M.R.S. Mani vs The District Magistrate and the Superintendent, Central Jail

Satyanarayana Rao J.

Crl. M.P. No. 190 of 1949. This and the connected petitions u/s 491 of the Criminal Procedure Code were heard together as they raise

common questions of law under the Madras Maintenance of Public Order Act, 1 of 1947.

The facts and the contentions peculiar to the other petitions will be dealt with separately. u/s 2(1)(a) of the Act the District Magistrate, Madura,

passed an order of detention, dated 1st April, 1948, and the applicant was arrested on the same day. He was kept in police custody at Madura till

the 3rd April, when he was removed to the Central Jail, Vellore. The grounds of detention were communicated to the applicant on 24th April,

1948, and he submitted his explanation on the 10th May, 1948. The Government referred the matter to the Advisory Council on 14th February,

1949 and the matter is still pending with it. This application was filed on 18th January, 1949, and till now no final order was passed by the

Government u/s 3(5) of the Act.

Mr. N.S. Mani, the learned Counsel for the applicant, raised two contentions: firstly that the order of detention was void ab initio and not bona

fide as the grounds now communicated to the detenu would not justify the order; secondly it was argued that as Government had failed to comply

with the mandatory provisions required to be carried out after the order of detention u/s 2(1) was passed the continuance of the detention of the

applicant is, in any event, illegal.

The first of these contentions may be disposed of shortly. The order of detention passed by the District Magistrate who was empowered u/s 15

of the Act to take action under the Act states that he was satisfied that the applicant was acting in a manner prejudicial to the public safety and that

with a view to prevent him from so doing, it is necessary to detain him. The satsifaction of the detaining authority is a condition precedent for the

order of detention. An order which is legal on the face of it is presumed to have been legally made and the jurisdiction of this Court to go into the

validity of such an order was considered by the Full Bench in G. Narayanaswami Naidu and Others Vs. The Inspector of Police, . The Full Bench

judgment was based upon an elaborate consideration of the decisions of the Courts in England and in India bearing upon the question, particularly

the decisions of the House of Lords in Liversidge v. Sir John Anderson (1942) A.C. 206 and Greene v. Secretary of State for Home Affairs

(1942) A.C. 284. The learned Chief Justice after examining the authorities formulated under four heads the limitations within which this Court could

interfere in the exercise of its jurisdiction u/s 491 of the Code of Criminal Procedure with orders made u/s 2 of the Act. They are:

(1) when the order is not duly authenticated, as for example, when it is passed by an officer or authority not empowered u/s 15 of the Act;

(2) 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:

(3) when there is lack of bona fides; and

(4) when it is established that the essential requirements of Section 2, namely, the satisfaction of the Provincial Government or an officer or

authority empowered u/s 15 with respect to the particular person that he is acting or about to act in any manner prejudical to the public safety or

the maintenance of public order and with a view to preventing him it is necessary to direct him to be detained or otherwise dealt with u/s 2(1) of the

Act, is not present. If it is established that neither the Provincial Government nor the officer or other authority empowered u/s 15 has exercised its

or his mind on the material placed before it or him, then an order of detention though purporting to be passed u/s a (1) must be deemed to be not

an order u/s 2.

The other learned Judges also agreed with this view. u/s 2 of the Act, the satisfaction of the detaining authority is a subjective state of mind and not

an objective fact. It is not open to the Court to go into the question whether the detaining authority could or could not be so satisfied on the

grounds subsequently disclosed to the detenu, nor is it open to the Court to compel the Government or the detaining authority to disclose the facts

or the material or the grounds on the basis of which the order was made. There is, however, a duty cast upon the Executive Government u/s 3 of

the Act to disclose the grounds. But so far as the satisfaction is concerned, it is the satisfaction of the Provincial Government or of the empowered

authority, as the case may be, and not that of the Court. In the words of the learned Chief Justice in the Full Bench:

If these grounds do not exist, it is well established on the highest authority that this Court cannot investigate the sufficiency of the material or the

reasonableness of the grounds upon which the Government or the empowered officer or authority had been satisfied. It is not competent for this

Court to call upon the Government or the detaining authority to disclose the information and material on which it or he was satisfied as to the

necessity for the detention of the person concerned. The satisfaction required by the section is the satisfaction of the Government or the

empowered authority and not the satisfaction of this Court. There is no question of fact which can be submitted to this Court in this matter. This

position was fairly conceded by learned Counsel appearing on behalf of the petitioners.

Govindarajachari, J., the other learned Judge, expressed the same view at page 36 as follows:

Negatively it can be said that the sufficiency of the available material or information to justify the order of detention and the question whether the

officer concerned could be said to have reasonable grounds for the issue of the order in question are not matters which are within the cognisance of

the Court. The satisfaction is the satisfaction of the officer. He is the sole judge and once the conclusion is reached that he was satisfied the detenu

cannot invite the Court to go behind it and dissect the reasons which weighed with the officer and find out for itself whether the order should have

been issued. While the satisfaction of a properly constituted authority is a condition precedent to the issue of an order of detention, whether

circumstances called for the issue of such an order is a matter entirely for its consideration and nobody else''s.

Govinda Menon, J., also was of the same opinion. The learned Judge states at page 49:

It is not open to the Court to find out whether the grounds on which the Provincial Government is satisfied are sufficient. Different standards of

satisfaction are likely to exist in the case of different individuals even if the society were ideal. In the society as it is constituted to-day, we cannot

expect the same standard in every individual, so that if the executive authority states bona fide that it is satsified, this Court cannot say that it is not a

proper or valid satisfaction.

The same view was also taken by the other High Courts construing similar provision in the Public Safety Acts in the respective Provinces.

It was argued that if the grounds disclosed are such as would not justify in the opinion of the Court, the conclusion that the detenu was acting or

was about to act in a manner prejudicial to public safety or the maintenance of public order, then, the inference should be drawn that the order was

not bona fide and that this Court would have the jurisdiction to interfere in such a case under category (3) referred to by the learned Chief Justice

in the judgment of the Full Bench. Even if the grounds do not warrant the making of an order u/s 2 of the Act, and the decision of the authority

concerned that it was so satisfied is erroneous, it cannot be inferred that either the Provincial Government or the detaining authority were actuated

by malice in making the order and that therefore it is mala fide. A judgment, however erroneous it may be, cannot be held to be a mala fide

judgment. The discretion under the section of passing an order of detention if the condition is satisfied is vested in the authority concerned and it

cannot be questioned.

It was contended on behalf of the applicant that the Full Bench while laying down that the satisfaction cannot be questioned and canvassed in a

proceeding u/s 491, Criminal Procedure Code, placed no limit on the grounds open for consideration by the detaining authority and that to take an

extreme case, if a man was detained u/s 2(1) of the Act on the ground that his nose was long, it would not be open to this Court to consider the

legality of the order of detention. This contention, no doubt, has considerable force, but, in my opinion, there is a limit and a clear line of

demarcation regarding the grounds which are open for consideration by the detaining authority and the Full Bench was not called upon to consider

and lay down the limits of that demarcation. It must be remembered that the power of the Provincial Legislature to enact a law of the kind now

under consideration is derived under item 1, list II (Provincial Legislative List) of the Government of India Act, 1935, which is as follows:

Public order (but not excluding the use of His Majesty''s naval, military or air forces in aid of the civil power) ; the administration of justice

;constitution and organisation of all Courts, except the Federal Court, and fees taken therein; preventive detention for reasons connected with the

maintenance of public order; persons subject to such detention. (The italics are mine).

The power to legislate is for preventive detention for reasons connected with the maintenance of public order, and the preamble of the Act

(Madras Act 1 of 1947) states:

Whereas for the maintenance of public safety and to prevent and put down disorders involving menace to the peace and tranquility of the Province,

it is necessary to provide for preventive detention, imposition of collective fines, etc., etc., it is hereby enacted as follows.

The power conferred on the Legislature and the preamble to the Act make it clear that the object of the Legislature is preventive detention and the

basis on which the order for detention is made is that a particular person is acting or about to act and after the amendment of 1948, or is likely to

act, in a manner prejudicial to the public safety or the maintenance of public order and that therefore with a view to prevent him from so acting, it is

necessary to make an order of detention. The acts which justify an order of detention under the Act are acts which are prejudicial to the public

safety or the maintenance of public order. The person sought to be detained must be one who is either acting in such a manner or is about to act in

such a manner or is likely to act in such a manner. The limitations, therefore, on the grounds that are open to the detaining authority for

consideration and are permissible are the acts which are prejudicial to public safety and the maintenance of public order. The grounds, therefore,

must be grounds which lead to the inference that the person concerned is acting or is about to act or is likely to act in a manner prejudicial to public

safety or the maintenance of public order. If the grounds, therefore, are not within the ambit of the Act, the order cannot be justified. The Full

Bench G. Narayanaswami Naidu and Others Vs. The Inspector of Police, had not to consider and was not called upon to consider to what extent

the acts of a person are permissible and can be taken into consideration u/s 2 of the Act by the authority concerned. The illustration that is given in

the course of the argument by the learned Advocate of a person having a long nose and detained on that account u/s 2(1) of the Act would be an

instance of a ground which is entirely outside the purview of the Act and an order of detention based upon material which is not within the ambit of

the Act would be wholly illegal. Of course, as pointed out by the Full Bench of the Bombay High Court in In Re: Rajdhar Kalu Patil, , if the

grounds disclosed contain grounds, some within the ambit of the Act, and some outside it, the order of detention would be vitiated, wholly as in

that event, it would be impossible to say which of the grounds and to what extent the detaining authority was influenced by acts outside the Act in

making the order of detention. If, however, some of the grounds are good and some are vague and indefinite and uncertain, the grounds which are

uncertain and vague may be ignored and may be treated as non-existing, and the order of detention can be justified on the grounds which are

definite and certain. This is also the view expressed by Chagla, O.C.J., in the Full Bench of the Bombay High Court. In my opinion, that decision

affords a clear line of a demarcation between grounds which are permissible under the Act and the grounds which are not permissible under it in

making an order of detention u/s 2 of the Act. In dealing with the several petitions now before us, we have to bear these principles in mind in

arriving at a correct decision.

