1. The petitioner is the father of one Maganlal Hirji Yyas hereinafter referred to as the detenu. The respondent is the Commissioner of Police for Greater Bombay.

2. On 17th October, 1947, the detenu was arrested by the C.I.D Bombay. On 18th October, 1947, a remand application was made to the Chief Presidency Magistrate by the Inspector of Police, C.I.D The remand application was made in reference to eight accused persons one of them being the accused, who were arrested between 3rd October, 1947 and 17th October, 1947. The offences with which they were charged were under Ss. 302,807 and 114, Penal Code, read with Ss. 5 and 6, Explosive Substances Act. The remand application states as follows:

“During the recent communal riots in the City, there have been several bomb outrages in which many persons lost their lives and others sustained serious injuries. The enquiries were taken over by the C.I.D, on 3rd October, 1947, in the early hours of the morning there was an explosion at Warden Bead when accused 1 was arrested by the C.I.D in this connection. Accused 2 who is a close associate of. No. 1 was also arrested on the same day. Protracted enquiries were made and it was ascertained that there was an organization responsible for the manufacture, distribution and use of the bombs in the City, Following the trail after the arrest of accused 1 and 2, the other accused 3 to 8 have been arrested, and they form a part of the organization indulging in such subversive activities. Nos. 7 and 8 were only arrested on 17th October, 1947, as the persons responsible for the supply of chemicals and other paraphernalia for the manufacture of the bombs. This organization appears to have been far and wide spread and several other members have still to be arrested. In view of the seriousness of the offences indulged in by them and in the interest of public safety and transquillity, I request your worship to remand all the accused in police custody, for a further period of fourteen days, i.e till 1st November 1917.”

3. This remand application has been put in as Ex. No. 1 before me. Accused 7, mentioned in the remand application, is the detenu.

4. On 1st November 1947, another remand application was made which refers to the explosion at Warden Road, which took place on 3rd October, 1947, when one person was seriously injured, which incident was already referred to in the first remand application. It is not necessary for me to set out the whole of that remand application, but I shall set out that portion of it which relates to the detenu which reads as follows:

“All the marginally noted accused are collectively responsible for the manufacture and distribution of bombs. A large quantity of paraphernalia for the manufacture of metal bombs has been taken charge of in consequence of the arrest of the accused. As some more persons are to be arrested and other bombs which have already been distributed are to be recovered, I request your Worship to remand the accused in police custody till 15th November, 1947.”

5. This remand application has been put in as Ex. No. 2 before me. The accused was one of the ‘marginally noted accused’ referred to in the said remand application. On this remand application (Ex. No. 2) coming on before the Chief Presidency Magistrate on 1st November 1947, he ordered the accused who were put up before him to be enlarged on a bail of Rs. 10,000 with one surety each in the like amount. In default the accused ware ordered to be remanded to 16th November, 1947.

6. The petition mentions that on 1st November 1947, there was opposition on behalf of the police to bail being granted which statement in not denied by the respondent in the affidavit which he has filed. The learned Chief Presidency Magistrate, however, made the order set cut above after hearing the parties. The petition proceeds to state that after the bail was furnished in the evening of 1st November 1947, and when the accused including the detenu were about to leave the C.I.D office, they were requested to wait for taking away the articles seized fane them. Soon thereafter the detenu as also the other accused were detained and not allowed to leave the C.I.D office and that since then the detenu has been in police custody. There facts too are not denied by the respondent in the affidavit.

