MOHAMMED ABDUR RAHMAN Vs. HYDERABAD STATE

JUDGEMENT

(1.) THESE five applications have been filed for issuing writs of Habeas Corpus in order to obtain release of five persons is custody. The allegations common to all the five are that the persons mentioned in the application have been arrested on 16 1 -1950 and have been since detained in jail, without original al proceedings being commenced against them, that snob, detenu on is illegal and the detenus are untitled to be released. Notices were issued to the Government Advocate, and the reply filed discloses that on 18 -1 1950, the Sub Inspector of Police, Miriyalguda, has registered offences against them for contravention of Rules 33 and 37, Hyderabad Defence Regulations, as well as Section 15, Hyderabad Public Security Act; that the investigation has since been completed and a challan relating to these offences has been filed on 1 -3 -1950 in the Magistrate's Court at Miriyalguda. Paragraph 3 of the reply, however, discloses that before the filing of the challan and on the passing of the Preventive Detention Act, fresh orders for their detentions under Section 8 of the Act were passed by the Government with a view to prevent their acting prejudicially to the maintenance of public order and security.

(2.) COPIES of tin first information report, and of the warrants of detention have been produced. It appears that copies of the grounds of detention were later filed, but they were misplaced Fresh copies of these grounds were again furnished by the Advocate General and have been taken on record. No documents, however, showing these person production before the Magistrate or their being remanded to jail by the Magistrate have been filed. On the contrary, from the certified of an order passed by the Magistrate on application for bail, which has been filed in this Court on behalf of the applicants, it appears that one of the objections raised by the prosecution to their being let out on bad was the absence of any order of remand by the Court, Not remanding the accused to jail is also one of the grounds given by the Magistrate for refusing the bail applications It is, therefore, dear that these five persons are being detained under the Preventive Detention Act, While a challan relating to their having committed certain offences is still pending before a Court of law; and further there is no order by that Court directing their detention in Jul. In these circumstances, we have to determine bow far the warrants issued under Section 3, Preventive Detention Act, are legal and in proper exercise of the powers conferred by the Act.

(3.) THE highest Court in this country has defined both of them in more precise terms. The expression 'preventive detention' appeared as description of the topic of legislation in Item of List II in Sch. VII, Government of India Act, 1935, and in a case where a question arose as to whether the Bihar Maintenance of Public Order Ordinance was intra vires and which is reported in Lakhi Narayan Das v. Province of Bihar, A.I.R. 1950 F.C. 59 at p. 66 the Federal Court says: