RABINDRA NATH MITRA Vs. CHIEF SECRETARY

JUDGEMENT

(1.) The question for our decision in all these Rules, which were issued in favour of sixty-three persons as regards their detention in different jails, is whether their detention is valid. The learned Deputy Legal Remembrancer has produced before us for each of these persons the order of detention passed under the Preventive Detention Act. Prima facie, these are valid orders for detention. On behalf of the detained persons it has, however, been contended that the orders of detention are invalid. The first contention which is common to all the cases except a few, namely, Miscellaneous Cases Nos. 954 of 1960 and 55 of 1951, is that in communicating the grounds for detention, the detaining authority has, in each of these cases, mentioned as one of the facts on which the decision to detain was taken, the fact that the detenue either assisted or was connected with the Communist Party of India which was an illegal organisation, having been declared unlawful under Section 16 of the Criminal Law Amendment Act. It has been urged before us on the authority of the decision of this Court in the case of Narayan Chandra Baidya v. Chief Secretary to the Government of West Bengal,1951 CMC 648 of 1950 decided by Sen and Chunder JJ. on January 5, 1951, that this declaration is void in law. Consequently it was argued that the declaration of the Communist Party as unlawful having no validity in law cannot legally form the basis of any conclusion and thus the satisfaction of the detaining authority was not a satisfaction in law. It was held in the above case that--

(2.) It was further held that as the order of detention upon consideration of an illegal ground vitiates the entire detention order, the detention of persons that was based, among other things, on the reason that the Communist Party had been declared unlawful was bad in law. We are bound on the authority of this decision to hold that Section 16 of the Indian Criminal Law Amendment Act is void. We wish to add, with respect, that we ourselves are of the same view, as, in our opinion, the provisions of this section put a restriction on the fundamental right which the Constitution of India gives to every citizen under Article 19(2)(c) and which cannot be considered to be reasonable within the meaning of Clause (4) of that Article.

(3.) On the further question, however, whether the, fact that the order of detention was based partly on this illegal declaration vitiates the order, we are of opinion that the decision of this Court in Narayan Chandra Baidya's case must be held to have been overruled by the Supreme Court's decision in Tarapada De v. State of West Bengal,1951 CMC 648 of 1950 decided by Sen and Chunder JJ. on January 5, 1951. In that case the Supreme Court had to-consider the appeal of one hundred persons whose prayer for release under the provisions of Section 491 of the Code of Criminal Procedure and for a writ in the nature of habeas corpus under Article 226 of the Constitution of India had been refused by a Bench of this Court. The Supreme Court had, therefore, to decide in disposing of this appeal the legality of a large number of detention orders each of which was based among other things, on the fact that the Communist Party had been declared unlawful. In spite of this the Supreme Court held the detention to be legal. While the judgment delivered by their Lordships does not contain any discussion of the contention that is pressed before us we have to remember that this question was raised and discussed in the judgment of this Court which was appealed from; In dealing with this argument, Roxburgh J. and Lahiri J. expressed their view that, assuming that Section 16 of the Indian Criminal Law Amendment Act was invalid, this had no bearing on the validity of the orders of detention. This aspect of the matter was, therefore, present before the Supreme Court and by dismissing the appeal they must be held to have decided that the fact that the declaration of the Communist Party of India as an illegal association appeared as one of the grounds or particulars for detention did not vitiate the order for detention. The first contention, therefore, fails.