Haqiqatullah Khan v. State — 1950 DIGILAW 108 (RAJ)

Nawal Kishore, C.J.— This court has been moved by Haqiqatullah Khan for action being taken under section 491 of the Criminal Procedure Code on the ground that bis detention in the Central Jail of Jodhpur under the orders of the Rajasthan Government was illegal and improper. 2. A few facts may be stated to show how the question involved in this petition arises. On 10th of December 1949 an order was passed by the Government of United State of Rajasthan that it was satisfied that with a view to prevent the petitioner from acting in a manner prejudicial to public safety, the maintenance of public order and communal harmony, it was necessary to detain him. An order was accordingly passed that he shall be arrested forthwith and detained in Jail for a period of six months from the date of his arrest. It is alleged in the petition that he was actually arrested under the Rajasthan Public Security Ordinance of 1949 on nth of December 1949. On 26th of January 1950, the Constitution of India came into force and according to Art. 13(1). all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they were inconsistent with the provisions of Part III became, to the extent of such inconsistency, void. According to Art. 22 Clause (4) of the Constitution of India, a person could not be detained under the Preventive Detention Act for a longer period than three months. By Clause (7), it was provided that the Parliament may by law prescribe the circumstances under which a person may be detained for a period longer than three months. It became necessary, therefore, that the Parliament should legislate and amend the law relating to preventive detention with the result that on 25th of February 1950, the Preventive Detention Act No. IV of 1950 was enacted and it was expressly provided in section 12 that a person may be detained for a period longer than three months but not exceeding one year from the date of his detention. The result of this enactment was that on 26th of February 1950 a fresh order of detention was drawn up and served upon the petitioner. In this order, it was stated that the petitioner was being detained in order to prevent him from acting in a manner prejudicial to the security of the State. The result of this enactment was that on 26th of February 1950 a fresh order of detention was drawn up and served upon the petitioner. In this order, it was stated that the petitioner was being detained in order to prevent him from acting in a manner prejudicial to the security of the State. The period of detention was not mentioned in this order. The period was specified by another order passed on 4th of July 1950 according to which the petitioner was to be detained for nine months beginning from 29th of February 1950. Under the first order of detention dated 10th of December 1949 the Government furnished to petitioner the various grounds on which the order of detention had been made. These grounds run as follows: — (i) The said Shri Haqiqatullah Khan was an extreme communist and his activities were calculated to promote feelings of enmity and hatred between Muslims and Hindus. (ii) he was in league with some anti-Indian elements in Pakistan and was in secret communication with them. He had been requesting them to get some people ready who could return to Marwar and settle there with a view to assist him in his anti-Indian and anti-Hindu activities; (iii) he used to visit Barmer and the border terminus railway station on the Jodhpur State Railway, Munaboa frequently on the pretext of being an importer of certain goods from Pakistan. (iv) He had secret discussions and meetings with the Muslims of Nagaur and Roal. He exhorted the Muslims to unite and make a firm stand against the Hindus. He further asked them to keep arms and ammunition in order to meet the Hindu menace, otherwise he said the days were not far off when Muslim houses in Marwar would be looted and their women would be dishonoured. He got those present to sign the pledge. As a result of such speeches communal riot took place at Roal and Nagaur. On search by a local Police, loaded guns, ammunitions and swords and Frasas were discovered in the houses of some Muslims; (v) he visited Merta where he delivered similar speeches; (vi) in the opinion of the Government his remaining at large would constitute a grave danger to the public safety, the maintenance of public order and communal harmony. 4. This was done practically on the same day on which the order of detention was passed. 4. This was done practically on the same day on which the order of detention was passed. The second order of detention was passed on 26th of February 1950, but for reasons which have not been explained, the grounds of detention were not communicated to the petitioner till the 21st of March 1950. The petitioner complained in this court by means of an affidavit dated 8th of July 1950 that the grounds of his detention were read over to him on 21st of March 1950 by the Superintendent, Jail and after he had made an endorsement received one copy, the Superintendent had refused to supply the copy to him. Thereupon, the Superintendent, Central Jail, was called to explain by means of an affidavit how the matter stood. The affidavit furnished by him is on the record and it is clear from a perusal of it that although a copy could not be given him according to the rules of the Jail, he was allowed to see the grounds on many occasions and had made use of the memorandum containing the grounds of his detention frequently before drafting the representation to the Government. The affidavit further points out that copy of the grounds of his detention was never asked for either by the petitioner or by his counsel and that copies of the detention