Sushil Kumae Singha v. Government of West Bengal — 1949 DIGILAW 170 (CAL)

JUDGMENT Chunder, J. - This is an application u/s 491 of the Code of Criminal Procedure by one Anil Kumar Singha alleging that his brother Sushil Kumar Singha was arrested on March 24, 1949, at 87, Chowringhee and has since then been kept under illegal detention. He prays that his brother should be set at liberty as the detention is illegal. The Deputy Legal Remembrancer has produced before us the order passed u/s 16(2) of the West Bengal Security Act (III of 1948), as amended by the West Bengal Security (Amendment) Act, XIX of 1948. He has been good enough to produce the entire confidential file before the Court and we have gone through it. It now appears--and this is not disputed--that Sushil Kumar Singha was arrested on March 24, 1949, u/s 30(2) and on April 2, 1949, that is, within the period of much less than that allowed under the section, the order u/s 16(2) for detention of Sushil Kumar Singha till July 22, 1949, was passed. It further appears that the order was sent for service on Sushil Kumar Singha by a special messenger at 2-45 p.m. on April 2, 1949, at the Presidency Jail, where he was then lodged. It further appears that actual service was effected on April 3, 1949 and the grounds and particulars required u/s 18 of the Act were also supplied to him and actually served on April 3, 1949. 2. We have heard Mr. Sadhan Chandra Gupta on behalf of the Petitioner and the Advocate-General on behalf of the Government at great length. The statement of facts, we have given, would show that there was no force in the contention urged by Mr. Gupta that there was no publication u/s 26 of the Act. As the petition was filed before the service of the notice upon the Petitioner's brother, there was naturally this error. It is, therefore, unnecessary for us to decide now whether noncompliance with Section 26 of the Act will make the order passed u/s 16(2) invalid. Had it been necessary for us to decide it, we would have pointed out Clause (3), Sub-clause (ii) of the same section, which says that a failure to comply with Clause (1) of Section 26 as regards publication and service of notices, shall not affect the validity of the order. 3. Mr. Had it been necessary for us to decide it, we would have pointed out Clause (3), Sub-clause (ii) of the same section, which says that a failure to comply with Clause (1) of Section 26 as regards publication and service of notices, shall not affect the validity of the order. 3. Mr. Gupta has raised the question whether the West Bengal Security Act of 1948 is ultra vires the Provincial Legislature. A Full Bench of this High Court has decided in the case of Satya Prasanna Das Gupta v. Province of West Bengal ILR (1949) Cal. 95 that the West Bengal Security Act of 1948, as it then stood, i.e., prior to the amendment by Act XIX of 1948, was intra vires the Provincial Legislature. It is unnecessary for us to reiterate what has been said in that decision. The pith and substance of the Act brought it within items 1 and 2 of List II of the Seventh Schedule of the Government of India Act, 1935 (25 and 26 George V Clause 42). We are not only bound by the decision of the Full Bench, but, if we may say so, we very respectfully agree with the same. 4. Mr. Gupta's next argument was that, as far as that decision goes, even if we accept it as correct, as we have done, it was not considered in that decision whether the detention dealt with by the legislature under that Act was preventive detention or arbitrary detention and he has based his argument upon a decision of the Patna High Court in the case of Muratpatwa v. Province of Bihar ILR (1947) Pat. 628 where such a distinction appears to have been attempted to be drawn by the Patna High Court. It would appear from that decision that no final opinion was given. Mr. Gupta has urged that distinction and asked for reference to a Special Bench. We have not been able to consider his contention sound. The distinction is not between preventive detention and arbitrary detention, but between "preventive" detention and "punitive". We take it that by "arbitrary" is meant "without legal justification". A Court has to do with legality and not ethical or political considerations. To decide whether a piece of legislation is ultra vires the only question to be considered is whether it is within the ambit of the legal powers of that legislature. We take it that by "arbitrary" is meant "without legal justification". A Court has to do with legality and not ethical or political considerations. To decide whether a piece of legislation is ultra vires the only question to be considered is whether it is within the ambit of the legal powers of that legislature. The exercise of its own powers by an authority or a person vested with the same by the legislation may be an abuse of its powers or may be illegal, but this does not affect the validity of the legislation itself which depends upon the competence of the legislature to enact that particular legislation. How a particular power under the law is exercised by some one else, whether the provision of the law is construed as mandatory or directory, is a question which the Court will determine in deciding upon the validity of that particular exercise of power by the authority or the person, but this does not render the legislation itself ultra vires if it is within the ambit of the powers conferred upon that legislature. To confuse between the ultra vires character of the legislation itself and the illegality of an exercise of power under that particular law by some one is only muddled thinking. The distinction is clear and definite. 