# !!'TATE OF MAHAR.\SIITRA v. PRABHAKAR PANDURANG SANGZGIRI AND ANOTHER

- **Citation:** [1966] 1 S.C.R. 702
- **Court:** Supreme Court of India
- **Decided:** 1965-09-06
- **Case number:** Criminal Appeal No. 107 of 1965
- **Bench:** K. SuBB, RAo, K. N. WANCHoo, J. C. Shah, s. M. Snrn, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tate-of-mahar-siitra-v-prabhakar-pandurang-sangzgiri-and-another-3590
- **Pages:** 7

## Headnote

Defence of India Rules, 1962, sub-r. 4 of r. 30 and Bombay Comlitioru
of Detention Order, 1951-Book writlen by detenu in jail-RequeM to send
It out of jail for publication-State Government wh<ther can refuse request
-High Court whether can be moved under Con.r1itution of India, Art. 226.
The first respondent was d~ained by the GO\·ernment of Maharashtra
under r. 30(1 )( b) of the Defence of India Rules, 1962. TM condilions of
detention under sub-rule 4 of r. 30 of the said rules were prescribed to be
the same as those under the Bombay Conditions of Delention Order, 1951.
While so delained the first respondent wrote a book of scientific interest and
sought permhsion from 1he Slate Gov-~rnmcnt to send ft out of jail for
publication. The request having been rejecled he filed a writ petition under
Art. 226 of the Constitution praying for a direclion to the State Government to permit him to send out 1he manuscript for publication. The High
Court hc!d th:1t 1he hook was in no \\'ay prcju<liciJI t9 the def~nce of Jndia
etc., and allowed the petilion. The Stale Government by special leave
appealed to this Courl.
It was conlended on behalf of the appellant that the first respondent
not being a free person could exercise only such privileges as were conferred
on him by the order of detcniion, and the Bombay Conditions of Detention
Order, 1951 which rc~ula1cd -the terms of the r-.!soondent'9 dcten'ion did
not confer on him any privilege or right to write a book and send it out of
the prison for publication.
HELD : (i) It cannot be said that the Bombay Condition• of Detention
Order, 1951 which lays down the conditions regulating the restrictions on
the liherty of a detenu, conferred only certain privileges on the detenu.
U this argument were to be accepted it would mean that 1he detcnu could
be starved to death, if there wa' no condition providing for ghin~ food to
tb" detenu.
In the matter of liherty of a subject such a construction shall
not be given to the said rules and regulations unless for compelling reasons.
[708 C-DJ
(ii) The s3id condition! regulating the res!riction on the personal Jihcrty
of a detenu are not orivilcgcs conferred on him, hut are the conditions
1t1bjec:t to which ~i.s liberty can ~ restricted.
As the~e.,i.s no condition in
the Bombay c:ondt'lOfi<; of ~tent~on Order. 19.'51. proh1b1.1ng a dctenu from
writing a book or sending i~ to: publication, the St~te of Mahar:t<;htn• in
refusing to allow the same tnfnnged the personal hbertv .of the first rc.1pondcnt in derogation of the )a\v \vhcrcundcr he was dct:uned. [708 El
(iii) The effect of the President'~ order under Art. 359 of the C.onsti!ution was that the right to move the High Court o~ the Supreme Court remnmed suspended during the period of emer~ency. tf a person wa. depnved of
hi• personal liherlv under the Defence of India Act. 1962. or any rule or
order made thereunder. If a person was deprived of hi• .personal lihe_rtY
not under the Act or rule or order made thereunder but 1n contravention
thereof his right to move the said courts in that regard would not be
suspended. [705 C-Dl
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STATE v. PANDURANG (Subba Rao, 1.)
703
Since the State Government's refusal to allow publication of the first
respondent's book was in contravention and derogation of the law under
which he was detained he had the right to move the High Court under
Art. 226 and the said High Court was empowered to issue an appropriate
writ or direction to the said Government to act in accordance with law.

## Text

!!'TATE OF MAHAR.\SIITRA
V.