orders dated nth of December 1949 and 26th of February 1950 were supplied to the latter on 6th of June 1950 on a demand by him. It appears from the record that the petitioner had already retained a counsel who drafted his representation to the Government on 3rd of May 1950. Another representation was drafted by the petitioner himself and is a very lengthy document covering nearly 3-1/4 foolscap pages and deals with all the grounds one after another in detail. It is not necessary to set out over again the grounds which had been read out to the petitioner on 21st of March 1950 as they are identical with those given above. By means of a letter dated 7th of June 1950, the petitioner was informed that his representation had been rejected by the Government. It is not necessary to set out over again the grounds which had been read out to the petitioner on 21st of March 1950 as they are identical with those given above. By means of a letter dated 7th of June 1950, the petitioner was informed that his representation had been rejected by the Government. On 12th of June 1950, the petitioner filed the present petition under section 491 Criminal Procedure Code in this court and the following grounds have been specifically raised by him:— (1) That since in the detention order dated 27th of February 1950 the period of detention was not disclosed, the detention after the expiry of six months was illegal and improper. (2) That the grounds of detention were read over to the petitioner on 21st of March 1950 but inspite of a demand, a copy of the grounds was not supplied to him. The petitioner could hardly recollect the charges against him and the result was that he was deprived of the right of making any representation refuting the charge. The government by not supplying a copy of a grounds did not comply with a mandatory provision of the law and, therefore, the detention of the petitioner was illegal. (3) That the petitioner was in custody since 10th of December 1949 and under section 12 of the Preventive Detention Act of 1950 it was incumbent upon the Government to review the detention order but that since this had not been done, further detention of the petitioner was illegal. (4) That the grounds of his detention were vague, indefinite, incomplete and false. 5. This petition was supported by an affidavit. The reply of the Government is:— (1) That the detention of the petitioner is not illegal merely because the period of detention is not mentioned in the order. The period of detention was specified in a subsequent order. (2) That the grounds of detention were communicated to the petitioner and it is clear from the representation made by him that he had them all before him when he drew it up. Therefore, it was untrue that the petitioner had been deprived of the opportunity to make a representation refuting the charges against him. (2) That the grounds of detention were communicated to the petitioner and it is clear from the representation made by him that he had them all before him when he drew it up. Therefore, it was untrue that the petitioner had been deprived of the opportunity to make a representation refuting the charges against him. (3) That the government were considering the question of the review of the order of detention and the time for it had not yet passed as the order could be reviewed before 26th of August 1950. Section 12 of the Preventive Detention Act 1950 could not apply to his earlier detention under the Rajasthan Public Security Ordinance 1949. 6. A reply was not furnished to the allegation that the grounds of his detention were vague, indefinite, incomplete and false 7. In this court, it was urged by the learned counsel appearing on behalf of the petitioner, to begin with, that the grounds of detention were communicated 23 days after the order of detention had been passed. According to section 7 of the Preventive Detention Act, 1950, it is imperative that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, communicate these grounds to him. The phrase is as soon as may be Under section 5 of the Rajasthan Public Security Ordinance, grounds were to be furnished within a Week after order of detention had been passed. This has been made more elastic by substituting words as soon as may be, and accordingly, where a contention is based on the question of delay., it is for the government to explain, why the grounds were not furnished sooner than they were. Thus this is a question of fact on which light can be thrown by the government above. It is, therefore, necessary that the allegation must find a place in the petition. The petition, however, is silent and, accordingly, it is difficult to say one way or other why the government could not furnish the grounds although they were identical with those grounds which bad been furnished under the previous order of detention, earlier than 21st of March 1950. When this aspect of the case was presented to the learned counsel for the petitioner, he seems to have realised his own mistake and, therefore, did not press the point. When this aspect of the case was presented to the learned counsel for the petitioner, he seems to have realised his own mistake and, therefore, did not press the point. The next contention of the learned counsel was that it was imperative under the law that the government should have furnished the petitioner with a copy of the grounds on which the order of detention had been made. Section 7 of the Preventive Detention Act, 1950 which is the only provision on the point does not support the learned counsel. All that it provides is that the grounds shall be communicated to the person detained. The words are communicate to him the grounds on which the order has been made and not deliver or furnish a copy of the grounds on which the order has been made. It is not open to this court to import into the statute what is not there and, accordingly, if a copy was not furnished, that by itself would not make the detention of the petitioner illegal as contended by the learned counsel on his behalf. 