DATTATREYA MORESHWAR PANGARKAR versus THE STATE OF BOMBAY AND OTHERS

Citation: [1952] 1 S.C.R. 612 · Decided: 27-03-1952 · Supreme Court of India · Bench: M. PATANJALI SASTRI · Disposal: Dismissed

Judgment (excerpt)

1952 
. Maret.. 27. 
·612 
:SUPREME. COURT REPORTS 
[1952] 
DATTATREYA MORESHWAR PANGARKAR 
v. 
THE STATE OF BOMBAY AND OTHERS 
[PATANJALI SASTRI c. J., MEHER CHAND MAHAJAN, 
MuKHERJEA, DAs and CHANDRASEKHARA 
AIYAR JJ.] 
Preventive Detention Act (IV of 1950), s. 11 (1)-Confirmatioo 
of detention order after report of Advisory Board-Period of ft<rther 
detention not specified-Order not expressed to be in the name of 
Governor-Validity 
of 
detention-Executive 
decisions-Mode 
of 
er{lression-Constitution of India, Art. 166 (1) and (2)-Whether 
directory or mandatory. 
Section 11, sub-s. (I), of the Preventive Detention Act, 
195(), 
provided that "in any case where the Advisory Board has 
reJX>rt~ 
ed that there is in its opinion sufficient cause for the detention 
of a person, the appropriate government may confirm the deten~ 
tion order and continue the detention for such period as it thinks 
fit". 
The case of the petitioner who was arrested under the Act 
was referred to the Advisory 
Board and on receiving a report 
from 
the Board that in its opinion there was sufficient cause for 
the detention of the petitioner the Government decided to confirm 
the order of detention and this decision was communicated 
to 
the District Magistrate. by a confidential letter signed by 
the 
Assistant Secretary to the Government for the Secretary to 
the 
Government. The material portion of the letter ran thus:-
11Thc 
Government is accordingly pleased to confirm the detention order 
against the detenue. 
Please inform the detenue accordingly and 
report compliance." In an application for a writ in the nature 
of habeas corpus it was contended on behalf of the petitioner 
that his detention was illegal: (i) because the Government had at 
the time of confirming the order omitted to specify the" period 
during which, the detention should continue; (ii) 
because the 
ordCr of confirmation was not expressed to be made in the name 
of the Governor as required by Art. 166 (1) of the Constitution: 
Held, 
per PATANJALI 
SASTRI 
C.J., 
MUKHERJEA, 
DAs and 
CHANDRASEKHARA 
A1YAR _JJ. 
(MAHAJAN 
J. dissenting)-that thet 
Omission to state the period 9f further dete,ntion while confirm-
ing the detention order under s. 11(1) .of the 
Preventive 
Deten-
tion Act could not render the detention illegal because, per 
PATANJALI 
SAsTRI C. J. and DAs 
J.~n a proper construction 
of s. 11 (!), a specification of the period of continuation of the 
detention is not necessary, however desirable it may be; per 
MuKHERJEA and CHANDRASEKHARA A1YAR0 JJ.-though s. 11 (!) 
docs contemplate that a 
period should be· inentioned during 
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S.C.R. 
St1Pl{EME COURT REPORTS 
613 
which the further detention of the detenue is to Continue, mere 
omission to do so would not make the order a nullity and 
justify release of the detenue. 
Held also, per PATANJALI SAsTRl C. J., MuKHERJEA, DAs and 
CHANDRASEKHAR.A 
A1YAR, JJ ., that though 
the Preventive Deten-
tion Act contemplates and requires the taking of an executive de-
cision for confirming a detention order tinder s. 11(1), omission to 
make and authenticate that executive decision in the form men-
tioned in Art. 166 will not make the decision itself illegal for the 
provisions in that article are merely directory and not manda-
tory. 
Per 
MuKHERJEA and CHANDRASEKHARA 
A1YAR 
JJ.-Sec-
tion 11(1) c;if the Preventive Detention Act does contemplate a 
formal order of confirmation and Art. 166(1) of the Constitution 
would apply to the case ; clauses ( 1) and (2) of the said article 
must however be read together. 
While cl. ( 1) relates to the mode 
of expression of an executive order or instrument, cl. (2) lays 
down the way in which such order is 
to 
be 
authenticated, and 
when both these forms are complied with, an order or instru-
ment would be immune from challenge in a court of law on the 
ground that it has not been made or executed by 
the Governor 
of the State. 
Even if cl. 
( 1) is taken to be in independent pro-
vision uµconnected with cl. (2) and having no relation to the pur-
pose indicated therein, cl. ( 1) is directory and not imperative in 
its character. 
MAHAJAN J.-Section 11(1) of the 
Preventive 
Detention Act 
contemplates that when the report of the Advisory Board 
reaches 
the Government it has to come to a decision and pass an order in 
accordance with that decision against the detenue to the effect 
that in view of the report of the Advisory Board the detention 

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