Sen, J.:—

This application is made by one Mohinnuddir Abdullamia Koreishi under s. 491 of the Code of Criminal Procedure against the order of detention made against him on the 9th February 1948 by the District Magistrate of Ahmedabad. That order was made under s. 2(1)(a) of the Bombay Public Security Measures Act, 1947, and stated that whereas the said District Magistrate was satisfied that the detenu was acting in a manner prejudicial to the public safety, the maintenance of public order and the tranquility of Ahmedabad City, he directed the said Moinnuddin Abdullamia Koreishi to be detained. On the 25th February 1948 the District Magistrate specified the grounds of the order and the particulars required to be supplied under s. 3 of the Act to the detenu. The material part of that statement is as follows:

“You being an active member of the Muslim National Guard Organisation in Ahmedabad City and in furtherance of the object of this organisation have been provoking and propagating communal hatred and violence, that you incite Muslims against Hindus generally, that your activities are aimed at keeping the communal discord and disharmony alive, that you preach doctrine subversive to law and order in Ahmedabad City and that your being at large is detrimental to the public peace, safety and order in Ahmedabad City.”

In the present application it is stated that the detenu practised as an Advocate in the Ahmedabad Courts for some years, that thereafter he took to journalism and purchased a daily newspaper and a press in 1945, that he is not connected with the Muslim National Guard Organisation in Ahmedabad City, not being a member thereof and not having even taken any part in that organization, that ever since August 15, 1947 there has been no communal or Hindu-Muslim trouble in the city of Ahmedabad, and that about January 8, 1948, he went to Karachi for purposes of business and came back to Ahmedabad only to receive the order of detention made against him. He has further stated that he has established business connection at Karachi and intends to wind up his business at Ahmedabad and develop it at Karachi as well as to go to England later on for his business; that all the allegations made in the order and the grounds furnished to him are false, that on learning that his name was included in the names of the persons who were to be detained he wrote to the District Magistrate on the 13th February intimating that he would be coming to Ahmedabad, and that on his arrival he was arrested and kept under detention in the Ahmedabad Central Prison at Sabarmati where he was served with the detention order. The District Magistrate has made an affidavit wherein the petitioner's statement that he is not connected with the Muslim National Guards in the Ahmedabad City and has not taken any part in the activitie of that organization have been denied as also his statement that he is not indulging in any activities dangerous to the public peace, and further the allegation that the District Magistric has not applied his mind to the circumstances of the case an has passed only a mechanical order is also denied. The District Magistrate has further deposed that he “passed the order after carefully considering the District Superintendent of Police detention proposal and satisfying himself about the ground for detention mentioned in the proposal.” The detenu has now filed a fresh affidavit repeating that he was never connected with, or a member of, and has never taken part in any activities of the Muslim National Guards organization.

The order made by the learned District Magistrate under s. of the Act is admittedly ex facie a good order. In the course of the hearing of this case the learned Advocate General who appears for the Crown has raised the question whether when an order made under the Act is ex facie good and valid the Court can go at all behind it and examine any other circumstance, like the grounds supplied to the detenu under the procedure prescribed for further consideration of the case by the detaining authority or any other fact on which the detention order appears to be based and which is sought to be falsified by the detenu in order to show that the order is bad. It has been contended that as s. 2 empowers the detaining authority to act on his own belief or satisfaction as to the matters mentioned in that section the Court cannot go behind it and consider either the adequacy of the reasons or the information available to the District Magistrate or even the truth of any of the facts which go to establish the said condition of his mind. If it be the law that the examination of any such circumstances or matters is beyond the court's jurisdiction, a large number of decisions relating to the Act would inevitably turn out to be wrong; for though it is well-established that the Court cannot consider the adequacy of the reasons or of the information available to the detaining authority which ??? to his belief or satisfaction, even where the detention order has been ex facie good under s. 2 of the Act, this Court has allowed the detenu, in a large number of cases, to show that the order was not made bona fide but for ulterior purposes, or that it was made without sufficient application of the mind of the detaining authority to the facts or requirements of law, or that it was ??? on a ground outside the scope of the Act, or that it was ??? at least partially, on a proposition of fact which is shown to be false. In Emperor v. Sibnath Banerji it was contended on behalf of the Crown that the orders there dealt with being on their face regular and in conformity with the language of the rule, it was not open to the Court to investigate their validity any further. Their Lordships said that this contention of the Crown “went too far” and approved of the following statement by the learned Chief Justice of the Federal Court p. 8):

“It is quite different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where the recital ??? to state as a fact the carrying of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a Court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu ??? produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate.”

