Ujagar Singh Vs. The State of The
Punjab  INSC 11 (23 February 1951)
AIYAR, N. CHANDRASEKHARA FAZAL ALI, SAIYID
SASTRI, M. PATANJALI MUKHERJEA, B.K.
DAS, SUDHI RANJAN
CITATION: 1952 AIR 350 1952 SCR 756
CITATOR INFO :
RF 1957 SC 281 (6) RF 1964 SC 334 (9) D 1967
SC1797 (7) RF 1968 SC 327 (5) R 1972 SC2431 (5) R 1972 SC2481 (6) F 1973 SC 844
(2) RF 1973 SC 897 (6) E&R 1974 SC1214 (7) F 1982 SC1539 (5) R 1982 SC1543
(11) RF 1990 SC 231 (9) F 1990 SC1086 (13)
Preventive Detention Act (IV of 1950), ss. 3,
12--Detention order--Non-specification of period of detention--Ground supplied
vague and same as in earlier order--Particulars supplied after 4
months--Legality of detention--Duty to supply particulars' as soon as may be
--Form of detention order---Order signed by Home Secretary--Validity.
Non-specification of any definite period in a
detention order made under s. 3 of the Preventive Detention Act, IV of 1950, is
not a material omission rendering the order invalid in view of the provisions
contained in clauses (4) (a) and (7) (a) of Art. 22 the Constitution and s. 12
of the Act.
An order of detention which expressly states
that the Government of the State concerned was satisfied of the necessity of
757 making such an order and that it was made by the order of the Governor is
not defective merely because it is signed by Home Secretary.
Communication of the grounds of the order
need not be made directly by the authority making the order but may be made
through recognized channels prescribed by the administrative rules of business.
The past conduct or antecedent history of a
person can be taken into account in making a detention order, and as a matter
of fact, it is largely from prior events showing tendencies or inclinations of
a man that an inference could be drawn whether he is likely even in the future
to act in a manner prejudicial to the maintenance of public order. If the
authority making an order is satisfied that the ground on which the detenue was
detained on a former occasion is still available and that there was need for
detention on its basis no mala fides can be attributed to the authority from
the fact that the ground alleged for the second detention is the same as that
of the first detention.
Whether grounds have been communicated
"as soon as may be" must depend on the facts of each case. No
arbitrary time limit can be laid down.
The recent rulings of the Supreme Court
establish (a) that mere vagueness of grounds standing by itself and without
leading to an inference of mala fides or lack of good faith is not a
justiciable issue in a court of law for the necessity of making the order,
inasmuch as the ground or grounds on which the order of detention was made is a
matter for the subjective satisfaction of the Government or of the detaining
authority; (b) that there is nothing in the Act to prevent particulars of the
grounds being furnished to the detenu within a reasonable time so that he may
have the earliest opportunity of making a representation against the detention
order--what is reasonable time being dependent on the facts of each case; (c)
that failure to furnish grounds with the speedy addition of such particulars as
would enable the detenu to make a representation at the earliest opportunity
against the detention order can be considered by a court of law as an invasion
of a fundamental right or safeguard guaranteed by the Constitution, viz. being
given the earliest opportunity to make a representation; and (d) that no new grounds
could be supplied to strengthen or fortify the original order of detention.
Where the petitioners against whom detention
orders were made were given only vague grounds and there was inexcusable delay
of nearly 4 months in acquainting them of the particulars, held that their
detention was illegal and they should be released.
ORIGINAL JURISDICTION:-Petitions Nos. 149 and
167 of 1950.
758 Application under Art. 32 of the
Constitution for a writ in the nature of habeas corpus I Bawa Shiv Charan Singh
for the petitioner in petition No. 149.
N.s. Bindra for the petitioner in Petition
B.K. Khanna, Advocate-General of the Punjab,
for the respondent in both the petitions.
M.C. Setalvad, Attorney-General for India,
for the Union of India (Intervener in Petition No. 149).
