1. SHAHABUDDIN, J.-These are appeals by special leave obtained by the State in respect of the orders of the Chief Court Sind by which the respondents in these appeals who had been detained under section 3(1) of the Security of Pakistan Act, 1952 were ordered to be released. As the main point for determination is the same in both these appeals they can conveniently be dis--posed of in one common order.
2. Material facts are these. In December 1954 the Chief Commissioner Karachi passed orders externing from Karachi the respondents in the appeals under section 3 of the Security Act of 1952.
3. Thereupon the respondents applied to the Chief Court for a writ against the orders of the Chief Commissioner but those applications were dismissed when in Federation of Pakistan v. Maulvi Tamizuddin Khan (PLD1955FC240) this Court held that even measures passed by the Constituent Assembly should in order to become law receive the assent of the Governor-General and the provision of the Constitution Act conferring the writ jurisdiction on the High Courts not having been so assented to was ultra vires. The respondents thereafter filed petitions under section 491, Criminal Procedure Code and in those applications the Chief Court suspended the orders of internment; but when the respondents came into Karachi the Central Government passed orders of detention against them under the above-mentioned Security Act. It was in respect of these orders of detention that fresh applications under section 491, Criminal Procedure Code were filed by the respondents and the orders under appeal were passed by the Chief Court, Sind.
4. The orders of detention were made by the Central Govern--ment on the ground that the respondents acted in a manner pre-judicial to the maintenance of supplies and services essential to the community, and the information on which this action was taken against the respondents was to the effect that they being members of the same family were smuggling into Pakistan from outside and flooding the market with articles which had been banned by Government. The following contentions were raised before the Chief Court in respect of these orders.
(1) the orders were mala fide; (2) the Government of Pakistan having delegated to the Chief Commissioner the power of ordering detention had no longer the power to pass the orders in question ; and (3) the facts alleged by the State are not covered by the expression `prejudicial to the maintenance of supplies and services' occurring in section 3(1) of the Act. On the first two points the learned Judges of the Chief Court did not agree with the learned Advocate for the appellants. They held that the orders were not mala fides and that the Central Government retained its power to detain persons in spite of the delegation to the Chief Commissioner. But they took the view that the activities alleged against the respondents were not such as would affect the maintenance of supplies, because by smuggling goods into the country the flow of essential supplies was not affected adversely. In the opinion of the learned Judges the smuggling alleged against the appellants instead of diminishing the supplies increased their quantity and therefore their activities however reprehensible otherwise did not come under section 3(I) of the Security Act.
5. They therefore set aside those orders. The argument put forward in support of the applications by the State for special leave to appeal was that the interpretation put by the Chief Court on the expression "acting in a manner prejudiced to the maintenance of supplies and services essential to the community" was too narrow and technical and did not give effect to the object of the Statute; and it was only to consider this point that special leave was granted in these two cases.
6. Mr. Brohi appearing for the respondents in both these appeals sought permission to arise the contention that under the present Constitution the Security Act under which the orders of detention in question were passed was ultra vires. He argued that even if these appeals succeeded he could raise the objection that the respondents could not be proceeded against under the Act and that therefore this Court should allow him to address it on the validity of the Act and give a decision on the point. As in our opinion these appeals are not the appropriate proceedings for considering this question of general importance we enquired of the Attorney-General if he could give an under-- taking that even if these appeals are allowed no action would be taken against the respondents oil the orders of detention under appeal, and as he gave that undertaking we declined to allow Mr. Brohi to raise the question. He then asked for permission to contest the findings of the Chief Court on the first two of the above-mentioned points raised by the respondents. This also we declined to allow in view of the fact that special leave was granted for the consideration of only one point already specified. The arguments were therefore confined to the ground on which leave was granted.
7. The contentions of the learned Attorney-General on this point were as follows. The expression maintenance of the essential supplies" does not mean only the maintaining of the quantity of the commodities, but also relates to the keeping up of the supply in circumstances most advantageous to the country and that activities which are prejudicial to such keeping up of the supplies are prejudicial under section 3(1) of the Act. Smuggling into Pakistan from outside of goods the flow of which into the country is checked by imposition of duty and by direct controls does necessarily involve breach of the rules of the control over foreign exchange and in fact causes loss of foreign exchange and as its importance in the economy of the country cannot be doubted the activities alleged against the respondents were prejudicial to the maintenance of the supplies essential to the country. Mr. Brohi on the other hand argued that the expression in question should be construed strictly as the legislation affects the liberty of the subject and the learned Judge were right in confining maintenance to the upkeeping of the quantity so that only that which is prejudicial to the flow of sly regarded as a ground for action under section 3(1) of the Act. In support of his contention he cited a Full Bench decision of the Patna High Court in Misri Lal v. State (I L R 30 Pat. 716) on which the learned Judges of the Chief Court relied, and also the decision of the East Punjab High Court in Bakhtawar Singh v. The state (AIR 1951 Sim. 157).
8. The view taken by the learned Judges of tile Chief Court ignores the outstanding fact that this is an age of planned economies and Governmental control of private business, which consists of various restrictions designed to meet the requirements of the complex economic society. In this state of affairs the criterion of mere increase or decrease iii the quantity of the particular commodity irrespective of how it was effected is hardly a safe or appropriate standard to apply. To' smuggle in goods from outside the smuggler needs money or goods in exchange and consequently he has to smuggle out foreign currency or Pakistan currency or other goods. It was not disputed that smuggling of goods out of Pakistan is an act prejudicial to the maintenance of essential supplies.
