P L D 1955 Lahore 585 (PLP)

KAYANI. J.‑This is a petition by Hakim Muhammad Anwar Baberi wider section 491 of the Code of Criminal Proce dure, for the release of. Khan Abdus Sattar Khan Niazi, M.L.A., now confined it Central jail, Montgomery, from illegal and improper detention under the Bengal State Prisoners Regula tion, 1818. Mr. Mahmud Ali argued the case for the petitioner and Mr. S. A. Mahmud, Assistant Advocate‑General argued it for the Government. Mr. Mahmud Ali's first contention, with which alone we are dealing in this order, is that the warrant of commitment could not be issued by the Central Government and could only be issued by the Provincial Government. The warrant in question is addressed to the Chief Secretary to the Punjab Government by the Secretary to the Government of Pakistan and is thus worded:‑ "Whereas the Governor‑General for good and sufficient reasons, being reasons connected with the maintenance of public order, has been fit to determine that Maulana Abdus Sattar Khan Niazi, son of Zulfikar Khan shall be placed under personal restraint at any jail in the Punjab, you are hereby required and commanded in pursuance of that determination, to receive the person above‑named into your custody, and to deal with him in conformity with the orders of the Government and the provisions of the Bengal State Prisoners Regulation, 1818." This argument is based on the adaptation of the Bengal Regulation by the Government of India (Adaptation of Indian Laws) Order, 1937, which, by its preamble and by reason of section 293 of the Government of India Act, purports to be intended to bring the provisions of all laws in force in British India to accord with the provisions of the Government of India Act and "in particular" ‑this is from section 293 "into accord with the provisions thereof which reconstitute under different names governments and authorities in India and prescribe the distribution of legislative and executive powers between the Federation and the Provinces." The argument, in short, is that "preventive detention for reasons connected with the maintenance of law and order" having been made a provincial subject by the Government of India Act, (Schedule VII, List II, item 1), it was necessary to adapt the Regulation so as to hand over certain powers to the Provincial Governments. Section 2 of the Regulation stated before the adaptation that when for reasons given in the preamble the Governor General in Council found it fit to place any person under personal restraint, a warrant of commitment under the authority of the Governor‑General in Council and under the hand of the Chief Secretary, or of one of the Secretaries to Government, shall be issued to the officer in whose custody such person is to be placed. As adapted, it stands in the following form : Section 2. "First.‑When the reasons stated in the preamble of this Regulation may seem to the Government to require that an individual should be placed under personal restraint, without any immediate view to ulterior proceed ings of a judicial nature, a warrant of commitment shall be issued by the Government to the officer in whose custody such person is to be placed." "Second.‑The warrant of commitment shall be in that one of the forms set out in the Appendix to this Regulation which is appropriate to the case". "Third.‑The warrant of commitment shall, in relation to a person to be confined for reasons connected with defence, external affairs or the discharge of the functions of the Crown in its relations with Indian States, be‑ sufficient authority for his detention in any fortress, jail or other place in any Governor's Province or Chief Commissioner's Province, and in relation to any person to be confined for reasons connected with the maintenance of public order in a Province shall be sufficient authority for his detention in any fortress, jail or other place in that Province." The words "Governor‑General in Council" have now been replaced by "the Government" and a new section, namely, section 7‑A, has been introduced, which explains in sub section (3) that reference to "the Government" shall be construed in accordance with subsections (1) and (2). Thus: Section 7‑A (1). ‑"Where a person is, or is to be, confined in a Governor's province under this Regulation for reasons connected with defence, external affairs or the discharge of the functions of the Crown in its relations with Indian States, the warrant of commitment, and any orders as to his release or the place of his detention shall be issued by the Central Government and the amount of the allowance to be fixed for his support shall be fixed by the. Central Government to, and applied by, the Provincial Government ; and all reports and representations to be made under the foregoing provisions of this Regulation shall be submitted and forwarded both to the Central Government and the Provincial Government. (2) "Subject as aforesaid, all things to be done by or to the Government in relation to any persons confined or to be confined under this Regulation shall be done by or to the Provincial Government." (3) "References in the preceding sections of this Regu lation to the Government shall be construed in accordance with the foregoing provisions of this section." Mr. Mahmud Ali argues for the petitioner that where a person is to be confined for the three reasons stated in sub section (1) namely, (i) defence,, (ii) external affairs, or (iii) the discharge of the functions of the Crown in its relations with Indian. States, the warrant of commitment is to be issued by the Central Government but that "subject as aforesaid, all things to be done" by "the Government" shall be done by the Provincial Government, as required by sub section (2), and "all things to be done" include a warrant of commitment for reasons connected with the maintenance of public order, which is one of the four reasons stated in section 2., clause third for the issue of Warrants under the Bengal Regulation. He argued further that the very fact that a warrant of the fourth kind can authorise detention only in a fortress, jail or other place in that particular Province shows that only the Provincial authority could issue it ; but this, in our opinion, is no conclusive indication. The argument based on section 7‑A, however, is force ful. There is no doubt that only four kinds of warrants for personal restraint can be issued under the Regulation and that subsection (1) of section 7‑A provides for three only. It should follow that subsection (2) provides for the fourth kind, and if that is so, only the Provincial Government can act. The learned Assistant Advocate‑General thought that while it was true that subsection (1) reserved the first three subjects for the Central Government, subsection (2) did not contemplate a warrant of the fourth kind and was intended merely to cover other orders not provided for in subsection (1) but which might be made under sections 3, 4 and

5. Warrants of the fourth kind could be issued both by the Central and the Provincial Governments and were autho rised by section 2, First. It is true that the authority to issue warrants of all the categories lies in section 2, First, but we have seen that in order correctly to interpret the word "Government" used in section 2, we must, as desired by subsection (3), section 7‑A, advert to subsections (1) and (2) thereof. It should, therefore, be understood that sub sections (1) and (2) are exhaustive of all warrants and orders that can be issued by the Government under "the preceding sections of this Regulation" subsection (3), and not merely under sections 3, 4 and 5, and that whenever you want to know whether the word "Government" used in these sections means the Central or the Provincial Government, you should turn to those two subsections. Secondly, the words "all things to be done by or to the Government" in subsection (2) should really mean all things, not "all things minus the warrants." If, as contended by the Assistant Advocate‑General, the Central Government also has power to issue a warrant for reasons connected with the maintenance of public order, then, since the words "all things to be done by or to the Govern ment" in subsection (2) relate to orders other than those mentioned in subsection (1) of section 7‑A, an order of release in such a case can be passed only by the Provincial Government. It will have been noticed that under section 7‑A subsection (1) an order of release in the case of prisoners of the first three categories can be passed only by the Central Government, and since under subsection (2), all other things to be done in relation to persons confined or to be confined under the Regulation can be done only by the Provincial Government, an order of release in respect of a prisoner detained for reasons of public order can be passed only by the Provincial Government. It follows that, although both the Central and the Provincial Governments can issue a warrant of commitment in the case of such a prisoner, oily tile. Provincial Government can pass an order of release. In tile case of Mr. Niazi, therefore, an order of release could be passed, at once by the Provincial Government without reference to the Central Government. This could hardly be the intention of section 7‑A. But above all, and apart from any verbal interpretation, the intention of the adaptations of 1937, as expressed in the preamble and implicit in the content of the Regulation seems clearly to be to effect a division of functions between the two Governments, in accordance with the distribution of legislative powers recognised by the Government of India Act. In the language of section 100, subsection (3) of that Act, "the Provincial Legislature has, and the Central Legis lature has not, power to make laws for a province or any part thereof with respect to any of the matters enumerated in list II" in the Seventh Schedule, and we have already seen that the words of item 1 of that List‑"preventive detention for reasons connected with the maintenance of public order" ‑are identical with the words used in section 2, Third, of the Regulation in relation to a warrant of the fourth category. Next, under section (1) of section 100 of the Government of India Act, the Federal Legislature has, and a Provincial Legis lature has not, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule", and the first item on List I includes, among other things, "preventive detention in British India, for reasons of State connected with defence, external affairs or the discharge of the functions of the Crown in its relations with Indian States" identical with the words used in section 2, Third, above in relation to warrants of the first three categories. So far the argument based on the intention