SHIBBAN LAL SAKSENA versus THE STATE OF UTTAR PRADESH AND OTHERS.

418

SUPREME COURT REPORTS

[19541

1953

Dec- 3

SHIBBA.N LAL SAKSENA

t!.

THE ST A TE OF UTT AR PRADESH AND OTHERS. [MuKHERJEA and N. H. BHAGWATI JJ.]

.4ct IV of

Preventive Detention

1950 as amended by Act XXXIV of 1952 and Act LXI of 1952-Sections 3(1) (a) and 11- Detaining authority giving two reasons for detention-One ground found to be non-existent-Hlhether order of detention sustainable Confirmation of detention order under one ground and revocatiou thereof under 2nd ground-Not contemplated by s. II.

The detention order

\Vas n1ade containing two grounds under sub-clauses (ii) and (iii) of clause (a) of section 3 (!) of the Pre ventive Detention Act, 1950, as ani_ended by later Acts. In exercise of the po\vers under section 11 of the Act the Government con firmed the detention order against the <letenu under sub-clause (ii} of section 3 (!) (a) of the Act but as respects the second ground under sub-clause (iii) of section 3 (I) (a) of the Act the Government did not uphold his <letention and revoked it under this sub-clause :

Held, that the original order made under section 3 (!) (a) is

not sustainable.

that

To say

is quite the other ground \Vhich still sufficient to sustain the order would be to substitute an objective judici:i.l test for the subjective decision of the executive authority underlying the statute. \vhich legislati\'e policy if one of these t\vo In such cases the position Vl'ould be the same as grounds was irrelevant for the purpose of the Act or was vvholl y illusory and this vvould vitiate the detention order as a whole.

is against

remains

the

Keshav v. The King-Emperor(') referred to. It is \Vell settled

that the power

to issue a detention order under section 3 of the Preyentive Detention Act depends entirely upon the satisfaction of the appropriate authority specified in that section. The sufficiency of the grounds upon which such satisfaction purports to be based provided they have a rational probative value to the scope or purpose of the legislati.\·c: and are not extraneous provision_ cannot be challenged in a court of law except on the grounds of mala fides.

State of Bombay v. Atma Ram Sridhar Vaidya(') referred to. Section 11 of the Preventive Detention Act lays down what take after the Advisory Board has is the detention of a person the Government ma\' for ·sue·~

action the Government it to submitted sufficient reason for confirm the detention order and continue the detention

in the opinion of the Board there

report.

its

If

(1)

[1943] F.c.R. 88.

(2)

[1csiJ s.c.R. 167.

S.C.R.

SUPREME COURT REPORTS

419

if

that there

is of opinion

is no sufficient

of the person concerned,

the Advisory period as it thinks proper. On the other hand for the Board detention in duty bound to revoke the detention order. Vlhat the Government has done in this case is to confinn the detention order and at the same time to revoke it under one of the.sub-clauses of section 3 ( 1) (a) of the Act. This is not \Vhat the section contemplates. JuRISDICTION:

reason the CJovenunent is

Petition No. 298

ORIGINAL

1953. Under article 32 of the Constitution of for a writ in the nature of habeas corpus.

of India

!953

Shibban Lal Saksena v. The State of Utlar PradeJh and Others·

Veda Vyas, Senior Advocate (S. K. Kapur, with

him) for the petitioner.

D. P. Uniyal for the respondent. 1953. December 3. The Judgment of the Court

was delivered by

petitioner in

the order expressly directed

MuKHERJEA J.-This is a petition under article 32 of the Constitution praying for the issue of a writ, in the nature of habeas corpus, directing the release of the petitioner, Shibban Lal Saksena, who is said to be in the District Jail at Gorakhpur. unlawfully detained The petitioner was arrested on the 5th of January, 1953, under an order, signed by the District Magistrate of Gorakhpur, and the the custody of the detention of the sub Superintendent, District Jail, Gorakhpur, under clauses (ii) and (iii) of clause (a) of section 3 (1) of the Preventive Detention Act, 1950, as amended by later Acts. On the 7th of January following, the grounds of detention were communicated in accordance with the provision of section 7 of the Pre ventive Detention Act and the grounds, it appears, were of a two-fold character, falling respectively under the two categories contemplated by sub-clause (ii) and sub-clause (iii) of section 3 (1) (a) of the Act. In the first paragraph of the communication it is stated that the detenue in course of speeches delivered at Ghugli on exhorted and enjoined upon the cane certain dates to supply sugarcane to the growers of that area not sugar mills or even to withhold supplies from · them and thereby interfered with the maintenance of supply community. The other of sugarcane essential to the to the effect that by ground specified in paragraph 2 is

to the detenue

420

SUPREME COURT REPORTS

[1954T

1953

Sf.ibban Lal Saksena v. The State of Uttar Pradesh ar,d Others.

the paragraph, the

usmg expressions, some of which were quoted under- the the neath cane-growers against public and and to defiance of lawful orders established authority and directions issued b~ Government officers and thereby seriously prejudiced the maintenance of public order.

