when it conies into operation but from the day when the original Act comes into operation. On a careful perusal of the judgment, I must say I find nothing in it to warrant this view.

What their Lordships in my opinion did in this case is first to refrain from expressing an opinion on the abstract question raised on behalf of the petitioners, because Section 3 of the Amending Act in their Lordships' opinion concluded the matter and secondly, to find out the meaning of the words 'when the principal Act expired' in Section 3 of the Amending Act. Whatever their Lordships said was thus in connection with Section 3 of the Amending Act which evidently gave a retrospective operation to the amendment in the case of orders of detention in force at the date when the Amending Act came into force and their Lordships' observations cannot in my opinion be construed as laying down anything like a general proposition that an amendment must be deemed to take effect from the date when the Act amended was passed.

33. In my view, the detention of the petitionersin these cases cannot be held to be illegal. Thepetitions must accordingly be dismissed and theRules discharged.


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