It was also argued on behalf of the applicant that it will be open to us to go behind the Full Bench judgment and reconsider the position whether

there is justification for the view expressed by the Full Bench that the satisfaction of the detaining authority cannot be canvassed in a proceeding u/s

491, Criminal Procedure Code. No reasons are given in support of this extreme contention except inviting us to reconsider the authorities relied on

in the judgment of the Full Bench G. Narayanaswami Naidu and Others Vs. The Inspector of Police, and I see no reason to accede to this request.

The decision of the Full Bench is clear and was based, if I may say so with respect, upon a careful consideration of all the authorities bearing on the

question and it will be, in my opinion, an unnecessary waste of time to reconsider it.

The effect of non-compliance of the Executive Government with the various steps laid down under the Act, after the order of detention u/s 2

was passed till the stage of a final order u/s 3(5) on the legality of the continuance of the detention is a more difficult question. The Full Bench was

concerned only with the original order of detention u/s 2. This was made clear in the judgment of Govindarajachari, J., at page 31 of the Madras

Law Journal report. The learned Judge observed:

The challenge in every one of the cases involved in the batch of applications before us is a challenge against the order of detention itself and not that

even if the order was valid at its inception the continuance of the detention has become illegal or improper in view of what happened subsequently

or by reason of what the Government subsequently did or failed to do. I say this merely to guard myself against being understood as having

decided anything more than what is strictly required by the applications under consideration.

The Full Bench judgment, therefore, does not hold us in deciding this difficult question.

The object of the Act, as stated already, is preventive detention and not punishment. The preliminary step under the Act is an order of

detention u/s 2(1) which is conditional on the satisfaction of the detaining authority. The final step contemplated by the Act is the passing of the

order by the Provincial Government u/s 3(5) of the Act. While the order u/s 2 may be passed either by the Provincial Government or by an officer

or authority to whom the power was delegated u/s 15 of the Act, the subsequent steps should be taken and the final order itself should be passed

by the Provincial Government. The officer or authority empowered u/s 15 after making an order of detention u/s 2(1) has forthwith to report the

fact to the Provincial Government together with the grounds on which the order was made, along with such other particulars as will have a bearing

on the order [Section 2(2)]. After this, the officer, or authority empowered u/s 15 has no statutory function to discharge. The next step after the

order of detention was made, is provided by Section 3(1). Under it, the Provincial Government has to communicate to the person affected by the

order

so far as such communication can be made without disclosing the facts which they consider it would be against the public interest to disclose,

grounds on which the order has been made against him and such other particulars as are in their opinion sufficient to enable him to make, if he

wishes a representation against the order.

There is no time-limit fixed under the Act for the Provincial Government to communicate this information. After the receipt of the grounds, the

person detained has got the right to make a representation to the Government and that very section enjoins upon the Provincial Government to

inform the person of his right to make such a representation and also to afford him an opportunity of doing so. After the representation is received,

the next step is, the Provincial Government has to place the matter before the Advisory Council constituted under the Act. The Advisory Council,

thereafter, after considering the material placed before it and after calling for such further information from the Provincial Government or from the

person concerned has to submit a report to the Provincial Government, and after the receipt of that report, the final step is, the Provincial

Government has to pass an order u/s 3(5) either confirming or modifying or cancelling the order made under Sub-section (1) of Section 2. u/s 4,

the order of detention continues in force for a period of six months from the date on which the final order u/s 3(5) was passed by the Provincial

Government. But, of course, it is open to the Provincial Government to release the detenu even before the expiry of the period of six months. For

taking the various steps above described, no time-limit is fixed under the Act. It must be remembered that the Act, interfered with the liberty of the

subject without any trial and without any other remedy by way of appeal or otherwise to any other authority except the restricted and limited right

of making a representation to the Government and through it to the Advisory Council whose opinion, however, is not binding on the Government.

This restricted right of representation, therefore, should ''not be still further curtailed by non-observance of any of the steps laid down by the Act.

We have instances in which a final order u/s 3(5) was not passed by the Provincial Government, even though the detention has continued in force

for more than several months, in some cases nearly a year. The result of this is :if ultimately the Government were to decide after considering the

representations made by the detenu that the person should be set at liberty, such person would have unjustly been deprived of his liberty for no

fault of his. Even if the Government were to decide that the original order of detention should be confirmed u/s 3(5), the result even in such a case

would be that while the Government would be entitled to keep him in custody for a period of six months only from the date of the final order, by

reason of the delay on the part of the Provincial Government in taking the steps contemplated by the Act, his detention would be unnecessarily,

and perhaps unjustly, prolonged which is contrary to the spirit of the Act.

It is therefore necessary to consider to what extent the provisions of the Ac enjoining the Provincial Government to take certain steps are

mandatory and whether if those provisions were not observed properly by the Provincial Government, the continuance of the detention would

become illegal or improper within the meaning of Section 491 of the Code of Criminal Procedure. There is no time-limit fixed by the Act for either

communicating the particulars and grounds u/s 3(1) or for referring the matter to the Advisory Council after the representation of the detenu is

received, or even to pass a final order u/s 3(5) after the report of the Advisory Council is received. The absence of the time-limit is probably

responsible for the inordinate delay we have noticed in some of these petitions on the part of the Government in taking the steps. It is an accepted

rule of construction of a statute, that where no time-limit is fixed for the doing of an Act enjoined by it, the act should be performed within a

reasonable time and it is unnecessary to consider the authorities in support of this, rule of construction and it would be sufficient to refer to the Full

Bench decision of the Patna High Court in Murat Patwa Vs. Province of Bihar, In the petitions before us, there is no complaint of unreasonable

delay in furnishing the grounds u/s 3(1). We may however observe that the question was considered by Subba Rao and Mack, JJ., in M. R.

Venkataraman Vs. The Commissioner of Police and Another, , in which the question that arose for consideration was the effect of the delay

caused by the detaining authority in communicating to the Provincial Government the grounds of detention u/s 2(2) of the Act. The learned Judges

held that the subsequent non-compliance with the provisions of the Act after an order of detention u/s 2(1) was made, would not affect the legality

of the original order of detention and would not make it ab initio void. They were also of opinion that the delay in communicating the grounds u/s

2(2) would not even affect the further detention, In dealing with the contention that by reason of the non-observance of the subsequent provisions

of Section 2(2), the continuance of detention became illegal, Subba Rao, J., observed at page 92:

This argument ignores the distinction between the order of detention and the procedure prescribed for enabling the aggrieved party to seek

redress. The petitioner, as we found, was legally detained u/s 2(1) of Madras Act I of 1947. u/s 4 of the Act this order of detention shall be in

force for six months from the date on which it is confirmed or modified under Sub-section (5) of Section 3. If the authority concerned did not carry

out his statutory duties, the petitioner could have taken the appropriate remedy to compel him to perform his duty. He may have other remedies if

he was prejudiced by the breach of a statutory duty by the authority concerned. But in our view the non-compliance with the provision of Sub-

section (2) to Section 2 could not make the detention illegal. In any view as the order was communicated to the Government and the grounds for

detention were duly served on the petitioner it would be impossible to hold that the detention of the petitioner at present is invalid.

The question of the effect of the delay in communicating the grounds to the Provincial Government u/s 2(2) by the detaining authority does not

directly arise for consideration before us. We are, however, unable to see what remedy a person would have to compel the detaining authority to

perform the statutory duty of communicating the grounds u/s 2(2). If the authority concerned is outside the original jurisdiction of the High Court,

even a Mandamus would not lie. It is difficult to see what other remedies a person in such a situation would have if there was a clear breach of a

statutory duty by the authority concerned. The man was deprived of his liberty, was in jail and there is no means of enforcing the statutory

obligation to communicate the grounds u/s 2(2) to the Provincial Government. The question came up for consideration before a Full Bench of the

Patna High Court in which the delay complained of was the delay in communicating the grounds u/s 4 of the Bihar Maintenance of Public Order

Act corresponding to Section 3 of the Madras Act. If the grounds of detention were not communicated to the detenu within a reasonable time and

there is no acceptable explanation for the delay, the further detention becomes illegal. If the complaint before us in the petitions now under

consideration was one of delay in communicating the grounds u/s 2(2) or in communicating the grounds u/s 3(1), in the light of the decision of the

Full Bench of the Patna High Court, the decision in M. R. Venkataraman Vs. The Commissioner of Police and Another, , in my view, would

require reconsideration and would have necessitated a reference to a Full Bench for an authoritative decision on the point. But as the objection

before us is of a different nature, it is unnecessary to follow such a course.

The main ground of complaint before us in the several petitions is that the Provincial Government failed to carry out the duty of communicating

to the detenu the grounds on which the order has been made, and such other particulars as are, in their opinion, sufficient to enable the detenu to

make an effective representation to the Government. The contention is that the grounds are vague, indefinite and uncertain and that no particulars

were given in any of the cases. As the detenu was not placed by the Executive Government in a position of making an effective representation to

Government, he was deprived of the usefulness of the only remedy that is open to him under the Act to prove to the satisfaction of the Government

and the Advisory Council that he was not guilty of any of the activities attributed to him. The relevant provision of Section 3(1) is:

Where an order in respect of any person is made by the Provincial Government under Sub-section (1) of Section 2 or where any such order is

made by any officer or authority subordinate to them, after receipt of the report specified in Sub-section (2) of that section, the Provincial

Government shall communicate to the person affected by the order, so far as such communication can be made without disclosing the facts which

they consider it would be against the public interest to disclose, the grounds on which the order has been made against him and such other

particulars as are in their opinion sufficient to enable him to make, if he wishes, a representation against the order.

