IK RAM MOHAMMAD ALIAS MOHAMMAD AKHTAR Vs. THE SUPERRINTENDENT, DISTRICT JAIL, ALIGARH, AND OTHERS
LAWS(ALL)-1965-8-25
HIGH COURT OF ALLAHABAD
Decided on August 19,1965

Ik Ram Mohammad Alias Mohammad Akhtar Appellant
VERSUS
The Superrintendent, District Jail, Aligarh, And Others Respondents


Referred Judgements :-

KESHAV TALPADE V. EMPEROR [REFERRED TO]
RAM KRISHAN BHARDWAJ VS. STATE OF DELHI AND CITHERS [REFERRED TO]
SHIBBAN LAL SAKSENA VS. STATE OF UTTAR PRADESH [REFERRED TO]
DWARKA DAS BHATIA VS. STATE OF JAMMU AND KASHMIR [REFERRED TO]


JUDGEMENT

S.K. Verma, J. - (1.)THIS is an application under Article 226 of the Constitution of India read with Section 491 of the Code of Criminal Procedure. The applicant, Ikram Mohd. alias Mohd. Akhtar, son of Sri Mohd. Asghar Khan, resident of Khair, Polite Station Khair, district Aligarh, was arrested on the 10th of June 1965. This arrest purported to be under an Order of the DM under Rule 30(1)(b) of the Defence of India Rules. A report about the order of detention was made to the reviewing authority as required by Rule 30/A (5) and the reviewing authority passed an order on the 9th of July 1965 confirming the order of detention. The order of the reviewing authority was communicated to the detenu on the 14th of July 1965. The facts stated so far are not in controversy. The applicant challenged the legality of the order of his detention on a number of grounds mentioned in his application. He has alleged, inter alia, that the order of detention was never served upon him, that he was prosecuted in a number of cases all of which ended in acquittal that he has been the victim of partibandi and enmity and that the order of detention was passed mala fide.
(2.)THE application has been opposed by the State. A counter affidavit has been filed by one Gyan Singh, Station Officer of Police Station Khair, who arrested the applicant on 10.6.1965. In this counter affidavit most of the allegations are denied. It is alleged that a copy of the order of detention, which was passed on the 9th of June 1965, was served upon the applicant. A copy of that order is Annexure 'A' to the counter affidavit.
The order reads as follows:

Wheras, I. N. S. Sirohi, District Magistrate, Aligarh, am satisfied with respect to the person known as Sri Akhtar alias Mohd. Ikram S/o Mohd. Asghar alias Dadabhai, residents of Khair, P.S Khair, district Aligarh that with a view to preventing him from acting in a manner prejudicial to the Defence of India and Civil Defence/Public safety/Maintenance of public order/Maintenance of peaceful conditions in any part of India, it is necessary to detain him.

Now, therefore, in exercise of the powers conferred upon me by the State Government under Notification. No. 372 - -XXV/CX -A, dated November 21, 1962, I hereby order under Rule 30(1)(b) of the Defence of India Rules, 1962, that the said Sri Akhtar alias Mohd. Ikram shall be detained in the District Jail Aligarh in the custody of the Superintendent of the said Jail till further orders.

GIVEN UNDER MY HAND AND SEAL OF THE COURT THIS NINTH DAY OF JUNE 1965

Sd/N.S. SirohiDistrict Magistrate,Aligarh.
The relevant portion of Rule 30 reads as follows:
30(1) The Central Government or the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India's relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community, it is necessary so to do, may make an order -

(a)....

