1. We heard this habeas corpus petition under Article 226 of the Constitution on 3rd March 1965, and at the close of the hearing, we allowed the petition and directed that the petitioner be set at liberty forthwith and indicated that our reasons would be pronounced later. Accordingly our present judgment gives our reasons for the order which has already been passed by us on 3rd March 1966.
2. The facts of the case, briefly stated, as contained in the petition, are that the petitioner, Syed Hyder Abas Raza, son of Syed Mehdi Hasan, resident of No. 3 Nabiullah Road, Luoknow, is a practising advocate at Lucknow and was a student of Lucknow University in 1958. He was at that time the General Secretary of the District Unit of the Lucknow Students Federation as well as the Secretary of the State Unit of the same organisation. In August 1958 the petitioner was arrested at Lucknow for a breach of an order under Section 144 of the Code of Criminal Procedure. He was, however, released later on without being tried.
3. In 1961 the petitioner was again wrested for a breach of an order under Section 144, Code of Criminal Procedure and was tried by the Judicial Magistrate, Lucknow within the boundaries of the District Jail and was sentenced to three months' rigorous imprisonment and a fine of Rs. 500/-. The petitioner was, however, acquitted in appeal by the learned Sessions Judge, Lucknow.
4. In August 1962 the petitioner was detained under the provisions of the Preventive Detention Act in District Jail, Lucknow but the order of detention was revoked by the State Government after about five month. According to the petitioner he struggled against the educational policies of the Government and also criticised the State Government for adopting repressive measures.
5. In January 1903 the petitioner joined the Bar and started practising at Lucknow. In October 1963 some students of Lucknow University and of other colleges launched a movement for the redress of their grievances and organised a hartal and took out a procession on Vidhan Sabha Marg. Police resorted to lathi charge in front of the Council House of Lucknow in order to disperse the procession and several students were beaten and some were also arrested. Some students requested the petitioner to intervene and thereupon the petitioner approached Sri Har Govind Singh, Home Minister and requested him to release the students as they had expressed the desire to withdraw the movement. The Home Minister, however, according to the petitioner, lost his temper and told the petitioner that he would deal with the petitioner in the same manner in which he had dealt with the students. A few days after the above conversation the petitioner was arrested in the High Court premises at Lucknow and was challaned under Sections 452/427/147 I. P. C. read with Sections 5/6 of the Special Powers Act and was detained in the District Jail Lucknow. Ultimately the petitioner was acquitted by the Judicial Magistrate, Lucknow.
6. The petitioner belongs to the communist party of India since 1956. On 30th December 1964 there was a mass arrest of leading members of the communist party all over the country and subsequently the petitioner was selected by his party to act as the Convenor of a committee to provide legal aid to the persons detained under the Defence of India Rules, hereinafter called the Rules. As a spokesman of the communist party the petitioner issued circular, press statements and delivered speeches in different districts of this State protesting against the arrest of the members of the party and demanding better treatment to the detenus in jail. The petitioner also organised civil liberty committees to various districts. In June 1965 the petitioner condemned the decision of the State Government in closing fair-price shops in an area of less than 50,000 population.
7. On 2nd August 1965 the State Government revoked its order of detention against 75 communist leaders detained under the Rules in various districts of the State but the petitioner remained in detention. The petitioner alleges that the Home Minister and the Deputy Secretary, Home Department, opposite parties Nos. 2 and 3 to the petition, have personal animus against him.
8. On 8th July 1965 the petitioner was arrested in Hazratganj and was served with an order under Rule 30(1)(b) of the Rules. The order is dated 7th July 1965 and was signed by Sri R.K. Kaul, Deputy Secretary, Home Dapartment, U. P. Government and runs as follows :--
'Whereas the Governor of Uttar Pradesh is satisfied with respect to the person known as Sri Haider Abbas s/o Sri Ghulam Mustafa r/o Patharwa-ali Gali, P.S. Wazirganj, distt. Lucknow, that with a view to preventing him from acting in a manner prejudicial to the defence of India and public safety it is necssary to detain him. Now, therefore, in exercise of thepowers conferred upon the State Government by Clause (b) of Sub-rule (1) of Rule 30 of the Defence of India Rules, 1962, the Governor of Uttar Pradesh hereby directs that said person shall be detained in the Distt. Jail, Lucknow in the custody of the Superintendent of the said Jail till further order.'
9. According to the petitioner the aforesaid order is beyond the purview of Rule 30 (1)(b) of the Rules and is mala fide and is an abuse of the process of law. The order dated 7th July 1965 was eviewed by the reviewing authority on 6th January 1966. The order dated 6th January 1966 runs as follows :--
'Whereas, by an order No. III-589-XXV-CX(A), dated July 7th, 1965 of the Governor pf Uttar Pradesh, Shri Haider Abbas son of Shri Mehdi Hasan had been detained under Clause (b) of Sub-rule (1) of Rule 30 of the Defence of India Rules, 1962 and is at present confined in District Jail, Lucknow. And, Whereas the Governor having under Sub-rule (9) of Rule 30-A of the aforesaid Rules reviewed the said order of detention on January 6, 1966, has decided that the order should be continued; Now, therefore, the Governor is pleased to order that the detention of said Shri Haider Abbas son of Sri Mehdi Hasan shall be continued.'