9. The moving out of foreign currency or Pakistan currency without permission of the State Bank is prohibited by law. Therefore trade in channels other than those recognised by law affects the foreign exchange position of the country adversely and as a necessary consequence affects also supplies of essential goods for which payment has to be made in foreign currency. The importance of foreign exchange is so great that it can amply be regarded as a supply essential to the community. In any case anything which is prejudicial to it is consequently prejudicial to the maintenance of the other essential supplies which are paid for in foreign money.
10. In the orders of detention it was mentioned that the activities of the respondents were prejudicial to the maintenance of supplies and services essential to the community. The learned Judges observed that the words "maintenance of services" were not relevant to the case of the respondent in Appeal No. 40 of 1955. Similar observation does not occur in the order in the other appeal but as the respondents concerned in that appeal also were detained on the same ground, it may be taken that the learned Judges thought that reference to services was not relevant in their case also. The learned Attorney-General argued that the view of the learned Judges was not correct as by smuggling the payment of custom duty and income-tax is avoided and thus loss is caused to Government which can affect the maintenance of services in general. The connection between smuggling and the maintenance of general services is no doubt too remote but the keeping up of a supply essential to the community is in itself an essential service and whatever affects, maintenance of essential supplies does affect the maintenance of such services also. The learned Judges were not therefore right in regarding reference to essential service as unnecessary. It cannot be doubted that exercise of effective control on foreign exchange is essential to the community. As smuggling whether in or out of the country does have a prejudicial effect on the control of foreign exchange it has to be regarded as an activity prejudicial to the maintenance of an essential service.
11. As for the decision of the Patna High Court on which the learned Judges relied its facts were entirely different. There, the question was whether adulteration of an essential commodity was an act affecting the maintenance of- an essential supply. The case first came before a Division Bench from where it was taken up by a Full Bench on a difference of opinion. One of the Judges of the Division Bench held that if selling articles to consumers at a rate higher than the prescribed rate brought the seller under Preventive Detention Act there was no reason why he should not be brought under that Act if he renders the foodstuffs unfit for human consumption. When the matter was discussed before the Full Bench which ultimately decided the case interpretation of not only the word "maintenance" but also the word "supplies" was discussed and the observations of the learned Judges quoted in the order under Appeal No. 41 were made with reference to the adulteration of Atta within the country. In the present case such a question does not arise and it is not necessary to decide whether the view taken by that Full Bench is correct or not. Suffice it to point out that the second paragraph of the passage extracted from this judgment in the order under Appeal No. 40 particularly the following sentences do not indicate that the learned Judges who decided that case took a view different from the one expressed above with regard to the supplies and services essential to the community :- "The meaning of the words `maintenance of supplies and services essential to the community', therefore must be up--keep of the needs and the provisions essential to the community. These may be of various kinds impossible to define, but so long as they are essential to the community, their upkeep would be essential for the purpose of the Act. As I read these words, I think the true meaning to be given to them is to prevent any person from doing an act in any manner prejudicial to the upkeep of the needs, the provisions and the services essential to the community, that is to say, the flow of supplies and services essential to the community, that is be continued to be maintained in the interest of the community and any one who did any act to prejudice it was liable to be detained by the detaining authority under the Act."
12. The learned Judges, while mentioning certain kinds of prejudicial activities have not referred to smuggling but it cannot be said that they have given an exhaustive list. This decision we do not think, helps the respondents. The other decision in Bakhtawar Singh v. The State related no doubt to a case of smuggling, but there the order of detention was to the effect that the detenus in furtherance of their object of smuggling indulged in activities prejudicial to the security of the State and maintenance of public order. Several reasons were given for setting aside the order of detention in that case and one of them was that the grounds of the order were not supplied to the detenus within a reasonable time and when they were supplied they were not such as to enable them to make a representation. One of the Judges no doubt observed that smuggling of articles into India from Pakistan could not be said to affect the maintenance of supply essential to the community in India, but the question of foreign exchange involved in such activities was not considered in that decision.
13. On the other hand, in a Full Bench decision of the Patna High Court in Jagarnath Prasad and another v. The State of Bihar and others (I) it was observed that where with regard to an essential commodity there is a system of controls, on which the maintenance of supplies and services depends, evasion of the control orders will prejudicially affect the maintenance of supplies and services essential to the community. We agree with this view. As stated already under the foreign exchange regulations restrictions are imposed on the moving in and out of foreign and Pakistan currencies. Evasion of this control in our opinion has to be regarded as prejudicial to the maintenance of a supply and service essential to the community.
14. In respect of one of the respondents in Appeal No. 41 named Abdullah it was pointed out by Mr. Brohi that in the affidavits filed regarding the information which the Government had there was no specific allegation of smuggling, but that it was stated that he and the members of his family were carrying on smuggling from a long time. The learned Judges of the Chief Court regarded this allegation as vague, but considering the activities that had been alleged against the other members of the family and the relationship of this respondent with those against whom specified allegations were made, we think, that it was for the Government to decide as to whether his detention was called for in the case and that interference by the Court in this connection would amount to an examination and adjudication upon the sufficiency of the grounds of detention.
15. We therefore allow these appeals with the result that the orders of detention, in view of this judgment, become restored, but the learned Attorney-General as stated already, has given an undertaking that no action would be taken against the respondents on those orders.
16. Mr. Brohi pressed for costs on the ground that our decision in these appeals amounts to our having settled the law for the appellants. But having regard to the fact that we do no ordinarily allow costs in criminal matters, we think there should be no order as to costs.