# [1954] 1 S.C.R. 418

- **Citation:** [1954] 1 S.C.R. 418
- **Court:** Supreme Court of India
- **Decided:** 1954
- **Bench:** MuKHERJEA, N. H. Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1954-1-s-c-r-418-301
- **Pages:** 6

## Headnote

[19541
Preventive Detention .4ct IV of
1950 as
amended by
Act
XXXIV of 1952 and Act LXI of 1952-Sections 3(1) (a) and 11Detaining authority giving two reasons for detention-One ground
found to be non-existent-Hlhether order of detention sustainableConfirmation 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 Preventive Detention Act, 1950, as ani_ended by later Acts. In exercise
of the po\vers under section 11 of the Act the Government confirmed 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.
To say that the other ground \Vhich still remains
is
quite
sufficient to sustain the order would be to substitute an objective
judici:i.l test for the subjective decision of the executive authority
\vhich is against
the
legislati\'e policy
underlying the statute.
In such cases the position Vl'ould be the same as if one of these t\vo
grounds was irrelevant for the purpose of the
Act or was vvholl y
illusory and this vvould vitiate the detention order as a whole.
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
and are not extraneous to the scope
or purpose of the legislati.\·c:
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
action the Government it to take after the Advisory Board has
submitted
its
report.
If in the opinion of the Board there
is
sufficient reason for the detention of a person the Government ma\'
confirm the detention order and continue the detention
for ·sue·~
(1)
[1943] F.c.R. 88.
(2)
[1csiJ s.c.R. 167.
S.C.R.
SUPREME COURT REPORTS
419
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 CJovenunent is
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.
ORIGINAL
JuRISDICTION:
Petition
No. 298
of
1953.
Under article 32 of the Constitution of India
for a writ in the nature of habeas corpus.
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
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
unlawfully detained in the District Jail at Gorakhpur.
The petitioner was arrested on the 5th of January,
1953, under an order, signed by the
District Magistrate
of Gorakhpur,
and the order expressly directed the
detention
of the
petitioner in
the custody
of the
Superintendent, District Jail, Gorakhpur,
under subclauses (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
to the detenue in
accordance with the provision of section 7 of the Preventive Detention Act and the groun