7. On 3rd November, 1947, order no. 788 of 1947, dated 2nd November, 1947, made under Section 2(1)(a) of the Bombay Public Security Measures Act, 1947, was served on the detenu. This order has been pair, in as Ex. No. 3. The order states as follows:

“Whereas the Government of Bombay has directed by its Order in the Home Department No. S.B 671, dated 26th April, 1947, that the powers conferred on it by clause (a) of sub-section (1) of Section 2 of the Bombay Public Security Measures Act, 1947 (Bom. VI of 1947), shall also be exercised by the Commissioner of Police, Greater Bombay, and whereas, I Jahangir Sohrab Bharucha, I.P, Commissioner of Police, Greater Bombay, am satisfied that the person known as Maganlal Hirji Vyas (the detenu) is acting is a manner prejudicial to the public safety and the peace of Greater Bombay;

“Now, therefore in exercise of the powers conferred by clause (a) of sub-section (1) of Section 2 of the said Act, I hereby direct that the said Maganlal Hirji Vyas be detained.”

8. This order was signed by J.D Nagarwala for Commissionner of Police, Greater Bombay. The word “Dy.” appearing in ink means “Deputy” as Mr. Nagarwala was the Deputy Commissioner of Police.

9. On the same day (i.e, on 3rd November, 1947), a notice, dated 2nd November, 1947, under Section 3 of the Bombay Public Security Measures Act, 1947, which is headed as “Notice no. 788 of 1947”, was served on the detenu which states as follows:

“Whereas the Government of Bombay has directed by its Order in the Home Department No. S.D 671 dated 26th April, 1947, that the powers conferred on it by sub-section (1) of Section 2 of the Bombay Public Security Measures Act, 1947 (Bom. VI of 1947), shall also be exercised by the Commissioner of Police, Greater Bombay;

“In pursuance of Section 3 of the Bombay Public Security Measures Act, 1947 (Bom. VI of 1947), you Maganlal Hap Vyas are informed that the grounds on which as order of detention has been made against you under clause (a) of sub-section (1) of Section 2 of the said Act, are:

“That you are a member of a gang, which is furtherance of the political object of its party formed an organization to manufacture metal casing bombs and other explosive and did aid and abet Chabildas Dayanand Arya (a) (which means alias) Sardar Sanjit Singh to manufacture bombs. Ton were concerned in a bomb outrage that occurred on 3rd October, 1947, at 63 Warden Road. Your being at large is, therefore, prejudicial to the public safety and the peace of Greater Bombay.”

10. This notice has been put in before me and is also marked Ex. no. 3.

11. The bail having been furnished on 1st November 1947, it appears to me that the detention of the detenu during the interval between the furnishing of the bail on 1st November 1947, and the serving of the order on 3rd November, 1947, was illegal.

12. After the said order and notice, dated 2nd November, 1947, were served on the detenu, it seems to have been realised that they were open to the criticism that they were of no binding force as they were not signed by the Commissioner of Police, Greater Bombay.

13. On 15th November, 1947, another application was made by the Sub-Inspector of Police, O.I.D on Special Duty to the Chief Presidency Magistrate. This has been put in and marked as Ex. No. 5. I need not set out that application at length. By that application a request was made to the learned Chief Presidency Magistrate to extend the bail period of the accused till 29th November, 1947. The remand application contains this statement:

“Six live bombs were also recovered as a result of the arrests of the marginally noted persons (the detenu being accused 5 as mentioned in that application). They have been released on bail as directed by Tour Worship.”

14. On that application the learned Chief Presidency Magistrate extended bail to 29th November, 1947. This document (Ex. No. 5) is a curious document. It contains a totally incorrect statement which should never have been made by a public officer, namely, that the detenu had been released on bail as directed by the learned Chief Presidency Magistrate. It applied for an extension of the bail period. It made no mention of the order and the notice dated 2nd November, 1947, served on the detenu on 3rd November, 1947, under which the detenu was kept in custody. It did not mention that bail had been furnished on 1st November 1947, but that in spite of it the detenu was kept in custody. It is difficult to justify this attitude on the part of the police authorities.

15. On 18th November, 1947, the detenu was served with an order and a notice under the Bombay Public Security Measures Act, 1947, dated 17th November, 1947, which this time was signed by the respondent who is the Commissioner of Police, Greater Bombay. The order and notice have been put in as Ex. No. 4. On 21st November 1947, the present petition was filed.