The expressions ‘any evidence as to its inaccuracy’ and ‘will place a difficult burden on the detenu to produce admissible evidence’ show that consideration by the Court of evidence in such a case was not ruled out. In two of the cases before them. Their Lordships held that the ex facie presumption was displaced by evidence showing that the authority making the orders had not considered the materials before him so as to satisfy himself, independently of the police recommendation that such orders should be issued. In certain other cases Their Lordships field that there was no evidence to rebut the presumption of the regularity of the orders; and with regard to one case they remarked that if the respondents had wished to probe the matter, they should not have let the matter rest where it stood “but proceeded either by counter affidavit or by cross-examination of Mr. Porter on his affidavit. As they did not take such a course the presumption remains undisturbed.” In view of this decision, it is really not necessary to go to the English cases Liversidge v. Sir John Anderson and Greene v. Secretary of State for Home Affairs on which reliance has been placed by the Crown. It would be pertinent, however, to point out that the ??? view to be found, for instance, in certain parts of the speech of Lord Wright cannot be said to be unqualified. At p. 26 Lord Wright said:

“……they go to show that the regulation is dealing with an execution discretion, in the exercise of which the discretion of the minister final. They seem to me to be inconsistent with the idea that recourse a court of law by way of appeal against or justification of the order was open. Indeed, if that had been contemplated I think that there must have been express words giving it. These provisions seem to me to a substitute for a trial in Court of the issue, no doubt inadequate in of sense, but as effective as the circumstances admit. I particularly ??? in support of my conclusion on the circumstances that the Secretary entitled to decline to follow the recommendation or advice of the committee. The responsibility is his alone.”

Again, in Greene's case the same noble Lord said (p. 305):

“In making the order Sir John Anderson exercised that plenary discretion, and the respondent, when he succeeded him as Home Secretary exercised the same plenary discretion when he adopted the order and continued the detention. The order relied on by the respondent is ex facie good and valid. Its authenticity is not disputed. It is not said that to appellant is not the person intended. The order itself justifies the contention.

However, in the same speech further on it was said (p. 306):

“It is good on its face unless and until it is falsified,” and “his statement would have been enough, at least in the first instance and until appeared to the Court that sufficient reason was shown to question and to exercise its power to enquire into the merits under s. 3 of the Act of 1816.”

That Act is the Habeas Corpus Act of 1816, ss. 3 and 4 of which are confined to cases where persons have been confined or ??? strained of their liberty otherwise than for some criminal supposed criminal matter and except persons imprisoned ??? debt or by process in any civil suit; and in such cases the Judge was given power “to examine into the truth of the facts forth” in the return although the return “be good and sufficient in law”. The writ to be issued under that Act required to person to whom it was addressed to have the body of the person named therein who was “taken and detained under your of as is said, together with the day and cause of his been taken and detained, to undergo and receive all and singular sub-matters matters and things as the Court shall then and there consider of concerning him in his behalf;” and the return was to contain a copy of all the causes of the prisoner's detainer endorsed on the writ or on a separate schedule annexed thereto, and to state facts relied on as constituting a valid and sufficient ground for detention of the person alleged to be illegally detained. “These facts must be set forth clearly and directly and with sufficient particularity.” (Halsbury's Laws of England Vol. IX, page 733.) It was not necessary in the first instance to support the facts set out in the return by affidavit; “for until impeached they are to be regarded as true.” (Leonard Watson's case.) In case except these excepted from the purview of ss. 3 and 4 of the Act the Judge was by statute empowered to enquire into the truth of the facts set forth in the return although the return might be good and sufficient in law (Halsbury's Laws of England Vol. IX, page 735). Thus it is clear that under the ordinary law the Court was entitled to go into the facts in an appropriate case in England. In Greene's case it was remarked by Lord Wright (p. 307): “In the present case there are no facts to inquire into;” and in Liversidge's case the following remarks made by Mackinnon L.J of the Court of Appeal were approved (p. 216):

