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Wasudeo Anant Sohoni Vs. Emperor. - Court Judgment

LegalCrystal Citation
Decided On
Reported in1949CriLJ165
AppellantWasudeo Anant Sohoni
- - the applications as well as the return are supported by affidavits, that of the provincial government being sworn by the chief secretary, the detention is challenged on various grounds. was declared an unlawful body, the provincial government regarded the association as perfectly lawful and helped its organisation and propaganda by the grant of food rations and petrol and the allotment of sites for its campa. on behalf of government the stand taken is that the government is not required to disclose facts and the return 'together with the affidavit of the chief secretary is a complete answer to the application because the provincial government was in fact satisfied that mr. in support of this argument, it was said that the test is objective and that we must examine the grounds and.....orderhidayatullah, j.1. this is an application under section 491, criminal p. c, by one wasudeo anant sohoni (referred to hereafter as the petitioner) on behalf of his brother shridhar who was detained originally by the district magistrate, akola, by an order dated 2nd february 1948 and who is now detained under section 2 (1) (a), c, p. and berar public safety act 1947, under the orders of the provincial govern, ment passed on 2nd march 1948. the applicant wasudeo filed a supplementary application on 10th march 1948 and the crown has filed a return against both applications and has produced the original order of detention passed by the provincial government. the applications as well as the return are supported by affidavits, that of the provincial government being sworn by the chief.....

Hidayatullah, J.

1. This is an application under Section 491, Criminal P. C, by one Wasudeo Anant Sohoni (referred to hereafter as the petitioner) on behalf of his brother Shridhar who Was detained originally by the District Magistrate, Akola, by an order dated 2nd February 1948 and who is now detained under Section 2 (1) (a), C, P. and Berar Public Safety Act 1947, under the orders of the Provincial Govern, ment passed on 2nd March 1948. The applicant Wasudeo filed a supplementary application on 10th March 1948 and the Crown has filed a return against both applications and has produced the original order of detention passed by the Provincial Government. The applications as well as the return are supported by affidavits, that of the Provincial Government being sworn by the Chief Secretary, The detention is challenged on various grounds. Before dealing with the grounds we set out below certain facts which are admitted on both sides.

2. Mr. Sohoni is an advocate of long stand, ing. He passed the M, A., LL.B, examinations of the Allahabad University and joined the Bar in 1918. Throughout the period before his detention he was not concerned in any subversive activities nor associated with any acts of violence. He was, however, the Provincial Organiser of the Rashtriya Swayamsewak Sangh (shortly known as the E. S. S.). He was arrested on 2nd February 1948 at his residence at Akola under the orders of the District Magistrate, Akola. On the 3rd, that is to say, the next day he was handed a statement containing the grounds of his detention and particulars thereof which read as follows:

That by virtue of your position as Provincial Organiser of the B. S. S. Berar - a body capable of violence against leaders of other political organisations - you are likely to act in a manner prejudicial to the public safety and tranquillity.

3. Later the period of his detention was extended because of a fresh order of detention served on him on 2nd March 1948 by which the Provincial Government ordered his detention for a further period of six months. Once again the grounds of his detention and the particulars thereof were furnished to him under Section 6 of the Act and this time they read as follows:

Grounds of detention and particulars.

(1) That you are the Provincial Organiser of the Bashtriya Swayam Sewak Sangh, an organisation capable of violence against the leaders of other political organisations and which has been declared an unlawful association under Section 16, Criminal Law Amendment Act, 1908, and

(2) That in view of your antecedents and on the information in the possession of the Provincial Government you are likely to act in a manner prejudicial to the public safety, order and tranquillity.

