# Tlie State of BihtJr v. Shailaba/a De11i

- **Citation:** [1952] 1 S.C.R. 674
- **Court:** Supreme Court of India
- **Decided:** 1950-10-24
- **Case number:** Criminal Application No. 1003 of 1950
- **Bench:** PATANJALI SASTRI c. J, Meher Chand Mahajan, MuKHERJEA, DAs, BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tlie-state-of-bihtjr-v-shailaba-a-de11i-58
- **Pages:** 9

## Headnote

Preventive Detention Act (IV of 1950), s. 3-Constitution of
India, 1950, Art. 166--0rder of deteotion-Form of order-Order
stating that Government is satisfied-Not stating exf"essl'f that it
is issued in the name of the Governor'-Valid£ty-Proof by other
evidence-Valt1e of Secretary's evidence-Form of verification.
The tnatetial
,portio~ of an order of detention made under
s, 3 ·of. the: Ptevo11ti.e Detention Act, 1950, ran as fol!bws:
, -.
-
.. .
- .... ,
-
' l
S.C.R.
SUPREME COURT REPORTS
675
"Whereas
the
Government of
Bombay is
satisfied
with
respect to the person known as J. N. . ..... that with a view to
preventing him from acting in a manner prejudicial to the m~in
tenance of public order it is necessary to make the
followmg
order : Now, therefore,. ....... the
Government of Bombay
is
pleased to direct that the said J. N. be detained.
By order of the Governor of Bombay
(Sd.) V. T. D.
Secretary to the Government of
Bombay, Home Department".
The High Court of Bombay held that the order was defective as it was not "expressed to be in the name of the Governor"
within the meaning of Art. 166 (1) and was not accordingly protected by Art. 166 (2) :
Held, that
the order was not defective merely because
it
stated that the Government of Bombay was
satisfied
and
that
the Government of Bombay was pleased to direct that J. N. be
detained, and, though the addition of the words "and in his
name" to the words "By order of the Governor of Bombay"
would
have
placed
the
matter
beyond
controversy, the order
was really one expressed to be taken in the name of the Governor
of Bombay within Art. 166.
Held further, that, assuming that the order was defective it
was open to the State Government to prove by
other means that
such an order has been
validly
made.
It
is
not
absolutely
necessary in evety case to call the Minister in charge ; if the
Secretary or any other person has the requisite means of knowledge and his affidavit is believed, that will ht: enough.
Verification should invariably be modelled .on
the lines of
0. XIX, r. 3, of the Civil Procedure Code, whether the Code
applied in terms or not, and when the matter deposed to is not
based on personal knowledge the sources of information must
be clearly disclosed.
APPELLATE
JURISDICTION:
Case No. 30 of
1950.
Appeal under Art. 132(1) of the Constitution of India
from
the Judgment and Order dated 24th October,
1950, of the High Court of Judicature at Bombay
(Bavdekar and
Vyas JJ.)
m
Criminal Application
No. 1003 of 1950.
M.
C. Setalvad (Attorney-General for India)
and
C. K. Daphtary (Solicitor-General for India) with G. N.
Joshi for the apellant.
Respondent ex parte.
1952
Thi: Stat1: uf
Bombay
v.
Purushottam
Jog Naik.
1952
The State of
Bombay
v.
Purushottam
fog Naik.
Bose/.
676
SUPREME COURT REPORTS
fl952J
1952.
May 26.
The judgment of the Court was
delivered by
BoSE J.-This is an appeal from an order of the
Bombay High Court directing
the release of the
respondent who had been detained under section 3 of
the Preventive Detention Act of 1950.
The learned Attorney-General states at the outset
that Government does not want to
re-arrest
the
respondent but merely desires to test the High Court's
decision on certain points which will have far-reaching
effects on preventive detentions
in
the
State of
Bombay. Following the precedent of their Lordships
of the Privy Council in King-Emperor v. Vimlabat
Deshpande(') we proceed to decide the appeal but
direct that the respondent shall not in any event be
re-arrested in respect
of the matters
to which the
appeal relates.