16. The petition, after setting out the facts mentioned above, sets out certain facts as to the respectability of the accused which it is not necessary for me to state as I do not consider them relevant to the questions which arise for my determination. These facts are that the detenu is an advocate of this Honourable Court and that he is a person who occupies a responsible and respectable position in life and is engaged in useful social work and that the detenu at no time was a member of any political organization.

17. In paragraph 11 the petitioner states that the detenu was being prosecuted by the police on the charges referred to above and that by reason of the bail having been furnished on 1st November 1947, the detention of the detenu thereafter was illegal and that the said detention thwarts and defeats the ordinary course of law and is therefore illegal. It further states that the respondent had not applied his mind while pas-sing the order dated 2nd November, 1947, and had not signed it. It states that therefore the said order dated 2nd November, 1947 is of no legal effect and is not made bona fide in the proper exercise of his duties by the respondent.

18. In paragraph 13 the petitioner says that the notice and the order Hated 17th November, 1947, were served on the detenu while he was already in detention, and that as the detenu was not then at large and was not acting in so manner prejudicial, to public safety and peace of Greater Bombay, the said order and notice are bad, and that the provisions of the said Act had no application to the facts as they then existed. In the result the petitioner prays that the detenu be set at liberty.

19. The respondent in his affidavit relies on the order dated 17th November, 1947, and the notice of the same date. The affidavit states that no representation had been made to the Commissioner of Police after the said notice was served as the detenu was in law entitled to make. Paragraph 3 of the affidavit states that the respondent was satisfied after full enquiry made by him personally that the detenu was acting in a manner prejudicial to the public safety and peace of Greater Bombay, and that the said order was made by the respondent after full and proper investigation and on the respondent being satisfied as regards the necessity of the order. In paragraph 4 of the affidavit the respondent submits that the order dated 2nd November, 1947, was a valid order, but that in order to avoid all doubts the respondent had taken up the matter again, considered all the facts and passed the order dated 17th November 1947, and that the order dated 17th November, 1947, was passed by the respondent after personal enquiry and on his being satisfied as regards the necessity of detaining the detenu. The respondent denies the charge of circumvention contained in the petition and he states that there was material before him other than the material presented to the Court on remand application on which he was satisfied that his order dated 17th November, 1947, should be made. The respondent submits therefore that the petition should be dismissed.

20. Now there are certain well-established propositions of law which it is not necessary for me to set out at length. It is undoubtedly true that where an order of detention under this Act is regular in point of form, the onus is cast on the person detained to show that it is in effect no order within the meaning of the Act either because the mind of the detaining authority had not been applied or it was made mala fide; and unquestionably the onus is a heavy one. In (1942) 1 K.B 871 at p. 109, MacKinnon L.J observed as follows:

“The power of the Home Secretary to issue a valid order depends on the fulfilment of a condition. The nature of that condition is very material. It is not the existence of an objective fact, for example, that the person concerned is an alien. It is the existence of a subjective state of mind in the Home Secretary, that is, that he has reasonable grounds for believing certain facts to exist, and, by implication, that he honestly entertains that belief. If an order asserting the existence of that state of mind and belief, in valid form, has been made, the onus on the applicant of disproving its existence is obviously more difficult than would be the disproof of an objective fact, for example that the man is an alien.”

21. There is produced before me in this case the order and the notice dated 17th November, 1947. The learned Advocate-General, who appeared for the respondent, did not argue that the order and the notice dated 2nd November, 1947, were valid and effective, and in effect he conceded that they were invalid and ineffective. I have therefore to consider the validity of the order and notice of 17th November, 1947 only. As stated above, on the face of them, they are in order. The burden then shifts on to the detenu to show that nevertheless the order and the notice for certain reasons are bad. The contention of the petitioner is that the matter having been placed before the learned Chief Presidency Magistrate and his judgment having been invoked for the determination of the question whether pending the trial of the detenu he should be at liberty, this attempt on the part of the respondent to detain the detenu is made only because of the order granting bail and because the respondent was dissatisfied with that order. The petitioner submits that recourse has been had by the respondent to the wide and sweeping powers which the Act gives him because of the said dissatisfaction with the order granting bail and that, therefore, the order made is not bona fide.