1949 Oudh 20 cited by the learned counsel does not support him. The detenu in this case was illiterate and although a copy in English or Urdu was not furnished to him., it was delivered to a friend of him about fourteen days after his arrest. His counsel asked for an interview with him but since a restriction was imposed that the interview should take place in the presence of the police officer and a Jail Officer, the interview was abandoned. The observations made in this case, accordingly must be read in the light of these facts. Gulam Hasan C. J. and Misra J., who disposed of this case, observed that section 5 of the U. P. Maintenance of Public Order (Art. IV of 1947) did not in so many words require that a copy of the grounds should be furnished to the detenu. All that it required was that the grounds and particulars should be communicated to him. Since the object of section 5 was to enable the detenu to make a representation, they thought it would be desirable in public interest that a copy should be furnished. It would be stretching the language of the statute to hold that the furnishing of a copy was imperative. Since the object of section 5 was to enable the detenu to make a representation, they thought it would be desirable in public interest that a copy should be furnished. It would be stretching the language of the statute to hold that the furnishing of a copy was imperative. It may indeed be desirable as it would greatly facilitate the making of a representation. This, however, would not be necessary in a case like the present where every possible facility was afforded to the petitioner. He had, according to the affidavit of the Superintendent, Central Jail, Jodhpur, frequent access to the memorandum containing the grounds of his detention. The idea behind the provision, as observed by the learned Judge in the above case, is that the detenu should be able to make an effective representation to the government. If he is handicapped in that matter by the fact that he has no ready access to the grounds whenever required by him or the counsel retained by him for the purpose of making the representation, there may be some force in the contention. Each case would depend on its own facts. In the present case, it is wholly incorrect to say that as the copy of the grounds was not supplied to the petitioner, he could not recollect the charges against him and was, therefore, deprived of the right of making a representation, He made two representations as stated above; one on the 3rd of May 1950 and the other on the 12th of May 1950 and on both these occasions there is a reference to the grounds item by item. The second representation, in fact, is very much detailed and contains a reply to all the points raised in the grounds. Therefore, we are definitely of the view that in the first instance it was not at all imperative to furnish a copy of the grounds and secondly, the petitioner was not handicapped by a copy not having been given to him inasmuch as he had the grounds in front of him while making the representation. 8. The next contention raised by the learned counsel was that the grounds were vague and indefinite inasmuch as the dates of the activities imputed to the petitioner at various places were not mentioned. 8. The next contention raised by the learned counsel was that the grounds were vague and indefinite inasmuch as the dates of the activities imputed to the petitioner at various places were not mentioned. It was contended that it was not enough to say that the petition er had visited Barmer and the border terminus railway station Munabao frequently or that he had secret discussions and meetings with the Muslims of Nagaur and Roal or that had visited Merta where he delivered similar speeches. It should have also been mentioned what were the dates on which visits took place or secret discussions and meetings had been held. Three authorities of the Allahabad High Court have been cited by the learned counsel on this point, viz. 1949 All. 148, 1949 All. 406 and 1950 All. 75. In 1949 All. 148, a Full Bench of the court held that the question had to be decided upon the basis of particulars supplied in each case and it laid down that the grounds and particulars supplied must convey sufficient information to the detenu to enable him to make a representation that the detaining authority was wrong in its belief that his detention was necessary in the interest of public safety. After the above decision, this matter came up for consideration again in 1949 all. 406 and following the Full Bench authority, it was held that the particulars in the grounds communicated under section 5 of the U. P. Maintenance of Public Order Act (IV of 1947) need not contain the particulars required in a charge framed under the provisions of the Code of Criminal Procedure in a criminal trial. The only authority which appears to strike a discordant note is 1949 All. 37 where Raghbar Dayal J. was of the view that as far as practicable, the grounds and particulars furnished should not give facts less precise or less ingredients than a charge-sheet gives. He was a party to the Full Bench judgment and in that case, although no date, time or place of the alleged recovery of unlicen-ced firearms from the custody of the detenu was given in the notice under section 5 the order of detention was held valid because an affidavit filed at the hearing showed that the detenu was aware of the incident to which the reference was made. This matter came up for a consideration