4. The petitioner goes on to Bay in. his application that almost till the time the E. S. S. was declared an unlawful body, the Provincial Government regarded the association as perfectly lawful and helped its organisation and propaganda by the grant of food rations and petrol and the allotment of sites for its campa. The leaders of the Sangh were allowed inter-views with the Ministers and other high officers of Government and a free exchange of views took place at such meetings. These latter facts are not denied by the Crown though it is submitted that these averments are not relevant. In addition to this the petitioner submits that the E. S. S. went into mourning after the assassination of Mahatma Gandhi and a direction was issued by the Sar Sangh Chalak in the shape of a telegram which reads as follows:

Out of respect and sense of grief at tragic demise of Mahatmaji cbaerve mourning till 13th day by suspending normal routine, Golwalkar.

This telegram was addressed to the detenu Sohoni and on the same day he sent copies telegraphically to other branches. This was on the morning of the 1st February 1948, - the telegram of Mr. Golwalkar being despatched shortly after midnight and those of the detenu few hours later.

5. This summary of the facts is complete and hardly any other fact was mentioned. Both the applications and the two returns contained matter which was put in by way of argument but we need not set it out here because mention will be made in our order at the appropriate place. Shortly stated the petitioner claimed that there were no facts on which the Provincial Government could have taken the present action and if there were they were not set out in the grounds o detention and the particulars which, the petitioner averred, were vague and in general terms. He said he was entitled to know the reason or reasons why he was detained. On behalf of Government the stand taken is that the Government is not required to disclose facts and the return 'together with the affidavit of the Chief Secretary is a complete answer to the application because the Provincial Government was in fact satisfied that Mr. Sohoni should be detained.

5a] We have been hearing many such applications for the last few days and most of them proceed upon the same lines. We heard arguments in four such applications so that every possible argument might be before us. The leading argument was that of Mr. Bobde, Advocate, and the other learned Counsel did little to supplement it. We also heard the learned Advocate-General in reply.

6. At the very outset Me. Bobde drew our attention to the words of Section 491, Criminal P. C, particularly the words 'illegally and improperly.' He said that a detention may be legal but not proper and that the word ' improperly' authorised us to investigate to the full the action of the Provincial Government and the reasons on which that action rested. It may be convenient to state at this stage that no question of the legality of the Act was raised nor was the power to enact the law challenged. The exact scope of the word 'improperly' was critically examined in Jitendra nath Ghosh v. The Chief Secretary to the Government of Bengal, 60 Cal. 364 : A.I.R. 1932 Gal. 753 ; 34 Gri. h.J. 245 and so far as we are aware that inter, pretation has never been doubted. In delivering the order of the Divisional Bench, Remfry J. observed:

The expression 'improperly ' in that section cannot include any consideration of the question whether the legislation in question is proper, for it is beyond the province of a Court to consider any such matter.

The local legislature, within its sphere, can alter or modify any previous legislation and create exceptions to tights given by previous enactments, and, therefore, the mere fact that it does so cannot be regarded as improper. The word ' improperly' therefore, can only refer to oases in which although the forma of law have been observed, there has been a fraud on an Act or an abuse of the powers given-by the Legislature.

In our opinion, and we say so respectfully, this is a correct interpretation of the term and its meaning as used in Section 491, Criminal P.C.

7. Thus we have to see whether the order is legal, that is to say, that it complies with all the forms of law and is passed by an authority empowered by the Act and whether there is any abuse of the powers given by the Act and thus a fraud upon it.

8. The usual argument that the order was not passed by the appropriate authority was not urged in this petition perhaps as a result of the law laid down in Om Prakash v. Eing.Em-yeror The petitioner must, therefore, be taken to have accepted the fact that the authority named in the Act is also the authority which passed the order. We need not accordingly discuss this aspect of the case.

