P L D 1975 Karachi 391 (PLP)

TUFAIL ALI A. REHMAN, C. J.‑Two questions have been referred to, the Full Bench for decision and these are:‑ (1) Is the West Pakistan Control of Goondas Ordinance a "law providing for preventive detention" within the meaning of Article 10(4) of the Constitution, and if so, (2) Is it by reason of that Article in whole or in part, inter alia ?

2. It would be convenient, I think, to state broadly the scheme of the Ordinance and some of its important provisions to facilitate a discussion of the questions referred. The Ordinance, being West Pakistan Ordinance XXXV of 1959, is stated in its long title to be "An Ordinance to consolidate and amend the law relating to the control of disorderly persons commonly known as goondas in the Province of West Pakistan." The preamble too states that it is "expedient to consolidate and amend the law relating to the control of disorderly persons commonly known as goondas in the Province of West Pakistan". After dealing with such matters as territorial applicability and definitions, section 2 provides that there shall be a Tribunal to deal with cases under the Ordinance in each' district, the Tribunal consisting of the officer for the time being holding the office of District Magistrate or a 1st Class Magistrate specially empowered by Government in this behalf. Section 3 gives to the Tribunal all the powers of the District Magistrate under the Code of Criminal Procedure for such purposes as the issuing of summonses and warrants and compelling attendance of witnesses. It is worth noting that the Tribunal, although itself a District Magistrate or at least a First Class Magistrate, is not acting as a District Magistrate or a Magistrate under the Code of Criminal Procedure and is merely given the powers of a District Magistrate for certain purposes. It need hardly be added that such powers could by law be given to any other tribunal and that the conferment of such powers would not make that tribunal a District; Magistrate or, merely on that account, bound to act judicially.

3. Section 5 states the mode of taking cognizance which, broadly lies in doing so upon information set out by a police officer stating with instances the practices with which the person complained against is charged. Section 6 then empowers the tribunal to summon the person, complained against but it may, for certain reasons, issue a warrant, bailable or non‑bailable. This is the first section which gives some power to the tribunal for ordering a person to be taken into custody. Section y provides for the procedure to be adopted where the Tribunal has reason to believe that such a person has absconded or is concealing himself after which comes section 8 dealing with the appearance of such a person before the Tribunal and this section may usefully be reproduced which reads thus: "Section

8. Appearance before Tribunal.‑(1) The Tribunal may, when the person complained against appears before it, take from him a bond, with or without sureties, for his appearance during the' inquiry or when called upon, as the case may be, and may also having regard to the nature of the information laid against him,. require him to furnish a bond, with one or more sureties, in such sum as the Tribunal may think fit, to be of good behaviour until the conclusion of the inquiry and may direct that he be detained in custody until such bond is executed, or in default of execution, until the inquiry is concluded. (2) The Tribunal may, for reasons to be recorded, instead of taking a bond for the appearance of the person complained against, order his detention till the conclusion of the inquiry in such prison as it thinks suitable: Provided that such detention shall not exceed two months unless his case has been referred to the Commissioner and the latter has agreed to such detention." It will be noticed that although the first subsection authorises the Tribunal to take a bond from the person concerned for his appearance, the second subsection authorises even his detention till the conclusion of the enquiry; this of course is for reasons to be recorded but the Ordinance in terms, does not state what those reasons ought to be. It is also worthy of notice that this period of time could exceed two months if the Commissioner agrees to such detention and, therefore, at least in theory, could be definite for there is nothing in the Ordinance which limits the period of time which an enquiry may take to conclude.

4. Section 10 of the Ordinance is again worth reproduction inasmuch .as it states how the proceedings shall be conducted and gives an indication . of the character of the proceedings. It reads:‑ "Section

10. Proceedings before Tribunal.‑The Tribunal shall proceed to inquire into the truth or otherwise of the information upon which action has been taken, and for that purpose may record such evidence as may appear necessary, following in all such cases, the procedure prescribed in the Code of Criminal Procedure, 1X98, for conducting trials and recording evidence in summons cases, but subject to the special provisions of this Ordinance." It will be seen, in the first place that the procedure laid down is the one prescribed in the Code of Criminal Procedure for conducting trials and recording evidence and, secondly, that the duty imposed upon the Tribunal is "to enquire into the truth or otherwise of the information." In other words though the object of the proceedings is significantly different from that of trials in that the latter are intended to enquire into the commission of a crime and to impose a punishment where such a crime has been established as having been committed by the accused, while the purpose of the proceedings before the Tribunal is, as shall be presently seen, merely to control the activity of the person complained against in the future, nevertheless the decision has to be reached upon evidence examined in the same manner resulting in the determination of the question involved. The process, therefore, is clearly judicial even though the object is not punitive or the determination of rights and liabilities inter partes.

