PETITIONER: N. MEERA RANI Vs. RESPONDENT: GOVERNMENT OF <NAME> & ANR. DATE OF JUDGMENT22/08/1989 BENCH: <NAME>, JAGDISH SARAN (J) BENCH: <NAME>, JAGDISH SARAN (J) RANGNATHAN, S. OJHA, N.D. (J) CITATION: 1989 AIR 2027 1989 SCR (3) 901 1989 SCC (4) 418 JT 1989 (3) 478 1989 SCALE (2)363 CITATOR INFO : R 1990 SC 516 (10) R 1990 SC1196 (5,18) RF 1990 SC1202 (11,12) D 1990 SC1763 (5) RF 1991 SC1640 (12) RF 1991 SC2261 (12) ACT: National Security Act , 1980-- Section 3(2) and 12(1) subsisting custody of detenue does not invalidate order of detention--Detention order can be made in anticipation to operate on release of detenue. HEADNOTE: By an order dated 7.9.88 the Collector & District Magis- trate Madurai under s. 3(2) of the National Security Act, 1980 made an order for keeping in custody <NAME>, the husband of the appellant/ petitioner. The State <ORG>. on 25.10.88 by its order under s. 12(1) of the Act confirmed the order of detention agreeing with the opinion of <ORG> and ordered the detention of the detenue for 12 months from the date of his detention. The wife of the detenue challenged this preventive detention by filing a writ of Habeas Corpus in <ORG>. <ORG> by its order dated 6.3.89 dismissed the writ petition. The appellant-petitioner challenged the dismissal of the writ by <ORG> by way of special leave and also by filing a writ petition under Article 32 of the Constitution of India. This Court while quashing the detention order, HELD: Subsisting custody of the detenue by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenue from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenue is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenue and take that factor into account while making the order; but, even so, if the detain- ing authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. [919E-G] In the instant case, the the detention order read with its annexure indicates the detaining authority's awareness of the fact of detenue's 902 jail custody at the time of the making of the detention order. However there is no indication therein that the dete- nue could be released on bail. On the contrary the detention order shows satisfaction of the detaining authority that there was ample material to support the criminal charge against the detenue. The order of detention passed on 7.9.1988 and its confirmation by <ORG> on 25.10.1988 is therefore clearly invalid since the same was made when the detenue was already in jail custody for the offence of bank dacoity with no prospect of his release. [919H- <CITATION> .,  4 SCR 921--relied upon. <CITATION> .,  3 SCC 490; Dr. <NAME> v. District Magis- trate, Jabalpur & Anr.,  4 SCC 164; <CITATION> .,  2 SCC 43; <CITATION> , Dhanbad,  3 SCR 939; <CITATION> .,  4 SCC 232; <CITATION> - bad, Bihar & Ors.,  4 SCC 416; <CITATION> .,  4 SCC 48 and Smt. Shashi Aggarwal v. State of U. P. & Ors.,  1 SCC 436. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 511 of 1989.

From the Judgment and Order dated 6.3.1989 of <ORG> in W.P. No. 14828 of 1988.

WITH Writ Petition (Criminal) No. 205 of 1989.

(Under Article 32 of the Constitution of India). <NAME> and <NAME> for the Appellant/Petitioner. <NAME>, <NAME> and <NAME> for the Respondents.

The Judgment of the Court was delivered by <ORG>, <NAME> Special leave granted.

The appellant-petitioner, Smt. <NAME>, is the wife of <NAME>, who has been detained under the Nation- al Security Act , 1980 (Act No. 65 of 1980) (hereinafter referred to as "the Act"). An order dated 7.9.1988 was made by the Collector and District Magistrate, Madurai, under section 3(2) of the Act directing that the detenu be kept in custody in the Central Prison, Madurai. Thereafter, <ORG> by its order dated 25.10.1988 made under section 12(1) of the Act has confirmed the order of deten- tion agreeing with the opinion of <ORG> consti- tuted under the Act and directed that the detenu be kept in detention for a period of 12 months from the date of his detention. This preventive detention of the detenu was challenged in <ORG> at Madras by his wife, the appellant-petitioner, under Article 226 of the Constitution praying for issuance of a writ of habeas cor- pus. <ORG> by its order dated 6.3.1989 has dis- missed the writ petition. The appellant-petitioner has then challenged dismissal of the writ petition by <ORG> by special leave under Article 136 of the Constitution of India in this <ORG>. The appellant-petitioner has also filed a writ petition under Article 32 of the Constitution of India for the same purpose in this <ORG> challenging direct- ly her husband's preventive detention. The object of filing this writ petition directly in this <ORG>, in addition to the appeal by special leave, is to raise some additional grounds to challenge the detenu's detention. Both these matters have been heard together and are being disposed of by this common judgment.

We may now state the arguments advanced to challenge the detenu's detention before mentioning the relevant facts which are material for deciding those points. <NAME>, learned counsel for the appellant-petitioner, has advanced three contentions. The first contention is that certain documents which have been referred to in some grounds of detention were not supplied to the detenu with the result that the detenu was not given a proper and rea- sonable opportunity for making an effective representation and, therefore, the order of detention is vitiated for this reason alone. The second contention is that some documents in the form of newspaper reports showing that the detenu was apprehended and detained even prior to 21.8.1988 when the detenu was shown to have been arrested in connection with an offence punishable under section 397 I.P.C. were not placed before the detaining authority when it formed the opinion mentioned in the detention order which has also vitiated the detention order. The last contention is that the fact of detenu's arrest in connection with an offence punishable under section 397 I.P.C. and of remand to custody by the Magistrate as well as the contents of the bail application dated 22.8.1988 which was rejected by the Magistrate were not taken into account by the detaining authority before passing the order of detention dated 7.9.1988 which also renders the detention order invalid. On the other hand, <NAME>, learned counsel for the respondents contended that even assuming that some documents referred in the grounds of detention were material and were not supplied to the detenu the effect is not to invalidate the detention order for that reason alone in view of section 5A of the Act which has been inserted by Act 60 of 1984 with effect from 21.6.1984 since the detention order can be sustained even on the remaining grounds. In respect of the detenu's custody in connection with the offence under section 397 I.P.C. and rejection of his bail application, it was urged that this fact was con- sidered by the detaining authority and, therefore, it does not result in any infirmity. <NAME>, on behalf of the appellant-petitioner, further contended that section 5A of the Act cannot be construed in the manner suggested by the learned counsel for the respondents since the guarantee to the detenu under Article 22(5) of the Constitution results in invalidating the entire detention order as claimed by him.

