Jagannadhadas, J.:— These two applications raise almost identical questions for consideration & are accordingly dealt with by this common judgment. The petitioner in Cri. Misc. case No. 36/51 is one Ratanlal Gupta & in cri. Misc. No. 37/51 is one Aska Ram Somani.

2. These two petitioners were arrested at about 3 A.M early morning of 16-3-61 at Berhampur. This arrest was consequent upon investigation which followed a report received by the Sub-Inspector of Govt. Railway Police from the Sub Inspector, Town Police. The petitioners were produced on the 16th itself before the Sub Divisional Magistrate under police custody with a forwarding report that they were found smuggling 1467 yards of cloth from Berhampur at the railway station & are believed to have committed an offence under S. 7 of Act XXIV [24] of 1946. They were remanded to custody till 28-3-51. Meanwhile on 17-3-51 the petitioners moved for bail. This was opposed on the ground that the offence was presumed to relate the blackmarketing, that the sections were non-bailable, that there was a move for their detention under the Preventive Detention Act, & that the petitioners belong to Calcutta & may abscond or tamper with the evidence & their being released on bail would be very detrimental to investigation & that accordingly the bail was strongly objected to at that stage. The learned Sub-divisional Magistrate, however, made an order for release of the petitioners on bail of Rs. 20,000 each with two local sureties for similar sums & also imposed a condition that the petitioners should not move out of Berhampur town police station limits. Against this order, the petitioners moved the learned Ses., J. who passed an order on the 19th modifying the order passed by the S.D.O He directed that the amount of bail should not move out of Berhampur town police station limits should be cancelled. Sureties were accordingly furnished on the 20th & the learned Sub-Divisional Magistrate being satisfied about the same, issued on the same day an order for the release of the petitioners. It is the case of the petitioners that when this order of release by the Sub-Divisional Magistrate dated 20th was taken to the Jailor of the Berhampur District Jail, where the petitioners were lodged, the Jailor refused to release them stating that he received orders from the District Magistrate, Ganjam, for the detention of the petitioners under the Preventive Detention Act for the three months from 19-3-51 to 18-6-51. These petitioners came up to this Court at that stage with an application each dated 27-3-51 alleging that no copy of the detention orders was served on them, though their signatures were taken on a paper purporting to be detention orders & that no grounds of detention were served on them as re-quired by law & that they were not aware of having done any prejudicial act or having committed any offence. We admitted these applications on the 29th March & issued notice calling upon the Advocate. General to supply copies of the orders of detention and the grounds therefor. Meanwhile, the grounds of detention appear to have been served on the petitioners in the District Jail, Berhampur, on 27-3-51. Thereafter on 9-4-51 the petitioners filed fresh applications challenging the grounds on the following grounds amongst others:

(a) “The detention is mala fide and is in the nature of punitive detention rather than of preventive detention.

(b) The subject-matter of all the grounds of detention relate to one transaction which is the subject matter in case No. G.R 199/51 and consequently the detention of the petitioners on those vary grounds is patently mala fide and is an abuse of powers and illegal.

(c) The petitioners having been arrested in connection with G.E No. 199/51 and having been detained in custody and not being released even after he obtained orders of release from the sessions Court of Ganjam, and continuing the detention under the Preventive Detention Act after the Ses., J. ordered their release on bail is gross and flagrant abuse of the process of law.”

3. From the papers filed before us on behalf of the State, it would appear that the Circle Inspector of Berhampur, moved the District Magistrate of Ganjam, for the detention of these two persons for three months by a letter addressed to him dated 16-3-51 stating therein inter alia as follows:

“In addition to the specific case which has been started by the Sub-Inspector, G.R.P, Berhampur, which may not be successful, I recommend that these two persona may be detained for a period of three months under the Preventive Detention Act.”

4. In that letter he mentioned the circumstances which led to the arrest of these two persons and the evidence that has been so far gathered against them. The District Magistrate passed on 18th March, orders of detention for three months, in exercise of the powers conferred by sub-cl. (iii) of cl. (a) of sub-s. (1) of Section 3 of the Preventive Detention Act, 1950 (IV [4] of 1950) as amended by the Preventive Detention (Amendment) Act, 1951, read with s. 4 thereof. The grounds of detention dated 25-3-51 which were served on the petitioner Ratanlal Gupta on 27-3-51 are as follows:

“1. You were regularly coming to Berhampur with Aska Ram Somani and smuggling cloths to Calcutta for purpose of blackmarketing there.

2. 10 days prior to 15-3-51 you and Aska Ram Somani were seen at Berhampur by A. Kameswar Raoof Berhampur smuggling mill-made cloths in huge quantities from Berhampur to Calcutta.