The respondent was originally arrested under an·
order of the District Magistrate, Belgaum,
dated
the
26th February, 1950, though he was then beyond the
jurisdiction of that authority. On the 11th of July,
1950, the Bombay High Court held that a detention
of that kind was invalid. The decision was given in
the case of In re Ghate(2). This necessitated a review
of 57 cases,
among them the respondent's. Orders
were passed in all those cases

## Text

1952
Tlie State of
BihtJr
v.
Shailaba/a De11i.
1952
Ma1 26.
674
SUPREME COURT REPORTS
[1952]
who are acquainted with the actual situation,
it was
incumbent upon the Government to clear up these
matters and present before us the background and the
context without which no meaning could be attributed
to this species
of
empty verbiage.
As
Government
did not discharge the duty that lay upon them, I am
clearly of opinion that
no security order could be
passed against the respondent under the
provision of
section 4(l)(a) of the Press Emergency Act.
DAs
J.-During the course of the arguments I
entertained some doubt as to the innocence of the
meaning and implication of the pamphlet in question,
but, in the light of the judgments of my learned
brothers Mahajan. J. and Mukherjea J., which I have
had the advantage of perusing since, I do not fee) that
I would be justified in dissenting from the construction
· they have put upon the language used in the pamphlet.
I accordingly concur in their conclusion.
BosE J.-1 agree with my brothers Mahajan and
Mukherjea.
Appeal dismissed.
· Agent for the appellant : R. C. Prasad.
Agent for the respondent: P. K. Chatterjee.
THE STATE OF BOMBAY
ti.
PURUSHOTTAM JOG NAIK
[PATANJALI
SASTRI c. J., MEHER CHAND MAHAJAN,
MuKHERJEA, DAs and BosE JJ.]
Preventive Detention Act (IV of 1950), s. 3-Constitution of
India, 1950, Art. 166--0rder of deteotion-Form of order-Order
stating that Government is satisfied-Not stating exf"essl'f that it
is issued in the name of the Governor'-Valid£ty-Proof by other
evidence-Valt1e of Secretary's evidence-Form of verification.
The tnatetial
,portio~ of an order of detention made under
s, 3 ·of. the: Ptevo11ti.e Detention Act, 1950, ran as fol!bws:
, -.
-
.. .
- .... ,
-
' l
S.C.R.
SUPREME COURT REPORTS
675
"Whereas
the
Government of
Bombay is
satisfied
with
respect to the person known as J. N. . ..... that with a view to
preventing him from acting in a manner prejudicial to the m~in
tenance of public order it is necessary to make the
followmg
order : Now, therefore,. ....... the
Government of Bombay
is
pleased to direct that the said J. N. be detained.
By order of the Governor of Bombay
(Sd.) V. T. D.
Secretary to the Government of
Bombay, Home Department".
The High Court of Bombay held that the order was defective as it was not "expressed to be in the name of the Governor"
within the meaning of Art. 166 (1) and was not accordingly protected by Art. 166 (2) :
Held, that
the order was not defective merely because
it
stated that the Government of Bombay was
satisfied
and
that
the Government of Bombay was pleased to direct that J. N. be
detained, and, though the addition of the words "and in his
name" to the words "By order of the Governor of Bombay"
would
have
placed
the
matter
beyond
controversy, the order
was really one expressed to be taken in the name of the Governor
of Bombay within Art. 166.
Held further, that, assuming that the order was defective it
was open to the State Government to prove by
other means that
such an order has been
validly
made.
It
is
not
absolutely
necessary in evety case to call the Minister in charge ; if the
Secretary or any other person has the requisite means of knowledge and his affidavit is believed, that will ht: enough.
Verification should invariably be modelled .on
the lines of
0. XIX, r. 3, of the Civil Procedure Code, whether the Code
applied in terms or not, and when the matter deposed to is not
based on personal knowledge the sources of information must
be clearly disclosed.
APPELLATE
JURISDICTION:
Case No. 30 of
1950.
Appeal under Art. 132(1) of the Constitution of India
from
the Judgment and Order dated 24th October,
1950, of the High Court of Judicature at Bombay
(Bavdekar and
Vyas JJ.)
m
Criminal Application
No. 1003 of 1950.
M.
C. Setalvad (Attorney-General for India)
and
C. K. Daphtary (Solicitor-General for India) with G. N.
Joshi for the apellant.