9. This brings us to the crux of this matter. It was argued that there were no materials on which the detention of the detenu could be ordered. In support of this argument, it was said that the test is objective and that we must examine the grounds and the particulars supplied to the detenu and call upon the Crown to tender in support of this detention such evidence as it possessed and that the petitioner should be permitted to examine viva voce the officers who profess to be satisfied. It was further argued that the Sangh was a lawful body before the notification and its members and activities were also lawful. The mere declaration of the Sangh, by the Government, as an unlawful body, under the Criminal Law Amendment Act did not render all its members liable to detention since there is a presumption that every one tries to act as a law-abiding citizen.. The conduct of Mr. Sohoni before the detention was impecoable and the likelihood was that it would continue to be so. His connection in the past with an association now declared unlawful could not create any belief to the contrary especially as the grounds did not even charge the association with violence but stated that it was capable of violence. These last words were subjected to severe oriticism on the ground that this could be said of almost any association of individuals. In conclusion it was pointed out that taking the ground a and the particulars at their best, they did not diaolo3e any facts or even allege them. The petitioner, therefore, claimed that the detenu was entitled to be released and relied upon some rulings to which reference will be made hereafter.

10. The authority to detain is derived from Section 2 (1) (a) of the Act. It provides as follows:

The Provincial Government if satisfied that any person is acting or is likely to act in a manner prejudicial to the public safety, order or tranquillity, or is fomenting or inciting strikes with intent to cause or prolong unrest among an; group or groups of employees may, if it considers such order necessary, make an order directing that he be detained.

11. The Act purports to give plenary powers to the Provincial Government in as much as the 'satisfaction' of the Provincial Government is all that is required before the detention can be ordered. The plain meaning of these words is that the only test to be applied is whether there is in fact an order of detention and whether, it show B' that the Provincial Government had satisfied itself. The Legislature has chosen in its wisdom to invest the Provincial Government with the power to detain persons after satisfying itself that they are either acting or are likely to act in a particular manner and to make the Provincial Government the sole judge of this matter. After the decision of their Lordships of the Privy Council in Bhagat Singh v. Emperor 68 I. A. 169 : A.I.R. 1931 P.0. 3: 82 Cri. L.J. 727 the Courts are precluded from going behind the opinion of a person so empowered and this is true of proceedings in the nature of habeas corpus unless there is a question of identity, or manifest fraud upon the statute or the power conferred by the statute is utilised for some in-direct purpose not connected with the objects of the Act or the mischief it seeks to remedy.

12. As early as 1917, in the House of Lords, while dealing with Regulation 14-B Lord Finlay in Bex V. Halliday, 1917 A. 0. 260 : 86 L.J.E.B. 1119 pointed out that when the duty of deciding whether a person belonged to a particular class was cast upon the Home Secretary, no tribunal for investigating the question whether circumstances of suspicion existed warranting some restraint could be imagined lees appropriate than a Court of law. It is true that Lords Wrenbury and Shaw did not .agree but that was not the general opinion of the House. This opinion was re-affirmed in connection with regulation 18-B by the House of Lords in Liversidge v. Sir John Anderson, 1942 A.O. 206 : 1941 8 all E.E. 338 and Greene v. Secretary of State for Home Affairs, 1942 A.0. 284 : 1941 8 ALL E.E. 388 In the former case Lord Maugham pointed out that that construction should be preferred which would carry into effect the plain intention of those responsible for the Order in Council rather than one which would defeat that intention and observed as follows:

It is beyond dispute that he can decline to disclose the information on which he has acted on the ground that to do be would be contrary to the public interest, and that this privilege of the Crown cannot be disputed. It is not ad rent on the question of construction to say in reply to this argument that there are cases in which, the Secretary of State could answer the attack on the validity of the order for detention without raising the point of privilege. It is sufficient to say that there must be a large number of oases in which the information on which the Secretary of State is likely to act will be of a very confidential nature. That must have been plain to those responsible in advising His Majesty in regard to the Order in Council and it constitutes, in my opinion, a very cogent reason for thinking that the words under discussion cannot be read as meaning that the existence of 'reasonable cause' is one which may be discussed in a Court which has not the power of eliciting the facts which in the opinion of the Secretary of State amount to 'reasonable cause.