5. Section 12 then makes some special rules as to the law of evidence inasmuch as it permits, under certain circumstances, the reception of evidence on affidavits and also to receive and consider evidence of general repute or of previous occasions on which the person complained against was bound over to keep the peace or to be of good behaviour. Again as in the latter it might be noted that although what is being rendered admissible in evidence of general repute, that general repute is to be established in the same fashion as any other relevant fact would be. Section 13 of the Ordinance then authorises the Tribunal if it "is satisfied as a result of enquiry held under this Ordinance" that the person complained against does one or more of the number of specified kinds of misbehaviour to declare that such a person is a goonda. Section 14 then permits the Tribunal to require the person complained against to furnish a bond with or without sureties to be of good behaviour and also to direct that his movement be restricted to any place of area, that he report him self at such times and places and in such mode as may be specified or that be may not reside within certain areas; specifically it also authorises that the Tribunal may direct that the person may not visit places of certain specified kinds.

6. So far, it will be noticed, the utmost that can be done at the .conclusion of the proceedings is to require that a bond be executed; indeed, except for orders of an interim nature which I have already noticed the is no power in the Tribunal at the conclusion of the proceedings to direct simpliciter the detention of a person in custody. Under section 14, however, if he fails to execute the bond or cannot produce sureties to the satisfaction of the Tribunal, the Tribunal may order him to be detained in prison until he executes the bond or until a satisfactory surety is furnished, the period of detention of course not in any case exceeding the term for which he was required to execute a bond. This is the manner in which final orders of the Tribunal may result effectively even though not directly, in the detention of the person complained against.

7. Provision is then made for the discharge of such a person, an appeal to the Commissioner and a very limited right of revision to the High Court and these provisions do not need examination for our present purposes.

8. There is, I think, no manner of doubt that the expression "preventive detention" in its widest sense clearly covers the detention which is ordered at the end of such proceedings. It was argued by Mr. Khalid Ishaque, who very kindly at our request appeared as amicus curiae in this case, that even the orders which authorised restriction of the person complained against to certain specified areas amounted to detention. He pointed out that although the contrary view had been taken in India the position was well settled by precedents in Pakistan. I think it unnecessary to examine this part of the case for, even if such orders do not amount to detention, clearly the consequences of not furnishing a bond will result in detention and, equally clearly, the purpose of that detention must be the same as the purpose of the bond itself, namely, to prevent certain activities and that therefore, the detention is presentive. Indeed tae learned Attorney‑General and the learned Advocate‑General, who were also good enough to assist us in :his case at our request, did not contend otherwise. They entirely accepted the position that the expression "unlawful detention" was wide enough to cover such a case and that, if a distinction was drawn between preventive and punitive detention, as is commonly drawn, the present case would clearly be one falling in the first category. Their argument, however, was that the phrase "law providing for preventive detention" occurring in sub‑Article (4) of Article 10 of the Constitution must for several reasons, including contest, be given a narrower meaning and that, so interpreted, it would not cover the Ordinance.

