Decided on March 24,1950

HARI SINGH Appellant
THE STATE Respondents


Teja Singh, C.J. - (1.) THE detenu to whom this petn. Under Section 491, Code of Criminal Procedure relates was originally arrested Under Section 3 of the Patiala & East Punjab States Union Public Safety Ordinance of 2006 St. by A.S.I. Partap Singh & was ordered to be detained for one month. Later on, the period of detention was increased by the Govt. to three months. Before the three months bad expired Anr. order for the arrest & detention of the detenu was made by the Govt., this time Under Section 3, Preventive Detention Act (No. IV [4] of 1950). In Para. No. 4 of the petn., in which the legality of the present orders of arrest & detention has been questioned, it is stated, inter alia, that the Govt. or the State was not satisfied that the petnr. was about to commit any act which endangered or was likely to endanger the Public peace or order or the security of the State & that the extension of the detention order was made merely to legalise the earlier illegal order & to keep up the prestige of the A.S.I. Pratap Singh. The counsel for the State in his written statement has denied the allegation made by the petnr. & has contended that the order was legal inasmuch as there was material before the Govt. on the strength of which they were satisfied that the arrest & detection of the detenu was necessary with a view to prevent him from acting in any manner prejudicial to the security of the State & the maintenance of public order. The position of the State counsel is that the arrest was made under Clause (a)(ii) of Section 3, Detention Act, & in support of his contention he has produced an affidavit by the Deputy Secretary Home of the Govt. The petnr.'s counsel has come forward with prayer that the should be given an opportunity of examining the Deputy Secretary in respect of what was stated in his affidavit & with a view to elicit information from him as regards the material that was before the Govt. & on the strength of which the detenu was arrested. Mr. Chetan Dass raises an objection to the right of the petnr. to examine the Deputy Secretary in Ct. His main contention is that since the Deputy Secretary's affidavit is already on record & a copy of the order of arrest has also been produced, they raise a presumption that the action taken by the Govt. against the detenu was justified & legal & that the petnr. has no right to examine the Deputy Secretary on any of these points. After having heard the learned Counsel as well as the petnr.'s counsel, I am constrained to observe that the objection of Mr. Chetan Dass is frivolous & it has only resulted in the waste of the valuable time of the Ct. It should be realised that in a case of this kind where the liberty of the subject is taken away by an executive order of the Govt. or of any official of the Govt. & a petn. is made challenging the correctness of that order it is the duty of the Ct. to see that all provisions of law are satisfied & that the order is legal. In this connection I cannot help quoting the observations made by Chagla C.J. of the Bombay H.C. in Rex v. Bhika Ramachandra : A.I.R. 1950 Bom. 330. I am aware that the facts of that case were somewhat different & it related to an offence alleged to have been committed by the accused Under Section 2, Bombay Public Security Measures Act, but the principle enunciated by the learned Chief Justice in that case, in my opinion, applies with equal force to an order made Under Section 3, Preventive Detention Act. In that case the accused was served with an order which be was alleged to have disobeyed. One of the ingredients of the legality of the order was that the authority issuing the order should be satisfied more or less in the terms in which Section 3 is worded. In that case too, as in the present case, the Advocate General relied upon the production of the order & contended that a presumption must be drawn ex facie that the order was validly made & if it was validly made then the detaining authority was satisfied as required by law. This is what the learned Chief Justice said on the points: We cannot accept the contention of the Advocate General. This was the very contention that was urged before us in Emperor v. Abdul Majid : A.I.R. 1949 Bom. 387 :, 51 Cr.L.J. 47 & this was the very contention which we expressly rejected in that case. We have pointed out in that case the burden is upon the prosecution to establish every ingredient which goes to constitute the offence, & one of the most important ingredients is that, the detaining authority was satisfied as to the matters set out in Section 2(1) before the order was made, We have also pointed out that it is not sufficient to tender the order which states that the detaining authority is satisfied. Later on the learned Judge observed: The Advocate -General has drawn our attention to the practical difficulties which may result if in every case the detaining authority would have to step into the witness box without there being a proper challenge by the accused as to the validity of the order. While appreciating the practical difficulties, we feel it infinitely more important that we should not permit the liberty of the subject to be undermined in any manner.... It is not the satisfaction of the Court; the law has left it to the detaining authority to be satisfied & therefore the least that the prosecution can do is at least to prove that the detaining authority was satisfied.