13. His Lordship also laid down that the maxim omnia aota rite esse praesumuntur ap. plies to such order and if the order was either proved or admitted, it must be taken primes fade-that is, until the contrary is proved-to have been properly made, and it must be taken, that the requisite as to a particular belief was-complied with. In the same case Lord Macmillan pointed out that the phrase 'if the Secretary of State has reasonable cause to believe' introduced a personal and not an impersonal requirement and observed that a decision on such question could manifestly be taken only by one who had both knowledge and responsibility which no Court could share, the question being one of preventive detention justified by reasonable probability, not of criminal conviction, which can, only be justified by legal evidence. As observed by His Lordship, a Court of law cannot pronounce upon the reasonableness of the satisfaction unless it were able to place itself in the position of those who passed the order and were put in possession of all the knowledge, both of facts and of policy, which they had, and which by reason of things they were precluded from disclosing to a Court. To the same effect were the speeches of Lords Wright and Bomer. In Greene's case, 1942 A.0. 284 : 1941 3 ALL E.E. 388 the views were re-afnrmed and it was further pointed out that even an authenticated copy of the order was sufficient and there was a presumption even against unnecessary affidavits. It is true that Lord Atkin differed from the other noble Lords in both cases and his speech meant for these two cases is to be found in Liversidge case, 1942 A.0. 206: 1941 3 ALL E.B. 338

14. It is convenient at this stage to point out that nothing turns upon the difference between, the phrases 'reasonable cause to believe' and if, satisfied.' As observed by the noble Lords in. Liversidge's case, 1942 A.0. 206 : 1941 8 ALL E.B. 388 these words connote much the same thing. To quote only one of them (Viscount, Maugham):

It will be noted that, on the view I have expressed as to the construction of the regulation it is the personal belief of the Secretary of State that is in question, and that, if the appellant's contention on this point were correct, the same question would arise in the numerous eases where En executive order depends on the Secretary of State or some other public officer being 'satisfied1 of some fact or circumstance. It has never, I think, been suggested in such cases that the Secretary of State or public officer must prove that he was 0 'satisfied' when he made the order.

15. It is also pertinent to point out that in that case the argument was that the use of the phrase 'has reasonable cause to believe' indicated that an inquiry could be held and the issue made justiciable though counsel conceded that it would be different if the word 'satisfied' were used. Dealing with this aspect of the case Viscount Maugham said:

Thus, it is pointed out that in several places, and in particular in Keg. 18B, Para. (I A) the Secretary of State is only required to be 'satisfied' of something: Bee, for example, Regs. 2D, 18A, P, (I), In these oases it a conceded that there is no recourse to the Court, provided, of course that the Secretary of State acts in good faith. The different phrase 'has reasonable cause to believe' points, it is said, to a different standard and a different meaning.

16. We mention this because Mr. Bobde tried to advance an argument to the contrary and tended to suggest that what might be shut out under a rule using the phrase 'has reasonable cause to believe' was not necessarily shut out when the phrase used is 'is satisfied.' One more reason for our adverting to this matter in some detail is that in Keshav Talpade v. King. Emperor 1943 F.0.B. 49 : A.I.R. 1943 P.0. 1: 44 Cri. L.J. 588 Sir Maurice Gwyer 0. J. made a reference to this matter. Their Lordships of the Federal Court made a difference between 'reasonably suspected' and 'satisfaction.' The words 'is satisfied' were held to go beyond what wag represented by the words 'reasonably suspected.' We need not go into this matter in more detail because this case was held by the Privy Council to be wrongly decided: See Shibnath Barterjee v. Emperor A.I.R. 1946 P.0. 156 : 1945 F. C. B. 195 It is, however, pertinent to say that the words 'is satisfied' in the rule were regarded as connoting a personal requirement, even in Keshav Talpade's case, 1943 F. C. E. 49 : A.I.R. 1943 F.0. 1: U Cri. L.J. 588

