# Maret 27. ·612 :SUPREME. COURT REPORTS [1952] DATTATREYA MORESHWAR PANGARKAR v. THE STATE OF BOMBAY AND OTHERS

- **Citation:** [1952] 1 S.C.R. 612
- **Court:** Supreme Court of India
- **Decided:** 1951-02-15
- **Bench:** PATANJALI SASTRI c. J, Meher Chand Mahajan, MuKHERJEA, DAs, Chandrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maret-27-612-supreme-court-reports-1952-dattatreya-moreshwar-pangarkar-v-the-54
- **Pages:** 33

## Headnote

Preventive Detention Act (IV of 1950), s. 11 (1)-Confirmatioo
of detention order after report of Advisory Board-Period of ft<rther
detention not specified-Order not expressed to be in the name of
Governor-Validity
of
detention-Executive
decisions-Mode
of
er{lression-Constitution of India, Art. 166 (1) and (2)-Whether
directory or mandatory.
Section 11, sub-s. (I), of the Preventive Detention Act,
195(),
provided that "in any case where the Advisory Board has
reJX>rt~
ed that there is in its opinion sufficient cause for the detention
of a person, the appropriate government may confirm the deten~
tion order and continue the detention for such period as it thinks
fit".
The case of the petitioner who was arrested under the Act
was referred to the Advisory
Board and on receiving a report
from
the Board that in its opinion there was sufficient cause for
the detention of the petitioner the Government decided to confirm
the order of detention and this decision was communicated
to
the District Magistrate. by a confidential letter signed by
the
Assistant Secretary to the Government for the Secretary to
the
Government. The material portion of the letter ran thus:-
11Thc
Government is accordingly pleased to confirm the detention order
against the detenue.
Please inform the detenue accordingly and
report compliance." In an application for a writ in the nature
of habeas corpus it was contended on behalf of the petitioner
that his detention was illegal: (i) because the Government had at
the time of confirming the order omitted to specify the" period
during which, the detention should continue; (ii)
because the
ordCr of confirmation was not expressed to be made in the name
of the Governor as required by Art. 166 (1) of the Constitution:
Held,
per PATANJALI
SASTRI
C.J.,
MUKHERJEA,
DAs and
CHANDRASEKHARA
A1YAR _JJ.
(MAHAJAN
J. dissenting)-that thet
Omission to state the period 9f further dete,ntion while confirming the detention order under s. 11(1) .of the
Preventive
Detention Act could not render the detention illegal because, per
PATANJALI
SAsTRI C. J. and DAs
J.~n a proper construction
of s. 11 (!), a specification of the period of continuation of the
detention is not necessary, however desirable it may be; per
MuKHERJEA and CHANDRASEKHARA A1YAR0 JJ.-though s. 11 (!)
docs contemplate that a
period should be· inentioned during
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S.C.R.
St1Pl{EME COURT REPORTS
613
which the further detention of the detenue is to Continue, mere
omission to do so would not make the order a nullity and
justify release of the detenue.
Held also, per PATANJALI SAsTRl C. J., MuKHERJEA, DAs and
CHANDRASEKHAR.A
A1YAR, JJ ., that though
the Preventive Detention Act contemplates and requires the taking of an executive decision for confirming a detention order tinder s. 11(1), omission to
make and authenticate that executive decision in the form mentioned in Art. 166 will not make the decision itself illegal for the
provisions in that article are merely directory and not mandatory.
Per
MuKHERJEA and CHANDRASEKHARA
A1YAR
JJ.-Section 11(1) c;if the Preventive Detention Act does contemplate a
formal order of confirmation and Art. 166(1) of the Constitution
would apply to the case ; clauses ( 1) and (2) of the said article
must however be read together.
While cl. ( 1) relates to the mode
of expression of an executive order or instrument, cl. (2) lays
down the way in which such order is
to
be
authenticated, and
when both these forms are complied with, an order or instrument would be immune from challenge in a court of law on the
ground that it has not been made or executed by
the Governor
of the State.
Even if cl.
( 1) is taken to be in independent provision uμconnected with cl. (2) and having no relation to the purpose indicated therein, cl. ( 1) is directory and not imperative in
its character.
MAHAJAN J.-Section 11(1) of the
Preventive
Detention Act
contemplates that when the report of the Advisory Board
reaches
the Government it has to come to a decis

## Text

_Characters 0–39,761 of 73,110. This is a partial read: ask again with offset=39761 for what follows._

1952
. Maret.. 27.
·612
:SUPREME. COURT REPORTS
[1952]
DATTATREYA MORESHWAR PANGARKAR
v.
THE STATE OF BOMBAY AND OTHERS
[PATANJALI SASTRI c. J., MEHER CHAND MAHAJAN,
MuKHERJEA, DAs and CHANDRASEKHARA
AIYAR JJ.]
Preventive Detention Act (IV of 1950), s. 11 (1)-Confirmatioo
of detention order after report of Advisory Board-Period of ft<rther
detention not specified-Order not expressed to be in the name of
Governor-Validity
of
detention-Executive
decisions-Mode
of
er{lression-Constitution of India, Art. 166 (1) and (2)-Whether
directory or mandatory.
Section 11, sub-s. (I), of the Preventive Detention Act,
195(),
provided that "in any case where the Advisory Board has
reJX>rt~
ed that there is in its opinion sufficient cause for the detention
of a person, the appropriate government may confirm the deten~
tion order and continue the detention for such period as it thinks
fit".
The case of the petitioner who was arrested under the Act
was referred to the Advisory
Board and on receiving a report
from
the Board that in its opinion there was sufficient cause for
the detention of the petitioner the Government decided to confirm
the order of detention and this decision was communicated
to
the District Magistrate. by a confidential letter signed by
the
Assistant Secretary to the Government for the Secretary to
the
Government. The material portion of the letter ran thus:-
11Thc
Government is accordingly pleased to confirm the detention order
against the detenue.
Please inform the detenue accordingly and
report compliance." In an application for a writ in the nature
of habeas corpus it was contended on behalf of the petitioner
that his detention was illegal: (i) because the Government had at
the time of confirming the order omitted to specify the" period
during which, the detention should continue; (ii)
because the
ordCr of confirmation was not expressed to be made in the name
of the Governor as required by Art. 166 (1) of the Constitution:
Held,
per PATANJALI
SASTRI
C.J.,
MUKHERJEA,
DAs and
CHANDRASEKHARA
A1YAR _JJ.
(MAHAJAN
J. dissenting)-that thet
Omission to state the period 9f further dete,ntion while confirming the detention order under s. 11(1) .of the
Preventive
Detention Act could not render the detention illegal because, per
PATANJALI
SAsTRI C. J. and DAs
J.~n a proper construction
of s. 11 (!), a specification of the period of continuation of the
detention is not necessary, however desirable it may be; per
MuKHERJEA and CHANDRASEKHARA A1YAR0 JJ.-though s. 11 (!)
docs contemplate that a
period should be· inentioned during
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S.C.R.
St1Pl{EME COURT REPORTS
613
which the further detention of the detenue is to Continue, mere
omission to do so would not make the order a nullity and
justify release of the detenue.
Held also, per PATANJALI SAsTRl C. J., MuKHERJEA, DAs and
CHANDRASEKHAR.A
A1YAR, JJ ., that though
the Preventive Detention Act contemplates and requires the taking of an executive decision for confirming a detention order tinder s. 11(1), omission to
make and authenticate that executive decision in the form mentioned in Art. 166 will not make the decision itself illegal for the
provisions in that article are merely directory and not mandatory.
Per
MuKHERJEA and CHANDRASEKHARA
A1YAR
JJ.-Section 11(1) c;if the Preventive Detention Act does contemplate a
formal order of confirmation and Art. 166(1) of the Constitution
would apply to the case ; clauses ( 1) and (2) of the said article
must however be read together.
While cl. ( 1) relates to the mode
of expression of an executive order or instrument, cl. (2) lays
down the way in which such order is
to
be
authenticated, and
when both these forms are complied with, an order or instrument would be immune from challenge in a court of law on the
ground that it has not been made or executed by
the Governor
of the State.
Even if cl.
( 1) is taken to be in independent provision uμconnected with cl. (2) and having no relation to the purpose indicated therein, cl. ( 1) is directory and not imperative in
its character.
MAHAJAN J.-Section 11(1) of the
Preventive
Detention Act
contemplates that when the report of the Advisory Board
reaches
the Government it has to come to a decision and pass an order in
accordance with that decision against the detenue to the effect
that in view of the report of the Advisory Board the detention
order is continued for a certain period and failure to fix the
period of further detention would make the detention illegal.
A. K. Gopalan v. The State ([1950] S. C.R. 88}, Makhan Singh
Tarsikha v. The State of Punjab ([1952] S.C.R. 368), S. Krishnan v.
The State of Madras ([1951] S.C.R. 621), Chakar Singh v. The
State of Punjab (Petition No. 584 of 1951) and /. K. Gas Plant
Manufacturing Co. Ltd. and Others v. King Emperor ([1947] F.C.R.
14 l) referred to.
ORIGINAL JuRrsmCTION.
Petition (No. 683 of 1951)
under Art. 32 of the Constitution of India for a writ
in the nature of habeas corpus.
The facts are set out
in detail in the judgment.
Bawa Shiv Charan Singh (amicus curiae) for the
petitioner.
M. C. Setdvad, Attorney-General for
lhdia
(/tndra
Lal, with him) for the respondents.
3-7 S. C. India/71
1951
Dattatrtytl
Moreshwar ·
Pangorlc.ar
. v.