22. Now it is perfectly true that the respondent in a given case might honestly be of opinion that public interest required that full disclosure should not be made of the evidence in the possession of the respondent to prove the necessity of keeping in detention the detenu. The evidence in his possession may not be sufficient to secure the conviction of the detenu and may fall short of the strict legal proof required in that behalf, but may still be sufficient and more than sufficient to justify the keeping in detention of the detenu in the interests of public order and tranquillity. In this particular case if the respondent had been of the opinion that it was a case where he had to at under the special provisions of the Act in order to detain the detenu in public interest, then he should ordinarily have had recourse to the powers given to him by that Act in the very first instance. Having detained the detenu, it was still competent to the Commissioner of Police to see that justice should not be delayed and that conviction should follow where it was well merited. As I said, and as in fact it has been held by our Appeal Court in a judgment to which I shall refer hereafter, the two objects are entirely different. Prosecution in the Police Court is for procuring punishment. The detention under the Act is for securing public order and tranquillity.

23. Section 2 of the Bombay Public Security Measures Act, 1947, (Bom. VI of 1947), says as follows:

“The Provincial Government may, if it is satisfied that any person is acting in a manner prejudicial to the public safety, the maintenance of public order, or the tranquillity of the Province or any part thereof, make an order (a) directing that he be detained.”

24. It is significant that the words used in S. 2 are the words “Is acting.” I do not for one moment suggest that the word “is” as read along with the word “acting” is capable of the construction that it must be proved by the Commissioner of Police that at the Very moment that the order is made the detenu was acting in a manner prejudicial to the public safety. The word “is” is nevertheless capable of only one meaning, namely, that within a reasonable distance of time as compared with the date of making of the order by the Commissioner of Police, the detenu has acted or was acting in a manner prejudicial to public safety. It is not within the scope nor is it the intention of the Act that for act done by the detenu in the remote past or what may be considered as remote past having regard to the distance of time which separates the alleged acts from the date of the making of the order, that the detenu shall be kept in custody under the Act. The Act provides for a notice to be given to the detenu so that he may make the necessary representation to the Government in that behalf. Our Courts have held that by that is meant that the necessary particulars should be given to the detenu to enable him to make the necessary representation. The longer the distance of time is, which separates the illeged acts, from the date of the making of the order, the more difficult it becomes for the detenu to make the necessary representations or to lead the necessary evidence to prove his innocence. Therefore in any case where public interest demands that the detenu should forfeit his individual liberty in the interest of public welfare, the Commissioner of Police should act promptly in the exercise of those special powers, the due exercise of which has been left to his sole and uncontrolled and unquestionable decision. In this case the Commissioner of Police did not think it necessary that those special powers should be invoked in the first instance. He thought that it was a case where a prosecution should go on in the ordinary course and that such detention as was called for was because of facts which could be submitted for scrutiny by the Magistrate before whom the detenu was being prosecuted. There were, in the first instance, no special circumstances which rendered it imperative to take the question of the detention of the detenu outside the purview of the enquiry to be held by the Magistrate. I do not think that this Act, which contains very special and wide powers, contemplated that there should be prosecution first for the purpose of securing conviction, and that when after that long drawn out process was over, the Police Commissioner should have recourse to those special powers and arrest the accused on those very grounds on which he should in the very first instance have been detained. Undoubtedly, there was in the first instance a subjective state of mind in the Commissioner of Police when it was for him alone to decide on the facts whether to detain the detenu or not. In this particular case, the Commissioner of Police did not think it necessary to have recourse to that subjective state of mind and to call its aid for deciding whether the accused should be kept under detention. It would appear that, according to the respondent, at the time when the prosecution was launched, there were no special circumstances which rendered it imperative for him to detain the detenu. In effect the respondent said to the Chief Presidency Magistrate:

“If you think he should be detained and remanded into Police custody, say so. Otherwise you have the power to release him on hail and I shall abide by your judgment whether he should be released on bail.”

