# GIANI BAKSHISH SINGH v. GOVT. OF INDIA & ORS

- **Citation:** [1974] 1 S.C.R. 662
- **Court:** Supreme Court of India
- **Decided:** 1973-09-18
- **Case number:** Criminal Appeal No. 116 of 1973
- **Bench:** H. R. Khanna, A. Alag!Riswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/giani-bakshish-singh-v-govt-of-india-ors-6018
- **Pages:** 9

## Headnote

.\!11i11tt'11a11cc of lnf('/'llaf Sl'curity Act, 1971-s. 3(1) and (2)-Foreignerf/ could be detained.
The appellant, a British citizen, was detained under s. 3(2) read with section
3 (I\ (a) (i) and (ii) of Maintenance of Internal Security Act, 1971. The grounds
of cietention were that he wao;; engaged in subversiv.e activities by instigating and
creating hatred between the Hindus and Sikhs and by calling upon the Sikhs to
establish a separate homeland by resorting to violent methods. In reply to
a
representation by the Akali party for the release of-the appellant from detention
the Chief Minister of Punjab stated in the State Assembly that the appellant was
in Pakistan in November, 1971 aloagwith a Pakistani official, that he had been
phutographc.<l getting down from a Pakistani plane, and that he had made a
statement to a nc\vspapcr that 'India was a prison house for Sikhs; buti he did
not mention any of the grounds contained in the order of detention.
The appellru1fs petition for the issue of a \liTit of habeas corpus on the ground
that he had made arrangements to leave the conntry wa-; dismissed by the High
Court.
Disn1issing the appeal to tbis Court,
HEID: Clauses. (a) an<l (b) of s. 3(1) of the Maintenance of Internal Secu·
rity Act deal \1lith two different kinds of powers.
Under clause (a) power is
giYen to the State to detain any person including a foreigner for any of the purposes mentioned therein and under cl. (b) power is given to detain a foreigner
either for regulating his continued presence in India or for making arrangements
for his expulsion from India.
It is not only in a case where a foreigner wants to
1.:ontinue in India that the po\\'er to detain under cl. (a) \Vas available but it is
available even where, in order to avoid preventive detention, the foreigner offers
l:.l go out of the country.
[667 0-C]
12) It is not correcl to say that cl. (b) is beyond the legislative competence
of Parliament, and, that, therefore, the order under cl. (a) could only be made
with a view to regulate the presence of the appellant in India and not when the
appellant \Vanted to leave India. It is \\'ell established that various legislative
entries should be interpreted in a broad manner and if any legislation could be
brought within the ambit of any one or other of the legislative entries the validity
of the legislation cannot be questioned.
Entry 10, List I, Schedule VII to the
("'onstitution deals \Vith foreign affairs and all matters which bring the Union into
relations with a foreign country, would certainly cover cl. (b). Therefore, it is
within the competence of the detaining authority to exercise the power conferred
on it either under cl. (a) or cl. (b).
[667 C-D]
(3) The decision of this Court in I/ans Muller of iVurenburg v. S11perinte11dc11t, Presidency Jail, Ct1fcutta that section 3(1) (b) of Preventive Detention Act
\\'hich is exactly similar to s. 3(1)(b) of the ~faintenance of Internal Security
:\ct conferred power to nse -the means of preventive detention as one of the
nlethods of achieving expulsion of a foreigner Joes not mean thats. 3(1)(a) of
the Maintenance.of Internal Security A.ct cannot be used for the purpose for which
it is piainly intended.
[667 E-Fl
t_..J) The .1ppella11t. taking advantage of the fact that by race he is an Indian,
proposed to indulge in acti\·ities which were- ::i danger to lhe integrity and security
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BAKSHISH SINGH v. GOVT. OF INDIA (Alagiriswami, /.)
663
cf the country. The first duty of the State is to survive. To do so it had got to
deal with enemies both overt and covert whether they be inside the country O(
outside. The fact that the appellant, if released, would go to England and from
there continue to indulge in activities prejudicial to the security and integrity of
this country was a relevant factor in determining whether he could be detained
when he was found in this country. It is true that there is no law in this country
providing for extradi

## Text

GIAN! BAKSHISH SINGH
V.