Respondent ex parte.
1952
Thi: Stat1: uf
Bombay
v.
Purushottam
Jog Naik.
1952
The State of
Bombay
v.
Purushottam
fog Naik.
Bose/.
676
SUPREME COURT REPORTS
fl952J
1952.
May 26.
The judgment of the Court was
delivered by
BoSE J.-This is an appeal from an order of the
Bombay High Court directing
the release of the
respondent who had been detained under section 3 of
the Preventive Detention Act of 1950.
The learned Attorney-General states at the outset
that Government does not want to
re-arrest
the
respondent but merely desires to test the High Court's
decision on certain points which will have far-reaching
effects on preventive detentions
in
the
State of
Bombay. Following the precedent of their Lordships
of the Privy Council in King-Emperor v. Vimlabat
Deshpande(') we proceed to decide the appeal but
direct that the respondent shall not in any event be
re-arrested in respect
of the matters
to which the
appeal relates.
The respondent was originally arrested under an·
order of the District Magistrate, Belgaum,
dated
the
26th February, 1950, though he was then beyond the
jurisdiction of that authority. On the 11th of July,
1950, the Bombay High Court held that a detention
of that kind was invalid. The decision was given in
the case of In re Ghate(2). This necessitated a review
of 57 cases,
among them the respondent's. Orders
were passed in all those cases on the 17th of July,
1950. About 52 of the detenus were released and in
the remaining cases fresh orders of detention were
passed by the Government of Bombay.
In the respondent's case the order was
in these
.terms:
"Whereas the Government of Bombay is satisfied
with respect to the person known as Shri Purushottam
Jog Naik
of Ulga Village, Taluka Karwar, District
Kanara, that with a view to preventing him from
acting iri a manner prejudicial to the
maintenance
of public order, it is n~cessary to make the following
order:
Now, therefore, in exercise of the powers conferred
by sub-section (1)
of
section 3 of
the Preventive
(1) I.L.R. 1946 Nag. 651 at 655.
(2) (1950) 52 Born. L.R. 711..
.. _
._../,,
')
I
S.C.R.1
I
SUPREME COURT REPORTS.
677
Detention Act, 1950 (No. IV of 1950), the Government
of
Bombay is pleased to direct that the said Shri
Purushottam Jog Naik be detained.
By order of the Governor of Bombay,
Sd/-V. T. Dehejia,
Secretary to the Government of Bombay,
Home Department.
Dated at Bombay Castle, this 17th day of July, 1950."
He was served with the grounds of detention on the
26th of July, 1950, and with a fuller set on the 9th of
August. The original grounds were as follows :
"In
furtherance of your campaign for non-payment of rent, you were instigating the people in the
Belgaum District to commit acts of violence
against
landlords.
In all probability,
you will continue to do so."
The second set gave the following additional particulars :
"The people in Belgaum District, whom you were
instigating to commit acts of violence against landlords in furtherance of your campaign for non-payment of rent, were the tenants in Hadalge and round
about villages in the Khanapur Taluka of Belgaum
District, and the said instigation was carried on by
you for some months till your arrest in April, 1949."
On the 24th of August, 1950, the respondent applied
to the Bombay High Court under section 491 of the
Criminal Procedure Code for an order of release. He
succeeded, and the appeal is against that order.
The first ground on which the learned High Court
Judges proceeded was that the detention order of the
17th July was defective as it was not expressed in
proper legal form. The basis of their reasoning is this.
Ardcle 166(1) of the Constitution requires that-
"All executive action
of
the
Government
of
a
State shall be expressed to be taken in the name of
the Governor."
It will be seen that the order of detention states m
the preamble.
1952
The Statr:·of
Bombay·
v.
Purushottam
Jog Naik.
.Bose/.
I
1952
T ht Staie of
Bombay
v.
Purushottam
fog Nail(.
Bose/.
678
SUPREME COURT REPORTS
[19521
"Whereas the Government of Bombay is satisfied ... "
and the operative part of the otder runs~
"Now, therefore. . . . . . . . the Government of Bombay
is pleased to direct etc."
It does not say that the Governor of Bombay
is
pleased to direct.