17. The decisions in Liversidge v. Anderson, 1942 A.0. 206 : 1941 3 ALL B.E. 338 and Greene v. Secretary of State for Home Affairs, 1942 A. C. 284 : 1941 3 ALL E.B. 388 were generally followed in India in connection with E. 26, Defence of India Rules and Section 3, Restriction and Detention Ordinance, 1944 (in [3] of 1944). In Vimlabai Deshpande v. Grown, I.L.R. (1945) Nag. 6 : A.I.R. 1945 Nag. 8 there are certain observations against these two decisions based on comments in law journals and though Bose and Sen J.T. cite with approval the speech of Lord Atkin, the universal acceptance of the dicta of the House of Lords cannot be questioned. It has now been held that the sufficiency of the material on which the 'satisfaction' ia based cannot be the subject of scrutiny by the Courts. We cite only a few of such cases.

18. In Sibnath Banerjee's case : AIR1943Cal377 which led to the examination of the whole subject of deten. tions, Mitter, Khundkar and Sen JJ. held that though the Court had the jurisdiction to inquire whether the authority or person designated by B. 26, Defence of India Rules, was satisfied as a matter of fact, the Court cannot inquire into the grounds of satisfaction or the sufficiency thereof. Though this case was later overruled by the Privy Council it cannot be suggested, that the second proposition was not sound. On appeal in the same case, the point was not so much as taken before the Federal Court as appears from the judgment of Zafrulla Khan J. where he says:

It was conceded that the Court could not be invited to investigate the sufficiency of the material or the reasonableness of the grounds upon whioh the Governor had been satisfied,' See King-Emperor v. Sibnath Banerjee, .

In Laxman Prasad Sharma v. The United Provinces Government and Anr., 20 Luck. 635 : A.I.R. 1946 Oudh 183 Madeley and1 Misra JJ, observed as follows:

On the principles enunciated in Liversidge v. Anderson, 1942 A.C. 206 : 1941 8 All E.R 338 and Greene v. The Seoretary of State for Moma Affairs, 1942 A.0. 284 : 1941 3 All ERule 388 it clear that a Court of law empowered to exercise jurisdiction under Section 491, Criminal P, C. cannot sit in judgment as a Court of appeal for scrutinising the correctness or otherwise of the exercise of discretion by the Provincial Government or the Governor. Since the. Government of India Act and the Ordinance obviously intend that the reasons or the informations which have impelled the authority concerned to take action should not be subjected to a public judicial investigation, we cannot persuade ourselves to examine the sufficiency or the validity or the authenticity of the information.

Similar observations are to be found in Kali Pd. Upadhya v. King-Emperor : AIR1945Pat59 and Emperor v. Harith Chandra, : AIR1943All277 .

19. It is true that in Vimalabai Deshpande v. Grown, I.L.R. (1945) Nag. 6 : A.I.R. 1945 Nag. 8 Bose and Sen JJ. relying upon the speech of Lord Atkin in Liversidge's case, 1942 A.C. 206 : 1941 3 ALL B 33 and the observations of the noble Lord in Eshugbayi Eleko v. Officer Administering the: Government of Nigeria, 1981 A.0. 662 : A.I.R. 1931 P.0. 248 laid down certain diota which tend to widen the scope of the inquiry. But these observations were mainly evoked in connection with B. 129, Defence of India Rules. Rshugbayi Eleko's case, 1931 A.0. 662; (A. i, B, (18) 1931 p. 0. 248) can hardly be regarded as an authority and has been correctly interpreted in Jitendranath's case, : AIR1932Cal753 to which we have already referred, and must be read in the light of its own facts. Tbia is how Remfry J. commented on that case:

In the last cited case, the right of the executive depended on whether or no the petitioner was a deposed chief and whether native law or custom required him to leave a particular area. These were not matters which, according to any enactment of the local legislature, were to be determined by the Government alone.

It would thus appear that the opinion of the Provincial Government ia not open to us to scrutinise unless the petitioner avers fraud, mistaken identity or some indirect and dishonest purpose.