“Put in another way, if the plaintiff admits, or it is proved, that the plaintiff was detained by an order purporting or expressed to be issued under the regulation, and duly signed as such, the burden is on the plaintiff, if he is to claim damages for false imprisonment, to give evidence showing that the order was invalid. As the case proceeds at the hearing, as often happens, the onus of proof may be shifted. If the plaintiff adduces evidence which goes to show the invalidity of the order, that might happen. If, upon that happening, the defendants produced evidence which was embarassing to the plaintiff, by way of surprise or novelty, the Judge would no doubt protect him by way of adjournment. Conceivably, in a proper case, the Judge might at that stage make some order by way of particulars of the allegations of the defendants. These, however, are but hypothetical considerations as to possible developments at a later stage of the litigation. At this stage we are quite clear that the plaintiff is wrong in his proposition as to the burden of proof inherently resting upon himself and upon the defendants respectively.”

The ‘stage’ under consideration was that (besides claiming a declaration that his detention was unlawful) the detenu was seeking particulars: (a) of the grounds on which the respondent had reasonable cause to believe him to be a person of hostile associations, and (b) of the grounds on which the respondent had reasonable cause to believe that by reason of such hostile associations it was necessary to exercise control over him. Viscount Maugham remarked:

“Assuming the order to be proved or admitted, it must be taken prime facie, that is, until the contrary is proved, to have been properly made and that the requisite as to the belief of the Secretary of State was complied with;”

and at page 295 the following observations of Goddard L.J were approved.:

“I am of opinion that where on the return an order or warrant which is valid on its face is produced it is for the prisoner to prove the facts necessary to controvert it, and in the present case this has not been done.”

It is thus amply clear that it was open to the detenu to prove facts which might successfully controvert the order of detention although it might be ex facie a good and valid order.

There are, besides, certain matters in which Regulation 18B of the Defence General Regulations, 1939, differed essentially from the present Act. In the first place, the said regulations were enacted during the last War, and the present Act has been enacted after the completion of that War. With reference to the British Regulations Lord Macmillan observed at page 251 in Liversidge's case:

“In a time of emergency when the life of the whole nation is at stake it may well be that a regulation for the defence of the realm may quite properly have a meaning which because of its drastic invasion of the liberty of the subject the courts would be slow to attribute to a peace time measure.”

Again, at page 257 His Lordship said:

“At a time when it is the undoubted law of the land that a citizen may by conscription or requisition be compelled to give up his life and all that he possesses for his country's cause it may well be no matter for surprise that there should be confided to the Secretary of State a discretionary power of enforcing the relatively mild precaution of detention.”

With reference to the decision in Rex v. Halliday, a Habeas Corpus case arising during the first War on a regulation very similar in its general character to regulation 18B, Lord Wright at page 263 observed:

“It (the regulation) was directed to taking precautions during the war against the danger of espionage and sabotage which experience showed to be so serious.”

At p. 280 Lord Romer referred with approval to the following passages from the speech of Lord Atkinson in Rex v. Halliday (p. 271):

“However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war or escape from national plunder or enslavement.”

In Halsbury's Laws of England, Vol. VI at page 527, it is stated:

“Presumptions in favour of the liberty or property of the subject, which are usually of great effect in interpreting statutes in time of peace, become relatively weak in time of war when the safety of the realm is in danger.”

The next point of difference between the British Regulations and the Act under consideration is that the power of detaining a person was given under the former to the Secretary of State for Home affairs while in the present case it is generally exercised by a District Magistrate. Lord Macmillan in Liversidge's case pointed out:

“In the next place, it is relevant to consider to whom the emergency power of detention is confided. The statute has authorized it to be conferred on a Secretary of State, one of the high officers of State who, by reason of his position, is entitled to public confidence in his capacity and integrity, who is answerable to Parliament for his conduct in office and who has access to exclusive sources of information;”

