JAYANTILAL NATHUBHAI PAREKH Vs. STATE

JUDGEMENT

(1.) THIS is an application under the provisions of Section 491 of the Criminal Procedure Code for release from detention of the applicant who, now it appears from the return which has been made, is detained by an order passed by the District Magistrate of Ahmedabad bearing the date April 2, 1948, for his detention. It was the case of the applicant that he was actually arrested in the district of Surat on April 30, 1948, without a warrant and without any copy of any detention order being served upon him, and that a copy of the order, which it is now contended authorized the detention, was given to him only on May 3, 1948. He said that consequently, in the first instance, his arrest was illegal, and, secondly, that his detention under the order was also illegal, because, even though the order bore the date April 2, 1948, when it was served upon him, it was an ante-dated order which had not been passed on April 2, 1948. There were other grounds upon which he said that the order was bad; but it will be more convenient to mention them a little later.

(2.) THE order in this case purports to be passed under Section 2 of the Bombay Public Security Measures Act (Bom. VI of 1947 ). Section 2, Sub-section (1), Clause (a), of which enables the Provincial Government, if it is satisfied that any person is acting in a manner prejudicial to the public safety, the maintenance of public order, or the tranquillity of the Province or any part thereof, to make an order directing that he be detained. Section 21 of the same Act then provides that: THE Provincial Government may by an order direct that any power or duty, which is conferred or imposed on the Provincial Government, shall in such circumstances and under such conditions, if any, as may be specified in the order, be exercised or discharged by any officer or authority subordinate to it, not lower in rank than a Deputy Commissioner of Police in Greater Bombay, or the District Magistrate, or Additional District Magistrate elsewhere. It appears that under a notification to which reference will be made later the powers of the Provincial Government under Section 2 have been delegated to the District Magistrate of Ahmedabad; and the District Magistrate purports to make this order under Section 2 because of the powers so delegated to him.

(3.) THEN there is made before us, what may be called, a subsidiary point and that is that Section 3 of the Bombay Public Security Measures Act, 1947, requires the Provincial Government, or when the liability for communicating under Section 3 was laid upon the District Magistrate, the District Magistrate, to inform the detenu not only with regard to the grounds and particulars but also with regard to a right which the detenu had, namely, to make a representation to the Provincial Government against the order. The applicant pointed out that the grounds which were furnished to him did not specifically tell him that he had a right to make a representation to the Provincial Government against the order. It was said that consequently there was another failure in regard to the mandatory provisions laid down in Section 3 and the order of detention was consequently bad.