MOINUDDIN ABDULLAMIA KOREISHI Vs. STATE

JUDGEMENT

(1.) THIS application is made by one Moinnuddin Abdullamia Koreishi under Section 491 of the Code of Criminal Procedure, 1898, against the order of detention made against him on February 19, 1948, by the District Magistrate of Ahmedabad. That order was made under Section 2 (1) (a) of the Bombay Public Security Measures Act, 1947, and stated that whereas the said District Magistrate was satisfied that the detenu was acting in a manner prejudicial to the public safety, the maintenance of public order and the tranquillity of Ahmedabad City, he directed the said Moinnuddin Abdullamia Koreishi to be detained. On February 25, 1948, the District Magistrate specified the grounds of the order and the particulars required to be supplied under Section 8 of the Act to the detenu. The material part of that statement is as follows: You being an active member of the Muslim National Guards organization in Ahmedabad City and in furtherance of the objects of this organization have been provoking and propagating communal hatred and violence, that you incite Muslims against Hindus generally, that your activities are aimed at keeping the communal discord and disharmony alive, that you preach doctrines subversive to law and order in Ahmedabad City and that your being at large is detrimental to the public peace, safety and order in Ahmedabad City. In the present application it is stated that the detenu practised as an advocate in the Ahmedabad Courts for some years, that thereafter he took to journalism and purchased a daily newspaper and a press in 1945, that he is not connected with the Muslim National Guards organization in Ahmedabad City, not being a member thereof and not having ever taken any part in that organization, that ever since August 15, 1947, there has been no communal or Hindu-Muslim trouble in the city of Ahmedabad, and that about January 8, 1948, he went to Karachi for purposes of business and came back to Ahmedabad only to receive the order of detention made against him. He has further stated that he has established business connections at Karachi and intends to wind up his business at Ahmedabad and develop it at Karachi as well as to go to England later on for his business; that all the allegations made in the order and the grounds furnished to him are false, that on learning that his name was included in the names of the persons who were to be detained he wrote to the District Magistrate on February 13, intimating that he would be coming to Ahmedabad, and that on his arrival he was arrested and kept under detention in the Ahmedabad Central Prison at Sabarmati where he was served with the detention order. The District Magistrate has made an affidavit wherein the petitioner's statements that he is not connected with the Muslim National Guards in the Ahmedabad city and has not taken any part in the activities of that organization have been denied as also his statement that he is not indulging in any activities dangerous to the public peace, and further the allegation that the District Magistrate has not applied his mind to the circumstances of the case and has passed only a mechanical order is also denied. The District Magistrate has further deposed that he Passed the order after carefully considering the District Superintendent of Police's detention proposal and satisfying himself about the grounds for detention mentioned in the proposal. The detenu has now filed a fresh affidavit repeating that he was never connected with, or a member of, and has never taken part in any activities of, the Muslim National Guards organization.

(2.) THE order made by the learned District Magistrate under Section 2 of the Act is admittedly ex facie a good order. In the course of the hearing of this case the learned Advocate General, who appears for the Crown, has raised the question whether when an order made under the Act is ex facie good and valid the Court can go at all behind it and examine any other circumstance, like the grounds supplied to the detenu under the procedure prescribed for further consideration of the case by the detaining authority or any other fact on which the detention order appears to be based and which is sought to be falsified by the detenu in order to show that the order is bad. It has been contended that as Section % empowers the detaining authority to act on his own belief or satisfaction as to the matters mentioned in that section, the Court cannot go behind it and consider either the adequacy of the reasons or the information available to the District Magistrate or even the truth of any of the facts which go to establish the said condition of his mind. If it be the law that the examination of any such circumstances or matters is beyond the Court's jurisdiction, a large number of decisions relating to the Act would inevitably turn out to be wrong ; for though it is well-established that the Court cannot consider the adequacy of the reasons or of the information available to the detaining authority which led to his belief or satisfaction, even where the detention order has been ex facie good under Section 2 of the Act, this Court has allowed the detenu, in a large number of cases, to show that the order was not made bona fide but for ulterior purposes, or that it was made without sufficient application of the mind of the detaining authority to the facts or requirements of law, or that it was passed on a ground outside the scope of the Act, or that it was passed, at least partially, on a proposition of fact which is shown to be false. In Emperor v. Sibnath Banerji (1945) 48 Bom. L. R. 1 P. C. it was contended on behalf of the Crown that the orders there dealt with being on their face regular and in conformity with the language of the rule, it was not open to the Court to investigate their validity any further. THEir Lordships said that this contention of the Crown " went too far " and approved of the following statement by the learned Chief Justice of the Federal Court (p. 8) : It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where the recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a Court as establishing that the necessary condition was fulfilled. THE presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie ease that the recital is not accurate. THE expressions 'any evidence as to its inaccuracy' and 'will place a difficult burden on the detenu to produce admissible evidence' show that consideration by the Court of evidence in such a case was not ruled out. In two of the cases before them their Lordships held that the ex facie presumption was displaced by evidence showing that the authority making the orders had not considered the materials before him so as to satisfy himself, independently of the police recommendation that such orders should be issued. In certain other cases their Lordships held that there was no evidence to rebut the presumption of the regularity of the orders ; and with regard to one case they remarked that if the respondents had wished to probe the matter, they should not have let the matter rest where it stood "but proceeded either by counter affidavit or by cross-examination of Mr. Porter on his affidavit. As they did not take such a course t he presumption remains undisturbed. " In view of this decision, it is really not necessary to go to the English cases, Liversidge v. Sir John Anderson [1942] A. C. 206 and Greene v. Secretary of State for Home Affairs [1942] A. C. 284, on which reliance has been placed by the Crown. It would be pertinent, however, to point out that the extreme view to be found, for instance, in certain parts of the speeches of Lord Wright cannot be said to be unqualified. At p. 207 Lord Wright said: . . . they go to show that the regulation is dealing with an executive discretion, in the exercise of which the discretion of the minister is final. THEy seem to me to be inconsistent with the idea that recourse to a Court of law by way of appeal against or justification of the order was open. Indeed, if that had been contemplated I think that there must have been express words giving it. THEse provisions seem to me to be a substitute for a trial in Court of the issue, no doubt inadequate in one sense, but as effective as the circumstances admit. I particularly rely in support of my conclusion on the circumstance that the secretary is entitled to decline to follow the recommendation or advice of the committee. THE responsibility is his alone. Again, in Greene's case the same noble Lord said (p. 305): In making the order Sir John Anderson exercised that plenary discretion, and the respondent, when he succeeded him as Home Secretary, exercised the same plenary discretion when he adopted the order and continued the detention. THE order relied on by the respondent is ex facie good and valid. Its authenticity is not disputed. It is not said that the appellant is not the person intended. THE order itself justifies the detention. However, in the same speech further on it was said (p. 306): It is good on its face unless and until it is falsified. . His statement would have been enough at least in the first instance and until it appeared to the Court that sufficient reason was shown to question it and to exercise its power to enquire into the merits under Section 3 of the Act of 1816. That Act is the Habeas Corpus Act of 1816, Sections 3 and 4 of which are confined to cases where persons have been confined or restrained of their liberty otherwise than for some criminal or supposed criminal matter and except persons inprisoned for debt or by process in any civil suit; and in such cases the Judge was given power " to examine into the truth of the facts set forth " in the return although the return " be good and sufficient in law. " THE writ to be issued under that Act required the person to whom it was addressed to have the body of the person named therein who was "taken and detained under your custody, as is said, together with the day and cause of his being taken and detained, to undergo and receive all and singular such matters and things as the Court shall then and there consider of concerning him in his behalf; " and the return was to contain a copy of all the causes of the prisoner's detainer indorsed on the writ or on a separate schedule annexed thereto, and to state facts relied on as constituting a valid and sufficient ground for detention of the person alleged to be illegally detained. "these facts must be set forth clearly and directly and with saufficient particularity. " (Halsbury's Laws of England, Vol. IX, p. 733 ). It was not necessary in the first instance to support the facts set out in the return by affidavit ,* " for until impeached they are to be regarded as true. " (Leonard Watson's case (1839) 9 Ad. & EI. 731.) In cases except those excepted from the purview of ss. 3 and 4 of the Act the Judge was by statute empowered to enquire into the truth of the facts set forth in the return, although the return might be good and sufficient in law (Halsbury's Laws of England, Vol. IX, p. 735 ). Thus it is clear that under the ordinary law the Court was entitled to go into the facts in an appropriate case in England. In Greene's case it was remarked by Lord Wright (p. 307) "in the present case there are no facts to inquire into ; " and in Liversidge's case the following remarks made by Mackinnon L. J. of the Court of Appeal were approved (p. 216): Put in another way, if the plaintiff admits, or it is proved, that the plaintiff was detained by an order purporting or expressed to be issued under the regulation, and duly signed as such, the burden is on the plaintiff, if he is to claim damages for false imprisonment, to give evidence showing that the order was invalid. As the case proceeds at the hearing, as often happens, the onus of proof may be shifted. If the plaintiff adduces evidence which goes to show the invalidity of the order, that might happen. If, upon that happening, the defendants produced evidence which was embarrassing to the plaintiff, by way of surprise or novelty, the Judge would no doubt protect him by way of adjournment. Conceivably, in a proper case, the Judge might at that stage make some order by way of particulars of the allegations of the defendants. THEse, however, are but hypothetical considerations as to possible developments at a later stage of the litigation. At this stage we are quite clear that the plaintiff is wrong in his proposition as to the burden of proof inherently resting upon himself and upon the defendants respectively. THE 'stage' under consideration was that (besides claiming a declaration that his detention was unlawful) the detenue was seeking particulars (a) of the grounds on which the respondent had reasonable cause to believe him to be a person of hostile associations, and (b) of the grounds on which the respondent had reasonable cause to believe that by reason of such hostile associations it was necessary to exercise control over him. Viscount Maugham remarked (p, 224): . . . assuming the order to be proved or admitted, it must be taken prima facie, that is until the contrary is proved, to have been properly made and that the requisite as to the belief of the Secretary of State was complied with ; and at p. 295 the following observations of Goddard L. J. were approved: I am of opinion that where on the return an order or warrant which is valid on its face is produced it is for the prisoner to prove the facts necessary to controvert it, and in the present case this has not been done. It is thus amply clear that it was open to the detenu to prove facts which might successfully controvert the order of detention although it might be ex facie a good and valid order.

(3.) WE have no doubt that in suitable cases the Court would be competent to go behind the order of detention even if it was ex facie good and enquire into the truth of the information on which the detaining authority has acted. For instance, in a recent case the grounds of detention given to the detenu were in effect that the Rashtriya Swayamsevak Sangh, as a body, was inspired by a cult of violence and that the detenu, as an office bearer or active worker of the said Sangh, had furthered the objects of the said body. It was found, by reference to a communique issued by the Government of India, that the said body was not regarded as an organization which, as a whole, was inspired by a cult of violence and that the source of the District Magistrate's information that the said Sangh was a body so inspired was the said communique. It was, therefore, further held that the grounds of detention, which were mainly based on a misreading of the Government of India's communique", were falsified, and accordingly the detenus concerned were directed to be released. To take another example, if the ground of detention is that the detenu made a speech at a certain place on a certain date which was objectionable and it was proved that on that date he was actually in jail and thus incapable of making the said speech, the Court would undoubtedly interfere with the detention. Ordinarily, where the Court is satisfied that the facts and materials before the District Magistrate were considered by him, and that they were such as could lead to his satisfaction in the sense required by Section 2 of the Act, the Court would not go behind the order; but the Court would in such cases assume that the authority had made every reasonable endeavour, consistently with his responsibilities, to ascertain the facts correctly. Where a fact relied on is found to be false, and the said authority, by applying his mind to materials before him, could have found out the falsity of the said fact, such falsity would vitiate the order as showing an insufficient application of mind on his part to the facts before him. Where, however, the falsity is such as could not thus ordinarily be found out in the process of applying his mind to the facts, the question is somewhat more difficult. Detenues or petitioners who make applications on their behalf often challenge the truth of one or more of the facts stated in the detention order or in the statement of the grounds of detention by means of affidavits, either of themselves or of others. The statement of grounds is no doubt furnished with the primary object of enabling the detenu to make a representation to the authority which made the detention order, which may thus be regarded as a preliminary order which could, after consideration of such representation as the detenu may make, in a final order be confirmed, modified or annulled. But the statement of grounds undoubtedly furnishes materials which the detenu can use for the purposes of his petition to Court. In furnishing them the authority often lays bare the process of his thought which led to his satisfaction, though Section 3 allows him to withhold such facts as he considers it against public interest to disclose. Except for such facts he is bound to disclose "the grounds on which the order has been made "as well as" such other particulars as are in his opinion sufficient to enable him (the detenu) to make a representation" against the order. The use of the words "other particulars" suggests that no sharp distinction is intended between grounds and particulars, though grounds would no doubt be more general in character than particulars. WE are unable to agree with the learned Advocate General that the grounds can be only those that are to be found in Section 2, and that every other reason for detention furnished to the detenu should be included in the expression "other particulars. " But such grounds and particulars (subject to the reservation mentioned above) are, it will be seen, the detaining authority's grounds and particulars and not such grounds and particulars as were furnished by an advisory committee under the British Regulation 18b. It is, therefore, legitimate for the detenu to rely on the statements of grounds and particulars furnished to him in order to show that a fact alleged therein is false. For that purpose he is allowed to rely on his own affidavit and the affidavits of persons acquainted with such facts. In this connection the following observation of the Privy Council in Emperor v. Sibnath Banerji (1945) 48 Bom. L. R. 1 P. C. appears to be relevant: The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate. This is so because the Court will not ordinarily look behind the order, when it is ex facie a good order, in order to see whether the authority was satisfied in the terms of Section 2 of the Act, and it is doubly so where any statement of fact in the grounds is supported by the District Magistrate's affidavit. Affidavits furnished in such cases are often by the detenu himself or by persons interested in him, and in any case such statements are not tested in the manner of regular evidence given at trials. It would, in my opinion, ordinarily not be right for the Court in such a case to set down a question of fact as a question to be decided on any evidence except that furnished by the affidavits. If the Court is satisfied that the order has been made bona fide, there would ordinarily be every reason to accept a statement of fact mentioned in the grounds when it is reinforced by the detaining authority's affidavit. But there may be cases in which, though the authority was bona fide satisfied in terms of Section 2, an essential or significant fact may be successfully falsified by the petitioner, for instance, if it is stated that the detenu, being a member of a society which indulged in violent activities as a policy, was carrying out such policy of the society and if it is found (e. g. on the basis of the detenue's affidavit, there being no denial) that the detenu was not at all a member of the said society, we would be inclined to hold that the satisfaction was based on a proposition of fact not found to be tenable, and we would be entitled to interfere.