Maqdoom Mohiuddin vs State of Hyderabad

Shripat Rao, J.—This is an application for a Writ of Habeas Corpus on behalf of the detenu Maqdoom Mohiuddin. It is alleged in the application that the detenu was arrested on the 7th May 1951 and was for 17 days kept in police custody without being produced before a Magistrate and that while in police custody he was subjected to tortures. It is asserted that the detention is mala fide, improper and illegal, and actuated from indirect motives and collateral purpose; that the particulars of his activities in Telangana as given in the grounds relate to a period which is remote for the purposes of detention and that it is not denied that the detenu is a member of a communist party which is banned in the Hyderabad State. It is asserted that the ban is ultra vires.

The order of detention is dated 23-5-1951 and the grounds were furnished to the detenu on 7-6-1951. The grounds contain a long statement about the activities of the detenu covering two pages. The history & the career of the detenu have been given. The affidavit of three Police Officers have been filed. With the affidavit of Narsing Pershad, Superintendent of Police, C.I.D., an annexure which gives the details of the activities concerning the detenu as a communist has also been filed. It is not necessary To discuss in detail all the particulars mentioned in the grounds and also in the annexure. I will discuss only such of the grounds as I feel sufficient for the disposal of this petition.

In the grounds it is mentioned that the detenu is one of the founders of the communist party of the Hyderabad State and was responsible for bringing it to its present stage of violent armed struggle. It is further mentioned in the grounds that the detenu was arrested in 1946 for delivering objectionable speech and that during the pre-Constitution days when the Communist Party was banned in Hyderabad State he went underground and had been remaining so ever since till he was arrested. It is also alleged that he visited Warangal and was with a Guerilla Squad: that he was in touch with the Telangana struggle and went to Bombay after the Police Action to get a clarification in respect of that struggle in view of the change of conditions: that he held discussions with Sundaria with regard to the armed struggle and other party matters. It is also stated that after the second party Congress the Provincial Committee took direct control of the Telangana armed fight and made the detenu the Secretary of the District Committee of Hyderabad and Secunderabad City with Raja Bahadur Gowd and Jawwad Razvi as members. It is alleged that in January 1950 or thereabouts the detenu resigned his post as a Secretary and followed B. T. Ranadive and supported extremist policy. After resignation, he became the person incharge of "Agit Prop" Section. He was discharging that duty till his arrest. It is said that a large quantity of communist literature was found in his den at the time of his arrest.

In the annexure (paragraph 4) it is stated that the armed struggle in Telangana was carried on under the guidance of the Provincial Committee of which the detenu was for some time Secretary in the District Committee implementing the policy of the Provincial Committee. A detailed reference has been made that the said Committee is in charge of the armed struggle in Telangana and that the Hyderabad District Committee were sending to Telangana area as many persons as possible to participate in the armed struggle there. It is also stated that the Hyderabad District Committee was collecting and supplying arms and ammunition for Telangana area for its struggle and that the detenu was in charge of the publications section which glorified the subversive activities of the Telangana desparadoes and tried to popularise their, armed struggle. A pamphlet styled "Vishal Andhra" was published by the detenu. There are several passages in the annexure which go to show how the Telangana subversive activities and armed fight were organized and carried on by the communists. There is a passage which says that terror must be met with counter terror. There is also the following passage:

In Telangana the stage has passed long ago for arguing whether armed guerilla warfare is the main form of struggle or not. History has proved in practice the necessity and efficiency of this method.

There is a further passage:

The weapons of the guerilla squads must ordinarily be revolver, granade, knife or short lathi or other small and easily concealable weapons.

The tasks of these town guerilla squads are to finish off notorious Government Officials who take special delight in oppressing the people, landlords who after committing untold of atrocities in the village take protection in the towns............These squads must destroy their properties, loot Government and other exploiters'' treasuries and cash etc..................The guerilla Dalams are raiding Police Stations, Army Camps, and home guards securing arms, driving Zamindars from villages and distributing land and grain. Smashing the Government machinery is our revolutionary aim. As the Police and Army Forces are used to suppress the people they should be killed whenever they are caught during encounters................The District Collector and District Superintendents of Police, Deputy Collectors and Deputy Superintendents of Police, should be invaluably put to death unless any one among them is proved to be a good man or a sympathiser.

