Decided on January 15,1949

STATE Respondents

Referred Judgements :-



- (1.)ON 24th December 1948, the petitioner Latif Ahamad made an application, to 'this Court alleging that the five person named therein were his relations and that they had been arrested in Indore by the Assistant City Superintendent of Police that day, that the arrests and their detention in custody were illegal and they should, therefore, Under Section 491, Criminal P. C. , be set at liberty. The detenus named in the petition had in fact been under detention under the Maintenance of Public Order Ordinance, V [5] of 1948, since September 1948, and had been ordered to be released by an order of this Court. They were released from custody on 24th December 1948, and were arrested immediately thereafter.
(2.)THE petition was heard on 11th January 1943. The Public Prosecutor appearing for the State produced four documents but did not file any statement in writing explaining their use to meat the petitioner's case. The first document is an affidavit made by Mr. Gappoolal. Assistant Oity Superintendent of Police, Indore. In the affidavit the officer states that the five persons concerned had been arrested by him under orders of the Government transmitted on 24th December 1948. Of these Nazir Mohammad was arrested later, on 6th January 1919, as he was on 24th December 1948, undergoing a sentence of imprisonment. The affidavit is accompanied by a transcript dated 24th December 1948, of a wireless message purporting to be transmitted by the Inspector General of Police from Gwalior to the District Magistrate, Indore Oity, through the senior Deputy Inspector General of Police at Indore. The Inspector General of Police directed that the five persons should be released, rearrested and detained under the Maintenance of Public Order Ordinance till Slat January 1949. The District Magistrate was required to report compliance at once. The District Magistrate directed that copies of the-message should be communicated to the City Superintendent of Police and the Superintendent, Central Jail for compliance. The third document filed is the copy of an order no. 181c, under the signature of the Chief Secretary to the Government of Maflhya Bharat dated Gwalior, 8th January 1949, transmitted by the District Magistrate, Indore, to the Public Prosecutor. The order rung thus:
Being satisfied that it was necessary to detain the following five persons, with a view to preventing them from doing any of prejudicial to public safety or maintenance of public order, the Government were pleased to order their detention Under Section 3 (1) (a), United State of Gwalior, Indore and ftlalwa (Madhya Bharat) Maintenance of Public Order Ordinance, Samvat 2005, from 24-12-1948 to 21-1-1949 ; (1) Nazit Mohammad b/o Gulam Mohammad, (2) Fazal Mohammad s/o Gulam Mohammad, (3) Bastair Mohammad b/o Gulam Mohammad, (i) Nabi Ahmad b/o J'oaal Mohammad, (5) Sbftti Ahmad a/o Fazal Mohammad. Sd V. Vishwanathan, Chief Secretary. The fourth document is an intimation dated 8th' January 1949, by the Assistant Secretary to the Government to the Legal Remembrancer at Indore that the grounds of detention had been furnished to the detenu through the Superintendent of Jail. This is not pertinent to the legality of the detention of the five persons.

(3.)THESE are all the facts on the basis of which the case was argued before the Court. It was urged by the learned Counsel for the petitioner that there was not in force any order made by the Government under 3. 3 (1), Maintenance of Public Order Ordinance, V [5] of 1948, directing that the five persons be detained and they were not, therefore, liable to be removed to and detained in Central Jail at Indore under sub. s. (5) of the section, A statement in writing was not made on behalf of the Government referring to any specific order made by the Government in pursuance of which the five persons were being detained in the Jail, The wireless communication of the Inspector General of Police to the District Magistrate, Indore City, directing the arrest and detention too obviously is not an order of the Government and it need not be examined further. It is surprising that an order should have been addressed by a Police Officer to a District Magistrate and that' the District Magistrate should have carried it out, A District Magistrate can only act in due course, of law, exercising his own discretion where the law vesta it in him. The order which calls few consideration is" the order dated 8th January 1919, appearing under the signature of the Chief Secretary to the Government set forth above. The Chief Secretary certified on 8th January 1919 that an order of detention in respect of these five persons had been made by the Government. He does not state on which date the order was made and it cannot be presumed that it was on 31th December 1918, when the five persona were arrested and kept under detention. The arrests on and detention since 24th December 1948 should be held to be illegal.

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