This provision is mandatory and imposes on the Provincial Government a duty of communicating to the detenu the grounds on which the order was

made. So far as the grounds are concerned, there is no power under the Act to withhold any of the grounds, as the grounds to be communicated

are the grounds on which the order has been made which implies that all the grounds should be communicated to the detenu. So far as the facts are

concerned, it is no doubt left to the Provincial Government to consider whether all the facts should be disclosed to the detenu or only some of

them. They are not bound to disclose all the facts if they consider that such a disclosure would be against public interest. The Act makes a

distinction between facts, grounds and particulars. While all the grounds have to be communicated and such facts as would not endanger public

interest alone could be disclosed, so far as the particulars are concerned, the Government are to communicate to the detenu so much of the

particulars as would be sufficient in their opinion to enable the detenu to make a representation against the order. The Provincial Government,

therefore, has to decide whether the particulars given and disclosed would be, sufficient to enable the detenu to make a representation against the

order. If the grounds are vague and uncertain, it would be open to the Government to supplement them by giving particulars to enable the person

concerned to make a proper representation. If the grounds communicated are vague and uncertain, and no particulars are given, does the non-

observance of the rule make the further detention illegal or improper?

Under the Act the liberty of the subject is curtailed without trial by Courts established by law and the only safeguard provided by the Act for

the detenu is the right to make a representation to the Advisory Council through the Provincial Government. This right is a substitute for a trial

under ordinary law. In order to enable the detenu to present his case properly he should know the grounds and the particulars of the grounds on

the basis of which an order for detention is made u/s 2(1). The duty of providing this information was laid by the Act on the Provincial

Government. The power conferred upon the Provincial Government of curtailing the liberty of the subject by the Act should, in my opinion, be

exercised subject to the conditions and limitations imposed by the Act. It is the function of the Court to see whether the conditions laid down by

the statute are properly carried out or not. If they are not duly observed and fulfilled, the very foundation of the power to continue to detain the

person comes to an end and the further detention becomes illegal. If the grounds furnished are no grounds at all in the sense that they convey no

information to the person detained, or even if they are grounds outside the purview of the Act, the continuance of the detention cannot be justified.

It may not be necessary that the Provincial Government should furnish legal evidence or proof of the accusations against the detenu, as in cases

where he is charged with a crime, but the information furnished must be such which enables the detenu to present his case effectively.

In Dale''s case (1881) 6 Q.B.D. 376 dealing with an application for a writ of habeas corpus, the rule requiring the observance of the steps laid

down by law and its effect upon the detained person is stated thus by Brett, L.J., (page 461):

It is a general rule, which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another he must

take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the Court

will not allow the imprisonment to continue.

And again, at page 463:

I desire to state that, although in this case I consider that irregularity a matter of substance, I should be of the same opinion if it were only a matter

of form, because, as I said before, I take it to be a general rule that the Courts at Westminster will not allow any individual in this kingdom to

procure the imprisonment of another, unless he takes care to follow with extreme precision every form and every step in the process which is to

procure that imprisonment. I consider this to be a wholesome and good rule, and to be in accordance with the great desire which English Courts

have always had to protect the liberty of every one of her Majesty''s subjects.

Cotton, L.J., in the same case concurred with Brett, L.J., and stated the rule in his own words as follows (at 469):

I quite agree with Brett, L.J., that when persons take upon themselves to cause another to be imprisoned, they must strictly follow the powers

under which they are assuming to act, and if they do not, the person imprisoned may be discharged, although the particulars in which they have

failed to follow those powers may be matters of mere form. Here, however, the departure from the correct procedure is not, in my opinion a mere

matter of form, but is a matter of substance.

The other High Courts, which considered a similar question under the Public Safety Act, have unanimously held that where the particulars given

are indefinite and vague and uncertain there is no compliance with the provisions of the Act and the continuance of the detention is illegal. Vide

Nek Mohammad and Others Vs. The Province of Bihar, and Durgadas v. Rex AIR 1949 All. 148 . I respectfully agree with the reasons given in

those judgments for holding that where there is no substantial compliance with the provisions of Section 3 of the Act, the continuance of the

detention becomes illegal. It is unnecessary to examine these decisions at length.

The Court of Appeal in Greene''s case (1942) 1 K.B. 87 considered the effect of an error in the grounds communicated to the detenu on the

continuance of the detention. The detenu there was informed of the grounds on which the order of detention was made and was also furnished with

the particulars to enable him to present his case to the Advisory Council. The grounds communicated stated that he was concerned in one kind of

acts endangering public safety, while the order of detention was made in fact, on a totally different ground. The detenu, however, was served with

a true copy of the actual order and the particulars clearly stated the correct ground of detention. He did not, however, draw the attention of the

Advisory Council to the material discrepancy between the two. Goddard, L.J., with whom the other Lord Justices agreed, held

That a mistake in the document served on the detenu after he was in custody would not invalidate the original order of detention nor does it render

its continuance invalid. There was nothing to show that the detenu was in any way prejudiced by mistake.

This aspect of the case was referred to and dealt with by the House of Lords on appeal. The House of Lords 1943 A.C. 284 agreed with the

Court of Appeal, that as no prejudice was caused to the appellant by the error in the document sent to him by the Advisory Committee, the

detention, or its continuance was not illegal. Lord Macmillan at page 298 observed:

The mistake, the occurrence of which your Lordships deplore, does not in any affect the validity of the detention order which is the answer to the

appellant''s application. It (sic) the due observance of the procedure prescribed for the further consideration of the case of a person who is ex

hypothesi under lawful detention. Consequently the mistake affords no ground for invalidating the detention order and does not help the appellant in

his present application.

The test applied by the House of Lords was whether by reason of the mistake, there was no prejudice to the detenu and if there was no prejudice

no question of its effect on the detention arose for consideration, particularly as in that case the mistake was one which could be remedied.

In cases where on the basis of vague, indefinite and uncertain grounds a representation was made by the detenu to the best of his ability and

after the matter was considered by the Advisory Council, the Provincial Government passed a final order of detention, there was no further means

of remedying the defect and it cannot be said that, when a Provincial Government failed to discharge its duty, by the fact that the detenu did not

complain at the time of making the representation of want of particulars he is precluded from agitating the question now. The grounds, therefore, in

each of the petitions before us have to be examined in the light of these principles.

In some of the petitions we have noticed that there is considerable delay on the part of the Provincial Government in referring the matter to the

Advisory Council even after the representation by the detenu was received. In other cases, there was also delay in passing final orders after the

report of the Advisory Council was received. The Government, it must be mentioned, has to deal with a number of applications of this nature and

actually time would be taken in examining the representations made in the light of the information available and in referring the matter to the

Advisory Council. It may be that the Provincial Government requires in certain cases further information from the District Magistrates and that

might occasion some delay. Making due allowance for all these considerations, a delay of several months, if not properly explained, cannot be

altogether ignored. The question of the effect of the delay in referring to the Advisory Council was considered by me and Rajagopalan, J., in Crl.

M.P. No. 200 of 1949, and we stated in the judgment in that case:

We should however be inclined to say that any period in excess of the statutory limit of six months made applicable to an order u/s 3(5) would by

itself be proof prima facie of unreasonableness. But whether delay in any given case is unreasonable or not has to be judged with reference to the

circumstances of that case, taking also into account that the period was far in excess of six months.

Horwill and Govinda Menon, JJ., observed in Crl. M.P. No. 2128 of 1948 that

Any further delay beyond a fortnight after the date of the order passed by the learned Judges would be sufficient to show that further detention

would be illegal. The delay, therefore in the two stages, namely, in referring the matter to the Advisory Council and in passing a final order u/s 3(5)

after the report from the Advisory Council was received, if unreasonable and is not properly explained would have the effect of making the

continuance of the detention illegal.

In the present application, excluding the activities in 1946 and before August, 1947, when the applicant was released from detention, the only

ground communicated to him would not, in my opinion, convey any information, nor does it refer to any activities on his part showing that he is

acting in a manner prejudicial to the public safety and its maintenance. The Communist party was not declared illegal, in which case, it will be open

to the Government to take action u/s 17 of the Criminal Law Amendment Act, if the person continued thereafter to associate himself with that

party. Even if a party is declared illegal, the mere association with that party would not justify the inference that the person was acting in a manner

prejudicial to public safety. In the Allahabad and Patna cases already referred to, which deals with cases of members of Rashtriya Swayam Sewak

Sangh, it was pointed out that their mere association as such with the party after it was declared illegal is not an activity which endangers public

safety. We are not concerned with the objects of a particular political party, nor are we prepared to accept the argument advanced on behalf of

the applicants that the proceedings under the Act are actuated by political animosity and that therefore they are mala fide. We are concerned only

with the question whether the grounds communicated are definite and are such as would enable the applicant to present his case properly to the

Provincial Government. To take a sample of the grounds communicated to the present applicant, one of the grounds stated that the applicant

ridiculed the proposals of the Government to award compensation to the zamindars and inamdars; that he was also actively engaged in the

Municipal election propaganda to get Communist candidates elected. These grounds besides being vague, are, in our opinion, entirely outside the

purview of the Act. A political party is entitled to take part in municipal or other elections and for that reason alone it cannot be said that the

activity of a person concerned is such as to endanger public safety, nor his criticism of the proposals of the Government to award compensation to

the zamindars and inamdars under legislation now pending sanction before the Governor-General for the abolition of the zamindaris. No dates are

given as to when and where the person concerned ridiculed the policy of the Government. And the only other ground that is added is that he

spread alarmist ideas about the number of workers that would be retrenched if the recommendations of the Committee were given effect to.

Nobody knows and there is nothing to indicate what this Committee is and what the reference to the alarmist ideas about the number of workers to

be retrenched is. The grounds are not outside the purview of the Act but are indefinite and vague. With these grounds, if they can be called

grounds, it is impossible for any person to make any representation to the Government to show his innocence and to establish that he is not guilty

of any of the conduct attributed to him. We are therefore satisfied that as the statutory requirements have not been satisfied and as even no

particulars were given, the continuance of the detention of the applicant is not justified. We direct, therefore, that the applicant should be set at

liberty forthwith.