25. The Magistrate having before him the facts as they were placed came to the conclusion that even after having due regard to the seriousness of the offence alleged to have been perpetrated by the detenu, it was still a case for remand. It was then, I think, the duty of the Commissioner of Police to give effect to the decision of the Magistrate. I do feel, and feel strongly, that it is not permissible for the Commissioner of Police to lend himself to any course of action which suggests that he arrogates to himself the right to review the judgment of the Magistrate. He must respectfully abide by it. Where then a situation arises which lends itself to the construction that the action of the Police Commissioner is an attempt to supersede the order of the Magistrate, Courts of Justice must be vigilant to see that justice is not brought into ridicule and rendered impotent and that a tendency towards autocracy does not prevail in the minds of the representatives of democracy.

26. Now I am perfectly willing—and indeed it is my duty—to take the view that a public officer holding the responsible position of the Com missioner of Police is actuated by no motives other than legitimate motives. At the same time’ it is any duty to see that the freedom of the public is not unduly taken away. Bearing these principles in mind, I shall now revert to the facts.

27. The bomb outrage referred to in the-notice Ex. 3 herein took place on 3rd October, 1947. The arrest was made on 17th October, 1947. The remand application (Ex. 1 dated 18th October, 1947) is useful for comparing the statements made therein with the grounds as they are set out in the two notices dated 2nd November, 1947 and 17th November, 1947. Up to 1st November 1947, there did not exist in the mind of the respondent any circumstances sufficient to necessitate his having recourse to the special powers under the Act. The application for bail was resisted by him, but the Chief Presidency Magistrate nevertheless made the order for badly. It is then and then only that on grounds, mentioned in the said notices the detenu was detained. There is no trace in either of the two orders or the two notices dated 2nd November, 1947, and 17th November, 1947, that there came up for consideration at those dates by the Commissioner of Police any new facts which were duly considered by him or which were facts different from those which existed in the initial stage or which made it incumbent on him to have recourse to those wide powers. I have read and reread the remand applications and the words of the two notices, and I have reluctantly come to the conclusion that the grounds on which the detenu was put under arrest by the respondent under his special powers were the very grounds on which the respondent wanted the Magistrate to continue to keep the accused under arrest. If in the initial stage the respondent had detained the detenu under the special powers, then it could very well have been said that the two minds, one of the Commissioner of Police and the other of the learned Chief Presidency Magistrate, were operating on entirely two different planes—one being concerned with the public welfare and safety and the other with the vindication of justice and the punishment of the guilty. I think it is open to the detenu to complain, and complain bitterly, that it is the Commissioner of Police who is trying by these methods to sit in judgment over the judgment which the Chief Presidency Magistrate passed. If, even at the stage when the order of bail was about to be made, the respondent thought that he should exercise his special powers in public interest, that was the stage when the respondent should have drawn the attention of the Chief Presidency Magistrate to that fact. On 17th November, 1947, when the second order (which is now contended to be a valid order) was passed and on 18th November, 1947, when it was served on the detenu, he had been in custody for nearly a month. Can it be stated that within the meaning of Section 2 of the Bombay Public Security Measures Act, 1947, the detenu was at that date a person who fell within the description of a person who “is acting” in a manner prejudicial to public safety? The detention from 17th October, 1947, onwards made it impossible for the detenu to act in any manner prejudicial to public safety. When the distance of time that separated the incident of 3rd October, 1947, from the date when he was put under detention under the order of 17th November, 1947, is considered, it is difficult for one to say that in spite of that distance of time, the detenu was acting in a manner prejudicial to the public safety on 17th November, 1947. I am, therefore, unable to persuade myself to take the view that the order dated 17th November, 1947, was passed within the limit of the powers given under the Act, or in the due and proper discharge of his duties by the respondent, or that it was passed bona fide. I am afraid I am compelled to come to the conclusion that the Commissioner of Police made this order because he was of the opinion that bail should not have been granted. The burden of proof shifted on the respondent to prove that the order was made bona fide and I have come reluctantly to the conclusion that the respondent has not discharged that burden. I have not lost sight of the allegations made in the affidavit of the Commissioner of Police which I have taken particular care to set out above, which are that there was material before the respondent other than the material presented to the Court on the remand application on which he was satisfied that the order dated 17th November, 1947, should be made. I am not prepared to accept mere statements of this nature made in affidavits long after the material dates which seem to be called for by the necessity to justify detention under the Act. I cannot lose sight of the language of the orders as and when they were made and the circumstances under which they were made, and I cannot consider myself bound by statements made on a maturer consideration of the position as it existed in law. I regret that, in spite of those statements made in the affidavit, I have to come to the conclusion that the order made by the Commissioner of Police was not made on any independent ground which he considered and on which he acted. In my opinion it was not right for the respondent to make a show of his desire not to exercise his special powers under the Act, that he should have recourse to the normal proceedings in Courts of law, and that because at the end of or during the course of those proceedings things did not turn out as expected by him, that he should then fall back upon those special powers for achieving the result desired by him. The affidavit filed by the respondent does not state at what date the detenu was acting in a manner prejudicial to the public safety and peace of Greater Bombay. The affidavit does state that there was material before the respondent other than the material presented to the Court on the remand application on which he was satisfied that the order dated 17-11-1947, should be made. The affidavit, however, does not state that such material was different from the material which he had originally in his possession when the arrest was made on 17-10-1947. As stated above, I am not prepared to place reliance on statements of this nature made in affidavits filed long after the event took place and I am not satisfied that the respondent has by his affidavit discharged the onus which shifted on to him.