The State of
Bombay
aml Others,
1952.
Dattatreya
Moreshwar
Pangark_ar
.-v.
The State of
Bombay
11nd Other"1.
Da1 ].
614
SUPREME COURT REPORTS
[1952}
1952.
March 27. The Court delivered judgment
as follows :-
DAs J.-This is an application under article 32 of
the Constitution for the issue of a writ in the nature of
habeas cr>rpus and for the immediate release
of
the
petitioner who is alleged to have been kept in illegal
detention in Baroda Central Prison.
· On February 15, 1951, the petitioner was arrested
under an order made on February 13, 1951, by the
then District Magistrate, Surat, in exercise of
powers
·conferred on him by the Preventive
Detention
Act,
1950. A copy of the said order was served on the
petitioner at the time of his arrest. On the same date
grounds of detention were served on the petitioner as
required by section 7 of the Act.
It was specifically
mentioned in the grounds that it was not in the public
interest to disclose further facts.
The petitioner moved
the High Court of Bombay under article 226 of the
Constitution complaining that his detention was illegal
and praying that he should be forthwith released.
In
that application one of the points urged was that the
grounds in support of the detention were false, vague
and fantastic and that the detention order was made
fu bad faith.
Two affidavits were filed on behalf of
the State in support of the detention order. That application was, on April 17, 1951, dismissed by the Bombay High Court.
In the meantime, the case of the
petitioner was placed before the Advisory Board which
on April 5, 1951, made a report stating that in its
opinion there was sufficient cause for the detention of
the petitioner. According to the affidavit of Venilal
T ribhovandas Dehejia, Secretary to the Government of
Bombay, Home Department, filed in answer to the
present application, this report of the Advisory Board
was placed before the Government and, on April 13,
1951, the Government decided to confirm the order of
detention. This decision was, on April 28, 1951, communicated to the District Magistrate, Surat, in a confidential letter in the terms following :-
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$.C.R.
SUPREME COURT REPORTS
615
Confidential letter
No. B.D. II/1042-D (11)
Home Department
(Political)
Bombay Castle,
28th April, 1951.
To
The District Magistrate,
Surat.
Subject :-Preventive Detention Act, 195~
Review of detention orders issued under theReference your letter No. Pol. 1187 JP, dated the 23rd
February, 1951, on the subject noted above.
2. In accordance with section 9 of the Preventive
Detention Act, 1950, the case of detenue Shri · Dattatreya
Moreshwar Pangarkar was placed before the Advisory
Board which has reported that there is sufficient cause
for his detention, Government is accordingly
pleased
to confirm the detention order issued against the
detenu. Please inform the detenu accordingly
and
report compliance.
3. The case papers of the detenu are returned
herewith.
Sd/- G. K. Kharkar,
for Secretary to the Government of Bombay,
Home Department.
It also appears from the aforesaid affidavit that Sri
G. K. Kharkar who signed the letter for the Secretary
to the Government of Bombay,
Home Department,
was at the time an Assistant Secretary and, as such,
was, under rule 12 of the Rules of Business made by
the Government of Bombay under article 166 of the.
Constitution, authorised to sign orders and instruments
of the Government of Bombay.
The petitioner has now moved this Court under
article 32 of the Constitution complaining that he is
being
unlawfully detained.
The only
question is
whether he has been deprived of his personal liberty
in accordance with procedure established by law.
He
1952
Dattatreya
Moreshwar
Pangarkar
v.
'The State of
Bombay
and Oth"s.
Dattatreya
Mbreshwar
Pangarkar
v.
The State uf
Bombay
tmd Others.
_Das /.
li16
is said to be detained by rhg State In exercise of powers
conferred on it by the Preventive Detention Att, 1950;
·as . amended in 1951. The State must, accordingly,
satisfy us that the procedure established by law has
been
s~ictiy followed.
Although
a supplementary
petition has been filed in this Court complaining that
the grounds supplied to him are false, vague,
lacking
in particulars and insufficient to enable the petitioner
to make an effective representation against the order
of detention, it has not; however, been pressed before
us by learned counsel appearing as aniictls curiae in
support af the application.
At the hearing before us,
learned counsel has confined his arguments to challenging the validity of detention of the petitioner on two
grounds, namely, (1) that the State Gdvernment has
•failed to cdmply with the requirements of section 11(1)
tJf the amended Act ih that at the time of confirming
the detention order it oniitted to
specify the
period
thitihg which the detention would contihik, and (Z)
that the order of confirmation is not in proper legal
form, in that it is riot expressed to be made in the
name of the Governor as required by article 166(1) of
the Constitution.
Ground No. 1. The validity of this ground of attack
depends ori :i j:iroper understanding of section 11 ( 1) of
the Prevehtive Detention Act,
Which, as amended,
runs as follows :~
" ( 1) 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 t.he
detention for such period as it thiks fit".
