- (1.) These two Rules were issued at the instance of two persons who are under detention at the Dum Dum Central Jail under a warrant issued under Section 2 of the Bengal Criminal Law (Amendment) Act of 1930 read with that of 1932. Petitioner Purna Chandra Ghosh was arrested on November 9, 1948. He was detained under the West Bengal Security Act. It was decided that since the first part of March, 1949, that Act had expired and was not in force, but he was not released and on July 3, 1949, an order was served on him under Section 2 of the Bengal Criminal Law (Amendment) Act for preventive detention under that Act. Petitioner Dulal Basu was arrested on October 10, 1948 and in his case also action was first taken as a Security Act prisoner and he was after the expiry of the Act not released but served on July 5, 1949, with a fresh order for preventive detention under Section 2 of the Bengal Criminal Law (Amendment) Act. These facts are not in dispute at all.
(2.) The learned Advocate-General, appearing on behalf of the Crown, has frankly conceded that if what had been done by Purna prior to November 9, 1948 and by Dulal before October 10, 1948, could afford any justification for their present detention under the Bengal Criminal Law (Amendment) Act, Section 2, then and then only could the order passed by the Governor be supported; otherwise, he had no material to show that since that day these persons had done anything, or were doing anything or are doing anything or has done anything or did anything for which their detention could be supported. The law on the point is also clear. The opinion of the Government, whatever may be the reason for the same, will be sufficient, if the detention can be supported under Section 2 of the Act. This Court will have no jurisdiction to go into the reason for detention or to go behind the opinion of the Governor. It is also further clear that, if the Petitioners can prima facie show that the order is mala fide, or not really under the powers conferred by the Act, then the onus will shift on the Government to show their bona fides and their power. The learned Advocate-General accepts these propositions of law as correct. Section 2 of the Bengal Criminal Law (Amendment) Act provides: Where, in the opinion of the Provincial Government, there are reasonable grounds for believing that any person-- (i) is a member of an association; * * * * * (iii) or has done or is doing any act to assist the operations of any such association; the Provincial Government may, by order in writing, give all or any of the following directions, namely, that such person-- * * * * (f) shall be committed to custody in jail.
(3.) In the orders as actually served upon the Petitioners it is said that they are members of an association of the kind mentioned in the section and it is also mentioned that they have done or are doing an act which justifies their detention. The learned Advocate-General has frankly conceded that since his incarceration none of the two Petitioners can be said to be still a member of any association of the kind required under the section. They have been the whole time in jail. He does not attempt to support the order on that ground. It is on the ground that the Petitioners "have done or are doing an act to assist the operation "of any such association" that the learned Advocate-General tries to justify the order. The words "is doing" used contain what is known as the continuous or the extended present tense of the verb "to do". In case of such use of extended present tense, there is a decision of a single Judge of the Bombay High Court in the case of Hirji Shivram Vyas v. Commissioner of Police, 1948 AIR(Bom) 417, in which, in view of the distance of time which separated the order passed from the incidents for which the Petitioner was sought to be detained, the Court considered it impossible for the detenue to be doing any act in any manner prejudicial to public safety. The learned Advocate-General has sought to distinguish this decision on the ground that it was passed in the special circumstances of that case. It appears that Hirji Shivram was arrested on October 17, under the Explosives Substances Act. On the next day, he was remanded till November 1, on which day again there was a prayer for further remand, but this was not allowed and so, instead of being released, he was ordered preventive detention under that Act by an order, which, it appears, was not properly signed. Though Hirji Shivram had not been released by the police on bail, the remand order being refused, a curious petition was filed purporting to be on his behalf on November 15, asking for an extension of time for bail till November 29 and on November 18, an order properly signed was passed under the Bombay Public Security Measures Act of 1947. In the present case, as we have pointed out, the distance of time between the arrest of either of the Petitioners and the order under Section 2 of the Bengal Criminal Law (Amendment) Act is so great as not to justify the use of the verb "is doing" an act. The extended present tense of the verb "to do" is absolutely inapplicable on a grammatical construction to a case of this nature. We are, therefore, of opinion that on a grammatical construction of Section 2(i)(iii) of the Bengal Criminal Law (Amendment) Act, it cannot be bona fide said that at the time when the order was passed it could not be said of either Petitioner concerned that he "is doing" any act of the nature required under that clause.;