28. The learned Advocate-General referred me to an Appeal Court judgment of this High Court in 47 Bom. L.R 6692. The detenu in that case had been arrested and detained under Rule 26 and Rule 129, Defence of India Rules, and subsequently they were detained under an order of detention made under cl. 3 of Ordinance III 1944. Rule 26, Defence of India Rules, provides as follows:

“26(1). The Central Government or the Provincial Government, if it is satified with respect to ‘any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order,—it is necessary so to do, may make an order— (b) directing that he be detained.”

29. Rule 129, defence of india rules, read as follows:

“129(1). Any police officer, or any other officer of Government empowered in this behalf by general or special order of the Central Government or of the Provincial Government may arrest without warrant any person whom he reasonably suspects of having ???, of acting or of being about to act……”

30. Clause 3 of Ordinance III of 1944 provides as follows:

“The Central Government or the Provincial Government, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence, of British India, the public safety, the maintenance of public order, it is necessary so to do, may make an order: (b) directing that he be detained.”

31. On a comparison of the language of Hols 26 and Rule 129, Defence of India Rules, and cl. 3 of Ordinance ill of 1944 with the language of Section 2 of the Bombay Public Security Measures Act, 1347 (which I have to construe), one sees at ones that there is a material departure in the provisions contained in the later Act of 1947. Formerly, the law was that the accused may the detained with a view to preventing him from acting in any manner prejudicial to the public safety, etc. or he may be detained when there was a seasonable suspicion of his having so acted or of being about to act so. Under the Act, which I have to construe, the power to the Provincial Government to detain is given only if it is satisfied that any person is acting in a manner prejudicial to the public safety, etc. That power is a much more restricted power than the power given under cl. 3 of Ordinance III of 1344, where the arrest can be made with a view so preventing the accused from acting in any manner prejudicial to public safety. Their Lordships in 47 Bom. L.R 669 were consider, and mainly the provisions of cl. 3 of Ordinance III 1914, I must, therefore, be cautious in adopting the observations made by their Lordships in relation to cl. 3 of Ordinance in 1944 as if they were applicable of necessity to a case arising under the Act which I have to construe.