1951. February 23. The Judgment of the Court
was delivered by CHANDRASEKHARA AIYAR J. --The earlier of the two petitions has
been filed by one Ujagar Singh, under article 32 of the Constitution of India,
for a writ of habeas corpus and for an order of release from detention. The
latter petition is a similar one by one Jagiit Singh. In both the petitions,
the respondent is the State of Punjab. The orders of detention were made under
the preventive Detention Act IV of 1950. The petitions are not connected with
each other, except that they raise the same grounds.
In petition No. 149 of 1950, Ujagar Singh was
originally arrested and detained under the East punjab Public Safety Act on
29th September, 1948.He was released on 28th March, 1949, but on the same date,
there was an internment order against him. On 29th September, 1949, he was
rearrested. On 2nd March, 1950, an order of detention under the Preventive Detention
Act, 1950, was served on him, and on 3rd April, 1950, he was served with the
grounds of detention dated 11th March, 1950. Both in September, 1949, and in
March, 1950, the ground alleged was ' 'You tried to create public disorder
amongst tenants in Una Tehsil by circulating and distributing objectionable
literature issued by underground communists." Additional grounds were
furnished in July 1950.
In petition No. 167 of 1950, Jagjit Singh was
arrested on 24th July, 1948. under the provisions of the 759 Punjab Safety Act,
1947. After the East Punjab Public Safety Act, 1949, came into force, a fresh
detention order dated 14th May, 1949, was served on him and he continued to be
kept in jail. Grounds of detention were given to him on 7th September, 1949. A
fresh order of detention under the Preventive Detention Act (IV of 1950) dated
2nd March, 1950, was served on 7th March, 1950. Grounds of detention dated 11th
March, 1950, were served on him on 3rd April, 1950.
Both in September 1949 and April 1950, the
same ground was given, i.e., "In pursuance of the policy of the Communist
Party, you were engaged in preparing the masses for violent revolutionary
campaign and attended secret party meetings to give effect to this
programme." Additional or supplementary grounds were served on 5th August,
Several contentions were advanced on behalf
of the petitioners challenging the legality of their detention and urging that
as the detention was unlawful and the petitioners' fundamental right of
personal liberty had been infringed, they should be set at liberty. The points
taken on their behalf can be briefly summarised as follows_ As the ground of
detention now mentioned was the same as the ground specified in 1948 or 1949,
i.e., months earlier under the Provincial Acts, the order of detention was made
mechanically and was really mala fide in the sense that there is nothing to
show that were was any fresh satisfaction on the part of the detaining
authority that detention was necessary in the interests of public order.
Secondly, the grounds were not given "as soon as may be", which is
required under section 7 of the Act; and as an unusually long period of time
elapsed between the order of detention and the giving of the grounds, the
detention must be held to be unlawful after the lapse of a reasonable time.
Thirdly, the grounds given originally were so vague that they could not be said
to be grounds at all such as would enable the detenu to make any representation
against the order. Fourthly, supplementary grounds could not be furnished and
should not be taken into account in considering whether the 760 original order
was lawful, or whether the detention became unlawful after a particular period
of time. Two other points of a subsidiary nature were also raised, namely that
the order was bad as the period of detention was not specified therein as
appears to be required by section 12 and that the grounds given did not purport
to state that the authority making the order was the Governor of the State.
There is no substance in the last two points.
Section 12 of the Act does not require that the period of detention should be
specified in the order itself where the detention is with a view to preventing
any person from acting in any manner prejudicial to the maintenance of public
order. The section itself provides that he can be detained without obtaining
the opinion of an Advisory Board for a period longer than three months but not
exceeding one year from the date of detention. Normally, the detention period
shall not exceed three months, unless an Advisory Board reports before the
expiration of the said period that there is in its opinion sufficient cause for
such detention. See article 22, clause (4), sub-clause (a) of the Constitution.
