ALI BUX, SK. Vs. THE STATE

JUDGEMENT

(1.) This is an application under Sec. 491 of the Code of Criminal Procedure for a writ in the nature of habeas corpus against the detention of Sk. Ali Bux under Sub -section (2) of Sec. 3 of the Preventive Detention Act, 1950.

(2.) It appears that the detenu Sk. Ali Bux is being detained on the basis of an order of detention made by the District Magistrate of Bankura on February 28, 1968, under Sec. 3(2) of the Preventive Detention Act, 1950.

(3.) Mr. Mukherjee first takes the point that the detenu was not served with the order of the State Government approving his detention under the said Act. The District Magistrate has in his affidavit said that the detention order was approved by the State Government within the time required under the law. Mr. Mukherjee does not dispute this but submits that the order of the State Government approving the detention of the detenu should have been communicated to the detenu and since this has not been done, the order of detention should be struck down. Mr. Mukherjee refers to the decision in Bachittar Singh v/s. State of Punjab, A.I.R. 1963 S.C. S95 and argues that the order of the State Government approving the detention has to be expressed in the name of the Governor and further it has to be communicated to the detenu. What was decided in that case is that even though a Minister or a Council of Ministers endorses a decision on the file, it does not amount to an order of the State Government because the order has to be expressed in the name of the Governor as required by Article 166 of the Constitution. That was a case in respect of a proceeding against a Government servant and it was further said that unless the ' decision was communicated to the Government servant, it did not operate as an order of the State Government and he could not be said to be bound by that order. Here in this case the approval of the detention order has been expressed in the name of the Governor as required under Article 166 of the Constitution. Mr. Mukherjee submits that the order should also have been communicated to the detenu. The Preventive Detention Act provides for the approval by the State Government of the detention order made by the District Magistrate. This Act regulates the procedure how the District Magistrate or the State Government should act in such matters. It has been specifically provided in the Act that the detention order should be served on the detenu and the grounds should also be served on the detenu, but the Act does not provide for service of the order of approval by the State Government. The decision of the Supreme Court in Bachittar Singh's case (1) is not attracted in this case, inasmuch as the Act itself provides for the procedure in such matters and we are not prepared to say that, because the order of approval was not communicated to the detenu, the order becomes bad in law.