32. The petitioners in that case were arrest and detained under Rule 26 or Rule 129 initially, that the order for detention was replaced by an order for detention under cl. 3 of Ordinance in of 1944. Stone, C.J said (page 671):

“Tin my opinion as a result of the decided cases it is clear that if the order for detention is regular in point of form, as onus is cast on the person detained to show that it is in effect no order made under or having effect finder this Ordinance either because the mind of the detaining authority has not been applied or because it is no order, having been made by mistake or by mala fide.

But once the person who has issued an order for detention tegular in point of form implements it by an affidavit in which he says that on material laid before him he applied his mind and came to the conclusion that the detained person ought to be detained for reasons given in the enabling Act, Bale or Ordinance, the onus on the person detained becomes almost impossible to discharge, because having regard to sub-el. (1) of cl. 10 of Ordinance III of 1944 the only method of escape is to show that the alleged order is in fact no order at all”

33. Sub-clause (1) of cl. 10 of Ordinance III of 1944, referred to by his Lordship, provides as follows:

“No order mader under this Ordinance, and no order having effect by virtue of S. 6 as if it had been made under this Ordinance, shall be called in question in any Court, and no Court shall have power to make any order under Section 491 of the Cr PC, 1898 (V of 1898), in respect of any order made under or having effect under this Ordinance, or in respect of any person the subject of such an order.”

34. There is no provision in the Bombay Public Security Measures Act, 1947, corresponding to sub-cl. (1) of cl. 10 of Ordinance III of 1944.

35. Stone, C.J went on in that case to say as follows (p. 673):

“It, therefore, appears that in the case of all the four petitioners an order for detention has been made against them under cl. 3 of Ordinance III of 1944. All the four orders are regular in point of form and in each case the appropriate officer of Government has made an affidavit saying that before the order was made His Excellency considered the case of each of the petitioners and was of the opinion that an order for detention ought to be made.

Whatever may have been the circumstances relative to the detention of the petitioners in the past, it is now clear that the orders under which they are now detained have been made after consideration by His Excellency personally. There is no evidence of, nor is there any justification for, any allegation of any want of good faith. But Mr. Jahagirdar has urged that the Provincial Government must be deemed to have the option either of proceeding to trial under the criminal law or of detaining a person under the Ordinance and that once election has taken place in favour of the former course an acquittal by the Court ousts the power to proceed to detention under the Ordinance. But in my opinion this cannot be so, since even if we assume without deciding that this proposition would be sound if the material was identical, it does not follow that the subject-matter of the criminal charge is co-extensive with all that the Provincial Government may properly take into account in deciding whether or not to make an order of detention.”

36. By the last observation of the learned Chief Justice I gather that in his Lordship's opinion the material was not identical in the case before him. His Lordship added (p. 673):

“In my judgment in cases like the present in which the orders for detention are regular in point of form and in which an affidavit has been made showing that the mind of the detaining authority has been applied to a consideration of the case, it is established that the document under which the person is detained is an order so that the jurisdiction of this Court to question the grounds or motives for the making of it or for calling it in question are taken away by Cl. 10 of the Ordinance.”

37. Lokur, J. in a concurring judgment has stated as follows (p. 674):

“It is a fallacy to say that the right to prosecute a person under the ordinary criminal law and the right to detain him under the defence of india rules or the Ordinance are mutually exclusive. If a person, who is really dangerous to public safety and maintenance of public order, commit an offence, Government would certainly be justified to prosecute him for the offence first, and if for want of sufficient evidence, the prosecution fails, it would none the less be necessary to keep him in detention for the sake of public safety and maintenance of public order. If Mr. Jahagirdar's argument be accepted, it would be risky for Government to prosecute such a man, lest the power of detention would be lost in case of his discharge or acquittal. The standard of evidence required for conviction is different from that required for a reasonable satisfaction of the necessity for detention in the interest of public safety or maintenance of public order. For conviction the Court has to be convinced of the guilt of the accused and the benefit of a reasonable doubt goes to the accused. But for the purpose of detention, it is enough if the Government or any officer duly empowered is reasonably satisfied of the necessity of his detention, and there can be no benefit of doubt, since the public safety and maintenance of public order are the paramount concern of Government, during these times of emergency. Hence even if the evidence adduced at the trial is not sufficient to secure his conviction, the power of the Provincial Government to order his detention is not lost, if it is reasonably satisfied that it is necessary to do so with a view to prevent him from acting in any manner prejudicial to the public safety or the maintenance of public order.”