3. On 4-3-51 you along with Aska Ram Somani purchased 900 yards of mill-made cloth from Berhampur and got them stitched by a tailor M. Chandra Rao of Bhimaraopeta of Berhampur as farments to avoid detention and smuggling them to Calcutta.

4. On 14-3-51 you along with Aska Ram Somani were noticed at Berhampur while you were purchasing mill-made cloth from different shops by A. Kameswar Rao of Berhampur and wireless A, S.I Srikar Satapathy of Berhampur and got them stitched as garments by G. Kali Das of Khassapa Street, Berhampur, to smuggle them to Calcutta without being detected by the police on the way.

5. While you and Aska Ram Somani were removing these cloths in three bundles from Berhampur Town to Berhampur Railway Station, it was been by G. Gangadhar and A. Kameswar Rao of Berhampur.

6. You and Aska Ram Somani got these cloths bundles booked by the railway parcel clerk K.P Rao of Berhampur Railway station at the railway station on 15-3-51 in the name of Gupta Brothers, Calcutta.

7. While these three bags were being loaded in the Madras Mail, they were detected and seized by the police. On verification it was found that about 1467 yards of mill-made cloths were in the three bundles.

8. As soon as these three bundles of cloth were seized by the police, you and Aska Earn Somani concealed your presence in Berhampur town with a view to avoiding arrest. Necessary searches were made and you along with Aska Ram Somani were arrested while both of you were concealing your presence on the verandah of Silla Rajagopalam of Berhampur whereas your and Aska Eam's bedding etc., were kept at the Berhampur Choultry near the railway station.

It is therefore necessary for the maintenance of supplies and services essential to the community to prevent you from doing these acts detaining you under Act IV [4] of 1950 as amended by the Preventive Detention (Amendment) Act, 1951.

You have a right of representation against this order to the State Govt. which you may exercise by presenting it in writing through the District Magistrate, Ganjam, within 15 days from the receipt of these grounds.”

5. The grounds against Aska Ram Somani are identical with the names of Ratanlal Gupta and Aska Ram Somani interchanged.

6. These applications came up before us for hearing after notioe on the 17th of April, and again on the 19th of April. After they were heard in part, we called on 19th for certain records from the S.D.M, Berhampur, where the criminal investigation was pending and also directed the Govt. Advocate to file counter-affidavits to the affidavits filed by the petitioners. The District Magistrate of Ganjam has thereupon filed affidavits that he was fully satisfied that the detention was necessary for the prevention of supplies and services essential to the community and the detention was made bona fide and stated that the State Govt. had referred the matter to the Advisory Board on 14-4-51. It was stated to U3 by the Govt. Advocate that the Advisory Board according to their present programme had fixed the 14th of May for consideration of the cases of these two petitioners. No charge-sheet however, appears to have been filed yet against the petitioners at any rate b/19-4-51 when the records were sent to this Court by the Magistrate. But a perusal of the case diary that has been sent gives an impression that if a charge-sheet is ultimately filed most, if not all, of the facts stated as grounds for detention will probably be the subject-matter for judicial investigation.

7. On these facts the main contention of the learned advocate on behalf of the petitioners is that an order of detention against a person on grounds which if true constitute an offence is an abuse of powers, if, at the time, the truth of the facts alleged is pending investigation by a criminal Court & is hence illegal. The following cases have been brought to our notice in support of the said contention: Kamlakant v. Emperor, A.I.R(31) 1944 Pat. 354, Vimlabai v. Emperor, A.I.R(32) 1945 Nag 8, Maledath v. Commr. of Police, A.I.R(37) 1950 Bom. 202, Mahomed Abdur Rahman v. Hyderabad State A.I.R(37) 1950 Hyd. 66; & Lobaram v. The State, 85 C.W.N 13 (Assam). Since these cases give room for the contention raised by the learned advocate, it is necessary to notice them in some detail. A.I.R(31) 1944 Pat. 354, is a case which arose under the Defence of India Rules. In that case, as appears from the statement of facts at p. 363 (2) & p. 364 (1), some of the petitioners were apparently taken into custody originally on certain specific charges & detention orders were also passed later on in respect of each one of them, presumably on those very facts, but eventually the prosecutions were dropped. In one of those cases, the petitioner was tried & convisted, but on appeal acquitted, & the detention order was made during the pendency of the criminal proceedings. The Court set aside the detention orders in all these cases & directed their release with the following observations to be found at 364 in the judgment of Shearer, J.:

“When a man is arrested & brought up before a Court on some definite & specific charge, it seems to me very undesirable & indeed quite wrong for an order of detention to be made against him before he has been tried on the charge & his guilt or innocence finally determined. If he is convicted & sentenced, the necessity for any order of detention ceases to exist, at least until he has served cut his sentence, by which time conditions may have entirely altered. If, on the other hand, he is acquitted, & an order of detention in sought against him, surely, the official, on whom the responsibility of making such an order rests, should obtain & study a copy of the judgment. I do not say that, in no case, where a man has been acquitted, should or can an order of detention be made. Prosecutions may break down, & acts of the person against whom an order is sought, other than the act or acts which led to his being prosecuted, may, quite properly have to be taken into consideration. Clearly however in most of such eases, the act which led to a man's prosecution, will also be the overt act, relied on or principally relied on to connect him with some subversive movement & justify the making of an order of detention, & if the official on whom the duty of making the order is cast, neglects to send for & study a copy of the judgment, it may very well be said that he has failed to act with due care & attention in the discharge of that duty.”

8. The learned Judge thereupon notices the practice & the law in England in times of emergency & continues as follows:

“In the last war, the constitutional lawyers of the twentieth century devised another expedient, more effectual, perhaps, in safeguarding the body politic against dangers greater than had ever before menaced it, & yet better calculated to interfere as little as possible with the personal freedom of the subject. The Legislature conferred on the executive a power to make regulations, both punitive & preventive, to create new offences & provide punishments for them & to prevent individuals committing certain offences by ordering their detention. The position, however, with regard so the particular matter, we are now considering, remained the same. A person, once arrested & charged with some crime, whether what he had done or was alleged to have done was, in time of peace, a crime at common law or by statute, or whether it had been a crime by regulation, is entitle to be brought before & tried by the Courts of the land. In this respect. His Majesty's subjects in India are in no worse a position than His Majesty's subjects in Great Britain. Neither there nor here is it open to the executive, once a man has been brought before a Court of law on some specific charge, to substitute for the warrant, under which he is detained in jail awaiting his trial, an order of detention under R. 26, & then to deprive him of his right to clear himself of the charge by entering a nolle prosequi or intimating to the Court that they do not propose to adduce evidence against him.”

& later on the learned Judge says:

“It was not open to the Governor to anticipate or prejudge the decision of the Courts. & in so far as he did so, a suspicion must necessarily arise that he was using the power, which had been conferred on him, not for the purpose of preventing some danger to the State but for the purpose of punishing some act or perhaps crime, which, in his opinion, had already been committed & that could not do.”

9. The other learned Judge in the case Verma, J., while he wrote a separate judgment, prefaced it by saying: “I agree with the observations of my learned brother & the conclusions arrived at by him.”

10. The next case that has been relied upon is the case in A.I.R(32) 1945 Nag. 8 That was also a case under the Defence of India Rules. In that case various other questions were raised with which we are not concerned. An advcoate of the High Court was arrested on the 22nd of August, & he was interrogated by the police from day to day while under custody in connection with an offence suspected to have been committed. On 26th August, the Provincial Govt. passed an order of detention against him for 15 days & they passed a further order of detention on 2nd September for another 15 days & thereupon the application to the Court was filed challenging those detention orders. The Court at p. 17 made the following observations:

“The provisions relating to detention are to be found in R. 26 & R. 129, Defence of India Rules. But they relate to detention & to nothing else. They confer wide powers, but even they have their limitation… If either the police or the Provincial Govt. desire an investigation into any offence, whether under the Penal Code or under the Defence of India Rules, then they are bound to conduct their inquiry in accordance with the provisions of the Code of Criminal Procedure. They cannot call in aid their powers of detention and in the guise of exercising those conduct a secret investigation into a crime. If they have information that these detenus have committed crimes or offences, they are not bound to investigate into them. They can rest content with detaining them under R. 26 or 129, provided the matter falls within the ambit of those rules. But if they want in instigation, they must proceed in accordance with the provisions of the Code of Criminal Procedure. If they do otherwise, it is a fraud upon the Act and their action is not taken in good faith. They cannot make the best of both worlds.”

11. The next case is A.I.R(37) 1950 Bom. 202 (F.B). The petitioner therein was arrested on 8-5-1949, for committing a breach of the order of the Commissioner of Police and for being a member of an unlawful assembly in defiance of the Commissioner's order. On 29-5-1949, an order was made by the Commissioner of Police under Section 2(1)(a) of the Bombay Public Security Measures Act, 1947, on the ground that the petitioner was likely to act in a manner prejudicial to public safety and the tranquillity of Greater Bombay. The charge-sheet in respect of the offence alleged to have been committed on the 8th May was filed on 1-11-1949. The material before the Court showed that the detention order was passed on account of the alleged commission of the offence for which he was to be prosecuted. The Court while directing the release of the detenu made the following observations at p. 203:

“We have, therefore this clear position before us, that the applicant was arrested for having committed an offence under the criminal law, that the investigation under the Code of Criminal Procedure was started by the police authorities, and then he was detained by the Superintendent of Police and that the detention was continued by the order made by the Commissioner of Police, with the result that the Police authorities thought it was no longer incumbent upon them to comply with the provisions of the Code of Criminal Procedure and give effect to the safeguards provided therein and that the detenu need not be put up before a Magistrate for any remand application. Now the principles of law which apply to the facts which I have just stated are really not difficult to enunciaile. An order of detention under the Security Act can only be justified in a Court of law provided it is made bona fide; an order of detention cannot be made for an ulterior motive or for a collateral purpose.

