Siddique Ali vs Province of Bihar and Others

Das, J.—This is a petition u/s 491. Criminal P.C., on behalf of one Siddique Ali, Chief Store-Keeper in the Tinplate Company, Limited, at Jamshedpur in the district of Singhbhum. The petitioner was arrested on 9th August 1948, at Jamshedpur and was detained in the Purulia Jail by virtue of an order of the Deputy Commissioner of Singhbhum who exercises the powers of a District Magistrate in that district u/s 2(1)(a), Bihar Maintenance of Public Order Act, 1947 (hereinafter referred to as the Act). Such an order is valid only for 15 days under Sub-section (2) of Section 2 of the Act. The petitioner was served with a copy of the grounds of his detention by the Deputy Commissioner on 16th August 1948. On 23rd August 1948, the Provincial Government passed an order under Clause (a) of Sub-section (1) of Section 2 of the Act directing the detention of the petitioner until further orders of the Governor of Bihar. A copy of this order was served on the petitioner on 27th August 1948. On 30th or 3lst August 1948, the Provincial Government communicated to the petitioner the grounds on which the order of detention had been made against him. This communication was made in compliance with the provisions of Section 4 of the Act. As the arguments on behalf of the petitioner have mainly centred round these grounds, I shall quote them in full:

In pursuance of Section 4, Bihar Maintenance of Public Order Act, 1947, Siddique Ali, son of Saheb Ali of P.S. and P.C. Chicacole, district Gazagapattam (Madras), at present Chief Store-Keeper, Tinplate Co. of India, Ltd., P. Section Golmuri, Jamshedpur, is informed that he has been ordered to be detained on the following grounds:

That he has a bad communal history. Thus in 1946 he was responsible for manufacturing swords, sword-sticks, bhalas at Jamshedpur Industries and got them distributed among the Muslim population of Jamshedpur and exported these weapons for distribution among the Muslims in Calcutta.

Recently, he organised a suicide squad known as the Muslim Janbas Volunteer Anjuman Gunchae Islam which is a secret body ready to indulge in lawlessness end sabotage of industrial plants at the appointed time to the detriment of the Government of Indian Union. Being an organiser of this militant group Siddique Ali is expected to play a prominent part in executing these lubversive plans.

Since after 15th August 1947, he has been sending emissaries outside the Indian Union to pass on intelligence and regularly receives instructions from outside.

It will not be in the public interest to disclose either the nature of instructions, or the person to whom this is sent, or the time or method of communicating such intelligence,

Government have received information from reliable source that Siddique Ali holds regular meetings at a Mosque at Sakchi where funds are collected for assisting Hyderabad whioh Government is known to have carried out war-like preparation'' directed against the Government of India. Even regarding the Kashmir operations, Siddique Ali held secret prayer meetings in the mosque in which prayers were offered for the victory of the raiders against whom, Siddique Ali knows, the troops of the Indian Union are engaged. Khasta Khan, an ex-employee of the Tinplate Company is reported to have joined the Razakars at Hyderabad under his instructions, and Government have received dependable information, the source of which cannot be disclosed, that Siddique Ali has been receiving Muslims from outside the Indian Union making selections and sending the selected persons to join the Razakars in Hyderabad. There is strong suspioion that he has a hand in allowing secret smuggling of chemical and explosives from the Company''s stock. One indication of his unlawful activities was disclosed on 9th August 1948 when from his house was received as many as 163 round of 112 bore ammunition in excess of what; was permitted by his license.

In the circumstances the Provincial Government are satisfied that if he is allowed to remain at large, he will indulge in his activities to the prejudice of public safety and the maintenance of public order.

Siddique Ali is informed that he has a right to make a representation in writing against the order under which he is detained. His representation, if any, may be addressed to the Joint Secretary to Government, Political'' Department, and forwarded through the Superintendent of the Jail.

By order of the Governor of Bihar, Sd. Illegible. 30.8. Additional Under Secretary to Government.

The order of the Provincial Government containing the grounds, dated 30th August 1948, was authenticated by an Additional Under Secretary to the Government of Bihar.

The aforesaid facts are no longer in dispute. On behalf of the petitioner the order of detention has been challenged on the following main grounds: (1) That the order of detention is in excess of the powers conferred on the Provincial Government by Section 2 of the Act; (2) that the order is mala fide, and, therefore, a sham order; and (8) that the order, not being authenticated as required by Section 59, Government of India Act, 1935, is not a valid order of the Provincial Government.

