Decided on March 03,1950

STATE Respondents


Narasimham, J. - (1.) These applications are under Section 491, Criminal P, C., against the orders of detention passed by the Provincial Government in exercise of their powers under Section 2 (1) (a) read with Section 4, Orissa Maintenance of Public Order Act, 1948 (hereinafter referred to as the Orissa Act) as amended by the amending Act (Orissa Act VI [6] of 1949). The applications were filed before the commencement of the Constitution and the legality of the detentions was therefore challenged on various other grounds which have now become academic in view of the coming into force of the Constitution on 25th January 1950. The legality of the detention of the applicants was challenged by Mr. M. Mahanty and Mr. Mahapatra on behalf of the applicants on the ground that the provisions of the Oriasa Act dealing with preventive detention were void under Article 13 (1) on account of their inconsistency with Article 22 (4), (5), (6) and (7) of the Constitution. The learned advocates farther relied on the reasonings adopted by Meredith C. J. and Sarjoo Prasad J. of the Patna High Court in a recent case, Brahmeshwar Prasad v. State of Bihar, or. Misc. 977 of 1949: (A. I. R. (37) 1950 Pat 265) involving the construction of similar provisions of the Bihar Maintenance of Public Order Act (Act III [3] of 1950).
(2.) On 26th January 1950 an Order known as "the Preventive Detention (Extension of Dura. tion) Order, 1960" (herein after referred to as the order) was published in the Gazette of India under the signature of C. Bajagopalohari, Governor-General. Subsequently, however, an erratum was issued substituting the words "Dr. Eajendra Prasad, President" for 0. Rajagopal chari, Governor- General." An affidavit was also filed before ua by the Under. Secretary to the Government of Orissa communicating a copy of the telegram received from the Ministry of Home Affairs, Government of India to the effect that the order was in fact signed by the President Dr. Eajendra Prasad on 26th January, and that an authenticated copy of the same was sent for publication in the gazette. But that due to a clerical mistake the said order was published as an order of the Governor-General. In view of this affidavit, we are satisfied that the order was in fact made by the President on 26th January 1960. That order was made by him in exercise of his powers under Article 373 of the Constitution. It was argued that inasmuch as Dr. Rajendra Prasad assumed office as President of the Union of India only at about 10-50 A. M. on 26th the said order came into force sometime after Dr. Rajendra Prasad assumed office and that it cannot validate any law which might have become invalid prior to that hour. This argument appears to have carried much weight with the Division Bench of the Patna High Court in the recent case mentioned above. But in my opinion this argument is incorrect. An order made by the President under Article 373 of the Constitution is, in substance, a law of the Parliament during the transitional period as contemplated by Clause 7 of Article 22 of the Constitution. This is made absolutely clear by the language used in Article 373 wherein it is expressly stated that during the transitional period for reference to any law made by Parliament in Clause (4) and (7) of Article 22 there shall be substituted a reference to an order made by the President. Various other Articles of the Constitution confer on the President powers to make orders in respect of various matters such as Articles 372, 391 and 392, etc. But an order under Article 373 stands on a different footing in as much as it is expressly stated to be a substitution for the law of Parliament,' Consequently the general rules for the construction of any law of Parliament would apply while construing an order of the President made under other Articles of the Constitution. The General Clauses Act, 1897 was adapted by the President in exercise of his powers under Article 372 (a) and published in the Gazette of India on 26th January 1960. After that adaptation, the expression 'Central Act' has been defined in Section 3 (7), General Clauses Act, as meaning an Act of Parliament. I do not think there is any material difference between an Act of Parliament and the 'law made by the Parliament because the only method provided in the Constitution foe Parliament to make laws is by introducing and passing Bills as provided in Articles 107 to 111. Therefore, an order of the President under Article 373 for the purpose of construction with reference to the General Clauses Act should be deemed to be an 'Act' of Parliament and as such a 'Central Act.' Section 5 (3), General Clauses Act, makes it clear that: "Unless the contrary is expressed, a Central Act or Regulation shall be construed aa coming into operation immediately on the expiration of the day preceding its commencement." The expression 'Commencement' has also been defined in Section 3 (12) of that Act as follows : "Commencement" used with reference to an Act or regulation shall mean the day on which the Act or Regulation comes into force." Therefore, if a Central Act came into force, say at 11 A. M. on. 26th January then by virtue of Section 5 (3) read with Section 3 (12), General Clauses Act, that Act should be deemed to have coma into force from the midnight of the 25th-26th January. The order of the President under Article 373 should, therefore, be deemed to have come into force from the midnight of 25th-26th January, even though it might have been actually signed by the President only after 10-50 A, M. on 26th. The Constitution also came into force from the midnight of 26th-26th January because the provisions of the General Clauses Act, Section 5 (3) were made applicable to the interpretation of the Constitution by Article 867 (1) . The result, there. fore, is that) both the Constitution and the order came into force for legal purposes from the midnight of 25th 26th January and in considering the validity or otherwise of the relevant provisions of the Orissa Act, the short interval of time between the mid-night of 25th-26th January and the exact time of the signing of the order by the President becomes immaterial.
(3.) The main difficulty still remains, namely whether the provisions of the Orissa Act are inconsistent with Article 22 of the Constitution. The law providing for preventive detention in Orissa is contained in Section 2, 3 and 4, Orissa Act. Section 2 (1) (A) of that Act authorises the Provincial Government, if satisfied with respect to a particular person that with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of public order it is necessary so to do, to make an order directing that he be detained. Sections 3 and 4 are as follows: 3. (1) Grounds of detention to be disclosed on application of the person affected by the order. As soon as may be alter a person is detained in pursuance of an order made under Clause (a) of Subsection (1) of Section 2, the authority making the order may, on application of the person affected by the order, communicate to him, so far as such communication can be made without disclosing facta, which the said authority considers to be against the public interest to disclose the grounds on which the order has been made and such other particulars as are in its opinion sufficient to enable him to make a representation to the Provincial Government against the order; and such person may, within such time as may be specified by the Provincial Government make a representation in writing to them against the order and It shall be the duty of the Provincial Government to inform him of his right to make such representation and to afford him opportunity of doing so; provided neither the said order of detention not the detention of the said person thereunder shall be deemed to be invalid or unlawful or improper on the ground of any defect, vagueness or insufficiency of the communication made to such person under this section. (2) After the receipt of the representation referred to in Sub-section (1), or in cane no representation is received, after the expiry of the time fixed therefore, the Provincial Government shall place before the Advisory Counsil constituted under Sub-section (3), the grounds on which the order has been made by an authority or officer subordinate to them, the report made by him under Sub-section (3) of Section 2 and the representation, if any made by the person concerned. (3) The Provincial Government shall constitute an Advisory Council whenever necessary and it shall consist of not less than three members one of whom shall be its Chairman. The Chairman and the members of the Council shall be appointed by the Provincial Government. (4) The Advisory Council shall, after considering the materials placed before It and, if necessary, after calling for such further information from the Provincial Government or from the person concerned as it may deem necessary, submit Its report to the Provincial Government. (5) After considering the report of the Advisory Council the Provincial Government may confirm, modify or cancel the order made under Sub-section (1) of Section 2.;

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