His Lordship further pointed out that elaborate provision had been made for the safeguarding of the detained person's interest, namely, the constitution of advisory committee to which any person aggrieved by the detention order might make representations and the duty imposed on the chairman of such a committee to inform the objector of the grounds on which the detention order had been made and to furnish him with such particulars as were in the chairman's opinion sufficient to enable him to state his case. There was a further safeguard in the requirement that the Secretary of State must at least every month report to the Parliament the action taken by him under the regulation (including the number of persons detained under orders made thereunder) and the number of cases in which he had declined to follow the advice of the advisory committee. It will be observed that though under the British enactment the detenu was to be informed of the grounds of his detention and such particulars as were in the chairman's opinion sufficient to enable him to state his case, such grounds and particulars were to be furnished, not by the Secretary of State, the detaining authority, but by the chairman of the advisory committee dealing with his case. At page 240 Lord Atkinson no doubt observed that these grounds and particulars must be furnished to the chairman by the Secretary of State, for otherwise the chairman had no means of knowledge. It is, however, pertinent to observe that though in Greene's case wrong grounds and particulars had been furnished by the advisory committee, the Secretary of State was not held accountable for the said mistake, and the principal claim in Liversidge's case was that the detenu should be furnished with the grounds on which the Secretary of State had reasonable cause to believe him to be a person of hostile associations and of the grounds on which the Secretary of State thought that it was necessary to exercise control over him. Their Lordships, therefore, obviously did not regard the furnishing of grounds and particulars by the advisory committee as equivalent to their being furnished by the Secretary of State.

It has next to be observed that neither in Liversidge's case nor Greene's case was the good faith of the detaining authority challenged. It has, however, been challenged (in the present case as well as in most of the other cases under the Bombay Act with which we have had to deal. Lastly, at p. 224 Viscount Maugham relied on the well known presumption omnia esse rite acta. In a case recently decided by us (In re Pandurang Govind Phatak) I said (p. 448):

“In a proper case, e.g Liversidge v. Sir John Anderson, where to power of detention was exercised by a high official of the State ??? the Secretary of State, who was answerable to the British Parliament in carrying out his duties, and where he was concerned with an emergency war measure in enacting which the Legislative Act had recognise the temporary need for subordinating the liberty of the individual ??? the safety of the realm, the well-known presumption omnia esse rite acta would apply, and the order would be taken prima facie to have be properly made, the requisite conditions having been complied with. He when under a statute enacted in more peaceful and normal times executive officer of the status of a District Magistrate has been give the authority to interfere with the liberty of a subject, and it has come manifest to this Court in numerous instances that such an office is often prone to be careless, arbitrary and mechanical and even to mala fide or with an ulterior object, in making use of the power of detention conferred on him, we should not we think, be justified in rely on the said principle.

In such circumstances it becomes our plain duty to scrutinise the order made and the grounds given therefor with the utmost care and anxiety and to make very legitimate inference in favour of the subject.”

Those remarks would apply to the present case also.

