1952 (3) TMI 32 - SC - Indian Laws

Whether petitioner has been deprived of his personal liberty in accordance with procedure established by law? Held that - Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not under section 11 (1). That such a decision has been in fact taken by the appropriate Government is amply proved on the record. Therefore, there has been, in the circumstances of this case, no breach of the procedure established by law and the present detention of the petitioner cannot be called in question. For the reasons stated above, in my opinion, this application must fail.

Issues Involved:

1. Whether the State Government failed to comply with the requirements of section 11(1) of the Preventive Detention Act by not specifying the period of detention.
2. Whether the order of confirmation is invalid for not being expressed in the name of the Governor as required by Article 166(1) of the Constitution.

Issue-Wise Analysis:

Ground No. 1: Compliance with Section 11(1) of the Preventive Detention Act

The petitioner challenged the validity of his detention on the grounds that the State Government did not specify the period of detention while confirming the detention order under section 11(1) of the Preventive Detention Act, 1950. The court examined the language of section 11(1), which states: "In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention for such period as it thinks fit."

The court held that the section confers two powers: (1) the confirmation of the detention order and (2) the continuation of the detention for such period as the Government thinks fit. The confirmation of the detention order contemplates an executive decision, and the detention continues automatically upon confirmation. The court found that it is not necessary to include a direction for the continuation of the detention in the decision confirming the detention order.

The court further noted that the phrase "such period" does not imply that the period must be specified. The Act itself is of limited duration, and the detention must end with the expiry of the Act. The court cited previous judgments, including A.K. Gopalan's case and S. Krishnan v. The State of Madras, which supported the view that the section does not require the specification of the period of detention.

The court concluded that the specification of the period of detention is not necessary under section 11(1), and the detention does not become indefinite as it is limited by the life of the Act.

Ground No. 2: Compliance with Article 166(1) of the Constitution

The petitioner also argued that the order of confirmation is invalid because it was not expressed in the name of the Governor, as required by Article 166(1) of the Constitution. Article 166(1) states: "All executive action of the Government of a State shall be expressed to be taken in the name of the Governor."

The court examined whether the Preventive Detention Act requires the making of a formal order. It held that while section 11(1) requires an executive decision to confirm the detention order, the Act does not prescribe any particular form for expressing that decision. The court noted that Article 166(1) relates to the mode of expression of executive action, but non-compliance with it does not render the executive action a nullity.

The court referred to the judgment in J.K. Gas Plant Manufacturing Co. (Rampur) Ltd. and Others v. The King-Emperor, which held that provisions similar to Article 166 are directory and not mandatory. The court concluded that while strict compliance with Article 166 provides immunity to the order, non-compliance does not invalidate the order itself.

Separate Judgments:

- Patanjali Sastri C.J.: Agreed with the judgment delivered by Das J. and had nothing to add.
- Mukherjea J.: Concurred with the judgment but added his views, emphasizing that the non-specification of the period in the confirmation order does not make the detention illegal, considering the temporary nature of the Act.
- Chandrasekhara Aiyar J.: Concurred with Mukherjea J. and had nothing useful to add.
- Mahajan J.: Dissented, holding that the non-specification of the period of detention makes the detention illegal. He directed the release of the petitioners.

Conclusion:

The majority of the court held that the petitioner's detention was valid, and the application was dismissed. The court concluded that the State Government's confirmation of the detention order without specifying the period did not violate section 11(1) of the Preventive Detention Act, and the non-compliance with Article 166(1) did not invalidate the order. Mahajan J. dissented, holding that the non-specification of the period made the detention illegal and directed the release of the petitioners.

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