Crl. M.P. No. 191 of 1949.--The applicant in this case was arrested u/s 151, Criminal Procedure Code, on the 27th March, 1948. The order

of detention u/s 2(1) of the Act was passed on 9th April, 1948, by the District Magistrate, Tanjore. The District Magistrate states in the order that

the applicant is acting, or about to act in a manner prejudicial to public safety, and maintenance of public order. He was removed to Central Jail,

Vellore, on 12th April, 1948. The grounds of detention were furnished to him on 21st April, 1948. On nth May, 1948, the applicant sent a

representation to the Provincial Government. The matter was referred to the Advisory Council on 22nd June, 1948. On 22nd December, 1948,

the Advisory Council recommended that the applicant should be released. The Provincial Government, however, did not accept this

recommendation but confirmed the original order of detention u/s 3(5) of the Act.

In this case also the grounds alone were communicated and no particulars were given. The only substantial ground is that he advocated acts of

violence and was engaged in intimidating local and imported workers. The ground does hot say when and where he advocated acts of violence and

the reference to intimidation of local and imported workers is wholly unintelligible and is indefinite in that it does not even give the approximate time

and date. Some of the grounds are outside the purview of the Act. There is no compliance with the provisions of Section 3(1) of the Act and we,

therefore, direct that the petitioner should be set at liberty forthwith.

Crl. M.P. No. 192 of 1949.--The applicant in this case was arrested u/s 151, Criminal Procedure Code, on 2nd May, 1948, and an order of

detention was passed on 15th May, 1948, and thereafter he was removed to the Vellore Jail. The grounds were communicated on 6th June, 1948.

He submitted his representation on 29th June, 1948, and the matter was referred to the Advisory Council on 14th July, 1948. The Advisory

Council recommended by its report, dated 20th January, 1949, that he should be released, but the Provincial Government passed a final order on

15th February, 1949, confirming the original order of detention.

On an examination of the grounds, we are satisfied that the grounds contain sufficient particulars and are not vague and indefinite. The original

order of detention was objected to on the ground that the authority of the District Magistrate passing an order u/s 2(1) was not disclosed in the

order of detention. It is not necessary to state the authority and if the petitioner had raised the objection and seriously contended that the District

Magistrate was not empowered u/s 18 of the Act, the order would have been easily produced. We therefore think that there is no substance in this

contention.

It was also argued that the order of detention was passed after he was arrested u/s 151, Criminal Procedure Code, and this indicated that the

order was not bona fide. Section 151, Criminal Procedure Code, authorises a police officer to arrest a person designing to commit a cognisable

offence, and, therefore, if there was material justifying the action u/s 2(1) of the Act, there is no reason to hold that the order of detention is illegal.

We think, therefore, that there is no case for interference made out in this application. The application is therefore dismissed.

Viswanatha Sastri, J.

We have, during the last few days, been hearing many applications filed under section. 491 of the Code of Criminal Procedure by persons

detained in jail under Madras Act 1 of 1947. The grounds raised by the applicants in these applications are more or less the same and are of

general importance. We heard arguments on the common questions arising for decision in these applications before considering them individually

on their merits. We are indebted to the learned Counsel for their assistance.

In these applications we have been repeatedly and forcibly reminded by counsel for the detenus that it is our duty to exercise our powers u/s

491, Code of Criminal Procedure, freely and liberally in order to protect the personal liberty of citizens against unjustifiable interference by

executive authority. Language much more trenchant and even provocative is employed in the affidavits filed by the detenus themselves in support of

their applications. Madras Act 1 of 1947 professes to be an emergency measure and not a permanent part of the statute book. In the troublous

times through which this country has recently been passing, interference with the personal liberty of citizens has been extended and legalised by the

Legislature to an extent which would not have been considered as legitimate in normal times. These temporary encroachments on individual

freedom have, been made in the larger interests of the State, dictated as they are by the paramount needs of peace, order and good Government.

It is the considered opinion of the Legislature as expressed in the preamble to Act 1 of 1947 that there is an urgent necessity for imposing, in the

interests of public peace and tranquility, and for ensuring the continuance of services vital to the life of the community, restraints on individual

liberty. The Act has imposed the duty, and given the power of taking preventive action against persons acting or about to act in any manner

prejudicial to public safety or the maintenance of public order, to the Provincial Government or its duly constituted delegate. Section 16(i) of the

Act prevents an order made in the exercise of a power conferred by or under the Act from being called in question in any Court. Preventive

detention in connection with the maintenance of public order is within the legislative competence of the Provincial Legislature under the Government

of India Act, 1935 (Schedule VII, List No. 2, Entry No. 1) and it has not been contended before us that Act 1 of 1947 as a whole or Section

16(1) in particular, is ultra vires the Provincial Legislature.

In England the House of Lords on two memorable occasions, in times of national crises, upheld the legality of the imprisonment of British

subjects without trial and opportunity of defence in Court, if the Home Secretary thought it reasonable to imprison them in the interests of public

safety and for the due prosecution of the war. It was held that the executive was not even compellable to give its reasons for detention. The writ of

Habeas Corpus, the most important writ known to English Constitutional Law and one of the privileges of Englishmen zealously guarded and

maintained by the English Courts, was held to have been displaced in effect, though not in form, by the emergency powers of preventive detention

vested in the executive by the Legislature. The restraint was held not to be illegal because it was justified by the terms of the statutory regulation

and the writ of Habeas Corpus was, therefore, refused. I am referring to the well-known "" Regulation 14 (B)"" and ""Regulation 18(B) "" cases, Rex

v. Halliday (1917) A.C. 260, Liversidge''s case (1942) A.C. 206 and Green''s case (1942) A.C. 284 which have largely influenced the

interpretation of Madras Act I of 1947 notwithstanding the difference between the English Regulation and the Indian enactment. Neither the fact

that drastic powers have been given to the executive authority not the fact that they are liable to abuse, should stand in the way of our interpreting

and giving effect to the terms of Act 1 of 1947 according to their plain and natural meaning. At the same time, as the Act empowers the executive

to deprive a subject of his liberty without a trial and conviction,--indeed for no offence of his--the process being somewhat euphemistically called

preventive justice"" or ""preventive detention"", this Court ought to insist that the executive exercises its powers strictly in accordance with the terms

of the, statute and within its four corners and observes every formality prescribed by the Act. I respectfully agree with the following observations of

Subba Rao, J., in A.K. Gopalan Vs. The District Magistrate and Another, , which arose under this Act:

It is the sacred duty of this Court to see that no citizen of this Province whether he is rich or poor, whether he belongs to this or that political

persuasion is illegally detained for one minute.... No provision of the statute restricting the liberty of the citizen can be overlooked and no breach of

any provision thereof can be condoned on the ground of administrative convenience.

In spite of the enactment of Section 16 of Madras Act 1 of 1947 restricting the jurisdiction of Courts, it is now well settled that an order of

detention made under Act 1 of 1947 is open to challenge in an application u/s 491 of the Code of Criminal Procedure on the ground that it was not

made in conformity with the powers conferred by that Act. G. Narayanaswami Naidu and Others Vs. The Inspector of Police, , Sibnath Banerji''s

case (1945) 2 M.L.J. 325 : L.R. 72 IndAp 241 : 1945 F.L.J. 823 on appeal from the Federal Court (1943) 2 M.L.J. 468 : 6 F.L.J. 151.

Basantha Chandra Ghose v. Emperor (1945) 1 M.L.J. 365 : ILR 24 Pat.187 : 1945 F.L.J. 40 . Personal liberty is not of the most cherished rights

of a citizen of this or any other civilized country of which he cannot be deprived except by and in strict conformity with the law. On what grounds

then can the legality of an order of detention made u/s 2(i)(a) of Madras Act I of 1947 be questioned by the person aggrieved?

An analysis of the provisions of the Act governing the preventive detention of persons reveals the following seven steps or stages in the

proceedings connected with such a detention. (1) Satisfaction of the Provincial Government or its delegate empowered unser Section 15, that a

person is acting or about to act or likely to act in any manner'' prejudicial to public safety or the maintenance of public order [Section 2(i)]. (2)

Order directing the detention of such a person [Section (2(i)(a)]. (3) Report to be made forthwith to the Provincial Government together with the

grounds of detention and other particulars if the order for detention is made by a delegate of the Government [Section 2(2)]. (4) Communication to

the detenu of the grounds of the order for detention with particulars sufficient to enable him to make a representation against the order. (5)

Reference by the Provincial Government to the Advisory Council of the case of the detenu together with the grounds for the detention and the

representation of the detenu, if any [Section 3(2)]. (6) Submission of its report by the Advisory Council to the Provincial Government [Section

3(4)]. (7) Order of the Provincial Government confirming or cancelling or modifying the order made u/s 2(1) [Section 3(5)].

The first and second steps above enumerated are connected with the initial detention. Before at all exercising the power of detention and

passing an initial order therefore, the Provincial Government or its duly empowered delegate, must be satisfied that a person is acting or about to

act or likely to act in a manner prejudicial to public safety or the maintenance of public order. This is a fundamental requisite essential to give

jurisdiction to the detaining authority to act. It is the satisfaction of the detaining authority that matters. It is a personal or ""subjective"" and not an

impersonal or ""objective"" standard of satisfaction.

The Court cannot examine the conscience of the detaining authority to find out whether its reasons for satisfaction were sufficient. No outside

decision is involved in this matter of satisfaction which rests solely with the detaining authority. The detaining authority can act and hearsay evidence

and is not bound to derive its satisfaction from legal evidence. The information on which it acts is likely to be of a confidential character which need

not be communicated to the detenu or disclosed in Court. If the detaining authority has acted in good faith and has come to a decision on relevant

materials placed before it that detention is necessary, the Court cannot enquire into the sufficiency of the materials or reasonableness of its

satisfaction in regard to the matters of which it is required to be satisfied.