The argument is that the sub-section contemplates
a decision containing two things, namely, (1) a confirmatiol). of the detention order and (2) a direction fot
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the continuantion of the detention.
I do riot think this
arglimer\t is sound, for if the intention were that both
the thing. should be included in an order then the
sub-section would have been worded _ differently.
It
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would have ended by saying that "the
appropriate
I..
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Goverpment !llay make an order cpnfirming the dei~J}.·
tion order and continuiqg the
detention for
suc;:h
period as it thinks fit". Grammatically section lJ (1)
confers two powers, namely
(1)
the
appropriat~
Government rnay confirm the detention order and (2)
the appropriate Government may continue the deten•
tion for such period as it thinks fit. The confirmation
of the detention order
certainly
contemplates
the
taking of .an executive decision, but the detenu being
l).lready in custody and the detention order being coil~
firmed
his
detention continues
automatically
anq;
therefore, no further executive d~cision is called for to
continue the detention. It follow~ that it is not nece~
sary to include a direction for the continuation of the
detention
iI).
the decision confirming the detention
order.
It is
next suggested that the words "such -period"
· in the sub-section dearly imply that it is necessary to
specify the period during which the detention would
continue, for if the intention of Parliament were otherwise, the section would have stopped after the words
''may continue his detention". It is urged that if, as
hdd by this Court in Petition No. 308 of 1951
(Makhan Singh Tarsikka v. The State of Punjab), it is
illegal, after the amendment of the Act, to mention
any period of detention in the initial order of
deten~
tion made under section 3 of the Act and if no period
of detention need be mentioned at the time of confirmation
under secti9n 11 (1)
then the · appropri~te
Government will; after confirmation, lose sight of the
case and the detenu will be detained indefinitely.
It
is suggested that if two constructions are possibie, the
ooe that advances the interests ot the subject should
be adopted.
I do not think ·that two constructions
are possible at all or that the suggested construction
will be of any advantage to the
detenue
for reasons
w)licl}. I proceed to state briefly,
There can be no two opinions that detention withi;>ut t,rial is odious at all times and that it is desirable,
fherdfore,
in oases of preventive <letention
that a
definite period of detention should, if possible, . ~
Dauatreya
Mgreshw11r
Pnqgarkt1r
v.
'f lze State of
Bombay.
atJd Othm.
Pas/.
l95i
Dattatreya.
Moreshwar.
P<ingark._ar
v.
The State of
Bombay
and Others.
-·-
Da> J.
6i8
SUPREME COURT REPORTS
[1952]
specified.
But whether the Act, on a true construction of it, requires such a specification of period
is an entirely different question and to answer that
question regard must be had to the actual language used in the Act. If the intention of
Parliament
were that the period during which the detention
would be continued must be
specified
then
the
sub-section · 11
(1)
would
have
empowered
the
appropriate authority to continue the detention for
such "period as it thinks fit to specify" instead of
~'as it thinks fit". Further, the notion that nonspecification of the period will continue the detention for an
indefinite period need not oppress us unduly because
.the Act itself being of a limited duration such detention must nece.sisarily come to an end on the expiry of
the
Act. In A. K. Gopa!.an's case('), Kania C. J. at
page 126 said :-
"It was argued that section 11 of the impugned
Act was invalid as it permitted the continuance of the
detention for such period as the Central Government or
the State Government thought fit.
This may mean anindefinite period. · In my opinion, this argument has
no substance because the Act has to be read as a
whole;
The whole life of the Act is for a year and therefore the argument that the detention may be for an
indefinite period is unsound."
To the like effect were the following observations of
Mahajan J. at page 232 :-
.. "Section 11 of the Act was also impugneJ on the
ground that it offended against the Constitution inasmuch as it · provided for preventive detention for , an
indefinite period.
This section in my opinion has to
be read in the background of the provision in
subclause (3) .of section 1 of the Act which says that the
Act will cease to have effect on .1st April, 1951".
These observations were made on section 11 of the
Act as it stood before the amendment of the Act.
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That section has been substantially, if not verbatim,
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reproduced in section 11 (1) of the amended Act and
(I) [1950] S.C.R. 88.
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S.C.R.
SUPREME COURT REPORTS
619
accordingly the above observations will apply to the
present section 11 (1) with equal force and cogency.
Indeed in S.
Krishnan v. The State of ·Madras(1)
Sastri J., as he then was expressed himself as follows
in connection with the present section 11 (1) :-
"The objection to the validity of section 11 (1)
can be disposed of in a few words. The argument is
that the discretionary power given to the appropriate
Government under that sub-section to continue
the
detention "for such period as it thinks fit" authorises
preventive detention for an indefinite period, which is
contrary to the provisions of ~tide 22 (4). But, if as
already observed, the new Act is to be in force only
up to 1st. April, 1952, and no detention under the Act
can continue thereafter, the discretionary
power could
be exercised only subject to that over-all limit."
