JUDGMENT
Imam, J.
1. This is an application under Article 223 of the Constitution and Section 491 of the Code of Criminal Procedure. The petitioner Sheobachan Singh was arrested on the 5th of August, 1951, and an order of detention was made against him by the District Magistrate of Saxan on the 6th of August, 1951. The grounds of detention were served upon him on the 18th of August, 1951. The order of detention was passed by the District Magistrate under Sub-section (2) of Section 3 of the Preventive Detention Act, 1950 (Act IV (4) of 1950), and the grounds of detention under Section 7 of the aforesaid Act were served upon the petitioner.
2. Mr. Basanta Chandra Ghose appearing for the petitioner has urged, in the main, that the particulars stated in the grounds of detention against the petitioner referred to past acts which were too remote to justify an order of detention being passed against him. Secondly, he urged that the grounds of detention, which refer to the activities of the Communist Party of India in general, state in paragraphs 5, 6 and 7 a change in the leadership of the Party under B. T. Ranadive to that of Chandra Rajeshwar Rao in the middle of 1950 bringing little change in the highly subversive programme of the party, but that in early 1951 a circular was issued on behalf of the Party to all Party units to the effect that while exploiting the legal possibilities with care and tact, the revolutionary trade unions should orientate towards illegal trade unionism as the principal form of organisation. The grounds further go on to state that a draft programme of the Party was issued which gives the impression that the Party had decided to abjure violence and armed struggle and had taken to only legal methods, but the Government had dependable information that the Party is still definitely of the view that without violence no revolution can take place and consequently it is taking steps not only to continue its under-ground. “Tech” organisation but to strengthen it and tighten it, and in actual practice also it is continuing its orgy of loot, arson and murder in Hyderabad, Andhra, Tripura, Manipur and other places. (2a) Para. 7 of the grounds of detention finally states that it is therefore abundantly clear that the Communist Party of India has now divided the activities on two fronts, an open front where the Party still exploits all legal possibilities, and an illegal front for carrying on armed guerilla struggle in rural areas for the formation of liberation bases and liberation armies. Mr. Ghose contended that it was apparent from the grounds of detention in the above-mentioned paragraphs that even according to Government the Communist Party of India had split its activity into two groups, one to pursue all legal methods to achieve its political ideology and objective, and the other to achieve the same by illegal methods’ and force of arms. It was essential, therefore, for the detaining authority to disclose in the grounds of detention to the petitioner as to which group the petitioner belonged; whatever the past activities of the petitioner may have been, he might now belong to that group which follows legal methods for the achievement of the political idealogy of the Communist Party of India. In the particulars of the grounds of detention specifically made against the petitioner, such allegations as are disclosed there refer to his activities at a period when the Communist Party of India did not have as a part of its programme the achievement of its objective by legal and constitutional method. It was essential therefore, for the detaining authority to precisely state as to whether in spite of the decision of the Communist Party of India to achieve its objective by legal and constitutional methods the petitioner still pursued methods which were illegal and unconstitutional. The particulars of the grounds of detention, therefore, were too vague for the petitioner to make a representation against the order of detention made by the District Magistrate.
2-b. In this connection Mr. Ghose referred to the affidavit in his petition wherein it has been precisely stated as to what have been the activities of the petitioner for six months previous to the 10th of September, 1951, the date of the affidavit. These particulars clearly show that the petitioner had been indulging in open public activities and had addressed a Thana Pood Rally held under the auspices of the Socialists, Congresites and Communists at Sonepur on the 11th of May 1951, and permission to hold the said meeting was obtained from the Superintendent of Police, Chapra. On the same date a deputation was formed to wait upon the Sud-divisonal Officer, Chapra, for the recognition of the Fond Committee, and the said deputation led by the petitioner not the Sub-divisional Officer on the 4th of June 1951, at 6 p.m. These allegations in the affidavit had not been controverted on behalf of the Government and could have been controverted if the allegations made ill the affidavit were in any way false. Mr. Ghose accordingly argued that in law the detention of the petitioner was invalid because the allegations made against him were vague preventing him from making a representation to the detaining authority against his detention. Lastly, Mr. Ghose urged that the detention of the petitioner was mala fide and had been done in order to prevent him from standing as a candidate for election to the State Legislature from the Sonepur constituency in the district of Saran.