It is alleged on behalf of the Government that the detenu was in charge of the Propaganda Section which gave publicity to the subversive activities of the Telangana desparadoes. It is also alleged that the detenu took various names and that often times he styled himself as "Amrith".

Relying upon the grounds and the extracts stated above, the learned Advocate-General argued that the Detaining Authority has rightly come to the conclusion that the detenu is likely to indulge in activities which will be prejudicial to the security of the State and maintenance of public order and that it is necessary to detain the detenu with a view to preventing him from acting in such manner. I am of the opinion that there is no reason to interefere with the order of detention based upon the said conclusions of the Detaining Authority. Whether there is sufficient material for arriving at the conclusion that the detenu is likely to indulge in prejudicial activities is a question solely to be decided by the Detaining Authority. It is not necessary that such a conclusion should be arrived at on legal proof. It is well settled that the question whether the Detaining Authority was right in view of the material before it in issuing the order of detention is not justiciable. The argument therefore of Mr. Ataur Rahman that the detenu did nothing to incite the Telangana armed struggle and that he did not go to Telangana cannot therefore be accepted. I cannot examine or comment upon the conclusions arrived at by the Detaining Authority in this respect.

In ''Santhamma v. State of Hyderabad'' reported in ILR (1951) Hyd 654, a Full Bench of this High Court held that the scope of judicial enquiry in. the proceedings challenging the order under the Preventive Detention Act is a limited one. The correctness of the statements relating to the past activities of the detenu is not justiciable. Thus, I cannot examine the past activities of the detenu as alleged by the Detaining Authority. The reason for the exclusion from judicial scrutiny is that a satisfaction under S. 3 of the Preventive Detention Act, as observed in the ruling is subjective and no Court can substitute its opinion of the material for that of the Authority and thereby hold the satisfaction to be wrongly reached. Thus, if a detenu states that the grounds alleged are false, I cannot adjudicate on the question of the correctness of the grounds. Their Lordships of the Supreme Court have taken the same view of the matter - see ''The The State of Bombay Vs. Atma Ram Sridhar Vaidya, The argument therefore that the Detaining Authority was wrong in taking into consideration the past activities of the detenu has no force.

It was next argued that the Detaining Authority cannot take notice of the activities of the detenu in the remote past. But it is alleged that the prejudicial activities of the detenu continued till the date of his arrest and detention and that he acted as a Secretary of the District Committee of the Hyderabad and Secunderabad City till the 27th January 1950 and that afterwards he was placed in charge of "Agit-Prop" Section of the said District and was functioning as such till his arrest. Thus the argument does not hold ground.

The next point for consideration is whether there was delay in communicating the grounds to the detenu. This point has not been specifically raised in the application but Mr Ataur Rahman, the learned counsel for the detenu argued that there was delay in communicating the grounds. As observed above the detenu was served with the order of detention on 23-5-1951 and the grounds were served on him on 7-6-1951. Thus, the grounds were served a fortnight after the order of detention. The Advocate-General argued that some time was necessary for preparing the grounds in view of the large volume of information available to the Detaining Authority. After reading all the grounds which cover about 13 paragraphs, I am of the opinion, that the explanation offered by the learned Advocate-General is reasonable and that the time of 14 days which elapsed between the order of detention and the furnishing of grounds is not unreasonable in view of the provisions of Art. 22, Cl. (5) of the Constitution. The time taken up in my opinion is reasonable for formulating the grounds on the material in possession of the Detaining Authority. In ''Battu Santhamma v. The State of Hyderabad'', ILR (1951) Hyd 654, already referred to a Full Bench of this High Court held that reasonable time necessary to formulate the grounds can be excluded. I am also supported in my view by the Full Bench CASE OF In Re: Pandurang Kashinath More, wherein the learned Chief justice, has observed at p. 31 as follows:

...But the time taken for the furnishing of the grounds must be a reasonable time, reasonable in the circumstances of each case, and therefore, when the Court has to consider on any particular application as to whether the time taken by the Authority in furnishing the grounds was reasonable or not, the Court must look to the particular circumstances of the case before it. It is impossible to lay down a definite and unchargeable yardstick by which the Court must judge as to whether the time taken in a particular case was reasonable or not.

In the circumstances of the case, therefore, I am of the opinion that there has been no unreasonable delay in furnishing the grounds.

The next question that falls to be decided is whether the detention order is mala fide, arising out of indirect motives and for collateral purposes. Mr. Ataur Rahman argued that the detenu was arrested on 7-5-1951 and was kept under illegal detention till the 23rd of May 1951 and was incessantly interrogated by various Police Officers and that third degree methods were used for finding out from the detenu the whereabouts of the other wanted communists who were absconding. It is argued that the real object was not to detain this detenu but to seek information from him with regard to the other communist leaders. In this connection an affidavit has been filed by the detenu stating that he was interrogated by Police Officers almost day and night regarding the whereabouts of the other members of the Communist Party. Counter affidavits have been filed by the Police Officers concerned denying the allegations of torture and the use of third degree methods as alleged in the affidavit of the detenu but admitting that the detenu was interrogated giving him sufficient facilities for his answers. The Advocate-General alleged that the detenu was arrested on the 8th of May 1951 and that on the 9-5-1951 he was produced before a City Magistrate from whom an order of remand to Police custody for 14 days was obtained. The detenu was therefore in police custody under the orders of the Court of law and the allegation that he was illegally detained by the police was incorrect. The Advocate-General further stated that the remand of the detenu to Police custody was necessary for purposes of investigation into certain matters connected with an attack by fire arms made on 29-4-1951 by some communists near Narsapet road on a party of P. W. D. Officers proceeding on duty in a Jeep and that the petitioner and four others were arrested and produced before the Fifth City Magistrate for a remand order as they were suspected to be actively connected with the supply of arms and ammunition to the Communist Dalams in the Telangana area and to be responsible for murders and other offences committed there. It was stated before us that on arrest the detenu gave out his name falsely as Amrith, S/o Niranjan, and hence he was described by that name in the application made to the Magistrate for his remand and that the petitioner during his underground life had assumed several aliases viz., Amrith, Madhoo, Riaz, Rama Rao etc., in order to conceal his identity.

It is not necessary here to decide whether the arrest of the detenu prior to the service of the detention order was lawful or whether his remand in police custody up to the 23rd of May 1951 was proper. The question to be decided in these proceedings is whether the detention of the detenu under the Preventive Detention Act is justifiable or not. If his detention is lawful and cannot be interfered with due to the order of detention dated 23-5-1951, I cannot release him even assuming that his prior detention in Police custody was unlawful. I am supported in this view by the decision of the Federal Court reported in AIR 1945 18 (Privy Council) , in which their Lordships observed that if at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no cause for detention.

But as allegations regarding the existence of the remand order were made, for my satisfaction I sent for the Magistrate who had passed the remand order with regard to this detenu and from the explanation offered by him I am satisfied that the remand order was passed by him in the due discharge of his duties as a Magistrate and that the allegations made by the learned counsel for the detenu that it was a false and fabricated order are baseless. The Faimaishnama (letter) of the First City Magistrate No. 7281 dated 22-10-1951 addressed to the counsel of the detenu stating that the Police did not submit any Taktha Mohallath (petition for remand to police custody) with regard to Maqdoom Mohiuddin or Amrith, S/o Niranjan, was issued by the Chief City Magistrate without properly and fully satisfying himself with regard to the facts. This is made further clear by the subsequent letter of the Chief City Magistrate dated 5-11-1951. From the papers which were produced before the said Magistrate it is clear that the detenu together with four other persons was arrested on the 8th of May 1951 and was produced before the said Magistrate on the 9th of May with a request that together with others he may be remanded to police custody for the purpose of investigation in connection with the Jeep firing affair.

Mr. Ataur Rahman, the learned counsel for the detenu wanted to cross-examine the Police Officers who had submitted their affidavits in support of his allegation of torture and the use of third degree methods against the detenu, but as these allegations were outside the purview of the present case, I disallowed his prayer-vide my order dated 26th October 1951.