It is open, however, to the applicant, if he can, to establish that the detaining authority has not exercised ifs mind on the materials placed before

it and has not satisfied itself about the necessity for the detention and therefore the order for detention, though purporting to be passed u/s 2(1)(a)

must be deemed not to be an order under the section. If there is sufficient material before the Court for holding that the recital in the order is

inaccurate and that the order is merely a routine order mechanically passed or the mere outcome of police recommendation and not of a decision

on the part of the detaining authority u/s 2(1) then this Court would interfere u/s 491 of the Code of Criminal Procedure. Sibnath Banerji''s case

(1945) 2 M.L.J. 325 : L.R. 72 IndAp 241 : 1945 F.L.J. 222 on appeal from the decision in the Federal Court (1943) 2 M.L.J. 468 : 6 F.L.J. 151

: 1944 F.G.R. 41 and G. Narayanaswami Naidu and Others Vs. The Inspector of Police, . Section 3(1) requires the Provincial Government to

communicate to the detenu the grounds on which an order for his detention has been made against him together with such particulars as it considers

necessary to enable him to make a representation against the order for detention. If the grounds and particulars furnished disclose that the detaining

authority had not exercised its mind at all or had applied its mind to and acted upon considerations, wholly irrelevant to and outside the ambit and

scope of Section 2 of Act 1 of 1947, then, I should think it is open to this Court to hold that the detaining authority had not the requisite satisfaction

regarding the necessity for detention and that the detention is bad for that reason. It has been held in England that where the return to an habeas

corpus consists of a narrative of acts, it will be bad if the facts stated do not show a legal cause for the detention. R. v. Jackson (1891) 1 Q.B.

671.

It is not possible for this Court to go into the correctness of the facts alleged by the detaining authority but it is equally clear that accepting the

facts at their face value, the Court can say that the satisfaction of the detaining authority is not a real satisfaction or a satisfaction in accordance with

law. In Liversidge''s case (1942) A.C. 206 , Lord Wright said :"" Satisfied, must mean reasonably satisfied. It cannot import an arbitrary or

irrational state of being satisfied."" Suppose a person convicted of cheating, forgery, or murder, served his sentence ten years ago and is detained

u/s 2(1)(a) of Act 1 of 1947 on the ground of his previous conviction and his consequent undesirable antecedents. This Court is entitled to say that

the detention is bad either because the detaining authority had not exercised its mind at all on the relevant considerations or because that the

satisfaction of the detaining authority which is required by Section 2(1) did not exist. Similarly if a person is detained merely on the ground of his

religious, political or economic beliefs and opinions'' or because he is addicted to some personal vice, without anything relating to the maintenance

of public safety or order appearing from the grounds, then also the detention would be held to be bad for the same reasons. Even if a person had

been convicted of an offence involving a breach of the public peace, still, if the event happened in the remote past and the satisfaction of the

detaining authority does not relate to conduct persisted in after the coining into force of Act I of 1947, the detention would be had. I do not mean

to suggest that antecedent conduct would not furnish reasonable grounds for finding out the present attitude of a person and for coming to a

conclusion that he is acting or likely to act in a manner prejudicial to the public safety or maintenance of public order. All that I mean is that acts

done in the approximate and immediate past and not in the remote past, should alone be relied upon to obtain the satisfaction that is required u/s

2(1).

If the grounds and particulars furnished u/s 3(1) are within the ambit and scope of and relevant to Section 2(1), then this Court is not entitled to

say that the materials were too slender or too untrustworthy to furnish satisfaction to the detaining authority. Sufficiency of the relevant material or

the reasonableness of the inference to be drawn from such relevant material is not for this Court to enquire into. Supposing a man attempts forcibly

to enter upon another''s property and threatens to assault persons who prevent his unlawful entry, and an order for detention is passed against him

u/s 2(1) on the ground that he is likely to act in a manner prejudicial to the maintenance of public order in the locality, this Court cannot question

the propriety of the order, merely because, in its opinion, the incident which led to the satisfaction of the detaining authority is an isolated, trivial or

easily avertable threat to public peace or the maintenance of public order. The material is relevant and admissible and the quantum of the evidence

as well as the propriety of the inference drawn there from are not matters left for the consideration of the Court but of the Executive which has

latitude of choice.

Take a case where the grounds and particulars furnished u/s 3(1) are such that some of them are within the scope and ambit of Section 2 and

some are wholly outside it and the satisfaction of the detaining authority is derived from both of them. It is impossible to say whether relevant and

admissible or wholly or relevant and inadmissible considerations gave the requisite satisfaction to the detaining authority. In such a case detention

would be bad. Sir Maurice Gayer, C.J., in delivering the judgment of the Federal Court in Keshaw Talpade''s case (1943) 2 M.L.J. 90 : 6 F.L.J.

28 : ILR 1944 Bom. 183 (overruled on another point by the Judicial Committee) dealt with such a situation in this way:

If a detaining authority gives four reasons for detaining a man without distinguishing between them, and if two or three of the reasons are held to be

bad, it (the Court) can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would

have been made at all if only one or two good reasons had been before them.

Chagla, C.J., in In Re: Rajdhar Kalu Patil, , dealt with the matter in this way:

If a reason is given for the detention of a person which is not within the scope and ambit of the Act conferring the power upon the Government to

detain, then the whole order is vitiated notwithstanding the fact that the other reasons given are good, because something may have operated upon

the mind of the detaining authority which is foreign and extraneous to the purpose of the Act....But some of the grounds given are not outside the

scope and ambit of the Act but are merely vague and indefinite, it cannot be said that some extraneous consideration has weighed with the

detaining authority in making the order it has made. Therefore, we must draw a sharp distinction between a ground which is outside the purview of

the statute and a ground which is bad because it lacks precision and accuracy. In the latter case the ground has to be completely ignored as if no

ground was furnished at all.

With these opinions I respectfully agree. I have referred to this aspect of the case at some length because in some of the cases that have come

before us, grounds not within the scope and ambit of Section 2(1) of Act I of 1947 but dealing only with the political affiliations and economic

creeds of a detenu and his activities in those fields are stated as grounds for detention. Membership of a party or association which has not been

declared an illegal body is prominently mentioned in the grounds communicated to the detenus in some of these cases, without any allegation of any

acts or facts suggesting that the detenus in question, apart from the party in general, were themselves acting or about to act in a manner prejudicial

to public safety or maintenance of public order. In such cases the satisfaction of the detaining authority is not a satisfaction about matters relevant to

or falling within Section 2 so far as the particular individuals are concerned and that is not a satisfaction which is immune from scrutiny in this Court

when the legality of the detention is impugned.

I do not consider that the decision of the Full Bench in G. Narayanaswami Naidu and Others Vs. The Inspector of Police, , precludes us from

holding that the detention is illegal because the detaining authority on its own showing, had obtained its satisfaction on a consideration of material

irrelevant to and inadmissible u/s 2(1) of the Act and outside its scope and ambit. It is no doubt true that on an application u/s 491 of the Code of

Criminal Procedure, the Court cannot enquire into the sufficiency of the materials or the reasonableness of the inference drawn by the detaining

authority. The detenu cannot litigate facts and must accept the facts disclosed by the executive authority. But if the reasons which influenced the

detaining authority in making the order of detention are disclosed and put on the record by the Government, this Court can scrutinize them to find

out the condition of the mind of the detaining authority when it made the order. In view, however, of the presumption of regularity and validity

attaching to an official order, regular on the face of it, in view of the rule that is only the satisfaction or state of mind of the detaining authority

without reference to any external standard that matters and in view of the power vested in the Provincial Government u/s 3(1) of refusing to

disclose facts which it considers would be against the public interest to disclose, it will be difficult for the person challenging an order of detention

on the ground above stated to substantiate his plea.

An order of detention may be bad on the face of it if it does not disclose the satisfaction of the detaining authority that the person ordered to be

detained has acted or is about to act or is likely to act in a manner prejudicial to public safety or the maintenance of public order. (See A.K.

Gopalan Vs. The District Magistrate and Another, In some of the cases which have come before our notice, we find the language of Section 2(1)

copied mechanically in the orders of detention without specifying whether the detaining authority is satisfied that the person sought to be detained is

actually acting in a manner prejudicial to public safety or the maintenance of public order or is about to act or likely to act in such a manner. The

cyclostyle forms which incorporate all these three reasons found in the section are not even corrected before the orders are issued so as to indicate

which of the three grounds apply to the particular case. One would expect that if more than one of the three enumerated grounds are relied upon in

any particular case, the word"" or ""would be scored out and the word "" and "" substituted ;but even this has not been done. This mechanical

reproduction of the language of Section 2(1) in the cyclostyle orders of detention gives the impression that the empowered authority does not

exercise its mind upon the materials placed before it in each individual case, but issues, the orders of detention as a matter of course or as a matter

of routine without itself being sure about the reason for the detention. In a recent case decided by us Crl. M.P. No. 2633 of 1948, we held on an

examination of the terms of the order and the attendant circumstances, that the detaining authority might have satisfied itself that the case came

within one or other of the two categories specified in the order without pledging itself exactly to any one of them.

We also relied on the observations of Spens, C.J., in Sibnath Bunerji''s case (1943) 2 M.L.J. 468: 6 F.L.J. 151 : 1944 F.C.R. 41 in the

Federal Court affirmed on appeal by the Judicial Committee in Sibnath

Banerji''s case (1945) 2 M.L.J. 325 : L.R. 72 IndAp 241 : 1945 F.L.J. 222 and upheld the validity of the order for detention. It must,

however, be confessed that orders framed in the terms above indicated leave a suspicion as to whether the mind of the detaining authority followed

the act of signing the detention order. If, however, the grounds and particulars served on the detenu u/s 3(1) specify the actual grounds on which he

has been detained, there is no prejudice to him and the order of detention cannot be questioned on the ground above referred to, see Greene''s

case (1942) A.C. 284.

There are also other matters into which the Court can and will enquire u/s 491 of the Code of Criminal Procedure if occasion arises, e.g., the

bona fides of the detaining authority, the authenticity and genuineness of the order of detention itself, the existence of a delegated authority in case

the order of detention is passed by a delegate, and the identity of the applicant with the person referred to in the order. So much is clear from the

unanimous opinion of the Full Bench in G. Narayanaswami Naidu and Others Vs. The Inspector of Police, .