3. On behalf of the State it was urged by Mr. Chakravarty that past conduct of the petitioner could be taken into consideration in order to show that the grounds of detention taken as a whole clearly disclosed material to justify the order 2 detention. So far as the second contention o2 Mr. Ghose was concerned, he urged that in spite of what had been stated in paragraphs 5, 6 and 7 of the grounds of detention, the detaining authority was satisfied that if the petitioner was allowed to remain at large, he would indulge in activities to the prejudice of the public safety and the maintenance of public order, and that for prevention of such activities it was necessary to detain him, In other words, the detaining authority was satisfied from the past activities of the petitioner that he was not pursuing legal and constitutional methods for the achievement of the objective of the Communist Party of India. As for the third contention, Mr. Chakravarty contended that there was no tangible material placed before the Court; for supposing that the detention of the petitioner was mala fide and had been done in order to prevent him from standing as a candidate for election to the State Legislature. Finally, Mr, Chakravarty argued that this Court could not sit in appeal over the order of detention made by the detaining authority and hold that that authority was wrongly satisfied that the petitioner should be detained in the interest of public safety and the maintenance of public order.
4. As to the first contention raised by Mr. Ghose, I think the grounds of detention have to be read as a whole and reference to past conduct of the person ordered to be detained may be taken into consideration by the detaining authority. Although the Communist Party of India may not have been declared unlawful, that was immaterial being a matter of expediency, as pointed out by Sastri, J., in the decision of the Federal Court in the case of ‘MACHINDAR SHIVAJI v. THE KING’, (1949-50) PCR 827. As was pointed out by His Lordship, mere belief in or acceptance of any political ideology may not be a ground for detention under the Act, but affiliation to a party which is alleged to be spreading its “doctrine of violence rendering life and property insecure and trying to seize power by violence” may, in certain circumstances, lead to an inference that the person concerned is likely to act in a manner prejudicial to the public safety, order or tranquillity. In my opinion, having regard to the grounds of detention as a whole, and what has been stated therein, it cannot be said that the past acts of the petitioner could not be taken into consideration by the detaining authority when it made its order of detention against him.
5. As to the second contention raised by Mr. Ghose, I think it is a question of pure law as to whether an order of detention can be made legally where the grounds of detention themselves state that the Communist Party of India has two groups, one to pursue legal and constitutional methods for the achievements of its objective and the other to pursue illegal, unconstitutional and violent methods for the achievement of its objective, and the person ordered to be detained is not informed by the detaining authority as to which group he belongs. It is to be remembered that the Communist Party of India has not been outlawed and that mere belief in or acceptance of any political idealogy can be no ground for passing an order of detention. If the Communist Party of India has now, as stated in the grounds of detention, decided to achieve its political idealogy by legal and constitutional methods as well as illegal, unconstitutional and violent methods, it is quite clear that those members of this Party who are now pursuing the former methods were indulging in an activity fully permitted by the Constitution of India, and their detention while pursuing such methods would be illegal and in contravention of the provisions of the Constitution relating to fundamental rights. The petitioner may have in 1949 and in or about August 1950, indulged in subversive activities in pursuance of the programme of the Communist Party of India as it then stood, but since the change in early 1951, he may have adopted that part of the programme which directed some of the members of the “Communist Party of India to pursue legal and constitutional methods for the achievement of the political idealogy and the objective of the Communist Party of India. In such circumstances, the activities of the petitioner up to August 1950, would not disclose to him the material on which now the detaining authority was satisfied that his detention was necessary in the interest of public safety and maintenance of public order so that he could make a representation effectively against the order of detention.
5a. The affidavit on behalf of the petitioner, uncontroverted as it is & which could have been controverted, clearly indicates that before the order of detention was made against him, his activities were in the interest of public good and that he addressed a Thana Pood Rally under the auspices of various political parties including the Congress with the permission of the Superintendent of Police, Chapra, and that he also led a deputation for the recognition of the Pood Committee before the Sub-divisional Officer on the 24th of June 1951. The affidavit also discloses that the petitioner while going to a peace meeting and also Kisan workers meeting on the 5th of August 1951, was arrested at the Sonepur railway station, that he had also been elected as a member of the Bihar State Election Board of the Communist Party towards the end of July 1951, and the news of this appeared in the newspapers on the 2nd and 3rd of August 1951. I refer to the affidavit merely to show that for some time before the 6th of August 1951, the date of the petitioner’s arrest, he had been indulging in activities which were open, legal and constitutional, obviously a course of activities directed by the Communist Party of India when a change in its programme took place in early 1951. Apart from the question of vagueness in the grounds of detention, the detention of the petitioner is illegal because the grounds of detention do not state as to whether he” elougs to that group of the Communist Party of India which is pursuing illegal, unconstitutional and violent methods for the achievement of the political idealogy and the objective of the Communist Party of India.