Now, on the facts of this case, can it be said that the detention order was made solely for the purpose of public security? And can it be said that the only thing which weighed with the detaining authority were those considerations which were legal and legitimate and within the ambit of the statute? In fact, the Police did carry on the investigation of the offence under the Code of Criminal Procedure, after the applicant was arrested under the criminal law; and in fact, the investigation was—if one might so call it—a secret investigation or an ex parte investigation without any reference to the criminal Court, as required by the Code of Criminal Procedure. And all this was being done while the applicant was detained under the Security Act. In our opinion, on these facts, the only inference that can be drawn—and it is an irresistible inference—is that the purpose of detaining the applicant, was a collateral purpose, and that was to deprive him of his rights and safeguards under the Code of Criminal Procedure and to carry on an investigation without the supervision of the Court”.

12. Later on it is stated as follows:

“The Advocate General has contended that the Police authorities acted very fairly in putting up a charge-sheet against the applicant and intending to have his case tried by the ordinary tribunals of the land although they had the power to detain the applicant indefinitely. In our opinion, this attitude of the detaining authority only gives to the applicant a rather illusory benefit, because it would be open to the detaining authority, even after the criminal Court had acquitted and discharged him, to continue to detain him under the provisions of the Security Act. In our opinion, the alternatives open to the police authorities are very clear. When an offence has been committed the police authorities may investigate it, in which case they must comply with the provisions of the law with regard to investigation; or they may feel that the detention of the accused is more essential in the interests of the State, & what is more important is what he is likely to do rather than what he has already done, in which case it would be open to them to detain him under the Security Act. But they cannot pursue both the rights at the same time, because, on the facts of this case, it is apparent that these two rights are inconsistent and cannot be exercised at the same time: they cannot detain the applicant under the Security Act and at the same time carry on the investigation without providing the applicant with the safeguards to which he is entitled under the law. The authorities have laid down the law as it exists today. Government may detain a person even though the grounds clearly disclose that he could have been prosecuted under the ordinary criminal law with regard to those very grounds. The detaining authority may as I pointed out earlier, detain a person although a criminal Court has acquitted him in respect of the very charge for which he is being detained under the Security Act. Therefore, in our opinion, when the detaining authority makes up his mind to detain a person who is alleged to have committed an offence, then the detaining authority has made his choice and it would not be permissible to him to investigate the offence while still keeping the person under detention and not complying with the provisions of the law with regard to investigation”.

13. In A.I.R(37) 1950 Hyd. 66, the petitioners were arrested on 16-1-1960 for contravention of rules of Hyderabad Defence Regulations and Section 50 of the Hyderabad Public Security Act. The charge-sheet against them was filed on 1-3-1950. In between these two dates, orders of detention under Section 3 of the Preventive Detention Act, were pissed against them. The Court held that detention under such circumstances amounts to punitive detention in the guise of preventive detention, and relied, for this view, on the cases above noticed, i.e, A.I.R(31) 1944 Pat. 354 : A.I.R(32) 1945 Nag. 8 and A.I.R(37) 1950 Bom. 202, and it was held on the authority of these cases that a choice must be made between the two. In the particular case, since criminal proceedings were started before the detention orders were made and charge-sheet had also been filed before the Court was moved, it was held that a choice had been made in favour of proceeding with the criminal prosecution and therefore that the detention was illegal. The dies-turn of the Patna High Court in A.I.R(31) 1944 Pat. 354 was followed by the Assam High Court in 55 C.W.N 13 at p. 16 namely, that when a man is arrested and brought up before a Court on some definite and specific charge, seems quite undesirable and quite wrong for an order of detention to be made against him before he is tried on that charge and his guilt or innocence is finally deter-mined, and that the order of detention in such circumstances may result in serious prejudice to the person detained. In that case the Chief Justice of the Court in agreeing with the order of the other learned Judge observed as follows:

“I am content to allow the two petitions on the sole ground that it is not desirable that the detention of a person under a Detention Act should run concurrently with his detention in pursuance of his being accused of a non bailable offence”.

