KASTOOR CHAND Vs. SARKAR

JUDGEMENT

(1.) This application is made by Kastur Chand Jain, resident of Rajnandgaon, situate in Central Provinces under Section 491, Criminal P. C., against the order of detention to the Government of United State of Rajasthan. This order was made under Section 3, Marwar Public Security Act 1947 (III [3] of 1947) and stated that whereas the Government of the United State of Rajasthan was satisfied that there were reasonable grounds for believing that Kastur Chand Jain had acted and was about to act in a manner prejudicial to public safety and peace, the Government of United States of Rajaathan was pleased to authorise the Inspector of Police, Jodhpur to arrest the said Kastur Chand Jain without warrant and to commit him to the custody of the Central Jail, Jodhpur to be detained therein for a period of six months from the date of his arrest. In the present application by Kastur Chand, it ia stated that on 17th March 1949, he was arrested at Jodhpur while on way from Phalodi to Bajnandgaon and detained for a period of six months under Section 2, Marwar Public Security Act. He completed this term of imprisonment on 16th September 1949, and was accordingly released that day but was immediately re-arrested and again detained for a further period of six months under the same Act. On 3rd November 1949, the applicant applied to District Magistrate, Jodhpur requesting him to communicate to him the grounds on which the order of detention had been made against him and such other particulars as may, in his opinion, be sufficient to enable him to make a representation against the order. On 19th of November 1949, the applicant was informed that he had been detained under the orders of the Chief Secretary but the grounds on which this order had been passed were not communicated to him. Accordingly, on 23rd of November 1949, the present application was filed in this Court. In this application, he made it clear that he had never to do anything with any bind of political activity in any part of the Union or with the activities of any political party in India as he had severed all connection with the Communist Party. The Chief Secretary had replied to the above application and supported his reply by means of an affidavit stating as follows: (1) That from informations received the Government of United States of Rajasthan was satisfied that Kasturchand Jain is a wellknown and active communist and as an agitator, had been fomenting and organising industrial strikes (2) That the Government of United States of Rajasthan was satisfied that there were reasonable grounds for believing that Kasturchand Jain would act in a manner prejudicial to public safety and peace.

(2.) On a persistent demand by the applicant for the grounds on which he had been detained in custody, the Government of the United States of Rajasthan ultimately communicated them to him and the original communication has been placed by the applicant on the record. The grounds mentioned in this communication are identical with those mentioned above.

(3.) It may be pointed out that prima facie the order of detention passed by the Government being in the language of Section 3, Marwar Public Security Act appears to be in order and, accordingly it has been urged by the learned Government Advocate that it is not open to this Court to go behind it and examine the circumstances in which it came to be passed. In other words, the learned Government Advocate contended in terms of Section 84, Marwar Public security Act, since repealed on 29th October 1949 and Section 64, Rajasthan Public Security Ordinance, now in force that an order made in exercise of any power conferred by or under the above Ordinance could not be called in question by any Court. He produced a number of authorities. But they do not support him to the entire extent and we will deal them in proper place. Of late, there has been a plethora of cases dealing with points arising under applications for habeas corpus and the legal position has more or less crystallised and does not admit any doubt or difficulty. Accordingly it is not quite correct to say that an order made by the detaining authority cannot be called in question by any Court on any ground whatsoever. The contention of the learned Government Advocate is correct only to this extent that the Court cannot consider the adequacy of the reasons or an information available to the Government which led to its satisfaction before the order of detention was passed. This means that sufficiency of the material on which the satisfaction is based cannot be the subjects of scrutiny by the Courts as the legislature had chosen in its wisdom, as held in Wasudeo v. Emperor, A. I. R. (36) 1949 Nag 50: (50 Cr. L. J. 165), to invest the Government with the powers to detain persons after satisfying itself that they are either acting or likely to act in a particular manner and make the Government the sole judge of this matter. But it is equally well established that the detenu can be allowed to show that the order was not made bona fide or was made without sufficient application of the mind of the detaining authority to the facts or requirements of the law. Ghosh C. J. in Chiranji Lal Agrawal v. Chief Secretary to the Government 1948 Jaipur Law Report 280 (237) has summed up the position tersely and the following extracts from his judgment may be cited with advantage :