again in 1950 All, 69 (75) where it was held that the fact that the date, time and place of all the particulars are not given would not make the order defective provided that sufficient particulars were given in order to enable the petitioner to make an adequate representation against his detention. In this judgment it was mentioned that some of the grounds were definitely stated and that even if one or two grounds were vague, that would not affect the validity of the order if some of the grounds were clear, definite and precise. It was held that there was nothing in law which compelled the government to give all the materials available if the grounds are such as to enable the detenu to make his representation. Even a charge-sheet in a criminal case dose not narrate all the materials on the record of the court. It was accordingly held that the notice under section 5 was not defective for vagueness or indefiniteness 9. After hearing the learned counsel, we are inclined to hold that a similar view should prevail in this case. The grounds furnished to the petitioner are, in our opinion, not at all vague or indefinite. They contain fairly detailed references to his activities and looking at the two representations made by him, it is clear that he had absolutely no doubt or misgiving in his mind regarding them. The representation made by him is a very long document and so far as the petitioner is concerned, he had done his best to furnish a reply to all the activities imputed to him item by item. In the first representation made by him through his counsel on 3rd of May, there was no mention of the fact that he was handicapped and, therefore, unable to make an adequate representation against his detention because the grounds were vague or indefinite. This fact appears for the first time in the petition filed in this court and the allegation in this connection has been couched in a language which completely ignores the previous history of the case. It is stated that because a copy of the grounds of detention was not supplied to the petitioner, he was deprived of the right of making a representation. It is stated that because a copy of the grounds of detention was not supplied to the petitioner, he was deprived of the right of making a representation. We have already dealt with this matter elsewhere and we may state further that the petition does not mention that he was also deprived of the right because the grounds were vague and indefinite. As observed already, the grounds were sufficiently detailed and clear and do not suffer from vagueness or indefiniteness. 10. The next point argued by the learned counsel was that since the order dated 26th of February 1950 did not mention the period of detention, the detention of the petitioner after expiry of six months was illegal and improper. After hearing the learned counsel, we are of the view that there is absolutely no force in this contention. Section 3 of the Act only provides for an order directing that such person be detained while section 12 provides for the duration of detention. It is nowhere provided that the period of detention must be specified in the order of detention itself. As has been stated elsewhere, an order to this effect specifying the period was subsequently passed and duly communicated to the petitioner. 11. The learned counsel next contended that according to the order of detention dated the 26th of February I950, the petitioner had been detained in order to prevent him from acting in a manner prejudicial to the security of the State, whereas from clause No. 6 of the grounds of detention, in addition of the security of the State, maintenance of communal harmony was also mentioned. It was urged that since of the Act, a person detained for being a maintenance of com-his detention was illegal and improper. It may be pointed out that the petitioner was under section could not be danger to the munal harmony detained as his remaining at large constituted a great danger to the security of the State. The further fact that he was also a danger to the maintenance of communal harmony is only descriptive and serves to show how he was a danger to the security of the State. He will indeed endanger the security of the State if he succeeds in disturbing the peace and quiet between the two communities. 12. The further fact that he was also a danger to the maintenance of communal harmony is only descriptive and serves to show how he was a danger to the security of the State. He will indeed endanger the security of the State if he succeeds in disturbing the peace and quiet between the two communities. 12. Lastly, it was urged that the petitioner was originally ordered to be detained in Jail on 10th of December 1949 for his activities prior to that date for a period of six months but that only a period of 2-1/2 months had expired when on 26th. of February 1950 a fresh order of detention was passed. This order was illegal inasmuch as in the first instance even if the Act of 1949 was repealed by the subsequent Act, the order passed under it continued to be in force and secondly, since his activity preceded 10th of December 1949 and he had already suffered detention for 2-1/2 months, he could not be detained in Jail over again by making his period of detention to commence from 26th of February 1950, without taking into account the 2-1/2 months he had already passed in Jail and when he had obviously done nothing to endanger the security of the State immediately before the passing of the order. We have carefully considered this contention and, after hearing the learned counsel for the parties at length, have come to the conclusion, that there is no force in it. That section 4 of the Rajasthan Public Security Ordinance 1949 became void on 26th of