5b. It is not a question of sitting in appeal against the order of detention mada by the detaining authority, as argued by Mr. Chakravarty on behalf of the State The grounds of detention have been provided for by Section 7 of the Preventive Detention Act, 1950 (Act IV of 1950) purely for the purpose of giving the person detained an opportunity of making a representation. What representation can a detained person make on the grounds of detention before us where it has been specifically stated that one group of the Communist Party of India has been directed to pursue legal and constitutional methods for the achievement of its political idealogy and objective and it has not been disclosed to the petitioner that he belongs not to this group but to the other group which has been directed to pursue illegal, unconstitutional and violent methods for the achievement of the same idealogy and objective? In my opinion, therefore, having regard to the nature of the grounds of detention disclosed in this case and the uncontroverted affidavit 011 behalf of the petitioner, the detention of the petitioner is illegal.
6. As to the third contention, having regard to the view I take on the second contention, the question does not arise. The materials before me, however, are insufficient to enable me to conclude that the order of detention was necessarily mala fide.
7. I would accordingly allow the application and hold that the petitioner has been illegally detained and would direct that he be released forthwith unless he is otherwise lawfully detained.
Narayan, J.
8. In this case I am in the unfortunate position of not being able to agree with my learned brother that the detention o£ the petitioner is illegal.
9. The petitioner Sheobachan Singh was arrested on the 5th of August 1951, and on the 6th of August, 1951 the District Magistrate of Saran passed an order for his detention according to Sub-section (2) of Section 3 of the Preventive Detention Act, 1950. On the 16th of August 1951 he was served with the grounds for his detention. The present application which is labelled as an application under Article 226 of the Constitution of India and Section 491 of the Code of Criminal Procedure was filed on 10-9-1951.
10. The substantial contention urged by Mr. Basanta Chandra Ghose, who has appeared for the petitioner before us, is that the grounds served on the petitioner are too vague and indefinite to enable him to make an effective representation against the order of detention and that the petitioner could not be detained merely because of his past activities. The learned Counsel has pointed out that the subversive activities referred to in the grounds are of a time when the Communist Party of India had not included within its programme the achievement of its objective by legal and constitutional methods, and that as because of the change in the leadership and other causes their programme has been altered and as the petitioner is now taking part in public works and acting in a legal and constitutional manner, he cannot be detained for what he might have done in the past and at a time when violence was included within the programme of the Communist Party.
11. In view of the contentions raised before us it is necessary to know how the grounds served on the petitioner stand. In paragraph 1 it is stated that this petitioner Sheobachan Singh is an important member of the Communist Party of India, and in paragraph 2 the objective of the Communist Party of India has been stated. The objective mentioned is the destruction of the present social order and to supplant the existing Government by a Communist State by waging political and economic struggle. The following statement in this paragraph indicates that the programme which the Communist party had adopted was really a very dangerous programme.
“Government have dependable information that in pursuance of the above objective, different communist calls functioning in Bihar and received secret directives from the party headquarters to build up illegally as quickly as possible large stocks of fire-arms and ammunition, to smuggle explosives on a large scale specially from the industrial areas, to collect iron bars and other imprements for breaking jails and for capturing offerent service Associations os that the Services could be expolited at a critical moment to turn against Government so as to bring about a complete colapse or administration. The party in this State arranged secret dumps in inacessible hiny tracts and Government have reasons to believe that most of the confirmed members of the party were supplied with unlicened fire-arms obtained illegally from burma, Pakistan and from American soliders.”
11a. Then paragraph 3 says that the members of the Communist, party “made vigorous enorts to incite Kisans to take forcible possession of the zamindar’s land even when there was no semblance or any legal right” and that a semi-military Red force was organised for assisting them in their violent acts. It is said that on the industrial front as well workers were incited and asked to resort to violence if necessary. Paragraph 4 gives some further details, and it states that the party has already resorted to murder for deflection from and acting against the interests of the party and that “these are not sporadic incidents but follow a country-wide plan.”
11-b. in Paragraph 5 it is stated that at about the middle of 1950 the leadership of the party was transferred from the hands of Shri B.T. Ranadive to those of Shri Chandra Rajeshwar Rao, but it is asserted that this change in leadership brought little change in the highly subversive programme of the party. It makes mention of a circular issued to the party units which indicates that violence was still within the programme of the party and that its objective still remained the final over-throw of the Government. Paragraph 6 is important in the sense that it states that though the draft programme of the party issued under the leadership of the new leader Shri Chandra Rajeshwar Rao gives the impression that the party had decided to abjure violence and has taken only to legal methods, Government have :
“dependable information that the party is still definitely of the view that without violence no revolution can take place and consequently it is taking steps not only to continue its underground ‘Tech’ organisation taut to strengthen and tighten it.”
It is further stated in this paragraph that the party is still “continuing its orgy of loot, arson, and murder in Hyderabad, Andhra, Tripura, Mani-pur and other places.
11-c. Paragraph 7 says that it is thus clear that the party has now:
“divided the activities on two fronts — an open. front where the party still exploits all legal possibilities and an illegal front for carrying on armed guerilla struggle in rural areas for the formation of liberation bases and liberation armies.”
