Makhan Singh Tarsikka vs The State Of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Petition No. 308 of 1951

Decision Date: 10 December 1951

Coram: M. Patanjali Sastri, Mehr Chand Mahajan, B.K. Mukherjea, N. Chandrasekhara Aiyar

In the matter titled Makhan Singh Tarsikka versus The State of Punjab, a petition was filed before the Supreme Court of India and the judgment was pronounced on 10 December 1951. The case was decided by a bench consisting of Chief Justice M. Patanjali Sastri together with Justices Mehr Chand Mahajan, B.K. Mukherjea and N. Chandrasekhara Aiyar. The official citation of the decision appears as 1952 AIR 27 and 1952 SCR 368, with additional references recorded as R 1952 SC 106, F 1952 SC 181 and R 1958 SC 163. The discussion centred on the Preventive Detention Act (Act IV of 1950 as amended in 1951), specifically sections 3(i), 9, 11 and 12, which govern the authority to issue detention orders and prescribe the procedural safeguards required to deprive a person of personal liberty.

The headnote of the judgment clarified that, although the original 1950 version of the Preventive Detention Act might have permitted a different approach, the amendment enacted in 1951 required the Government to determine the period of detention only after the Advisory Board, to which the case is referred, reports that the detention is justified. The Court held that fixing the period of detention in the initial order itself is inconsistent with the scheme of the amended Act and cannot be sustained. Such a provision cannot be dismissed as a merely surplusage because it would prejudice a fair consideration of the detainee’s case by the Advisory Board, even though the detainee must be released immediately if the Board finds no sufficient cause for detention. The Court emphasized that before a person is deprived of liberty, the procedure established by law must be followed strictly and must not be departed from to the disadvantage of the person concerned.

The petition, numbered 308 of 1951, was presented under article 32 of the Constitution for a writ of habeas corpus seeking the release of the petitioner from detention. The petitioner was represented by H.J. Umrigar acting as amicus curiae, while the State of Punjab was represented by the Advocate-General S.M. Sikri, assisted by Jindra Lal. The Court, after hearing the parties, accepted the petition and, at the conclusion of the hearing on 10 December 1951, ordered the immediate release of the petitioner. The Court then proceeded to set out the reasons for this order. It recorded that the petitioner had been arrested and detained pursuant to an order dated 1 March 1950, issued by the District Magistrate of Amritsar under section 3(1) of the Preventive Detention Act, 1950. The grounds for detention were communicated to the petitioner on 15 March 1950 in accordance with section 7 of the Act. The petitioner subsequently challenged the validity of that order on several grounds. While these challenges were being considered, this Court issued a rule nisi to the respondent, and the petition remained pending.

During the pendency of the petition against the respondent, the petitioner was served on 6 August with a second detention order that was dated 30 July 1951 and purported to have been issued by the Governor of Punjab under sub-section (1) of section 3 and under section 4 of the Preventive Detention Act as amended by the Preventive Detention (Amendment) Act, 1951; he was subsequently served with fresh grounds for detention on 16 August 1951 in accordance with the requirement of section 7 of the Act. In response to this service, the petitioner filed a supplementary petition challenging the validity of the new order, contending, inter alia, that the order directed his detention to continue until 31 March 1952—the date on which the Act itself was scheduled to expire—and that such a directive was contrary to the provisions of the amended Act. For the respondent, the Advocate-General of Punjab argued that the order was not intended to constitute a fresh detention but was issued solely to limit the period of the existing detention to 31 March 1952, relying on earlier decisions that had held an order of detention for an indefinite period to be defective. The order itself read as follows: “WHEREAS the Governor of Punjab is satisfied with respect to the person known as Makhan Singh Tarsikka, son of Gujjar Singh, Jat, of Tarsikka, Police Station Jandiala, Amritsar District, that with a view to preventing him from acting in a manner prejudicial to the security of the State, it is necessary to make the following order: NOW, THEREFORE, in exercise of the powers conferred by sub-section (1) of section 3 and section 4 of the Preventive Detention Act, 1950 (Act IV of 1950), as amended by the Preventive Detention (Amendment) Act, 1951 (Act IV of 1951), the Governor of Punjab hereby directs that the said Makhan Singh Tarsikka be committed to the custody of the Inspector-General of Prisons, Punjab, and detained in any jail of the State till 31 March 1952, subject to such conditions as to maintenance, discipline and punishment for breaches of discipline as have been specified by a general order or as contained in the Punjab Communist Detainee Rules, 1950.” The Court observed that the terms of the order clearly indicate that it was intended to operate as a fresh order for the petitioner’s detention, a view reinforced by the fact that the order was followed by the service of a new set of grounds as required by section 7; such a proceeding would have been entirely unnecessary if no new detention order were intended. The petitioner also suggested that the issuance of the order, together with fresh grounds only four days before the hearing date fixed by this Court, was a deliberate maneuver by the respondent to sidestep the objections raised against the earlier order of 1 March 1950 and thereby render the proceedings ineffective. Notwithstanding that suggestion, the Court was clearly of the opinion that the order dated 30 July 1951 must be regarded as a fresh order made for the petitioner’s detention, superseding the earlier order.

The Court observed that the order issued on 30 July 1951 must be treated as a new detention order that replaced the earlier order. The key issue was whether that new order was illegal because it immediately prescribed detention of the petitioner until 31 March 1952, which happened to be the date on which the Act would expire. The Court noted that irrespective of the position of the law before its amendment in February 1951, the amended Act clearly required that every case of detention be placed before an Advisory Board established under section 9 of the Act. The Act further provided in section 11 that if the Board reported sufficient cause for detention, the appropriate Government could confirm the detention order and continue the detention for such period as it thought fit.

The Court explained that it is therefore clear that only after the Advisory Board, to which the case had been referred, reported that detention was justified should the Government decide the length of the detention, and not before. By fixing the period of detention in the initial order itself, as was done in the present case, the order contravened the statutory scheme and could not be upheld. The learned Advocate-General argued that because section 11(2) allowed for immediate release if the Board found no sufficient cause, the direction in the 30 July 1951 order to detain the petitioner until 31 March 1952 could be treated as surplusage and ignored. The Court rejected that contention, holding that such a direction would prejudice a fair consideration of the petitioner’s case before the Advisory Board. The Court emphasized that before a person’s personal liberty is deprived, the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected. Accordingly, the petition was allowed. The respondent’s agent was identified as P A Mehta.