9911796707
TMI Blog1954 (2) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... r detained in the Darjeeling Jail under an order dated 19-8-1953 under the Preventive Detention Act 4 of 1950 purported to have been passed by the Deputy Commissioner of Darjeeling. Rules were obtained from this Court in both the cases and on 1-10-1953 a Bench of this Court held that the orders of detention were illegal and directed that both the detenus be set at liberty forthwith. Thereupon on 4-10-1953 both Mahabir Prasad Periwal and Cajanand Periwal were released from Darjeeling Jail, but they were immediately served with fresh orders under the Preventive Detention Act of 1950 by the District Magistrate of Darjeeling, who happens to be the same officer as the Deputy Commissioner of Darjeeling who had passed the previous detention orders. Since then both the detenus have been in detention and the present applications are directed against these subsequent orders of detention passed on 4-10-1953. Grounds as contemplated under Section 7, Preventive Detention Act, were served upon them on the same date, that is, 4-10-1953. 3. Various points have been urged on behalf of the petitioners and the main points canvassed before us may be now dealt with seriatim. 4. It has been con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry or essential duty and that it cannot be said in the present case that delegation was resorted to as a secondary or subsidiary measure with the result that the legislation in question is bad, being no legislation at all. To this the reply of the learned Advocate General is briefly that in view of the decision of the Supreme Court in -- 'A. K. Gopalan v. State of Madras', 1950CriLJ1383 (C) which held, inter alia, that the impugned Act is no delegation of legislative power, this line of attack based on the alleged delegation of legislative power is not open to Mr. Kar. In this connection the learned Advocate General drew our attention to the observations of their Lordships of the Supreme Court at pages 42-43, 66-67, 77, 84, 105-106 and 122-123 of the report. Mr. Kar in his turn contends that in 'Gopalan's case (C)' the provisions of Sections 3, 7, 12 and 14 of the P. D. Act were examined by the Supreme Court in the light of Articles' 12, 13, 14, 19, 21, 22 and 32(1) of the Constitution and in that case the question in debate in the present case, viz., whether the impugned provision of the P. D. Act was legislation at all within the meaning of Articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the satisfaction must be of the legislative body. This contention of delegation of the legislative power in such cases has been considered and rejected in numerous cases by our Federal Court and by the English Courts .....Section 3 of the impugned Act (i.e. P. D. Act) is no delegation at all of all legislative power. It only confers discretion on the officer to enforce the law made by the Legislature. His Lordship proceeds to observe: Section 3 is also impugned on the ground that it does not provide an objective standard which the Court can utilise for determining whether the requirements of law have been complied with. It is clear that no such objective standard of conduct can be prescribed, except as laying down conduct tending to achieve or to avoid a particular object. The first passage quoted above would appear to meet Mr. Kar's contention that the impugned provision in Section 3 of the P. D. Act is bad being an instance of unwarranted delegation of legislative power, while the second passage would seem to furnish an answer to Mr. Kar's line of attack based upon the contention that Legislature had not given an indication as to what were essential supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more fully. On 4-10-53 an order was served upon Mahabir Prasad Periwal (Mr. Kar's client) detaining him in exercise of the powers conferred by Section 3(2) of the P. D. Act, 1950 with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community. On the same day the District Magistrate served upon him the grounds of detention. Those grounds were described as grounds of detention order under Section 3(l)(a)(iii) of the Preventive Detention Act, 1950 (Act 4 of 1950) . Thereafter the grounds --ten in number -- were set forth. This was followed by a paragraph which ran as follows-- Hence with a view to preventing you from acting in a manner prejudicial to the maintenance of supplies and services essential to the community, I hereby order that you be detained under Section 3(J)(a)(iii) of the Preventive Detention Act, 1950 (Act 4 of 1950). In these circumstances, Mr. Kar's contention is that his client is reasonably in doubt whether he has been detained under Section 3(1)(a)(iii) of the P. D. Act, or under Section 3(2) of it. If under the former, Mr. Kar's contention is that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference of British, Chinese and Tibetan Plenipotentiaries was convened in Simla to negotiate an agreement regarding the international status of Tibet and a Tripartite convention was drawn up and in 1914 it was initiated by the representatives of the three parties. The representative of the Emperor of India was Sir A. H. Mc-Mahon, Secretary to the Government of India, Foreign and Political Department. The