It would be convenient if I take these grounds in the order in which they have been stated above. As to the first ground, learned Counsel for the petitioner has contended before us that the Act, as stated in the preamble, is to provide for preventive detention, etc., in connexion with the public safety and maintenance of order, in the Province of Bihar. He has emphasised the words "in connexion with the public safety and maintenance of order in the Province of Bihar." He has also drawn our attention to Section 99, Government of India Act, 1935, as adapted up to date, Sub-section (1) of which states that subject to the provisions of this Act, the Dominion Legislature may make laws (including laws having extra-territorial operation) for the whole or any part of the Dominion, and a Provincial Legislature may make laws for the Province or for any part thereof. Learned Counsel has also invited our attention to Schedule 7 which contains the three Legislative Lists, particularly to'' item 1 of the Federal Legislative List which mentions, among other matters, "preventive detention for reasons of State connected with defence, external affairs or relations with Acceding States." He has then drawn our attention to item 1 of the Provincial Legislative List which refers, among other things, to "preventive detention for reasons connected with the maintenance of public order; persons, subjected to such detention." u/s 100, Government of India Act, 1936, the Provincial Legislature has no power to make laws with respect to any of the matters enumerated in the Federal Legislative List. The contention of learned Counsel for the petitioner is not that the Bihar Maintenance of Public Order Act, 1947, is ultra vires the Provincial Legislature; that contention was raised by learned Counsel in Nek Mohammad and Ors. v. The Province of Bihar Cr. Misc. No. 107 and Ors. of 1948, decided on 30th July 1948 by a Full Bench of this Court. What learned Counsel has contended in the present case is that the Act passed by the Provincial Legislature can have no extra-territorial application and the grounds of detention must have reference to or connexion with the public safety and maintenance of order in the Province of Bihar. The emphasis is on the words "in the [Province of Bihar." It is contended that the grounds of detention mentioned in the order dated 30th August 1948, are grounds which have no connexion with the public safety and maintenance of order in the Province of Bihar, though, they may have some-connexion with the public safety and maintenance of order in some other part of the Dominion of India or an Acceding State or the defence of India. Learned Counsel has submitted that grounds which have no connexion with public safety and maintenance of order in the Province of Bihar, cannot legally justify an order of detention u/s 2(1)(a) of the Act, and an order of detention passed on such grounds will be in excess of the powers conferred on the Provincial Government by the Act. Let us examine these arguments with reference to the grounds given. But before I do so I should like to make it clear that a particular ground may have reference to or connexion with public safety and maintenance of order in the. Province of Bihar and may, at the same time, have reference to consequences or repercussions outside the Province of Bihar. The consequences of a pre-judicial act need not necessarily be confined to the Province of Bihar, and the fact that it may have repercussions or consequences outside the Province of Bihar does not necessarily oust the jurisdiction of the Provincial Government to pass an order under the Act, provided that the ground based on the prejudicial act has connexion with or reference to the public safety and maintenance of order in the Province of Bihar. It must, I think, be conceded that the Provincial Government cannot pass an order of detention under the Act on grounds which have only reference to or connexion with the defence of India or the external affairs of India and which have no connexion with the public safety and maintenance of order in Bihar. That, I think, would be in excess of the powers conferred by the Act and would be tantamount to holding that the Act had encroached on the Federal Legislative List. Where, however, the ground has reference to the public safety and maintenance of order in the Province of Bihar, though it may have repercussions or consequences outside the Province of Bihar, it is quite within the powers of the Provincial Government to pass an order of detention under the Act on such a ground. The learned Advocate-General invited our attention to a recent decision of the Privy Council in (1948) 16 ITR 240 (Privy Council) which was a decision dealing with the Income tax Act, 1922-39. One of the questions which arose for decision in that case was the effectiveness in law of the charging section is the Income Tax Act in its application to companies which satisfied the basis set forth in the definition of residence, as respects their total income computed as including income arising without British India. The contention of the appellant-company in that case was that legislation in regard to Income Tax having an extraterritorial operation was ultra vires the Central Indian Legislature. Their Lordships then observed as follows:

There is no rule of law that the territorial limits of a subordinate Legislature define the possible scope of its legislative enactments or mark the field open to its vision. The ambit of the powers possessed by a subordinate Legislature depends upon the proper construction of the statute conferring those powers. No doubt, the enabling statute has to be read against the background that only a defined territory has been committed to the charge of the Legislature. Concern by a subordinate Legislature with affairs or persons outside its own territory may, therefore, suggest a query whether the Legislature is in truth minding its own business. It does not compel the conclusion that it is not. The enabling statute has to be fairly construed.