Paragraph 8 says that the State Government Is satisfied that the Communist party of Bihar which continues to be working for the party’s cause has accepted the party’s aforesaid programme and that the “members who do not accept the programme or show any hesitation are promptly suspended, expelled or ‘purged’ from the party.” (12) Before I pass on to the succeeding paragraphs which mention the past activities of this petitioner, I have to point out that the paragraphs the summary of which I have given above do not at all indicate that the Communist party is now divided into two groups, one of which has adopted legal and constitutional means and the other still believes in violence. On the other hand, these paragraphs go to indicate that though under the present leadership the party has adopted a programme which gives the impression that it has decided to abjure violence, it really still believes in violence and revolution so much so that it is “continuing its orgy of loot, arson and murder.” What the State Government teem to mean is this that the so-called draft programme issued by the present leader is only a camouflage and that the activities of the party still continue to be as dangerous as before. In the grounds I find nothing to support the view that there is one group which is pursuing strictly legal and constitutional methods and that the present petitioner belongs to that group.
12-a. Paragraph to says that the petitioner is a very important worker of the Communist Party of India, and paragraph 11 says that in 1949 he was reported to be in possession of a cyclostyle machine which he used for cyclostyling party leaflets. One such leaflet was entitled as “Railway Mazdooron Ki Roti Per Khunkkar Hamla” and it had been issued in the name of this petitioner in his capacity as the Vice-President of the O. T. Railway Road Union. The pamphlet instigated the railway workers to form ‘militant committees’ and to surround their officers and seek the release of their comrades. Paragraph 12 says that this petitioner was reported to be in possession of an unlicensed revolver, and paragraphs 13, 14 and 15 are quoted below in extenso, because they make mention of some very important activities of this petitioner.
“13. On 14th June 1949, he contacted party workers at Sonepur whom he exhorted to strengthen the party with money and men and advocated training of workers in use of bhalas and lathis.
14. On 5th July 1949, he attended a secret meeting of the party at Katihar in which a decision was taken to popularise the party by advising Kisans to forcibly occupy all lands in excess of 35 acres in possession of big cultivators.
15. He was one of the 3rd party workers who were selected by the party for receiving training in guerilla fighting in a secret training centre of the party organised at Manpur district Saran in or about August 1950.”
12-b. The conclusion at which the District Magistrate has arrived is indicated in the following language.
“In the circumstances I am satisfied that if he is allowed to remain at large he will indulge in activities to the prejudice of public safety and the maintenance of public order. For prevention of such activities, I consider his detention necessary.”
12-e. What have been mentioned in paragraphs 10 to 15 are the specific grounds so far as the present petitioner is concerned, and if the State Government or the District Magistrate could detain the petitioner for his past activities, these grounds cannot be regarded as insufficient grounds for his detention. Much less can it be urged that these grounds are so vague and indefinite that they do not enable him to make an effective representation against the order of his detention. Fortunately for me, my learned brother has overruled the contention of Mr. Ghosh that the past conduct of the person ordered to be detained cannot be taken into consideration by the detaining authority. My learned brother has referred to the decision of the Federal Court in ‘MACHINDAR SHTVAJI v. THE KING’, (1949-50) FCR 827, In which his Lordship Patanjali Sastri, J., who delivered the judgment of the Federal Court, made the following observation:
“It was said that, the Communist Party not having been banned in the Province, the appellant’s aleged membership of that party, even if true, could not, in the absence of any allegation or acts or conduct on his part suggesting that he was acting or was likely to act in a manner prejudicial to public safety, be regarded as a found for satisfaction under Section 2 (1) (a). We cannot accede to this contention. While mere belief in or acceptance of any political ideology may not be a ground for detention under the Act, affination to a party which is alleged to be spreading its ‘doctrine of violence rendering life and property insecure and trying to seize power by violence’ may, in certain circumstance, lead to an inference that the person concerned is ‘likely’ to act in a manner prejudicial to the public safety, order or tranqumity. The fact that the Party had not been outlawed is immaterial, that being a matter of expediency.”
12-d. His Lordship was of the view that memoership of the communist Party (which has adopted a violent programme; cannot be ruled out of consideration as material on which no satisfaction could rationany be grounded. In the well-known case ‘A. K. GOPALAN v. STATE OF MADRAS‘ (1950) 1 S C R 88, his Lordship the Chief justice of the Supreme Court has pointed out that for preventive detention action must be taken on good suspicion, and that it is a subjective test based on the cumulative effect of dinerent actions, perhaps spread over a considerable period. In this very case Patanjai Sastri, J., has pointed out that preventive detention is a purely precautionary measure which must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof (per Lord Atkinson in ‘BEX v. HALLIDAY’, (1917) AC 260 at p. 275.) Mukharjea, J., in this case further observed that:
“the object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. No offence is proved, nor any charge formulated; and the justification of such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence.”
