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Criminal Miscellaneous Application No. 149 of 1953, decided on 19th August 1953.
S. 3 (1) (b) Grounds for detention-Mere membership of a party not enough --Grounds must be such as enable detenu to make adequate representations to Government.
A mere membership of a party whether Communist, Muslim National Guard or R. S. S. cannot furnish a valid ground for detention unless acts calculated to endanger the security of the State are ascribed to the detenu in question.
The grounds furnished must be such as enable a detenu to make adequate representation.
[Case-law referred].
Noor-ul-Arifeen for Petitioner.
Mirza Sardar Beg, Advocate-General for the Crown.
Hassan Nasir stands detained in prison in pursuance of an order passed by the Central Government under clause (b) of subsection (1) of section 3 of the Security of Pakistan Act, (XXXV of 1952) passed on 24th May 1952, and prays that his release may be directed by this Court under the powers conferred under section 491, Cr. P. C.
The Central Government passed order of detention on 24th May 1952 and furnished grounds of detention on the same day as provided for by section 6 of the Act. The said grounds may be quoted in full:
"The Government of Pakistan are satisfied that you worked and were trained by a reputed Communist and were appointed as Secretary of the Karachi Communist Party. You were further engaged in directing the activities of the Communist Party under different assumed names and remained underground to escape notice. The Government: of Pakistan were and are satisfied that your activities were and are prejudicial to the Security of Pakistan. In pursuance of section 6 of the Security of Pakistan Act, 1952, you are being informed of the above mentioned reasons for your detention to enable you to make, if you so wish, a representation in writing against the order of detention. You are also hereby informed that you have the right to make such a representation."
The grounds mentioned above come to this that the detenu is a Member of the Communist Party of Pakistan. The grounds do not disclose any particular activity on the part of the detenu nor do they reveal any particular scheme of things on behalf of the Communist Party in Pakistan. A Communist Party may be presumed to have a certain ideology, but mere holding of certain views cannot possibly affect the safety of Pakistan. It is well established that Court can examine grounds to see if they are relevant to the object which the Legislation has in view and for which detention is being ordered, namely, safety of the State in the particular case because satisfaction in this connection must be grounded on material which is of rational probative value.
The question whether membership of a particular party can be a valid ground has been considered in various Indian Cases. In a Full Bench case Nek Muhammad and others v. The Province of Bihar reported in (A I R 1949 Pat. 1) the question was whether membership of R: S. S. or the Muslim League National Guard could furnish a valid ground for detention. Their Lordships came to the following conclusions:
"In the absence of any indication of the nature of the activity and particulars thereof, the grounds must be held to be no grounds at all under section 4 of the Act."
Section 4 is equivalent to section 6 of our Act.
A similar question arose in a case In re: Rajdhar Kalu Patil reported in (A I R 1948 Bom. 334), His Lordship Chagla Ag. C. J. observed:
"If a reason is given for the detention of a person which is not within the scope and ambit of the Act conferring the power upon the Government to detain, then the whole order is vitiated..."
The same view was expressed in a case Har Tirath Singh v. The Crown reported in (A I R 1950 (East) Punjab 222). The Allababad High Court agreed with the basis of the decision in the above two cases and came to conclusion that the grounds supplied to a detenu must be connected with the order of preventive detention. If it is found that they are not so connected it cannot be said that the requirements of Article 22 (1) (3) sub-clause (5) of the Constitution of India had been complied with. Failure to establish a connection between them and order of detention would make the order invalid.' The detenu in this Allahabad case was also charged with having communistic views. In a case R. L. Reddy s/o Narsayya v. The Provincial Government reported in (A I R 1949 Nag. 146) their Lordships had to consider whe ther membership of the Communist Party of India, which had not been declared an unlawful body, without anything else, could prima facie attract the provisions of the Act or not. Their Lordships returned the reply in negative and held that mere membership of the Communist Party apart from any specific activity could not prima facie attract the provisions of the Act and the detention would be illegal.