Under sub-clause (7) (a) of the same article,
Parliament may by law prescrib, the circumstances under which, and the class or
classes of cases in which, a person may be detained for a period longer than
three months under any law providing for preventive detention without obtaining
the opinion of an Advisory Board in accordance with the provisions of
sub-clause (a) of clause (4)." Therefore, detention for more than three
months can be justified either on the ground of an opinion of the Advisory
Board sanctioning or warranting longer detention or on the ground that the
detention is to secure the due maintenance of public order, in which case it
cannot exceed one year in any event, as stated. in section 12 of the Preventive
Detention Act. It is thus clear that the period is not to exceed three months
generally, but may go up to one year in certain special cases. In view of these
provisions, the non-specification of any definite period 761 in the detention
order is not a material omission rendering the order itself invalid.
Under section 3 of the Preventive Detention
Act, the authority to make the order is the State Government. Section 166 (1)
of the Constitution provides that all executive action of the Government of a
State, shall be expressed to be taken in the name of the Governor. The orders
of detention expressly state that the Governor of Punjab was satisfied of their
necessity and that they were made by his order. The orders are signed no doubt
by the Home Secretary, but this is no defect. The communication of the grounds
need not be made directly by the authority making the order. Section 7 does not
require this. The communication may be through recognized channels prescribed
by the administrative rules of business.
Let us now turn our attention to the main
There is nothing strange or surprising in the
fact that the same grounds have been repeated after the lapse of several months
in both the cases, when it is remembered that the petitioners were under
detention and in jail during the whole of the intervening period. No fresh
activities could be attributed to them. There could only be a repetition of the
original ground or grounds, whether good or bad. It does not follow from this
that the satisfaction of the detaining authority was purely mechanical and that
the mind did not go with the pen. The past conduct or antecedent history of a
person can be taken into account when making a detention order, and, as a
matter of fact, it is largely from prior events showing the tendencies or
inclinations of the man that an inference could be drawn whether he is likely
even in the future to act in a manner prejudicial to the maintenance of public
order. If the authority satisfied himself that the original ground was still
available and that there was need for detention on its basis, no mala fides can
be attributed to the authority from this fact alone.
The Act does not fix the time within which
the grounds should be furnished to the person detained.
762 It merely states that the communication
must be "as soon as may be". This means reasonable despatch and what
is reasonable must depend on the facts of each case. No arbitrary time limit
can be set down. The delays in the communication of the grounds in the two
petitions have been adequately explained by the Home Secretary who says in this
affidavits that grounds had to be supplied to nearly 250 detenus and that the
printing of the necessary forms occupied some time.
According to him, he made an order even on
11-3-1950 for the supply of the grounds.
The extreme vagueness of the grounds is alone
left as the chief line of attack. As stated already, the original ground
communicated in Petition No. 149 of 1950 is "to create public disorder
amongst tenants in the Tehsil by circulating and distributing objectionable
literature issued by underground communists." In the other petition, the
ground is "In pursuance of the policy of the Communist Party you were
engaged in preparing the masses for violent revolutionary campaign and attended
secret party meetings to give effect to this programme." We shall leave
aside for the moment the supplementary grounds furnished later.
There can be little doubt that in both the
cases the grounds furnished in the first instance were highly vague.
If we had only Iswar Das's case to go by,
Petition No. 30 of 1950, such vagueness by itself would constitute a justification
for release of the petitioners. Since the date of that decision, however. this
Court had to consider the question at great length in two cases from Bombay and
Calcutta respectively--Cases Nos. 22 and 24 of 1950--where the subject of the
meaning and scope of section 7 of the Preventive Detention Act and article 22,
sub-clauses (5) and (6)of the Constitution of India. came up for elaborate
The said cases were decided on 25th January,
1951, and we are now governed by the principles laid down in these judgments.
It was held by a majority of the Judges in Case No. 22 of 1950 (1) State of
Bombay v. Atmaram Sridhar Vaidya  S.C.R. 167.