20. We may also point out that the presumption that the order is in fact based upon proper materials is a strong one and a heavy burden lies upon the petitioner which he cannot displace by mere denial or by asserting that he is not aware of any reasons. The leading authority for this proposition is the dictum of Goddard L. J. (as he then was) (later approved by Viscount Maugham in the House of Lords) in Greene's case, 1942 A.C. 284 : 1941 3 all E.B. 388 in the Court of appeal, where he says:

I am of opinion, that where on the return an order or warrant which is valid on its face is produced it is for the prisoner to prove the facts, necessary to controvert it, and in the present case that has not been done, I do not say that in no case is it necessary for the Secretary of State to file an affidavit. It must depend on the ground on which the return is controverted, but where all that the prisoner says in effect is 1 do not know why I am interned. I deny that I have done anything 'Wrong,'- that does not require an answer because it in no way shows that the Secretary 'of State had not reasonable cause to believe, or did not believe, otherwise,' see ilex v. Home Secretary; Ex parte Greene, 1941 3 All E.E. 101

21. The matter on this point also is not res integra. Apart from several decisions of the High Courts, there are two cases of the Federal Court directly in point. In King-Emperor v. Sihnath Banerji, 1944 (6) P.C.B. 22 : A.I.R. 1913 p c. 75: 45 Cri. L.J. 341 Zafrulla Khan J. referred to Greene1 s-case, 1942 A 0. 284 : 1941 3 all BE. 388 and the passage cited above, though his Lordship did not comment on it beyond observing as follows:

We may observe that the head-note in Greene's case, 1942 A. C. 284 : 1941 3 All E.B. 888 reads as though the production of an order regular in form .would have been conclusive, but their Lordships' apeeohea in the two oases leave no room for doubt that the presumption attaching to an order regular on the (ace of it is only a rebuttable presumption.

The judgment of Spens 0. J. is, however, more exhaustive and contains the following observation:

It is not suffiient merely to allege that the detention is not in good faith or bona fide or anything of that sort. Facts have got to be alleged by the detenu sufficient to persuade the Court that, although the order ex facie indicates that everything that should have been done has been properly done, it is entitled or it is proper for the Court, to call upon the Crown further to justify what Is expressed to have been done in the order: vide Lord Maugham in Liversidge's case, 1942 A.C. 206 : 1941 3 All E.E. 388 and Lord Wright's observations in the Greene's case, 1942 A.C. 284 : 1941 3 All E.B. 388 The detenu must accept the position that the presumption omnia esse rite acta applies to the order and that once the order is proved or admitted the Court should prima facie, until the contrary is proved, assume it to gave been properly made. The burden of proof is clearly on the detenu and it is for this Court to determine in these three oases whether that burden has been discharged.

It is true that in this particular cage the learned Chief Justice was in a minority but his order was upheld on appeal to the Privy Council.

22. In the second case, viz., Basanta Chandra v. King-Emperor 1945 v.c B. 81 : A.I.R. 1945 P.0. 18: 46 Cri. L.J. 559 the judgment of the Court was unanimous and has accordingly settled the law so far as subordinate Courts are concerned. This ia what the learned Chief Justice observed:

The mere fact that the detenu challenges the factum or the bona fides of the order or the fact that the officers of Government must naturally be in possession of information on the subject cannot be said to be 'proof to the contrary' so as to make it incumbent on the Government to adduce evidence in support of the order. In Greene's case, 1942 A.0. 284 : 1941 3 All E.B. 388 Goddard L. J. (as he then was) referred to the possible ignorance of the detenu as to the reasons for his internment and said that that would not shift the burden of proof, because 'it in no way shows that the Secretary of State had not reasonable cause to believe or did not believe' that it was necessary to detain the person, reference was made to Rex v. Oarr Briant, 1943 1 K. B. 607 : 1943 2 All E.B. 156 as to the extent of the proof required to rebut the presumption in such oases; but as no proof whatever in forthcoming in this case, no question of quantum o proof arises, The detenu no doubt made some sweeping assertions in his affidavits but no materials or sources of information with reference to which these assertions were made were disclosed in the affidavit. No value can therefore be attached to these assertions ... To permit such a device would practically be to allow the rule as to the onus of proof to be circumvented.