14. The above citations show that there is an appreciable volume of judicial opinion in favour of the view that an order of preventive detention based on substantially the same facts which constitute an offence and in respect of which a criminal prosecution is pending, would amount to an abuse of the powers of preventive detention and that such a detention order would be illegal. However, a close scrutiny of the facts in A.I.R(37) 1950 Bom. 202 and in A.I.R(32) 1945 Nag. 8, shows that in those cases, there were facts which justified a finding that the ulterior purpose of the detention was to carry on investigation of the alleged offences therein secretly without the guarantee of the person in custody being brought to before the Magistrate during investigation. The cases in A.I.R(31) 1944 Pat. 354 : A.I.R(37) 1950 Hyd. 66 & 65 C.W.N 13 (Assam) are the only cases where detention orders were passed when criminal proceedings on the same facts were pending & the detention orders were set aside on that ground as amounting to abuse of powers. Some of the observations in A.I.R(32) 1945 Nag. 8 & A.I.R(37) 1950 Bom. 202 also support this view, though on the facts these cases are distinguishable. It may be noticed that the starting point for this line of cases, in so far as it has been brought to our notice, is the case in A.I.R(31) 1944 Pat. 354. But it is significant that the Federal Court noticed this Patna case in Basanta Chandra v. Emperor, A.I.R(32) 1945 F.C 18 at p. 21 in the following terms when it was relied on for showing that no order of detention can be passed against a person who is already under detention:

“The decision of the Patna High Court in 23 Pat. 252 : A.I.R(31) 1944 Pat. 354 cannot be understood as laying down any such proposition as a general proposition of law. The learned Judges seem to have drawn an inference of fact from the circumstances of the case that the order then in question was not one made in the bona fide exercise of the Governor's power's.”

15. These observations may throw some doubt on the Patna view as a proposition of law. None the less they also show that the Federal Court does not rule out of consideration the principles laid down in the above cases as legitimate material for judging whether a particular detention is bona fide.

16. No case has been brought to our notice of the English Courts or of the Federal Court or of the Supreme Court or of this Court in which the question of law has been raised in this direct form & decided. In the Nagpur case support for this broad proposition of law was sought to be derived from the language of Sections 14 & 15 of the Defence of India Act, which are as follows:

“Section 14. Save as otherwise expressly provided by or under this Act, the ordinary criminal & civil Courts shall continue to exercise jurisdiction.”

“Section 15. Any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life & the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety & interest & the defence of British India.”

17. It may be agreed that the principles so laid down are implicit in all preventive detentions whether they are expressly made part of the Statute or not, but I am unable to see how they support the broad proposition that a detaining authority has no power at all to make an order of detention in respect of a person who is under prosecution on the same facts. It has been suggested in the Hyderabad case above cited, that Article 22, Cl. (3) of the Constitution shows that Article does not contemplate the detention of a person who is already under arrest in respect of the alleged commission of an offence. It appears to me that this inference does not necessarily arise from the language used in the sub-section referred to. On the other hand, it would be arguable, that the power of detention of the public authorities is to be gathered from the express language of the Preventive Detention A at & any restrictions thereon must be found either in the provisions of the Act or by necessary implication therefrom. So long as the provisions of the Act do not conflict with the fundamental rights guaranteed by the Constitution other restrictions on the exercise of the power cannot be imported, except such as may arise by way of legitimate construction of the statutory language. The rights which an accused has under the Code of Criminal Procedure are not fundamental rights though it may be a matter for construction whether such important rights may be said to have been impliedly authorised to be over-ridden I would therefore hesitate to accept as correct the broad proposition sought to be laid down in those cases that the power of detention cannot be exercised as against a person who is being prosecuted on the same facts which constitute the grounds of the detention & that an order of detention in such cases without making a choice between the two courses is ipso facto & without more, an abuse of the power of detention. I would have felt it desirable to have this important question considered by larger Bench, if the facts in the present case called for a decision of this question. It will be seen that the Patna, Hyderabad & Assam cases where the relevant principle has been laid down in its broad terms & acted upon, are cases where the charge-sheets had been filed & the prosecution were pending & sub-judice before the Court was called upon to pronounce on the legality of the detention. In the present case as stated at the outset, the charge-sheets have not yet been filed & the Court cannot anticipate whether the prosecution will be pursued at all.

18. The only question therefore at this stage for consideration is not the general question of law raised but the more limited question whether at the present stage & on the available material, the imminently prospective prosecution has a reasonable bearing on the bona fides of the detention orders. I think it has, for reasons which I shall presently consider. But I may add that when & as charge-sheets are filed it may be a matter for consideration whether the concurrent pursuit of prosecution & detention is to be considered as an abuse of powers & whether or not one or other of them has to be quashed.