It is agreed on all hands that lack of bona fides or absence of good faith on the part of the detaining authority vitiates an order of detention. The

power of preventive detention must be exercised honestly and for the purposes for which it is intended by law and entrusted to the detaining

authority. The order should not be a fraudulent or colourable exercise or abuse of the powers conferred by the Statute. See Rex v. Halliday(1917)

A.C. 260, Liversidge''s case (1942) A.C. 206, Greene''s case (1942) A.C. 284 and Marayanaswami Naidu v. Inspector of Police, Mayavaram

(1942) 1 M.L.J. 1 It is far easier to formulate this doctrine in the abstract than to apply it to the facts and circumstances of particular cases. If, for

instance, it can be demonstrated in a particular case that the order of detention was actuated by personal malice or hostility or political animosity or

that its object or design was merely to prevent a person or body of persons from the pursuit of a lawful activity for fear that it might be prejudicial

to the pecuniary or political interests of other persons or groups, the order would be illegal as being a mala fide exercise of the power of preventive

detention. If an order for detention is made, not in the interests of public safety or the maintenance of public order, but for the purpose of securing

the detention in prison of a person who cannot be successfully prosecuted for an offence of which he is merely suspected, then it would be a mala

fide exercise of the power. If a person who has been serving a sentence of imprisonment in jail for a pretty long period, say two years, is served on

the day of his release with an order of detention u/s 2(1)(a) the order for detention is in effect an illegal extension of the term of his sentence of

imprisonment and would be a mala fide exercise of the power. In such a case it should not be said that he was acting or was likely to act in a

manner prejudicial to public safety at the moment of his release. Similarly, if a person gets an order for his release on bail from a competent Court

and just when he is actually released, an order of detention is made so as to nullify the order granting bail and for the purpose of confining him in jail

during his trial for offences with which he is charged, it would be a mala fide exercise of the power conferred by Act 1 of 1947. If the primary

purpose and avowed intention of the order of detention is only to circumvent the orders of bail issued by Criminal Courts, then it would be a mala

fide exercise of the power u/s 2(1). See In Re: N.R. Sreenivasan, .

In this connection I must notice a point that is raised in some of the applications questioning the validity of an order for the detention of a

person already arrested u/s 151 of the Code of Criminal Procedure for a cognizable offence and remanded to custody. It is argued that the action

of the detaining authority in resorting to Act 1 of 1947 and passing an order u/s 2(1)(a) when it has evidently realised that there is no case against

the applicant under the penal law of the land, is by itself proof of mala fides. We have already repelled this contention in our judgment in Criminal

M.P. No. 2633 of 1948 and held that merely because the order for detention is made where the person concerned has already been arrested u/s

151, Criminal Procedure Code, the order cannot be said to be mala fide. We must not however be understood as laying down that in no case

could an order of detention passed against a person already in custody be said to be mala fide. We have an instance of a man who was detained in

jail for over three months u/s n 7 of the Code of Criminal Procedure for refusing to execute an interim security bond. Instead of pursuing the

proceedings '' initiated against him u/s 107 of the Code of Criminal Procedure and giving him an opportunity to substantiate his defence u/s 118 of

the Code, the Police dropped those proceedings and moved the District Magistrate for an order u/s 2(1)(a) of Act 1 of 1947. The order of

detention was passed on the ground that because the applicant (who stoutly protested his innocence all long) refused to execute an interim bond

for keeping the peace he was likely to act in a manner prejudicial to public safety. His refusal to execute an interim bond did not mean or even

imply that he was acting or was about to act or is likely to act in a manner prejudicial to public safety or the maintenance o public order and an

order for his detention passed u/s 2(1)(a) of Act I of 1947 based on a refusal of the applicant to execute an interim security bond would be a mala

fide exercise of the power.

Where there is a limited statutory power of interference with the liberty of a person, the power must be exercised bona fide for the end

specified in the statute. Otherwise, it will constitute a fraudulent exercise of the power and an order based on such a fraudulent exercise of power

would be bad. ""Fraud"" in this connection does not involve or imply moral turpitude but is used to denote the exercise of a statutory power for

purposes foreign to or outside the intendment of the statute however laudable otherwise the intention of the person exercising the power may be.

The fraud or mala fides consists in exercising the power for purposes foreign to those prescribed by the Statute. The further question that arises is,

whether, assuming the initial detention to be legal, non-compliance with the other requirements of Sections 2 and 3 of Act I of 1947 renders the

continuance of the detention illegal.

The powers conferred upon the Provincial Legislature under the Government of India Act, 1935 (Schedule VII, List 2, Entry No. 1) as well as

the preamble to Act 1 of 1947 and Sections 2 and 3 of the Act, make it clear that it is only preventive detention for a specified period and not an

arbitrary detention or imprisonment for an indefinite time at the pleasure of the executive that has been authorised by Act I of 1947. In an ordinary

criminal trial, the accused is given detailed information and particulars about the alleged offence, the prosecution adduces evidence, the accused is

given a right to rebut it, and conviction and sentence follow if the offence is found to be proved. Section 2 of Act 1 of 1947 abrogates trial by a

Court and empowers the Provincial Government or its delegate, straightaway to imprison a man if it is satisfied that he is acting or is about to act or

likely to act in a manner prejudicial to public safety or maintenance of public order. It will be observed that no time-limit is prescribed for the

communication of the grounds and particulars u/s 2(2), for the communication of the grounds and particulars to the detenu u/s 3(1), for the

despatch of the representation of the detenu to the Advisory Council along with other materials u/s 3(2), for the submission of the, report of the

Advisory Council u/s 3(4) or for the passing of the final orders of the Government u/s 3(5). It is a distressing feature of some of the cases that have

come under our notice and a circumstance that had caused us considerable uneasiness, that the applicants have been in jail for periods ranging

from four months to one year pursuant to an initia order of detention without final orders having been passed by the Provincial Government. In

other words, the applicants have had to endure imprisonment for a much longer period than that period of six months they would have to undergo,

even if the initial order for detention had been confirmed by the Provincial Government u/s 3(5).

Another ground of complaint has been that the grounds communicated to the applicants are vague and general and lacking in precision. One of

the paragraphs common to all the grounds is that the Communist party to which the applicants belonged was indulging in violence and subversive

activities and that most of the members of the party had gone underground and were committing various crimes like arson, looting, murder, etc.

The grounds have been expressed in such a form as to be universally applicable to all people who profess to belong to the party without reference

to the acts and conduct of the particular individual detained. I shall revert to this aspect of the matter later in the course of this judgment.

The question that arises for consideration is whether it is open to this Court to order the release of a detenue u/s 491, Criminal Procedure

Code, for the reason that there has been a non-compliance with the provisions of Section 2(2) or Section 3(1), (2) and (5) of the Act either by

reason of an inordinate and unreasonable delay in taking the requisite steps or otherwise. It is argued that non-compliance with the formalities

directed to be carried out by Sections 2 and 3 of the Act after the exercise of the statutory power of detention u/s 2(1)(a), will not have the effect

of invalidating the exercise of the power and the order of detention. In other words, it is said that the subsequent formalities prescribed in the

various provisions following Section 2(1)(a) of Act I of 1947 are not essential to the validity of the order of detention and their non-observance

would not in any way render the detention illegal. Support for this contention is to be found in the observations of Subba Rao, J., who delivered the

judgment of the Court in M. R. Venkataraman Vs. The Commissioner of Police and Another, . In that case an order for detention, of the applicant

was made u/s 2(1)(a) by the Commissioner of Police on 1st April, 1948 and communicated to the Government u/s 2(2) on 9th June, 1948. The

applicant was arrested only on 17th August, 1948, as he could not be found till then and was subsequently served with the grounds for his

detention. The applicant relied on the inordinate delay in communicating the order of the Commissioner of Police to the Government u/s 2(2) as

invalidating his detention. The Court held that inasmuch as the initial order and the grounds thereof had been communicated to the Government and

the applicant had been given a copy of the grounds and the necessary particulars and had also submitted his explanation at the time when the

application u/s 491 came on for hearing before the Court, the inordinate delay of more than two months in the communication of the order by the

Commissioner of Police to the Government was a mere irregularity which did not render his detention illegal. A detenu who had made himself

scarce for more than two months after the order for his detention was made and who could not therefore be arrested, could not reasonably be

heard to complain of the interim delay in the communication of the order. The judgment however contained the following observations of a general

nature:

If the order was valid at its inception we cannot see how it would become invalid by the subsequent non-compliance with the other provisions of

the Act ...Assuming that in view of this enormous delay, it must be held that the provisions of the section have not been strictly complied with,

would it have the effect of invalidating an order that had been validly passed? We think not. Once an order has been passed in strict compliance

with the provisions of Section 2(1) it was validly passed. Sections 2(2) and 3(1) were designed to provide a machinery for the person against

whom an order has been passed to seek redress as early as possible. If a statutory authority did not comply with the provisions of Section 2 or 3

there may be other remedies open to the aggrieved party ;but in our view, the non-compliance with the provisions prescribing a procedure to get

redress by the aggrieved party against whom an order has been passed u/s 2(1) cannot in law invalidate an order validly passed u/s a (1).... The

argument of Mr. Pillai (counsel for the detenu) was that assuming the order passed u/s 2(1) was valid at its inception and continued to be so, the

further detention after the violation of the provisions of Section 2(2) was illegal. This argument ignores the distinction between an order of detention

and the procedure prescribed for enabling an aggrieved party to seek redress.... If the authority concerned did not carry out his statutory duty, the

petitioner could have taken the appropriate remedy to compel him to perform his duty. He may have other remedies if he was prejudiced by the

breach of a statutory duty by the authority concerned. But in our view, the non-compliance with the provisions of Sub-section (2) to Section 2,

could not make the detention illegal.

In another case, In Re: P. Venkatachala Thevar; In Re: M.V. Sivasankara Thevar, , a copy of the grounds of detention u/s 3(1) was served after a

delay of 22 days after the detention and after the filing, but before the hearing of an application u/s 491 of the Code of Criminal Procedure, in this

Court. This Court characterised the delay as unconscionable but held that the irregularity had been cured by the time the application was heard.

The relevant portion of the judgment is as follows:

However, even if in the absence of an order furnishing the reasons u/s 3(1) within a reasonable time, we might have held that the detenu had been

unlawfully detained, we would not order his release after the reasons had been furnished and the detention became lawful.