Two points clearly emerge out of these observations
as I comprehend them.
The very argument as to the
invalidity of the section could not be raised at
all
except on the basis that the section, by itself and on a
true interpretation of it, permitted an indefinite detention. Iii the second place, this argument was met by the
Court, not by saying that that was not the correct meaning of the section and that on the contrary the words
"such period" necessitated the fixation of a
definite
period of detention but, by saying that the life of the
Act being limited, the duration of detention permitted
by the section was in any event co-terminous
with
the life of the Act and could not go beyond it. This
answer of the Court makes it clear that the Court fully
recognised that the section, by itself and on its true
iriterpremtioo., stanctioned an indefinift1e
d!etention oot
held that that contingency had been averted by the
fact that the Act itself was of a limited duration.
It
is said that the section should be . construed
irrespective of whether it occurs in a temporary statute
or a
permanent one, and
it is urged that if the statute
were a permanent one the section, on the aforesaid interpretation, would have permitted an indefinite detention.
The answer is given by Mahajan J. in the
(1. [1951] S.C.R. 621 at P. 629.
.
1952
E>attatreya
Moreshwar
Pangarkar
\·
v.
The State of
Bombay
and 0 thers.
Das/.
1952
Dqttatrey4
Mortshwar
Pangarkar
. v.
The Stai. of
and OtAttt.
Bombay
Das/.
62Q
StJJ'REME COURT REPORTS
[!952]
following passage in his judgment in S. Krishnan v.
'The State of Madras (supra) at page 639 with which I
concurred :-
"It may be pointed out that Parliament may well
have thought that · it was unnecessary to fix any
maximum period of detention in the new statute which
was of a temporary nature an.cl whose own tenure of
life was limited to one year. Such temporary statutes
~ease to have any effect after they expiJ'.e, they autoroatically come to an end at the expiry of the. period
for which they have been enacted and nothing further
pm be don; under diem. The dereptjon of the petitioners therefore is bound to c0me to an end automatii:al\y with the life of the statute and in these cir-
~umstanc~s Parliament may . well have thought that it
would be .wholly ·unnecessary to legislate ;ind · provide
a maximum period of detention
for
those detained
under this law.''
For all I know, such drastic and extensive power to
i:ontiriue the detention· as long as it may think fit may
not be given by Parliament to the executive
Government in a permanent statute.
But if it does think fit
·to do so, it will not be for the Court to question the
knowledge, wisdom or patriotism ·of the Legislature
and to permit its dislike for the policy of the law to
·prevail over the plain meaning of the language used
by the Legislature. Apart from
this consideration,
there is a period specified in the sub-section
itself,
for as·. soon as the appropriate Government will cease
'tO think fit to continue the detention it will revoke
·the detention order under section i3 and the period
of detention will automatically come to an end. Again,
. if the idea of indefinite detention were so repugnant
·as to induce us to construe sub-section 11(1} by reading inti:> it the . requirement that the period of detention
must be specified at the time the ,order of detention is
confirmed; it will lead us to a situatio11 which cannot
-be maintained In view of a decision of
this
Court.
The section, ir will be noticed, does not authorise the
'.apprapriate · Government to
"continue
the ·detention
for such period as it thinks fit from tirn~ to time."
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S.C.R.
SUPREME COURT REPORTS
621
Therefore, the power conferred on the
appropriate
Government by this sub-section will be exhausted by
its single exercise and it will not be possible to extend
the period of detention any longer. This view of the
matter will, however, run counter to our decision in
Petition No. 584 of 1951, Chakar Singh v. The State of
Punjab, where it has been held that there is nothing
in section 11 ( 1) to prevent the appropriate
Government from directing the detention of a person to
continue further
so
long as
the period fixed
bv
the previous order has not expired and the person
has not
been released.
According to this
decision
the appropriate Government may
direct
the
detention to continue even after the expiry of the period
fixed by the order confirming the detention order or
any subsequent
order
provided such directions
are
:given before the expiry of the period fixed by the immediately preceding order.
From what source does the
appropriate Government derive its power to direct the
further continuation of the detention after having, in
the order of confirmation, once specified the period of
petention ? Section B of the Act gives power to the
.appropriate Government to revoke or amend a detention order which must mean the initial order of detention under section 3 of the Act but not an order made
under section 11 (1) confirming a detention order
or
fixing a period of detention.
Therefore, the authority
to extend the period of · detention
previously
fixed
which, in view of our decision, must be held· to exist,
will have to be derived from the very words
"may
continue such detention for such period as it thinks
fit". It follows, therefore, that the specification of the
period of detention . does not destroy or abridge
the
wide over-all power of the appropriate Government to
direct the continuation of the detention as long
as it
thinks fit.