9. The learned Attorney‑General claimed that, for various reasons, the expression must be limited to detention ordered for the purpose of preventing a person from acting in a particular manner by an authority other than judicial and as the result of an executive order and not as the consequence of judicial proceedings or quasi judicial proceedings which observed, under a statute, the procedure recognised for the objective determination of facts which would, under that statute, entail as a consequence the detention of a person even though the purpose of that detention be not punitive but preventive where a law, he argued, authorised some person to order detention because that person was satisfied that it was expedient so to do for some object stated in the statute as a result of his own satisfaction, even though that satisfaction was required to be based on material and even though the authority was required to take into consideration any explanation offered by the person ordered to be detained to whom the grounds for such detention were supplied, that would undoubtedly be a case of a law for preventive detention within the meaning of the sub‑Article. Where, however, such action was Authorised after proceedings which fulfilled the essential requirements of a trial and only upon the basis of facts so found it would not be covered. These essential requirements are that evidence be taken in the presence of the person proceeded against, that he be allowed an opportunity of cross- examining the witnesses who gave this evidence, that he himself be allowed to lead evidence, that he be allowed to be represented by and be defended by a legal practitioner or his choir;.; and finally that, only on the facts established on such evidence if these facts constituted sufficient reason according to the statute, for making the order, such an order be made. It is obvious that the authority making the order in the first class of cases could not be judicial. Hence it was argued that the sub‑Article would be attracted only if the authority in question was executive. Broadly then the distinction was that sub‑Article is attracted only to execution orders.

10. In a general sense it is of course true that all detention is either punitive or preventive and it is, therefore, argued by Mr. Khalid Ishaque that the present being a case of detention, admittedly not punitive, it must be held to be preventive. He, therefore, contended that this being the plain meaning of the language, it is elementary that the Court must not give a narrower meaning to statutory language than it plainly bears, a consideration all the more important in constitutional enactments and particularly in such provisions as confer liberties by way of fundamental right on the subject. The question, therefore, really is whether there is anything in the context which shows plainly that the framers of the Constitution did not intend to give the expression its plain and full meaning or whether there are any other compelling reasons to cut down that meaning. (There is I think a possibility of another kind of detention also, neither punitive nor preventive, which for want of better expression I would describe as coercive. To this aspect of the matter, however, I shall presently come: suffice it for the moment to say that, in my opinion, it does not materially affect the question).

11. In the first place it has seemed to me that the expression "laws providing for preventive detention" have acquired over the years, particularly for us in the Indo‑Pak continent, such a meaning by reason of history as to have made the phrase a term of art. In comparatively modern times in those countries which are governed by constitution written or unwritten, where the rule of law rather than the will of an individual does not prevails, the idea of detention, not as punishment for a crime but in order to prevent activity dangerous to or at least prejudicial to the safety of the state seems to have occurred for the first time in period of war. I have no desire to burden this judgment with quotations from the classical English cases on the subject and I refer to the case of Liversidge v. Anderson (1942 A C 206) only for the purpose of showing that the detention in question in that case was, what might be, in these terms, described as preventive detention. Reference in that case will show that His Majesty by Order‑in‑Council was authorised under the Emergency Powers (Defence) Act, 1939, to make regulations "for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of the public safety or the defence of the realm". The word "preventive" is not :used but Regulation 18‑B was in these terms: "If the Secretary of State has reasonable cause to believe any person to have been or to be a member of, or to have been or to be active in the furtherance of the objects of, any such organisation as is hereinafter mentioned, and that it is necessary to exercise control over him, he may make an order against that person directing that he be detained." In this regulation it will be noticed that the stated object is to exercise ,control over the person believed to be of hostile origin or association .........

12. In the various constitutional enactments which relate to the Government of pre‑Partition India and to the Governments of India and Pakistan after Partition we do not find until the Government of India Act, 1935, any such thing as a Legislative List. In all the previous enactments provision is made generally for the Government and for the making of laws and in the Act of 1915 there is, for the first time, some semblance of a list but this is in the most general terms. So far as I have been able to discover the expression "preventive detention" is used for the first time in this Act in Entry (1) of List 2 (Provincial Legislative List) of the VII‑Schedule which authorises the Provincial Legislature to make laws for, among other things, "preventive detention for reasons connected with the maintenance of public order." There is no entry either in the Federal or the Concurrent List providing for preventive detention. However, after Partition by the Government of India (IInd Amendment) Act, 1952, the first entry in the Federal Legislative List was entirely recast and, as amended, included "preventive detention for reasons of State connected with defence, internal affairs, or the security of Pakistan or any part thereof, subsequent constitu tional enactments contained such entries as a normal feature.