GOVT. OF INDIA & ORS
September 18, 1973
[H. R. KHANNA AND A. ALAG!RISWAMI, JJ.]
.\!11i11tt'11a11cc of lnf('/'llaf Sl'curity Act, 1971-s. 3(1) and (2)-Foreignerf/ could be detained.
The appellant, a British citizen, was detained under s. 3(2) read with section
3 (I\ (a) (i) and (ii) of Maintenance of Internal Security Act, 1971. The grounds
of cietention were that he wao;; engaged in subversiv.e activities by instigating and
creating hatred between the Hindus and Sikhs and by calling upon the Sikhs to
establish a separate homeland by resorting to violent methods. In reply to
a
representation by the Akali party for the release of-the appellant from detention
the Chief Minister of Punjab stated in the State Assembly that the appellant was
in Pakistan in November, 1971 aloagwith a Pakistani official, that he had been
phutographc.<l getting down from a Pakistani plane, and that he had made a
statement to a nc\vspapcr that 'India was a prison house for Sikhs; buti he did
not mention any of the grounds contained in the order of detention.
The appellru1fs petition for the issue of a \liTit of habeas corpus on the ground
that he had made arrangements to leave the conntry wa-; dismissed by the High
Court.
Disn1issing the appeal to tbis Court,
HEID: Clauses. (a) an<l (b) of s. 3(1) of the Maintenance of Internal Secu·
rity Act deal \1lith two different kinds of powers.
Under clause (a) power is
giYen to the State to detain any person including a foreigner for any of the purposes mentioned therein and under cl. (b) power is given to detain a foreigner
either for regulating his continued presence in India or for making arrangements
for his expulsion from India.
It is not only in a case where a foreigner wants to
1.:ontinue in India that the po\\'er to detain under cl. (a) \Vas available but it is
available even where, in order to avoid preventive detention, the foreigner offers
l:.l go out of the country.
[667 0-C]
12) It is not correcl to say that cl. (b) is beyond the legislative competence
of Parliament, and, that, therefore, the order under cl. (a) could only be made
with a view to regulate the presence of the appellant in India and not when the
appellant \Vanted to leave India. It is \\'ell established that various legislative
entries should be interpreted in a broad manner and if any legislation could be
brought within the ambit of any one or other of the legislative entries the validity
of the legislation cannot be questioned.
Entry 10, List I, Schedule VII to the
("'onstitution deals \Vith foreign affairs and all matters which bring the Union into
relations with a foreign country, would certainly cover cl. (b). Therefore, it is
within the competence of the detaining authority to exercise the power conferred
on it either under cl. (a) or cl. (b).
[667 C-D]
(3) The decision of this Court in I/ans Muller of iVurenburg v. S11perinte11dc11t, Presidency Jail, Ct1fcutta that section 3(1) (b) of Preventive Detention Act
\\'hich is exactly similar to s. 3(1)(b) of the ~faintenance of Internal Security
:\ct conferred power to nse -the means of preventive detention as one of the
nlethods of achieving expulsion of a foreigner Joes not mean thats. 3(1)(a) of
the Maintenance.of Internal Security A.ct cannot be used for the purpose for which
it is piainly intended.
[667 E-Fl
t_..J) The .1ppella11t. taking advantage of the fact that by race he is an Indian,
proposed to indulge in acti\·ities which were- ::i danger to lhe integrity and security
B
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BAKSHISH SINGH v. GOVT. OF INDIA (Alagiriswami, /.)
663
cf the country. The first duty of the State is to survive. To do so it had got to
deal with enemies both overt and covert whether they be inside the country O(
outside. The fact that the appellant, if released, would go to England and from
there continue to indulge in activities prejudicial to the security and integrity of
this country was a relevant factor in determining whether he could be detained
when he was found in this country. It is true that there is no law in this country
providing for extradition of persons against whom this country \vould consider it
necessary to pass an order for preventive detention.
But if such a person happened to come to this country he could be detained. It is not correct that a per-
<on like the appellant could be detained only if it was apprehended that if not
detained he would indulge in prejudicial actiYities \Vithin the country.