This decision seems to assume that the continuance of the detention might become unlawful if there is unreasonable delay in serving the grounds u/s

3(1).

Though the learned Judges who decided M. R. Venkataraman Vs. The Commissioner of Police and Another, do not cite any authority, they

were perhaps relying upon the observations of Goddard, L.J.? in the Court of Appeal and of Lord Macmillan in the House of Lords in Greene''s

case3 couched in similar language. I shall examine Greene''s case (1942) A.C. 284 : (1942) 1 K.B. 87 presently but before doing so, I may point

out some of the consequences of the view taken by the learned Judge. Section 2 of Act 1 of 1947 does not require that the order of detention

should be served on the person ordered to be detained before he is arrested and indeed it does not even require a written order, though in practice

such an order is made. According to the Full Bench decision in G. Narayanaswami Naidu and Others Vs. The Inspector of Police, , an order of

detention based on the personal satisfaction of the detaining authority that the person detained is acting or about to act or likely to act in a manner

prejudicial to public safety or the maintenance of public order is all that is required to make the contention legal ab initio. The only grounds on

which the legality of the initial detention can be challenged are (1) that the order was not duly authenticated, (2) that there has been a mistaken

identity, (3) that there has been an absence of good faith, and (4) that there was not on the facts stated or disclosed by the Government, any such

satisfaction in the mind of the detaining authority as is required by Section 2(1). The learned Judges in Venkataraman''s case2 held that the

detention legal ab initio does not become illegal even though the formalities prescribed by Section 3 are not complied with and therefore the

remedy u/s 491, Criminal Procedure Code, does not lie, whatever other remedies may be open to the prisoner in respect of such non-compliance.

Goddard, L.J., in the Court of Appeal in Greene''s case (1942) 1 K.B. 87 : (1941) 3 All E.R. 104 :(1942) A.C. 284 made similar observations

citing the remedy by way of mandamus. But the writ of mandamus does not lie in India against the Provincial Government or mufussil authorities.

Nor is the remedy by way of damages for false imprisonment available, assuming that money can compensate a man adequately for the unjust

deprivation of his freedom. The remedy by Habeas Corpus and the claim for damages for false imprisonment are both founded on the illegality of

the restraint or imprisonment and if according to the learned Judges in M. R. Venkataraman Vs. The Commissioner of Police and Another, , a

detention ab initio legal does not become illegal by reason of non-compliance with the terms of Section 3, I am unable to visualise any remedy

except by way of appealing to the sense of justice and fair play of the Government. But the absence of an effective remedy, though a relevant

consideration, is not a conclusive argument if the interpretation of the Act is clear or if the decision in Greene''s case (1942) A.C. 284 : (1942) 1

K.B. 87 has authoritatively laid down the law in the sense in which it has been declared by the learned Judges.

To turn to the facts of Greene''s case (1942) 1 K.B. 87 : (1941) 3 All E.R. 104: (1942) A.C. 284. Mr. Greene was arrested under an order

of the Home Secretary under Regulation 18-B of the Defence Regulations. The Order served upon him stated that he was a person of ""hostile

associations"" within the meaning of Clause (1-A) of the Regulation and that by reason thereof, it was necessary to exercise control over him. By

Clause (3) of the Regulation the detenu was given a right of appeal to an Advisory Committee constituted under the ""Regulation on the lines of the

Advisory Council under Madras Act 1 of 1947. Clause (5) of the Regulation cast on the Chairman of the Committee the duty of informing the

objector, of the grounds on which the order had been made against him, with such particulars as were, in the opinion of the Chairman, relevant and

sufficient. The notice from the Chairman instead of specifying ""hostile associations"" under Clause (1-A) as the ground of detention, referred to ""acts

prejudicial to public safety, defence of the realm, etc.,"" coming under Clause (5) of the Regulation as the ground of detention. The particulars

furnished to the detenu, however, related mostly to ""hostile associations "". The detenu appeared before the Advisory Committee and put forward

his case without complaining about the discrepancy in the notice issued by the Chairman of the Advisory Committee. The Advisory Committee and

the Home Secretary confirmed the initial order of detention. An application for a writ of Habeas Corpus was made. The argument on behalf of the

detenu, relevant to the present purpose, was that the discrepancy between the order for his detention and the subsequent notice issued by the

Chairman of the Advisory Committee made the detention illegal ab initio or alternatively, from the date of notice. This contention was repelled both

in the Court of Appeal and in the House of Lords on the ground that the defect complained was a defect in procedure and a mere irregularity

which did not prejudice the applicant. The following observations of the Court of Appeal and the House of Lords taken together and in their

context, show, in my opinion, that their Lordships contemplated not only the possibility of the detention being illegal ab initio but its continuance

becoming illegal, for proper and sufficient reasons.

Scott, L.J. :"" As a matter of law, I cannot see anything in the Regulation which would justify the conclusion that such a mistake by the Advisory

Committee either invalidates an originally good order or confers a right to release."" (Page 106).

Goddard, L.J. :""Moreover a mistake in the document served on him after he was in custody cannot, in my opinion, invalidate the original

detention or render its continuance invalid. It is the actual order signed by the Secretary of State that is the governing document and it is this

document that the return should disclose."" (Page 117).

Viscount Maugham :"" I also agree with their view (the Court of Appeal) that a mistake in that document could not, in any event, invalidate the

original detention or render its continuance invalid."" (Page 296).

Lord Macmittan :""The mistake, the occurrence of which your Lordships deplore, does not in any way affect the validity of the detention order

which is the answer to the applicant''s application. It affects the due observance of the procedure prescribed for the further consideration of the

case of person who is ex hypothesi under lawful detention."" (P. 298).

Lord Wright :"" I see no reason to differ from the opinion of the Court below that this irregularity does not vitiate the order made and

continued."" (P. 300).

Lord Romer :"" This mistake cannot affect the validity of the order that had been made by the Home Secretary nearly two months before. Had

the appellant been prejudiced by the mistake, the Court might nevertheless have afforded him some relief. But the matter was carefully considered

both by the Divisional Court and the Court of Appeal. (Pp. 309-310).

I do not consider that the above decision taken as a whole, supports the general proposition laid down by the learned Judges in M. R.

Venkataraman Vs. The Commissioner of Police and Another, . There is no question here of nullifying the effect of a prior judicial order. Section

2(1)(a) of Act 1 of 1947 merely provides for physical detention by a summary order and it is only at a later stage that the grounds and reasons for

the order have to be formulated and canvassed and a final order passed. Neither the language of the section nor any binding authority compels me

to hold that once the preliminary order for detention is made u/s 2(1)(a) everything that follows the order is a mere matter of procedure and non-

compliance with it is a mere irregularity not affecting the substantive rights of the detenu.

It is as well that I further consider the matter on principle and authority. In so doing I may draw attention to the observations of Brett, L.J., in

Dale''s case (1881) 6 Q.B.D. 376 and . It was a case of a person who was arrested without due compliance with the technical formalities

prescribed by statute. An application was made for a writ of Habeas Corpus on the ground that his arrest and detention were illegal. Brett, L.J.,

stated the law in these terms:

It is a general rule, which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another, he must

take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity, the

Court will not allow the imprisonment to continue. The question here, therefore, is whether the promoters after the matter had been properly

signified to the Court of Chancery have proceeded regularly. (Italics are mine). In my opinion they have not.

Later in the course of his judgment the learned Lord Justice observed:

I desire to state that although in this case I consider that irregularity a matter of substance'' I should be of the same opinion if it were only a matter

of form, because, as I said before, I take it to be a general rule that the Courts at Westminster will not allow any individual in this Kingdom to

procure the imprisonment of another unless he takes care to follow with extreme precision every form and every step in the process just to procure

that imprisonment. I consider this to be a wholesome and good rule, and to be in accordance with the great desire which English Courts have

always had to protect the liberty of every one of Her Majesty''s subjects.

Cotton, L.J., agreed with the above observations in these terms:

I quite agree with Brett, L.J., that when persons take upon themselves to cause another to be imprisoned, they must strictly follow the powers

under which they are assuming to act, and if they do not, the person imprisoned may be discharged, although the particulars in which they have

failed to follow these powers may be matters of mere form. (P. 402).

To the same effect is the decision of the Judicial Committee in dealing with a question relating to the regularity of forfeiture of a man''s property

where some of the steps regulating the exercise of the power of forfeiture had not been duly complied with. James, L.J., observed as follows:

It was the established rule of the Court of Chancery and of the Courts of Common Law that no forfeiture of property could be made unless every

condition precedent had been strictly and literally complied with. A very little inaccurracy is as fatal as the greatest. Here the notice is inaccurate. It

is therefore bad and the forfeiture is invalid.

Mellish, L.J., stated as follows:

I think that if the notice departs in any respect from the statutory form, it is impossible for us to go into the question how much it departs. It is a bad

notice and the subsequent resolution, which is founded upon it is invalid."" Johnson v. Lyttle''s Iron Agency (1877) 5 Ch. D. 687.

Forfeiture of a man''s property or personal freedom can result from the exercise of a power conferred by statute on executive authority and without

the intervention of a Court, but to have that effect, the power must be exercised in strict compliance with the formalities and requirements

prescribed by the statute. It is open to the person aggrieved by the exercise of the power to question the legality of the forfeiture or arrest and

imprisonment on every available ground of non-compliance with the provisions of the statute. In Premila Devi v. The Peoples Bank of Northern

India, Ltd. (in Liquidation) ILR (1939) Lah. 1 , the Judicial Committee observed that in the matter of forfeiture of shares in a limited company the

formalities prescribed by the articles regarding the issue of notices must be strictly observed. Imprisonment except under a sentence or order of a

Court in prima facie unlawful and the person or authority directing such imprisonment must justify the act in law.

