The State of Bombay Vs. Purushottam
Jog Naik  INSC 35 (26 May 1952)
BOSE, VIVIAN SASTRI, M. PATANJALI (CJ)
MAHAJAN, MEHR CHAND MUKHERJEA, B.K.
DAS, SUDHI RANJAN
CITATION: 1952 AIR 317 1952 SCR 674
CITATOR INFO :
R 1961 SC1381 (10) RF 1961 SC1762 (25) R 1962
SC 113 (32) R 1964 SC1823 (4,32) R 1967 SC 295 (6,57) RF 1967 SC1145 (16) F
1974 SC1957 (12) D 1987 SC 294 (38) R 1988 SC1987 (3) F 1988 SC2090 (32) R 1990
SC1361 (10) RF 1991 SC1557 (21)
Preventive Detention Act (IV of 1950), s.
3--Constitution of India, 1950, Art. 166--Order of detention--Form of
order--Order stating that Government is satisfied--Not stating expressly that
it is issued in the name of the Governor--Validity--Proof by other
evidence--Value of Secretary's evidence--Form of verification.
The material portion of an order of detention
made under 3 of the preventive Detention Act 1950, ran as follows:
675 "Whereas the Government of Bombay is
satisfied with respect to the person known as J. N ....... that with a view to
preventing him from acting in a manner prejudicial to the maintenance of public
order it is necessary to make the following order: Now, therefore, .........
the Government of Bombay is pleased to direct that the said J.N. be detained.
By order of the Governor of Bombay (Sd.)
V.T.D. Secretary to the Government of Bombay, Home Department".
The High Court of Bombay held that the order
was defective as it was not "expressed to be in the name of the
Governor" within the meaning of Art. 166 (1) and was not accordingly
protected by Art. 166 (2):
Held, that the order was not defective merely
because it stated that the Government of Bombay was satisfied and that the
Government of Bombay was pleased to direct that J.N. be detained, and, though
the addition of the words "and in his name" to the words "By
order of the Governor of Bombay" would have placed the matter beyond
controversy, the order was really one expressed to be taken in the name of the
Governor of Bombay within Art. 166.
Held further, that, assuming that the order
was defective it was open to the State Government to prove by other means that
such an order has been validly made. It is not absolutely necessary in every
case to call the Minister in charge; if the Secretary or any other person has
the requisite means of knowledge and his affidavit is believed, that will be
Verification should invariably be modelled on
the lines of O. XIX, r. 3, of the Civil Procedure Code, whether the Code
applied in terms or not, and when the matter deposed to is not based on
personal knowledge the sources of information must be clearly disclosed.
APPELLATE JURISDICTION:Case No. 30 of 1950.
Appeal under Art. 132 (1) of the Constitution of India from the Judgment and
Order dated 24th October, 1950, of the High Court of Judicature at Bombay
(Bavdekar and Vyas JJ.) in Criminal Application No. 1003 of 1950.
M.C. Setalvad (Attorney-General for India)
and C.K. Daphtary (Solicitor-General for India), with G.N. Joshi for the appellant.
Respondent ex parte.
676 1952. May 26. The judgment of the Court
was delivered by Bose J .... This is an appeal from an order of the Bombay High
Court directing the release of the respondent who had been detained under
section 3 of the Preventive Detention Act of 1950.
'The learned Attorney-General states at the
outset that Government does not want to re-arrest the respondent but merely
desires to test the High Court's decision on certain points which will have
far-reaching effects on preventive detentions in the State of Bombay. Following
the precedent of their Lordships of the Privy Council in King-Emperor v. Vimlabai
Deshpande(1) we proceed to decide the appeal but direct that the respondent
shall not in any event be rearrested in respect of the matters to which the
The respondent was originally arrested under
an order of the District Magistrate, Belgaum, dated the 26th February, 1950,
though he was then beyond the jurisdiction of that authority. On the 11th of
.July, 1950, the Bombay High Court held that a detention of that kind was
invalid. The decision was given in the case of In re GhateC-(2). This
necessitated a review of 57 cases, among them the respondent's. Orders were
passed in all those cases on the 17th of July, 1950. About 52 of the detenus
were released and in the remaining cases fresh orders of detention were passed
by the Government of Bombay.
In the respondent's case the order was in
"Whereas the Government of Bombay is
satisfied with respect to the person known as Shri Purushottam Jog Naik of Ulga
Village, Taluka Karwar, District Kanara, that with a view to preventing him
from acting in a manner prejudicial to the maintenance of public order, it is
necessary to make the following order:
Now, therefore, in exercise of the powers
conferred by sub-section (1.) of section 3 of the Preventive (1) I.L.R. 1946
Nag. 651 at 655. (2) (1950) 52 Bom. L.R. 711.