to violence

petitioner

incited

on

the

The petitioner

submitted his representation

against the detention order on the 3rd of February, 1953, and his case was considered by the Advisory Board consti tuted under section 8 of the Preventive Detention Act 23rd February at its sittmg at Lucknow following. The Advisory Board gave a hearing to the submitted petitioner in person and its after it had report, a communication was addressed on behalf of to the petitioner on the Uttar Pradesh Government the 13th of March, 1953, that the Government, iu exercise of its powers under section 11 of the Preventive Detention Act, had confirmed the (ii) of detention order against him under section 3 (1) (a) of the Act and sanctioned the continua tion of his detention until further orders, or to a period of 12 months from the date of detention. The as second paragraph of follows:

informing him

communication

sub-clause

runs

this

up

'

be informed

"The detenue mav please

the Advisory Board did not uphold his detention und·er sub-clause (iii) of clause (a) of sub-section (1) of sec tion 3 of the Preventive Detention Act. Governme:1t have this sub-clause."

his detention under

therefore

revoked

that

The petitioner has now come up before us with an application under article 32 of the Constitution and Mr. Veda Vyas, who appeared in support of the peti detention tion, has challenged order made two grounds.

the substantially on

against his client

the legality of

It is argued in the first place that from the grounds the served upon the petitioner under section 7 of Preventive Detention Act, it appears clear that . the grounds which weighed with the detaining authority in

•

8.C.R.

SUPREME COURT RJ<JPORTS

421

v.

1958

Shibban Lal Saksena

depriving the petitioner of his liberty are that his activities were, in the first place, preJ·udicial to the maintenance of supplies essential to the community and in the second place were injurious to the main- tenance of public order. From the communication, The State ofUttar dated the 13th of March, 1953, addressed to the peti- tioner, it appears, however, that the first ground did thers. not exist as a fact and actually the Uttar Pradesh Mukher;ea J, Government purported to revoke the detention order under sub-clause (iii) of section 3 (1) (a) of the Preventive Detention Act. In these circumstances, it is contended that the detention order originally made cannot stand, for if the detaining authority proceeded on two grounds to detain a man and one of them is admitted to be non-existent or irrelevant, the whole order is vitiated as no one can say to what extent the bad ground operated on the mind of the detaining authority.

Pragesh

and

y

(

The other contention raised by the learned counsel is that the particulars, which were supplied to his client in connection with the second ground, are manifestly inadequate and of a partial character and do not. enable him to make an effective representation against the order of detention.

We may say at once that the second contention does not impress us. It is true that the sufficiency of the particulars conveyed to a detenu in accordance with the provision em bodied in article 22 ( 5) of the Consti tution is a justiciable issue, the test being whether they are sufficient to enable the detenu to make an effective representation; but we are not satisfied that the particulars supplied to the detenu in the present case are really inadequate and fall short of the consti tutional requirement. We do not think, therefore, that there is any substance in this contention.

The first contention raised by the learned counsel raises, however, a somewhat important point which requires careful consideration. It has been repeatedly held by this court that the power to issue a detention order under section 3 of the :Preventive Detentiop Act

422

SUPREME COURT REPORTS

[1954)

196a

Saksena v.

Pracksh mzct Other1t. Mukherjea J. rnal,a fides(1

depends entirely upon the satisfaction of the appro- Shibban Lat priate authority specified in that section. The suffi ciency of the grounds upon which such satisfaction purports to be ba~ed, provided they haYe a rational T.ht·. State of Utta.r probative value and are not extraneous to the scope or purpose of the legislative provision cannot be challenged in a court of law, except on the ground of ). A court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communi cation to the detenu under section 7 of the Act. What has happened, however, in this case is somewhat peculiar. The Government itself, in its communication dated the 13t h of March, 1953, has plainly admitted that one of the grounds upon which the original order of detention was passed is unsubstantial or non existent and cannot be made a ground of detention. The question is, whether in such circumstances the original order made nnder section 3 (1) (a) of the Act can be allowed to stand. The answer, in our opinion, can only be in the negative. The detaining authority gave here two grounds for detaining th e petitioner. \Ve can neither decide whether these grounds are good· or bad, nor can we attempt to assess in what manner and to what ex tent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made. To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underl:ying the statute. In such cases, we think, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the deten tion order as a whole. This principle, which was recognised by the-Federal Court in the case of Keshav Talpa.de v. The King-Emper<nf), seems to us to be quite sound and applicable to the fa cts of this case.

(1 ) Vide State of Bombay v. Atma R am SYidh~r Vaidya., [1951} S.C.R. .

.

16~

(~) f.19H] F.C.R'. 88'.

S.C.R.

SUPREME COURT REPORTS

423

1953 Shibban La Sal'8ena v.

We desire to point out that the order which the Government purported to make in this case under section 11 of the Preventive Detention Act is not one in conformity with the provision of that section. Section 11 lays down what action the Government is The State of Uttar to take after the Advisory Board has submitted its Pradesh report. If in -the opinion of the Board there is and Others. sufficient reason for the detention of a person, the Mukherjea J. Government may confirm the detention order and continue the detention for such period as it thinks proper. On the other hand, if the Advisory Board is of opinion that there is no sufficient reason for the detention of the person concerned, the Government is in duty bound to revoke the detention order. What the Government has done in this case is to confirm the detention order and at the same time to revoke it under one of the sub-clauses of section 3 (1) (a) of the Act. This is not what the seotion contemplates. The Government could either confirm the order of deten- tion made under section 3 or revoke it completely and there is nothing in law which prevents the Government from making a fresh order of detention ifit so chooses. As matters stand, we have no other alternative but to hold that the order made on the 5th of January, 1953, under section 3 (1) (a) of the Preventive Detention Act is bad in law and the detention of the petitioner is consequently illegal. The application is allowed and the petitioner is directed to be set at liberty.

Agent for the petitioner: Ganpat Rai. Agent for the respondent: 0. P. Lal.

Petition allowed.

I

f

1