January 1950, when the Constitution of India came into operation, does not admit of any doubt or difficulty. The reason is that its provisions are inconsistent with or repugnant to the provisions of Article 22 (4) of the Constitution. Section 4 of the Rajasthan Public Security Ordinance provides for the detention of a person for a period not exceeding six months from the date on which the order is made whereas according to Article 22 (4), no law providing for preventive detention shall authorise the detention of a person for a longer period than three months, unless inter alia such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7) of this Article. Under clause (7) (b), the Parliament may prescribe by law the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention. In order that he may be detained for a period longer than three months, it became necessary for the Parliament to enact a law and it is in these circumstances that the Preventive Detention Act 1950 (Act IV of 1950) came into existence on 26th of February 1950. Again adverting to the Ordinance which existed prior to this date, it appears that Articles 13 (1) and 254 hit S. 4 of the Ordinance which is inconsistent with them. According to Article 15(1), all laws in force in the territory of India immediately before the commencement of the constitution, in so far as they are inconsistent with the provisions of Part III, shall to the extent of such inconsistency be void. In the same manner, according to Article 254, if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. We need not refer to the provisions of clause (2) of the Article as it has no bearing on the case. According to the above, the conclusion is obvious that Section 4 became void on 26th of January, 1950. It follows that detention of a person for a period longer than three months after the Constitution of India came into operation also became illegal. In 1950 Orissa 157, after exhaustive discussion of the entire subject, the Honble Judges came to the conclusion that there was no, valid law under which the detention of the applicants could be justified and they were accordingly set at liberty forthwith. In 1950 Orissa 157, after exhaustive discussion of the entire subject, the Honble Judges came to the conclusion that there was no, valid law under which the detention of the applicants could be justified and they were accordingly set at liberty forthwith. It may be pointed out that in that case the applicants had not been detained under the Preventive Detention Act of 1950 and the only question was whether their detention under the Orissa Maintenance of Public Order Act of 1948 was justified in view of the apparent inconsistency between Ss. 2, 5 and 4 of that Act and Article 15 and 22 of the Constitution of India. The same view prevailed in 1950 Pat. 265 and it was held that the detention provisions in the Bihar Act of 1950 were inconsistent with the fundamental rights prescribed in Art. 22 of the Constitution of India and consequently, directly the Constitution came into force on the mid-night of 25th of January 1950, these provisions became void under Art. 13 of the Constitution. In this case also, action had not been taken under the Preventive Detention Act of 1950 and, both these cases are distinguishable, inasmuch as, in the case before us, a fresh order of detention has been passed after the enactment of the Preventive Detention Act of 1950. It was urged that even if the law directing detention for more than three months became void, an order passed under it on a date when the law was valid cannot be held to be illegal. This would probably be the case owing to the operation of Sec. 6 of the General Clauses Act but, in our opinion, this Act has no applicability. Our reasons are two fold; firstly, as held in 1933 All. 669 and 1941 Lah. 175, section 6 would not necessarily apply to a case where a temporary ordinance, as indeed the Rajasthan Public Security Ordinance of 1949 is, automatically expires expires after the period during which it is in operation is over. Hence although section 30 makes the Acts applicable to Ordinances, section 6 has no application to temporary ordinances. Secondly, sec. 6 will not apply if a different intention appears from the provisions of the repealing Act. That the Parliament did not intend that a person should be detained for more than three months is clear from the language of Art. 22(4) of the Constitution. Secondly, sec. 6 will not apply if a different intention appears from the provisions of the repealing Act. That the Parliament did not intend that a person should be detained for more than three months is clear from the language of Art. 22(4) of the Constitution. Hence, it could not be in contemplation that an order directing detention for more than three months should remain in force. Now then, if the detention of the petitioner for six months became illegal on 26th of January 1950 was it open to the Government to pass a fresh order of detention on 26th of February 1950 when the Preventive Detention Act came into force. As stated above, the previous detention became illegal on account of the operation of a certain provision of the Constitution. In 1945 Federal Court 18 it was held that where the earlier order of detention is held defective merely on formal grounds, there is nothing to preclude a proper order of detention being based on the pre-existing grounds themselves. An order of detention can therefore be passed against a person who is already under detention. In these circumstances, in our opinion, the Government was competent to pass a fresh order of detention even if the acts were committed previous to the first order of detention. The result is that this application fails and is hereby dismissed. Bapna J.—I agree.