In a very recent case, ‘STATE OF BOMBAY v. ATMA RAM SHBIDHAB‘, AIR (38) 1931 S C 157, his Lordship the Chief Justice of the Supreme Court observed as follows:
“By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order, therefore, cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act. Section 3, Preventive Detention Act, therefore, requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (2) the security of the State or the maintenance of public order, or (3) the maintenance of supplies and services essential to the community or …… it is necessary so to do, make an order directing that such person be detained. According to the wording of Section 3, therefore, before the Government can pass an order of preventive detention it must be satisfied with respect to the Individual person that his activities are directed against one or other or the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent rum from acting in such a manner. The wording of the section thus clearly snows that it is the satisfaction of the Central Govt. or the State Govt. on the point which alone is necessary to be establisned. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly passive to give such an exhaustive list. The satisfaction of the Government, however, must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a Court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the Court to sit in the place of the Central Government or the State Government and try to determine if it would have come to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a Court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a Court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government.”
12-e. In this case the Commissioner of Police, Bombay, had stated that in or about the month of January 1950 there was a move for a total strike on the railways in India in the month of March 1950 and that the applicant (the detenu in that case) was taking prominent part to see that the strike was brought about and was successful. He had further stated that although the railway strike in the month of March did not materialise, the idea of bringing about such strike as soon as convenient continued to be entertained and the present respondent was actively engaged in bringing about such a strike in the near future. The Police Commissioner refused to disclose further facts relating to the activities of the detenu as they were against public interest. A Bench of the Bombay High Court presided over by the Chief Justice of that Court allowed the petition and directed the release of the detenu, but the Supreme Court disagreed with the view of the Bombay High Court and allowed the appeal of the State. This point was considered by Das, J.. and myself in ‘SUBODH KUMAB SINGH v. THE STATE‘, AIR (38) 1951 Pat 68, and we came to the conclusion that the detaining authority was at, liberty to draw an inference adverse to the detenu from his past activities.
12f. It is not therefore open to the detenu to urge before us that his detention is not justified because in 1949 he had issued a leaflet instigating the railway workers to indulge in violent activities and had advocated training of workers in the use of the bhalas and lathis. And what is more important is that he had advised the Kisans to forcibly occupy all lands in excess of 35 acres in possession of big cultivators. These materials cannot be regarded as ‘vague and indefinite, and if they have been communicated to the petitioner, they contain sufficient particulars to enable him to make an effective representation to the authority concerned. In this way, the requirements of Article 22 (5) of the Constitution of India have been fully complied with in this case, and it is, in my opinion, no use going into the question as to whether the Communist Party of India has now divided itself into two groups, one of which follows legal and constitutional methods and the other illegal and violent methods.
12-g. “I have already said that the grounds do not at all indicate that there are really two groups in the party, one of which is proceeding in a legal manner and the other in an illegal manner. What has been pointed out is this that though the draft programme shows that the party has now decided to abjure violence, it has really not done like that and that the draft programme is nothing but a camouflage meant to deceive the public and the State. In his affidavit the petitioner has tried to show that he has been engaged in public activities for the last six months, and he has stated that he addressed a Thana Food Rally organised by the different parties in this country, including the party in power and that on the 4th of June 1951 he led a deputation to the Sub-divisional Magistrate of Chapra for the recognition of the Food Committee. It was open to the District Magistrate and to the State to think that in spite of the fact that this petitioner has taken part in such public activities, at heart he is still a violent Communist committed to the entire violent and subversive programme of the Communist Party of India. As I painted out in ‘MADAN LAL v. STATE OF BIHAR‘, 30 Pat 653, the facts alleged have to be taken to be correct, and it will not be a ground for interference if the detenu merely puts forward a counter-version. I further said that if two inferences including the one that was drawn by the detaining authority are possible on the facts, it was not open to us to say that that particular inference should not have been drawn by the detaining authority. In ‘A. K. GOPALAN’S CASE’, (1900) 1 S C R 88, Das, J., while dealing with Article 22 of the Constitution of India observed as follows:
“Those provisions are not justiciable, for they are the provisions of the Constitution itself which is supreme over everybody. The Court can only seek to find out, on a proper construction, what protection has in fact been provided. The Constitution has provided for the giving of the grounds of detention although facts as distinguished from grounds may be withheld under Clause (6) and the right of representation against the order of detention. It has provided for the duration of the detention. There the guaranteed fundamental procedural rights end. There is no provision for any trial before any tribunal. One cannot import the condition of a trial by any tribunal from the fact that a right of representation has been given. The right to make representation is nothing more than the right to ‘lodge objections’ as provided by the Danzig Constitution and the Weimar Constitution.”
