PRALHAD KRISHNA KURANE Vs. STATE OF BOMBAY

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India by a person, who was originally detained under an order dated 1-4-1948 under the Bombay Public Security Measures Act. It appears that the applicant detenu was arrested in pursuance of tha order on 13-2-1950 and detained in the House of Correction at Byculla under the authority of the order. On 26-2-1950 the Preventive Detention Act, 1950, came into force, and there was consequently passed against, the applicant an order under that Act detaining him under Section 3 of the Act, Subsequently by an order passed by the Assistant Inspector General of Prisons for the Inspector General of Prisons the applicant was transferred from the House of Correction at Byoulla to the Thana Jail, and he was detained there until the applicant made the present application. Under the Preventive Detection Act, 1950, as it stood originally, an order of detention would have remained in force only for a period of one year from the date of the order; but on 22-2-1951 the Preventive Detention Act was amended by an amending Act, and Section 12 of the amending Act provided : "For the avoidance of doubt it is hereby declared that- (a) every Selection order in force at the commence-ment of the Preventive Detention (Amendment) Act, 1951, shall continue in force and shall have effect as if it had been made under this Act as Pralhad Krishna Kurane vs. The State of Bombay (11.06.1951 - BOMHC) Page 3 of 27 amended by the Preventive Detention (Amendment) Act, 1951; and (b) nothing contained in Sub-section (3) of Section 1, or Sub-section

(2.) The learned Government Pleader, who appears for the State, does not, at any rate, seriously dispute the proposition that the order which would be continued by virtue of Section 12 of the-amending Act would be a valid order and an invalid order for detention would not be continued because of the provisions of that Section. It is quite true that the words which are used in Clause (a) of Section 12 are "every detention order in force." Now, a detention order may be valid in its inception, but may not be in force at the commencement of the amending Act for various reasons, one such reason being, of course, that the order had expired either because the original order stated that the detention would be for any particular period, or because Section 12 of the old Act directed that there could not be any detention for a period greater than one year. But Clause (a) of Section 12 foresees two requirements before a detention can be said to be continued : not only that the order should be in force in the sense that the period during which it was to continue had not yet expired at the date of the commencement of the amending Act, but also that that order must be a valid order.

(3.) The first contention of the learned Government Pleader, however, is that prior to the coming into force of the amending Act the applicant had made an application to this Court for release from detention under Article 226 of the Constitution and that application was dismissed by this Court. The applicant made an application for review of that order, but that application was also dismissed, and so far as this Court ia concerned, it is not in dispute that the applicant's detention before the coming into force of the amending Act has been held by this Oourt to be valid, at any rate up to the date upon which this Court dismissed his first application for release from detention. The learned Government Pleader saya that if the applicant now seeks to challenge his detention as invalid, that must be on some fresh grounds accruing to the applicant after his first application for release from detention was dismissed by this Court. Now, one could under-stand such an argument, in case an appeal from the decisions of this Court was not pending before the Supreme Court, not to mention an original application for release from detention made to that Pralhad Krishna Kurane vs. The State of Bombay (11.06.1951 - BOMHC) Page 4 of 27 Court. It has got to be remembered that the question which is before this Court now is whether the detention of the applicant now is a valid detention. In order that that detention should be pronounced to be valid, there must be a valid detention order, and the contention on behalf of the State being that there was originally a valid order for detention in force against the applicant at the time of the coming into operation of the amending Act; and that order was continued by Section 12 of the amending Act, the question resolves itself into the question of the validity of the order under which the applicant was being detained just before the amending Act came into force. Now, I have no doubt that when the previous application of the applicant was dismissed, it was held by this Court that the order under which the applicant was detained, which, as a matter of fact, is the same order under which the applicant was being held in detention on 21-3-1951 was a valid order. But the principal question before this Court was not the validity of the order under which the applicant was being detained but the validity of the applicant's detention at the time of the disposal of his application, the question of the validity of the order under which the applicant was being detained being gone into because the detention could not possibly be held to be valid if the order was bad; but that does not affect the fact that the validity of the order of detention had to be gone into incidentally. Now, had this case been a civil case and the principles of res judicata had to be applied, it is obvious that the applicant could have a reply to the non-application of the doctrino, because he could say that there is no final order passed against the applicant holding his prior detention valid, because his appeal to the Supreme Court is still pending, but inasmuch as we find that it is possible for us to dispose of this application without going into the question a? to whether the applicant is precluded from taking up the contention that she order under which the applicant was being detained was not a valid order at its inception, it is not necessary to express a final opinion upon this point.