13. Now when the Government of India Act, 1935, was enacted a form of preventive detention, not ordered by the executive but as the result of judicial process was already well known in this country and had prevailed over a long period of time, at least from the commencement of the Criminal Procedure Code of 1898, which made elaborate provisions in Chapter VIII for taking bonds from persons to be of good behaviour and to keep the peace after a judicial trial of the facts upon the finding of which alone an order of that kind would be made. I must assume that the Legislature was fully aware of this and did not doubt that even without the words which I have quoted from the Provincial Legislative that in the Government of India Act, 1935, as it stood when first enacted, these provisions of law were sufficiently covered by the legislative power conferred and that similar legislation would also be so covered, if so it would be covered, presumably, by the expression "public order" occurring in the same entry. The part of the entry which deals with preventive detention would still, however, be limited to detention for the purpose of maintenance of public order which clearly explains why in 1962, it was thought necessary to confer a similar power upon the Federal Legislature "for reasons of state connected with the defence, external affairs or the security of Pakistan or any part thereof". It seems to me, therefore, that there is the clearest indication here of the entry being intended to give a power to executive authorities rather than to judicial authorities acting in the prescribed modes of judicial behaviour.

14. When the first Constitution of this country was framed in 1956 and fundamental rights first became a part of the Constitution, this history must have been known to the framers of that Constitution, sub‑Article (4) of Article 7 of that Constitution provided a safeguard as to preventive detention in language which is, for my present purpose, materially the same as that obtained in Article 10(4) of the present Constitution. I am inclined to think, therefore, that in 1958 the expression was being used for the purpose of describing preventive detention ordered by executive authority and not as a result of judicial proceedings. If that be so, of course, it could follow that the same considerations apply to the Interim Constitution of 1972 and the present Constitution of 1973.

15. The argument of the learned Attorney‑General is mainly based upon the language of Article 10 itself and the contest of sub‑Article (4) within that Article. It would be convenient to set forth the entire article:‑ "10.‑(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice, (2) Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty‑four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. (3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to tire integrity, security or defence of Pakistan, or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law .hall authorise the detention of a person for a period exceeding one month unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is. in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of one month, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention." Explanation I.‑In this Article, "the appropriate Review Board" means,‑‑ (i) in the case of a person detained under a Federal Law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other parsons, each of them is or has been a Judge of the Supreme Court or a High Court; and (ii) in the case of a person detained under a Provincial Law, a Board appointed by the Chief Justices of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court. Explanation II.‑The opinion of a Review Board shall be expressed in terms of the views of the majority of its members. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, but not later than one week from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order: Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose. (6) The authority making the order shall furnish to the appropriate Review Board all documents, relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced. (7) Within a period of twenty‑four months commencing on the days of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case: Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received, from, the enemy. (8) The appropriate Review Board shall determine the place of deten tion of the person detained and fix a reasonable subsistence allowance for his family. (9) Nothing in this Article shall apply to any person who for the' time being is an enemy alien." Sub‑Articles (1) and (2) are in identical terms as sub‑Articles (1) and (2) of the corresponding articles of the Indian Constitution, the 1956 Constitution and the Interim Constitution of 1973 that is to say Articles 22, 7 and 9`' respectively. Sub‑Article (3) which excludes the operation of clauses (1) and (2) from the case of persons arrested or detained under any law providing for preventive detention is also identical with the 1972 Consti tution and, so far as that exclusion goes, to the 1956 Constitution as also the Indian Constitution. The Indian Constitution and the 1956 Constitution, however, exclude sub‑Articles (1) and (2) also from any operation in relation to enemy aliens. The remaining sub‑Articles are not indeed in identical language inasmuch as the Constitutions of the Advisory Boards differ but otherwise they are materially the same. One difference might, however, be noted and that is that sub‑Article (4) expressly limits the object for which a law providing for preventive detention can be made, but none of the other Constitutions contain anything similar. Even this difference, however, is not immediately material. It will be seen, therefore, that any reference to previous cases or to Indian cases is not excluded by reason of difference in the language in question.