PRABHAKAR PANDURANG SANGZGIRI AND ANOTHER
September 6, 1965
[K. SuBB., RAo, K. N. WANCHoo, J. C. SHAH, s. M. Snrn
AND V. RAMASWAMI, 1J.J
Defence of India Rules, 1962, sub-r. 4 of r. 30 and Bombay Comlitioru
of Detention Order, 1951-Book writlen by detenu in jail-RequeM to send
It out of jail for publication-State Government wh<ther can refuse request
-High Court whether can be moved under Con.r1itution of India, Art. 226.
The first respondent was d~ained by the GO\·ernment of Maharashtra
under r. 30(1 )( b) of the Defence of India Rules, 1962. TM condilions of
detention under sub-rule 4 of r. 30 of the said rules were prescribed to be
the same as those under the Bombay Conditions of Delention Order, 1951.
While so delained the first respondent wrote a book of scientific interest and
sought permhsion from 1he Slate Gov-~rnmcnt to send ft out of jail for
publication. The request having been rejecled he filed a writ petition under
Art. 226 of the Constitution praying for a direclion to the State Government to permit him to send out 1he manuscript for publication. The High
Court hc!d th:1t 1he hook was in no \\'ay prcju<liciJI t9 the def~nce of Jndia
etc., and allowed the petilion. The Stale Government by special leave
appealed to this Courl.
It was conlended on behalf of the appellant that the first respondent
not being a free person could exercise only such privileges as were conferred
on him by the order of detcniion, and the Bombay Conditions of Detention
Order, 1951 which rc~ula1cd -the terms of the r-.!soondent'9 dcten'ion did
not confer on him any privilege or right to write a book and send it out of
the prison for publication.
HELD : (i) It cannot be said that the Bombay Condition• of Detention
Order, 1951 which lays down the conditions regulating the restrictions on
the liherty of a detenu, conferred only certain privileges on the detenu.
U this argument were to be accepted it would mean that 1he detcnu could
be starved to death, if there wa' no condition providing for ghin~ food to
tb" detenu.
In the matter of liherty of a subject such a construction shall
not be given to the said rules and regulations unless for compelling reasons.
[708 C-DJ
(ii) The s3id condition! regulating the res!riction on the personal Jihcrty
of a detenu are not orivilcgcs conferred on him, hut are the conditions
1t1bjec:t to which ~i.s liberty can ~ restricted.
As the~e.,i.s no condition in
the Bombay c:ondt'lOfi<; of ~tent~on Order. 19.'51. proh1b1.1ng a dctenu from
writing a book or sending i~ to: publication, the St~te of Mahar:t<;htn• in
refusing to allow the same tnfnnged the personal hbertv .of the first rc.1pondcnt in derogation of the )a\v \vhcrcundcr he was dct:uned. [708 El
(iii) The effect of the President'~ order under Art. 359 of the C.onsti!ution was that the right to move the High Court o~ the Supreme Court remnmed suspended during the period of emer~ency. tf a person wa. depnved of
hi• personal liherlv under the Defence of India Act. 1962. or any rule or
order made thereunder. If a person was deprived of hi• .personal lihe_rtY
not under the Act or rule or order made thereunder but 1n contravention
thereof his right to move the said courts in that regard would not be
suspended. [705 C-Dl
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STATE v. PANDURANG (Subba Rao, 1.)
703
Since the State Government's refusal to allow publication of the first
respondent's book was in contravention and derogation of the law under
which he was detained he had the right to move the High Court under
Art. 226 and the said High Court was empowered to issue an appropriate
writ or direction to the said Government to act in accordance with law.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
107 of 1965.
Appeal by special leave from the judgment and order, dated
June 22, 1965 of the Bombay High Court in Criminal Application No. 613 of 1965.
Niren De, Additional Solicitor-General and B. R. G. K. Achar,
for the appellant.
R. K. Garg, D. P. Singh, M. K. Ramamurthi and S. C. Agarwala, for respondent No. 1.
The Judgment of the Coun was delivered by
Sobba Rao J.
Prabhakar Pandurang Sanzgiri, who has been
detained by the Government of Maharashtra under s. 30 (1 )(b)
of the Defence of India Rules, 1962, in the Bombay District
Prison in order to prevent him from acting in a manner prejμdicial to the defence of India, public safety and maintenance
of public order, has written, with the permission of the said
Government, a book in Marathi under the title "Anucha
Antarangaat"
(Inside the Atom).