Their Lordships then examined Section 99, Government of India Act, 1935, and relevant provisions of the Income Tax Act, and came to the conclusion that a company having derived the major part of its income for a year from British India could be treated as at home in British India for all purposes relating to taxation on its income for that year from whatever source that income might derive. The learned Advocated-General has relied on this decision for the purpose of calling in aid the observations of their Lordships that the ambit o� the powers possessed by the subordinate Legislature depends upon the statute conferring those powers and the territorial limits of the subordinate Legislature do not necessarily define the possible scope of its legislative enactments or mark the field open to its vision. It is true that their Lordships were dealing with an enactment passed by the Central Legislature, and the question of any encroachment by the Provincial Legislature into the Federal Legislative field did not arise for consideration. I do, however, think that the decision strengthens the view which I have expressed above, namely, that a ground of detention which has reference to the public safety and maintenance of order in the Province of Bihar does not lose its force and validity under the Act merely because it may have a wider aspect or consequences not necessarily confined to the Province of Bihar.

In the grounds it was stated that in 1946 the petitioner was responsible for manufacturing swords, sword-sticks, etc., at Jamshedpur and got them distributed among the Muslim population of Jamshedpur and exported those weapons for distribution against (among?) the Muslims in Calcutta. Now, excluding the portion which relates to distribution in Calcutta, the fact that in 1946 the petitioner was responsible for manufacturing swords, sword-sticks. Etc and got them distributed amongst the Muslim population of Jamshedpur, has certainly a close connection with the public safety and maintenance of order in the Province of Bihar. Even sending of arms from Bihar to Calcutta by a person resident in Bihar may have adverse effects on the maintenance of order in Bihar. It cannot, therefore, be said that the ground mentioned takes the order of detention beyond the purview or purpose of the Act. Learned Counsel for the petitioner said that an act done in 1946 could not be a ground for detention in 1948. If this ground had stood by itself, there might have been some force in the argument. There are, however, other grounds It must also be remembered that Section 2(1) of the Act is meant for preventive detention, that is, preventing a person from acting in any manner prejudicial to the public safety and maintenance of order. An inference from past acts cannot be said to be shut out by the provisions of that Act. I had dealt with this aspect of the matter in the Full Bench case of Nek Mohammad and Ors. v. The Province of Bihar cr. Misc. No. 107 and Ors. of 1948 decided on 30th July 1948, and need not repeat what I had stated there. The second ground mentioned against the petitioner was that he organised a suicide squad--a secret body ready to indulge in lawlessness and sabotage of industrial plants at the appointed time to the detriment of the Government of the Indian Union. Read with reference to the context, this ground has reference to the industrial plants at Jamshedpur and has a very close connection with the public safety of Bihar. The third ground stated that the petitioner had been sending emissaries outside the Indian Union to pass on intelligence and regularly received instructions from outside. It may be open to some doubt if this ground standing by itself has any particular reference to the public safety and maintenance of order in the Province of Bihar. The fourth ground undoubtedly relates to the public safety and maintenance of order in Bihar so far as it relates to holding of meetings in a mosque at Sakchi. The raising of volunteers for assisting Hyderabad and the sending of money to Hyderabad and Kashmir at a time when fighting was going on in those two States has undoubtedly a close connection with the public safety and maintenance of order in the Province of Bihar. These acts have repercussions in the Province of Bihar and very well lead to communal disturbances. I am, therefore, of the opinion that the grounds of detention in this case are well within the purview of the Act and the order of detention passed against the petitioner cannot be held to be in excess of the powers conferred on the Provincial Government by the Act.