(b) directing that he be detained." A perusal of the order shows that there are oblique lines after..."Defence of India and Civil Defence," "Public Safety", and "Maintenance of public order." It appears to us that a typed order was placed before the District Magistrate and he signed the same without crossing out the portions which did not apply. We would have been prepared to accept the argument that, perhaps, the District Magistrate was satisfied with regard to all the things mentioned in the order but for a very serious lacuna in it. The rule authorises the authority concerned, in this instance the District Magistrate, to pass an order of detention, "with a view to preventing an individual from acting a manner prejudicial to, among other things, "maintenance of peaceful conditions in any part of India." This means that if the District Magistrate feels that it is necessary to detain a person with a view to preventing him from acting in a manner prejudicial to the maintenance of peaceful condition's in territory (a), (b), (c), or (d) he can pass the order of detention, but the order on the face of it must show the territory the peaceful condition of which would be disturbed if the person concerned is not detained. This defect will become more obvious if we were to quote only the relevant portion of the order:

Whereas, I, N. S. Sirohi, District Magistrate, Aligarh, am satisfied with respect to the person known as Sri Akhtar alias Mohd. Ikram S/o Mohd. Asghar alias Dadabhai, resident of Khair, P.S. Khair, district Aligarh that with a view to preventing him from acting in a manner prejudicial to the... maintenance of peaceful condition in any part of India, it is necessary to detain him;

Now, therefore, in exercise of the powers conferred upon me....

The reproduction of the words "maintenance of peaceful condition in any part of India" from Rule 30(1) shows that the District Magistrate never applied his mind to the material before him and signed the order mechanically . We are aware that it is not for us to enquire into the sufficiency or otherwise of the grounds upon which the subjective satisfaction of the District Magistrate was based. Nor, should we be understood to mean that if an order is passed in the exact language of the rule it would necessarily follow that it was passed mechanically without the application of the District Magistrate's mind. But, if the reproduction of the exact words of any portion of Rule 30 makes the language ungrammatical and the order meaning -less or unintelligible it would necessarily follow that the person passing the order never applied his mind to the material before him but he passed it mechanically. If a detaining authority passed an order mechanically without applying his mind to the material before him the order is clearly illegal and it must be set aside: Vide Keshav Talpade v. Emperor (1) ( : AIR 1943 FC 1) and Emperor v. Sibnath Banerjee (2) ( : AIR 1943 FC 75). The decision, in Sibnath Banerjee's case (2) was no doubt, to some extent modified by their Lordships of the Privy Council, but the principle to which we have made reference was accepted. Sibnath Banerjee was originally detained under Rule 129 of the Defence of India Rules, 1939. Under that rule detention could be ordered only on certain conditions and only for a limited period. The Government, subsequently, gave a general direction that all persons in detention under Rule 129 should be detained under Rule 26. Rule 26 required the subjective satisfaction of the detaining authority. The detaining authority, however, passed the order under Rule 26 following the general direction given by the Govt. The order was set aside by the Federal Court and it was upheld by the Privy Council. There are three Division Bench cases of the Bombay High Court which appear to us to be directly in point. In re Krishnaji Gopal Brahme (3) (AIR 1948 Bom 360) the order of detention was under the Bombay Public Security Measures Act of 1947 Section 21 of the Act was as follow:

The Provincial Government may if it is satisfied that any person is acting in a manner prejudicial to the public safety, the maintenance of public order, or the tranquillity of the Province or any part thereof, make an order -(a) directing that he be detained.

In the exercise of the power conferred by the section, the District Magistrate of East Khandesh passed the following order:

Whereas the Govt. of Bombay has directed by its order in the Home Department No. S.D. 671 dated 26th April, 1947 that the powers conferred on it by clause a) Sub -section (1) of Section 2 of the Bombay Public Security Measures Act, 1947 (Bombay Act VI of 1947) shall be exercised by the District Magistrate.

And whereas, I, L. G. Rajwade, ICS, District Magistrate, East Khandesh, am satisfied that the person known as K.G. Brahme of Amalner is acting in a manner prejudicial to the public safety and the maintenance of public order and tranquillity and is carrying on subversive propaganda.

Now therefore in exercise of the powers conferred by Clause (a) of Sub -section (1) of Section 2 of the said Act I hereby direct that the said K.G. Brahme be detained.