The learned Judges of the
High Court, who had gone through the table of contents of the
book, expressed their opinion on the book thus :
" .......... we are satisfied that the manuscript
bpok deals with the theory of elementary particles in
an objective way. The manuscript does not purport to
be a research work but it purports to be a book written
with a view to educate the people and disseminate
knowledge regarding quantum tiJeory."
The book is, tiJerefore, purely of scientific interest and it cannot
possibly cause any prejudice to the defence of India,
public
safety or maintenance of public order.
In September, 1964, the
detenu applied to the Government of Maharashtra seeking permission to send tiJe manuscript out of the jail for publication; but
the Government by its letter, dated March 27, 1965, rejected
the request.
He again applied to tiJe Superintendent, ArtiJur
Road Prison, for permission to send tiJe manuscript out and that
too was rejected.
Thereafter, he filed a petition under Art. 226
of the Constitution in the High Court of Maharashtra at Bombay
704
SUPRBMB COURT RBPOl.TS
(1966) I S.C.R.
for directing the State of Maharashtra to permit him to send out
A
the manuscript of the book written by him for its eventual publication.
The Government of Maharashtra in the counter-affidavit
did not allege that the publication of the said book would be
prejudicial to the objects of the Defence of India Act, but averred
that the Government was not required by law to permit the detenu
to publish books while in detention.
The High Court of Bombay
B
held that the civil rights and liberties of a citizen were in no way
curbed by the order of detention and that it was always open
to the detenu to carry on his activities within the conditions
governing his detention. It further held that there were no rules
prohibiting a detenu from sending a book outside the jail with
a view to get it published. In that view the High Coun directed c
the Government to allow the manuscript book to be sent by the
detenu to his wife for its eventual publication.
The State of
Maharashtra has prefurrcd the present appeal against the said
order of the High Court.
The contentions of the learned Additional Solicitor General
D
may be briefly stated thus : When a person is detained he Iosca
his freedom; he is no longer a free man and, therefore, he can
exercise only such privileges as are conferred on him by the order
of detention. The Bombay Conditions of Detention Order, 1951.
which regulates the terms of the first respondent's detention, does
not confer on him any privilege or right to write a book and send
I
it out of the prison for publication. In support of his contention
hr relies upon the observations of Das, I., as he then was, in
A. K. Gopalan v. State of Madras(') wherein the learned Judge
has expressed the view, in the context of fundamental rights, that
if a citizen loses the freedom of his person by reason of a lawful
detention, he cannot claim the rights under Art. 19 of the Conr
stitution as the rights enshrined in the said article arc only the
attributes of a free man.
Mr. Garg, learned counsel for the detenu, raised before 111
the following two points : ( 1) a restriction of the nature impoeed
by the Government on the detenu can only be made by an order G
is~ued by the appropriate Government under els. (f) and (h) of
•ub-r. ( 1) of r. 30 of the Defence of India Rules, 1962, hcreiaafter called the Rules, and that too in strict compliance with s. 44
cf the Defence of India Act, 1962, hereinafter called the Act, and
that as the impugned restricpon was neither made by such an order
nor did it comply with s. 44 of the Act, it was an illegal restriction
II
on his personal liberty; and (2) neither the detention order nor the
(t) [1950J S.C.R. 88. 291.
t
STATE v. PANDURANG (Subba Rao, J.)
. 705
A
conditions of detention which governed the first respondent's
detention enabled the Government to prevent the said respondent
from sending his manuscript book out of the prison for publication and, therefore, the order of the Government rejecting the said
respondent's request in that regard was illegal.
B
Article 358 of the Constitution suspends the provisions of
Art. 19 of Part III of the Constitution during the period the proclamation of emergency is in operation; and the order passed by
the President under Art. 359 suspended the enforcement, inter alia,
of Art. 21 during the period of the said emergency.
But the
President's order was a conditional one. In effect it said that the
c
right to move the High Court or the Supreme Court remained
suspended if such a person had been deprived of his personal
liberty under the Defence of India Ac( 1962, or any rule or order
made thereunder. If a person was deprived of his personal liberty
not under the Act or a rule or order made thereunder but in contravention thereof, his right to move the said Courts in that regard
D would not be suspended.