23. This is clear authority and it is binding on us, We may, however, point out at this stage that no hard and fast rule can be laid down by which all such applications can be decided. As pointed out in Imperator v. Keshav Govind Gokhale, : AIR1945Bom212 the Court has to consider the order in the light of the surrounding circumstances. Foremost among the considerations is any allegation of fraud or abuse of the power. These, however, have to be proved like any other fact. As pointed out in Rex v. Brixton Prison (Governor) Sarno, Ex parte, (1916) 2 K.B 742 : 86 L.J. K. B. 62 though the Court should not insist on mere technicalities, the petitioner must satisfy the Court that there has been in fact a misuse of the powers. Similarly fraud has to be pleaded and proved and the petitioner here also is in no better position than an ordinary litigant who alleges fraud and is required to prove it as pleaded by him, It, how-ever, is open to the detenu to show on the record that there was in fact no satisfaction.

24. To sum up then the position in these applications is this. Once the Legislature has given powers of detention to any person that power can be exercised as the occasion arises and subject to the restrictions imposed in that behalf. If the law allows the authority named to come to its own conclusions, a valid order showing on its face that the power has been properly exercised is a good return and raises a presumption that the action was validly and properly taken. To get rid of this presumption the person detained must allege facts tending to show that there has been a mistaken identity of fraud on the statute or other misuse of the powers. If he fails to allege and prove facts he is not entitled to be released. On the other hand the Courts must be satisfied that the pro-per authority has considered the matter. Any error or mistake which shows that due care and attention was not paid to any particular case might prove fatal to the order. We cannot do better than quote here the observations of Sen and Gajendragadkar JJ. in Purshottam v. Emperor A.I.R. 1946 Bom. 333 48 Cri. L.J. 24

The difficult position in which the detenu is placed In such circumstances, therefore, makes it incumbent on the authority directing the detention to apply all possible case and attention to the materials placed before it before making the order of detention; and even a slight error or evidence of carelessness would tend to show that the necessary amount of care and attention had not been bestowed in the examination and consideration of such materials by such authority.

25. We proceed now to examine the Act and the facts of this case in the light of these observations. We have earlier reproduced the material portion of the section under which action has been taken against Mr. Sohoni. Under that section the satisfaction of the Provincial Government must be in respect of one of two things viz. that the person detained is either acting or is likely to act in a manner prejudicial to the public safety, order or tranquillity. We are not concerned with the foment- ing or inciting of strikes and need say nothing about that portion. Now the object of the section is not penal but merely preventive. A person may not have acted up to the moment of his detention in the manner sought to be prevented but if there is a likelihood of his so acting action can be taken against him. We have accordingly to see whether the Provincial Government has satisfied itself on one or the other or both before taking action. In this connection the order and the return prima facie raise a presumption that everything is in order. In the present case the only defect pointed out in the order was the use of the words 'and' in the preamble of the order which reads as follows:

Whereas the Provincial Government are satisfied that S. A. Sohoni of Akola has been acting and is likely to act in a manner prejudicial to the public safety, order and tranquillity etc.

It was argued that the Act uses the word 'or1. As regards the second 'and' we think nothing turns upon it because the 'acting' can be pre-judicial to the public safety as well as order and tranquillity. The first 'and' does admit of some argument especially as the Provincial Government's return does not deny that Mr. Sohoni was law-abiding till the date of his arrest. But being law-abiding is one thing and not acting in a manner prejudicial to the safety etc., is quite another. Many a rumour-monger and many a person indulging in reckless talk may keep out of the clutches of law and yet act in a manner prejudicial to the public safety, order or tranquillity. The matter is cleared by the return and the grounds of detention which show that his membership of the R. S. S. is in mind. We may also point out that in Sibnath Banerji's case, A.I.R. 1948 F.O. 75 ; 45 Cri. L.J. 34l (op. eit. Slip.) Zafrulla Khan J, made a point of the use of the word 'or' and animadverted against those orders which used this word. According to the learned Judge this showed a mechanical reproduction of the words of the rule (r. 26 of the Defence of India Kulea). In this view the learned Chief Justice of India did not concur. There are two English cases in which the opinion of the learn-' ed Chief Justice finds support and the orders passed in Green's case 1942 A.0. 284: 1941 3 all. E.Rule 888 used the word 'or.' We do not, therefore, think that this point is so substantial as to entitle the detenu to an immediate release.

