Case: Durgadas Shirali Vs. Union Of India And Others

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 asis 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 Pekings member. The party having been formed at Pekings 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, Indias 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.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.

Court's reasoning:
It was held by this Court that the sweep of Art. 359(1) and the Presidential Order issued under it is wide enough to include all claims made by citizens in any Court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce fundamental rights under Arts. 14, 19, 21 and 22.It was pointed out that during the pendency of the Presidential Order the validity of the Ordinance or any rule or order made thereunder cannot be questioned on the ground that it contravenes Arts. 14, 21 and 22. But this limitation cannot preclude a citizen from challenging the validity of the Ordinance or any rule or order made thereunder on any other ground.If the petitioner seeks to challenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of Arts. 14, 21 and 22, the Presidential Order cannot come into operation. It is not also open to challenge the Ordinance, rule a order made thereunder on the ground of contravention of Art. 19 because as soon as a Proclamation of Emergency is issued by the President under Art. 358 the provisions of Art. 19 are automatically suspended. But a petitioner can challenge the validity of the Ordinance, rule or order made thereunder on a ground other than those covered by Art. 358, or the Presidential Order issued under Art. 359(1). Such a challenge is outside the purview of the Presidential Order.In view of the affidavit of the District Magistrate it is not possible for us to accept the argument of Mr. Garg that the District Magistrate did not apply his mind to the specific activities of the petitioner and that he made the order of detention solely on the ground that the Leftist Wing of the Communist Party of India was carrying on anti-national and pro-Chineseare unable to accept the argument of Mr. Garg as correct. It is not correct to state that the activities of the Leftist Wing of the Communist Party cannot in any circumstances be illegal and would necessarily be irrelevant merely because the Government of India has not declared the party illegal or imposed a ban. In considering the question whether the petitioner was acting in a manner prejudicial to the Defence of India within the meaning of R. 30 of the Defence of India Rules it is open to the District Magistrate to take into account the reports which he had received as to the political association of the petitioner, his political friends and his political loyalties. In considering the circumstance that the petitioner was a member of the Leftist Wing of the Communist Party of India which, according to the said reports, was preparing for a widespread agitation with the object of establishing communist regime by subversion and violence the District Magistrate was not applying his mind to any irrelevant circumstance with regard to the need for detention of the petitioner under the Defence of India Rules. In our opinion, in the light of the reports received by the District Magistrate the political association of the petitioner and his membership of a particular political group is a relevant consideration in the matter of detention of the petitioner. This ground has close and proximate connection with the security of State and maintenance of public order as contemplated by R. 30 of the Defence of India Rules. In our opinion, Mr. Garg is unable to make goods his submission on this aspect of the case.