12-h. The important observation made by Kama, C. J., in the case of the ‘STATE OF BOMBAY v. ATMA RAM SHRIDHAR‘, AIR (38) 1951 SC 157, has already been quoted by me, and in this case his Lordship has further explained what can be the meaning of the word “vague” which is so commonly used by detenus or their lawyers in relation to the grounds served. The following is the observation made by his Lordship in this connection :
“The contention that the grounds are ‘vague’ requires some clarification. What is meant by vague? Vague can be considered as the antonym of ‘definite.’ If the ground which is supplied is incapable of being understood or defined with sufficient certainty it can be called vague. It is not possible to state affirmatively more on the question of what is vague. It must vary according to the circumstances of each case. ‘It is, however, improper to contend that a ground is necessarily vague if the only answer of the detained person can be to deny it.’ That is a matter of detail which has to be examined in the light of the circumstances of each case. If, on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague. The only argument which could be urged is that the language used in specifying the ground is so general that it does not permit the detained person to legitimately meet the charge against him because the only answer which he can make is to say that he did not act, as generally suggested. In certain cases that argument may support the contention that having regard to the general language used in the ground he has not been given the earliest opportunity to make a representation against the order of detention.”
12-i. In this case there are quite specific allegations so far as the petitioner is concerned, and on these particulars the State or the District Magistrate could certainly keep him detained according to the provisions of the Preventive Detention Act. I need not repeat that it is also open to them to assert that the Communist Party in India and particularly the Communists of Bihar including this applicant still believe in violence, and that their attitude has not undergone any real or appreciable change in spite of the apparent alteration in the draft programme. Evidence cannot be taken by us for deciding as to whether the statements made by the District Magistrate in his grounds or the statements made by the present petitioner in his affidavit are correct. Putting a counter-version is not the same thing as placing circumstances which can go to establish that the alleged facts or grounds are ‘non est’ and it cannot reasonably be urged in this case that the petitioner’s affidavit discloses circumstances which go to indicate that the facts stated in the grounds are ‘non est.’ Undoubtedly, this is a case in which the State can successfully urge that their satisfaction is grounded on materials which are of rationally probative value. I am, therefore, of the opinion that the detention of this petitioner is legal and justified, and I would accordingly dismiss this application.
Reuben, J.
13. This case under Article 226 of the Constitution of India and Section 491 of the Code of Criminal Procedure has been referred to me on a difference of opinion between my brothers Imam and Narayan, JJ. The point of difference as stated In the order of reference is:
“Whether, on the grounds of detention served on the detenu, his detention is illegal or legal”.
13a. The particulars of the difference between their Lordships will appear from what I say below.
14. The petitioner who is a member of the Communist Party of India was arrested on the 5th of August 1951 and is detained under an order of detention made by the District Magistrate of Saran on the 6th August in exercise of power under Section 3 of the Preventive Detention Act, 1950 (Act IV of 1950). The grounds of detention under Section 7 of the Act were served on the 16th of August 1951. Mr. Basanta Chandra Ghosh on behalf of the petitioner urged three points before the referring Bench:
1. The particulars given in the statement of grounds of detention relate to past acts too remote to justify an order of detention.
2. From the statement of grounds itself it appears that the Communist Party of India has split up its activities between two groups, one group to pursue the object of the party by legal methods, the other to attempt to achieve them otherwise, and, in the absence of an assertion in the statement of grounds that the detenu belongs to the latter group, the allegations against him are too vague to enable him make a representation, and
3. the detention is ‘mala fide’, in order to prevent the detenue from standing for election to the State legislature.
14a. The difference between their Lordships which has led to the present reference arose on the second point. According to Imam, J. the grounds show that sometime in the year 1951 the Communist Party was divided into two groups. He held that, in the absence of an assertion that the petitioner belonged to the group which is to adopt illegal methods, it was not possible for the petitioner to make a representation. According to Narayan, J., the grounds do not show a division of the party into two groups. In his opinion, the grounds indicate that the divided fronts are mere camouflage and the party programme continues as dangerous as before. His Lordship did not go on to consider the effect of this finding in view of his finding on the first point, regarding which both their Lordships agreed that particulars of past acts of the persons detained may be sufficient by themselves to sustain an order of detention. Whereas, however, the particular past acts enumerated in the grounds were held by Imam, J. to be of no avail because they relate to a period prior to the divided fronts, his Lordship Narayan, J. held that, apart from the question as to the correct interpretation of the grounds relating to the divided fronts, the past acts enumerated were sufficient to sustain the present order of detention. On the third point their Lordships agreed that ‘mala fides’ were not established.