16. The learned Attorney‑General invited us first to consider the language of sub‑Articles (1) and (2) for these are, by sub‑Article (3), expressly made inapplicable to laws providing for preventive detention. Under these a person who is arrested must be informed, as soon as may be, of the grounds for such arrest and is to be produced before a Magistrate within a period of 24 hours whereafter he cannot be detained without the authority of a Magistrate. So far these provisions are in close conformity with corresponding provisions in the Criminal Procedure Code and there can be no doubt, as has been authoritatively decided by the Supreme Court, that the intention was to raise this guarantee already given by law to the status of a Constitutional guarantee and, incidentally, this is yet one more indication that the framers of the Constitution were well aware of the provisions of the Code of Criminal Procedure and that, so far from intending to invalidate that Code, some part of it at any rate they wanted enshrined in the Constitution so that it be not capable of being whittled down by ordinary legislation. There is, however, more in sub Article (l) and that is that such a person shall not be denied the right to consult and be defended by a legal practitioner of his choice. Clearly the purpose of this right is to ensure a proper trial and this in turn envisages that the matter for which he is arrested shall be the subject‑matter of ,judicial determination before a judicial Tribunal. These would be singularly ,unapt provisions in the case of a procedure required to be followed by the Constitution preparatory to the incorceration of a person upon purely .executive authority. The purpose, therefore, of sub‑Article (3), manifest in its own language, of excluding laws providing for preventive detention from the purview of the first two sub‑Articles becomes understand able. Of necessity in any given case sub‑Articles (1) and (2) on the one hand and sub‑Articles (4), (5 ), (6), (7) and (8) on the other cannot apply in the same case. Really, therefore, Article 2 confers two different fundamental ‑rights, one to persons who are arrested preparatory to being proceeded against, not necessarily by way of prosecution for a criminal offence, before a judicial Tribunal and the second in respect of laws providing ‑for preventive detention. Sub‑Article (3) performs the function of separating .the two classes and the omission that I have already noticed of any .reference in it to enemy aliens is explained by sub‑Article (9) which with holds the protection of the fundamental rights conferred by Article 10 as a whole from enemy aliens. In this view of the matter clearly sub Article (4) is making no provision for laws which entail detention by .reason of a judicial order but only for such as authorise an executive authority to pass such an order.

17. The Attorney‑General went on to support his argument by a reference to some decided cases and a passage from Mr. A. K. Brohi's well known book on the Fundamental Law of Pakistan. In that book, discussing Article 7 of the 1956 Constitution, the learned author observes at page 424:‑ "Preventive detention is an abnormal measure in that it authorises the executive to impose restraints upon the liberty of a man who may not have committed a crime but who, it is apprehended, is about to commit acts that are prejudicial to public safety etc. it is only during the period of emergency that resort to this abnormal power can be justified. During the two world wars in England, for example, powers of preventive detention were exercised in the interest of the security of the realm."

18. As the learned Attorney‑General himself remarked we have lived to see a time when such a detention is, regretably not an abnormal measure. Nor is the expression, "periods of emergency" to be read necessarily as a period in which a Proclamation of Emergency is in force: sufficient that the power exists by legislation to deal with a situation which the normal law of crimes or even such proceedings as are contem plated by Chapter VIII of the Criminal Procedure Code are not, in the view of the Legislature, sufficient to cope with the situation.

19. Reference was then made to a case decided by the Indian Supreme Court reported as The State of Punjab v. Ajaib Singh (AIR 1953 S C 10). The learned Judges first broadly classified arrests into two categorises, namely, arrests under warrants issued by a Court and other arrests. Dealing with the argument that the Indian Abducted Persons (Recovery and restoration) Act, 1949, was ultra vices of Article 22(t) and (2) of the Indian Constitution the learned Judges observed:‑ "Turning now to Art. 22(1) and (2), we' have to ascertain whether its protection extends to both categories of arrests mentioned above, and, if not, then which one of them comes within its protection. There can be no manner of doubt that arrests without warrants issued by a Court call for greater protection than do arrests under such warrants. The provision that the arrested person should within 24 hours be produced before the nearest Magistrate is parti cularly desirable in the case of arrest otherwise than under a warrant issued by the Court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him. In the case of arrest under a warrant issued by a Court, the judicial mind had already been applied to the case when the warrant was issued and, therefore, there is less reason for making such production in that case a matter of a substantive fundamental right. It is also perfectly place that the language of Art. 22(2) has been practically copied from sections 60 and 61, Criminal P. C. which admittedly prescribed the procedure to be followed after a person has been arrested without warrant. The requirement of Art. 22(1) that no person who is arrested shall be detained in custody without being informed, as soon as my be, of the grounds for such arrest indicates that the cause really contemplates an arrest without a warrant of Court, for, as already noted, a person arrested under a Court's warrant is made acquainted with the grounds of his arrest before the arrest is actually effected. There can be no doubt that the right to consult a legal practitioner of his choice is to enable the arrested person to be advised about the legality or sufficiency of the grounds for his arrest. The right of the arrested person to be defended by a legal practitioner of his choice postulates that there is an accusation against him against which he has to be defended. The language of Art. 22(1) and (2) indicates that the fundamental right conferred by it gives protection against such arrests as are effected otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person has, or is suspected to have, committed, or is about or likely to commit an act of a criminal or quasi‑criminal nature or some activity prejudicial to the public or the State interest. In other words, there is indication in the language of Art. 22(1) and (2) that it was designed to give protection against the act of the executive or other non‑judicial authority."