The question, therefore, in this case is
whether the first respon<lent's liberty has been restricred in terms
of the Defence of India Rules whereunder he was detained. If it
was in contravention of the said Rules, he would have the right to
approach the High Court under Art. 226 of the Constitution.
E
In exercise of the oower conferred on the Central Government
by s. 3 of the Act, th°il Central Government made the Defence of
India Rules.
Under s. 30 of the Rules the Central Government
or the State Government, if it is satisfied with respect to any perbOn that in order to prevent him from acting in any manner prejudicial to the matters mentioned therein, it is necessary so to do,
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may make an order directing that he be detained. Under subr. 4 thereof he shall be liable to be detained in such plare and
under such conditions as to maintenance, discipline
an<I the
punishment of the offence and the breaches of discipline as the
Central Government or the State Government, as the case may be,
may from time to time determine.
In exercise of the power conG
ferred under sub-r. ( 4) of r. 30 of the Rules, the Government of
Maharashtra determined that the conditions as to maintenance,
discipline and the punishmellt of offences and breaches of discipline governing persons ordered to be detained in any place in the
State of Mahara~htra, shall be the same as those contained in the
Bombay Conditions of Detention Order, 1951.
The Bombav
H
Conditions of Detention Order, 1951, does not contain any comlition as regards the writing of books by a deten1' or sending them
out of jail for publication.
Briefly stated, the scheme of the said
L8Sup. C. and I./65-2
7 06 •
WPllBMJ! COUKT RBPORTll
[ 1966) I S.C.R.
provisions is that a person can be detained if the appropriate
A.
Government is satisfied that in order to prevent him from doing
the prejudicial acts mentioned in r. 30 of the Rules it is necessary
to detain him in prison subject to the conditions imposed in the
manner prescribed in sub-r. ( 4) of r. 30 of the Rules.
To put it
in a negative form, no restrictions other than those prescribed
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under sub-r. ( 4) of r. 30 can be imposed on a detenu. If the
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appropriate authority seeks to impose on a detenu a restriction
not so prescribed, the said authority will be interfering with the
personal liberty of the detenu in derogation of the law whereunder
he is detained. If that happens, the High Court, in terms ot Art.
2'.!6 of the Constitution, can issue an appropriate writ or direction
C
to the authority concerned to act in accordance with law.
We have gone through the provisions of the Bombay Conditions of Detention Order, 1951.
There is no provision in that
Order dealing with the writing or publication of books
by a
detenu.
There is, therefore, no restriction on the detenu in resoect
D
of that activity.
Sub-rule (iii) of r. 17 of the said Order re~ds :
"All letters to and from security prisoners shall be
censored by the Commissioner or the Superintendent, a<
the case may be. If in the opinion of the Commissioner
or the Superintendent, the despatch or delivery of any
letter is likely to be detrimental to the public interest or
safety or the discipline of the place of detention, he
shall either withhold such letter, or despatch or deliver it
after deleting any objectionable portion therefrom.
In
respect of the censoring of letters of security prisoners
the Commissioner or the Superintendent shall comply
with any general or special
instructions issued by
Government."
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The Maharashtra Government has not relied upon this rule. In
deed, in tl1e counter-affidavit its case was not that it prohibited the
sending of the book for publication under the said sub-mle, but G
that it was not required by law to permit the detenu to publish
blxlks while in detention: nor was it its case before the High Court
th!!t the publication of this book was detrimental to public interest
or safrty or the discipline of the place of detention.
Prima facir
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the saia sub-rule applies only to letters to and from secunty prisoners and does not regulate the sending out of prison bo<.•ks for H
publication.
Indeed, the learned Additional Solicitor General
does not rely upon this provision.
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STATE v. PANDURANG (Subba Rao, J.)
707
Let us now consider the validity of the argument of the learned
Additional Solicitor General. He relies upon the following observations of Das, J., as he then was, in A. K. Gopalan's case('). at
p. 291.
"If a man's person is free, it is then and then only
that he can exercise a variety of other auxiliary rights,
that is to say, he can, within certain limits, speak what he
likes, assemble where he likes, form any associations or
unions, move about freely as his 'own inclination may
direct,' reside and settle anywhere he likes and practise
any profession or carry on any occupation, trade or business.