5. We are, therefore, unable to hold that the. Provincial legislature was not competent to pass the West Bengal Security Act. Its pith and substance brings it within items 1 and 2 of List II of the Seventh Schedule and in Section 16 preventive detention to deter a person from commission of subversive acts is provided for and this is necessary for maintenance of public order. 6. It has next been argued by Mr. Gupta that, even if the Act, as originally framed and passed, was within the competence of the legislature, the subsequent amendment by the amending Act SIX of 1948 has rendered the Act ultra vires the legislature, as far as preventive detention u/s 16 is concerned. His contention, briefly, is that, u/s 16, preventive detention is to be for a subversive act. Subversive act is not any subversive and every subversive act in its dictionary meaning but subversive act as defined in Section 2(7). We agree with this. His contention, briefly, is that, u/s 16, preventive detention is to be for a subversive act. Subversive act is not any subversive and every subversive act in its dictionary meaning but subversive act as defined in Section 2(7). We agree with this. He urges that, in connection with the definition of subversive acts mentioned in Section 2(7), two things have been defined in two other clauses of the same section. These are "essential commodity" defined in Section 2(1) and "public servant" defined in Section 2(6). He urges further that in Section 2(7) in connection with the definition of subversive acts an "explanation" has been given. By the amending Act XIX of 1948 the explanation has been further added to and some changes have been made in the definitions of essential "commodity" and "public servant". "Essential commodity" as now defined runs thus: Essential commodity means food, water, fuel, light or power and includes such other thing as may be declared by the Provincial Government by notification to be essential for the life of the community. 7. Then again "public servant", as now defined, has the following addition: and any person engaged in any employment or class of employment which the Provincial Government may, from time to time, declare to be employment or class of employment essential to the life of the community. 8. It is clear that if the Provincial Legislature has the power to declare what is "essential for the life of the community", then it can vest its own power of making such declaration in the Provincial Government. Mr. Gupta has contended that it is wrong to vest such wide powers in the executive without the supervisory control of the Court. This is not a matter for us, not being a matter of law, but is a matter of policy and of the trust reposed in the executive by the legislature. With these the Court is not concerned. 9. Mr. Gupta has next contended that the Provincial Legislature itself has not got the right to declare anything to be an essential commodity with respect to preventive detention u/s 16 of the Act so long as that commodity has not such a necessary connection with the maintenance of public order as the Court can decide to be absolutely essential. 9. Mr. Gupta has next contended that the Provincial Legislature itself has not got the right to declare anything to be an essential commodity with respect to preventive detention u/s 16 of the Act so long as that commodity has not such a necessary connection with the maintenance of public order as the Court can decide to be absolutely essential. He takes the example of pianos and contends that the legislature or the Provincial authority may, under the Act, as it now stands, declare pianos to be an essential commodity as essential for the life of the community. In his opinion, an interference with the distribution or supply, etc., of pianos will not be a subversive act, which should be prevented by detention for maintenance of public order. There appears to be a good deal of confusion of thought in the argument. Maintenance of public order has to take into account what is essential for the life of the community, as public order is jeopardised if the life of the community is in danger. It is for the legislature to decide what is in the particular circumstances and at that particular time essential for the life of the community and not for the Court. As it is a matter within the ambit of the power of the legislature it can decide this itself or delegate the power to some one trusted by it. Whether the legislature, should thus delegate the task to some one else is entirely for its decision. If the delegated authority exercises the power mala fide, the Court can interfere with such mala fide act, because mala fide, exercise of power is no exercise of power and renders such act liable to be set aside by the Court. This is not the same thing as the competence of the legislature itself. As we have already pointed out, the ultra vires nature of a piece of legislation is entirely different and distinct from the illegality of any act done by virtue of authority or power given by that piece of legislation. 