10. Two counter affidavits have been filed, one by Sri R.K. Kaul, Deputy Secretary to Government, Home Department, Lucknow and the other by Sri Har Govind Singh, the State Home Minister. Both Sri Har Govind Singh and Sri Kaul have stated that they have no personal animus against the petitioner. In paragraph 29 of Sri Kaul's counter-affidavit it is stated that the petitioner's activities were found prejudicial to the defence of India and public safety and it was for that reason that action was taken against the petitioner under the Rules. Sri Har Govind Singh, the Home Minister, has stated in his counter-affidavit that he never knew the petitioner. In paragraph 9 of the Home Minister's counter-affidavit it is stated that the cases of preventive detentions are not dealt with by him as Home Minister and that he had nothing to do with the petitioner's detention under the Rules.
(10-A) The petitioner has filed his rejoinder-affidavits.
10-B. We heard Sri Asif Ansari, the learned counsel appearing for the petitioner, and the learned Advocate General appearing on behalf of the State at great length.
11. Sri Asif Ansari submitted that the order of detention dated 7th July 1965 had been passed without applying the mind by the authority empowered to detain the petitioner and further that the order is mala fide. It was further pleaded that the State Government passed the detention order without taking into consideration the mandatory provisions of Section 44 of the Defence of India Act, hereinafter called the Act. Sri Ansari further urged that the State Government could not pass the impugned order as it relates to defence of India and public safety. According to the learned counsel the reviewing authority could not modify the original order and further the reviewing order must also state that the reviewing authority applied its mind before ordering the original order to continue. Sri Ansari contended that in the instant case the detaining authorities should have come forward to state that the action taken against the petitioner was not mala fide.
12. The learned Advocate General, on the other hand, contended that the detention order was a perfectly valid order and was passed after full satisfaction and does not suffer from any infirmity. According to the learned Advocate General a properly authenticated order cannot be questioned as the provisions of Article 168 of the Constitution have been fully complied with. Under Article 166 there is an irrebuttable presumption that the impugned order was passed by the Governor after full satisfaction. The learned Advocate General urged that it was for the petitioner to make definite allegations and to prove them regarding mala fide action taken against the petitioner by the State Government. The learned Advocate General further submitted that the identity of the petitioner was never in doubt and, therefore, minor discrepancies regarding petitioner's parentage and address in the detention order are immaterial and did not vitiate the order.
13. The order of detention dated 7th July 1965 has been quoted above. It was passed under Rule 30(1)(b) of the Rules. Rule 30 deals with restriction of movements of suspected persons, restriction orders and detention orders and reads as follows:-
'(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 if necessary so to do, may make an order-
(a) directing such person to remove himself from India in such manner, by such time and by such route as may be specified in the order, and prohibiting his return to India;
(b) directing that he be detained;
(c) .... .... .... .... .... .... .... (d) .... .... .... .... .... .... ....(e) .... .... .... .... .... .... ....(f) .... .... .... .... .... .... ....(g) .... .... .... .... .... .... ....(h) .... .... .... .... .... .... .... Provided that . . . . . . . . . .
14. Under Rule 30 the detaining authority, before passing the order directing a person to be detained, must be satisfied that he was acting in a manner prejudical to the defence of India & civil defence, the public safety, the maintenance of public order, etc. Before the detaining authority can be satisfied it must apply its mind to the material before it and should not pass an order of detention mechanically. If a detaining authority passes an order mechanically without ap-plying its mind to the material before it the order will be clearly illegal and would be set aside. The order of detention in the instant case suffers from several infirmities. We find that even the full name of the petitioner is not mentioned and the name of his father is wrong. The petitioner's address is also wrong. These serious errors show that the detaining authority has been casual in its approach and did not apply its mind with that diligence which is required when the liberty of a subject is being taken away and which the law requires to be mandatory.
15. It was held in Purshottam Trikamdas v. Emperor, AIR 1946 Bombay 333 at p. 336 thus :--
'The difficult position in which a detenu isplaced in such circumstances, therefore, makes : incumbent on the authority directing the detention to apply all possible care 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. Such a conclusion would indeed be regrettable in a case in which the executive is given almost unlimited power and discretion to deprive His Majesty's subjects of their liberty without the intervention of the Courts of law, to use the words used in a case recently decided by this Court: 47 Bom LR 675: (AIR 1946 Bom 32).'
15-A. It was held In re. Shoilen Dey, AIR 1949 Bom 75 that :
'The detaining authority has such wide powers given to it under the Act that where the Court is left with any discretion at all to investigate the ground given by the Commissioner of Police, the Court must do so vigilantly in order to find out whether that degree of care and caution has been exercised by the detaining authority which the law requires. The Commissioner of Police need give no particulars, need state no facts. He can take refuge behind public interest and behind the language of Ss. 2 and 3. But when he does give grounds--and those grounds have to be given by him as a statutory obligation--he must take meticulous care to see that whatever is stated in those grounds is stated with absolute accuracy. The emphasis is not so much on the accuracy, or on the nature of extent of the error; the emphasis is on the state of the mind of the detaining authority. If the state of the mind of the detaining authority discloses that he has been casual in his approach and that he has not applied his mind with that diligence which it is necessary when the question is of taking away the liberty of a subject, the Court will, certainly interfere and will set at liberty the detenu arrested by the order of the detaining authority.'
