1. Sahadat Ali Mandal is in detention and has applied for a writ in the nature of Habeas Corpus under Art. 226, Constitution of India.

2. His house was searched on 14-7-1952 and some documents were recovered. He was arrested and was produced before the Sub-divisional Magistrate, Goalpara on 15th July. He directed his remand to police custody till 26-7-1952. A case under S. 8B, Assam Maintenance of Public Order (Amendment) Act, 1951, was registered against him.

3. The Sub-divisional Magistrate rejected two petitions of bail put in on behalf of the petitioner on 15th and 16th July. On 21st July the petitioner applied for bail to the Sessions Judge, Lower Assam Districts, under S. 498. The application was struck off as infructuous on 6-9-1952 as the petitioner had been released on 1-9-1952. He was released on the basis of the final report by the police under S. 173, Criminal P.C A certified copy of this report has been annexed to the petition. In this report the facts leading to the search of the house of the petitioner and the registration of the case against him are stated. By this report it was prayed that the accused person be discharged. The reason stated was that though investigation had not been completed, the Government had decided not to proceed with the case. On his release on 1st September the petitioner had hardly gone some paces from the jail where he was re-arrested. He was informed that he was being arrested under the Preventive Detention Act. The order of detention dated 29-8-1952 was served on him in Nowgong Jail where he was taken after his arrest. This order was passed by the Governor of Assam in the exercise of powers conferred on him by sub-s. (1) of S. 3 read with sub-cl. (ii) of cl. (a) of the said Section and by S. 4, Preventive Detention Act, 1950 (Act 4 Of 1950).

4. It is not necessary to reproduce all the grounds of detention. The grounds we are concerned with are grounds nos. (4) to (6). These are reproduced below:

“(4) That being inspired by Muslim ideology, you, with a view to undermine the security of the State, organised a spy-ring in Goalpara District from the later part of 1951 with Nafatulla of Meamari, District Goalpara, Dr. Mazum Ali of Lalmanirhat and other, in order to collect information about border security etc., in the Goalpara district and pass on such information across the border to Pakistan through a well organised courier system and also by post with a view to help Pakistan authorities against India.

(5) That the aforesaid spy-ring was detected by police on 18-6-1952 on which date a letter dated 16-6-1952 written by you to Dr. Mazum Ali of Lalmanirhat (East Pakistan) containing secret information regarding the strenuth and nature of border security measures in the Goalpara District was obtained through secret search, which cannot be disclosed to you in public interest

(6) That as a result of strict watch kept on your movements another letter written by you to the address of the Kasimuddin of Rangpur (East pakistan) was recovered on 12-7-1952 from the possession of your courier Nafatullah when he was about to post it at Lakhipur P.C The said courier made a confession before a Magistrate that you had sent him to post that letter as you used to do on other occasions. The letter inter alia revealed that you had a map of the border prepared and sent it to Pakistan and that you have been acting as a paid spy receiving money from time to time for supplying secret information against the interest of India.

5. In your letter of 12-7-52 you made a reference to your letter dated 16-6-52 and expressed surprise and anxiety at the non-receipt by the addressee Dr. Mazum Ali as it was obtained through a secret source and detained by the police.”

6. In the counter-affidavit of the Chief Secretary to the Government of Assam it is admitted that the petitioner was proceeded against under the Assam Maintenance of Public Order (Amendment) Act. But it is further stated that his prosecution had to be dropped as the evidence was of a nature that its disclosure in Court was not in the interest of the State. The petitioner was, therefore, allowed to be released and action was taken under the Preventive Detention Act.

7. On 4-11-1952 another petition containing additional grounds challenging the validity of the detention order was put in.

8. Mr. Ahmed, the learned counsel for the petitioner, has first argued that as the detention order was passed on a date (29th August) when the petitioner was admittedly in custody the order was initially invalid. No detention order was necessary then as the petitioner was already in custody. The satisfaction of the detaining authority could not be real and detention order would not therefore be legal. In support of this contention he has relied on, Lobaram Delia v. The State, A.I.R 1951 Assam 43; Haridas v. The State, A.I.R 1952 Assam 175, and an unreported decision in Abdul Aziz v. The State of Assam, criminal Misc. case no. 24 of 52. He has also referred to Kamala Kant Azad v. Emperor, A.I.R 1944 Pat. 354, which was relied on in Lobaram Delta v. The State, A.I.R 1951 Assam 43.

