RATAN ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This rule has been issued upon an application under Article 226 of the Constitution of India for a writ of habsas corpus in favour of one Ratan Roy, who was in detention under an order dated 19th January 1950, made under the provisions of Bihar Act III [3] of 1950. This Bench held recently in the case of Brahme-shwar Prasad, (on. Misc. No. 977 of 1949, decided on 14th February 1950) : (A. I. R. (37) 1950 Pat 265) that the detention provisions of Act III [3] of 1950 had become void from 26th January 1950, on the coming into force of the New Con-stitution. Consequently, if the matter had rested there, we would, without more, have had to pass an order for the release of the petitioner. But it appears that on the day following that judgment, namely, 16th February 1950, an Ordinance (Bihar ordinance No. II [2] of 1950--The Bihar Preventive Detention Ordinance, 1950) was made and promulgated by the Governor of Bihar under el. (1) of Article 213 of the Constitution, and a fresh detention order was made under this Ordinance on 16th and served on the petitioner the same day.

(2.) Mr. Basanta Chandra Ghosh on behalf of the petitioner objected that the promulgation of the Ordinance had not been established before us on the ground that he, and, he said, some other subscribers to the Gazette, had not received the Gazette notification. But the Bihar Gazette (Extraordinary) of 15th February containing the Ordinance has been placed before us and it has, therefore, been properly proved under Section 78, Evidence Act Whether or not all the subscribers received their copies can make no difference.

(3.) The position, therefore, is that we have to examine whether the detention of the petitioner is legal under the order made under this Ordinance. It is satisfactory to note that the Ordinance does not contain the various objectionable features which we pointed out in Act III [3] of 1950 and held were inconsistent with the provisions of Article 22 of the Constitution. Under this Ordinance, no person is to be detain-ed for a longer period than three months unless an Advisory Board has reported, before the expiration of that period, that there is, in its opinion, sufficient cause for such detention. The Government is to place the case before the Advisory Board within six weeks of the date of detention, and the Board is to report to the Government within ten weeks of the date of detention. The Government cannot ignore that report, but must pass orders in accordance there with. The provision preventing the Court from calling for and examining the report is gone and the provision that the detention shall not become illegal by failure adequately to communi-cate the grounds has disappeared. Nevertheless Mr. Ghosh has very strenuously attacked both the Ordinance and the order thereunder on a number of grounds. We have been sensible of the immense responsibility resting upon us in making first interpretations of the new constitution and deciding points of first impression, and we have, therefore, examined the arguments on both sides with the utmost care and anxiety.