We have no doubt that in suitable cases the Court would be competent to go behind the order of detention even if it was ex facie good and enquire into the truth of the information on which the detaining authority has acted. For instance, in a recent case the grounds of detention given to the detenu were in effect that the Rastriya Swayamsevak Sangh, as a body, was inspired by a cult of violence and that the detenu, as a office bearer or active worker of the said Sangh, had furthered the objects of the said body. It was found, by reference to a communique issued by the Government of India, that the said body was not regarded as an organisation which, as a whole, was inspired by a cult of violence and that the source of the District Magistrate's information that the said Sangh was a body so inspired was the said communique. It was, therefore, further held that the grounds of detention, which were mainly based on a misreading of the Government of India's communique, were falsified, and accordingly the detenues concerned were directed to be released. To take another example, if the ground of detention is that the detenu made a speech at a certain place on a certain date which was objectionable and it was proved that on that date he was actually in jail and thus incapable of making the said speech, the Court would undoubtedly interfere with the detention. Ordinarily, where the Court is satisfied that the facts and materials before the District Magistrate were considered by him, and that they were such as could lead to his satisfaction in the sense required by s. 2 of the Act, the Court would not go behind the order; but the Court would in such cases assume that the authority had made every reasonable endeavour consistently with his responsibilities to ascertain the facts correctly. Where a fact relied on is found to be false, and the said authority, by applying his mind to materials before him, could have found out the falsity of the said fact such falsity would vitiate the order as showing an insufficient application of mind on his part to the facts before him. Where, however, the falsity is such as could not thus ordinarily be found out in the process of applying his mind to the facts, the question is somewhat more difficult. Detenues or petitioners who make applications on their behalf often challenge the truth of one or more of the facts stated in the detention order or in the statement of the grounds of detention by means of affidavits, either of themselves or of others. The statement of grounds is no doubt furnished with the primary object of enabling the detenu to make a representation to the authority which made detention order, which may thus be regarded as a preliminary order which could, after consideration of such representation as the detenu may make, in a final order be confirmed, modified or annulled. But the statement of grounds undoubtedly furnishes materials which the detenu can use for the purposes of his petition to courts. In furnishing them the authority often lays bare process of his thought which led to his satisfaction, though s. 3 allows him to withold such facts as he considers it against public interest to disclose. Except for such facts he is bound to disclose “the grounds on which the order has been made” as well as “such other particulars as are in his opinion sufficient to enable him (the detenu) to make a representation” against the order. The use of the words “other particulars” suggests that no sharp distinction is intended between grounds and particulars, though grounds would no doubt be more general in character than particulars. We are unable to agree with the learned Advocate General that the grounds can be only those that are to be found in s. 2, and that every other reason for detention furnished to the detenu should be included in the expression “other particulars”. But such grounds and particulars (subject to the reservation mentioned above) are, it will be seen, the detaining authority's grounds and particulars and not such grounds and particulars as were furnished by an advisory committee under the British Regulation 18B. It is, therefore, legitimate for the detenu to rely on the statements of grounds and particulars furnished to him in order to show that fact alleged therein is false. For that purpose he is allowed to rely on his own affidavit and the affidavit of persons acquainted with such facts. In this connection the following observation of the Privy Council in Emperor v. Sibnath Banerji appears to be relevant:—

“The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate.”

This is so because the Court will not ordinarily look behind the order, when it is ex facie a good order, in order to see whether the authority was satisfied in the terms of s. 2 of the Act, and it is doubly so where any statement of fact in the grounds is supported by the District Magistrate's affidavit. Affidavits furnished in such cases are often by the detenu himself or by persons interested in him, and in any case such statements are not tested in the manner of regular evidence given at trials. It would, in my opinion, ordinarily not be right for the Court in such a case to set down a question of fact as a question to be decided on any evidence except that furnished by the affidavits. If the Court is satisfied that the order has been made bona fide, there would ordinarily be every reason to accept a statement of fact mentioned in the grounds when it is reinforced by the detaining authority's affidavit. But there may be cases in which though, the authority was bona fide satisfied in terms of sec. 2, an essential or significant fact may be successfully falsified by the petitioner, for instance, if it is stated that the detenu, being a member of a society which indulged in violent activities as a policy, was carrying out such policy of the society and if it is found (e.g on the basis of the detenue's affidavit, there being no denial) that the detenu was not at all a member of the said society, we would be inclined to hold that the satisfaction was based on a proposition of fact not found to be tenable, and we would be entitled to interfere.

It may be objected that such a view would result in bringing in interference of this Court through the back door, so to speak although it is recognized that the order of detention is an executive order made by an authority responsible for the public safety and public order and that such order is justified by the authority's satisfaction in terms of s. 2. The answer to such criticism is that where the basis of the order is as a matter of fact found to be erroneous, at least in some essential particulars, it is not possible to hold that the deprivation of the subject's liberty is justified. I have already said that the Court would not lightly come to such a decision where the order is ex facie good and where the person detained has not shown mala fides in the detaining authority. In such a case, if the statement of grounds under s. 3 (reinforced, if necessary, by the said authority's affidavit) shows that the authority had before him materials on which an order of detention could be made and if he was not likely to have been influenced by improper or wrong grounds, it would be most difficult for the detenu to obtain any relief in a petition like the present.