## Text

1953
Dec- 3
418
SUPREME COURT REPORTS
SHIBBA.N LAL SAKSENA
t!.
THE ST A TE OF UTT AR PRADESH
AND OTHERS.
[MuKHERJEA and N. H. BHAGWATI JJ.]
[19541
Preventive Detention .4ct IV of
1950 as
amended by
Act
XXXIV of 1952 and Act LXI of 1952-Sections 3(1) (a) and 11Detaining authority giving two reasons for detention-One ground
found to be non-existent-Hlhether order of detention sustainableConfirmation 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 Preventive Detention Act, 1950, as ani_ended by later Acts. In exercise
of the po\vers under section 11 of the Act the Government confirmed 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.
To say that the other ground \Vhich still remains
is
quite
sufficient to sustain the order would be to substitute an objective
judici:i.l test for the subjective decision of the executive authority
\vhich is against
the
legislati\'e policy
underlying the statute.
In such cases the position Vl'ould be the same as if one of these t\vo
grounds was irrelevant for the purpose of the
Act or was vvholl y
illusory and this vvould vitiate the detention order as a whole.
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
and are not extraneous to the scope
or purpose of the legislati.\·c:
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
action the Government it to take after the Advisory Board has
submitted
its
report.
If in the opinion of the Board there
is
sufficient reason for the detention of a person the Government ma\'
confirm the detention order and continue the detention
for ·sue·~
(1)
[1943] F.c.R. 88.
(2)
[1csiJ s.c.R. 167.
S.C.R.
SUPREME COURT REPORTS
419
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 CJovenunent is
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.
ORIGINAL
JuRISDICTION:
Petition
No. 298
of
1953.
Under article 32 of the Constitution of India
for a writ in the nature of habeas corpus.
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
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
unlawfully detained in the District Jail at Gorakhpur.
The petitioner was arrested on the 5th of January,
1953, under an order, signed by the
District Magistrate
of Gorakhpur,
and the order expressly directed the
detention
of the
petitioner in
the custody
of the
Superintendent, District Jail, Gorakhpur,
under subclauses (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
to the detenue in
accordance with the provision of section 7 of the Preventive 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
certain dates
exhorted and enjoined
upon the
canegrowers of that area
not to supply sugarcane to the
sugar mills or even to withhold supplies
from · them
and thereby interfered with the maintenance of supply
of sugarcane essential to the
community. The
other
ground specified in paragraph 2 is to the effect that by
!953
Shibban Lal
Saksena
v.
The State of Utlar
PradeJh
and Others·
1953
Sf.ibban Lal
Saksena
v.
The State of Uttar
Pradesh
ar,d Others.
•
420
SUPREME COURT REPORTS
[1954T
usmg expressions, some of which were quoted
underneath
the
paragraph,
the
petitioner
incited
the
cane-growers
and
the
public
to violence
against
established authority
and to defiance of lawful orders
and directions
issued
b~
Government officers
and
thereby seriously
prejudiced the maintenance of public
order.
The petitioner
submitted his representation
against
the detention order on the 3rd of February, 1953, and
his case was considered by the Advisory
Board constituted under section 8 of the
Preventive Detention Act
at its sittmg at
Lucknow
on the
23rd
February
following.
The Advisory Board gave a hearing to the
petitioner in person and
after it had
submitted
its
report, a communication was addressed
on behalf of
the Uttar
Pradesh
Government
to the
petitioner on
the 13th of
March, 1953,
informing
him
that the
Government, iu exercise of its powers under section 11
of the Preventive Detention Act, had confirmed the
detention order against him under sub-clause
(ii) of
section 3 (1) (a) of the Act and sanctioned the continuation of his detention until further orders, or
up to a
period of 12 months from the date of detention.
The
second
paragraph
of this
communication
runs
as
follows: '
"The detenue mav
please
be informed that
the
Advisory
Board
did not uphold his detention
und·er
sub-clause (iii) of clause (a) of sub-section (1) of section 3 of the
Preventive
Detention Act.
Governme:1t
have
therefore
revoked
his
detention
under
this
sub-clause."
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 petition,
has challenged
the legality
of the
detention
order
made
against his client
substantially on
two
grounds.
It is argued in the first place that from the grounds
served
upon the petitioner
under section 7
of the
Preventive
Detention
Act, it appears
clear
that . the
grounds which weighed with the detaining authority in
8.C.R.
SUPREME COURT RJ<JPORTS
421
depriving the petitioner of his liberty are that his
1958
activities were, in the first place, preJ·udicial to the
Shibban Lal
maintenance of supplies essential to the community
Saksena
and in the second place were injurious to the mainv.
tenance of public order. From the communication, The State ofUttar
dated the 13th of March, 1953, addressed to the petiPragesh
tioner, it appears, however, that the first ground did
and
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.
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
y
particulars conveyed to a detenu in accordance with
the provision em bodied in article 22 ( 5) of the Constitution 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 constitutional 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
depends entirely upon the satisfaction of the approShibban Lat priate authority specified in that section. The suffiSaksena
ciency of the grounds upon which such satisfaction
v.
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
Pracksh
or purpose of the legislative provision cannot be
mzct Other1t.
challenged in a court of law, except on the ground of
Mukherjea J. rnal,a fides(1 ). 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 communication 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 13th of March, 1953, has plainly admitted
that one of the grounds upon which the original order
of detention was passed is unsubstantial or nonexistent 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 the petitioner. \Ve
can neither decide whether these grounds are good· or
bad, nor can we attempt to assess in what manner and
to what extent 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 detention 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 facts of this case.
(1 ) Vide State of Bombay v. Atma Ram SYidh~r Vaidya., [1951} S.C.R.
16~
.
.
(~) f.19H] F.C.R'. 88'.
I f
1
S.C.R.
SUPREME COURT REPORTS
423
We desire to point out that the order which the
1953
Government purported to make in this case under
Shibban La
section 11 of the Preventive Detention Act is not one
Sal'8ena
in conformity with the provision of that section.
v.
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 detention 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.
Petition allowed.
Agent for the petitioner: Ganpat Rai.-
Agent for the respondent:
0. P. Lal.