The material facts mentioned in the detention order and its annexure are now stated. A branch of <ORG> is located in a rented accommodation in flat No. 634, K.K. Nagar in Madurai. On 6.8.1988, the <ORG> Manager and the staff of the <ORG> were attending to the business of the <ORG> which then had 443 packets containing valuable ornaments weighing about 20,576.150 grams valued at about rupees sixty-two lakhs and cash amounting to Rs.38,945.00. These gold ornaments were pledged with the <ORG> as security for loans advanced by the <ORG> of certain borrowers. At about 10.55 A.M. on 6.8.1988 the <ORG> was looted and these orna- ments and cash were taken away by armed dacoits on the point of revolver after locking the <ORG> employees and customers in the strong room. The dacoits escaped in an ambassador car with registration No. TDL-9683 and a motorcycle bearing registration No. TNK-6727. The dacoits are stated to be one <NAME> and some other Sri Lanka nationals who were tempo- rarily living in a nearby flat which was in the possession of the detenu. It is stated that the ambassador car used in the dacoity had been stolen on 4.8.1988 from Quilon in the State of Kerala by <NAME> and his companions. It is further stated that the dacoity was committed in order to fund the militant organisation known as <ORG> with which the detenu has been associated and that the detenu along with these Sri Lanka nationals belonging to the Sri Lanka militant organisation had entered into a criminal conspiracy to commit these cognizable offences. The object of these militant organisations is to achieve a separate Tamil Ealam in Sri Lanka and to secure secession of Tamil Nadu from <ORG> by violent means. It is further stated that the detenu received from <NAME> through <NAME> and <NAME> a share of the booty comprising of gold ornaments weighing about 8325. 150 grams valued at about Rs.25 lakhs and Rs. 15,000.00 in cash which was a part of the booty looted from the <ORG> on 6.8.1988 in addition to a box con- taining one revolver, 2 pistols, 3 grenades, 6 bombs and a knife. It is further stated that on 9.8.1988 the detenu took <NAME> and <NAME> in his car bearing registration No. TNU- 8500 to Madras along with <NAME> and <NAME> and subsequent- ly on 10.8.1988 the detenu sent them to Nellore in Andhra Pradesh in his car to help them escape. It is also stated that a note was sent by the detenu to the news media in the name of <ORG> owning respon- sibility for the dacoity and threatening the law enforcement agency and the Government servants with dire consequences if they attempted to apprehend them. It is then said that on 21.8.1988 the detenu was arrested at Samayanallur while he was driving his car bearing registration No. TNU-8500 to- wards Madurai when he made a voluntary confession in the presence of witnesses. The car bearing registration No. TNU-8500 was seized at 19.15 hours on 21.8.1988 in front of <ORG> and the detenu's confession led to recovery of gold ornaments weighing about 7275.750 grams valued at Rs.21,85,000.00 in 172 bags and 19 empty bags with <ORG> tags and chits and a set of keys from the detenu's house on 21.8.1988 at 20.15 hours. In pursuance to detenu's confession recovery was also made of a box containing one revolver, 2 pistols with ammunition, 3 grenades, 6 bombs and one knife from the house of <NAME>, an employee of the detenu in Madurai. Further recovery of a bag containing gold ornaments weighing about 1015.600 grams valued at Rs.3,05,000.00 was made from the shop of <NAME> in Madurai and <NAME> also made a confession pursuant to which the recovery was made of gold ornaments weighing about 25.900 grams from <NAME>. Subsequently, these ornaments were identified as those which had been looted in the above-mentioned dacoity on 6.8.1988. It is on these grounds that the impugned detention order dated 7.9.1988 was passed for the detenu's preventive detention under the Act. The detention order as well as its annexure containing the relevant ground of detention are quoted as under:

"ANNEXURE 'A' PROCEEDINGS OF THE COLLECTOR AND DISTRICT MAGISTRATE, <NAME>.

PRESENT: <NAME>, I.A.S.

N.S.A. NO. 73/88 Dated: 7.9.1988 DETENTION ORDER WHEREAS, I, M. DEVARAJ, I.A.S.

Collector and District Magistrate, Madurai, am satisfied with respect to the person known as <NAME> @ Thambi, male, aged 30 years, S/o (late) <NAME>, residing at Block No. 2, H.I.G. Colony, Anna Nagar, Madu- rai Town that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make the following order.

(2) Now, therefore, in exercise of the powers conferred by sub-section (2) of section 3 of the National Security Act, 1980 (Central Act 65 of 1980) read with orders issued by the Government in G.O. Ms. No. 1169, public (L & O-F) Department, dated 3.8.1988 under sub-section (3) of the said Act, I hereby direct that the said <NAME> @ Thambi be detained and kept in custody in the Central Prison, Madurai.

Given under my hand and seal of office, this the 7th day of September, 1988.

sd/-

Collector and District Magistrate, Madurai To Thiru Nallathambi @ Thambi, S/o (Late) Thiru S. Mathu, Block No. 2, H.I.G. Colony, Anna Nagar, Madurai-20.

(Now in Central Prison, Madurai as remand prisoner) Through. <NAME>, Deputy Superin- tendent of <ORG>, Tirupparankundram, Madurai City, for service under acknowledgement."

"ANNEXURE 'B' N.S.A. No. 73/88 Dated 7.9.88

Sub: National Security Act , 1980 (Central Act 65 of 1980)--detention of <NAME> alias <NAME>, Male aged 30 years, S/o (Late) S. Mathu, 2, H.I.G. Colony, Anna Nagar, Madu- rai u/s. 3(2) of the National Security Act , 1980--Grounds of detention.

A detention order under section 3(2) of the National Security Act (Central Act 65 of 1980) has been made on <NAME> alias <NAME>, male, aged 30 years, s/o (Late) S. Mathu, 2, H.I.G. Colony, Anna Nagar, Madurai vide order NSA No. 73/88 dated 7.9.1988. (2) The grounds on which the said deten- tion has been made are as follows:

XXX XXX XXX XXX

(9) In furtherance of the conspiracy <NAME> sent a note to the news media in the name of Tamil Nadu Makkal Vidhuthalai Eyakkam owning responsibility for the dacoity and threatening the law enforcement agency and Government servants with dire consequences if they dare to apprehend them.

(10) On 21.8.88 at 1400 hours, <NAME>, was arrested at Samayanallur while he was driving his car TNU 8500 towards Madurai. He gave a voluntary confession which was recorded in the presence of witness (1) <NAME>, Village Administrative Officer, Sathamgalam and (2)Pannerselvam, Village Administrative Officer, Thiruppalai. The car TNU 8500 was seized at 1915 hours on 21.8.88 in front of <ORG>. In pursuance of his confession gold jewels weighing about 7275.750 grams valued at Rs.21,85,000.00 in 172 bags and 19 empty bags with bank tags and chits and a set of key were recovered from his house on 21.8.88 at 20.15 hours. Further in pursuance of his confession a box containing 1 revolver, 2 pistols with ammunition, 3 gre- nedes, 6 bombs, 1 knife was recovered from the house of accused <NAME> located in 27, Lakshimipuram, 6th Street, Madurai who is also an employee under <NAME>. Further pursuant to his confession a bag containing gold jewels weighing about 1015.600 grams valued Rs.3,05,000.00 was recovered from the moulding workshop of accused <NAME> located in 10-A, Bharatiar Main Street, K. Pudur, Madurai. Pursuant to the confession of <NAME> gold jewels weighing about 25.900 grams was recovered from the accused <NAME>. The above jewels recovered were identified to be stolen from <ORG> on 6.8.88.