[669 E-F, HI
(S) Preventive detention is not a punisbn1ent for an offence. To accept the
argument of the appellant that only where the grounds of detention were based
on facts which could be held to amount to an offence either in India or in a
foreign country, that he. could be detained would make the grounds given in
s. 3(1) of the Maintenance of Internal Security Act. meaningless. Preventive
detention is an anathema to champions of individual liberty, but times being
\\'hat they are, the Constitution makers in their v;risdom have provided for it in
Art. 22. In the absence of a law dealing v.·ith the matter the courts will have to
decide whether the activities for which a person \Vas detained \V:\s one preiudicial
to the defence and security of India.
[669-D-E,HJ
(6) The District l\.1agistrate who n1ade the order of detention could uot have
known of the activities of the appellant which the Chief rtfinister mentioned in the
Assembly.
Moreover, the Chief Minister's reply was in answer to a demand of
the party for the appellant's release. The grounds of the appellant's detention
must have been known to then1.
The Chief Minister v..·as, therefore. only giving
!hem additional information whi<'h came tn hi~ knnv.·J .. rlg~ subseauently. Therefore, it could not be contended that the grounds for approval of the appellant's
detention were not the same grounds on which he was detained but some others.
Hence no malice in law has been established.
[670 C, E, Fl
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 116
of 1973.
Appeal by special leave from the juJgmcnt and order dated May
28. 1973 of the Punjab and Haryana High Court at Chandigarh in
Criminal Writ No. 9 of 1973.
B. K. Garg and S. C. Agarwala, for the appellant.
V. M. Tark1111de. S. K. Mehta and R. N. Sachthe.r, for respondents
,\Jos. I and 2.
·
The Judgment of the Court was delivered by
ALAGIRISWAM!, J. This is an appeal against the
judgment of
the High Court of Punjab·& Haryana dismissing the appellant's petition
under Article 226 of the constitution of India read with section 491
Cr. P.C. for the issue of a writ in the nature of habeas coruus or anv
other appropriate writ, order or direction for his production bdor~·
the Court and to be set at liberty. The appellant is a British citizen.
cmploved in the Accounts Branch. Head Post Office Brimingham ~u1d
General Secretary of the United Kingdom Akali Dal. He can1c
to
India on 6-11-1972 to attend the Bhog ceremony of Sant Fatch
Sineh who· died on 30th October, 1972. He was arrested on
I/;-Jl -
1972 in oursuance of an order for his detention under the provisions
of sub-section (2} of section 3 read with section 3(1 )(a)(i\ & (ii)
of the Maintenance of Internal Security Act. 1971.
This order was
;1pproved by the State Government on 27-11-1972.
The
Advi;o,-y
664
SUPUEME COURT REPORTS
[ 197 4 ] 1 s,c.R.
&lard's report in respect of the detention was made on :;'I· 1·1973
and the State Government confirmed the
order of detention
on
!6~1-1973. The grounds of detention were as follows:
"{a) That you on 11-11-72
held
secret meeting in
Gurdwara Rani
Bazar Sharifpura,
Amritsar
at
7.00 p.m ....... In the meeting yQu
told them
that the Sikhs could not get justice at the hands of
Hindus in India. Therefore, it was
necessary
to
secure Home Land for Sikhs by resorting to the use
of force as the Bania Government at the Centre
could not accept the demand of Sikh Home Land
by persuasion or other peaceful means. You further
assured them that there was no paucity of
funds
with U. K. Akali 'Dal and sufficient amount could
be made available which could be spent in the
achievement of Home Land on the lines suggested
above. You also inforn1ed them that your organisation (U.K. Akali Dal)
had made Rs.
50,000/-
available in India for use .for the achievement of the
Home Land. You further told them that you could
also be receiving sufficient money from your organisat;on in U.K. in the near future. You further
exhorted them to organise the movement in a svstematic manner, raising volunteers and setting offices
at suitable places in Punjab. You further
directed
them to collect arms, explosives· etc. for use for the
achievement of the object at the . proper time. YOU
further instigated them to create hatred
amongst
Hindus and Sikhs and cause communal disturbances
in Punjab. You also advised them to enlist large
number of paid workers who could work ·as "suicide
squads" at the proper time and till then their services
could he used in doing propaganda in the
villa•es
for creating favourable
atmosphere
amongst
the
Sikh masses in support of the creation of Sikh Home
Land.