Mr. Ataur Rahman argued that as the detenu was kept in police custody and interrogated from 8-5 to 23-5-1951 it should be presumed that the detention was for collateral purpose. He relied upon ''Talukdar Singh v. Commissioner of Police, Bombay'', ILR (1946) Bom 309, in which Bhagwati J. held that if the power to detain was used for some entirely different purpose wholly unconnected with the security of the State, under the Defence of India Rules it should be regarded as mala fide. The learned Advocate-General contends that the Government have the choice either to prosecute the person arrested or to preventively detain him and that the Government came to the conclusion that the petitioner should be preventively detained. I agree with his contention. I do not think that a case of mala fide has been made out by the petitioner. The ruling in ''Abdul Gaffur v. Emperor'', AIR 1950 Lah 49, cited by the learned counsel for the detenu is not relevant. Here the real object of arrest was to investigate the case in which certain persons fired at a Jeep car containing P. W. D. Officers and it was as a result of that suspicion the Police had arrested the petitioner and subsequently when it was felt that the petitioner should be preventively detained he was so detained. AIR 1946 36 (Lahore) has no bearing to this case. When the Police desired investigation in this case they proceeded under the provisions of Criminal Procedure and submitted a petition before the Fifth City Magistrate for the remand of the petitioner to police custody but subsequently when Government decided to preventively detain him, they dropped further criminal proceedings.

Mr. Ataur Rahman cited AIR 1945 8 (Nagpur) in which it was held that it is the duty of the Crown to place all the facts frankly before the High Court to enable the Court to arrive at a conclusion on the issue raised. The Advocate-General contends that the Government have frankly and candidly placed all the facts and details as mentioned in the annexure. I do not see how this ruling helps the petitioner. From the facts placed before me by the Government it is clear that subversive activities intended to overthrow the Government and to murder its officials and also to murder citizens in the Telangana are alleged and the Government suspects that the petitioner is connected with such activities. I therefore cannot accept the plea of mala fide advanced by the learned Counsel for the petitioner.

Mr. Ataur Rahman stated that the elections are approaching and the petitioner being a top ranking communist wishes to contest in the elections, so he may be released. He argued that on a similar occasion the Madras High Court accepted an undertaking by three communists and released them on their statement that they would not take any partin subversive activities or in activities prejudicial to the security of the State. He maintained that the petitioner had severed his connections with the Telangana subversive activities though admittedly before the Police Action he had such connection and that the petitioner was ready to give an undertaking that he would abide by the law and will not take recourse to violent activities. I asked the Counsel as to what was the guarantee that after giving the undertaking and obtaining his release the detenu would not indulge in activities prejudicial to the public order and security of the State to which he, replied that it was the duty of the Police and the Government to keep a watch upon him and prohibit him from indulging in such activities. The Advocate-General contended that it will be very difficult for the Government to "shadow" or watch the petitioner after his release, that he is likely to go underground and take various names and there will be difficulty of identifying him. From the manner in which the proposal for giving an undertaking was mooted, I am not satisfied that there was any genuine change of heart of the petitioner. Moreover, Government have a choice in such cases and the law allows it to preventively detain a person whose activities are likely to be prejudicial to the public order. I do not see any reason to interfere with the discretion of the Government in this case.

Mr. Ataur Rahman next argued that the ban on the communist party in Hyderabad is ultra vires. The Advocate-General contended that the petitioner was not detained because of the ban against the communist party and his being a member of that party, but that he was detained because of his violent activities which are likely to be prejudicial to the security of the State. From the facts of the case, I am of the opinion that it is not necessary to decide in this case whether or how far the ban imposed by Government against the communist party of Hyderabad is valid. It is a constitutional question concerning the validity of the Hyderabad Public Security Act and as the decision of that question is not necessary for the disposal of this case, I do not wish to express any opinion in that matter. As a general rule, I should desist from expressing any opinion on constitutional matters unless it is absolutely necessary for the decision of the case. Cooly in his Constitutional Limitations, Vol. I, pages 338 and 339 has expressed the same view in the following words:

In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record also presents some other and clear ground upon which the Court may rest its judgment, and thereby render the constitutional questions immaterial to the case, that course will be adopted and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.

In conclusion, I am of the opinion that there is no reason to interfere with the order of detention in this case and the petition of the detenu is therefore dismissed.