These are attributes of the freedom of the person
and are consequently attached to the person."
Relying upon these observations it is argued that freedom to publish is only a component part of that of speech and expression
and that in the light of the said observations, as the detenu ceased
to be free in view of his detention, he cannot exercise his freedom
to publish his book.
In other words, as he is no longer a free
man, his right to publish his book, which is only an attribute of
personal liberty, is lost.
The principle accepted by Das, J., as
he then was, does not appear to be the basis of the conclusion
arrived at by the other learned Judges who agreed with his conclusion.
Different reasons are given by the learned Jud,ges for
arriving at the same conclusion.
As has been pointed out by this
Court in the second Kochunni's case('), the views of the learned
Judges may be broadly summarized under the following heads :
( 1) to invoke Art. 19 ( 1) of the Constitution, a law shall be made
directly infringing that right; (2) Arts. 21 and 22 constitute a
self-contained code; and (3) the freedoms in Art. 19 postulate a
free man.
Therefore, it cannot be said that the said principle was
accepted by all the learned Judges who took part in A. K. Gopalan's
case('). The apart, there are five distinct lines of thought in
the matter of reconciling Art. 21 with Art. 19, namely, <1) if one
loses his freedom by detention, he loses all the other attributes of
freedom enshrined in Art. 19; <2) personal liberty in Art. 21 is the
residue of personal liberty after excluding the attributes of that
liberty embodied in Art. 19; (3) the personal liberty included in
Art. 21 is wide enough to include some or all of the freedoms
mentioned in Art. 19, but they are two distinct fundamental rights
-a law to be valid shall not infringe both the rights; ( 4) the
expression "law" in Art. 21 means a valid law and, therefore: even
if a person's liberty i~ deprived by law of detention, the said law
(!) [1950] S.C.R. 88.
(2) [1960] 3S.C.R. 887.
708
SUPll!JOI OOUl.T l.BPORTS
[1966] I S.C.R..
shall not infringe Art. 19; and (5) Art. 21 applies to procedural
law, whereas Art. 19 to substantive law relating to personal liberty.
We do not propose to pursue the matter further or to express our
opinion one way or other.
We have only mentioned the said
views to show that the view expressed by Das, J .. as he then was,
in A. K. Gopa/an's case(') is not the last word on the subject.
In this case, as we have said earlier, we are only concerned
with the question whether the restriction imposed on the personal
liberty of the first respondent is in terms of the relevant provisions
of the Defence of India Rules.
Here. the first respondent's liberty
is restricted under the Defence o( India Rules subject to conditions
determined in the manner prescribed in Sub-r. ( 4) of r. 30 thereof.
We find it difficult to accept the argument that the Bombay Conditions of Detention Order, I 951, which lays down rhe conditions
regulating the restrictions on the liberty of a detenu, conferred only
certain privileges on the detenu.
If this argument were to be
accepted. it would mean that the detenu could be starved to death,
if there was no condition providing for giving food to the dctenu.
In the matter of liberty of a subject such a construction shall not
be given to the said rules and regulations, unless for compelling
reasons.
We, therefore, hold that the said conditioTJs re~ularin~
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the restrictions on the personal liberty of a detcm1 1re not privileges
conferred on him, but are the conditions suhj·:ct to wrich his
liberty can be restricted.
As th~re is no condition in the Bombay
E
Conditions of Detention Order, 1951, prohibiting a detenu from
writing a book or sending it for publication, the State of Maharashtra infringed the oersonal liberty of the first respondent in
derogation of the law whereunder he is detained.
The aopellant, therefore, acted contrary to law in refusing to
F
send the manuscript book of the detenu out of the jail to his wife
for eventual publication.
In the view we have taken. another argument advanced by
Mr. Garg, namely, that the restriction can only be imposed by an
order made under s. 30 (f) or (h) of the Rules and that roo in
strict compliance with s. 44 of the Act need not be con•idered.
That question may arise if and when an appropriate condition is
imposed restricting the liberty of a detenu in the matter of sendinP,
his books for publication.
We do not express our view on thi!
que«tion one way or other.
In the result. the order passed by the High Court is correct.
The a;ipeal fails and is dismissed.
Appeal dismissed.
(I) [1950] S.C.R. 88.
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