(11) The chance prints developed from the scene of occurrance in <ORG>, K.K. Nagar Branch, Madurai tallied with the fingerprints of accused <NAME>. (12) The chance prints developed from the ambassador car TDL 9683 which was abandoned at new Mahali Party Street, Madurai after the commission of armed dacoity tallied with the finger-prints of accused <NAME>.

(13) The chance prints developed from the ambassador car TDL 1919 and TDT 3699 which were used in earlier attempts tallied with the finger-prints of accused <NAME>.

XXX XXX XXX (18) I am aware that Thiru Nalla-

thambi is in remand and would be proceeded with under normal law. Though the name of <NAME> does not find a place in the F.I.R. and though he has not physically par- ticipated in the commission of the armed dacoity, a reading of the records and the statement clearly disclosed the facts that <NAME>, was an active participant in the said conspiracy to loot the K.K. Nagar branch of <ORG>. In furtherance of the conspiracy <NAME> had made preparation for the commission of the armed dacoity as discussed in para 4 above. Further <NAME> had received a portion of booty of gold jewels weighing about 8325. 150 grams valued Rs.25 lakhs and cash Rs. 15,000.00 from the stolen jewels and cash robbed from the abovesaid Bank and re- ceived a box containing 1 revolver, 2 pistols, 3 grenades, 6 bombs and a knife used in the commission of offence. Subsequently, the said jewels, firearms and bombs mentioned above were recovered in pursuance of the confession of <NAME>. Further <NAME> sent a notice to the News Media in the name of "Tamil Nadu Makkal Vidhuthalai Eyakkam" owning responsibility of the armed dacoity and threatening the law enforcement agency and Government servants with dire consequences if they dare to apprehend them. Therefore, as a detaining authority I am satisfied that there is compelling necessity warranting the deten- tion of <NAME> under the National Security Act and if <NAME> is allowed to remain at large it will not be possible to prevent him from indulging in activities prejudicial to the maintenance of public order.

(19) I am also satisfied on the materials mentioned above that if <NAME> is allowed to remain at large, he will indulge in further activities prejudicial to the maintenance of public order and further the recourse to normal law would not have their desired effect of effectively preventing him from indulging in activities prejudicial to the maintenance of public order and, there- fore, I consider that it is necessary to detain him in custody with a view to prevent- ing him from acting in any manner prejudicial to the maintenance of public order.

XXX XXX XXX XXX."

The first argument of the learned counsel for the appel-

lantpetitioner is based on the above quoted grounds in para Nos. 11, 12 and 13 relating to the chance printes developed from the scene of occurrence in the <ORG>, the ambassador cars TDL 9683, TDL 1919 and TDT 3699 which tallied with the finger-prints of <NAME>, an accused in the <ORG> dacoity case. It was argued that the report of the finger-prints expert who gave this opinion was not supplied to the detenu even though it was a material document to enable the detenu to make an effective representation in respect of these grounds of detention. Another similar document relates to ground No. 9 which mentions a note sent by the detenu to the newspaper media in the name of Tamil Nadu Makkal Vidu- thalai Eyakkam owning responsibility for the <ORG> dacoity and threatening the law enforcement agency and Government servants with dire consequences if they dare to apprehend them. It was argued that the non-supply of these documents on which the grounds of detention Nos. 9, 11, 12 and 13 are based has deprived the detenu of his legitimate right of effective representation against the same which is guaran- teed under Article 22(5) of the Constitution of India and this defect results in invalidating the entire detention order. The reply of learned counsel for the respondents is that section 5A of the Act is a complete answer to this argument inasmuch as this defect at best requires only the exclusion of these grounds of detention and no more. It was urged by learned counsel for respondents that the remaining grounds of detention were sufficient to sustain the deten- tion order by virtue of section 5A of the Act. Learned counsel for the appellant-petitioner also contended that such a result is not envisaged by section 5A of the Act which did not apply to such a situation and the guarantee under Article 22(5) of the Constitution rendered the defect fatal to the detention order.

Section 5A of the Act clearly provides that the deten- tion order under section 3 of the Act has been made on two or more grounds, shall be deemed to have been made separate- ly on each of such grounds and accordingly such order shall not be deemed to be invalid merely because one or some of the grounds is or are invalid for any reason whatsoever. It further says that the detaining authority shall be deemed to have made a detention order after being satisfied as provid- ed in section 3 with reference to the remaining grounds or ground. In other words, a ground of detention which is rendered invalid for any reason whatsoever, shall be treated as non-existent and the surviving grounds which remain after excluding the invalid grounds shall be deemed to be the foundation of the detention order. Section 5A was inserted in the Act with effect from 21.6.1984 to overcome the effect of the decisions which had held that where one or more of the grounds of detention is found to be invalid, the entire detention order must fall since it would not be possible to hold that the detaining authority making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds. It is, therefore, doubt- ful whether the construction of Section 5A suggested by learned counsel for the appellant-petitioner can be accept- ed. However, in the present case, it is not necessary for us to express any concluded opinion on this point since we have reached the conclusion that the detention order must be quashed on one of the other contentions to which we shall advert later. The second argument of learned counsel for the respond- ents may also be considered before we deal with the last contention on which we propose to quash the detention order. The second contention is that the detenu's arrest in connec- tion with the <ORG> dacoity case is shown on 21.8.1988 when he was actually arrested much earlier in connection with the <ORG> dacoity as appeared in some local newspapers but those newspaper reports are not shown to have been placed before the detaining authority. On this basis, it was argued that the satisfaction reached by the detaining authority has been vitiated.

The question of the date on which the detenu was taken into custody in connection with the Bank dacoity is material for the last contention which we shall consider hereafter but the same has no relevance in this connection. Contents of the newspaper reports except for the fact of earlier arrest which was known to the detaining authority were not relevant for the satisfaction needed to justify making of the detention order. The detaining authority's satisfaction was to be formed on the basis of material relevant to show the detenu's activities requiring his preventive detention with a view to prevent him from acting in a manner prejudi- cial to the maintenance of the public order. The newspaper reports indicating that the detenu was already in custody could at best be relevant only to show the fact that he' was already in detention prior to the making of the detention order. We have already mentioned that this fact of the detenu's custody before the making of the order of detention on 7.9.1988 was known to the detaining authority and its effect is a separate point considered later. The other contents of the newspaper reports had no other relevance for this purpose. This contention of learned counsel for the appellantpetitioner is, therefore, rejected. The last contention of learned counsel is based on the fact that the detenu was already in custody in connection with the Bank dacoity when the order of detention was made on 7.9.1988. It is also clear that on 22.8.1988 the detenu had moved a bail application which had been rejected and he had been remanded to custody. It is significant that the detention order itself describes the detenu as a person in custody in the Central Prison at Madurai and the order was served on him through the Superintendent of the Prison. The question now is of the effect of the detenu's earlier custody on the validity of the deten- tion order.