(2.) MR . Chetan Dass chiefly relied upon the observations made by Hidayatullah J. in Wasudeo Anant v. Emperor : A.I.R. 1949 Nag. 50 : 50 Cr.L.J. 165; but I have not been able to understand how they can help them, because all that was held by the learned Judge was that there is a presumption that an order made by a proper authority in exercise of the powers vested in him was based upon proper materials & a heavy burden lay upon the petnr. which be could not displace by mere denial or by asserting that he was not aware of any reason. I accept this proposition, bat at the same time I must hold that the presumption is rebuttable & an opportunity must be given to the petnr. to show that there was no proper material before the authority making the order of arrest, or that there was no material at all. In this case the petnr.'s case, as I have already observed, is that the Govt. was not satisfied at all as regards the necessity of making the order of arrest & detention & he means to establish this fact by proving, inter alia, that there was no material before the Govt. on the strength of which that satisfaction could be based. The other case reld. upon by Mr. Chetan Dass is a decision by Bhandari J. in Faiz Ahmed v. Emperor, A.I.R. 1948 Lah. 87 :, 49 Cr.L.J. 161. The learned Judge held that the object of habeas corpus is to enable the Ct. to inquire into & determine the legality of the detention of a person who is restrained of his liberty, & as a person is entitled to be at liberty unless he is restrained by process of law, initially the onus of proof lies on the custodian to establish that the restraint is under legal process. If he fails to make out a prima facie case the detenu must be released. If, on the other band, he produces an order which shows on the face of it that the detention is legal, the burden of proof again shifts & the detenu must prove all the facts necessary to show that the restraint is illegal. In view of the legal maxim that all acts are presumed to have been done rightly & regularly, the fact set out in the return submitted by the Provincial Govt. in response to the writ are prima facie presumed to be true unless this presumption is rebutted by the production of convincing evidence to the contrary. I entirely agree that by producing a copy of the order purporting to have been made by His Highness the Rajpramukh & signed by the Deputy Secretary of the Govt. it can be said that the State has produced prima facie evidence in support of the legality of the (sic) & detention, but it being only a prima facie evidence it is liable to be rebutted & since the object of the petnr. in having the Deputy Secretary brought before Ct. & examined in respect of the allegations contained in his affidavit is to rebut the evidence afforded by the production of the copy of the order of arrest I do not think I have a right to refuse this request. Whether the facts that might be disclosed in the evidence of the Deputy Secretary would or would not be sufficient to rebut the presumption regarding the legality of the order is difficult to say at the present stage, but surely this can be no ground for disallowing the petnr. from the evidence that he wishes to produce. As a last resort Mr. Chetan Dass drew my attention to Section 14, Detention Act, which lays down that except for the purposes of a prosecution for an offence punishable under Sub -section (2) the Ct. will not allow any statement to be made or any evidence to be given before it of the substance of any communication made under Section 7 of the grounds on which a detention has been made, etc Now, the applicability of this section is not apparent to me at this stage because there is nothing before me to show that the petnr. wants to question the Deputy Secretary regarding any of the matters specified in the section. Moreover, if any question about those matters is put to the Deputy Secretary when he is in the witness -box, it will be open to the State counsel to raise an objection & it will be decided on merits. The mere fact that a question might be put which can be properly objected to cannot be it ground for holding that the Deputy Secretary cannot be examined as a witness at all.
(3.) ACCORDINGLY , the objection of the State counsel is overd. & it is ordered that the Deputy Secretary be produced in Ct. for examination by the petnr.'s counsel on 3 -4 -1950. As a matter of precaution, a summons shall also issue to the Deputy Secretary for his appearance in Ct. on that day.;

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