I now turn to the second contention. Learned Counsel has placed before us several affidavits--a supplementary affidavit by one Mohammad Wasil, an affidavit by one Abdul Gani and a third affidavit by W.O. Henderson. We have examined these affidavits. In our opinion, the statements in those affidavits do not raise any doubt or suspicion in our mind regarding the good faith of the Provincial Government. It is now well settled that the recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a Court as establishing the necessary condition for passing an order of detention. The onus of showing bad faith rests heavily on the petitioner, and I do not think that the onus has even been remotely discharged. A grievance has been made before us that the grounds of detention as given by the Deputy Commissioner have not been produced. It is contended that those grounds would have shown that they were entirely different from the grounds mentioned by the Provincial Government. Assuming that the grounds given by the Deputy Commissioner were different, it does not necessarily follow, that the Provincial Government acted in bad faith. The Provincial Government may have in their possession more materials, and in the absence of any evidence to the contrary, we cannot hold that the Provincial Government made inaccurate recitals in the order containing the grounds of detention. I may state here that the affidavit filed by Mr. Abdul Gani is of no particular assistance. It relates to an impression which the deponent got from his talks with the Prime Minister. As against this affidavit, there is an affidavit filed by an assistant of the Political Department to the Government of Bihar, who has stated that the necessary papers were submitted to the Prime Minister who assented to the order of detention. Even if this affidavit were not before us, we could not have held on the statements of Mr. Abdul Gani that the Provincial Government had not acted in good faith. The affidavit of Mr. Henderson does not carry the matter any further. It relates to that part of the grounds which states that the petitioner had a hand in allowing secret smuggling of chemicals and explosives from the Tinplate Company''s stock.'' Mr. Henderson states that the company had no stock of explosives for the last 25 years. As to chemicals, all that Mr. Henderson states is that it was never reported to him that chemicals or explosives had been smuggled from the store of the company. It is not usual to report such secret smuggling to the head of the firm, and whether Mr. Henderson knew of such smuggling or not is beside the point. Moreover, the smuggling of chemicals or explosives is neither the only nor the main ground for the detention of the petitioner. Mr. Mohammad Wasil''s supplementary affidavit relates mainly to the non-production of the grounds of detention made by the Deputy Commissioner to which I have already referred. In my opinion, the petitioner has totally failed to make out any case of bad faith.

I now turn to the last and most important contention on behalf of the petitioner. It is contended that the order containing the grounds of detention having been signed by an Additional Under Secretary is not an order of the Provincial Government, and, as such, the order of detention is not a legal order. I may observe here that the order of detention dated 23rd August 1948, in this case is signed and authenticated by an Under Secretary to Government The grounds of detention dated 80th August 1948, are however, signed by an Additional Under Secretary. The grounds are communicated u/s 4 of the Act. It may be doubted if the communication of grounds should take the form of an order or instrument, and in that view of the matter it may be doubted if the order of detention, which is properly authenticated, can be held to be invalid by reason of the fact that the grounds were communicated by an Additional Under Secretary. We have, however, considered the question on the footing that the grounds have taken the form of an order which is signed not by the Under Secretary to Government, but by an Additional Under Secretary to Government. Sub-section (1) of Section 59, Government of India Act, 1935, requires that all executive action of the Government of a province shall be expressed to be taken in the name of the Governor. Sub-section (2) states that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. The learned Advocate-General has placed before us a copy of the Rules of Executive Business made by the Governor under Sub-sections (2) and (3) of Section 59, Government of India Act, 1935. The relevant rule is Rule 13 which is in the following terms:

Save in oases where an officer has been specifically empowered to sign an order or instrument or the Government of Bihar, every such order or instrument shall be signed by either the Secretary, the Additional Secretary, the Joint Secretary, the Deputy Secretary, the Under Secretary or the Assistant Secretary to the Government or Bihar and such signatures shall be deemed to be the proper authentication of such order or instrument.

The designation "Additional Under Secretary" does not occur in the rule, though "Additional Secretary" occurs in it. The contention of learned Counsel for the petitioner is that the signature of an Additional Under Secretary is not proper authentication and the order is not, therefore, legally valid. Learned Counsel for the petitioner has referred to certain observations made by the Court of Appeal in England in Dale''s case; Enraght''s case, (1881) 6 Q.B.D.P. 376. The writ which was issued in that case from the Petty Bag office should have been brought into the Queen''s Bench and opened there in the presence of Justices, in order that the mind of the Court might have been, if necessary, addressed to it to see whether it was such a writ as the Court of Queen''s Bench would take upon itself to execute. The question was whether this defect was one of substance or of form only. James L.J. held that it was a defect of substance. Brett L.J. observed:

It is a general rule, which has always been acted upon by the Court 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.

