P L D 1955 Sind 73 (PLP)

LARI, J.--‑M‑uhammad Ahmad, son of Hidayatullah, filed this application under section 491 Cr. P. C. on 30th November, 1953, alleging that he was arrested on 20th June, 1953, under a detention order passed by the Chief Commissioner of Karachi under section 3 (1) (b) of the Security of Pakistan Act, 1952; that grounds of detention contemplated by section 6 of the Act were communicated to him 4 months later, i.e., on 20th October; 1953, and ran as follows :‑ "The grounds of detention are that you are an ace crimi nal and most desperate bad character and excise criminal of great notoriety and thus your activities are prejudicial to the maintenance of public order." and that his case was not at all referred to the Advisory Board as laid down in the Security of Pakistan Act and consequently the detention of the applicant was illegal. When the case came up for hearing the learned counsel for the Crown filed an affidavit in which it was alleged that the Chief Commissioner cancelled the impugned dentention order dated 18th June, 1953, the applicant was released on 15th January, 1954, and rearrested and detained the same time by virtue of a fresh order, dated 11th January, 1954, passed by the Chief Commissioner in exercise of the powers con ferred upon him under clause (b) of subsection (1) of section 3 of the Security of Pakistan Act, 1952. The relevant portion of the second order, dated 11th January, 1954, was as follows :‑ "Whereas I, A. T. Naqvi, Chief Commissioner of Karachi, am satisfied in respect of Muhammad Ahmad that he is an ace criminal most desperate bad character and excise criminal of great notoriety and thus his activities are pre judicial to the maintenance of public order." Subsequently grounds of detention were communicated to the applicant detenu and it was as under :‑ "In pursuance of section 6 of the Security of Pakistan Act, 1952, you are hereby informed that the grounds of your dentention are that you are an ace criminal and most desperate bad character and excise criminal of great notoriety and I am satisfied that your being at large will prove prejudicial to the maintenance of public order. The grounds of detention, it would be seen, is nothing but a reproduction of tire original order, dated 11th January, 1954. The learned counsel or the applicant detenu challenged the legality of the later order dated 11th January, 1954, on three main grounds. Firstly, that there is nothing in the order to show that the Chief Commissioner meant the applicant and not any other person bearing the name of Muhammad Ahmad. Secondly, that the order was mala fide, and, thirdly, the grounds of detention were so vague and indefinite that it could not enable the detenu to make any representation and as such the detention was illegal. We propose to deal with each of the submissions. It is true that the order of detention dated 11th January, 1954, does not give the parentage or residence of Muhammad Ahmad, but it must be borne in mind that it was the applicant, who was in jail, it was he who was ordered to be released and, re‑arrested immediately thereafter. As such there can be no doubt that the order of detention did refer to the applicant and not any other Muhammad Ahmad. The detention, there fore; is not illegal because of absence of parentage or residence of Muhammad Ahmad.' Reliance was placed on a case decided` by the Bombay High Court reported in A I R 1940 Bom.

397. In that case there was nothing to indicate as to who was the person intended by the warrant and consequently it was held that the warrant was bad in law. It was urged that the applicant was originally detained under order of the Chief Commissioner, dated 18th June, 1953, and his detention became illegal because grounds of detention were supplied after the expiry of statutory period of one month and the case of the detenu was not referred to the Advisory Board at all as required by section 7 of the Act. As a result of non‑compliance with mandatory provision of the Act the application of the detenu was bound to succeed and consequently the detaining authority cancelled the prior order and issued a fresh order of detention. The subsequent order was not based on any consideration of materials but was merely intended to defeat his application before this Court. Section 3 (sub clause 7) of the Security of Pakistan Act, 1952, authorises a detaining authority to revoke his order any time that he so chooses and provides that such a revocation shall not prevent the making of a fresh order to the same effect as the order revoked. In the face of this proviso it cannot be argued from the mere act of revocation and passing of fresh order that the subsequent order was mala fide. It may be that due to negligence the mandatory provisions of the Security Act were not complied with and when the detaining authority came to know this non‑compliance it realised that further detention was illegal and consequently it revoked the previous order but at the same time felt that further detention of the detenu was necessary and consequently passed afresh order. In this view of the matter it cannot be held under the circumstances of the case that the order of detention dated 11th January, 1954, was mala fide. Lastly it was urged that the grounds of detention com municated to the applicant were vague and indefinite and that made his detention illegal. The grounds of detention, it was contended, must not only give conclusion reached by the detaining authority but such facts also as would enable the detenu to make‑ a representation to the detaining authority. Reliance was placed on the observations of this very Bench in the case of Hassan Nasir v. Crown (P L D 1953 Sind 37) in which we have observed as follows :‑ "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 a 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 similar section in various enactments in India have been considered by Courts in that country and they have invariably come to conclusion that the grounds fur nished 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 s 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 conclusions reached by the Central Govern ment on the basis of which it is satisfied that detention of a particular detenu is necessary and cannot include any facts on which the conclusion is based. The argument ignores the proviso which says: "That nothing in the 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 'ground' where was the necessity of inserting this proviso. The word 'ground' has one of its meanings "a promise, reason or collec tion 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 (A I R 1949 All 41). His Lordship of the Allahabad High Court observed "Grounds does not merely means 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 Safatullak Khan v. The Chief Secretary to the Government of West Bengal and another (A I R 1951 Cal. 194). The above observations find support from the two deci sions of the Supreme Court of India. The State of Bombay v. Atma Ram Shridhar Vaidya (A I R 1951 S. C. 158) and Dr. Ram Kirshan Bhardwaj v. The State of Delhi and others, (A I R 1953 S. C. 318) Their Lordships of the Supreme Court of India observed in the latter case: "Learned counsel relies on the decision in State of Bombay v. Atma Ram Shridhar Vaidya (A I 81951 S. C, 157 (A)) where this Court held by a majority that the person detained is entitled, in addition to the right to have the grounds of his detention communicated to him, to a further right to have particulars as full and adequate as the circumstances permit furnished to him so as to enable him to make a representation against the order of detention. It was further held that sufficiency of the particu lars conveyed in the 'second communication' is a justiciable issue, the test being whether it is sufficient to enable the detained person to make a representation 'which on being cosidered, may give relief to the detained person.' On this interpretation of article 22 (5) two questions arise for con sideration : first whether the ground mentioned in sub para. (e) is so vague as to render it difficult, if not impossible for the petitioner to make an adequate representation to the appropriate authorities:" It may here be noted that provisions of article 22 (5) of the Constitution of India are in the same terms as section 6 of the Security of Pakistan Act. Article 22 sub‑para. 5 of the Constitution of India runs thus: "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, com municate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose." Section 6 of the Security of Pakistan Act, 1952, 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 detention, 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 represen tation 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." It cannot be argued that there is any material difference between the two provisions quoted above except that a period of 'one month' is substituted in our Act for an 'earliest oppor tunity' in the Constitution of India, and we are inclined to hold that the interpretation put by the Supreme Court of India on a similar provision is a correct interpretation and it is obli gatory on the part of the detaining authority to include such facts in the grounds as would enable the detenu to make a representation. The grounds of detention have been quoted above. They are wholly general and do not at all provide data on the basis of which a representation could be made by the detenu. We are constrained to hold that the grounds are vague and in definite and do not comply with the requirements of the Act. The detention of the applicant is illegal and he is entitled to be released forthwith. We accordingly order that the applicant be set at liberty forthwith. A. H. Detention held illegal.