"(bl That you on 12-11-1972 again addressed a
secret
meeting in Gurdwara
Rani
Bazar,
Sharifpura,
Anuitsar at 8.00 p.m. . . . . . . . . . . In this meeting
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you instigated· them that the Sikh community could
G
not SUf\'.iVe i,n India in the
present Hindu Raj.
Therefore, the Sikhs must secure separate
H~mc
Land by for<ie so that they could live with honowand dignity. [You further added that Sikhs
could
only prosper: if separate Home Land for Sikhs
is
achieved. You further instigated them
that
they
would have to make all sorts of efforts including use
H
of arms and indul~ence in violence in
order
to
achieve the Home Land. You further exhorted them
to enlist the services of young elements in the Sikhs
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BAKSH!SH SINGH v. GOVT, OF INDIA (A/agiriswami, /.)
665·
who would work whole-heartedly for the
achieve·
ment of the Home Land and were prepared to make
big sacrifices. You furtJ:ier informed them that your
organisation ( U.K. Akali Dal) would be prepared to
provide them with any amount they would be requiring for organising the movement and for purchasing
the arms etc. You further suggested that they should
create cells in the Sikh Units of Armed Forces of
India and police for enlisting their sympathy and
support which would be of great help for the crea·
tion of the Home Land. You also instigated them
to create hatred amongst the Hindus and Sikhs in
order to create tension and communal disturbances
which would be great help in achieving their object.
" ( c) That you again on 14· 1) · 1972
addressed
another
meeting at Jullundur. . . . . . . . . . . In this meeting
you told the participants that if the Sikh Home Land
was not achieved the Sikhs would be reduced
to
status of 'Ghasiaras' and they could not live
an
honourable life like a free citizen
of India and
further told them that the "Panth" created by sacri·
fices of
great Gurus would be eliminated. You
further instigated them that the Sikhs would have to
make ail sorts of sacrifices to achieve the Home
Land for Sikhs. You also suggested to them that the
active workers should propagate the ideology of Sikh
Home Land amongst the Sikh masses particularly
in youth and students. You further assured them that
you would arrange funds for them from U .K. for the
purchase of arms which could be used in the struggle
for the Home Land. He also suggested that the Sikhs
who go to U .K. should be asked to get arms licenses
in India and they would be provided arms in U.K.
by him free of cost. They on return could make use·
of these arms in the struggle for the Home Land.
You also instigated them to create tension amongst
the Hindus and Sikhs and cause aommunal disturbances. You also suggested the participants that they
should propagate in the Sikh masses that the Sikhs
were being given step-motherly treatment in
the
matter of selection of services in the 'Bania' Govern·
ment and to the Sikh agriculturists. Ail the participants assured you to work on the lines suggested
by y·ou."
To complete the narration of facts it is necessary to refer to the pro·
cecdings of the Punjab Legislative Assembly on 7-3-1973 in which'
the Chief Minister of Punjab replying to a representation for the release
of the appellant from detention did not mention any of the grounds
contained in the order of detention, but sought to iustify it by saying
that the petitioner was in Pakistan at Nankana Sahib at tl1c time of
Guru Nanak's Birthday in November 1971
alongwith
a Pakistani"
666
SUP~EME. COURT REPORTS
( 1974 j .1 S.C.R.
.official, that he had ~n photographed getting down from a Pakistani
plane, and that he had made a statement to a newspaper· that 'lni!ia
was a prison house for Sikhs.' The petitioner had also alleged in his
writ petition that when the Prime Minister of India visited -England
in 1971 the Sikh community residing in the U.K. had staged a
.demonstration expra%ing its concern against the Government of
India's interference in the management of Sikh Gurdwaras of Delhi
State by talcing over the management of the Gurdwaras and handing
-over the same to a Board nominated by it from
amongst its own
henchmen, that the Prime Minister of India was annoyed and irritated
.on account of this demonstration and the petitioner being one of the
foremost organisers of that demonstration incurred the displeasure of
the Prime Minister's partymen and under their direction a false story
has been concocted to harass 1:Wn and to prevent him to return · to
England to join his service. Nothing was, however, said about this
during the cours.; of the ~:guments.
Mr. Garg did not seek w argue nor could he argue that any of the
grounds given for the appellant's detention were vague or irrelevant.
