HAQIQATULLAH KHAN Vs. STATE

JUDGEMENT

(1.) This Ct has been moved by Haqiqatullah Khan for action being taken under Section 491, Cr. P. C. on the ground that his detention in the Central Jail of Jodhpur under the orders of the Rajasthan Govt was illegal & improper.

(2.) A few facts may be stated to show how the question involved in this petn arises. On. 10-12-1949 an order was passed by the Govt of the United States of Rajasthan that it was satisfied that with a view to prevent the petnr from acting in a manner prejudicial to public safety, the maintenance of public order & communal harmony, it was necessary to detain him. An order was accordingly passed that he shall be arrested forthwith & detained in Jail for a period of six months from the date of his arrest. It is alleged in the petn that he was actually arrested under the Rajasthan Public Security Ordinance of 1949 on 11-12-1949. On 26-1-1950, the Constitution of India came into force & according to Article 13 (1), all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they were inconsistent with the provisions of Part III became to the extent of such inconsistency, void. According to Article 22 Clause (4), Constitution of India, a person could not be detained under the Preventive Detention Act for a longer period than three months. By Clause (7), it was provided that the parliament may by law prescribe the circumstances under which a person may be detained for a period longer than three months. It became necessary, therefore, that the parliament should legislate & amend the law relating to preventive detention with the result that on 25-2-1950, the Preventive Detention Act IV (4) of 1950 was enacted & it was expressly provided in Section 12 that a person may be detained for a period longer than three months but not exceeding one year from the date of his detention. The result of this enactment was that on 26-21950 a fresh order of detention was drawn up & served upon the petnr. In this order, it was stated that the petnr was being detained in order to prevent him from acting in a manner prejudicial to the security of the State. The period of detention was not mentioned in this order. The period was specified by another order passed on 4-7-1950 according to which the petnr was to be detained for nine months beginning from 26-2-1950. Under the first order of detention dated 10-12-1949 the Govt furnished to the petnr the various grounds on which the order of detention had been made. These grounds run as follows: (i) The said Shri Haqiqatullah Khan was an extreme communalist & his activities were calculated to promote feelings of enmity & hatred between Muslims & Hindus, (ii) he was in league with some anti-Indian elements in Pakistan & was in secret communication with them. He had been requesting them to get some people ready who could return to Marwar & settle there with a view to assist him in his anti-Indian & anti-Hindu activities; (iii) he used to visit Barmer & the border terminus railway station on the Jodhpur State Railway, Munabao frequently on the pretext of being an importer of certain goods from Pakistan. But in fact he used to contact Muslims coming into India or going out to Pakistan & thus pass on the information to Pakistan; (iv) He had secret discussion & meetings with the Muslims of Nagpur & Roal. He exhorted the Muslims to unite & make a firm stand against the Hindus. He further asked them to keep arms & ammunition in order to meet the Hindu menace, otherwise he said the days were not far off when Muslim houses in Marwar would be looted & their women would be dishonoured. He got those present to sign the pledge. As a result of such speeches communal riots took place at Roal & Nagpur. On search by the local Police, loaded guns, ammunitions & swords & 'frasas' were discovered in the houses of some Muslims; (v) he visited Merta where he delivered similar speeches; (vi) in the opinion of the Govt his remaining at large would constitute a grave danger to the public safety, the maintenance of public order & communal harmony.

(3.) This was done practically on the same day on which the order of detention was passed. The second order of detention was passed on 26-2-1950, but for reasons which have not been explained, the grounds of detention were not communicated to the petnr till 21-3-1950. The petnr complained in this Ct by means of an affidavit dated 8-7-1950 that the grounds of his detention were read over to him on 21-3-1950 by the Supdt, Jail & after he had made an endorsement "received one copy", the Supdt had refused to supply the copy to him. Thereupon, the Supdt, Central Jail, was called to explain by means of an affidavit how the matter stood. The affidavit furnished by him is on the record & it is clear from a perusal of it that although a copy could not be given to him according to the rules of the Jail, he was allowed to see the grounds on many occasions & had made use of the memorandum containing the grounds of his detention frequently before drafting the representation to the Govt. The affidavit further points out that copy of the grounds of his detention was never asked for either by the petnr or by his counsel & that copies of the detention orders dated 11-12-1949 & 26-2-1950 were supplied to the latter on 6-6-1950 on a demand by him. It appears from the record that the petnr had already retained a counsel who drafted his representation to the Govt on 3-5-1950. Another representation was drafted by the petnr himself & is a very lengthy document covering nearly 3 1/4 foolscap pages & deals with all the grounds one after another in detail. It is not necessary to set out over again the grounds which had been read out to the petnr on 21-3-1950 as they are identical with those given above. By means of a letter dated 7-6-1950, the petnr was informed that his representation had been rejected by the Govt. On 12-6-1950, the petnr filed the present petn under Section 491 Cr. P. C., in this Ct & the following grounds have been specifically raised by him: (1) That since in the detention order dated 26-2-1950 the period of detention was not disclosed, the detention after the expiry of six months was illegal & improper. (2) That the grounds of detention were read over to the petnr on 21-3-1950 but in spite of a demand, a copy of the ground was not supplied to him. The petnr could hardly recollect the charges against him & the result was that he was deprived of the right of making any representation refuting the charge. The Govt by not supplying a copy of the grounds did not comply with a mandatory provision of the law &, therefore, the detention of the petnr was illegal. (3) That the petnr was in custody since 10-12-1949 & under Section 12, Preventive Detention Act of 1950, it was incumbent upon the Govt to review the detention order but that since this had not been done, further detention of the petnr was illegal. (4) That the grounds of his detention were vague, indefinite, incomplete & false.