- (1.)THIS is an application under S. 491, Criminal P.C. on behalf of the petitioner Kashinath Gupta, who is at present under detention in Central Jail Lashkar, in accordance with an order passed by the District Magistrate Gwalior on 18 8 -1950 under S. 3 (1), (a), (ii), Preventive Detention Act, 1950 (IV [4] of 1950). In the order of detention which is in Hindi Mr. Namdeorao Patil, the District Magistrate of Gwalior has averred that he is satisfied with respect to the petitioner that it is necessary to detain him with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.
(2.)IN the application it has been stated that Kashinath Gupta was arrested on 19 -8 -1950 at 4 A.M. under S. 151, Criminal P.C. by the Sub -Inspector of police Gwalior; that when the police authorities refused to release him on bail, the petitioner applied to the City Magistrate, Lashkar, for being released on bail which was granted. But subsequently the police refused to release him on bail and served him on 19 -8 1950 at 7 P.M., with an order of detention purported to have been passed by the District Magistrate on 18 -8 -1950. It is then stated that the order of detention is mala fide passed for the purpose of preventing the applicant from being released on bail; that the grounds of detention furnished to the petitioner are vague and indefinite and the District Magistrate was not satisfied at the time the petitioner was arrested that it was necessary to detain him with a view to preventing him for acting in any manner prejudicial to the maintenance of public order. The applicant has supported the application by filing an affidavit in which he mentions that the grounds of detention supplied to him are utterly vague and it is impossible for him to make any representation on those grounds and that at no time he in any manner urged the students or the labourers to resort to strike and violence or to break the law.
(3.)IN the return against the application and the affidavit in support of it, sworn by the District Magistrate, it has been admitted that the petitioner was arrested on 19 -8 -1950 at 4 A.M. under S. 161, Criminal P.C. But the District Magistrate further states that the order of detention was passed by him on 18 -8 -1950 and it was served on the applicant on 19 -8 -1950 at 5 -30 A.M. The District Magistrate also said in his affidavit that it was not true that the order of detention was mala fide and that it was also not true that the order was passed without satisfying, himself as to whether it was necessary to detain the applicant with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The statement contained in the grounds of detention have been repeated in the affidavit sworn by the District Magistrate.
Mr. Dey, the learned counsel for the applicant first contends that even though the order of detention bore the date 18 -8 -1950, when it was served on the 19th upon the petitioner, it was an antedated order which had not been passed on 18th August, and that it was passed after the applicant had been arrested in the early morning on the 19th. It is argued that the applicant's detention under the order was illegal as be could not have been detained after having been arrested under S. 151, Criminal P.C. and further that the very fact that the applicant was first arrested under S. 151, Criminal P.C., and later on ordered to be detained under the Preventive Detention Act in spite of an order of the City Magistrate directing the police authorities to release him on bail, in itself, shows that the order of detention was passed mala fide without the state of satisfaction required under S. 3 of the Act, and with an ulterior motive of preventing the applicant from being released on bail. As to this contention it must first be observed that S. 151, Criminal P.C., authorises a police officer to arrest a person designing to commit a cognizable offence. The detention under the Act (IV [4] of 1950) is wholly for a different purpose, namely, to prevent a person from acting in any manner prejudicial to the matters mentioned in S. 3 (1) of the Act. The arrest of a person under S. 151 or under some other provisions of ordinary law does not preclude the exercise of the powers under the Preventive Detention Act, 1950. Nor is the mere fact that the person was first arrested under the ordinary law and later ordered to be detained, in itself, sufficient to prove that the order of detention was mala fide. There must be other circumstances or evidence to show that the detaining authority acted mala fide. A similar view has been taken with reference to Local Public Safety Acts in Moolchand v. Emperor, : A.I.R. 1948 ALL. 281: (49 Cr. L.J. 352) Dasappa v. Dist. Magistrate, South Kanara,, A.I.R. 1949 Mad. 712: (51 Cri. L.J. 133) and, A.I.R. 1950 Mad 162. In the present case the District Magistrate has stated in his affidavit that be did as a matter of fact pass the order of detention on 18th August. Now, as the question as to when the order of detention was actually passed is not a matter within the knowledge of the applicant, we must accept the statement in the affidavit of the District Magistrate that the order was passed on 18th August. The District Magistrate has also stated in the return against the application, that the order was served on the petitioner on 19 -8 -1950 at 5.30 A.M. i.e. nearly an hour after he was arrested under S. 151 and that subsequently an order granting bail to the applicant was made by the Magistrate. If this is true, it appears to us strange how the Sub -Inspector who arrested the applicant under S. 151, Criminal P.C., was unaware of the order of detention until he himself served it upon the petitioner, and why the fact of the detention was not brought to the notice of the Magistrate who granted the bail. This circumstance no doubt creates some suspicion as to whether the satisfaction as required under S. 3 of the Act of the District Magistrate was real. It is true that mere suspicion is not enough to discharge the heavy burden which lies on the detenu to show that the order of detention was passed mala fide. But, as will be shown hereafter, the applicant has succeeded in showing that the order was mala fide.

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