SRINIVASACHARI, J. : This application is under Article 226 of the Constitution of India praying for the release of one Maqdoom Mohiuddin who has been detained under the Preventive Detention Act. The applicant has prayed for his release and has also asked for other reliefs, viz., (a) That the ban imposed by the Government on the communist party be declared as illegal and unconstitutional; and (b) To issue a writ of Mandamus directing the Government of Hyderabad to revoke its order banning the Communist Party. After the application was presented in this Court an affidavit was filed by the petitioner setting out in detail as to when he was arrested and when the order of detention was served on him. In this affidavit the petitioner sought to bring to the notice of the Court that he was kept in police custody illegally for a period of 16 days alter his arrest, and that, after the lapse of 16 days the order of detention, which is now being impugned was served on him. The petitioner averred that during this period of sixteen days the police interrogated him and tried to elicit from him information about the activities, of the communist party. He made an allegation against the police that during this interrogation they resorted to third degree methods and subjected him to ill-treatment with a view to be able to get from him all available information about the communist organisation. Oh the above allegations the petitioner contended that the order of detention was mala fide and passed for a collateral purpose. These allegations were categorically denied by the police officers who were incharge of this case in the counter-affidavits filed by them. At this stage the counsel for the applicant applied to this Court that orders be passed that the deponents of the counter-affidavits be tendered for cross-examination. This was opposed by the Advocate-General and the matter having been argued before us we passed an order on 26th October 1951 holding that we were not satisfied that this was a fit case where the deponents of the counter-affidavits could be tendered for cross-examination by the applicant.

After this we heard the arguments of the Counsel for the petitioner & the Advocate-General for the Government on the merits of the application for the issue of a writ of Habeas Corpus and the application having been posted for final orders to this day, the following order is passed.

The main points which were urged before us by the learned Counsel for the petitioner are:

(a) That this order was improper because it was passed with an ulterior motive and there has been a misuse of the power vested in the executive under the Preventive Detention Act;

(b) That the grounds set forth were not sufficient in law to justify an order of detention;

(c) That even if it be conceded for the sake of argument that the petitioner participated in the activities of the Communist Party some time before, he had nothing to do with the activities which are said to be going on in Telangana because he was always in Hyderabad, & that the objectionable conduct, if any, in the remote past, could not be a ground for detaining him at this stage.

(d) It was also urged that the order of the Government imposing a ban on the Communist Party and declaring it to be an unlawful organisation was ultra vires and could no longer stand as that offended Article 19 (c) of the Constitution of India.

It has to be observed at the outset that the right of a petition for Habeas Corpus is a high prerogative right and is a constitutional remedy for all manner of illegal confinement. This is one of the most fundamental rights known to the Constitution but it does yield to another matter namely the safety of the State and its people.

When nothing else is known a mere membership of the Communist Party, if it has not been declared an unlawful body, would not attract the provisions of the Preventive Detention Act. In all Democratic States it is essential that the citizens should be made conversant with the pros and cons of every political system and every political ideology, and so long as a party organisation merely tries to place its own views before the people it does not matter and a Court cannot in such a case interfere with the activities of that party as long as they are confined to the limits mentioned above. The broadcasting and the preaching of the philosophy and the ideology of a party like the Communist Party would not justify an interference by the Government with the activities of that organisation but once such an organisation in attempting to achieve its object has recourse to activities of a violent nature resulting in danger to public safety, the Government would step in to stop the organisation from carrying on its activities. Spread of disaffection against a party Government cannot be regarded as amounting to interference with the maintenance of public order in a Democratic Government because it is the right of every citizen to criticise about the existing Government and bring into disrepute the existing Government if he believes that the Government is acting against the interests of the public at large. This right of the citizen is always subject to this condition that the criticism does not transgress the limits of public order or that disaffection does not spread as to result in violence or that the disaffection does not develop into recourse to unlawful methods rendering unsafe security of life and property. Where, therefore, members forming part of an organisation are known to indulge in acts of violence and brutality and a person is a member of such organisation, it is sufficient to raise a suspicion in the mind of the Government that if such person were allowed to be at large, he is likely to act in a manner prejudicial to the safety of the public. I am fortified in this view by the observations of Patanjali Sastri, J., in the case of ''Machindra Shivji v. The King''. AIR 1950 FC 129, wherein His Lordship observed: "If the applicant was a member of Communist Party which itself was indulging in unlawful and subversive activities, that by itself would be sufficient for the Government to conclude that to allow him to be at large would be prejudicial to the maintenance of public order." In the Hyderabad State, however, this body has been declared an unlawful organisation by means of a notification of the 25th September 1948, issued under the Public Security Act. It is admitted that the applicant is a member of the organisation and can be regarded as one of the top ranking communists. In order to warrant action being taken under the Preventive Detention Act, it is necessary that there should be sufficient material to satisfy the Government that the person was actively fomenting and inciting violence and instigating people to resort to subversive activities.