20. With this exposition of the law I find myself in general and respectful agreement. The passage has been the subject‑matter of severe criticism in India by well known and erudite; commentators or, the Constitu tion mainly on the ground that these observations were not necessary for the decision of the ease and that indeed the learned Judges themselves said that they did not "consider it desirable, to attempt a precise and meticulous enunciation of the scope and ambit of this fundamental right or to enumerate exhaustively the cases that come within its protection". The case is, however not in any event binding on us and the fact, therefore, that the observations might have been obiter does not make any difference to us. We are still concerned, if at all, with the soundness of the view propounded.

21. The case has also been dissented from by the High Court of West Pakistan at Lahore in Bazal Ahmed Ayubi v. West Pakistan Province (P L D 1957 Lah. 388). In this case the vires of Punjab Control of Goondas Act, 1951, a piece of legislation very similar to that which I am now considering, was in question. The defence, however, was not precisely upon the question now under examination and Rahman, C. J., delivering the judgment of the Court was of the opinion that the Indian decision took too narrow a view of the correspond ing provision in the Indian Constitution but that is in regard to the meaning of the word "arrest" appearing in Article 22(1) of the Indian Constitution and Article 7(t) of the 1956 Constitution. The attack on the Act in this case was based on Articles 5 and 7 of the 1956 Constitution and it was held that the Act was void as violating sub‑Articles (1) and (2). So far from defeating the argument of the learned Attorney‑General before us the judgment on the contrary supports us, inasmuch as it held the provisions of the Act to be void by reason of Article 7 because the person complained against could under the Act be excluded while evidence was recorded and the learned Judges held, quite rightly if I may say so with respect, that this took away the right to be defended by a legal practitioner of his own choice and also the right to consult him. Clearly, therefore, they were holding that sub‑Articles (1) and (2) were applicable and, of necessity, if they were applicable, sub‑Article (4) was not.

22. If sub‑Article (4) is to be interpreted as providing even for cases of preventive detention which are the result of judicial proceedings it is clear, and indeed admitted on both sides at the bar, that Chapter VIII of the Criminal Procedure Code would be as much hit as the Ordinance. Now as I have said before the provisions of the Criminal Procedure were clearly in the mind of the framers of the Constitution when they drafted the Constitution. I am of course not to be understood to mean that on that account the entire Code of Criminal Procedure, whatever conflict might be found between it and a fundamental right, is necessarily to be held valid. It is at least significant, however, that neither during the 25 years or so that the Indian Constitution has been in force nor at any time in our country have the provisions of that Chapter been held void by reason of any conflict with Article 22 of the. Indian Constitution or Article 10 of our Constitution or any of its Constitutional predecessors. On the contrary it has been held otherwise and the cases in which any attack has been made at all are few and far between. As an example reference might be made to Jit Bahadur Singh v. The State (A I R 1953 All. 753).