677 Detention Act, 1950 (No. IV of 1950), the
Government of Bombay is pleased to direct that the said Shri Purushottam Jog
Naik be detained.
By order of the Governor of Bombay, Sd/--V.
T. Dehejia, Secretary to the Government of Bombay, Home Department.
Dated at Bombay Castle, this 17th day of
July, 1950." He was served with the grounds of detention on the 26th of
July, 1950, and with a fuller set on the 9th of August.
The original grounds were as follows:
"In furtherance of your campaign for
non-payment of rent, you were instigating the people in the Belgaum District to
commit acts of violence against landlords.
``In all probability, you will continue to do
so." The second set gave the following additional particulars:
"The people in Belgaum District, whom
you were instigating to commit acts of violence against landlords in furtherance
of your campaign for non-payment of rent, were the tenants in Hadalge and round
about villages in the Khanapur Taluka of Belgaum District, and the said
instigation was carried on by you for some months till your arrest in April,
1949." On the 24th of August, 1950, the respondent applied to the Bombay
High Court under section 491 of the Criminal Procedure Code for an order of
release. He succeeded, and the appeal is against that order.
The first ground on which the learned High
Court Judges proceeded was that the detention order of the 17th July was
defective as it was not expressed in proper legal form. The basis of their
reasoning is this.
Article 166(1) of the Constitution requires
that-" All executive action of the Government of a State shall be expressed
to be taken in the name of the Governor." It will be seen that the order
of detention states in the preamble 678 `` Whereas the Government of Bombay is
satisfied..." and the operative part of the order runs" Now,
therefore ...... the Government of Bombay is pleased to direct etc." It
does not say that the Governor of Bombay is pleased to direct. The learned
Judges held that this is not an order expressed to be made in the name of the
Governor and accordingly is not protected by clause (2) of article 166. They
conceded that the State could prove by other means that a valid order had been
passed by the proper authority, but they held that the writing, (Record No. 3),
which purports to embody the order, cannot be used to prove that a valid order
was made because the formula set out in article 166(1) was not employed. We are
unable to agree.
Now we do not wish to encourage laxity of
expression, nor do we mean to suggest that ingenious experiments regarding the
permissible limits of departure from the language of a Statute or of the
Constitution will be worthwhile, but when all is said and done we must look to
the substance of article 166 and of the Order.
The short answer in this case is that the
order under consideration is "expressed" to be made in the name of
the Governor because it says "By order of the Governor." One of the
meanings of "expressed" is to make known the opinions or the feelings
of a particular person and when a Secretary to Government apprehends a man and
tells him in the order that this is being done under the orders of the
Governor, he is in substance saying that he is acting in the name of the
Governor and, on his behalf, is making known to the detenu the opinion and
feelings and orders of the Governor. In our opinion, the Constitution does not
require a magic incantation which can only be expressed in a set formula of
What we have to see is whether the substance
of the requirements is there.
It has to be remembered that this order was
made under the Preventive Detention Act, 1950, and therefore had to conform to
its terms. Section 3 of the Act provides that the State Government may, if
satisfied, 679 "make an order directing that such person be detained."
It is true that under section 3 [(43 a) (a)] of the General Clauses Act the
words "the State Government" mean the Governor, but if that be so,
then the expression must be given the same meaning in the order which merely
reproduces the language of section 3, not indeed because the General Clauses
Act applies to the order (it does not) but because the order is reproducing the
language of the Act and must therefore be taken to have the same meaning as in
the Act itself, particularly as the order concludes with the words, " By
order of the Governor of Bombay." It will be noticed that section 3 of the
Preventive Detention Act enables certain authorities specified by it to make
orders of detention. These include, not only State Governments but also the
Central Government, any District Magistrate or Sub-Divisional Magistrate and
certain Commissioners of Police. The list does not include the Governor of a
State. Now, though the term "State Government" appearing in an
enactment means the Governor of the State, there is no provision of law which
equates the term Governor with the State Government of which he happens to be
the head. On the contrary, the Constitution invests him with certain functions
and powers which are separate from those of his Government. It was therefore
appropriate that the order in this case should have set out that the Government
of Bombay was satisfied and not some other authority not contemplated by the
Act and that that Government directed the detention. It was also proper that
the order should have been executed under the orders of the Governor
authenticated, under the rules, by the signature of the Secretary. It is true
that addition of the words "and in his name" to the words "By
order of the Governor of Bombay" would have placed the matter beyond
controversy but we are unable to see how an order which purports to be an order
680 of the Governor of'BombaY can fail to be otherwise than in his name. If A
signs his name to a communication that communication goes out in his name.
