- (1.) This application on behalf of the detenu in a proceeding under Article 226 of the Constitution of India is for bail. The detenu was taken into custody under an order issued by the Home Secretary, Government of West Bengal, under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act 52 of 1974) (to be described hereinafter as the new Act) with a view to preventing the detenu from abetting the smuggling of goods and engaging in keeping smuggled goods. Earlier, the detenu was taken into custody under the amended provision of Section 3 (1) (c) of the Maintenance of Internal Security Act, 1971 for abetting other persons to smuggle goods and dealing in smuggled goods and the detenu moved this Court against the said order and obtained a Rule. While that application was pending, the "new Act" came into force on the 13th of December, 1974 and the detention order under the old Act came to end and the detenu was released and thereafter taken into custody under a fresh order of detention on the self - same ground. This fact, of course, was disputed by the petitioner and it was disputed by the petitioner and it was contended that the detenu was never at any point of time actually released from custody. But it is now admitted that a fresh order of detention under the new Act was served on the detenu on 19th December, 1974. Against the said order, the detenu moved this Court, obtained the Rule and applied for bail. Meanwhile, in 1974, the President made a declaration under Clause of Article 359 of the Constitution, whereby the right to move any court for the rights conferred by Article 14, Article 21 and Clauses (4) to (7) of Article 22 of the Constitution with respect to any order of detention made under the new Act was to remain suspended for a period of six months from the date of the order or the period during which the Proclamation of Emergency was to remain in force, whichever period expired earlier. In view of this Presidential Order, it is contended on behalf of the Union of India and the State of West Bengal,that the petitioner has no right to move this Court for infraction of any of his rights enumerated in the Presidential Order and the instant application as such cannot be considered by the Court. Mr. Ray appearing for the petitioner contends that what has been suspended is the enforcement of the rights conferred by Article 14, Article 21 and Clauses (4) to (7) of Article 22 of the Constitution and not any other rights which the detenu and/or the petitioner may have and as such the Court is entitled to look into and decide the prayer of the petitioner. Of course, Mr. Ray conceded that he has, in view of the Presidential Order, at present no right to ask enforcement of his fundamental rights conferred by the aforesaid Articles of Chapter III of the Constitution. Mr. Ray however contends that what he is asking for in the instant application is whether there has been any infraction of his statutory and other legal rights outside the scope of the rights conferred by Article 14, Article 21 and Clauses (4) to (7) of Article 22 of the Constitution. These two sets of rights, according to Mr. Ray, are distinct and separate and the President's Order merely suspends a detenu's right to move the Court for enforcement of his fundamental rights conferred by the aforementioned Articles of Chapter III of the Constitution but his other rights are not affected. In view of the objection taken we have decided to hear both parties on this preliminary point.
(2.) Mr. Ray contends that he is challenging the order of detention in the instant case, not for any infraction of the fundamental rights conferred by Article 14, Article 21 and Clauses (4) to (7) of Article 22 of the Constitution but for the infraction of his other statutory rights, against which he is not debarred under the President's Order made under Article 359 (1) of the Constitution. That Order only suspends the petitioner's right to move any Court for enforcement of his fundamental rights conferred by Article 14, Article 21 and Clauses (4) to (7) of Article 22 of the Constitution and there is a clear distinction between such rights and the statutory rights and he is accordingly entitled to challenge the order of detention on grounds other than those specified in the Order. Mr. Ray cited a number of decisions of the Supreme Court in support of his contention. To start with, the first case referred to by Mr. Ray is the case of Makhan Singh Tarsikka v. State of Punjab (A.I.R. 1964 S.C. 381) Then followed a number of decisions by the Supreme Court in quick succession and these are Dr. Ram Manohar Lohia v. Stale of Bihar (A. I. R. 1966 S. C. 740); Ananda Nambiar v. Chief Secretary to the Government of Madras (A.I.R. 1966 S.C. 657); Durgadas Shirali v. Union of India (A.I.R. 1966 S.C. 1078); Jaganath Misra v. State of Orissa (A.I.R. 1966 S. C.1140), Jaichand Lal Sethia v. State of West Bengal (A.I. R. 1967 S.C. 483) and Md. Yeakub v. State of Jammu and Kashmir (A.I.R. 1968 S. C. 765). Apart from these decisions of the Supreme Court, Mr. Ray also referred to a recent decision of of the Delhi High Court in the case of Daya Shankar Kapoor v. Union of India, being C.R.P. No. 37 of 1974 disposed of on November 22, 1974 and another decision of the Delhi High Court disposed of on the same day, i. e., the case of Harbas Lai v. Union of India, being Criminal Writ No. 32 of 1974 and a decision of Gujarat High Court in special Criminal Applications Nos. 125 and 127 of 1974 disposed of on November 5, 1974. These later decisions relate to the identical points examined in the context of the amended Section 3(1) (c) of the Maintenance of Internal Security Act, 1971, now repealed.
(3.) The learned Advocate General appearing on behalf of the Union of India opposed the application and contended that the detenu or for the matter of that the petitioner has no right to move the Court under Article 226 of the Constitution after the President's Order under Article 359 (1) of the Constitution was made. The learned Advocate General in the first instance contends that the remedy of the detenu under Article 226 is barred in view of the fact that Article 21 which is the sole repository of the rights of personal liberty of a citizen has been suspended. As such, the learned Advocate General submitted it is not open to the petitioner to say that any one who was detained otherwise than in accordance with the procedure established by law, once the President's Order under Article 359(1) of the Constitution was made, has right to move the court. We are unable to accept this contention. The Supreme Court had occasion to consider a previous Presidential declaration issued under Article 359(1) suspending Articles 14, 21, and 22 of the Constitution. That Order is dated 3rd November, 1952 and is to the following effect : ORDER: New Delhi, the 3rd November 1962. G. S. R. 1464 - In exercise of the powers conferred by Cl. (1) of Article 359 of the Constitution, the President hereby declares that the right of any person to move any Court for the enforcement of the rights conferred by Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under Cl. (1) of Article 352 thereof on the 26th of October 1962, is in force if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder.";