10. If this distinction is kept in view, neither of the two changes mentioned before affects the competence of the Provincial Legislature to pass this Act even as amended. 10. If this distinction is kept in view, neither of the two changes mentioned before affects the competence of the Provincial Legislature to pass this Act even as amended. As regards exclusion of illegal strikes in the "Explanation", it is again for the legislature to decide whether illegal strikes and lock-outs in connection with industrial disputes, coming within Section 24 of the Industrial Disputes Act, 1947, are likely to lead to disturbance of public order. If it so decides and includes them within subversive acts the legislature acts entirely within the ambit of its legal power and the piece of legislation passed by it is entirely intra vires it. 11. Under the circumstances, therefore, there is no force in the contention urged by Mr. Gupta that the amending Act XIX of 1948 makes the "West Bengal Security Act ultra vires the Provincial Legislature. It's pith and substance still bring it within items 1 and 2 of list II of the Seventh Schedule. 12. Mr. Gupta's next contention is that the order for detention passed u/s 16 of the Act is not in compliance with the Act. The Act requires that if the Government is "satisfied" with respect to any person that "with a view to preventing him from "doing any subversive act it is necessary so to do, it may make "an order directing that he be detained". Mr. Gupta's contention is that the satisfaction must be "reasonable satisfaction", that is, the Government must be "reasonably satisfied". "We agree that this is a proper interpretation. "We agree that irrational satisfaction is certainly not contemplated by the legislature. This does not mean that, when the Government declares itself to be satisfied, the Court would enter into the grounds of such satisfaction. The declaration by the Government that it is satisfied is sufficient. There is a presumption of regular performance of official acts. Omnia praesumuntur rite esse acta. It is for the person who challenges it to show that the Government was not reasonably satisfied. Mr. Gupta contends that whether the Government was reasonably satisfied may appear from the fact that the Government did not apply its mind to the matter. We agree that if the Government did not at all apply its mind it could not be said to have been satisfied, as satisfaction is a subjective act. Mr. Mr. Gupta contends that whether the Government was reasonably satisfied may appear from the fact that the Government did not apply its mind to the matter. We agree that if the Government did not at all apply its mind it could not be said to have been satisfied, as satisfaction is a subjective act. Mr. Gupta next contends that unless the particular kind of subversive act is mentioned in the order of detention it cannot be said that the Government applied its mind and if it did not apply its mind it certainly cannot be said that it was reasonably satisfied. The contention is not sound. Government is not called upon u/s 16 to state the grounds nor the particular kind of subversive act it considers the person to be detained is going to do and so should be prevented from doing by preventive detention. For the prevention of "any" subversive act which falls within Section 2(7) the Government may order detention. "Any" is indeterminate. As far as the grounds and particulars are concerned, they are dealt with u/s 18 of the Act. It is not necessary in an order for detention u/s 16 of the Act to specify a particular subversive act or acts and non-mention of such act or acts does not show that the Government did not apply its mind and so was not reasonably satisfied. 13. Mr. Gupta nest contends, basing his argument upon the Full Bench decision of the Patna High Court, in the case of Nek Mohammad and Others Vs. The Province of Bihar, AIR 1949 Patna 1 that there is noncompliance with Section 18 of the West Bengal Security Act (which generally corresponds, but not in all particulars, with Section 4 of the Bihar Act), if there is any the least vagueness in the grounds or if full details are not given as particulars and such noncompliance makes the order, as originally passed, invalid and of no force. We are unable again to accept this contention. First of all, in the present case, as a matter of fact, on looking into the charges giving the grounds and particulars, we are not in a position to say that they are not of such sufficient fullness as will not justify preventive detention nor enable any reasonable person to make a proper representation of his own case. First of all, in the present case, as a matter of fact, on looking into the charges giving the grounds and particulars, we are not in a position to say that they are not of such sufficient fullness as will not justify preventive