The learned Judges held that this
is not an order expressed to be made in the name of
the Governor and accordingly is not protected by
clause (2) of article 166. They
conceded that the
State could prove by other tneans that a valid order
had been passed by the proper authority, but they
held that the writing, (Record No. 3), which purports
to embody the order, cannot be used to prove that a
valid order was made because the formula set out in
article 166(1) was not employed. We are unable to agree.
Now we do not wish to encourage laxity of expression, nor do we mean to suggest that ingenious experiments regarding the permissible limits of departure
from the language of a Statute or of the Constitution
will be worthwhile, but when all is said and done we
lnust look to the substance of article 166 and of the
Order.
The short answer in this case is that the order under
consideration is "expressed" to be made in the name
of the Governor because
it says "By order of the
Governor," One of the meanings of
"expressed" 1s
to make known the opinions or the feelings of a particular person and when a Secretary to Government
apprehends a man and tells him in the order that this
is being done under the orders of the Governor, he is
in substance saying that he is acting in the name of
the Governor and, on his behalf, is making known to
the detenu the opinion and feelings and orders of the
~
Governor.
In our opinion, the Constitution does not
require a magic incantation which can only be expressed in a set formula of words. What we have to see is
whether the substance of the requirements is there.
It has to be remembered that this order was
made
under the Preventive Detention Act, 1950,
and therefore had to conform to its tertns.
Section 3 of the Act
provides that the State Government may
if satisfied,
'
.
~
.•·
S.C.R.
SUPREME COURT REPORTS
679
"make an order directing that such person be
detained."
It is true that under section 3[ ( 43a) (a)) of the
General Clauses Act the words "the State Government" mean the Governor, but if that be so, then the
expression
must be given the same meaning in the
order which merely reproduces the language of section 3, not indeed because the General .Clauses Act
applie$ t() the order (it does not) but because the order
is reproducing the language of the Act and must therefore be taken to have the same meaning as in the
Act
itself, particularly as the order concludes with the
words,
"By qrder of the Governor of Bombay."
It will be noticed that section 3 of the Preventive
Detention Act enables certain authorities specified
by
it to rμake orders of detention. These include, not only
State Governments but also
the Central Government,
any District Magistrate or
Sub-Divisional Magistrate
and certain Commissioners of Police.
The list does not
include the Governor of a State. Now, though the term
"State Government" appearing in an enactment means
the Governor of the State, there is no provision of
law which equates the term Governor with the State
Government of which he happens to be the head. On
the contrary, the Constitution invests him with certain functions and powers which are separate from
those of his Government. It was therefore appropriate
that the order in this case should have set out that
the Government of Bombay was satisfied and not some
other authority not contemplated by the Act and that
that Government directed the detention.
It was also
proper that the 6rder should have been executed under
the orders of the Governor autihenticated, under the
rules, by the signature of the Secretary. It is true that
addition of the words "and in his name" to the words
"By order of the Governor of Bombay" would have
-
0
placed the matter beyond controversy but we are unable to see how an order which purports to be an order
1952
T lie S1ate ti/
Bombay
v.
P1m11iattam
fog Naik_.
Bose /.
: 1952
--
The Staie'·of
"Bombay
. 'v.
.Purushottam
'/og Naik.
Bose/.
680
SUPREME COURT REPORTS
[1952]
of the Governor of Bombay can fail to be otherwise
than in his name. If A signs his name to a communication that communication goes out in his name.
Equally, if he employs an agent to sign on his behalf
and the agent states that he is signing under the orders
of A, the document still goes forth in the name of A.
In our opinion, the High Court was wrong on this
point.
The next step in the High Court's reasoning
was
this. The learned Judges held that the writing produced as the order did not prove itself because of the
defect we have just considered but that nevertheless
it
was open to the State Government to prove by other
means that such an order had been validly made. The
learned Judges therefore called upon Government to
make an affidavit setting out the facts.
An affidavit
was made by the Home Secretary but the learned
Judges were not satisfied and asked for a further
affidavit. The Home Secretary
thereupon made
a
second one but the learned Judges were still not
satisfied and considered that the Minister in charge
should have made an affidavit himself.