If the specification of the period of detention is not at all sacrosanct and the appropriate Govern-
,ment may nevertheles·s continue the detention as long
as it thinks fit to do so, why is the specification of a
.period to be regarded
aJ> vitally or at all necessary ?
SP far as· the detenu. i~ concem~; · . his
detention
will
l952
Dattatreya
Moreshwar
Pangarka1
v.
T /le State pf
Bombay
and Others.
Das f.
1952
Dattatreya
Mot:eshwar
Pangarkar
v.
The State of
Bombay
and Others.
Das/.
622
SUPREME COURT REPORTS
[1952]
not be any more definite and less irksome if it is open
to the appropriate Government to continue the detention by an indefinite number of orders made from time
to time until the expiry of the Act itself by affiux
of
time in the case of a temporary statute or by its repeal
in the case of a permanent Act. It is said that if we
insist on a specification of a definite period when the
confirmatory order is
made and thereafter each time
the period of detention is extended then the appropriate
Government will have to apply its mind to the case of
the detenu before it will make an order for further
continuation of the detention, but that if we say that
no. time need be specified, the appropriate Government
will lose sight of the case and the detenu will be detained indefiniltely. I do not see why we should impute
such dereliction of duty to the appropriate Government ;.
but even if we do so and insist on the specification of
the period. of detention we shall perhaps be driving the
appropriate Gqvernmen.t to fix the longest permissible
period of detention ending with the expiry of the Act
itself and then to lose sight of the case of the detenu •.
That, I apprehend, will do no good to the detenu. Section 13 gives ample power to the appropriate Government to revoke the detention order at any time and it
iS expected that it will apply its mind to each case and
revoke the detention order and release the detenu as
soon as it is satisfied that his detention is no longer
necessary.
In any event, the considerations of, hardship urged upon us may make it desirable that a period
of detention should be fixed but this cannot alter the
plain meaning of the language of the section. The Court
is not concerned wi.th any question of policy.
It has
to ascertain the intention of the Legislature from. the
language used in the Act.
In my judgment, on a pr<>--
per construction of section 11 ( 1), a specification of the
period of continuation of the detention is not necessary, however, desirable one may consider it to be .
-
. -
·-
·•
. . Ground No. 2 : On this head the argument of learned
counsel for the petitioner . is. that no valid order of
-.!<'-
confirmation has been made in proper legal form at
all and that a confidential communication from
the-
- '
S.C.R.
SUPREME COURT REPORTS
623
Home Department to the District Magistrate
cannot
be regarded as an order under section 11(1) of the Act.
Learned Attorney-General urges that section 11(1) of
the Act contemplates only the . taking of an executive
decision, namely, the confirmation of the detention
order and contends that the sub-section does not contemplate the making of a formal order. He draws our
attention to section 3 of the Act which expressly refers
to an order of detention and points out .that section 11
(1) does· not refer to any order of confirmation. Reference may, however, be made to section 13 which ·
authorises the appropriate Government to revoke
or
modify the order of detention. In this section also
there is no reference to any order of revocation or
modification but nevertheless revocation or
modification must imply an executive decision.
Under section
11(1), as under
section
13, the appropriate
Government has to apply its mind and come to a decision.
Whether we call it an order or merely an executive
action makes no difference in the legal incidents of the
decision.
Section 11(1) plainly
requires an executive
decision as to whether the detention order should
or
should not be confirmed. The continuation of the
detention as a physical fact automatically follows
as
a consequence of the decision to confirm the detention
order and, for reasons stated above, does not require
any further executive decision to continue
the
detention..
It follows, therefore, that the Preventive Detention Act contemplates and requires the taking of an
executive decision either for confirming the
detention
order under section 11 ( 1) or for
revoking or modifying. the · detention order under section 13. But the Act
is silent as to the form in which the executive decision,
whether it is described as an· order or an executive
action, is to be taken. No particular form is prescribed
by the Act at all and the requirements of the Act will
be fully satisfied if it can be shown that the executive
decision has in fact been taken. It is at this stage that
learned counsel for the petitioner passes on to article
166 of the Constitution and contends that all executive action of the Government of a State must be
1952
Dattatreya
Moreshwar
Pangarkar
v.
The State ol
Bomhay
and Dthers.
Das/.
-
195l
Datta tr.era
Moreshwar
Pangarkar
v.
The State of
Bombay
and Others.
Dai/.
§24
STJPREM~ COURT REPORTS
[1952]
expressed
and
authenticated in
.the manner
therein
provided. The learned Attorney-General
poil)ts
out
that there is a distinction between the taking of an
exec~tive decision and giving formal expression to the
dec1S1on so taken.