9. In Laboram Delia v. The State, A.I.R 1951 Assam 43, the petitioners who challenged the validity of the detention orders were in custody in connection with cases arising out of an alleged attack on the police. They were in custody as under-trial prisoners at the time the orders of detention were passed. It was held in relation to the facts of that case that when a person was already in detention, it was obvious that another order of detention was not necessary, as he would not be in a position to act in a manner prejudicial to the maintenance of public order. The detaining authority in such circumstances could not really feel satisfied that an order of detention was necessary for any of the purposes mentioned in S. 3 of the Act. It was further observed that the orders of detention, though they spoke of the satisfaction of the Government, had no relation to the realities of the situation, for on the date on which the detention orders were passed, there was no necessity of any detention order. It is on the reasoning given in this judgment that the learned counsel for the petitioner relies. The decision, however, was based on the facts of the two cases disposed of by it and is necessarily limited in its application to a similar set of facts. No proposition of law much less a general proposition of law was laid down. The only question under consideration was whether in the circumstances of the cases dealt with, it could be said that any one in the position of the detaining authority could say that he was satisfied that detention orders were necessary.

10. In Haridas v. State, A.I.R 1952 Assam 175, the facts were similar. The petitioner was in custody when the detention order was passed. The learned Chief Justice held relying on Lobaram Deka v. The State, A.I.R 1951 Assam 43, that by reason of the confinement of the petitioner he was not in a position to act in a manner prejudicial to the maintenance of public order and it was futile to say that the detaining authority was satisfied that it was necessary to pass an order of detention. The learned Chief Justice, however, pointed out that ‘if the detaining authority by reason of the past or contemplated activities of the petitioner in the State is satisfied that the detention is necessary, then it must give expression to that satisfaction, not when the petitioner is in jail custody but after his release. If and when he is released from jail custody and the Government is still satisfied that it is necessary to make an order of detention so as to prevent the petitioner from acting in a manner prejudicial to the purposes sanctioned in S. 3 of the Act, it then, if it thinks proper, can pass an order of detention.’

11. In Krishna Kanta v. State, criminal Misc. case no. 25 of 1952 (Assam) also the order of detention was passed against the petitioner on 10th February when he was in jail as an under-trial prisoner for an offence under the Official Secrets Act. It was admitted that the petitioner had been arrested on 17-3-1951 in connection with the offence under the Official Secrets Act and that he had been in custody since then till 18th February. The order of detention was held to be lacking in the reality of the satisfaction. In the last two cases the circumstance that the Government had decided for reasons of State to drop the prosecution and passed the order of detention in anticipation of the release either did not exist or was presumably not brought to the notice of the learned Chief Justice. His observations in Haridas v. State, A.I.R 1952 Assam 175, however, distincty show that he envisaged a situation in which a detaining authority may feel satisfied that a detention order is necessary in the case of a person he has been or is about to be released from custody.

12. The facts of the present case are very different. The distinguishing feature of this case is the admitted circumstance that the Government decided in public interest to abandon the prosecution. The decision was conveyed to the police. It was in pursuance of this decision that the police reported under S. 173, Criminal P.C for the release of the petitioner before completing the investigation. The Government thus were responsible for the release and were fully aware of it. In anticipation of this release the order of detention was passed. It was served admittedly after the release of the petitioner. In Labaram Delia v. The State, A.I.R 1951 Assam 43, the prosecution and detention in consequence were continuing and an order under Preventive Detention Act seemed unnecessary, but this cannot be said in the present case.