We do not intend to
discuss this matter
because
once an order of this kind is unable to prove itself and
has to be proved by other means it becomes impos-
. sible to lay down any rule regarding
either the
quantum of evidence necessary to satisfy the Court
which is called upon to decide 'the question or the
nature of the evidence required. This is a question
of fact which must be different in each case.
Of
course, sitting as a court of appeal, it would have been
necessary for us to decide this had we reached a differ-
. ent conclusion on the first point and had the State
Government desired the re-arrest of the respondent.
But' as we are only asked to deal with general principles, all we need say as regards this is that it is not
necessary in every case to call the Minister in charge.
If the Secretary, or any other person, has the requisite
means of knowledge and his affidavit is believed,
that
will be enough.
•
, I
:S.C.R.
SUPREME COURT REPORTS
681
We wish, however, to observe that the verification of the affidavits produced here 1s defective. The
body of the affidavit discloses that certain matters
were known to the Secretary who made the affidavit
personally. The verification however states that everything was true to the best of his information and belief.
We point this out as slipshod verifications of this type
might well in a given case lead to a rejection of the affidavit. Verifications should
invariably be modelled on
the lines of Order XIX, rule 3 of the Civil Procedure
Code, whether the Code applies in terms or not. And
when the matter deposed to 1s not based on
personal
knowledge the sources of information should be dearly
disclosed.
We draw attention to the remarks of
Jenkins C. J. and Woodroffe J. in Padmabati Dasi
v. Rasik Lal Dhar(1) and endorse the learned Judges'
observations.
In fairness to the Home Secretary we deem it
right to say that his veracity was neither doubted nor
impugned by the High Court, but only his means of
knowledge. He was speaking of the "satisfaction" of
the Minister and the High Court was not satisfied
regarding his knowledge of the state of the Minister's
mind.
The
learned
Judges
considered
that
the
Minister himself would have been a more satisfactory
source of information, but as we say, this 1s not a
question of law. As a matter of abstract law, of course,
the state of man's mind can be proved by evidence
other than that of the man himself, and if the Home
Secretary has the requisite means of knowledge, for
example, if the Minister had told him that he was
satisfied or he had indicated satisfaction by his conduct and acts, and the Home Secretary's affidavit was
regarded as sufficient in the particular case, then that
would constitute legally sufficient proof.
But whether
that would be enough in any given case, or whether
the "best evidence rule" should be applied in ,trictness
in that particular case, must necessarily depend
upon
its facts. In the present case, there was the element
that 57 cases were dealt with in the course of 6 days
(1) (1910) I.L.R. 37 Cal. 259.
1952
The State of
Bombay
v.
Purushottam
Jog Naik.
Bose /.
1952
The Stote of
Bombay
v.
PuNlshottam
fog Naik_.
Bose /.
682
SUPREME COURT REPORTS
[1952]
and orders passed in all on one day. But we do not
intend to enter into the merits. All we desire to
~ay
is that if the learned Judges of the High Court mtended to lay down as a proposition of law that an
affidavit from the Minister in charge of the department
is
indispensable in all such cases, then
they
went too far.
The learned Attorney-General
contended that
the
Minister in charge could not be asked to divulge these
matters because of article 163(3) of the Constitution. We do not decide this question and leave it
open.
Another point which was argued related to the
privilege which the Home Secretary claimed on behal.f
of the State Government under article 22 ( 6) of the
Constitution. Government disclosed certain facts
in
the
ground~ furnished to the detenu
and claimed
privilege regarding the rest of the facts in its possession.
In our opinion, the grounds supplied
were
sufficiently
specific and they
could form a proper
basis for the "satisfaction" of the Government.
As
regards the rest, Government has claimed privilege in
the affidavit of the Home Secretary on the ground of
public interest. This raises further questions
which
we do not intend to examine as the respondent is not
to be re-arrested.
The order of release was, in our opinion, wrong, but
in view of Government's undertaking not to re-arrest
the respondent, we direct that he be not re-arrested
in respect of the matters to which .this appeal relates.
Order. of High Court set aside.
Agent for the appelant: P.A. Mehta.
GIPN-S3-7 S. C. lndia/71-25-1-73-700
' •
\