Chinese Government, however, refused to ratify the convention. It was, however, ratified by Great Britain and Tibet and accepted as binding by them as between themselves. By Article 7 of this convention the Tibet Trade Regulations of 1893 and 1908 were cancelled and the Tibetan Government undertook to negotiate with the British Government new Trade Regulations. In pursuance of this undertaking, Anglo-Tibet Trade Regulations, 1914 were signed on 3-7-1914 by the Plenipotentiaries of the two countries and they came into effect from the date of the signature. Clause VIII of these Regulations is very important for our present purposes. It runs thus: VIII. Import and export in the following articles: Arms, ammunition, military stores, liquors and intoxicating or narcotic d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngement indicated above continued in force up to 1954 by reason of Clause IX of the 1914 Regulations. It had the effect of a law in force or existing law which, notwithstanding the repeal of the Indian Independence Act, 1947, by Article 393 of the Constitution, was continued in force under Article 372(1). Reference was also made in this connection to Section 18(1), Indian Independence Act, 1947. (c) The non-ratification by China of the convention of 1914 did not affect its binding force so far as the other two contracting parties, viz., Great Britain and Tibet were concerned. As mentioned before, the convention was accepted by those parties as binding between themselves. (d) At least since 1947, when the Indian Independence (International Arrangements) Order, 1947, was promulgated by the Governor General of India, citizens were entitled to enforce or protect their right of free export of articles (not specifically mentioned in Clause VIII of the Anglo-Tibet Regulations, 1914) out of India to Tibet against the Government of India and for that purpose they could have recourse to Indian Courts. (e) In view of the provisions of the Anglo-Tibet Trade Regulations of 1914, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaties as well as the municipal statutes and contracts (p. 216). Several examples of the application of the maxim are given by Schwarzenbergcr. It is true that this method of construction has to be applied with caution, but there can hardly be any reason for doubt that in appropriate cases it may be resorted to for the construction of treaties. The question is whether it should be resorted to in the present case. I am inclined to answer the question in the affirmative. The tripartite convention of 1914 expressly cancelled the existing Trade Regulations, viz., the Tibet Trade Regulations of 1893 and 1904 (Article 7(a) ) and the Tibetan Government engaged to negotiate new Trade Regulations (Article 7(b) ). It was in these circumstances that the Anglo-Tibet Trade Regulations of 1914 were negotiated. The primary rule is that a treaty has to be liberally construed so as to carry out the intention and purpose of the contracting parties thereto (Vide Lauterpacht's Annual Digest and Reports of Public International Law Cases, year 1947, at p. 164), In the interpretation of international agreements it is often necessary to adopt a more liberal method of construction than that which m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn our attention to a few other cases to be referred to presently. In this connection the learned Advocate General has drawn our attention to the cases of -- 'Vajesingji Jorawarsingji v. Secy. of State' AIR 1924 PC 216 (H) and -- 'Secretary of State v. Rustam Khan' AIR 1941 PC 64 (I) for the proposition that for acts of State no municipal Court of justice can afford a remedy, As regards the principle underlying these two cases Mr. Kar has, however, invited our attention to the observations of Lord Phillunore in the case of -- 'John-stone v. Pedlar' (1921) 2 AC 262 (J) where the principle laid down in (1892) AC 491, at p. 494 (F) to the effect -- Because between Her Majesty and one of her subjects there can be no such thing as an act of State was referred to with approval. In Cases in Constitutional Law by Keir Lawson (3rd Edn.) at p. 298 it has been observed that all that the Crown does in the sphere of foreign affairs falls within the category of acts of State and the, making of a treaty being an act of State, treaty obligations cannot be enforced in a municipal Court. In this connection the observations of Lord Coleridge C. J. in -- 'Rustom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General does not accept these propositions. According to him, the Indian Independence (International Arrangements) Order, 1947, has nothing to do with the rights of the citizens of India and Pakistan and it is simply an agreement reached at a meeting of the Partition Council between the Dominions of India and Pakistan laying down as to how rights and obligations under international agreements will devolve upon the two Dominions. Paragraphs 3 and 4 of the Schedule to the Order which are material for our present purpose, appear to bear out the contention of the learned Advocate General. The language of the heading of the Schedule also points in the same direction. It runs thus: Agreement as to the Devolution of International Rights and Obligations upon the Dominions of India and