26. This brings us to the grounds of detention and particulars supplied to the detenu. It is to be remembered that the grounds are not given to justify the detention but to afford the detenu a chance to make a representation. Their purpose is limited though being a document vitally connected with the reasons of detention it forms an important piece of evidence. In the grounds supplied in this case, it is clearly stated that the main reason for Mr. Sohoni's detention is his intimate connection with the E. 8. S. and that the E. 8. 8. is capable of violence towards the leaders of other political organisations. Ho facts are disclosed though it is in a way suggestive that the action followed immediately after the assassination of a great leader. We are not entitled to conjecture any more than the detenu. The action of the Provincial Government in declaring the E. Section 8. an unlawful body immediately after, wards points to a continuity of action in which the arrest and detention of persons intimately connected with the E. S. S. were only links. The restraint in the matter of disclosure of grounds and particulars which Section 5 of the Act envisages must be borne in mind and it is not expected that the Provincial Government would reveal all its information. As we have said above, we are not entitled to conjecture why the E. 8. 8. was declared an unlawful association, what material the Government acted upon, and how that body of individuals is capable of violence because these matters are within the ken of the Provincial Government and are not known to us. We know from the return that the Provincial Government satisfied it self and the settled law in this country does not allow us in such circumstances to ask the Provincial Government to disclose to us all the materials and information on which the action was taken. The petitioner cannot shift the onus from him-self by merely asserting in a general way that there are no grounds. Nor does such assertion constitute proof of fraud or indirect motive.

27. On behalf of the petitioner, Mr. Bobde cited certain orders of the Bombay High Court where on almost identical facts certain detenus were released. Our attention was not drawn at the time of the arguments to the difference between Section 2 (1) (a), Central Provinces and Berar Public Safety Act and the corresponding section in the Bombay Act, In the latter, only a person acting in a manner prejudicial to public safety etc, can be detained whereas under the Act which we are considering even a person considered likely to act in this prejudicial manner can be detained. What applies to the Bombay Act does not necessarily apply to the Central Provinces & Berar Act which invests much greater powers in the executive. In view of this, we do not consider it necessary to examine these rulings in detail, nor do we consider it necessary to examine certain other rulings arising under Section 17, Criminal Law Amendment Act because no question of a conviction is involved but only preventive detention.

28. Mr. Bobde also relied upon Vimalabai v. Crown I.L.R. (1945) Nag. 6 : A.I.R. 1945 Nag. 8 and invoked the doctrine of malice in law adumbrated in that case. We have shown above that that case was concerned with E. 129, Defence of India Rules between which and the present section there is no more analogy than existed between B. 129 and Rule 26, Defence of India Rules. In view of this, we do not propose to examine the question whether the doc trine of 'malice in law' can rightly be extended to such cases. That doctrine has caused con. fusion particularly in the law of defamation and has been the subject of adverse comments and its extension to such cases may be open to some doubt. It is also significant that their Lordships of the Privy Council have stated that they are not in agreement with all that is stated in that ruling. See King Emperor v. Vimlabai I.L.R. (1946) Nag. 651 : A.I.R. 1916 PC 123: 47 Cri. L.J. 831 On those points on which the decision was approved by the Judicial Committee the case is distinguishable. We are thus not impressed by this argument. . [29] We are accordingly satisfied that Mr. Sohoni is legally and properly detained and is, therefore, not entitled to be released. The application fails and is dismissed.

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