There was an order of arrest against the applicant under the Defence of Hyderabad Regulation which made a reference to the ban imposed on the Communist Party and the applicant could not be traced till the date on which he was actually arrested. When he was arrested there were recovered from his possession certain documents, extracts of which have been filed before us as annexures to the counter and counter-affidavits filed on behalf of the Government. These documents appear to be a chronicle of the activities of the Communist Party of which the petitioner admittedly is one of the leaders and is the brain behind it. The documents throw a flood of light on the varied activities of the members of the Communist Party and it is evident from these documents that the applicant took no small part in the activities of the organisation. He was the secretary of the District Committee and the activities as appear from the documents are far from being peaceful. These various activities referred to in these documents can. never be regarded as being consistent with peaceful methods adopted by the organisation. The documents go to show that the District Committee was collecting and supplying arms and ammunition. They further show that the District Committee took control of the Telangana armed fight. The documents also indicate that the applicant was in Warangal with a Guerilla Squad, and that he used to receive instructions as to what action was to be taken. Therefore these documents do clearly lay the foundation for the Government to conclude that the petitioner is not merely a passive member of the Communist Organisation but an active participant in its various subversive activities.

The state of mind of a person who makes an order is pre-eminently a fact within his knowledge and if on the material before him he comes to the conclusion that he is satisfied that if the detenu were allowed to be at large there was every likelihood of his inciting innocent people to resort to violence, he would be justified in restraining the activities of the man by an order of detention. It is settled law that the satisfaction with regard to the rebellious propensities of a person is a matter left to the detaining authority and the Court cannot substitute its own opinion or judgment in place of the opinion of the detaining authority. It is a matter for subjective decision and can never be subjected to an objective test. The satisfaction that is expected is of the executive as it is the executive which is entrusted with the duty of maintaining peace and order.

In the course of his arguments, Shri Ataur Rahman, the learned Counsel for the applicant, made a point that the whole proceedings from the start to the finish were all illegal, that his client was never produced before the Magistrate, that the Magistrate''s order purporting to remand the applicant to custody was a faked one and that the order of detention also was mala fide.

In so far as the first contention is concerned it must be pointed out that there is always a presumption of the correctness of an order of a Court. The maxim ''Omnia Acta Rite Esse Praesumunter'' would apply and unless it is proved that what purports to be the order was not actually passed by the authority, the Court will presume the document to be a genuine one. In this connection we sent for the Magistrate, who passed the order, and he assured us that the remand order of the 9th May 1951, produced before us, was passed by him and that he remanded ''Amruth'' to custody by that order. The learned Counsel admits that Amruth is an alias for Maqdoom Mohiuddin, the petitioner. We see no reason to doubt the statement of the Magistrate in this regard. No doubt if a case of mistaken identity had been set up and established then the matter would be different, for one of the essential matters which the Court would look into when an application for a writ of Habeas Corpus is before it, is whether the person detained is the person intended to be detained, as was observed by Rajamannar, Chief Justice, in the case of ''Narayanaswami v. Inspector of Police'', AIR 1949 Mad 307. The Chief Justice said:

What then is the residum �������..when there is a mistake of identity.

What then is the residum of power and jurisdiction of the Court. It is the power to interfere and set at liberty a person who is being detained by an order which though purporting to be made under............is not in fact such an order. This will be so in the following circumstances: (a) when the order is not duly authenticated................(b) when the person detained in pursuance of the order is not the person intended to be detained, that is to say, when there is a mistake of identity."

I do not think that the applicant in this case has been able to satisfy the Court that either there has been a mistake in identity or that the order was wrong EX-FACIE.

It is accepted on all hands that in dealing with applications for the issue of a writ of Habeas Corpus, the Court can in a proper case consider and determine the question whether there has been an abuse of the power vested in it under the law. No hard and fast rule can be laid down by which this question can be decided. The petitioner has to satisfy the Court that there has been in fact a misuse of the powers vested in the executive. The Legislature has given the power to detention of a person to the executive and that power can be exercised by the executive subject to the restrictions imposed and under the conditions laid down in the Act. If an authority comes to a particular conclusion on the material placed before it and passes an order of detention, the Court will presume that the action was validly and properly taken; and it would be upon the applicant who alleges fraud or malice (malice in taw) to establish as a fact such fraud or malice. It was observed by Spens, Chief Justice of India, in the case of ''Emperor v. Shibnath Banerjee'', AIR 1944 F C R 1:

It is not sufficient merely to allege that the detention is not in good faith or bona fide or anything of that sort. Facts have got to be alleged by the detenu sufficiently to pursuade the Court that although the order ex facie indicates that everything that should have been done has been properly done, it is entitled or it is proper for the Court to call upon the executive further to justify what is expressed to have been done in the order.