763 (a) that mere vagueness of grounds
standing by itself and without leading to an inference of mala fides or lack of
good faith is not a justiciable issue in a court of law for the necessity of
making' the order, inasmuch as the ground or grounds on which the order of
detention was made is a matter for the subjective satisfaction of the
Government or of the detaining authority; (b) that there is nothing in the Act
to prevent particulars of the grounds being furnished to the detenu within a
reasonable time, so that he may have the earliest opportunity of making a
representation against the detention order--what is reasonable time being
dependent on the facts of each case; (c) that failure to furnish grounds with
the speedy addition of such particulars as would enable the detenu to make a
representation at the earliest opportunity against the detention order can be
considered by a court of law as an. invasion of a fundamental right or
safeguard guaranteed by the Constitution, viz., being given the earliest
opportunity to make a representation;and (d) that no new grounds could be
supplied to strengthen or fortify the original order of detention.
We are not concerned so much with the earlier
history of the detenus as with what happened to them under the Preventive
Detention Act, 1950. OverloOking the fact that the ground mentioned In March
1950 was the same as that given in September 1949, and condoning the vagueness
in the original ground furnished in both the cases to support the making Of the
order, it is impossible to justify the delay of nearly four months in
furnishing what have been called additional or supplementary grounds, Let us
take up Petition No. 149 first. In the grounds furnished in July 1950, there
are several which do not apparently relate to the original ground. "You
were responsible for hartal by labourers working on Bhalera Dam in October
1947".... "You instigated labourers working in Nangal in 1948 to go
on strike to secure the acceptance of their demands" "After release
you absconded yourself from your village and 99 764 remained untraced for a
considerable period" .... "When you were re-arrested on 29-9-1949,
lot of objectionable communist literature was recovered from your personal
search"--are instances of new grounds, and they have to be eliminated
therefore from consideration. In Jagjit Singh's petition No. 167 of 1950, the
supplemental grounds, which are as many as ten in number, are dated 31-7-1950,
but they were served on him on 5-8-1950, that is two days after he had prepared
his petition to this court under article 32 of the Constitution. The grounds
may be taken as particulars of the general allegation made against him on
3-4-1950 when the original grounds of detention were served. But the time
factor to enable him to make a representation at the earliest opportunity was
not borne in mind or adhered to. In the affidavit of Shri Vishan Bhagwan, Home
Secretary to the Punjab Government, dated 6th September, 1950, no explanation
has been offered for this abnormal delay in the specification of the
particulars. This delay is very unfortunate indeed. But for its occurrence the
petitioner would not have been able to urge that one of the valuable rights guaranteed
to him by the Constitution has been violated.
It is not alleged b.y the Home Secretary that
the detenu was furnished with these particulars when he was arrested and
detained under the Provincial Act and that consequently it was considered
unnecessary to give him the same particulars once over. On the other hand, the
detenu's complaint has throughout been that he was given no particulars at all
till the 5th August, 1950.
As the petitioners were given only vague
grounds which were not particularised or made specific so as to afford them the
earliest opportunity of making representations against their detention orders,
and their having been inexcusable delay in acquainting them with particulars of
what was alleged. the petitioners have to be released, the rules being made
absolute. Ordered accordingly.
765 PATANJALI SASTRI J.--I concur in the
order proposed by my learned brother Chandrasekhara Aiyar J.
DAS J.--In view of the majority decision in
Case No. 22 of 1950 (The State of Bombay v. Atma Ram Sridhar Acharya), I concur
in the order proposed by my learned brother.
Petition No. 194 of 1950 Agent for the
petitioner: R.R. Biswas.
Agent for the respondent: P.A. Mehta.
Agent for the intervener: P.A. Mehta.
Petition No. 167 of 1950 Agent for the
petition: R.S. Narula.
Agent for the respondent: P.A. Mehla.