A similar question arose in a case Kulamoni Mohanty v. The State reported in (A I R 1951 Orissa 20). Their Lordships observed:
"Such grounds, if they exist as in the nature of things they should, would be sufficient for a Party to be declared unlawful. That the Party has not been declared unlawful makes it clear that it cannot be predicated that every individual member of the Communist Pary is either a sabotageous or violent. Under the circumstances, to tell a particular communist that he is so because he is an avowed communist would be nothing but vague".
Lastly, we may refer to a case of this Court in the case of Abdul Khaliq Azad v. The Crown, decided on 28th August 1951 by Tyabji, C. J. and Muhammad Bachal, J. The grounds in that case were that the applicant had communistic views and had been carrying on communistic propaganda. Their Lordships observed as follows :-
"It is impossible to assert that by making defamatory remarks or by holding political views which are disliked by other people, a person does anything which is at all likely to overthrow the entire existing structure of society or to lead to public disorder."
Thus there is a consensus of authority that a mere member ship of a party whether Communist, Muslim National Guard or R. S. S. cannot furnish a valid ground for detention unless acts calculated to endanger the security of the State are ascribed to the detenu in question. There being no such allegation in the present case we are of opinion that the grounds given must be held to be invalid and necessarily the detention of the applicant illegal.
Mr. Arifeen has further contended that the grounds given are indefinite and vague and consequently detention of the appli cant detained is illegal for this additional reason.
Section 6 of the Act is as follows:-
"In every case where a detention order has been made under clause (b) of subsection (1) of section 3, and where before the commencement of this Act an order has been made in respect of any person under clause (b) of subsection (1) of section 3 of the Pakistan Public Safety Ordinance, 1952, the authority making the order shall, within one month of the date of deten tion, communicate to the person affected thereby the grounds on which the order has been made to enable him to make if he wishes a representation in writing against the order, and it shall be the duty of such authority to inform such person of his right of making such representation and to afford him the earliest opportunity of doing so:
Provided that nothing in this section shall require the authority to disclose facts which it considers to be against the public interest to disclose."
Section 6 quoted above obviously provides a remedy and the only remedy to the detenu applicant for getting the order set aside. The object of providing grounds is to enable the detenu to make representation with a view to assure the detaining authority that he was not likely to act in a manner contemplated by the Act. The effect and the requisites of a similar section in various enactments in India have been considered by Courts in that country and they have invariable come to conclusion that the grounds furnished must be such as to enable a detenu, to make adequate representation. The very section says that the grounds have to be furnished so as to "enable him to make if he wishes a representation in writing against the order." The detenu is not entitled to appear in person, and, therefore, the only method of meeting the alleged accusations against the detenu is to make a representation and no effective representation can be made unless he is aware of such particulars as are the basis of conclusions reached by the detaining authority. The learned Advocate-General contends that grounds can only mean the con clusions reached by the Central Government on the basis of which it is satisfied that detention of a particular detenu is neces sary and cannot include any facts on which the conclusion is based. This argument ignores the proviso which says :-
"That nothing in this section shall require the authority to disclose facts which it considers to be against the public interest to disclose."
If facts were not to be covered by the word grounds', where was the necessity of inserting this proviso. The word ground' has one of its meanings "a promise, reason or collection of data upon which anything is made to rely for cogency or validity as facts are the ground of scientific theory or belief". The meaning of the word grounds' was considered by the Allahabad High Court in a case Inder Prakash and others v. Emperor reported in (A I R 1949 All, 41). His Lordship of the Allahabad High Court observed:
"grounds does not merely mean the conclusions or the abstract reasons for the action taken. Besides the conclusions arrived at or reasons for the action, they do comprehend the basis for those conclusions or reasons and thus they include the facts on which those conclusions or reasons are based."
A similar view was taken by the Calcutta High Court in a case reported in Safatulla Khan v. The Chief Secretary to the Govern ment of West Bengal and another (A I R 1951 Cal, 194).
We have already held that the grounds given in the case of the applicant are not valid grounds and it is not necessary, there fore, to express a final opinion as to the scope of the word "grounds".
We are of opinion that the order of detention is invalid and we accordingly direct that the applicant be released forthwith.
A. H. Release directed.
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