ORDER
Kapur, J.
1. Saifl Kashmiri, a Muhammadan who originally belonged to Lahore, came to Delhi and on 29th October 1949 he was arrested under an order made by the District Magistrate of Delhi Under Section 3, East Punjab Public Safety Act (Act V [5] of 199) which has been extended to Delhi, On the same day, the detenu was supplied with reasons as required in Sub-section (5) of Section 8 and they were as follows:
You are an original resident of Lahore and came to Delhi after partition after having developed some differences with your father.
Since your arrival in Delhi you started a malicious propaganda against the Jamiat-ul-Ulema and Muslims. You have been acting on communal lines. Recently you Issued three posters which were very objectionable from a communal point of view. Your effort Is to deepen the differences between the population of displaced persons and the Muslim residents of Delhi. Your activities are prejudicial to public safety and maintenance of public order.
The period of detention was extended by three months by the Chief Commissioner of Delhi by an order, dated 15th November 1949.
2. On llth November 1949, the petitioner Khalifa Janki Dags filed a petition Under Section 491, Criminal P.C., asking for the issue of a writ in the nature of habeas corpus in regard to Saifi Kashmiri on the following grounds, and the rule was issued by Bhandari J., on l0th November 1949 : (1) That Saifi Kashmiri is a Nationalist Muslim who had to leave Lahore because he was opposed to the ideology of the League in Pakistan arid as a refugee settled down at Delhi, where he was working as a Secretary of the Refugee Rehabilitation Mandal and had begun to expose the activities of Jamiat-uL Ulema and the Ahrara and had issued three posters in regard to them; (2) that he had done nothing which was prejudicial to public safety or the maintenance of public order, because he was a law-abiding citizen who believed in the ideology of a Secular State and (3) that his detention was illegal and mala fide because it had been brought about at the instance of the Jamiat-ul.Ulema and the Ahrars who were exploiting the situation to their personal advantages.
3. The rule was issued by Bhandari J., on 15th November.
4. On 25th November 1949, Mr. Rameshwar Dayal, the District Magistrate of Delhi, made an affidavit in which he stated that he was satisfied from the material which had been placed before him that the detenu was engaged in starting a malicious propaganda against the Janiiat-ul-Ulema and Muslims on communal lines by issue of posters which tended to create hatred and differences between the population of displaced persons and the Muslim residents of Delhi and that it was necessary to do so in order to prevent him from acting in a manner prejudicial to the public safety and maintenance of public order,
5. By an order, dated 9th December 1919,1 called upon the District Magistrate to reply to the copy of the affidavit which Khalifa Janki Dass had made and drew bis particular attention to the translation of the posters which bad been put in by the petitioner,
6. Fresh affidavits have since been put in, one is by the District Magistrate himself who denies that he made the order of detention at the instance of the members of Jamiat-ul-Ulema, but he baa not said anything with regard to the three posters, copies of which must bave been sent to him, beyond this that be has no information about them. The Honourable Dr. Lohna Singh Sethi, Minister of Rehabilitation of the West Punjab Government has made an affidavit in which he has stated that Saifi Kashmiri who was known to the deponent for the last five years was a staunch Congressman and had come to settle down in Delhi because of the partition and that he had been meeting him in Delhi and also that he was, in the opinion of the deponent, a Congressman and a loyal citizen of India. This last bit, I do not think, is really admissible in evidence. Another affidavit has been made by the petitioner in which he has referred to a resolution which was unanimously passed by the East Punjab Provincial Congress Committee, but I am doubtful if this resolution is relevant to the issue now before me.
7. The real points in issue are, (1) whether the allegation made by the petitioner that the detention order was passed at the instance of the Jamiafc-ul-Ulema has been made out, and (2) whether the detention of Saifi Kashmiri is illegal on any grounds. With regard to the first, the District Magistrate, who is an officer of great experience, has definitely denied that the order was passed at the request or at the instance of the members of the Jamiat ul-Ulema or Ahrars, and I see no reason to doubt that statement. I cannot believe that Mr. Rameshwar Dayal would pass an order of this kind at the instance of the Jamiat-ul-Ulema or any other body. But the question still remains whether this detention order has been lawfully made Under Section 3 of the Act.
8. Section 3 (1) deals with power to arrest and detain suspected persons and it says:
The Provincial Government, the District Magistrate...if satisfied with regard to any particular person that with a view to preventing him from acting' in any manner prejudicial to the public safely or the maintenance of public order it is necessary so to do, may arrest etc., etc.
Sub-section (2) requires that the arrest shall be reported forthwith to the Provincial Government by the authority directing the arrest. That report does not seem to have been made in this case, at least none has been produced and it has been held that this is a serious defect which goes to invalidate the order of detention, but there is a still more important objection which has been. raised by Mr. Thapar. His submission is that the reasons given by the District Magistrate show : (1) that Saifi Kashmiri has a quarrel with his father; (2) that. he has started malicious propaganda against the Jamiatul-Ulema on communal lines and (3) that he has issued three posters which were objectionable from communal point of view, the effect of which is to deepen the differences between the displaced persona and Muhammadans of Delhi and for this reason the activities are prejudicial. In the first instance, he submits that the three posters which are referred to in the reasons and which he has produced do not show that he is doing any propaganda which would be called objectionable from a communal point of view, and if it does, then the case is not one o preventive detention but the action of the District Magistrate becomes punitive,
9. With regard to first matter, it is not open to me to adjudicate upon the fact whether these posters do or do not suffer from the defect which the District Magistrate ascribes to them. The sole judge of this is the District Magistrate. There is a large number of cases which had decided that and I need not refer to them. But, the objection taken on the ground whether the act is meant for preventive or for punitive purposes is an objection which has some force. It wa3 held in Bajirao Yamanappa v. Emperor A.I.R. (98) 1946 Bom. 82 : 47 Bom. L. R. 675:
The powers conferred on the executive under the Ordinance (that was the case under the Restriction and Detention Ordinance III [3] of 1944) are for the purpose of preventive detention and they are not punitive in their nature. The executive must not detain a subject in order to punish him for what he baa already done but in order to prevent him from doing something which in the opinion of the executive is likely to affect the safety of the State etc
Quite recently a Division Bench of the Calcutta High Court have also held that the power given under the Act is for the purposes of prevention and not for punishment. This judgment has not yet been reported, but Mr. Thapar drew my attention to a passage in one of the daily newspapers. In my opinion, the learned Advocate for the petitioner is right in saying that the Act can only be used for prevention and not for punishing of persons. In this case, if the District Magistrate was of the opinion that the detenu had started malicious propaganda and had issued posters which, according to him, were objectionable from 'communal point of view,' then it was open to him to take action against Saifi Under Section 153A, Penal Code or Under Section 108, Criminal P.C. The Act is not intended to suspend the ordinary criminal tribunals o the land or prevent them from exercising their ordinary jurisdiction. See Bajirao v. Emperor A.I.R. (33) 1946 Bom. 32 at p. 33 : 47 Bom. L. R. 675.
The reasons given seem to show that in the opinion of the learned District Magistrate the detenu has already done acts which would come within the phrase in Section 153A, Penal Code 'promoting or attempting to promote feelings of enmity or hatred between different classes of His Majesty's subjects.'
10. In this respect the action of the executive certainly is dehors the object of Section 3 of the Act and it could not legally be used for the purpose for which it has been used. In my opinion, therefore, the detention of Saifi Kashmiri is illegal and I must allow the petition, make the rule absolute and order that he be released forthwith.