Usually· executive decision is taken
on the office files by way of notings or endorsements
. made by the appropriate Minister or 9fficer. If every
executive decision has to be given a formal expression
·the wh61e governmental machinery, he contends,
will
be brought to a standstill. I agree that every executive decision need not be formally expressed and this
is particularly so when one superior officer directs his
subordinate to act or forbear from acting in a particular way, but when the executive decision affects an
outsider or is required . to be officially notified or to be
communicated it should normally be expressed in the
form mentioned in article 166(1), i.e., in the na!IlC of
the Governor., Learned
Attorney-General then fails
back upon the plea that an omission to make and
authenticate
an executive decision in the form mentioned in article · 166 does not make the decision
itself
illegal, for the provisions of that article, like their
counterpart in the Government of India Act, are merely
dire~tory and not mandatory as held in /; K. Gas Plant'.
Manufacturing Co. (Rampur) Ltd. and Others v. The
King-Emperor('). In my opinion, this
contention
of
the learned Attorney-General must pre,.,ail.
It is well
settled that generally speaking the provis'ions of a
sJ:a;tute creating public .duties are directory and those
conferring priYate rights are imperative. When the
provisions of .a statute relate to the performance of a
public duty and the case is such that to hold null and
void acts done in neglect of this duty would work
serious general ·inconvenience or injustice to persons
who hav.e no control over those entrusted with the .duty
and at the same time would not promote the main
object .of the legislature, it has been the practice of th~
Courts to hold such provisions to be directory ·only,
the neglect ,,f them not affecting the validity of the
acts done.
The considerations which weighed
twith
{1) [19l7] F.C.R. 141 (1449).
. ..:
. .
S.C.R,
SUPREME COURT REPORTS
62'
their L.Ordships of the Federal Court in the case referred to above in the matter of interpretation of section
40 (1) of the 9th Schedule to the Government of India
Act, 1935, appear to me to apply with equal cogency
to article 166 of the Constitution.
The fact that
the
old provisions have been split up into two clauses
in
artide 166 does, not appear to me to make any difference in the meaning of the article. Strict compliance
with the re.qilireinents of article 166 gives an immunity
to the order in that it cannot be challenged
on the
ground that it is not an order made by the Governor.
If, therefore, the requirements of
that article are not
complied with, the
resulting
immunity
cannot
be
claimed by the State. This, however, does not vitiate
the order itself. The position, t!herefore, is that while
the Preventive
Detention
Act
requires an executive
decision, call it an order . or an executive action, for the
confirmation of an order of detention
under section
11 (1) that Act does not itself pr~ribe any particular
form of expression of that executive decision. 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 undt::r 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
establitsed by law
and the
present detention of the
petitioner cannot be called in question.
For the reasons stated above, in my opinion, this
applica,tion must fail.
PATANJALI SASTRI c. J.-I
just delived by my learned
nothing to add.
MUKHERJEA J.-In
my
should be dismissed and I
agree with the judgment
brother Das and I have
opinion this
application.
deem it proper to state
19$2
--·-
Dattatuyti
MlJreshwar
Pangatkar
v.
Thi! State of
Bombay
afld Others,
Das/.
1952
Dattatreya
Moreshwar
Pangarkar
v.
The State of
Bombay
.and Others.
Muf<herjea /.
626
SUPREME COURT REPORTS
[1952]
'
succinctly my own views on the questions that have
been raised in the case.
The validity of the detention of the
petitioner has
been challenged before us on a two-fold ground. The
first
ground urged is that it was imperative on the
part of the appropriate Government, when it confirmed
the order of detention under section 11 (1) of the Preventive
Detention
Act, to sepcify the period
during
which the detention was to continue; and an omission
to state the period vitiates the order.
The other contention raised is that the order of confirmation not
being
expressed to be made
in the name of
the
Governor, as is
required under article 166 (1) of the
Constitution, is void and inoperative.
So far as the first ground is concerned, it would be
necessary to advert to the language of section 11 ( 1) of
the Preventive Detention Act which runs as follows :-
"11. Action upon the report of Advisory
Board.-
( 1) 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 of the person concerned for such period as it
thinks fit."
It is to be noted that section 3(1) of the Preventive
Detention Act under which the initial order of deten- .
tion is made i~ worded differently in this respect and it '
merely empowers the Central Government or the State
Government, as the case may be, to make an order,
under the circumstances specified in
the
section,
directing that a person be detained ; and nothing is
said about the period for which such detention should
be directed. It is now settled by a pronouncement(1)
of .this court that not only it is not neces.sary for
the
detaining authority to mention the period of detention
when passing the original order under section 3 ( 1) of
. -
r the Preventive Detention AcJ, but that the order would
be . bad and illegal if any period is specified, as it might
_,.A:
(!) Vide Makhan Singh Tarsikka v. The State of Punjab, Petition No· 308
of 1951.
-..
S.C.R.
