Sankar Saran, J.:— This is an application under section 491 of the Code of Criminal Procedure by one Sheikh Jamil Ahmad who has been ordered to be detained under the U.P Maintenance of Public Order (Temporary) Act, 1947.
He was arrested on the 28th of September, 1947. It appears he is a contractor who used to supply bamboo poles to Government for the use in tents and even now, according to his allegations, carries on that business.
After his arrest an application for bail was moved on his behalf, which was opposed by the police in their report, dated 4th October, 1947. On the 6th October, 1947, the Prosecuting Sub-Inspector in opposing the hail reported that the offence was a non-bailable one and that the applicant was being detained under the “Ordinance”. A day later on the 7th October, the Prosecuting Inspector reported that he was detained under section 3 of the Maintenance of Public Safety Act of 1947 by the District Magistrate and that the matter could be only dealt with by this court under section 491, Criminal Procedure Code. Upon this report the District Magistrate refused the bail application.
In the affidavit that has been filed on behafr of the applicant in this Court it was urged that the applicant did not think he was detained by the District Magistrate under section 3 of the U.P Maintenance of Public Order, Act IV of 1947. He further alleged that he had not been informed about the grounds upon which his detention was based as required under section 5 of the said Act, nor had he been afforded an opportunity to make any representation against the order of his detention.
This application was made on the 15th October, 1947, and the learned Government Advocate prayed for two weeks' time which he was allowed. On the 27th October, 1947, the Government Advocate prayed for three days' time to enable him to receive instructions. On the 31st October, the case was ordered to be listed on the 3rd November and on the 3rd of November the case was again adjourned and it was fixed for the 7th November.
A counter-affidavit on behalf of the Government was filed on the 3rd November, 1947, in which a general denial of the applicant's affidavit regarding the nature of his business was made and it was asserted that orders under sections 3 and 5 of the U.P Maintenance of Public Order Act IV of 1947, had been served on the applicant Sheikh Jamil Ahmad. On the 7th November, 1947, a rejoinder was filed. In paragraph 2 it was alleged, “That though an order purporting to be under section 3(1)(A) of the U.P Maintenance of Public Order (Act IV) of 1947 Was served upon the applicant Jamil Ahmad on 30th October, 1947, at 10.15 p.m yet he has not been informed of the grounds upon which the order of his detention has been based nor has been informed of his right to make a representation against the said order as required under section 5 of the Act.” Subsequently on the same day a supplementary affidavit by the Government was filed in which it was clearly stated that “on his premises were found three stocks of lathis which as generally used as an offensive or defensive weapons in a fight which are not even remotely connected with tent bamboos. They were roughly about 5 feet long and one inch in circumference and according to the information they were stocked there in view of the tense communal situation and to be illegally used by the applicant.”
It thus appears that even though originally the applicant was not arrested and detained under section 3 of the Maintenance of Public Safety Act, by the 7th October, 1947, the local authorities had decided to detain him under section 3 of the said Act. It, however, appears that no action was taken by the local authorities till the 30th October, 1947, even though on the 15th of that month the applicant had, made an application to this Court against his detention by the local authorities. It was not till after the case had been listed twice in this Court that action was taken under section 5 of the Act. I have before me the notice under section 5 given to the applicant. It is a brief one and runs as follows: “That you had imported a large number of lathis on 28th September, 1947, with the view to engineer a riot. That you often incite Muslims to commit breach of peace.” Section 5 of the Act reads as follows: “As soon as may be after an order in respect of any person is made under clause (a) of sub-section (1) of section 3, the officer or authority making the order shall communicate to the person affected thereby the grounds on which the order against him has been made and such other particulars as may in the opinion of such officer or authority, be sufficient to enable him to make a representation against the order and such person may at any time thereafter make a representation in writing to such officer or authority against the order. It shall be the duty of such officer or authority to inform such person of his right of making such representation and to afford him the earliest practicable opportunity of, doing so. If the Government is satisfied on considering the representation made that it is no longer necessary to maintain the order, the order made under section 3 shall be cancelled.”
It will thus appear that there was considerable delay in compliance of the provisions of section 5 of this Act, and even though the applicant had mentioned in his affidavit to this Court dated the 15th of October, 1947, that he had not been informed of the grounds of his detention nor had he been afforded an opportunity to make any representation, the learned District Magistrate complied after-considerable delay with only one part of section 5 of the Act. He gave him notice and supplied him with such particulars as in his opinion were sufficient to enable the applicant to make the representation against his order, but he omitted to observe the mandatory provision of the law and inform the applicant that he could make such representation as he chose against the order passed by him. It was his duty to have informed the applicant of his right make such representation and indeed to have afforded him the earliest practicable-opportunity of doing so.
I am conscious of the fact that these are extraordinary tunes and the legislature has thought it right to give very wide powers to the executive, but it has to be remembered that those who have to exercise the powers which are given, to them are charged with a grave responsibility. The law provides certain safeguards and over and above that those, responsible for the exercise of powers under the law ought to remember that the subject with which one is dealing in this case is something affecting the liberty of the subject and there ought to be careful observance of the procedure and the safeguards that are enacted by the legislature.
On behalf of the Crown it has been argued that this is after all a mere slip and the applicant has not been prejudiced thereby. I am afraid, I am unable to accept this view. I cannot ignore the fact that this enactment is a serious encroachment upon the liberty of the subject and although it might have been enacted to meet an extraordinary and abnormal situation, it is the business of this Court to see that the terms of the statute are strictly construed and as far as may be in favour of the subject. In this case, however, there has been a violation of the mandatory provision of the law. The language of the section, leaves no room for doubt that the applicant was entitled to be informed to make his representation and was to be afforded the earliest opportunity practicable. Paragraph no. 7 of the affidavit filed on behalf of the applicant runs as follows: “That in any case Jamil Ahmad has not been informed about the grounds upon which his detention has been based as required under section 5 of the said Act nor has he been afforded an opportunity to make a representation against the order of his detention.” This was an invitation to the authorities to take all the steps that were necessary under section 5 of Act TV of 1947…
In the circumstances of the case, therefore, I consider this is a fit case where this Court should interfere. I am of opinion that any further detention of the applicant would be improper. I, therefore, direct that the applicant be set at liberty forthwith. I am informed that Sheikh Jamil Ahmad is in the Naiui Central Jail. This order will be sent to the Superintendent, Nairn Jail, for compliance.