I shall now come to the facts of the present case. The first argument relied on by Mr. Somjee is that the statement that the detenu is an active worker of the Muslim National Guards Organization in Ahmedabad City to be found in the statement of grounds as falsified by the affidavit of the detenu and that of one Khatib, an Advocate, wherein it is stated that the detenu was neither connected with such an organisation, nor a member thereof, nor has he ever taken part in that organisation. It is contended that as the basis of the grounds of detention is falsified, the order must be deemed to be bad. It has however, to be deemed that the District Magistrate in his affidavits dated March 18, 1948, has not denied that the detenu was not a member of the said organisation, though he has denied that the petitioner was not connected with that organisation or has not taken part in its activities; so that it seems that, according to the District Magistrate, though the detenu may never have been a member of the Muslim National Guards organisation, he was “an active worker” of the said body. We are not inclined to hold that the two affidavits relied on sufficiently show that the allegation that the detenu was an active member of the said organisation is false. In any case, what is regarded as important in the statement of grounds is the acts attributed to the detenu, namely, the provoking and propagating communal hatred and violence, the exciting of Muslims against Hindus generally, his activities being aimed at keeping the communal discord and disharmony alive and his preaching doctrines subversive to law and order in Ahmedabad City; and it is as a sort of preamble of this statement of acts attributed to the detenu that it is stated that, being an active worker of the Muslim National Guards organisation and in furtherance of the objects of that organization, he has been doing the acts mentioned. Those acts are clearly not such as cannot justify an order of detention made under s. 2 of the Act.

It has been next contended that as the detenu was away from January 8, 1948, to February 22, 1948, that is, a period of about 1½ months, any objectionable activities that he could indulge in would not be activities which would come within the scope of his “acting” under s. 2; they would at best be activities which took place at a time which was outside the scope of the word “is acting”. It has been held in several cases on this point that the expression ‘is acting’ refers to a reasonable period which could be regarded as present and not past, so that acts done in the approximate and immediate past might legitimately form the basis of an order of detention. An act may take some time for being reported to the police, and thereafter further time would be required for investigation by the police, for their making report to the District Magistrate and for the latter officer's considering the report before making an order. In view of such requirements, we do not think that a period, say of two months, prior to the date of the order can be considered as outside such period as may reasonably be regarded within the scope of the expression ‘is acting’. There is no reason to think that the District Magistrate has attributed to the detenu acts within the period of his absence from Ahmedabad or that he was unaware of the fact that the detenu was away from Ahmedabad from January 8, 1948. This view disposes of the further contention urged by Mr. Somjee that as on February 8, 1948 the Muslim National Guards organization was declared an unlawful body no active work on behalf of, and no connection with, the said body was possible after that date.

It has been contended that the grounds are vague and not precise. The answer to this contention is to be found in the kind of ground which was found to be valid in In re Rajdhar Kalu Patil. The grounds stated are under several heads and seem to us to be reasonably clear from vagueness and obscurity.

Mr. Somjee has further contended that the order of detention was made at a time when the detenu was out of Ahmedabad, that is, when he was outside the jurisdiction of the District Magistrate of Ahmedabad. This fact alone, according to him, makes the order null and void. We are unable to agree, because the order is based on acts which, prima facie, are alleged to have been done by the detenu while he was at Ahmedabad. The order, therefore, was rightly passed and would operate when the detenu again appeared at Ahmedabad after his absence.

It is next contended that it was wrong for the District Magistrate to say on February 25, 1948, in his statement of grounds that is, on a date subsequent to the declaration made by Government that the Muslim National Guards organization was an illegal body, “You being an active worker of the Muslim National Guards organization in Ahmedabad City and in furtherance of the objects of this organization”, etc., because the said organization was declared illegal on the February 8, and it was not possible for the detenu to remain an active worker of the said body after that date. In this connection reliance was placed on Emperor v. Shripad and Emperor v. Dharmanand Kosambi. We do not think that it was the intention of the learned District Magistrate to mean that the detenu had been an active worker of the Muslim National Guards after February 8, particularly as that is a date on which the, detenu was away at Karachi from where he did not return till February 8, particularly as that is a date on which the ties prior to the February 8, 1948, that is, before he went to Karachi, were being referred to.

We are, therefore, satisfied that no sufficient grounds have been made out suggesting that the order of detention was not properly made or was not justified. The rule will, accordingly, be discharged.

Rule discharged.

M.W.P