The contents of the detention order and its accompanying annexure clearly show that the detaining authority was aware and conscious of the fact that the <NAME> was already in custody in connection with <ORG> at the time of making the detention order. The fact that the <NAME>'s application for grant of bail in the dacoity case had been rejected on 22.8.1989 and he was remanded to custody for the offence of bank dacoity punishable under section 397 I.P.C. is also evident from the record. The detention order came to be made on 7.9.1988 on the above grounds in these circum- stances. In the detention order the detaining authority recorded its satisfaction that the <NAME>'s preventive detention was necessary to prevent him from indulging in activities prejudicial to maintenance of public order in which he would indulge if he was allowed to remain at large. The above quoted paragraphs 18 and 19 of the Annexure to the detention order clearly disclose this factual position. However, it may be pointed out that the detention order read along with its annexure nowhere indicates that the detaining authority apprehended the likelihood of the <NAME> being released on bail in the dacoity case and, therefore, consid- ered the detention order necessary. On the contrary, its contents, particularly those of the above quoted paragraph 18 clearly mention that the <NAME> had been remanded to custody for being proceeded against in due course and even though his name was not mentioned in the F.I.R. as one of the dacoits who participated in the commission of the armed Bank dacoity yet the documents clearly revealed that the <NAME> was an active participant in the conspiracy to loot the bank in furtherance of which the dacoity was committed; and that considerable booty of that crime including weapons, bombs and hand-grenades were recovered from his possession pursuant to the <NAME>'s confession made after his arrest. These averments in the detention order indicate the satis- faction of the detaining authority that in its view there was ample material to prove the <NAME>'s active participa- tion in the crime and sharing the booty for which offence he had already been taken into custody. This view of the de- taining authority negatives the impression of likelihood of <NAME> being released on bail.

The real question, therefore, is: whether after the above satisfaction reached by the detaining authority and when the detenu was already in custody being arrested in connection with the Bank dacoity, could there be any reason- able basis for making the detention order and serving it on the detenu during his custody?

We may now refer to the decisions on the basis of which this point is to be decided. The starting point is the decision of <ORG> in <NAME> v. District Magis- trate, Burdwan & Anr., [964] 4 SCR 92 1. All subsequent decisions which are cited have to be read in the light of this <ORG> decision since they are decisions by Benches comprised of lesser number of Judges. It is obvious that none of these subsequent decisions could have intended taking a view contrary to that of the <ORG> in <NAME>'s case (supra).

The detention order in <NAME> case (supra) was made and also served on the detenu while he was in jail custody. The detenu was then in jail where he had been kept as a result of the remand order passed by the competent court which had taken cognizance of a criminal complaint against him. The Constitution Bench considered the effect of the detenu's subsisting detention at the time of making of the order of preventive detention and held that the effect thereof had to be decided on the facts of the case; and that this was a material factor to be considered by the detaining authority while reaching the satisfaction that an order of preventive detention was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order after his release. It was indicated that the detenu's subsisting custody did not by itself invalidate the detention order but facts and circumstances justifying the order of preventive detention notwithstanding his custody were necessary to sustain such an order.

The position of law was summarised by their Lordships as under:

"As an abstract proposition of law, there may not be any doubt that s. 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him. In dealing with this question, again the considerations of proximity of time will not be irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of deten- tion a few days before the person is likely to be released. The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary .......... Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circum- stances of each case.

The question which still remains to be considered is: can a person in jail custo- dy, like the petitioner, be served with an order of detention whilst he is in such custo- dy?

XXX XXX XXX XXX

We have already seen the logical process which must be followed by the authority in taking action under s. 3(1)(a) . The first stage in the process is to examine the material adduced against a person to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner. If the said material appears satisfactory to the authority, then the authority has to consider whether it is likely that the said person would act in a prejudicial manner in future if he is not prevented from doing so by an order of detention. If this question is answered against the petitioner, then the detention order can be properly made. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is neces-

sary to prevent him from acting in a prejudi- cial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevita- bly postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner? At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudi- cially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is neces- sary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under s. 3(1)(a) , and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the deten-

tion of the petitioner in the circumstances of this case, is not justified by s. 3(1)(a) and is outside its purview." (at pages 929-931 of SCR) (emphasis supplied) On the above principle <ORG> also explained the decision of <ORG> in <CITATION> ., A.I.R. 1953 Assam 97 in <NAME> case (supra) the Government had decided to abandon the pending prosecution in public interest and action for detenu's release was taken. In anticipation of his release, the order of detention was passed and it was served after he was actually released. In these circumstances the detention order and its service was held valid. The test indicated by <ORG> was duly satisfied. It is this principle and the test indicated therein which has to be applied in all such cases. Read in this manner the conclusion reached in each of the subsequent decisions satisfies this test.

<CITATION> ,  3 SCC 490 the order of preventive detention passed while the detenu was in custody was upheld since there was a likelihood of his release on bail and resuming his desperate criminal activities prejudicial to the mainte- nance of public order. The facts of that case, therefore, justified making the detention order according to the test laid down by the Constitution Bench in <NAME> case (supra). <CITATION> ,  4 SCC 164 was a case in which the order of detention was passed while the detenu was in jail custody in a proceeding under section 151 read with section 117 . The detention order was upheld since the custody was obviously of a short duration and on the basis of the antecedent activities of the detenu in the proximate past, the detaining authority could reasonably reach its subjective satisfaction that the detenu had the tendency to act in a manner prejudicial to the maintenance of public order after his release on the termination of the security proceedings under the Code . <CITATION> ,  2 SCC 43 the detention order was quashed because it did not give the slightest indication that the detaining authority was aware that the detenu was already in jail. The further question of the detaining authority's subjective satisfaction that it was necessary even then to make an order for preventing him from acting in a manner prejudicial to the security of the <ORG> did not, therefore, arise. While dealing with this aspect the correct position was reiterated as under:

"Preventive detention is resorted to, to thwart future action. If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the <ORG>. May be, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive deten- tion order needs to be made. There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made. This, in our opinion, clearly exhibits non- application of mind and would result in inval- idation of the order."

(at page 48) It is obvious that in this decision also the test indicated by <ORG> in <NAME> case (supra) was applied and the detention order was quashed on that basis.

<CITATION> ,  3 SCR 939 the detention order was upheld even though the detenu was in jail custody on the date of passing of the detention order because the detention order showed that the detaining authority was alive to the fact and yet it was satisfied that if the detenu was enlarged on bail, which was quite likely, he would create problems of public order which necessitated his preventive detention. <CITATION> ,  4 SCC 232 the detention order was passed when the detenu was in jail on the mere apprehension of likelihood of grant of bail on the basis of some stale grounds and a ground in respect of which the detenu had already been acquitted. It is obvious that even with the likelihood of grant of bail, the grounds of detention being stale or non-existent on the ground of the detenu's acquittal, they did not satisfy the required test of the detention order being based on valid grounds showing detenu's activities proximate in point of time to justify the detaining authority's satisfaction as reasona- ble. It was observed in passing that if the apprehension of the detaining authority about the likelihood of grant of bail was correct then it was open to challenge the bail order in a higher forum. This observation has accordingly to be read in the context of the facts in which it was made. <CITATION> ,  4 SCC 416 the detention order was held to be invalid because the jail custody of the detenu at the time of service of the order as also the prospect of his release were not considered while making the detention order. It was held that the detention order was invalid on the ground of non-application of mind to these relevant factors even if the detention was otherwise justified. The decision in <NAME> case (supra) was relied on and it was reiterated as under:

"If a man is in custody and there is no immi- nent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or. that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit or the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent."