Equally, if he employs an agent to sign on his behalf and the agent states that
he is signing under the orders of A, the document still goes forth in the name
of A. In our opinion, the High Court was wrong on this Point The next step in
the High Court's reasoning was this.
The learned Judges held that the writing
produced as the order did not prove itself because of the defect we have just
considered but that nevertheless it was open to the State Government to prove
by other means that such an order had been validly made. The learned Judges
therefore called upon Government to make an affidavit setting out the facts.
An affidavit was made by the Home Secretary
but the learned Judges were not satisfied and asked for a further affidavit.
The Home Secretary thereupon made a second
one but the learned Judges were i still not satisfied and considered that the
Minister in charge should have made an affidavit himself.
We do not intend to discuss this matter
because once an order of this kind is unable to prove itself and has to be
proved by other means it becomes impossible to lay down any rule regarding
either the quantum of evidence necessary to satisfy the Court which is called
upon to decide the question or the nature of the evidence required. This is a
question of fact which must be different in each case. Of course, sitting as a
court of appeal, it would have been necessary for us to decide this had we
reached a different conclusion on the first point and had the State Government
desired the re arrest of the respondent. But as we are only asked to deal with
general principles, all we need say as regards this is that it is not necessary
in every case to call the Minister in charge. if the Secretary. or any other
person, has the requisite means of knowledge and his affidavit is believed,
that will be enough.
681 We wish, however, to observe that the
verification of the affidavits produced here is defective. 'The body of the
affidavit discloses that certain matters were known to the Secretary who made
the affidavit personally. The verification however states that everything was
true to the best of his information and belief. We point this out as slipshod
verifications of this type might well in a given case lead to a rejection of
the affidavit. Verifications should invariably be modelled on the lines of
Order XIX, rule 3, of the Civil Procedure Code, whether the Code applies in
terms or not. And when the matter deposed to is not based on personal knowledge
the sources of information should be clearly disclosed. We draw attention to
the remarks of Jenkins C.J.
and Woodroffe J. in Padmabati Dasi v. Rasik
Lal Dhar(1) and endorse the learned Judges' observations.
In fairness to the Home Secretary we deem it
right to say that his veracity was neither doubted nor impugned by the High
Court, but only his means of knowledge. He was speaking of the
"satisfaction" of the Minister and the High Court was not satisfied
regarding his knowledge of the state of the Minister's mind. The learned Judges
considered that the Minister himself would have been a more satisfactory source
of information, but as we say, this is not a question of law. As a matter of
abstract law, of course, the state of man's mind can be proved by evidence
other than that of the man himself, and if the Home Secretary has the requisite
means of knowledge, for example, if the Minister had told him that he was
satisfied or he had indicated satisfaction by his conduct and acts, and the
Home Secretary's affidavit was regarded as sufficient in the particular case,
then that would constitute legally sufficient proof. But whether that would be
enough in any given case. or whether the' 'best evidence rule" should be
applied in strictness in that particular case, must necessarily depend upon its
facts. In the present case, there was the element that 57 cases were dealt with
in the course of 6 days (1) (1910) I.L.R. 37 Cal. 259.
682 and orders passed in all on one day. But
we do not intend to enter into the merits. All we desire to say is that if the
learned Judges of the High Court intended to lay down as a proposition of law
that an affidavit from the Minister in charge of the department is
indispensable in all such cases, then they went too far.
The learned Attorney-General contended that
the Minister in charge could not be asked to divulge these matters because of
article 163 (3) of the Constitution. We donor decide this question and leave it
Another point which was argued related to the
privilege which the Home Secretary claimed on behalf of the State Government
under article 22 (6) of the Constitution. Government disclosed certain facts in
the grounds furnished to the detenu and claimed privilege regarding the rest of
the facts in its possession. In-our opinion, the grounds supplied were
sufficiently specific and they could form a proper basis for the
"satisfaction" of the Government. As regards the rest, Government has
claimed privilege in the affidavit of the Home Secretary on the ground of
public interest. This raises further questions which we do not intend to
examine as the respondent is not to be re-arrested.
The order of release was, in our opinion,
wrong, but in view of Government's undertaking not to re-arrest the respondent,
we direct that he be not re-arrested in respect of the matters to which this
Order of High Court set aside.
Agent for the appellant: P.A. Mehta.