Jaswant Singh, J.
1. These two petitions under Article 32 (2-A) of the Constitution of India as applied 'to the State for issue of waits in the nature of Habeas Corpus directing release of the petitioners from detention shall be disposed of by tliis [judgment as they raise common questions of law and facts.
In the petitions submitted by them through the Superintendent of Central Jail. Jammu. 'the petitioners have averred that they are law abiding citizens and never took part in any type of political movement or activity and never did any-thing detrimentel to the security of the State; that their detention is illegal and unlawful; that they were arrested on April 9, 1973. from their native villages without any warrant of arrest being served on them; that after a lapse of considerable time they were transferred to the Interrogation Centre Jammu on April 14,1973 that during all this period they were kept under very adverse conditions; that they were taken to the police station, Bishnah, on April 25. 1973 wherefrom they were transferred to the Central Jail. Jammu, on April 30. 1973; that their detention is in contravention of the provisions of Articles 21 and 22(5) of the Constitution of India as they are being deprived of their personal liberty without following the procedure established by law and the grounds on which the orders of their detention were passed have not been communicated to them and that their detention is also illegal as they are being subjected to a penalty for the alleged commission of an offence which has no substance.
2. In response to the notice issued to the State it has filed in each of the petitions an affidavit sworn by Shri Parmanand IAS. District Magistrate. Jammu. wherein he has stated that on being satisfied that with a view to preventing them from acting in any manner prejudicial to the security of the State, it was necessary so to do. orders directing the detention of the petitioners under the provisions of the Maintenance of Internal Security Act, 1971. (hereinafter referred to as the 'Act') were issued on April 27, 1973, that it was in compliance with the said orders that the petitioners were arrested by the Station House Officer. Police Station. Bishnah. from their villages on April 29;. 1973 that at the time of their arrest the contents of their respective orders of detention were read over and explained to the petitioners in Diogri language which they fully understood: that in token there of the thumb impression of Puraum Ram and the signatures of Vakil Singh, petitioners. were taken on the reverse of their respective orders and they were lodged in the Central Jail, Jammu; that the aforesaid orders of detention together with the grounds 'thereof and other particulars which had bearing on 'the matter were duly reported to the Government of Jammu and1 Kashmir who after considering the same approved the detention of the petitioners by means of orders passed by it on May 2,1973; that he had by his orders dated April 27. 1973 directed the Superintendent of the Central Jail. Jammu to serve on the petitioners the grounds of their detention and' to inform them that they were entitled to make a representation against the orders of their detention; that despite the due communication to them of the grounds of their detention and the information in Dogri language (which they understood) that they were entitled to make a representation against the orders of their detention, 'the petitioners did not make any representation to the Government of Jammu and Kashmir; that on May 17, 1973 the Government placed before the Advisory Board constituted; under Section 9 of the Act the oases of the petitioners along with the grounds of their detention and the reports made by him under Section 3(3} of the Act and that on the Advisory Board's reporting to the Government that there was in its opinion sufficient cause for 'their detention the Government of Jammu and Kashmir acting on the report confirmed the orders of detention of the petitioners on June 5, 1973. for a period of two years from the date of their detention.
3. Appearing as Amicus Curiae Mr. G. L. Gupta, has, besides reiterating the contentions raised in the petitions urged that the Act is ultra vires the provisions of the Constitution of India as applied to the State of Jammu and Kashmir and has not been validly extended to the State, -that the detention is illegal as no report contemplated by Section 3(4) of the Act was made by the State Goyernment to the 'Central Government, and the Advisory Board omitted to follow the provisions of Section 11 (i) of the Act in as much as it confined itself to the material placed before it and did not send for further information.
4. Before dealing with the other submissions and contentions raised by or on behalf of the petitioners. I shall first of all consider the contention raised by Mr. G. L. Gupta, that the Act is ultra vires the provisions of the Constitution in so far as they are applicable to the State of Jammu and Kashmir and has not been validly extended to the State.
5. It is. no doubt, true that Entry 9 of List I of the Seventh Schedule of the Constitution of India which relates to Preventive Detention for reasons connected with Defence. Foreign Affairs or the Secu-i rity of India and persons subjected to such detentions, was omitted from applicability to the State by virtue of the Constitution (Application to Jammu & Kashmir) Order, 1954, and the Act i. e. the Maintenance of Internal Security Act, (Act No. 26 of 1971) a originally enacted on July 2, 1971. was consequently not made applicable to the State of Jammu and Kashmir but after the President had declared on December 3. 1971, by proclamation under Clause (1) of Article 352 of the Constitution that a grave emergency existed whereby the security of India was threatened by external aggression the Parliament enacted the Defence of India Act, 1971. Act No. 42 of 1971. with a view to provide special measures to ensure the public safety and interest, the defence of India and Civil defence etc and for matters connected therewith. Section 6(6) of this Act i. e. the Defence of India Act. 1971, modified Sub-section (2} of Section 1 of the Maintenance of Internal Security Act 1971. The effect of this change is that although detentions made under the Jammu and Kashmir Preventive Detention Act, 1964, are to continue to be governed by the provisions of that Act. 'the detentions made after the commencement of the Defence of India Act, 1971. I. e. after December 3. 1971, have to be under and in accordance with the provisions of the Maintenance of Internal Security Act. 1971.