(at pages 420- <CITATION> ,  4 SCC 48 it was reiterated that detenu being already in jail at the time of passing detention order does not by itself vitiate the detention if the detaining authority is aware of this fact but even then it is satisfied about the necessity of preventive detention. The <ORG> decision in <NAME> case (supra) and the other earlier deci-

sions were referred while reaching this conclusion. The correct posi- tion was reiterated and summarised as under:

"It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining author- ity in making an order of preventive deten- tion. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary. In the facts of the present case, there is sufficient material to show that .the detaining authority was aware of the fact that the petitioner was in custody when the order was made, yet he was satisfied that his preventive detention was necessary."

(at page 58) A recent decision on the point is <CITATION> ,  1 SCC 436 in which also the settled principle is reiterated and it is pointed out that the ultimate decision depends on the facts of a partic-

ular case, the test to be applied remaining the same, as indicated in <NAME> case (supra). It was also pointed out in this decision that the earlier decisions of <ORG> in <NAME>, (supra) and <NAME>, (supra) do not run counter to the decision in <NAME> case (supra). In each of these cases the conclusion was reached on the facts of the particular case, the test ap- plied being the same. Similarly, in this decision it was once again pointed out that the detenu being already in jail, the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detenu would indulge in activities prejudicial to the maintenance of public order in case of his release on bail. The detention order in that case had been made merely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out. It was, therefore, held that the mere possibility of his release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of preventive detention in the absence of any material on the record to show that if released on bail he was likely to commit activ- ities prejudicial to the maintenance of public order. The detention order in that case was quashed on the ground that the requisite material to entertain such an apprehension reasonably was not present. The conclusion reached therein, on the facts and circumstances of the case, is as under:

"In the instant case, there was no material made apparent on record that the detenu, if released on bail, is likely to commit activi- ties prejudicial to the maintenance of public order. The detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of being bailed out. We do not think that the order of detention could be justified only on that basis."

(at page 440) A review of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in <NAME> case (supra). The conclusion about validity of the detention order in each case was reached on the facts of the particular case and the observations made in each of them have to be read in the context in which they were made.

None of the observations made in any subsequent case can be construed at variance with the principle indicated in <NAME> case (supra) for the obvious reason that all subsequent decisions were by benches comprised on lesser number of Judges. We have dealt with this matter at some length because an attempt has been made for some time to construe some of the recent decisions as modifying the principle enunciated by <ORG> in <NAME> case (supra).

We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invali- date an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the <ORG> or to the maintenance of public order etc. ordinarily it is not, needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his an- tecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us, to be the correct legal position. Applying the above settled principle to the facts of the present case we have no doubt that the detention order, in the present case, must be quashed for this reason alone. The detention order read with its annexure indicates the detaining authority's awareness of the fact of detenu's jail custody at the time of the making of the detention order. However, there is no indica- tion therein that the detaining authority considered it likely that the detenu could be released on bail. In fact, the contents of the order, particularly, the above quoted para 18 show the satisfaction of the detaining authority that there was ample material to prove the detenu's complic- ity in the Bank dacoity including sharing of the booty inspite of absence of his name in the F.I.R. as one of the dacoits. On these facts, the order of detention passed in the present case on 7.9.1988 and its confirmation by the <ORG> Government on 25.10.1988 is clearly invalid since the same was made when the detenu was already in jail custody for the offence of bank dacoity with no prospect of his release. It does not satisfy the test indicated by <ORG> in <NAME> case (supra). We hold the detention order to be invalid for this reason alone and express no opinion on merits about the grounds of detention. Consequently, the aforesaid order of detention dated 7.9.1988 passed by the Collector and District Magistrate, Madurai, and the order of confirmation dated 25.10.1988 by <ORG> are quashed. The appeal and the writ petition are allowed. This, however, will not affect the detenu's custody in connection with the criminal case under section 397 I.P.C. We may also clarify that in case the detenu is released in the aforesaid criminal case, the question of his preventive detention under the Act on the above material may be reconsidered by the appropriate au- thority in accordance with law and this judgment shall not be construed as an impediment for that purpose. No costs.

R.N.J. Appeal and Petition allowed.


PETITIONER: BALAJI Vs. RESPONDENT: INCOME-TAX OFFICER, SPECIAL INVESTIGATION CIRCLE DATE OF JUDGMENT: 04/08/1961 BENCH: <NAME>, K. BENCH: <NAME>, K. GAJENDRAGADKAR, P.B. HIDAYATULLAH, M. SHAH, J.C. DAYAL, <NAME> CITATION: 1962 AIR 123 1962 SCR (2) 983 CITATOR INFO : R 1962 SC1406 (27) F 1962 SC1563 (10) F 1962 SC1621 (45,165) R 1965 SC 342 (25) R 1965 SC1375 (13,35,40) R 1965 SC1862 (10) RF 1967 SC 517 (2) R 1971 SC 792 (4) RF 1972 SC 425 (25) RF 1973 SC1056 (3) R 1984 SC 420 (45) ACT: Income Tax-Computation of total income of individual- Inclusion of income of wife and minor children from partner- ship--Constitutional validity of enactment- Indian Income-tax Act , 1922 , s. (16) (3) (a) (i) and(ii)- Constitution of India, Arts. 14, 19 (1) If) & (g). HEADNOTE: The petitioner and his wife started business in partnership and admitted their three minor sons to it, in computing the total income of the petitioner for the purpose of assessment 984 the Income-tax Officer included the share of the income of the wife and three minor sons unders 16(3)(a) (i) and (ii) of the Indian Income Tax Act , 1922. The petitioner moved <ORG> under Art. 32 of the Constitution challenging the constitutionality the said provisions on the grounds, (1) that they were ultra vires the <ORG> under Entry 54 of the Federal Legislative List of the Government of India Act, 19351,and (2) that they contravened the provisions of Arts. 14 and 19 (1) (f) and (g) of the Constitution, Held, that the Entries in the Legislative Lists are not powers but fields of legislation and the widest import and significance should be attached to them. Thus interpreted, there could be no doubt that Entry 54 of the Federal Legis- lative List must cover such legislation as the impugned provision intended to prevent the evasion of tax. <CITATION> . (1961) 1 S.C.R. 482, referred to. The two tests of permissible classification tinder Art. 14 of the Constitution, as held by this Court, were (1) that the classification must be founded on an intelligent differentia and (2) that the differentia must be reasonably connected with the object of the legislation. So judged, it could not be said that the differentia on which the 'impugned provision founded its, classification had no rational relation to its object, namely, the prevention of the evasion of tax. The impugned provision did not therefore, violate Art. 14 of the Constitution. It was not appropriate to apply American decisions dealing with evasion of taxes to similar cases in India where the conditions were entirely different,Since the <ORG> cognisant of the widespread evasion of taxes in this country, enacted the law for its prevention, it would not be proper for this court, in the absence of counterbalancing circumstances, to hold on the analogy of American decisions that there was no need for such legislation. <NAME> v. Tax Commissioner of Wisconsin (1931) 76 L. Ed. 248, distinguished and held inapplicable. <CITATION> , (1954) 26 I.T.R. 137, approved. Nor did the impugned provision violate Art. 19(1) (f) and (g) of the constitution. A tax authorised by law may be questioned as offending the fundamental freedom under Art. 19 of the Constitution. 985 A tax law, like any other law, must also satisfy that (i) the appropriate legislature was competent to enact it and (ii) that it did not infringe any of the fundamental rights. <CITATION> , (1952) S.C.R. 572, <CITATION> , (1934) S.C.R. 1122, <CITATION> , (1960) 3 S.C.R. 887 and <CITATION> , (1961) 3 S.C.R. 77, referred to. Even so, the restriction imposed by the impugned provision must be held to be reasonable. Although the mode of taxation it provided might be a little hard on a husband or a father in the case of genuine partnerships, that was sufficiently offset by the resulting benefit to the public as also by the fact that the additional payment of tax made by the husband or the father on the income of the wife or minor children would ultimately be borne by them in the final accounting between them. <CITATION> ., (1952) S.C.R. 597, referred to. JUDGMENT:

ORIGINAL JURISDICTION : Petition No. 240 of 1960. Petition under Art. 32 of the Constitution of India for the enforcement of Fundamental Richts.

<NAME>, <NAME> and <NAME>, for the petitioner.

<NAME>, Additional Solicitor-General of India, <NAME> and <NAME>, for the respondents. 1961. August 4. Judgment of the Court has delivered by <NAME> J.This writ petition filed under Art. 32 of the Constitution raises the question of' the constitutional validity of: S. 16(3)(a)(i) of the Indian Income-tax Act, 1922 (Act XI of 1922), (hereinafter called the Act). The facts are not in dispute and may be briefly narrated. The petitioner., <NAME>, his six soils and his wife, by name <NAME>, constituted a <ORG> Hindu family. The family was a trading family and it had, besides business in money lending, considerable agricultural lands. On November 23, 1946, two of his sons became divided from the family. In the year 1951, through the intervention of mediators the other members of the family were also divided and another major member started a separate business on his own. Thereafter, the petitioner and his wife formed themselves into a partnership to carry on their business and admitted their three minor sons to the benefits thereof On September 22, 1952, a partnership deed was executed giving an equal share to each of the partners. On the basis of the partnership deed, in respect of the assessment year 1952-53 the petitioner filed two applications before the Income-tax Officer, <NAME>, one under s. 25- A of the Act for recognizing the partition, and the other under s. 26-A for registration of the firm. Both the applications were finally ordered by <ORG>, Bombay, by its order dated September 3, 1958, that is, the parti. tion was recognized and the firm was granted registration. For the assessment years 1953-54 and 1954-55 also, <ORG> registered the firm under s. 26-A of the Act. The assessment proceedings in respect of the said three years are pending before the concerned Income-tax authorities. For the assessment year 1955-56 also, the Income-tax Officer allowed the registration of the firm, but determined the total income of the petitioner at Rs. 2,44,625 as against the total income returned by him at Rs. 58,232. The disparity arose because, while the assessee excluded from his total income the income of the partnership falling to the shares of his wife and three minor sons, the Income-tax Officer included the share income of his wife and three minor sons in 'the said bussiness in the total income of the petitioner, The petitioner, by the present petition, challenges the constitutional validity of s.16(3)(a) (i) and

(ii) of the Act, and prays for a declaration that the said provisions are ultra vires the Constitution and for the issue of a writ of certiorari quashing the assessment order dated March 15, 1960, and for the issue of a writ of prohibition restraining the respondents from including the share income, of his wife and minor children from the partnership firm in his total income and taxing the same in his hands.

The first question raised is whether the appropriate <ORG> had the competence to enact s. 16(3)(a)(i) and

(ii) of the Act. It would be convenient at the outset to read the relevant part of the said section. Section 16 . (3) In computing the total income of any individual for the purpose of assessment, there shall be included-

(a)so much of the income of a wife, or a minor child of such individual as arises directlyor indirectly-

(i) from the membership of the wife in a firm of which her husband is a partner ;

(ii)from the admission of the minor to the benefits of partnership in a firm of which such in-dividual is a partner.

Section 16 provides for the computation of' total income of a person and describes what sums are to be included and what sums are to be excluded therefrom. Under sub-cls. (i) and

(ii) of el. (a) of sub-s.. (3) of the said section, the shares in the profits of the firm received by the wife and the minor children shall,be included in the total income of the individual. Under the said sub-clauses an individual is made, liable to pay tax in respect of the income of' his wife and minor children, though the said liability is confined to the circum,stances mentioned therein.

Learned counsel for the petitioner contended that Entry 54 in the Federal Legislative List of the Government of India Act, 1935, did not confer on the <ORG> any power to tax A on the income of B and, therefore, the sub-section was ultra vires the <ORG>. Entry 54 of the Federal Legislative List ran : "Taxes on income, other than agricultural income". The said Entry is identical with item 82 of List I of' the Seventh Schedule to the Constitution. The argument is that income-tax is a tax imposed upon a person in relation to his income and, therefore, A can only be taxed on his income and not oil the income of B Learned counsel for the respondents, oil the other hand, would contend that the express terms of the Entry did not restrict the legislative power to tax only the income of the person assessed, that what could be taxed under that Entry was "in- come" and, therefore, nothing prevented the legislature from imposing the incidence of the tax Oil a person other than the person whose income was to be assessed. Alternatively, he would make. a distinction between the taxability of the income and the machinery for its collection and contend that though the income of the wife and the minor sons was only'taxable, there was nothing illegal in imposing the immediate incidence on the father, as there was sufficient intimate nexus between the individual, his wife and minor sons, doing business in partnership, leaving the ultimate liability inter se to be settled between themselves. This question was directly raised in <CITATION> - tax Officer, Kozhikode (1) and was answered in favour of <ORG>. The same question was posed before this Court in <CITATION> (2 ) and was left (1) (1954) 26 I.T.R. 137.

(2) (1961) 1 S.C.R. 482, 493.

open. A final decision by this <ORG> oil such an important question at the earliest point of time is highly desirable, but, with some reluctance are leaving open this question once again, as the petition call be satisfactorily disposed of on a narrower basis.

It is well settled that the Entries in the Lists are not powers but are only fields of legislation, and that widest import and significance must be given to the, language used by <ORG> in the various Entries. <NAME>, J., speaking for this Court, observed in <NAME> Case thus :

" So entry 54 should be read not only as authorising the imposition of a tax but also as authorising all enactment which prevents the tax imposed being evaded. If it were not to be so read, their the admitted power to tax a person on his own income might often be made infructuous by ingenious contrivances."

This decision holds that the said Entry can sustain a law made to prevent the evasion of tax.