It is true that the Legislature in view of the emergency that it was providing against, has authorised detention u/s 2(1)(a) even before informing

the person sought to be detained of the grounds for his detention and hearing his explanation. If the statute had authorised detention after service of

the grounds of detention and after consideration of the explanation, if any, of the person affected, it could hardly be contended that the provisions

as to the service of grounds and the giving of an opportunity for explanation, are not conditions precedent to the exercise of the statutory power of

detention. The provisions would then be considered to be mandatory in character. Do they cease to be such merely because by reason of the

urgency of the situation, these formalities are directed to be complied with subsequent to the initial order of detention? Is the initial order of

detention of greater effect than an interim order passed in a pending judicial proceeding which requires confirmation after notice to the opposite

party and hearing his objections? To take another analogy furnished by the Civil Law, does not a condition subsequent have as great an efficacy as

a condition precedent in connection with the vesting and divesting of rights in property and is not non-performance or non-compliance with either

the one or the other condition, equally fatal? In view of the emergent situations that were in its contemplation and in view of the fact that there might

not be enough time to serve a person with notice and hear his objections before detaining him so as effectively to prevent an apprehended breach

of public peace or order, the Legislature authorised an immediate detention u/s 2(1)(a). But in my judgment substantial compliance with the

formalities prescribed by Section 2(2) and Section 3(1) to (3) is quite essential to sustain the legality of the continuance of the detention. They are

not merely directory provisions whose non-observance would constitute a mere irregularity in procedure. If the non-compliance with the provisions

of Section 2(2) and Section 3 is substantial and serious, it would render the continuance of the detention illegal even though it might have been legal

ab initio. It is not uncommon to find in other fields of law provisions for interim suspension, without previous notice, even of persons holding a

freehold or hereditary office pending enquiry into their misconduct. The nature of the office may be such that instant suspension from the functions

of the office without notice and without giving time for explanation would be necessary in public interest. This interim suspension is different from a

punitive suspension and is merely incidental to the power of removal or dismissal. If the interim suspension is allowed to continue indefinitely

without any enquiry into the alleged misconduct, then it would be a fraud on the power or a mala fide exercise of the power. The position would be

the same if an order for dismissal is passed without giving an opportunity to the persons affected to explain charges of misconduct that might be

made against them. In such cases, the aggrieved person would have his remedy in the Civil Courts. The fact that an interim or initial detention is

legal does not secure for it immunity from attack if the subsequent formalities prescribed by Section 2(2) and Section 3 of Act 1 of 1947 are not

substantially complied with and the continuance of the detention would become illegal by reason of such non-compliance. Any other construction

would result in conferring upon the executive a power of arbitrary detention for an indefinite period which certainly was not the object or intention

of the Legislature in enacting Act 1 of 1947. That the continuance of a detention ab initio legal, might become illegal by reason of a non-compliance

with the mandatory provisions of Section 3(1) was, in substance, the view taken by Horwill and Govinda Menon, JJ., in Criminal Miscellaneous

Petition No. 2128 of 1948 and by my learned brother and Rajagopalan, J., in Criminal Miscellaneous Petition Nos. 200 of 1949 and 91 of 1948.

The same view has been taken by Full Bench decisions of other High Courts (see Murat Patwa Vs. Province of Bihar, and In Re: Rajdhar Kalu

Patil, . The Full Bench decision in G. Narayanaswami Naidu and Others Vs. The Inspector of Police, , dealt only with the challenge against the

validity of the initial order of detention and did not consider the question whether the continuance of the detention which was legal as its inception

could become illegal or improper in view of what happened subsequently or by reason of what the Government subsequently did or failed to do.

(See the observations of Govindarajachari, J., at page 31 of the report.)

The statutory formalities whose non-compliance renders the continuance of the detention illegal may now be briefly noticed so far as they are

relevant to the cases heard by us. An order made by an empowered authority u/s 2(1)(a) has to be reported forthwith to the Provincial

Government together with the grounds of detention and necessary particulars. u/s 3(1), the Provincial Government has to communicate to the

detenu the grounds on which the order for his detention has been made together with relevant particulars. Section 3(2) requires the Provincial

Government to place the grounds and the order of detention, the report, if any, received u/s 2(2) and the representation of the detenu before the

Advisory Council. Section 3(4) requires the Advisory Council to submit their report to the Provincial Government after a consideration of the

materials placed before it. The Provincial Government, after considering the report of the Advisory Council is required to pass an order,

confirming, modifying or cancelling the order of detention u/s 3(5). As I have already stated, there have been instances of inordinate delay at every

one of the stages enumerated above, in the applications that we have heard. I have no reason to doubt that these delays were due to inadvertence,

administrative difficulties and also perhaps, to a lack of appreciation of the heavy responsibility taken by the Provincial Government in constituting

itself both an accuser and a Judge. It is true that there is no time-limit fixed by the Act for the performance of the duties above enumerated but the

result in law is that these steps have to be taken expeditiously and within a reasonable time, Murat Patwa Vs. Province of Bihar, , What is a

reasonable time must, to some extent, depend upon the circumstance of each case. The general principle regulating the time factor in these cases is

thus stated by Horwill, J., in In Re: P. Venkatachala Thevar; In Re: M.V. Sivasankara Thevar, :

It is sufficient to point out that the very magnitude of the powers given to the Government under this Act adds to their responsibility to see that no

man is incarcerated a day longer than is necessary without giving good reasons for it.

To the same effect are the observations of Subba Rao, J., in A.K. Gopalan Vs. The District Magistrate and Another, . Where the delay in

communicating the grounds u/s 3(1) or in submitting the case to the Advisory Council u/s 3(2) or in passing final orders u/s 3(5) is unreasonable

and unexplained to the satisfaction of the Court, it must be held that the continuance of the detention becomes illegal on that ground. See Murat

Patwa Vs. Province of Bihar, , , Durga Das v. Rex AIR (1949) All. 148 Criminal Miscellaneous Petition No. 2128 of 1948 and Criminal

Miscellaneous Petition Nos. 91 of 1948 and 200 of 1949.

Another ground of non-compliance with statutory formalities urged before us in some of these applications is that the grounds communicated to

the applicants are so vague and so devoid of particulars that it is not possible for them or any one in their position to make any effective

representation against the order of detention. It cannot be said that, if this allegation were true, there is merely a breach of a directory provision

contained in Section 3(1) and a mere irregularity not affecting the legality of the detention. Section 3(1) casts a peremptory duty upon the

Provincial Government to furnish the detenu with all the grounds of detention together with the necessary particulars so as to enable him to make a

representation against the legality or the propriety of the order of detention. This object would be frustrated if the grounds are vague and general

without any particulars and without any attempt at precision or accuracy. This provision is meant as a safeguard for the subject against aribtrary

detention by the executive and it is our duty to see that this safeguard is not whittled away in practice. The grounds and particulars must not be

vague, indefinite, or incomplete but must convey sufficient information to the detenu to enable him to make an effective representation, supported

by facts and figures, if necessary, that the detaining authority was wrong in its belief that his detention was necessary in the interests of public safety

or the maintenance of public order. The grounds must contain sufficient details to show that the detention was within the scope and object of the

Act. If, in the opinion of the Court, the grounds furnished are so vague, indefinite and insufficient, that the detenus could not fairly be expected to

make an effective representation against the legality or propriety of the order for detention then, it must be held that his further detention is illegal or

improper. The word of ""grounds"" in Section 3(1) do not merely mean the conclusions of the Government or abstract reasons for their action. They

must by themselves or along with particulars which are required to be furnished, include facts and circumstances on which the conclusions or

reasons are based. If activities which are normally unobjectionable are considered to be objectionable and therefore relied upon as a ground for

detention, then, the circumstances in which or the reasons why those activities are looked upon as objectionable must be indicated to the detenus.

The grounds and particulars together form a sort of substitute for a charge. General, vague and indefinite grounds are no grounds at all and the

detenue should not be left to his own introspection or guess-work to find out what is being alleged against him.

It is true that facts, grounds and particulars may and often do overlap and that u/s 3, the Government is not bound to disclose facts which it

considers against the public interest to disclose. The Government is also given the discretion to furnish only such particulars as are, in its opinion,

sufficient to enable the detenu to make a representation to the Government. The section draws some but not a clear distinction between grounds

and particulars and requires the authority to communicate all the grounds and such particulars as are, in its opinion sufficient to enable the detenu to

make a representation against the order of detention. While facts can be withheld by the Provincial Government on the ground that their disclosure

would be prejudicial to the public interest, grounds and particulars cannot be withheld for that reason. It must be remembered that the only

opportunity the detenu has of vindicating his character and defending his liberty is to make a representation to the Government u/s 3(1) and it is but

fair and reasonable that the grounds and particulars furnished to him should be clear, precise and accurate. Otherwise they would fail to serve the

purpose for which they were required to be communicated to him. The detenu must know what he is charged with and what reasons or

considerations have persuaded the Government to deprive him of his liberty. There is no doubt a discretion given to the Government in the matter

of furnishing particulars but if the particulars are given in such a way as to make it impossible for the detenu to make an effective representation

against the order for detention, then we must hold that there has been a failure to comply with the mandatory requirements of Section 3(1) and the

detention becomes illegal thereafter. Having regard to the nature of the grounds that have been alleged against the applicants in many of the

applications before us, it is necessary to point out that mere membership of a political party or association would not mean that any particular

member was acting in such a manner as to necessitate his detention. The grounds and particulars referred to in Section 3(1) must relate to the

particular individual who is detained and must disclose the facts which led to the belief that he was acting or about to act or likely to act in a manner

prejudicial to public safety or the maintenance of public order. The question is one of substance on the facts and the circumstances of each case

and the applicant will have to satisfy the Court that the grounds and particulars communicated to him are so vague and indefinite that there has been

no compliance in substance and in effect with the requirements of Section 3(1) of the Act. There is a considerable body of authority in the High

Courts of Allahabad, Patna and Bombay, for the views above-stated. See Durgadas v. Rex AIR 1949 All. 148 In Re: Rajdhar Kalu Patil, and

Nek Mohammad and Others Vs. The Province of Bihar, and In re Krishnaji Gopal AIR 1948 Bom. 360.

With reference to the individual cases that have been argued before us, I agree with the conclusions of my learned brother. In view of the

importance and frequent recurrence of the questions that I have discussed above, I have added my own observations.