6. Let us now see whether the change brought about by Section 6(6) of the Defence of India Act. 1971 is in excess of the powers conferred on Parliament by the provisions of the Constitution of India as applied to the State. Part XI of the Constitution of India deals with the legislative relations between the Union and the States-the distribution of Legislative powers between the Union and the States. Article 245 provides that the legislative powers of Parliament and the State Legislature 'are subject to the provisions of this Constitution.' Article 246 deals with the spheres of legislation of the Parliament and the State Legislatures, Because of the modification made in this Article by the President in exercise of the powers conferred on him by Article 370(i), the Legislature of (our State enjoys greater measure of Legislative powers than other States. Article 352 inter alia enables the President to make by means of proclamation a declaration of emergency if he is satisfied that the security of India or any part of the 'territory thereof is threatened by war or external aggression. A proclamation of this nature ensures for a period of two months unless it is in the meantime approved by resolutions of both Houses of Parliament Article 250 so far as it is applicable to 'the State provides that notwithstanding anything contained in Chapter I of Part XI. Parliament shall while a proclamation of emergency is in operation have (power to make laws for the whole or any part of 'the territory of India with respect also to matters not enumerated in the Union List. Article 353 inter alia provides that while a proclamation of emergency is in operation the power of Parliament to make laws with respect to any matter includes the power to make laws conferring powers and imposing duties or authorising the! conferring of powers and the imposition of duties upon the Union or officers and authorities of the Union as respects that matter, although it is one which is not enumerated in the Union List.
7. A conjoint reading of Armies 246, 250. 352 and 353 of the Constitution of India as applicable to the State, therefore, leaves no room for doubt that though the Parliament is not competent in normal times to make laws with respect to matters not enumerated in the Union List so far as it is applicable to our State, it acquires that power with the declaration of emergency by the President and continues to retain that power during the operation of the (proclamation of emergency. In other words, on a declaration of emergency even matters which are ordinarily reserved for the State Legislature become part and parcel of the Union List. I am fortified in this view by two decisions of the Calcutta High Court in Shib Niath v A. E. Porter AIR 1943 Cal 377 JSB) and Nathuni Lai Gupta v. State : AIR1964Cal279 . In the latter ruling it was held:
By the combined operation of Articles 352, 353 and 250(1) of'the Constitution Parliament has the right to make laws with respect to all the three lists in the Seventh Schedule to the Constitution during the period of emergency- This power of Parliament is not confined to the making of laws alone but includes the power to confer jurisdiction and impose duties both upon the Uinon of India and its authorities as respects any law made during the operation of proclamation of emergency. It is amplv clear from this that Parliament acquires additional jurisdiction to make laws and to impose duties for the enforcement of such law which it does not have when no such proclamation or emergency is in operation.
It is also clear that once a proclamation of emergency by reason of or in view of the imminence of external aggression is made detentions by virtue of the Defence of India Act during the proclamation of emergency cannot be only in respect of activities of a person which can be related to external aggression but can also be in relation to activities which affect the security of India or any part of it. This view receives support from a decision of the Madras High Court in M. Karunanidhi v. M. Raman AIR 196ti Mad 54 : 1968 Cri LJ 177, where it was held as follows:
Merely because the external aggression was the reason for the proclamation of emergency, it does not follow that the whole scope and effect oi the proclamation is governed, controlled and conditioned by that reason in the matter of .providing for the security of India. External aggression is of course an alternative requisite for invoking the emergencv power. But once the proclamation is properly made it extends to all aspects of the security of India, not merely from the stand point of external aggression but also internal disturbances which will cover public safety, maintenance of public order and all peaceful conditions in any part of area in India.
Thus a state of emergency due 'to external aggression having been declared bv the President on December 3. 1971. !he Parliament acquired by virtue of Article 250 the power to enact Section 6(61 of the Defence of India Act extending the provisions of the Maintenance of Internal Security Act. 1&71 to the State. It is. therefore, crystal clear that the challenge made on behalf of the (petitioners to the applicability of the Maintenance of Internal Security Act. 1971, 'to the State is based uippn a total misconception of the relevant provisions of the Constitution.
8. I now proceed to the consideration of the four contentions raided by the petitioners in the aforesaid petitions submitted to this Court.