19. If a person has committed an offence & the same is under investigation, the detention of such a person for the facts involved in the alleged offence is very likely to constitute serious interference with the course of judicial enquiry into such offence. The order of detention made in such circumstances amounts to an intimation of the existence of at least a strong suspicion in the mind of the detaining authority about the truth of the facts alleged. But for the statutory power protecting the detaining Magistrate, the intimation of any such suspicion, if the criminal prosecution is actually pending or imminently prospective might amount to contempt of Court. Further, having regard to the present set up of the subordinate criminal Courts in most of such cases, the trying Magistrate, is either the authority having also the power of detention (as for instance the S.D.M in this case) or would be a direct executive subordinate of the authority, who orders the detention. The intimation of the suspicion by a higher authority is not unlikely to have a conscious or unconscious influence on the fate of the pending or prospective prosecution. As has been pointed out in some of these cases, such a detention might easily result in an investigation outside the magisterial control which the Or. P.C, envisages and would therefore encourage the abuse of the power of detention to secure the facility of secret investigation. It is an important characteristic of any criminal trial that the custody of an accused pending trial should be under the control of the Court both in order that a person should not be deprived of his liberty at the arbitrary discretion of the investigating authority and in order that the Court should have the responsibility of satisfying itself that the accused has the necessary facilities for conducting his defence properly. The detention of a person under such circumstances would not only have the effect of interfering with the course of justice but will also interfere with the discharge of the duties of Courts as regards the custody of the under-trial. It is no answer to this to say that the subordinate Magistrates can be trusted to be independent and that, the detaining authorities can be trusted to provide for all the necessary facilities for defence by the accused having regard to Article 222(1) of the Constitution. The question is one of the likely effect on the proper discharge of judicial functions by the Magistrate and of his responsibility towards an under, trial which is an integral part of the discharge of his judicial functions. Further, as has been pointed out in some of the cases, such a course is liable to grave abuse and may result in the judicial enquiry becoming unreal. There is no guarantee that if the Court comes to a finding, in favour of the accused on the merits, the detention will be terminated; while, on the other hand, if it ends ultimately in conviction, the detention order becomes superfluous from the date of the conviction. It has also to be appreciated that in such cases the right of representation against detention given under the Constitution to the person detained will be seriously handicapped. If he chooses to exercise it, he must necessarily plead in detail to the various facts set out in the grounds which are or may be the subject-matter of the pending or prospective criminal prosecution. It would therefore compel him to disclose his prospective defence in the criminal case, reversing thereby the fundamental position of all criminal trials that an accused is entitled not to disclose his defence until a prima facie case is made out against him and a charge is framed. I am conscious that the disclosure of the defence in making a representation against the grounds of detention in such cases is only to the detaining authority and not to the Court trying his case or to the prosecuting authorities. But here again, the situation has to be visualised with reference to the’ existing set up, viz., that the detaining authority and the subordinate Magistrate who tries the offence are part of the same executive machinery and that the detaining authority normally acts-on sources of information furnished by the same investigating agencies which are also responsible for, or connected with the prosecution. It is noteworthy that while the desaining authority is privileged from disclosing such material as it considers undesirable to disclose in public interests, there is no privilege attaching to the disclosure of the representation made to the detaining authority by the detenu and nothing to prevent the prosecuting agency obtaining access to it anticipating and hampering his defence. Under Section 10(3) of the Preventive Detention Act, it is only the proceedings of the Advisory Board that are confidential. While, therefore, I am not prepared to assent as at present advised, to any such general proposition, as is contended for by the petitioners' counsel as a matter of law, I am inclined to think that the detention order in such cases where the prosecution is pending or imminent, is a serious: step for the executive authorities to take. It must be made with full appreciation of the fact that the order in such cases has grave consequences on the judicial trial and must bear scrutiny of the Courts on the footing that such an order was called for notwithstanding such appreciation. A detention order passed without such appreciation may well be held to be lacking in bona fides on the facts of an individual case.

20. It is true that the satisfaction of the detaining authority under Section 3 of the Preventive Detention Act, which has been held to be “reasonable satisfaction” is not liable to be controlled by the Courts. The issue of reasonable satisfaction is not justiciable, but the case of bona fides of the exercise of the power or the abuse of the power when raised on proper material is justiciable. A case of want of bona fides may be made out, not merely by proof that the order of detention was in fact made for ulterior purposes, that is, for purposes outside the needs of prevention, but also when the order is made without taking into consideration I any important circumstances which rationally and legitimately arise for consideration, when making an order of detention in a particular case. The standard of bona fides under the penal law is defined in S. 22, Penal Code as being “due care and attention.” It cannot be anything less where the exercise of drastic statutory power interfering with the liberty of the citizen is concerned. That this is the standard required in the case of all such statutory powers is indicated by the judgment of Turner, L.J in Galloway v. Corporation of London, (1864) 46 E.R 356 at p. 363 where his Lordship lays down that:

“All such powers given by an Act of Parliament are at all times to be exercised bona fide and with judgment and discretion.”