1t is now settled law that preventive detention is not a punishment for
the past activitfos of a person but is intended to prevent the person
detained from indulging in future in activities which may produce the
results mentioned in section 3 of the Maintenance of Internal Security
Act. It is also well settled that the Court will not go into the truth or
otherwise of the facts alleged as grounds of detention. The sufficiency
of the grounds for detention. is not also a matter which the court will
go into. There can also be so doubt that the appellant's activities
detailed in grounds (a) to ( c) bring hjs .:ase squarely wit'iin
the
ambit of sub-clauses (i) & (ii) of clause (a) of sub-section (1) of
.'ection 3 of the Maintenance of Internal Security Act.
The argument, however, was advanced that in respect of a foreigner
clause (a) of sub-section 3 (1) should be read along with clause (b)
of that sub-section, and if so read an order of detention in respect of
a foreigner can only be made with a view to regulate his continued
presence in India and to making arrangements for his expulsion from
"lndia. ft was, therefore, urged that as the appellant had made arrange·
ments for his departure to England on 18-12-1972, his detention for
purposes other than that of regulating his presence in India or making
arrangements for his expulsion from India was illegal. It was also
urged thμt even at this stage the appellant is anxious to go to England
and that he would be satisfied if an order is made to talcc him under
proper escort and put him on a plane leaving for England. We are not
impressed with this argument. The power of a State to
deal
with
foreigners committing offences inside its territory is not in
dispute.
The power ')f a State to detain even a foreigner who is found inside
its territory in order to prevent him from indulging in preiudicial activities inside its territory cannot also be questioned. Mr. Garg did not
seek to question the power of Parliament to legislate with regard to
that subject. But .he contended, however, that the power of Parliament
in respect of preventive detention is found in Entry 9 .of List l.
~chedulc VfI of the Canstitution. and the power of the Parliament
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BAJ\,SHISH SINGH v. GOVT. OF INDIA (Alagiriswa111i, J.)
6~7
and the State Legislature in entry 3 of the Concurrent list, that clause
( b) of section 3 ll) of the Maintenance of Internal Security Act will
not fall under either of those entnes and that onJy clause la) will fall
within the ambit of that power and :he power given by clause (b}
can therefore be used onJy in aid of the power given by c.ause (a).
We are unable to accept tnis comention either. Gause (a) and clause
(b) deal with two drtterent lands ot powers.
Under clause (a) the
power is given to the State to detain any person, including a foreigner
for any of the purposes mentioned in that clause. Un•ler clause \b)
power is given to detain a foreigner either for regulating his continued
presence in India or for making arrangements for his expulsion rrom
India. It is within the competence of !he detaining authority to exercise
the power conferred On it under clause (a) or Clause (b). ln this C<ISC
the order of detention is made under clause (a) and therefore clause
(b) does not come into picture at all. We are not able to agree with
the contention that clause (b) would be beyond the legislative compc
tence of Parliament unless it is interpreted in the manner in which Mr.
Garg wants it to be interpreted. It is well established that the variou'
legis1ative entries should be interpreted in a broad manner and if any
legislation could be brought within the ambit of any one or other of
the legislative entries the validity of that legislation cannot be ques
tioned. Entry 10, List I, Schedule VU : Foreign Affairs; all matters
which bring the Union into relation with any foreign country, would
certainly cover clause (b). We may also refer to the Foreigners Act,
1946 which confers much more stringent powers in relation to a
foreigner than clause (b). It has not been argued t.hat those powers
arc not valid or that the Foreigners Act is not a valid piece of legis·
lation. We may legitimately presume that the laws of various countrie'
of the world confer aimilar powers on their respective Governments
in relation to foreigners. In Hans Muller of Nurenburg v. Superin·
tendent Presidency Jail, Calcutta & Ors.(") this Court held that section
3(l)(b) of the Preventive Detention Act, 1950, which is
exactly
similar to clause (b) of section 3 (1) of the Maintenance of Internal
Security Act, as well as section 3(2)(c) of the Foreigners Aot 1946,
on which it is based are not ultra vires of the Constitution. It was also
held that section 3(1) (b) of the Preventive Detention Act is reasonably related to the purpose of the Act, namely preventive detention,
inasmuch as the right to expel a foreigner conferred by s. 3 (2) of the
Foreigners Act on the Central Government and the right to make
arrangements for expulsion include the right to make arrangements
for preventing any brooch or evasion of the order; and the Preventive
Detention Act confers the power to use the means of preventive
detention as one of the methods of achieving this end. This decision
does not mean thats. 3(l)(a) conld not be used for the purposes for
which it is plainly intended.