38. At page 675 his Lordship added:

As I have already pointed out, the mere fact that the materials placed before a criminal Court were found insufficient to establish guilt beyond doubt cannot deter Government from looking at those materials from a different angle and come to an honest conclusion that it is sufficiant to justify detention. Moreover, Government is not bound to disclose all the materials on which such a conclusion was reached. In fact the Secretary to Government, Home Department, has stated in his affidavit that he has been advised not to disclose those materials, but that His Excellency the Governor did apply his mind to them and come to the conclusion that the order of detention passed by him was necessary. Mr. Jahagirdar contends that it is not stated in his affidavit that there were any materials before His Excellency the Governor other than the ten criminal cases against the petitioner, but even that need not be disclosed. There is no reason to presume that there were no other materials and that in regarding even those cases themselves to be sufficient to require the petitioner's detention in the interest of public safety or maintenance of public order His Excellency the Governor did not act in good faith. It is not disputed that His Excellency the Governor did apply his mind to the materials before him and it is not for the Court to decide whether those materials were or were not reasonably sufficient. Hence there is no reason to interfere with his order, and the rule must be discharged.”

39. I have set out the observations of the learned Judges in the case in extenso just to show that I have fully considered those weighty observations. It is not permissible for me lightly to disregard them and it is my duty, if I was bound on the facts of this case, to give effect to those observations. But it is to be observed, as Stone C.J pointed out, that in that case there was no allegation of want of bona fides. When one carefully scrutinises the facts of that case and the law applicable at that date, one finds that, that case stands on an entirely different footing from the present case. In that case the accused were prosecuted in about ten cases and had been acquitted, which means that the prosecution had failed to lead the necessary evidence to satisfy the Court that the accused were, guilty of the offences with which they were charged. But when one comes to consider the question of detention for preventing the accused from acting in any manner prejudicial to public safety, that question stood on an entirely different footing and had nothing to do with the orders, of acquittal. The matter stood on two entirely different planes. So far as the present case is concerned, the matters did not stand on entirely different planes. There was one issue only at, the date the order granting bail was made, and on 17-11-1947, when the order in question was made by the respondent. That issue to my mind was whether, having regard to the facts, as they existed at those dates, it was against the interest of public safety that the accused should be released and get at large on bail. If the materials; were the same cm both those dates, it is difficult to avoid coming to the conclusion that the order of 17-11-1947, was an attempt to over-ride the order granting bail made by the learned Chief Presidency Magistrate. I have already pointed out that there is no trace of any fresh materials which would show that the accused at the date of the order was a person who fell within the description of a person “who is acting in a manner prejudicial to public safety” within the meaning of the Act.

40. Even after a careful consideration of the case reported in 47 Bom. L.R 669 I have come to the conclusion that the respondent has not succeeded in repelling the charge of want of bona fides. Apart from that, I have, come to the conclusion, for the reasons set out above, that the accused at the date of the order was not a person of whom it could be said that he was a person “who is acting in a manner detrimental to public interest”; and if that be so, I think that the respondent had no authority under the Act to detain the accused.

41. In the result I am of the opinion that? the orders of detention are bad. I, therefore, direct that the detenu Maganlal Hirji Vyas be set at liberty forthwith.

42. The respondent will pay to the petitioner the costs of the petition.

43. Petition allowed.