15. Incidentally, their Lordships took a different view as regards the use of the affidavit of the petitioner as establishing the facts stated therein. The statements of fact in the affidavit relied on relate to the petitioner’s behaviour shortly before his arrest, namely, that during the preceding six months the petitioner, in pursuance of the policy and programme of the Communist Party of India “to work democratically”, was engaged in open public activities, took part in a Thana food rally on the 11th of May 1951, and in a deputation which was formed on that occasion met the Sub-divisional Officer on the 4th of June 1951. These facts not having been controverted before the referring Bench and there not being any assertion in the grounds contrary to them, I do not see why the assertions should not be accepted by the Court.
16. The decision of the point referred to me turns on the interpretation of the statement of grounds. It commences, after mentioning that the petitioner is an important member of the Communist Party of India by describing the programme and activities of the Communist Party of India previous to the middle of the year 1950, during the time when B. T. Ranadive was the General Secretary of the party. In the middle of 1950, according to the grounds, the leadership of the party passed to the hands of Chandra Rajeshwar Rao but this brought about “little change in the highly subversive programme of the party”, in support of which statement it is mentioned that all the members of the reconstituted Central Committee had “practical experience of leading armed agrarian agitation in the rural, areas”. According to the grounds, this Committee in the early part of 1951″ circularised all party units that “while exploiting the legal possibilities” the revolutionary trade unions should orientate towards illegal trade unionism as the principal form of organisation, and made it clear that “the perspective of the fight to be initiated was armed guerilla struggle in rural areas leading to the gradual establishment of ‘liberated bases’ and setting up of ‘liberation armies’ for the purpose of a final overthrow of the Government”. The present programme is set out in paragraph 6 of the grounds which I reproduce below with the two following paragraphs:
“6. Although Sri Chandra Rajeshwar Rao has resigned from the General Secretaryship of the party and the Polit Bureau, which is now functioning as the Secretariat of Central Committee, has issued a draft programme of the party which gives an impression that the party has decided to abjure violence and armed struggle and has taken to only legal methods, Government have dependable information that the party is still definitely of the view that without violence no revolution can take place and consequently it is taking steps not only to continue its underground ‘Tech’ organisation but to strengthen it and tighten it. In actual practice also it is continuing its orgy of loot, arson and murder in Hyderabad, Andhra, Tripura, Manipur and other places.
7. It is therefore abundantly clear that the C. P. I. has now divided the activities on two fronts, an open front where the party still exploit all legal possibilities and an illegal front for carrying on armed guerilla struggle in rural areas for the formation of liberation bases and liberation armies.
8. That State Government is satisfied that the members of the Communists Party of Bihar who continue to be working for the party’s cause have accepted the party’s aforesaid programme, members who do not accept the programme or show any hesitation are promptly suspended, expelled or ‘purged’ from the party”. (16a) Stress has been laid before me on the assertion in paragraph 7 that the Communist Party of India has now “divided the activities on two fronts.” These words have to be lead in the background of the context. In the immediately preceding paragraph, the detaining authority has described the present programme as giving “an impression that the party has decided to abjure violence and armed struggle and has taken to only legal methods”. The phrase “giving an impression” suggests that the detaining authority does not accept the “impression” at its face value. He makes it clear by putting the word “though.” at the commencement of the paragraph and continuing that the Government have dependable information that the party still believes in violence and is taking steps towards it. To make his meaning clear he adds that in actual practice the party is continuing “its orgy of loot, arson and murder” in various places in India. The detaining authority is obviously thinking of violence as forming an essential part of programme. When, therefore, in paragraph 7, he speaks about activities on two froms, he is speaking of activities in pursuance of the programme as understood by him, that is to say, activities on a legal front and activities on an illegal front both forming part of one programme, he is speaking not of two separate sets of activities, but of two faces along which coordinated action is being taken. It is in this sense that, the word “programme” seems to be used in paragraph 8, in which the detaining authority speaks of members who have not accepted into (the?) programme being expelled, suspended or purged. It is true that under the present programme as set out in the grounds there are two sets of activities, legal activities and illegal activities. There is nothing in the grounds, how-lever, to justify the inference therefrom that the party is divided into two groups, one consisting of those partaking in the legal activities and the other consisting of those indulging in activities of the opposite kind. The grounds are quite consistent with a member of the party taking part openly in one set of activities and at the same time being an active participator in underground activities of the other set. It is also consistent with a member of the party, whose participation in the illegal activities at an opportune moment is important, attempting to evade detention or arrest in the meantime by apparently confining himself to legal activities.