The short question, therefore, is whether s.16 (3)(a)(1) and

(ii) is a provision made by the <ORG> to prevent evasion of tax. Under the relevant provision of the Income- tax Act, if a firm its registered, the share of each partner in the profit of the firm would be added to his other income and changed as part of his total income. After 1956, the position is the same except in one regard with which we are not now concerned. This provision ",as intended for the. benefit of partners of a business, for it made them liable only to pay tax on their own income. But it gave an effective handle to evade, taxation in another direction. A husband or a father could nominally take his wife or his minor SODS in partnership with him so that tax burden (1) (1961) 1 S.C.R. 482, 493.

might be lightened, for, if the income was divided between a number of people, the income derived by an individual therefrom might fall under the limits of taxable income or under a less onerous slab. This device enables an assessee to secure the entire income of the business but at the same time to evade income-tax which he would have otherwise been liable to pay. <ORG> made certain recommendation to prevent evasion of tax in such cases. The <ORG> accepted those recommendations and the loopholes were sought to be plugged by enacting the said sub-section. Sub-section (3)(a)(1) and (ii) was therefore enacted for preventing evasion of tax and was well within the competence of the Federal <ORG>. The constitutional validity of the said provision was next questioned on the ground that it violated the doctrine of equality before the law enshrined in Art. 14 of the Constitution. Under Art. 14 , "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." But decisions of this Court permitted classification if there was reasonable basis for the differentiation. It was held that what Art. 14 prohibited was class legislation and not reasonable classification for the purpose of legislation. Two conditions were laid down for passing the test of permissible classification, namely,(i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that the differentia must have rational relation to the object sought to be achieved by the statute in question. Under the impugned sub-section, an individual is taxed on the income of his wife or his minor children., if he carries on business in partnership with his wife or if he admits his minor sons to the benefits of the partnership, whereas an individual, if he carries on business in: partnership with a third party, whether a man or a woman, or even with his major children, or if he and his or children carry on business separately, will be liable only to pay tax on his share of the partnership income, that is, for the purpose of' this subsection, the former is put in a category different from the latter. It cannot be said that there is no differentia between the two groups; but what is contended is that the said differentia has no rational relation to the object sought to be achieved by the statute in question. It was asked how, from the standpoint of imposition of tax, the difference between an individual and his wife doing business in partnership, and between an individual and his wife doing business separately and an individual doing business hi partnership with his wife and an individual doing business in partnership with a third party, male or female, and between an individual who has admitted his minor children to the partnership business and an individual who is doing business in partnership with his major children or outsiders, would have any reasonable basis. This argument ignores the object of the legislation. We have held that the object of the legislation was to prevent evasion of tax. A similar device would not ordinarily be resorted to by individuals by entering into partnership with persons other than those mentioned in the sub-section, as it would involve a risk of the third-party turning round and asserting his own rights. The <ORG>, therefore, selected for the purpose of classification only that group of persons who in fact are used as a cloak to perpetrate fraud on taxation. It was then said that there might be genuine partnerships between an individual and his wife and, therefore, there is no reasonable relation between the classification and the object sought to be achieved, at any rate to the extent of those, genuine cases. But there is no classification between genuine and non-genuine cases: the classi-

fication is between cases of partnership between husband, wife and/or minor children, whether genuine or not, and partnerships between others. In demarcating a group, the net was cast a little wider, but it was necessary, as any further subclassification as genuine and Don-genuine partnerships might defeat the purpose of the Act. Strong reliance is. placed upon the decision of <ORG>, in <NAME> v. <ORG> (1) and it is, therefore, necessary to consider it in some detail. There, the appellant married a widow. Both the parties had separate incomes and made separate returns. Under the relevant tax Act, the incomes of the wife were added to the-income of the husband for the purpose of taxation. The result was to increase the rate of the appellant's income-tax and to charge him with a tax otherwise payable by his wife. It was contended that the said law deprived the tax-payer of the due process and equal, protection of the law. <NAME>, J., who expressed the majority view, accepted the contention and struck out the law. The learned Judge observed thus :

"We have no doubt that, because of the fundamental conceptions which underlie our system, any attempt by a state to measure the tax on one person's property or income by reference to the property or income of another is contrary to due process of law as guaran- teed by the 14th Amendment. That which is not in fact the taxpayer's income cannot be made such by calling it income."

<ORG> in that case assigned two reasons for sustaining the provisions one was that the provisions under attack were necessary to prevent frauds and evasions of tax by married persons, and, the other was that it was (1) (1931) 76 L. Ed. 248, 251.

a regulation of marriage. The first-reason was not accepted by <ORG> on the ground that the claimed necessity could not justify the otherwise unconstitutional exaction ; and the second reason was rejected for the reason that it could hardly be claimed that a mere difference in social relations so altered the taxable status of one receiving income as to justify a different measure for the tax. <NAME>, in his dissenting judgment, justified his view on the ground that the statute was the outcome of thousand years of history indicating that husband and wife were one and also for the reason that it had a tendency to prevent tax evasion. Prima facie the majority view supports the contention of learned counsel for the petitioner, but a deeper scrutiny reveals fundamental differences between that decision and the present case. There, there was no question of any partnership between husband and wife, and the income of the wife was added to that of the husband with the result that he had to pay not only increased rate on his income but also a portion of the tax otherwise payable by wife ; in the present case, the impugned provisions do not impose any such general liability but confine it only to a case where the husband takes his wife in partnership. There is a greater scope for fraudulent evasion by constituting fictitious. partnership along with one's wife and minor children than in a case of separate income of the spouses derived from different sources. That apart, the present social and economic position of women in India as compared with their compeers in America, even as it existed in 1931, is so low that it would be inappropriate to apply the decision made in America to a similar case arising in India. A wife in India, particularly if she be illiterate large majority of them are illiterate-would ordinarily be in economic matters a tool in the hands of her husband. Many things are done in her name without her knowledge of the same. When <ORG> of this country, which is assumed to know the conditions of the people and their requirements, with the awareness of this particular widespread fraudulent device in the matter of evasion of taxes, made a law to prevent the said fraud, it is difficult for this <ORG> in the absence of any counterbalancing circumstances to hold, on the analogy drawn from American decisions, that the need for such a law is not in existence. On the contrary there is a direct decision of the Madras High <ORG> in <CITATION> (1) sustaining the said provision on the ground of reasonable classification. <NAME>, J., speaking for the division bench, after considering the relevant decisions on the subject, observed thus :

"The reasonableness or otherwise of a classification has to be decided with reference to all the circumstances of the case including the social and economic structure prevalent in the area where the taxing statute is in operation.......... An attempt to prevent by legislation an evasion of just tax liability and the necessary classification to give effect to that object cannot, in our view, be termed unreasonable."

With respect we, give our full assent to the said observations. We, therefore, reject this contention. The next attack on the validity of the provisions is based upon Art. 19 (1) (f) and (g) of the Constitution. The said constitutional provisions read :

Art. 19(1) : All citizens shall have the right-

(f) to acquire, hold and dispose of property; and (1) (1954) 26 I.T.R. 137,150.

(g) to practise 'any profession, or to carry on any occupation, trade or business.

