EMPEROR Vs. ABDUL MAJID ABDUL AZIZ

JUDGEMENT

(1.) THIS is an appeal against an order of the Presidency Magistrate, 20th Court, acquitting the accused who was charged under Section 2 (6) of the Bombay Public Security Measures Act (Bom. VI of 1947 ).

(2.) THIS appeal raises rather an important question of principle. An order was made against the accused on June 24, 1947, by the Commissioner of Police under Section 2 (1) (b) of Bombay Act VI of 1947. The accused complied with the order and left the jurisdiction of the City of Bombay. But. he came back to Bombay in November and thereby contravened the order. He was arrested on November 22, 1947, and he was prosecuted under Sub-section (6) of Section 2 for contravening the order made by the Commissioner of Police. The learned Magistrate took the view that the prosecution had failed to establish the conditions laid down, by the Legislature for the making of a valid order under Section 2 (1) (b), and, therefore, the accused was entitled to an acquittal. The Advocate General has contended before us that the judgment of the learned Magistrate is wrong and that the prosecution had established all that was incumbent upon it to establish by merely tendering the order passed by the Commissioner of Police and it was the duty of the Court to accept the order ex facie as valid, and, if it was satisfied that the accused had contravened the terms of the order, to proceed to convict the accused and pass the proper sentence.

(3.) THE learned Chief Justice at p. 491 concedes that the very foundation for an order under Section 27 of the City of Bombay Police Act was the movements or encampment of any gang or body of persons. In other words, unless the objective fact with regard to a gang or body of persons was established, the Police Commissioner had no jurisdiction whatever to act under that section. THEn at p. 498 the learned Chief Justice lays down, two important principles : In our opinion, it is a well established principle that where an Act of Parliament confers upon an authority power to make an order in certain conditions, and it is sought to impose a penalty for breach of an order made by the authority, it is incumbent upon the Court hearing the charge to consider whether the order was properly made and to be satisfied on two points : first, that the authority has acted reasonably and not capriciously or oppressively; and, secondly, that the conditions imposed by the statute have been observed. With very great respect we entirely agree with these observations and we will indicate presently how these observations have got to be applied to a case which falls under the Bombay Public Security Measures Act. THEn at p. 493 the learned Chief Justice says : It is quite true that it is for the Commissioner to be satisfied, and not for the Court. All that the Court can do is to see that there was material before the Commissioner on which he could property be satisfied. Now, with very great respect to the learned Chief Justice, if the satisfaction is of the Commissioner or of the Provincial Government, then it is difficult to understand how the Court can judge whether the Commissioner or the Provincial Government is properly satisfied or not. If you import the idea of being properly satisfied, you are immediately substituting your own judgment for that of the Provincial Government or the Police Commissioner, unless the learned Chief Justice used the expression "properly" to mean that in coming to the conclusion the Commissioner of Police had not been influenced by any consideration which was foreign to the purpose or scope of the Act within which he was acting. And we might also point out that this observation would be, with respect, perfectly appropriate to the particular facts which the learned Chief Justice was considering in that case; because as we have pointed out, if the Police Commissioner had to prove before a Court of law that the objective fact required by Section 27 existed, then certainly the Court would have the right to consider whether the materials on which the Commissioner of Police came to that conclusion were proper materials or not. But in the case before us there is no question of the determination of any objective fact and therefore there is no question of the Court considering the propriety or the adequacy of the materials before the detaining authority on which the decision of the detaining authority was based.