detention nor enable any reasonable person to make a proper representation of his own case. Secondly, it must be pointed out that Section 18 makes a distinction between grounds for detention and particulars of charge as is shown from the mention in the section itself of "grounds on "which the order has been made and such other particulars as "are in the opinion of such authority sufficient to enable him to "make, if he wishes a representation against the order". It will serve no useful purpose to confuse between grounds and particulars as Mr. Gupta in his argument did. They are distinct and different. The grounds are the grounds on which the Government made the order and the Government is required under this section to disclose the grounds "in so far as they are "not against the public interest". This would show that there may be some vagueness if such disclosure is considered by the Government to be against public interest. It is for the Government to consider how far the grounds can or cannot, in the public interest, be fully disclosed. The very object of the legislation will be fraustrated if the Court were to substitute its own judgment in place of that of the Government, as the legislature has definitely and deliberately authorised the Government not to disclose whatever is against the public interest to disclose. 14. As regards the particulars also, they are to be "such as are "in the opinion of such authority sufficient to enable him to make "a representation". It is, therefore, not very sound, in our opinion, to say that the particulars must be such as the Court will order disclosure of under the CPC in a civil suit in case of fraud or undue influence, etc., or which are to' be supplied under the Code of Criminal Procedure in case of a criminal charge. There is no justification as far as the Bengal Act is concerned to drag in either of the two Codes and if we may say so without disrespect, it will be ridiculous to do so in view of the section itself. There is no justification as far as the Bengal Act is concerned to drag in either of the two Codes and if we may say so without disrespect, it will be ridiculous to do so in view of the section itself. The keynote of the section is the public interest and sufficiency of disclosure must depend upon the public interest and the question of the public interest is left to the decision of the Government as the section will show. Consistently with the public interest such fullness of particulars should be given as would place the person detained in a position to be able to make a representation in his own favour and meet the charges as far as possible so that the Judge (referred to in Section 17) may consider his case properly. 15. We may point out that the "West Bengal Act and the Bihar Act are different in this respect. The scheme of the "West Bengal Act is that u/s 16 the Government passes an order of detention if it is "satisfied" as to its necessity to prevent "any subversive act". The validity of this order u/s 16 depends entirely upon the satisfaction of the Government on the materials before it. It is not for the Courts to enquire into the grounds for such satisfaction nor what the materials are nor whether they are sufficient. Nest comes the stage of giving the detenu, i.e., the person ordered to be detained, an opportunity to make a representation against the order and offer any explanation he may like about the charges against him. For this purpose the grounds and particulars, as far as may be safely disclosed in the public interest, are to be supplied to him. If and when he makes any representation, or if the Government wants the period of detention to be increased, the case is to be put before a Judge to whom the representation is sent for consideration and the Government has also to place before him, all the materials in its possession. The Judge is then to decide whether he should order the release of the person or extend the period of detention. Unless the Government itself decides to release the detenu or the Judge orders release or increases the period of detention the order for detention cannot be interfered with. The Judge is then to decide whether he should order the release of the person or extend the period of detention. Unless the Government itself decides to release the detenu or the Judge orders release or increases the period of detention the order for detention cannot be interfered with. The Bengal Act lays down that "Save as thus provided in Section 17 of the Act, an "order made u/s 16(7) shall be in force for such period "not exceeding nine months as may be specified in the order". The representation u/s 18 is, therefore, in connection with the consideration of his case by the Judge u/s 17 and it is not, as far as the Bengal Act is concerned, in view of the clear provision of Section 17, open to a Court to order the release of a person whose detention has been ordered u/s 16 within the period of his detention which may extend up to nine months even though Section 18 is not complied with, provided the order u/s 16 was validly passed. There is absolutely no section in the Bihar Act corresponding to Section 17 of the Bengal Act. It is, therefore, unnecessary