13. We have now to see whether it is wrong in law to pass an order on a date when a person is in detention although he is about to be released. This question was not raised or decided in any of the three cases relied on by the learned counsel for the petitioner. It has been contended on behalf of the State of Assam that it cannot be laid down as a matter of law that an order of detention under the Preventive Detention Act can in no circumstances be passed when a person is already in custody. The learned Advocate-General is supported in his view by the observations of their Lordships of the Federal Court in Basanta Chandra v. Emperor, A.I.R 1945 F.C 18. The observations are to the following effect:

“But where the earlier order of detention is held defective merely on formal grounds there is nothing to preclude a proper order of detention being based on the pre-existing grounds themselves, especially in cases in which the sufficiency of the grounds is not examinable by the Courts. There is equally no force in the contention that no order of detention can be passed against a person who is already under detention. The decision of the Patna High Court in Kamala Kant v. Emporor, 23 Pat. 252, cannot be understood as laying down any such proposition as a general proposition of law.”

14. In this passage their Lordships of the Federal Court gave one concrete case in which an order of detention may become necessary even though the petitioner is already in detention. Other instances of similar cases can be easily conceived; one is supplied by the present case.

15. The Preventive Detention Act requires the detaining authority to be satisfied that an order of detention is necessary for the purposes specified in the Act. Whenever therefore a detention order is passed for the detention of a person who is already in detention, the question that would arise would be whether the detaining authority could feel satisfied that the order was necessary for the purposes of the Act. This essentially is a question the determination of which must depend on the circumstances of each case.

16. In Labaram Deka v. The State, A.I.R 1951 Assam 43, the decision in the Pajma case was relied on but not on this point. Reference was made to it in support of the observation that where a man is arrested and brought before the Court on some definite and specific charge, it seems very undesirable and quite wrong for an order of detention to be made against him before he has been tried on the charge and his guilt or innocence is finally determined. This question does not arise in the case in view of the fact that before passing the order of detention the State of Assam had decided to drop the prosecution.

17. There is nothing in the language of the provisions contained in the Preventive Detention Act which would debar a detaining authority from passing an order against the person who is in detention. The necessity of the order may be questioned and it may be argued in a given case that the order is not made bona fide. An order may be challenged as having been made mala fide without imputing any improper motive to the detaining authority. An order can be said to have been made mala fide when there is malice in law though there may be no malice in fact and the malice in law may be deemed to exist when an order is made contrary to the objects and purposes of the Preventive Detention Act or when the detaining authority permits itself to be influence by considerations which are outside the scope of the Act. In all cases where this question arises, it will have to be decided with reference to the circumstances of each case. As held in Naranjan Singh v. State of Punjab, A.I.R 1952 S.C 106 the question of bad faith if raised would certainly have to be decided with reference to the circumstances o; each case. But it cannot be said that the order is invalid in law merely because it was made not on a day that the petitioner was in de entiou. The language of the relevant provisions in the Preventive Detention Act does not suggest this contention. It also derives no support from authority.

18. This takes us on to the question of mala fides or bad faith which has been pressed with considerable force. The circumstances which bear on this question are admitted. The Government decided to drop the prosecution and then passed the detention order which was served after release. The learned counsel for the petitioner has urged that the prosecution was dropped because there was no evidence to support the charge and the order of detention in these circumstances must be regarded as having been made mala fide. He urges that there was really no material which could satisfy the detaining authority as to the necessity for making a detention order. For if such material existed, it should have been availed of to support the charge made in the case that was registered against the petitioner.

19. The affidavit which has been put in on behalf of the State of Assam embodies the statement that the reason which induced the Government to drop the prosecution was that it would be against the interest of the State to disclose evidence which would have had to be produced to substantiate the charge. It was thought that it would not be in the public interest to disclose available evidence and considering the nature of the charge, it is not easy to doubt that the Government was faced with a real difficulty. The petitioner himself has produced a copy of the report made under S. 173, Criminal P.C The report states that the Government decided to abandon the prosecution even though the investigation in the matter had not been concluded. To urge in these circumstances that the Government had no evidence to support the charge is not facing facts. The investigation had not been concluded but available evidence was such that its disclosure in open Court was considered not expedient. I find no justification in the circumstances of this case to hold that the Government even though convinced that there was no proof that he was indulging in any activity prejudicial to the security of State decided to detain him. The affidavit of the Chief Secretary emphasizes as stated in the grounds of detention that the Government had information that the petitioner was indulging in activity prejudicial to the security of the State.

