- (1.) This is an appeal from a judgment of the High Court at Bombay, ordering the release of the respt. who was detained in custody under a detention order made under the Preventive Detention Act (IV [4] of 1950). The respondent was first arrested on 18-12-1948 under the Bombay Public Security Measures Act, 1947 (VI [6] of 1947), but was released on 11-11-1949. He was arrested again on 21-4-1950 under the Preventive Detention Act, 1950, and on 29-4-1950 grounds for his detention were supplied to him. They were in the following terms : "That you are engaged and are likely to be engaged in promoting acts of sabotage on railway and railway property in Greater Bombay." The respondent filed a habeas corpus petition on 31-7-1950 in which, after reciting his previous arrest and release, in paras. 6 and 7 he mentioned as follows : "(6) On his release the applicant left Bombay and stayed out of Bombay, that is, in Ratlam and in Delhi. (7) On 20-4-1950, he returned to Bombay and was immediately arrested as stated above." He contended that the sole aim of the Govt. in ordering his detention was not the preservation of public order or the security of the State, but the locking up of active trade unionists who belonged to the All India Trade Union Congress. He contended that the ground is "delightfully vague and does not mention when, where, or what kind of sabotage or how the applicant promoted it.'' He further urged that the ground gave no particulars and, therefore, was not a ground as required to be furnished under the Preventive Detention Act, 1950. He stated that the present appellant acted mala fide, for a collateral purpose, outside the scope of the Act, and that the applicant's detention in any event was illegal and mala fide. When this petition was presented to the Court on 9-8-1950 it directed the issue of a notice to the Commissioner of Police. Pending the disposal of the Rule, on 26-8-1950 the Commissioner of Police sent a communication to the respondent as follows : "In pursuance of S. 7, Preventive Detention Act, 1950 (IV [4] of 1950), and in continuation of my communication No. 227 dated 29-4-1950 the following further particulars are hereby communicated to you in connection with the grounds on which a detention order has been made against you under S. 3 (1) of the said Act : That the activities mentioned in the grounds furnished to you were being carried on by you in Greater Bombay between January 1950 and the date of your detention ; and In all probability you will continue to do so. 2. If, in view of the particulars now supplied, you wish to make a further representation on / against the order under which you are detained, you should address it to the Government of Bombay and forward it through the Superintendent of Arthur Road Prison, Bombay."
(2.) On 30-8- 1950 the Commissioner of Police filed an affidavit against the petition of the respondent in which it was stated that the objectionable activities were carried on by the applicant between the months of January 1950 and the date of detention. It further stated that in or about the month of January law there was a move for a total strike on the railways in India in the month of March 1950 and the applicant was taking prominent part to see that the strike was brought about and was successful. As a means to make the strike successful and bring about total cessation of work on all railways, the applicant and his associates were advocating sabotage on railways and railway property in Greater Bombay. He further stated that reliable materials were put before him of the respondent being engaged in such activities by experienced police officers. He added that although the railways strike in the month of March did not materialise, the idea of bringing about such strike as soon as convenient continued to be entertained and the present respondent was actively engaged in bringing about such a strike in the near future. He then stated that the disclosure of further facts relating to the activities of the detenu was against public interest. In para. 6 there was a specific denial that the respondent, after his release in November 1949, and till 20th April 1950, was out of Bombay. It was stated that he used to go out of Bombay at times but during the major part of the period he was in the city of Bombay.
(3.) When the matter came up before a Bench of the High Court the respondent's petition was granted. In the judgment of the Court, Chagla C. J., observed : "It is clear by reason of the view we have taken in several cases under S. 491 Criminal P. C. that this is not a ground which would enable the detenu to make a representation to which he is entitled both under the Act and under the Constitution." After noticing the affidavit of the Commissioner of Police, it was further observed : "We appreciate the fact that after our decision was given, Government decided to place all the materials before us so that we should be satisfied that what influenced the detaining authority in making the order was not and ulterior motive but that ample materials were at the disposal of the detaining authority which would justify the applicant's detention. We have looked at this affidavit and we have also looked at the particulars furnished to us by Mr. Chudasama. If these particulars had been furnished at the time when the grounds were furnished on the 29th of April 1950, very likely we would have come to the conclusion that the grounds were such as would have led the detenu to know exactly what he was charged with and to make a proper representation." The judgment is, however, based on the following observation of the Chief Justice : "A new and important question arises for our consideration; and that is whether it is permissible to the detaining authority to justify the detention by amplifying and improving the grounds originally furnished . . . The only grounds which we have to consider and which were furnished in the purported compliance of Art 22 (5) were the grounds furnished to the detenu on 29-4-1950; and if these grounds were not such as to enable the detenu to make a proper representation, then there was a violation of the fundamental right and a contravention of the statutory provisions. That violation and that contravention cannot be set right by the detaining authority by amplifying or improving the grounds already given. As we said before, the point of time at which we have to decide whether there was a compliance or not with the provisions of Art. 22 (5) is 29-4-1950 when the grounds were furnished, and not when further and better particulars were given on 26-6-1950." The learned Attorney-General, appearing for the appellant, has strenuously objected to this fine at approach.;