16. It was held by their Lordships of the Supreme Court in Sadanandan v. State of Kerala, Writ Petn. No. 136 of 1965 dated 16-2-1966: (AIR I960 SC 1925) as follows:
'But having regard to the fact that an Emergency has been proclaimed under Article 352 of the Constitution, certain consequences follow: and one of these consequences is that the citizens detained under the Rules are precluded from challenging the validity of the Rules on the ground that their detention contravenes their fundamental rights guaranteed by Articles 19, 20 and 21. The presence of the Proclamation of Emergency and the notification subsequently issued by the President constitute a bar against judicial scrutiny in respect of the alleged violation of the fundamental rights of the detenu. This position has always been recognised by this Court in dealing with such writ petitions.
Nevertheless, this Court naturally examines the detention orders carefully and allows full scope to the detenus to urge such statutory safeguards as are permissible under the Rules, and it has been repeatedly observed by this Court that in cases where this Court is satisfied that the impugned orders suffer from serious infirmities on grounds which it is permissible for the detenues to urge, the said orders would be set aside. Subject to this position, the merits of the orders of detention are not open to judicial scrutiny. That is why pleas made by the detenus that the impugned orders have been passed by the approritate authorites without applying their minds properly to the allegetion on which the impugned orders purport to be based, or that have been passed mala fide, do not usually succeed, because this Court finds that the allegations made by the detenus are either not well-founded, or have been made in a casual and lighthearted manner. But cases do come before this Court, though not frequently, where this Court comes to the conclusion that the impugned order of detention is passed without the appropriate authority applying its mind to the problem, or that it can well be regarded as an order passed mala fide. Having heard Mr. Ramamurthi for the petitioner and the learned Additional Solicitor-General for respondent No. 1, we have come to the conclusion that the impugned order in the present case must be characterised as having been passed mala fide'.
17. In Jagannath Misra v. The State of Orissa, Writ Petn. No. : 1966CriLJ817 their Lordships of the Supreme Court observed thus:
'The order of detention under Rule 30(1)(b) of the Rules deprives a citizen of this country of his personal liberty and in view of the suspension of some of the fundamental rights by the President on account of the emergency, a citizen has very limited opportunity of challenging an order of detention properly passed under the Rules. It seems to us therefore necessary where detention is made under the Rules that the authority ordering detention should act with a full sense of responsibility keeping in mind on the one hand the interests of the country in the present emergency and on the other hand the importance of the liberty of the citizen in a democratic society. That this is so is also emphasised by Section 44 of the Act. which lays down that 'any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence.' In view of this specific provision in the Act it is incumbent upon the authority which is passing an order under Rule 30(1)(b) of the Rules taking away the liberty of a citizen of this country that it should act with due care and caution and see that the person detained is so detained on grounds which justify the detention in the interest of the country. Further proceedings in the matter of detention and the order of detention should show that it had acted with all due care and caution and with the sense of responsibility necessary when a citizen is deprived of his liberty without trial.'
18. The impugned order clearly shows that the detaining authority did not with a full sense of responsibility and with the due care and caution apply its mind to the material before it. The impugned order must, therefore, be characterised as having been passed without application of mind by the detaining authority and must be set aside. We do not agree with the learned Advocate-General that since the identity of the petitioner was never in doubt minor discrepancies regarding petitioner's parentage and address in the detention order are immaterial and did not vitiate the order. Whether the identity of the petitioner was or was not in doubt is irrelevant. When a citizen is deprived of a fundamental right of liberty without a trial it is incumbent on the authority directing his detention to apply all possible care and attention to the material placed before it before passing the order of detention and any error or carelessness would show that the necessary amount of care and attention has not been bestowed before passing the order. Such is the position in the instant case. It must, therefore, be held that the errors in the impugned order vitiate the order.
19. Rule 30-A of the Rules deals with review of detention orders. Sub-rule (9) of Rule 30-A requires that:
'Every detention order made by the Central Government or the State Government shall be reviewed at intervals of not more than six months by the Government who made the order and upon such review that Government shall decide whether the order should be continued or cancelled.'
20. It was under Sub-rule (9) of Rule 30-A that the impugned order was reviewed by the order dated 6th January 1966. It is true that the order of review removed the errors which existed in the detention order but that would not alter the position. The learned Advocate General also concedes that if mistakes occurring in the detention order are corrected by the reviewing order the existence of the mistakes in the detention order could not be justified. The first submission of Mr. Ansari has, therefore, force and the impugned order is liable to be set aside.
21. As the petition succeeds on the first contention of Sri Ansari it is not necessary to deal with the other contentions raised by the learned counsel for the parties.
22. For the reasons we allowed the petition on 3rd March 1966 and directed the petitionerto be set at liberty forthwith.