20. It was held in Baboo Ram v. State, A.I.R 1951 ALL. 838 that the mere fact that the arrest was originally ordered for a specific offence but it was not followed by prosecution for that offence cannot affect the power of that detaining authority to take preventive action after the interim or final release of the person detained. It cannot be held that where an arrest unaccompanied by prosecution is followed by an order of detention, the Court must hold that the detention was mala fide. The burden of proving that the order was mala fide lies upon the detenu. I entirely agree with this proposition.

21. In Dasappa v. District Magistrate, South Kanara, A.I.R 1949 Mad. 712 it was held that simply because a man has been arrested under S. 151, Criminal P.C it cannot he said that the powers under the Madras Act 1 of 1947 (say Madras Maintenance of Public Order Act) cannot be exercised and the persons who are arrested cannot be detained thereunder. In such a case in the absence of any other circumstances the detention under the Act is not by itself proof of mala fides.

22. In Ramanlal Rathi v. Commr. of Police, Calcutta, A.I.R 1952 Cal. 26 even the failure of prosecution under the ordinary criminal law was held by itself not sufficient to make the subsequent application of the Preventive Detention Act mala fide. All that we have in this case is that a case was registered against the petitioner but it bad to be dropped for reasons of State. This circumstance by itself does not at all prove bad faith or mala fides on the part of the Government. The order was served on the petitioner after his release. His detention under the order therefore cannot be regarded as having been made mala fide.

23. It has also been contended on behalf of the petitioner that the statement of facts contained in the grounds of detention is false, that the local police had a grudge against the petitioner as he had made serious complaints against them to superior authorities and that it was out of sheer vindictiveness and malice that they sent false reports against him which misled the detaining authority. It is denied that the petitioner ever wrote any letters to which reference has been made in the grounds of detention.

24. It is settled law that the Court cannot go into the question of truth or falsity of the statement of facts contained in the grounds of detention. If the facts stated in the grounds of detention are disputed, the remedy that the law allows to the petitioner is by a representation to the Government. As regards actual malice on the part of the local police, there are allegations on one side and denial on the other. As observed by the learned Chief Justice of the Supreme Court in Ram Singh v. State of Delhi, A.I.R 1951 S.C 270 on page 274 the burden of proving allegations about mala fide conduct is on the petitioner. In this case he cannot be deemed to have discharged it. The learned counsel has also referred to the alleged hurried nature of the proceeding before the Advisory Board and utilised it as a circumstance pointing to the mala fides of the detaining authority. He pointed out that the report of the Advisory Board was made on 16th September. The Government had one month's time within which to place the case before the Advisory Board. The case must have been forwarded some time before 16th September. The advisory Board also had a period of another ten weeks for making a report. The report was made on 16th September. The Government and the Board acted in haste and thus the petitioner was prevented from having his representation considered by the Advisory Board. It is not contended that there has been any violation of any provision of law contained in the Detention Act in this regard; nor is it contended that the detention has become illegal or invalid by reason of the procedure adopted. The learned advocate relies on what he calls undue haste on the part of the Government in obtaining the decision of the Advisory Board for the purposes of confirming the order of detention in proof of the alleged bad faith on the part of the Government.

25. It is worthy of note that in the petition under Art. 226, Constitution of India and also in the petition put in on 4th November containing additional grounds the petitioner has not made any grievance of the fact that he intended to represent to the Government and that he has been deprived of this right by any action on the part of the Government. The grounds of detention were sup-plied to him along with the order. It was up to him to represent without delay if he wanted to. The Government can place the case before the Advisory Board at any time within the period allowed to them under S. 9, Preventive Detention Act. If petitioner desired consideration of his representation by the Board, he should have represented without delay. The petitioner still has the right to make a representation to the Government. I do not find anything in the procedure adopted by the Government or the Advisory Board to justify a finding that detention is invalid owing to mala fides on the part of the detaining authority, particularly in view of the fact that it is not contended that any provisions contained in the Preventive Detention Act has been violated either by the Government or by the Advisory Board. All that the Government had to do was to afford the petitioner the earliest opportunity of making a representation. This was done as the grounds—of detention were supplied to the petitioner when the order of detention was served on him. Allegations of mala fide are extremely easy to make. They are not as easy to substantiate. In my opinion no case has been made out on this point. The petition is dismissed for reasons given above.

26. Petition dismissed.