Similar were the observations of Lord Wright in the celebrated ''Green v. Secretary of State For Home Affairs'', (1942 A C 284. Sweeping assertions in the affidavit without materials or sources of information with regard to the allegations made in the affidavit cannot be taken into consideration.

The question that the Applicant was arrested as early as 7th of May 1951, according to the applicant, and the 8th of May 1951, according to the Government, and that the order of detention was passed long after the arrest was made is immaterial. What the Court has to consider is whether the order of detention which is now being impugned has been validly made. The Court would consider in this application of his for a writ of Habeas Corpus, whether the order was passed on sufficient grounds. It may also be stated here that the mere fact that he was arrested first under the provisions of some other Law and later detained under the Preventive Detention Act would not make the detention order mala fide.

A point was made by the learned counsel for the applicant that even if the applicant could be regarded as having associated himself with the communists in Telangana he resigned his job and confined himself to Headquarters, that is Hyderabad; and as such his antecedent conduct even it be objectionable could not be taken note of when passing an order of detention. I am afraid I cannot agree with this contention. The past conduct or the antecedents of the person detained would always afford sufficient data in order to Judge about the propensities and the criminal proclivities of the detenu. They cannot necessarily be ignored. They may be safe criteria for determining about his propensities and likely future activities. In this connection the observations of the Chief Justice of India, in the famous case of ''A. K. GOPALAN'' would be in point. His Lordship observed:

Mere existence of obnoxious antecedent assignable to a person carried with it susceptibilities or propensities of habitual indulgence in recurrence of similar conduct in future.

''A. K. Gopalan v. The State of Madras'', 1950 S C R 88. Hence it is that the necessity for prevention of adoption of preventive measures arises. The order being one for preventive detention the executive is entitled to draw an inference from the past acts of the detenu.

The Preventive Detention Act gives the detaining authority plenary discretion to make an order of detention, if according to his judgment, he has a reasonable cause to believe that the applicant as a member of a hostile association should not be allowed to be at large and that it is imminent that in the interests of the safety of the State he should exercise control over his activities. That being so the order of detention cannot be interfered with.

I am in agreement with my learned brother that in the view that we have taken about the actual order of detention it is needless for us to go into the question raised by the learned counsel for the applicant that the order of the Government imposing a ban on the Communist Party is ultra vires and it can no longer be allowed to stand as it clearly offends Art. 19 (c) of the Constitution of India. Is it obligatory that we should decide and give our finding on this question. The celebrated author Cooley in his Book on ''Cooley''s Constitutional Limitations'' has very well explained under what circumstances a legislative enactment may be declared unconstitutional. He says that the task is a delicate one and must be entered upon with reluctance and hesitation. He goes on to say:

It is a solemn act in any case to declare that that body of men to whom the people have committed the sovereign function of making laws............. have deliberately disregarded the limitations imposed upon this delegated authority.

Cooley says that the Courts cannot properly decline to express an opinion as regards the unconstitutionality of an enactment. There is no constitutional obligation but it is only a rule of propriety and each Court will regulate in its discretion the practice to be followed. He further says: ''While Courts cannot shun the discretion of constitutional questions they will not go out of their way to find such topics''. The wholesome rule enunciated by Cooley is to the following effect: In any case where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record presents some other clear grounds upon which the Court may rest its judgment and thereby render the constitutional question immaterial to the case, that course will be adopted. When we have come to the conclusion that this order of detention has been made because of the participation of the detenu in acts of violence prejudicial to the security of state and not merely because he happened to be a member of the illegal Association, we do not think, we are called upon to decide that question in this case.

I am of opinion that the order of detention has been made on sufficient grounds, that no mala fides on the part of the executive have been established by the applicant and that therefore this application is therefore, dismissed.

I must state that the applicant''s counsel argued the case thoroughly referring to all the aspects of the case.