21. This dictum has been referred to with approval by Lord Macnaghten in the case in Westminster Corporation v. L. & N.W Rly. Co. (1905) A.C 426. In a case in Stuart v. Anderson and Morrison, (1941) 2 All E.R 665 at p. 671 which is a case relating to detention under the Defence Regulations in England, Tucker, J. in considering whether the order of detention has been illegally made and whether the powers conferred on the authority had been exercised honestly & bona fide laid down the test as follows;

“If he (the detenu) can satisfy me that this order has been made by the Home Secretary without the Home Secretary ever having applied his mind to one of the essential matters then, I think, he will have established his case.”

22. Similarly in The State Of Bombay v. Atma Ram Sridhar Vaidya, 1951 S.C 1208 at p. 222 his Lordship Patanjali Sastri, J. refers to the challenge to the legality of a detention as permissible on allegation of mala fide or irrational conduct. It appears to me therefore that while the detention order may not be liable to be declared as ipso facto invalid on the ground that in respect of the facts alleged for the grounds for the detention, there is a pending or imminently prospective prosecution, the pendency or the imminent prospect of the prosecution would have a substantial bearing on the alleged want of bona fides. I take the weighty pronouncements of the Patna, Nagpur and Bombay cases as justifying such an approach to the facts of a case when the bona fides of an order is challenged. But it has also to be remembered in this connection that the burden of making out want of bona fides of the detention order is on the detenu. That has been clearly laid down in A.I.R(32) 1945 F.C 18, though as pointed out in that very case relying on Rex v. Carr Briant, (1943) 1 K.B 607, such burden of proof is not so onerous as that on the prosecution in a criminal case. It is in the light of these considerations that the challenge made to the bona fides of the orders of detention in this case has to be judged.

23. It has been in the first instance, suggested that the detention orders were made with the ulterior object of circumventing the orders of bail. This, however, is clearly shown not to be a fact. I have mentioned at the outset, in the narration of the facts, that the letter of the Circle Inspector dated 16-3-51 to the District Magistrate, shows that the detention was asked for at the same time when the petitioners were sent up in custody to the Sub-Divisional Magistrate. The fact, therefore, that the Sub-Divisional Magistrate passed an order for bail on the 17th and that the District Magistrate an order for detention on the 18th is only fortuitous.

24. There is also not much of room in the present case to think that the order of detention has been made in order to secure the facility of secret investigation as has been found in the Bombay and Nagpur cases above noticed. The case diary and the letter of the Circle Inspector dated 16-3-51 to the District Magistrate show that the investigation had proceeded to a substantial extent so far as these petitioners are concerned by the time the detention orders were served on the petitioners. What remained appears to be only the examination of the accused and the test identification parade. This, by itself, would not be enough to conclude that the investigation was meant to be secret, though it is possible that the detention order before this stage of investigation, in a case which depends largely on identification may have a bearing on the next point to be presently mentioned.

25. The more serious points however that arise for consideration on the question of bona fides of the detention orders in this case are: (1) Whether the detention can be pronounced to be punitive in character rather than preventive, with reference to the material available at this stage, and (2) Whether the orders of detention have been passed with due care in the sense that the step had to be taken as being necessary notwithstanding the appreciation that it may amount to interference with the course of justice in an imminently prospective prosecution & notwithstanding that the identification had not been by then tested.

26. These two aspects are somewhat interconnected & may be considered together. There are in this case certain facts which raise substantial doubts in one's mind: (1) The Circle Inspector in his letter to the District Magistrate dated 16-3-51 moving for the order of detention says that;

“The specific case started by the Govt. Railway Police may not be successful & hence an order of detention for three months is recommended.”

27. When the bail was moved before the Sub-Divisional Magistrate, it does not appear to have been opposed on the ground that if the petitioners are allowed to have freedom, there was the imminent likelihood of their resorting to prejudicial acts affecting the supply position in the place as regards clothing. All that appears from the endorsement of the prosecutor on the face of the bill application dated 16-3-51 (which has been received with the records) is that an order of detention has been moved for, implying to my mind, an objection not that the release on bail would be risky but that it would be futile. For if the contrary were meant, the prosecution would have at once moved the higher Court for cancellation of bail. (3) The affidavits of the District Magistrate filed, even after some arguments had been advanced in the case, do not place sufficient facts or circumstances before the Court in proof of bona fides & does not also afford any indication that the seriousness of such a detention order on the prospective prosecution has been appreciated.