Pakistan. The language used in that heading and in other parts of the above Order may also be contrasted with the language used in the Indian Independence (Rights, Property and Liabilities) Order, 1947, e.g. para 3(1) according to which admittedly citizens of India and Pakistan had certain rights against the respective Governments. Considering all the circumstances, we are not inclined to read more into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian Statutes is clear enough: in the interests of India, they seek to put restrictions in the way of trade between India and other countries. If that language be in conflict with any principle of international law as is said to be deducible from the implied provisions of the Anglo-Tibet Trade Regulations of 1914, municipal Courts of India have got to obey the laws passed by the Legislature of the country to which they owe their allegiance. In interpreting and applying municipal law, these Courts will try to adopt such a construction as will not bring it into conflict with rights and obligations deducible from rules of international law. If such rules, or rights and obligations are inconsistent with the positive regulations of municipal law, municipal Courts cannot override the latter. It is futile in such circumstances to seek to reconcile, by strained construction, what are really irreconcilable. 20. It has also been urged on behalf of both the detained persons that practically all the grounds of detention served upon them under Section 7 of the P. D. Act are vague, that some of the grounds are wholly vague, that some again are irrelevant or non-existent and 'extraneous t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the phrase 'Tibetan traders' in some of the grounds without further specification), Vehicles (e.g., 'Jeeps' specified in some of the 'grounds' but not in other cases) were not given and there was infringement of the constitutional safeguard of the detained persons to have particulars as full and adequate as the circumstances permit furnished to them to enable them to make a representation against the orders of detention. (See -- 'Ram Krishna Bharadwaj's case (Q)' referred to above). 21. In reply the learned Advocate General submitted that in view of the decision of the Supreme Court in -- Ram Krishna Bharadwaj's case (Q)', be could not challenge the proposition that are Vague ground' was enough to amount to an infringement of Article 22(5), though he drew our attention to the observations of Chandra Sekhar Ayyar J. in the ca.se of -- 'Ujagar Singh v. The State of Punjab', [1952]1SCR756 (R) to the effect that mere vagueness of grounds standing by itself and without leading to an inference of mala fides or lack of good faith i.s not a justiciable issue in a Court of law for the necessity of making the order. The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. It was argued on the lines of -- Safatulla's case (P)' decided by a Bench of this Court that the only answer of the detenus to the above grounds could be to deny them, but as pointed out in the majority decision of the Supreme Court in -- 'Atma Ram Vaidya's case (S)' the grounds are not necessarily vague on that account only. Considering those particular grounds in the circumstances of the present cases, we are of opinion that they cannot be held to be vague in the sense indicated above. These observations apply with greater force to the case of the other 'grounds' served upon the detenus. Even a cursory perusal of those grounds shows that they are much more detailed. This line of attack, therefore, based on the alleged insufficiency of the grounds must fail. 23. It has been mentioned before that some of the grounds have been attacked on the score of being ambiguous or not being sufficiently intelligible. Even bearing in mind the fact that both the detained persons are laymen called upon to make their representation without legal assistance, the grounds were not really such as to baffle their understanding. 24. The other ground of attack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Imports and Exports Control Act, 1947, (Act 8 of 1947) which provided for the continuance of existing orders. 29. As regards the specific objection raised by Mr. Kar to the effect that whatever orders were passed by the Provincial Government must not be in conflict with the provisions laid down in condition (b) of Notification No. PY-603(2) 1 dated 21-10-1946, of the Central Government, on behalf of the State our attention was invited to the case o -- 'Darshan Singh v. State of Punjab', 1953CriLJ525 (T) and relying on the principles laid down in that case it was contended that the Provincial orders were within the scope and ambit of the legislation permissible to that Government and in pith and substance the enactment in question and the orders issued thereunder dealt exclusively with provincial matters. We are of opinion that there is force in the contention urged before us on behalf of the State and accordingly it was not permissible for either of the detenus to export out of India the commodities mentioned in the grounds served upon them without necessary license or permit or in violation of the relevant orders in force at the relevant time. Apart from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
