KRISHNA SHARMA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THESE are two applications praying that orders under Article 226 of the Constitution of India may bo made and writs in the nature of Habeas Corpus issued in favour of Mahabir Prasad Periwal and his brother Gajanand Periwal now detained in the Darjeeling Jail under two detention orders passed under the Preventive Detention Act. The two cases were heard together and the arguments in both the canes are practically the same. This judgment will govern both the cases.

(2.) BEFORE dealing with the arguments advanced before us it is necessary to set out a few facts. On 20 -8 -1953, Mahabir Prasad Periwal and his brother Gajanand Periwal were arrested at Kalimpong and thereafter detained in the Darjeeling Jail under an order dated 19 -8 -1953 under the Preventive Detention Act 4 of 1950 purported to have been passed by the Deputy Commissioner of Darjeeling. Rules were obtained from this Court in both the cases and on 1 -10 -1953 a Bench of this Court held that the orders of detention were illegal and directed that both the detenus be set at liberty forthwith.

(3.) IT has been contended on behalf of the detenus that Section 3(1)(a)(iii), Preventive Detention Act, empowering the Central Government or the State Government to detain a person with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community is ultra vires and 'a fortiori' the corresponding power as conferred on the District Magistrates, Additional District Magistrates, etc., by Sub -section (2) of the Act is also ultra vires the Constitution. It is contended that by making the above -mentioned provisions the Legislature has parted with its essential legislative function which consists in declaring its policy and making it a binding rule of conduct. It is urged that this is not legislation as contemplated in Article 246 of the Constitution.