It will be observed that in the order the place where the activities of the detenu would be prejudicial to public safety and the maintenance of public order and tranquillity was not mentioned. It was urged on behalf of the detenu that the detaining authority had passed the order mechanically without applying his mind as was manifest from the absence of the place where his activities were apprehended to be prejudicial to public safety and maintenance of public order and tranquillity. A Division Bench of the Bombay High Court on this point observed as follows:

The question therefore is whether the recital as regards the state of mind and belief conforms to the requirements of the law. Obviously, if the activities of the Petitioner were prejudicial to the tranquillity of, say, the province of Madras or of the territories of the Indian States, the District Magistrate would have no jurisdiction to pass any order under the Act. When he therefore says that he "was satisfied that the Petitioner Mr. Brahme, was acting in a manner prejudicial to the public safety and the maintenance of public order and tranquillity and was carrying on subversive propaganda," he must say that the activities of the Petitioner affected the peace and tranquillity of this Province. It is only "satisfaction" in this sense that it (sic) would give to the District Magistrate the jurisdiction to make an order... But when the District Magistrate has specifically given the description of his state of mind, the omission of any reference to peace and tranquillity of this Province would be a serious defect. When the territories of an Indian State and of this Province are so interwoven, the order should make it clear that the basis for taking action is the satisfaction of the District Magistrate that the detenu is acting in a manner prejudicial to the public safety, the maintenance of public order, or the tranquillity of this Province or any part thereof;" In this case one of the grounds mentioned in the order was as follows:

That he had been carrying on a subversive propaganda among the people to prepare and use illegal and violent ways.

With regard to this ground the Division Bench observed as follows:

The sentence is a little ungrammatical and somewhat cryptic and we have found some difficulty in ascertaining the real meaning sought to be conveyed. How does one prepare illegal and violent ways."? It was pointed out to the Bench that the expression used by the District Magistrate appeared to have been borrowed from the wording adopted by his predecessor in making similar orders. With regard to this submission the Bench observed as follows:

This argument only gives opportunity for contending that the District Magistrate did not apply his own mind to the issue and the wording of his order. For, if he had, the unsuitability of the wording would not have escaped his notice." In this case, however, in the grounds that were supplied to the detenu the place, namely Amalner, was mentioned and the Division Bench held that the defect was not fatal in that particular case. The order of detention was set aside, though not on the ground that the place where the detenu was carrying on his subversive activities was not mentioned in the order because the place was mentioned in the grounds supplied to him.

(3.)THE case of Pandurang Govind Pathak (4) ( : AIR 1949 Bom. 84) was also one under the Bombay Public Security Measures Act (VI of 1947). A Division Bench of the Bombay High Court referred to Brahme's case (3) and distinguished it on the ground that in Brahme's case (3) the place was mentioned in the grounds furnished to the detenu. The Bench said this:
In that case, though the place of the detenu's activities was not mentioned in the order under Section 2, the defect was not considered fatal and was regarded as cured because the place was mentioned in the statement of grounds furnished under Section 3....

In this case however, the place of the detenu's activities is not mentioned either in the order passed under Section 2 or in the grounds of detention furnished under Section 3, or even in the affidavit of the District Magistrate which has now been filed." The Bench went on to observe as follows:

Prima facie, the fact that the place of the detenu's activities is mentioned neither in the order nor in the grounds of detention nor in the affidavit is an indication that the question was not present in the District Magistrate's mind when he made the detention order....

The power that the Legislature has placed in the hands of Government, and in case of delegation of their authority, of a DM or other officer, to interfere with the liberty of the subject is so great that such authority must be capable of justifying the exercise of such power when it is challenged by showing that it applied its mind to the material facts and to the appropriate considerations, and the Court must scrutinize the justification thus offered with the greatest care and anxiety. The application of the detaining authority's mind to the relevant facts and considerations being the necessary pre requisite to its satisfaction, it is open to the detenu to contend and to show that the application of its mind was non existent or so faulty as to render the alleged fact of its satisfaction questionable and uncertain," Earlier in the judgment the Bench had made the following observation:

One thing which the authority has to apply its mind to is the question of its jurisdiction. From this point of view, the place where the detenu is regarded as having been acting in a(sic) of the manners mentioned in Section (sic) assumes importance; this is one of the particulars which would be required to be stated in the detention order or the statement of grounds.

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