Judgement

RAMASWAMI, J. : In this case the petitioner-Durgadas Shirali has obtained in a rule calling upon the respondents to show cause why a writ of habeas corpus should not be issued under Art. 32 of the Constitution directing his release from detention under an order passed by the District Magistrate of Bhilwara, Rajasthan under R. 30(1)(b) of the Defence of India Rules. Cause has been shown by the Advocate-General of Rajasthan on behalf of the respondents to whom notice of the rule was ordered to be given.

2. The petitioner was arrested on January 2, 1965 at Jaipur in pursuance of an order dated December 29, 1964 made by the respondent No. 3, Shri Narayan Das Mehta, District Magistrate of Bhilwara which states as follows:

"It is reliably brought to my notice that the Leftist Wing of the Communist Party has been carrying on anti-national and pro-Chinese propaganda and are preparing to act as Peking s member. The party having been formed at Peking s behest are preparing for widespread agitation with the object of establishing communist regime by subversion and violence. I, therefore, come to the irresistible conclusion that the Leftist Communist Party constitutes a real danger to external and internal security of the country and that it has become necessary to take immediate action.

I am also satisfied from the report that Shri Durgadas Shirali of Bhilwara is the Secretary of the Leftist Wing of the Communist Party and he is likely to act in manner which is prejudicial to the Defence of India and Civil Defence, India s relations with foreign powers, public safety and the maintenance of the public order.

I, Narayan Das Mehta, District Magistrate, Bhilwara in exercise of the powers delegated to me under rule 30(1) Cl. (b) of the Defence of India Rules, 1962 vide Government of Rajasthan Notification No. F. 7/1 (16) Home (A. Cr. 1) 63 dated the 4th November, 1963 and all other powers enabling in that behalf direct the Superintendent of Police, Bhilwara that Shri Durgadas Shirali be arrested and detained in the Bhilwara Jail until further orders."

3. On January 13, 1965 the order of the District Magistrate was reviewed by the Reviewing Authority who recommended that, the detention order dated December 29, 1964 should be confirmed. The State Government confirmed the detention order by its order No. F.7/1(19) Home (A-Cr. I)/65 dated January 22, 1965.

4. On behalf of the petitioner it was contended by Mr. Garg that the District Magistrate had not applied his mind to the specific activities of the petitioner and there was complete absence of material before the District Magistrate to suggest that the conduct of the petitioner would be "prejudicial to the Defence of India and Civil Defence, India s relations with foreign powers, public safety and the maintenance of the public order". It was, therefore, submitted on behalf of the appellant that the order of detention made by the District Magistrate was mala fide and illegal. Mr. Garg submitted, in the second place, that one of the grounds mentioned in the order of detention was that the petitioner was a member of the Leftist Wing of the Communist Party of India and Secretary of the local branch of that party at Bhilwara. The Leftist Communist Party has been carrying on anti-national and pro-Chinese propaganda and the District Magistrate was of the opinion that the Leftist Communist Party, therefore, constituted a real danger to external and internal security of the country. It was submitted by Mr. Garg that the Leftist Wing of the Communist Party had not been declared illegal or banned by the Government of India and the membership of the petitioner of the Leftist Communist Party of India was, therefore, not a relevant ground for the order of detention.

5. Before proceeding to deal with these points raised on behalf of the petitioner it is necessary to state that in Makhan Singh Tarsikka v. State of Punjab, AIR 1964 SC 381 this Court had occasion to consider the legal effect of the proclamati