SUPREME COURT REPORTS
627
prejudice the case of the detenu when it goes up for
consideration before the Advisory Board. The Advisory
Board again has got to express its opinion only on the
point as to whether there is sufficient cause for detention of the person concerned. It is neither called upon
nor is it competent to say anything regarding
the
period for which such person should be detained. Once
the Advisory Board expresses its view
that
there
is
sufficient cause for detention at the date when it makes
its report, what action ~ to be taken subsequently is
left entirely to the appropriate Government and it can
under section 11(1) of the Act "confirm the detention
order and continue the detention of the person concerned for such period as it thinks fit."
In my opinion, the
words "for such period as it thinks fit"
presuppose
and imply that after receipt of the report of the
Advisory Board the detaining authority has to make
up its mind as to whether the original order of detention should be confirmed and if .so, for what further
period the detention is to continue.
Obviously that is
the proper stage for making an order or decision of this
description as the investigation with regard to a particular detenu such as is contemplated by the Preventive
Detention Act is then at an end and the appropriate
Government is in full posses,5ion of all .the
materials
regarding him. It could not have been in the contemplation of the legislature that the matter should be left
indefinate and undetermined even then. This, in my
opinion, is the reason for the difference in the language
of section 11 (1) of the Preventive Detention Act as
compared with that of section 3 (1) of the Act. I do
not think that once the appropriate Government in
making the order under section 11(1) specifies the
period during which the detention of the person concerned is to continue, it becomes functus officio and is
incapable of extending the detention for a further
period at a subsequent time if it considers necessary.
In my opinion, section 13 of the Act gives very wide
powers to the detaining authority in this respect
and
it can revoke or modify any detention order at any
time it chooses and the power of modification would
1952
Dattatreya
Moreshwar
Pangarkar
v.
The State of
Bombay
and Others.
Mukherjea /.
Dattdtftyii
MMtsht/J/Jf
Pangatkal'
.v.
The State of
Bombay
Rnd Othel's.
628
SUPREME COURT REPORTS
[1952J
certainly include a power of extension. of the pericld of
detention, provided such power ~ exercised before the·
period originally fixed
has
expired and provided the
extended period does not exceed the over-all limit
which is co-extensive with the life or duration of
the
Act itself.
This is quite in accordartce with the view
taken by this court in Chakar Singh v. The State of
Punjab(').
The question now is whether the om1ss10n to state
the period of further detention while confirming the
detention order under section 11(1) of the Preventive
Detention Act makes the detention illegal ? The point
is not free from doubt, but having regard to the fact
that the new Preventive Detention Act iii a temporary
statute which was to be in force only up to the 1st of
April, 1952, and has only been recently extended to a
further period of six months, and no detention under
the Act can continue after the date of expiry of
the
Act, I am inclined to hold that non-specification of the
further period in an order under section 11(1) of the
Act does not make the order of detention a nullity.
If no period is mentioned, the order might be
taken
to imply that it would continue up to the date of the
expiration of the Act itself when all detentions
made
under it would automatically come to an end. Of
course,
the
appropriate
Government
is
always
at
liberty to terminate the order of detention earlier, if it
considers proper, in exercise
of its
general powers
under section 13 of the Act.
I am not much impressed by the argument that the non-mentioning of the
period in the order of confirmation is . likdy to cause
serious prejudice to the interests of the detenu. It
may be that if a period is mentioned, the attention of
the Government is likely to he drawn to the case near
about the time when the period is due to expire and
the facts of the case may be reviewed by the appropriate authority at that . time before it decides to
extend the detention any further ; but it seems to me
to be clear from the provision of section 13 that the
Act contemplates review of individual cases by
the
(\)Petition No. 584of1951.
r
. .,-
•,
)
.;
> '.
-+
S.C.R.
SUPREME COURT REPORTS
629
appropriate Government from time to time , irrespective
of any period being mentioned in the order of detention. It can legitimately be expected that the detaining authority would discharge the duties which are
imposed
upon it,
but even if
it does not,
there is
nothing in the law which prevents it from fixing the
period of detention up to the date of expiry of the Act
itself which is by no means a long one, and in that
case the
Court would obviousfr be powerless to give
any relief to the detenu. It is perfectly true that an
order for detention for an indefinite period is repugnant to all notions of democracy and individual liberty,
but the indefiniteness in the case of an order
made
under section 11 (I) of the Preventive Detention Act
is in a way cured by the fact that there is a limit set
to
the duration of the Act itself, which automatically
prescribes a
limit
of time beyond
which the order
cannot operate. In my opinion, section 11(1) of the
Preventive
Detention Act
does contemplate
that a
period should be mentioned during which the further
detention of the detenu is to continue and the Government should
see that
no om1ss10n
occurs
in this
respect, but I am
unable
to hold that this omission
alone would make the order a nullity which will justify
us in .releasing the detenu.
The other question for consideration is, whether the
order is invalid by reason of the fact that it has not
been expressed in the manner laid down in article 166
of the Constitution. Article 166 runs as follows:-
"166 (1).