23. I now come to the case of Ghulam Ali Shah v. The State (P L D 1970 S C 253) in which certain observations were made which night be regarded, at first eight, as holding otherwise and which, on that account, the learned Attorney -General was anxious to distinguish. The legislation that their Lordships were considering in this case was the same Ordinance which I am now examining and, in the course of the judgment, their Lordships observed:‑‑ "Having regard to this rule of interpretation, the entry "public order" should be taken in its most comprehensive sense so as to include public peace, public tranquillity, public safety and social security the maintenance of which is the real object and purpose of the impugned Ordinance. As the Ordinance provides for imposing restrictions on movements of a person declared as a goonda and further provides for restricting his residence within specified areas, an element of `preventive detention' is there in the Ordinance. In this sense, a part of the subject‑matter of the Ordinance is attracted also by entry 5 "preventive detention for reasons connected with the maintenance of public order". The Ordinance has created offences for contravention of orders made thereunder and has prescribed penalties for such offences. This provision as regards offences and penalties clearly falls within entry 91 of the Provincial List. Thus, the impugned Ordinance is a piece of legislation which fell within the Provincial List exclusively and was, therefore, within the legislative competence of the Governor."

24. Now the question before the Supreme Court was not whether the Ordinance offended against any fundamental right but whether it was invalid for want of the assent of the President and this question in turn depended upon the further question whether the subject‑matter was relatable to an entry in the Concurrent List. The entire case depends upon examining the provision of the Ordinance to see what the pith and substance of the legislation was. Their Lordships held, for reasons which are not material for my present purposes, that the Ordinance was not, on this account at any rate, ultra vices. It is in this context that these observations were made.

25. Cases are authority after all for what they decide and not for what seems to flow from them. Nor do I think it proper to attempt to understand the meaning of a judgment by adopting a process similar to that of the construction of a statute. In a judgment the language used is for the purpose of the question being decided and words are not used in the same strict manner as in statutes. Even so, their Lordships were careful to say not that the law was one of preventive detention but only that "an element of preventive detention" existed. The question whether it properly fell within the meaning of the expression "law providing for preventive detention" as used in Article 10 or any similar provision did not arise at all. With great respect, therefore, I have come to the conclusion that these observations do not affect the question before us.

26. Mr. Khalid Ishaque on the contrary argued that there is no warrant at all for giving language used in a statute anything less than its plain and full meaning and that therefore, if the purpose of the law be preventive detention then, whether the action be taken by the executive or as the result of a judicial enquiry, the statute must be held as one providing for preventive detention and the guarantees in the latter part of Article 10 must be attracted. It is true, of course, that, in interpreting a written Constitution as in interpreting any statute the Court must apply it according to its meaning and not according to what it itself considers to be more reasonable. The primary and final duty of a Court, however, is to give effect to the meaning of the Legislature and, if the context of the provision itself shows that the meaning intended was somewhat less then the words plainly seem to mean then I think the Court must interpret that language in accordance with the indication of the intention of the Legislature so plainly given. Again it is well settled that, precisely for the same reason, namely, that legislation is the business of the Legislature and not of the Court, the Court ought to lean in favour of the validity of a statute and, where it is possible to ascribe more than one meaning to the language of the Constitution, then that meaning ought to be adopted which saves the validity of an Act rather than invalidates it. It is also to be remembered that constructions which lead to an unreasonable effect or an absurd result must be avoided if that may possibly be done by giving to the words in question a meaning which they could bear. If the words "preventive detention" are to be given their full meaning and are to include all detention other than punitive then obviously the custody of an accused person during trial, either by reason of bail having been refused.' to him or because he is unable to furnish security, would also be include in preventive detention. The purpose of such custody is obviously no punitive and, equally obviously, is preventive inasmuch as it is ordered to prevent an accused person from absconding. The curious result would then be that even though bail might have been refused by the High Court itself or even the Supreme Court as soon as may be after the arrest of the person but in any case not more than one week thereafter he shall be furnished with grounds upon which the order, that is to say, the order refusing him bail, has been made and he shall have an opportunity of making a representation against the order. In any case if a period of one month elapses be must be released unless the Review Board has offorded him an opportunity of being heard in person, has reviewed iris case and reported that there is sufficient cause for such detention. It is obvious that these are provisions singularly inappropriate to the case of persons being held in such custody and yet they certainly are in preventive detention if that expression is to be given its fullest meaning. I am unable to pursuade myself that so absurd a result was contemplated.