We are conscious that the whole question at issne in this case is ·
not whether the appellant could be detained in order that he might
be expelled but whether he could continue to be detained except . for
that purpose. In the face of the very clear provisions of section 3 ( 1 ) (a}
(I) [1965) (I) S. C. R. 1284
<EHiS
SUPREME COURT REPORTS
[ 1914 J 1 s.c.R.
we have no doubt on that point. Indeed the Parliament scans to have
·specifically contemplated the contingency and provided for it. It is not
-Ollly in a case where a foreiguer wants to continue in India that the
JX'Wer is. available but even where in order to avoid preventive detention he offers to go out of the country. It was urged that to place such
an interpretation on this provision would be contrary to Article 51 of
the Constitution, that if at all possible the secition should be so inter·
preted as not to conflict with the provisions of Article 51. We see no
such contradiction if it is interpreted as we have done. Reliance was
placed upon a statement in Starke's Introduction to International Law
(7th Edn.) found at page 348 where it is stated that "Detention prior
to expulsion should be avoided, unless the alien concerned refuses to
leave the State or is likely to evade the authorities. Reference was also
made to Oppoenheim's International Law (7th E<ln.) where at page
631 it is stated that "Just as a State is competent to refuse admission
to an alien, so, in conformity ·..1th its territorial supremacy, it is competent to expel at any moment an alien who has been admitted into
its territory." It was urged that that is the only power which State has in
dealing with an alien who had come to a country under a passport
which, as was held by Lord Alverstone, C.J. in R.v. Brailsford,(') is a
document issued in the name of the Sovereign on the responsibility of
a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that
individual's protectioru as a British subiect in foreign countries. It was
therefore, urged that to detain a foreigner who bas come to the oountry
with a passport would be a breach of international amity. It is obvious
in this case that the appellant taking advantage of the fact that by
race be is an Indian proposed to indnlge in activities which are a
danger to the integrity and security of this country. The first duty of a
state is to survive. To do so it has got to deal with enemies both
overt and covert whether they be inside the country or outside. This
fact that the appellant if released would go to England
and from
there continue to indulge in activities prejudicial to the security and
integrity of this country, is a relevant factor in determining whether
he could be detained in this country when he is found in this country.
It is not necessary for the purposes of this case to consider whether
if the appellant had not come to this oountrv at all and stayed in
England and continued to indulge in activities prejudicial to the
integrity and safety ·Of this country a detention order could be passed
against him and he could. be brought to this country. Even persons.
whether they are Indian citizens or foreigr,ers. who Ju,ve committed
crimes in this oountrv but have e>caped to another country could be
brought back only if there are extradition arrangements with
the
country to which they have escaped and the offence is an extraditable
offence. We are aware that there is no law in this country providing
for extradition of persons against whom this country would consider
it necessarv to pass an order for oreventive detention. It is not to be
assumed that this country will indulge in such a useless and pointless
exercise. But that is quite different from saying that there cannot be
(1) [1905] 2 K. B. 730.
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a law in this country providing for such detention. But if such. a person
IJappens to come to this country we presume he can be detamed. We
tlo not accept the argument that a person like the appellant could be
detained only if it is apprehended thitt if not
detain~d .he
wo~ld
iooulge in prejudicial activities in this country and not 1f his a7tiv!~es
are outside this country even though they may have a
pre1ud1crnl
effect on this country. Take the oase of a person acting prejudicially
to the security of a State in this country while residing in another
State. We have no doubt that he can he detained by the former State.
The same analogy applies to thi~ case. International Law dCJ:OS
not
seem to deal with the case of nationals of one country acting m that
country to the prejudice of the security and integrity of another
country and whether anything could be done about th~m. To allo;v
a person like the appellant to go back to England at his request m
spite of the certainty that while in England he will continue to indulge
in activities prejudicial to the security and integrity of this country
would he like the aotion of some foolish people who take a rat caught
in a trap in their house ~o the road and release it.