17. Imam, J. has reasoned thus. On the grounds themselves it appears that the Communist Party consists of two groups, one pursuing legal methods, the other not. The party has not been declared unlawful. The members of the first group are acting in a lawful orderly manner and there can be no justification for their detention. It follows that it is not sufficient to tell the delenu merely that he belongs to the Communist Party. He must be told that he belongs to the group which is acting illegally. This position does not arise on my interpretation of the grounds. For these reasons the absence of a statement that the petitioner belonged to a particular group of the Communist Party does not affect the validity of the grounds served.
18. Mr. Ghosh has referred to the decision of a Division Bench in the case of ‘KARYANAND SHARMA’, Cri Misc. No. 271 of 1951, D/- 14-8-1951, and has urged that the detention should be held to be bad for failure to state the real grounds of the detention. I am doubtful if the petitioner is entitled to raise the point before me on this reference but, since it has been argued, I shall deal briefly with it. Karyanand Sharma, an important member of the Communist Party of India, was detained under an order made by the Government of Bihar dated the 23rd of June 1951. Previous to this he was in hiding. When he emerged from hiding on the 13th of June 1951 he addressed letters to the Chief Minister and the Chief Secretary of the State stating that having been elected President of the Bihar State Kisan Sabha he proposed to cease working underground, but would come to Patna and take charge of the office of the Sabha. Further he stated that he would stand as a candidate in the ensuing general elections. These letters reached their addressees on the 16th of June, that is to say, before the detention order was passed against Karyanand Sharma and long before the grounds served on him in accordance with Section 7 of the Prevention Detention Act, Those grounds, however, were confined to an assertion of his membership of the Communist Party of India, the programme and activities of the party and to the past act of the detenu himself, the latest of which was dated the 9th of November 1950. Shearer, J. with whom Ahmad, J. agreed, observed:
“It may be that, in spite of the assurance contained in the letter that the petitioner intended to work democratically the Provincial Government was of opinion that he might, in pursuing his candidature, adopt methods likely to create disorder. If, however, that was so, the facts on which this belief was entertained ought to have been set out in the grounds. It is a condition of the power conferred on the executive to deprive an individual of his liberty that the power must be exercised in complete good faith, and more particularly, that the real reasons, which have weighed with the Provincial Government in taking action, must be set out in the grounds, so that the person against whom the order is made may have an opportunity of making a representation to an Advisory Board, if the real reasons, or any of the real reasons, are suppressed, and the official responsible for drawing up the grounds deliberately sets himself to prepare a document purporting to show that the case falls wholly within a class of case in which the Courts have held that the power has been legitimately exercised, there has been a complete absence of good faith”.
18a. Dealing with a counter affidavit filed by the State on this point asserting that for a long period the detenu was wording under cover, that a series of attempts were made to apprehend him and that, if any of these attempts had been successful, an order of detention would have been made against him forthwith, his Lordship observed: “I do not doubt myself that, if the petitioner had been apprehended at any time prior to the middle of this year, mailing of an order of detention against him wouid have been fully justified. But it does not necessarily follow that, if an order of detention could, with propriety, have been made in one set of circumstances, such an order can, with equal propriety, be made in quite another set of circumstances”. (18c) Mr. Basanta Chandra Ghosh has argued that exacuy same is the case here; it may be that on the grounds stated the detention of the petitioner would have been sustainable if he had been arrested and detained prior to the formation of the double front; the creation of the double front, however, has brought new set of circumstances, into existence and, so long as there is no ground relating to a period after the formation of the double front, the grounds are not legally sufficient to sustain the detention. I have compared the grounds in the two cases. Each set of grounds consists of a general statement relating to the Communist Party and its programme and activities and a special statement relating to the activities of the detenu. In substance, the general statements in both cases are the same, but in the case before me grounds Nos. 6 and 7 have been added. These two paragraphs expressly deal with the change in the circumstances and state what view the detaining authority takes of the change of circumstances. According to that authority, the change of programme merely gives a misleading impression, and violence and armed, struggle continue to form part of the approved programme. Then in the next paragraph, having stated that the members who do not accept the programme are suspended, expelled or purged, the grounds go on in paragraph 9 to state that the petitioner continues to be an active member of the Communist Party of India. Among the particulars stated against the petitioner is a statement that in or about August 1950 he was one of the three party workers selected for training in guerilla fighting. It is true that this relates to a period before the formation of the double front but, it should be taken along with the assertions in the previous paragraphs about the continuation of the violent part of the party’s programme and the petitioner’s continued active membership of the party. It is not for me to determine whether on these grounds it was necessary to order his detention for the law requires the satisfaction of the detaining authority. But on the grounds as set out, I do not think that there is any justification for thinking that the real reason for the detention, of the petitioner has been withheld.
19. For the reason which I have given I think that, on the grounds of detention served, the detention of the petitioner is legal.
20. The record will now be sent back to the
referring Bench with my opinion.