9. The first two contentions that served upon them and the ground.? on which they were based were also not communicated to them have no substance. The original record received from the Central Jail, Jammu. shows that at the time of 'their arrest on April 27. 1973, the orders relating to their detention were duly read over and) explained to the petitioners in Dogri language which they fully understood. That the grounds were also communicated 'to the petitioners in Dogri language on April 30. 1973. is also apparent from the endorsements dated April 30, 1973. made on the orders dated April 27, 1973. of 'tihe District Magistrate. Jammu, directing the Superintendent of Central Jail. Jammu, to communicate tiie grounds of detention which he was forwarding to the petitioners and to inform them that they were entitled to make representations- against the orders of their detention to the Government. In token of the fact that notice of the detention orders was duly given to the petitioners and the grounds of detention were duly communicated to them on the aforesaid dates, the thumb impression of Punum Ram and the signatures of Vakil Singh, petitioners, appear to have been obtained on the reverse of the detention orders dated April 27, 1973, and the aforesaid orders of the District Magistrate addressed to the Superintendent of Jail. Jammu. In 1970 (3) SCC 196. where in answer to the petitioner's assertion that he was arrested without a warrant, the original order .signed by 'the petitioner was produced, the petition was dismissed.
10. There is also no force in the third contention of the petitioners that the provisions of the Maintenance of Internal Security Act. could riot have been invoked in respect of a matter regarding which criminal prosecution could be but has advisedly not been launched. In Mohd. ubrati v. State of West Bengal : 1974CriLJ397 . their Lordships of the Supreme Court, following their earlier decisions in Sahib Singh Duggal v. Union of India : 1966CriLJ305 , Mohamad Salim v. C.C. Bose : 1972CriLJ1020 and! Boriahan Gorey v. State of West Bengal : (1972)IILLJ52SC . held that non-prosecution of a person for his past activities which amount to an offence does not operate as a bar to his detention under Section 3 of the Maintenance of Internal Security Act. The following observations made in : 1974CriLJ397 (Supra) are worth quoting:
If for any reason it is not possible to successfully try and secure the conviction and imprisonment of the persons concerned for their past activities, which amount to an offenca, but which are also relevant for the satisfaction of the detaining authority for considering it necessary that a detention order under Suction 3 be made for preventing such persons from acting in a prejudicial manner as contemplated by that Section, then, the Act would indisputably be attracted and a detention order can appropriately be made. The detention order in such a case cannot be challenged on the ground that the person ordered to be detained was liable to be tried for the commission of the offence or offences founded on his conduct, on the basis of which the detention order has been made, or that proceedings under Chapter VIII. Criminal P. C. could be initiated against him. Jurisdiction to make orders for preventive detention under Section 3 is different from that of judicial trial in courts for offences ind of judicial orders for prevention of offences. Even unsuccessful judicial trialTor proceeding would not operate as a bar to a detention order or render it mala fide.
11. The fourth contention of the petitioners that their detention is also illegal as they were detained without any lawful authority for aome days prior to the passing of the impugned orders cannot also be countenanced. It is liow well settled that in habeas corpus proceedings the validity of the detention on the data of hearing is to be consideied and not previous illegal detention. Reference in this connection may usefully be made to the judgment of the Supreme Court in Talib Hussain v. State of Jammu and Kashmir : AIR1971SC62 , where it was held:
It is sufficient to point out that in habeas corpus proceedings the court has to consider the legality of the detention on the date of hearing. If on the date of hearing it cannot be said that the aggrieved1 party has been wrongfully deprived of his personal liberty and his detention is contrary to law. writ will not be issued.
12. This takes me to the consideration, of the other two contentions raised by Mr. G. L. Gupta. His contention that it was incumbent upon the. Advisory Board constituted1 under Section 9 of the Maintenance of Internal Security Act to call for material other than that which was placed before it. by the State Government and since the Board did not do so. the detention of the petitioners is illegal, is devoid of force. Power under Section 11 (1) of the Maintenance of Internal Security Act, to send for further material is to be exercised by the Board only if it considers it necessary to do so. The Board is the absolute arbiter of the necessity to call for further information and no one can compel it to do so. It in also well settled! that the decision of the Advisory Board' is not open to challenge on merits before any judicial Tribunal. Reference in this connection may be made to a decision of the Supreme Court in Akshoy Konai v. State of West Bengal : 1974CriLJ405 .
13. The last contention of Mr. G. L. Gupta, that the impugned detentions ere illegal as information required by Section 3(4) of the Maintenance of Internal Security Act. 1971, was not sent to the Central Government by the State Government is also without any substance. Office copies of the letters addressed on May 5, 1973. by the Additional Secretary to the Government of Jammu and Kashmir, Home Department, to the Deputy Secretary to Government of India. Ministry of Home Affairs, have been placed before me by the learned Additional Advocate General from which it is clear that the provisions of Section 3(4) of the Act. were duly complied with by sending to the latter copies of the detention orders passed by the District Magistrate, Jammu. the grounds of detention, and the orders of the State Government approving the orders of detention passed1 by the District Magistrate.
14. For the foregoing reasons, the petitions fail and are hereby dismissed.