Brett L.J. further stated that the irregularity was a matter of substance, but added that even if it were only a matter of form, the general rule was that the Courts at Westminster would not allow any individual to procure the imprisonment of another unless he took care to follow to the extreme precision every form and every step to the process. Cotton L.J. also expressed the same view. I do not think these observations are of any particular assistance to the petitioner in the present case; for I am of the view that an Additional Under Secretary does not cease to be an Under Secretary merely because of the addition of the word "Additional." Take for example, a case where there are more than one Under Secretary, say two or three Under Secretaries. One is called Under Secretary, and the others are called Additional Under Secretaries. The word "Additional" has reference only to the number of persons holding the same designation or office. An Additional Under Secretary is, therefore, an Under Secretary to the Government of Bihar and can authenticate an order under Rule 13 of the Rules of Executive Business. An order so authenticated is a legally valid order. Rule 13 does not mention the Chief Secretary, and to my knowledge, it has never been contended that the Chief Secretary is not a Secretary to the Government of Bihar merely because of the addition of the word "Chief" to his designation, At first sight, some difficulty may be felt by the fact that the expression "Additional Secretary" occurs in the rule. It may be contended, as has been contended before us, that if the expression "Secretary" included an "Additional Secretary" it was not necessary to include the latter expression in the rule. There may, however, be more than one reason for the inclusion of "Additional Secretary" in the rule: the inclusion may have been made by way of abundant caution. On behalf of the Crown an affidavit has been filed in which the functions of the Additional Secretary and the Additional Under Secretary have been explained. It has been stated there that an Additional Secretary is subordinate to the Secretary; therefore, it was necessary to mention him separately. But an Additional Under Secretary is not subordinate to the Under Secretary, but is merely a second or third Under Secretary. This may be the reason why the expression "Additional Secretary" occurs in the rule, whereas the expression "Additional Under Secretary" does not occur in it. I do not, however, think that the exercise of particular functions has anything to do with the interpretation of the rule; nor is this Court bound by the interpretation of a statutory rule as given by the officers of the Provincial Government. This Court has to give its own interpretation of a statutory rule. Whatever be the functions performed by a Secretary or an Under Secretary, they are competent under the rule to authenticate an order of the Governor of Bihar. An Additional Under Secretary is also an Under Secretary; he does not cease to be an Under Secretary by the addition of the prefix "Additional." That being the position, I am of the view that he is competent to authenticate an order of the Governor of Bihar, and there was no formal defect in the order containing the grounds of detention which was served on the petitioner. Learned Counsel for the petitioner has referred to the position of a Parliamentary Secretary and to Notification No. 2994-A, dated 29th June 1946 by which certain gentlemen were appointed as Parliamentary Secretaries. As the notification itself shows, Parliamentary Secretaries are not Secretaries to the Government of Bihar, though they were appointed to deal with business arising in certain departments. They, therefore, do not come within the meaning of Rule 13 of the Rules of Executive Business, and I do not think that learned Counsel for the petitioner can get any assistance to his interpretations of Rule 13 from the appointment of Parliamentary Secretaries.

I must mention two recent decisions of this Court in this matter, both of which are unreported. One is Bilas Rai Bohit Ramka v. The King criminal Revn. No. 365 of 1948 decided by my Lord the Chief Justice on 18th May 1948; the other is a decision by us in Province of Bihar v. Chhedilal Sharma Government Appeal No. 7 of 1948, decided on 8th September 1948. In both these cases, the order was signed by somebody for the Additional Under Secretary to Government. This is a distinction of vital importance. A statutory order must be signed and authenticated as required by the statute; some undesignated person cannot sign the order for the Secretary or Under Secretary or other officer designated in the rule. The order must be signed by one of the officers designated in the rule. In the case before us, the order has been "So signed, as in our view, the Additional Under Secretary is an Under Secretary to the Government of Bihar despite the prefix "Additional." To borrow the expression of a famous Chief Justice, it would be "piling unreason upon technicality" to interpret Rule 13 of the Rules of Executive Business in the way desired by learned Counsel for the petitioner. There was also some argument before us as to whether the first part of Sub-section (2) of Section 59, Government of India Act, 1935, was merely directory, and it was open, to the Provincial Government to prove by independent evidence or affidavit that the order was really one by the Provincial Government, though authenticated by an Additional Under Secretary. I do not think that it is necessary to decide that question in view of our finding that an Additional Under Secretary is an Under Secretary to Government and is competent to sign and authenticate an order as required by Section 59, Government of India Act, 1985.

In the result the contention raised on behalf of the petitioner fails, and the order of detention passed against the petitioner is valid order. The petition u/s 491, Criminal P.C., is accordingly dismissed.

Narayan J.

I agree.