In Re: Anant Mahadev Mandekar <BR> Indradatta Jogendranath Sen

Desai, J.—The petitioner is the editor of an English fortnightly called "New Spark" and he is a close friend of one Anant Mahadeo Mandekar, the detenu in this case, who is hereinafter referred to as the detenu. Prior to his detention, the detenu wag a record clerk in the New Kaiser. i-Hind Mills. In pursuance of a detention order dated lath May 1917, issued against him by respondent 1, who is the Commissioner of Police, Greater Bombay, the detenu has been detained since 15th May 1947, under Clause (a) of Sub-section (1) of Section 2, Bombay Public Security Measures Act, 1947. The petition is filed for an order that the detenu be set at liberty.

Section 2, Bombay Public Security Measures Act, 1947, provides as follows:

2.(1) The Provincial Government may, if it is satisfied that any person is acting in a manner pre- judicial to the public safety, the maintenance of public order, or the tranquillity of the Province or any part thereof, make an order�

(a) directing that he be detained.

Section 3 of the said Act provides that where an order is made in re3pect of any person under Clause (a) of subs. (1) of Section 2, the Provincial Government shall, as soon as may be, communicate to the person affected by the order the grounds on which the order has been made, without dis. closing facts which it considers against the public interest to disclose, and such other particulars as are in its opinion sufficient to enable him to make a representation to the Provincial Government against the order and inform him of his right to make such representation and afford him the earliest opportunity of doing so.

The order No, 38 of 1947 u/s 2 (l) (a) of the said Act served on the detenu is on a stereotyped form in which the name of the detenu is inserted.

The notice served on the detenu u/s 8 of the said Act dated 12th May 1947, is in the following terms:

In pursuance of Section 3, Bombay Public Security Measures Act, 1947 (Bom. VI of 1947), you are informed that the grounds on which an order of detention has been made against you under Clause (a) of Sub-section (1) of Section 2 of the said Act, are:

That you have been inciting workers to commit acts of violence and thereby acting in a manner prejudicial to public safety and tranquillity of Greater Bombay.

It will be observed that u/s 3 it is the duty of the Provincial Government to communicate to the person affected by the order the grounds on which the order has been made as also to give particulars. In Keshav Gokhale Vs. Emperor, a Pull Bench of our High Court decided as follows:

Where, on a perusal of an order passed under B. 26, Defence of India rules, 1939, it becomes clear that the authority or officer making the order has not applied its or his mind as required by the rule, the order is invalid: King Emperor v. Sibnath Banerjee, 1944 F. G. E. 1 : AIR 1943 P. C. 73 followed.

The obligation to consider reasons or grounds for making an order and to be satisfied upon materials laid before the officer or authority making it or within his cognizance is a condition precedent to the making of an order, which in absence of the condition is a nullity. Rex v. Secretary of State for Borne Affairs: Exparte Greens (1942) 1 K. B. 87, followed.

Hence, where a District Magistrate takes a ready made oyolostyled form, which sets out mechanically the four conditions prescribed by E. 26, and which refers by its language to a plurality of persons, and fills in the schedule the name o the person ordered to be detained, the Magistrate does not exercise any executive discretion or make a quasi-judicial consideration of the facts pertinent to the case, and the order passed is no order at all.

It is contended that for the reasons stated in the said case Keshav Gokhale Vs. Emperor, respondent 1, though ho gave the grounds on which he made the said order, failed to apply his mind a9 required by law and, therefore, the grounds given by respondent 1 cannot be deemed to be any grounds at all and that therefore the order is bad. For the reasons hereinafter stated, it is not necessary for me to give any finding as regards this contention.

The second contention raised by the petitioner is that the notice u/s 3 of the said Act is bad on the ground that it is vague and indefinite and does not comply with the provisions of Section 3 of the said Act.

So far as this contention is concerned, there is the judgment delivered in In re Bhayaji Kulharni, CClause Appln. No. 524 of 1947, decided on 29th October 1947, by the learned �Chief Justice and Gajerjdragadkar J. where their Lordships had to consider the language of the notice u/s 3 given by the District Magistrate, East Khandesh, which was in terms very similar to the language used in the present case. Ground No. 2 given in the said notice is as follows:

That you are acting in a manner prejudicial to the public safety and maintenance of public order and tranquillity of Amalner town by inciting workers to violence.

As regards this, the learned Chief Justice in his judgment said ;

When we come to ground (2) it will be noticed that it does not state the class of workers whom the person detained is alleged to be inciting: nor does it state the place at which these workers are supposed to be working. ''Workers'' in an extremely comprehensive and all-embracing expression. In these days one might almost say that every body in a worker, and it seems difficult to understand why such an expression was used when proper and adequate information could easily have been supplied to the person detained by the use of a proper expression, the Government Pleader has contended that further to particularise ''workers'' would have bi-en really to give particulars or to state facts which the Government might not have wanted to do in public interest. We cannot adopt that argument. The whole object of furnishing grounds would be frustrated unless they are definite and precise. They are intended to serve a definite purpose u/s 3 .and that purpose cannot be served unless the detenu knows what exactly has moved Government to deprive him of his liberty. In our opinion therefore ground (2) is also vague and indefinite.

I consider myself bound by that judgment, and I respectfully agree with what their Lordships said. I hold that for the reasons aforesaid the notice given u/s 3 of the said Act in this case was vague and indefinite and that tine particulars given were not such as to enable the detenu to make a representation to the Provincial Government against the order and afford him the earliest opportunity of doing so. It is undoubtedly true that the particulars to be given are such as are in the opinion of the Pro vincial Government sufficient. But the Government nevertheless is bound to give particulars. Such particulars as the Government did give in this case were vague and indefinite and therefore could not be described as any particulars at all.

It will be observed that the notice does not mention the class of workers or the locality in which the workers were residing or working. Supposing that the workers were reading or working in a locality, which the detenu could prove to the satisfaction of the proper authority he never visited, or that the class of workers whom it was alleged that he incited were workers with whom he never came in contact or were workers who were not likely to listen to the detenu by reason of their social status or political views, then the authority concerned might, on a proper representation being made by. the detenu and after the necessary investigation held by him in that behalf come to the conclusion that there was no case made out for keeping the detenu in detention. The next point to notice is that it is not mentioned in the particulars the time during which the detenu is supposed to have incited the workers. If those particulars had been given, the detenu might have satisfied the authority concerned that at that particular period of time he never visited the locality at all but that in fact he was busily engaged in a totally different locality from the locality in question. This shows how necessary it is that proper particulars should have been given to the detenu.

I asked the learned Advocate General bow he proposed to distinguish the language of the notice in this case from the language of the notice given in the Full Bench case u/s 3 of the said Act, but he was unable to point out any distinction.

This being my view, I think the order of detention cannot be justified. I therefore order that the detenu be set at liberty immediately and that respondent 1 may be ordered to pay to the petitioner the costs of the petition.

Respondent 2 in this case is the Superintendent, Worli Temporary Prison. But I do not think it is necessary to puss any order for costs against respondent 2 and indeed no such order is asked for against him.