27. Faced with this example Mr. Khalid Ishaque had to concede that such custody would not be preventive detention within the meaning of Article 10(4), This in turn, he agreed, would mean that the expression could not be given the full meaning for which he earlier canvassed. If then the expression cannot be given its full meaning, which must anyhow be modified, then surely that modification must be upon the basis of some logical principle and I cannot conceive of any which would exclude the a case of under‑trial prisoners but nevertheless include the case of persons detained as a result of an order made at the conclusion of proceedings under the Ordinance. The distinction advanced by the learned Attorney General and which appeals to me has the merit of being based upon the language of the entire Article read as a whole and, therefore, may fairly be said to be inferred from the context.

28. Nevertheless Mr. Khalid Ishaque, after agreeing that detention as the result of detention orders would not fall within the purview of Article 10(4). questioned whether it necessarily followed that only orders passed by the executive would. He sought a half way course between executive and judicial orders and claimed that, even when the order is Passed as a result of judicial proceedings, if the approach of the judicial tribunal be administrative in nature the sub‑Article would still apply. With great respect to learned counsel, I have been unable to see this distinction. The concept of an order passed judicially as against one passed administratively is not that the order should be passed by a person who holds judicial office but that it should be passed as the result of a process which is judicial. It can happen that a person who is holding what is admittedly a judicial office may have to pass, in the course of his duties, orders which are clearly administrative in character. The fact that he is holding judicial office will not make such an order a judicial one. For example the Chief Justice of a High Court, about whom there can be no doubt that he holds judicial office, may and in fact does pass orders affecting persons employed in the High Court in regard to their appointments, promotions, transfers, leave etc. On the other hand a person who is employed in the executive may by statute be given powers to conduct a judicial enquiry and pass orders at the end of such an enquiry and, I think, there would be no doubt that such an order would be judicial. Even in the present Ordinance it would have made no difference to my view if a person who could be appointed as a Tribunal was not the District Magistrate or a Magistrate of the Ist Class but some other designated official. I am, therefore, entirely unable to agree with Mr. Khalid Ishaque that because the purpose of the Ordinance is to control the activities of goondas, a matter which concerns the State in its responsibility to maintain law and order, the approach of the Tribunal will be necessarily administrative in character or that; on that account, the order actually passed is anytheless judicial.

29. Earlier in this judgment I have pointed out that there could be a class of detention which is neither punitive or preventive and which I called coercive. The learned Advocate‑General pointed out to this class in an attempt to show that merely because the detention resulting in an order under the Ordinance is not punitive it need not on that account be preventive. The class of cases which he had in mind are those in which under a statute a person could be detained for failure to pay moneys due from him as for instance under the Income‑tax Act. I wholly agree that such detention is not preventive even though it is not punitive for the object of this detention is neither to punish nor to prevent a person from acting in any manner but to compel him to pay the money which he is liable to pay. That excludes it from the class of preventive detention but I am unable to see that it advances the case put forward by the Advocate‑General in any manner. The true test for determining whether detention is preventive or not, is not, I agree, merely to contrast it with punitive detention but to see whether the object is to prevent some activity. The learned Advocate‑General argues that in the present case also the detention is not ordered in order to prevent any activity and that indeed the Tribunal has no power to order detention for any such purpose at all . The detention follows as a result of the failure of the person complained against to give security and he, therefore, says that it is coercive in that unless he gives security he would be kept in custody. It is to be remem bered however that the taking of security is not an end itself but itself has the object of preventing a particular kind of activity and I think, therefore, that the detention itself has the same object even though the immediate result desired might be that of taking security.

30. I have, therefore, come to the conclusion that the first question referred to the Full Bench must be answered in the negative. A certain amount of argument did take place before us as to be second question the learned Attorney‑General and Advocate‑General contending that even if the first question be answered affirmatively the Ordinance would not be ultra vires but that, following well known Supreme Court cases on the point, the provisions of sub‑Article (4) onwards would have to be read into the Ordinance. I am inclined to agree but do not think that in view of the answer I propose on the first question the second question arises at all.

31. I would, therefore, answer the first question in the negative and as to the second hold that it does not arise. FAKHRUDDIN G. EBRAHIM, J.‑I agree. JAMALUDDIN H. AHMAD, J. ‑I agree. K. B. A. Reference answered in the negative.