It was argued that as the husband is statutorily made to pay certain amount as tax on the income of his wife, to that extent, he is deprived of his property by the State action and, therefore, his fundamental right under s. 19 (1) (f) is infringed. The impugned statutory provision, the argument proceeds, is an unreasonable restriction on the said right, as the husband is, compelled 'to pay tax on the income of his wife and children who are in law distinct legal persons. The learned Additional Solicitor-General broadly contended that a tax imposed by authority of law cannot be questioned on the ground that the law infringes the provisions of Art. 19 of the constitution. We cannot see any justification for this contention in any of the constitutional provisions. The relevant provisions of the Constitution read :

Art. 265 : No tax shall be levied or collected except by authority of law.

Art. 13 (1) : All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part shall, to the extent of such inconsistency, be void.

(3) In this Article, unless the context other wise requires,-

(a) 'law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law

(b)"law in force' includes laws passed or made by a <ORG> or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas."

A combined and plain reading of the said provisions makes it abundantly clear that a law which is inconsistent with any of the provisions of Part III is void. It cannot be denied that a law providing for levy and collection of taxes is a law within the meaning of Part III of the Constitution, and therefore it must stand the test laid down by Art. 13 of the Constitution. The 'law' in Art. 265 of the Constitution must be a valid law. A law to be valid must not only be one passed by the <ORG> in exercise of a power conferred on it, but must also be one that does not infringe the fundamental rights declared by the Constitution. When a licence fee was imposed by a municipality under a bye-law framed in excess of the power conferred on it by the provisions of the U. P. Municipalities Act, this Court in <CITATION> (1) held that the enforcement of the said bye-law against a citizen constituted an infringement of his right under Art. 19 (1)(g) of the Constitution. Where a <ORG> sought to impose sales-tax in exercise of a power conferred under a provision which was ultra vires the <ORG> <ORG>, this Court held in <CITATION> (2) that a threat by the said <ORG> to realise tax from the assesse without the authority of law by using the. coercive machinery of the impugned Act was a sufficient infrigement of his fundamental right under Art. 19(1)(g) of the Constitution. The same principle must necessarily apply even in a case where the law imposing a tax is void as offending the fundamental rights under the Constitution. This (1) (1952) S.C.R. 572.

(2) (1954) S.C.R. 1122.

Court in <CITATION> (1), after considering the earlier decisions observed thus :

"It is, therefore, manifest that the law must satisfy two tests before it can be a valid law, namely, (1) that the appropriate legis- lature has competency to make the law ; (2) that it does not take away or abridge any of the fundamental rights enumerated in Part III of the Constitution."

Section 16 (3)(a) of the Act must, therefore, pass both the tests and if it violates any of the provisions of Art. 19 , to the extent it is inconsistent with the said provisions, it will be void. This view is in consonance with that expressed by this <ORG> in <CITATION> (2). There, the petitioners impugned the constitutionality of the Travancore-Cochin Land Tax Act, XV of 1955, as amended by the Travancore-Cochin Land Tax (Amendment) Act, X of 1957, and <NAME>, C. J., speaking for the <ORG> held that the Act was void as infringing not only Art. 14 of the Constitution but also Art. 19 (1) (f) thereof. The learned Chief Justice, after considering the relevant provisions of the Act and having regard to the unreasonable nature of the restrictions, came to the conclusion that the provisions of the Act were unconstitutional viewed from the angle of the provisions of Art. 19 (1)(f) of the Constitution.

We cannot, therefore, accept broad contention of the learned Additional Solicitor-General that a tax law cannot be questioned on the ground that it infringes Art. 19 of the Constitution.

Even so the learned Additional Solicitor-General contended that the provisions of (1) (1960) 3 S.C.R. 887, 91 1.

(2) (1961) 3 S.C.R. 77.

s. 16 (3) (a) (1) and (ii) of the Act constituted only reasonable restrictions on the exercise of the rights conferred under Art. 19(1)(f) and (g) of the Constitution, in the interest of the general public.

Learned counsel for the petitioner argued that the restrictions are not reasonable for the following reasons (1) the husband is made to pay tax on the income which his wife derived from the business, that is, a tax is levied on one person on the income of another ; (2) such an imposition 'not only prevents a husband from taking his wife as a partner in his business but also prevents a wife, who has got a business 'of her own, from taking her husband as a partner in the business ; (3) the husband has to pay a tax at a rate higher than that he would have to pay if the income of the wife was not added to his income ; (4) the same situation is created inter se between a parent and his minor children vis-a-vis their joint business. Learned, counsel, therefore, contended that the provisions prevented the honest pooling of resources of the members of a family so intimately connected with each other to the detriment of the family prosperity, and that it amounted to an unreasonable restriction on the said fundamental rights. There is some plausibility in this argument, but if an overall picture of the situation is taken, the reasonableness of the restrictions will be apparent. <CITATION> (1) <NAME>, C. J., lays down the following test of reasonableness "The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevail- ing conditions at the time, should all enter into the judicial verdict."

So judged, can it be said that the restrictions imposed (1) (1952) S.C.R. 597.

under the impugned provisions are not reasonable? The object sought to be achieved was to prevent the prevalent abuse, namely, evasion of tax by an individual doing business under a partnership nominally entered with his wife or minor children. The scope of the provisions is limited only to a few of the intimate members of a family who ordinarily are under the protection of the assessee and are dependants of him. The persons selected by the provisions, namely, wife and minor children, cannot also be ordinarily expected to carry on their business independently with their own funds when the husband or the father is alive and when they are under his protection. Doubtless some of the said partnerships may be genuine and the wife or minor children may have contributed capital to the business; but the provisions do not in any way affect their rights and even the liability inter se between the husband and the wife or the minor children, as the case may be, in respect of the tax paid. It is true that in computing the total income of an individual for the purpose of assessment, their income in their capacity as partners shall be included in the income of the individual; but the section doer, not prevent the husband or the father, as the case may be, from debiting against them in the partnership accounts that part of the tax referable to the share or shares of their income. It may be that a father or a husband may have to pay tax at a higher rate than ordinarily he would have to pay if the addition of the wife's or children's income to his own brings his total income to a higher slab. But it may not necessarily be so in a case where the income of the former is not appreciable ; even if it is appreciable, he can debit a part of the excess payment to his wife and children. In short, the firm, though registered, would be treated as a distinct unit of assessment, with the difference that, unlike in the case of a registered firm, the entire income of the unit is added to the personal income of the father or the husband as the case may be. This mode of taxation may be a little hard on a husband or a father in the case of genuine partnership with wife or minor children, but that is offset, to a large extent, by the beneficient results that flow therefrom to the public, namely, the prevention of evasion of income-tax, and also by the fact that, by and large, the additional payment of tax made on the income of the wife or the minor children will ultimately I be borne by them in the final accounting between them. In these circumstances, we cannot say that the provisions of s. 16(3) of the Act impose an unreasonable restriction on the fundamental rights of the petitioner under Art. 19(1)(f) and (g) of the Constitution. In the result, the petition fails and is dismissed with costs.

Petition dismissed.