It was urged that only where the grounds of detention were based
on facts which can he held to amount to an offence either in India 01·
in a foreign oountry for which he could be •punished could he be
detained. We are not able to appreciate the import of this argument.
As is well known, preventive detention is not a punishment for an
offence. To accept the argument on behalf of the appellant wonld
make the grounds given ins. 3(1) of the Maintenance of Internal
Security Act meaningless. Take for instance action prejudicial to the
relations of India with foreign powers. As far as we are aware, there
is no law enabling anybody in India to be punished for acting in a
manner prejudicial to the relations of India with foreign powers. It
cannot however be argued that detention on that ground is not permissible. Take again the case of activities prejudicial to the Defence of
India. For the present of oourse, we have the Defence of India Act
siill in force. Let ns assume a period when it was not in force, does
it mean that a person acting in a manner prejudicial to the defence of
India cannot be detained even though there is no law dealing with
that question. That is why the Preventive Detention Act, 1950, which
was passed when there was no war and no emergency, provided for
detention on the same grounds as in Maintenance of Internal Security
Act. In the a.bsence of a law dealing with that question, naturally
enough the courts will have to decide whether the activity for which
a person,is detained is one prejudicial to the defence of India; so also
an activity prejudicial to the security of India. Defence of a oountry
or the security of a country is not a static concept. The days are gone
by when one had to worry about the security of a country or its
defence only during war time. A country has to be in a perpetual state
of preparedness. Eternal vigilance is the price of liberty. So it is that
the founding fathers with considerable wisdom and foresight provided
for laws for preventive detention and the limitations thereon
men·
tioned in Article 22 of the Constitution. Preventive detenfon is of
C01!f8e, an anthema to champions of individual liberty.
But times
being what they are, the Constitution makers in their wisdom have
670
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[ 1974 J 1 s.c.R.
provided for it. lt is not necessary to give further examples to show
that prejudicial activities contempiated under section 3 (l)
of the
Maintenance of Internal Security Act are not necessarily activities
prohibited or made punishable by a specific provision of law. The
cases rehed upon to support the contrary proposition should be con·
fined to the facts of those cases.
The only other question that remains to be dealt with is the one
that arises out of the statement of the Chief Minister of Punjab in the
Legislative Assembly on 7-3-1973. The argument is that the Chief
Minister's reply shows that the appellant has been detained and is,
oontinued to be detained, not for the reasons which were intimated
to him in the form of grounds of detention but really for the reasons
mentioned in the Assembly and the detenticrn is therefore, bad. It is
pertinent to remember in this context firstly that the order for the
detention of the appellant was made by the District Magistrate of
Amritsar. He could not have known of the activities of the appellant
which the Chief Minister mentioned in the Assembly. Secondly, the
approval by the Government of Punjab of the appellant's detention
was made on 16·1·1973. There is nothing to show that on that day the
Government of Punjab knew of the matters which the Chief Minister
brought up in the Legislative Assembly on 7-3-1973, and the deten·
tion was approved by the Government onJy for those reasons. We are
not prepared to assume, as was urged on behalf of the appellant, that
the_ three matters mentioned in the Chief Minister's speech should
have come to the notice of the Indian High Commission as soon as
they took place and that they should have alerted the Punjab Govern·
ment at once. There is no warrant for such an assumption. Except that
one of the activities is said to be in 1971, we do not even know about
the dates of the others. Moreover, the Chief Minister's reply was in
answer to the demand of the Akali Dal Party for the appellant's
release. The grounds of appellant's detention must have been known
to them. The Chief Minister should, therefore, have been giving them
additional information which came to his knowledge
subsequently.
We are not, therefore, prepared to asswnc that the grounds for
approval of the appellant's detention were not the same grounds on
which he was detained but some others, and therefore malice in law
has been established.
Furthermore, by a Presidential order Articles
14, 19 and 22 of the Constitution have been suspended during the
subsistence of the Proclamation of Emergency. This oontention
is
based on decisions of this Court interpreting Article 22. They . are,
therefore, irrelevant in considering a petition under section 491 Cr.
P.C.
We see no merit in the points raised on behalf of the appellant.
The appeal is dismissed.
P.B.R.
Appeal dismissett
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