for us to consider whether the Bihar High Court was or was not right in ordering the release of the detenu because grounds and particulars communicated were considered by it to be vague and insufficient. Under the Bengal Act if the grounds and particulars communicated are alleged to be insufficient or vague, it will be for the Judge u/s 17 to consider this and unless the Judge orders release under that section the order of detention passed u/s 16 will remain in force in view of the clear provision in Section 17 of the West Bengal Act. We are, therefore, unable to accept Mr. Gupta's contention that we should order the release of the detenu in view of the alleged non-compliance with the provisions of Section 18 of the Act. We have already pointed out that, in fact, there has been no non--compliance and we have now pointed that in case of noncompliance the remedy is not to set aside the original order of detention passed u/s 16. The remedy lies with the Judge u/s 17 of the Act and it is for him to decide whether the detenu should or should not be released. 16. Mr. The remedy lies with the Judge u/s 17 of the Act and it is for him to decide whether the detenu should or should not be released. 16. Mr. Gupta has finally raised the question of the arrest and detention u/s 30(2) prior to the passing of the order u/s 16(2). He has drawn our attention to a decision of this Court in the case of Ramjiban Bhattacharya v. Province of West Bengal ILR (1949) Cal. 539 in which it was decided that this Court has jurisdiction to decide the question whether the arrest and detention of the prisoner u/s 30(2) was illegal or legal even when a valid order for detention has been properly passed u/s 16(2) before the Court decides the application for release of the prisoner u/s 491 of the Code of Criminal Procedure. The Court then proceeded to decide on the insufficient materials before it and in spite of the protest of the Advocate-General, that the arrest and detention u/s 30(2) by the police was not justified in law, but further pointed out that as a valid order for detention u/s 16(2) was in existence when they were deciding the habeas corpus application they were not legally competent to order the release of the detenu u/s 491 of the Code of Criminal Procedure. Mr. Gupta has asked us to do the same thing. As far as jurisdiction is concerned it is clear that this Court has jurisdiction to decide the question of arrest and detention u/s 30(2) in an application u/s 491 of the Code of Criminal Procedure. It is not a question of jurisdiction merely--there is the further question whether such decision is necessary and expedient. If it is necessary to decide the question in order to give relief u/s 491 of the Code, the Court must decide it. It will be failing in its duty to protect the liberty of the subject if it does not do so. But if, whatever may be the decision, the question of relief u/s 491 of the Code is not affected, then the Court has to consider whether it is expedient to give an unnecessary decision. 17. We agree with, the previous decision that if a valid order of detention has been passed u/s 16(1) of the Act, the Court cannot order a release of the detenu u/s 491 of the Code. 17. We agree with, the previous decision that if a valid order of detention has been passed u/s 16(1) of the Act, the Court cannot order a release of the detenu u/s 491 of the Code. A decision as to whether the arrest and detention u/s 30(1) were legal will be infructuous in such case. A Court does not do any infructuous thing. If a person is illegally arrested or detained he has a remedy in a suit for damages for the tort committed. The Court acting u/s 491 of the Code of Criminal Procedure has no jurisdiction to give relief in damages for a tort that may have been committed. Therefore, instead of giving a decision on a point without having the power to grant the consequential relief in accordance with its decision, the Court should leave it to the proper civil Court to decide the question upon fuller materials in a civil suit for damages in tort for illegal arrest and detention. In such a case, not only a decision, but also the appropriate relief can be given. ' We do not consider it desirable or expedient to give an infructuous decision which cannot be followed up by giving relief and we consider that, deciding the matter in a summary manner on insufficient materials, the Court may be laying itself open to lowering of its own position, if a contrary decision on fuller materials is given by another Court, which may in many cases be subordinate to it, in the civil suit. An unenviable position like this should be avoided, where possible. We, therefore, do not think it necessary and expedient to enter into the question whether the detention u/s 30(1) was legal or not. There is now a valid order of detention u/s 16(1) of the West Bengal Security Act (III of 1948), as amended by Act XIX of 1948 and as the detention at present is not, therefore, illegal, the application u/s 491 of the Code of Criminal Procedure must fail and it is accordingly rejected. 18. Certificate u/s 205 of the Government of India Act, 1935, is asked for and is granted. Blank, J. 19. I agree.