28. In spite however of the above material, for feeling doubt about the bona fides of the order (by which I do not at all mean any doubt as to the honesty of the motive or integrity of the action taken), I am not prepared to come to a definite finding against the bona fides of the orders. The doubt felt by me is not a substitute for the proof required having regard to the burden of proof in such cases. It is not unlikely that the affidavit & materials furnished on the aide of the State may have been inadequate in this case since the requirements to be placed before the Court in a case of this kind may not have been sufficiently understood by the authorities or law officers concerned.

29. In the present case, therefore, I think it desirable to refrain from any positive finding on the meagre material before us, particularly, in view of the fact that the entire material is likely to be available to the Advisory Board before whom the matter will come up shortly. The Advisory Board will be in a better position than the Govt. to scrutinise the available material & consider not only the question of reasonable satisfaction, but also the bona fides of the detention orders in the light of the observations made in this judgment, which had to be explained in some detail, this being the first case of the’ kind that has come to the notice of this Court where this point has been elaborately argued.

30. I am therefore not prepared to interfere with the detention orders against these petitioners at this stage & accordingly reject these applications.

Narsimham, J.:— The only point for consideration at present is whether this Court should exercise its powers under Article 226 of the Constitution when the whole question regarding the advisability of the continuance of detention of the petitioner is now under consideration before the Board constituted under the Preventive Detention Act. The Govt. Advocate informed up that the Board has called for further particulars from the local authorities & that it has adjourned the hearing of the petitioner's case till the 14th of May.

31. There can be no doubt that this Court's jurisdiction under Article 226 is independent of any action that may be taken by the Board & in those cases where it can be held on the materials placed before this Court that there was either a manifest defect of jurisdiction on the part of the Magistrate who ordered detention or where there is manifest fraud or want of bona fide this Court should interfere even though the very same matter may be pending before the Board. But, at the same time, it should be pointed out that where the statute provides an alternative relief through another tribunal the Court would not ordinarily interfere in exercise of its prerogative powers until the other remedy has been exhausted (see The King v. Commanding Officer of Morn Hill Camp (1917) 1 K.B 176). The powers of the Board have been much increased by the amendment made to the Preventive Detention Act by the Amending Act of 1951. Formerly, the recommendation of the Board to the Government was advisory; but after the amendment the Government is bound to release a detenu if the Board is of the opinion that there is no sufficient cause for the detention of the person concerned. Unlike this Court the Board can go into questions of fact as well as questions of law and also has access to other papers which may throw light on the question as to whether the detention was mala fide or not.

32. The only ground urged in the position is that the detention is mala fide. To prove mala fide the petitioner has relied on the fact that a regular criminal case is pending in respect of the facts on which the detention order has been passed. That case is still pending police investigation and charge-sheet has not yet been submitted. The Sub-divisional Magistrate, Berhampur, in whose file the case is pending, ordered his release on bail and that order was slightly modified in favour of the petitioner by the Sessions Judge. The District Magistrate however in an independent proceeding passed the order of preventive detention. In the report of the police to the District Magistrate it was expressly stated that a regular police case for the alleged offence committed by the petitioner had already been instituted and was then pending investigation. The order of the District Magistrate detaining the petitioner was passed prior to the order of the Sessions Judge modifying the order of the Sub-divisional Magistrate, Berhampur, granting bail. On the materials placed before us therefore it does not appear prima facie that the detention of the petitioner was made by the District Magistrate mala fide with a view to circumvent the bail order passed by the Sub-divisional Magistrate and by the Sessions Judge. Nor can it be reasonably held that the detention order was made with a view to deprive the petitioner of the benefit of appearance before the Sub-divisional Magistrate once a fortnight as required by Section 344 of the Cr PC. As already pointed out, in view of the bail order passed by the Sub-divisional Magistrate in the regular case there can be no question of the petitioner being produced before that Magistrate once a fortnight for remand. Therefore this case is distinguishable from the Bombay case reported in A.I.R(37) 1950 Bom. 202 on which Mr. P.V.B Rao, the learned counsel for the petitioner relied.

33. The Board is going to deal with the case of the petitioner very soon and it is likely that further materials regarding the antecedents and other activities of the petitioner may be available before it which are not before us now. Under these circumstances I would, in agreement, with my learned brother, hold that this is not a case for interference at this stage. On the bigger question as to whether an order under the Preventive Detention Act can be passed against a person on the basis of those acts in respect of which a regular prosecution for a substantive offence is pending against him which has been discussed elaborately by my learned brother, I would reserve my opinion. That question does not arise for consideration at this stage in the present case.

V.B.B

34. Applications dismissed.