of the Adaptation Order seems to be conclusive, because under section 8 of the Government of India Act, the execu tive authority of the Federation extends to the matters with respect to which the Federal Legislature has power to make laws, "provided that the said authority does not, save as expressly provided in this Act, extend in any province to matters with respect to which the Provincial Legislature has power to make laws", and the proviso would cover both the Concurrent and the Provincial Lists. Conse quently, any argument that may be based on the amendment of the Concurrent List by the Government of India (Second D Amendment) Act, 1952, which brought "preventive detention for reasons connected with the maintenance of public order" on List III, will have no force, unless there is an express provision in the Act that the executive authority of the Federation will, in any particular case,, extend to matters with respect to which the Provincial Legislature has power to make laws. The only effect of the amendment of the Concurrent List is that the Central Government can concur rently with the Provincial Government legislate on the matters aforesaid. Mr. Mahmud pointed out that under section 12 of the Government of India Act, 1935, before its adaptation in 1947, the Governor‑General had certain special responsi bilities including "the prevention of any grave menace to the peace or tranquality of India or any part thereof", and argued that for the discharge of these responsibilities it was necessary that he also should have power to issue detention warrants for reasons connected with public order. In the discharge of his special responsibilities, however, the Governor‑General acted in his individual judgment (subsection 2, section 12), and if he found it necessary to take immediate action for the discharge of these functions, he could promulgate ordinances under section 43 ; but if immediate action was not necessary, he could enact what was called a Governor‑General's Act under section 44, with or without the blessings of the legisla ture. That subject is foreign to the "executive authority of the Federation" spoken of in section 8 and exercised with reference to the three Legislative Lists. Mr. Mahmud next contended that the jurisdiction of the High Court was barred by subsection (3) of section 491, Code of Criminal Procedure, which is as follows :‑ "Nothing in this section applies to persons detained under the Bengal State Prisoners Regulation, 1818 . . . ." We did not expect such contention to be raised in view of the volume of authority which exists in favour of the view that in order to exclude the jurisdiction of the Court by reason of such provisions, it must be shown that the order is under the Act or Regulation. Emperor v. Vimalabai Deshpande (A I R 1946 P C 123) provides one illustration. By section 16, subsection (1) of the Defence of India Act, no order made in exercise of any power conferred by or under the Act could be called in question in any Court. The Privy Council pointed out that if the orders made by the Government were invalid, they were not made in exercise of powers conferred by or under the Act. The two cases upon which Mr. Mahmud relied should be clearly interpreted against him. The first is Ex‑Rana Birpal Singh v. Emperor (AIR 1946 F C 2) where the ex‑Rana had been detained under the Bengal Regulation for reasons bearing on relations with Indian States. It was there held that "once the Court is satisfied that a person is being detained under Regulation 3, there is no jurisdiction under section 491 which the Court can exercise in the matter." In other words, the Court has to satisfy itself that detention is under the Regulation. Their Lordships further observed that "something more than allegations that a person is being illegally or improperly detained under Regulation 3 is necessary before the Court can get over the bar of jurisdiction under the section imposed by subsection (3)". But they did go into the contention set up on behalf of the petitioner that the petitioner was in fact not a person to whom Regulation 3 applied, on the ground that he was a ruler of a State. On the evidence before them, their Lordships held that the petitioner was not a ruler at the relevant time. It is clear, however, that the question whether Regulation 3 applied, to a person was regarded by the Federal Court to be within ‑the competence of the High Court. How can it then be argued that the question whether the authority passing the order was a proper authority under the Regulation is not a question into which an enquiry can be made ? The second case is Sir Gulab Singh v. District Magistrate, Dehra Dun (A I R 1950 All. 11) where the question only was whether the adaptation of the Regulation by the Government of India after the partition was intra vires. The answer was in the affirmative, and the judgment concluded thus : "Once we arrive at the conclusion that the impugned Adaptation Order was valid, then by virtue of subsection (3) of section 491, Criminal P. C., our jurisdiction is barred and we cannot afford any relief to the petitioner." There is nothing in this judg ment apart from this observation which has been relied upon by Mr. Mahmud. It is clear, however, that their Lordships did go into the question whether the adaptation was valid, and this naturally meant that the validity of the warrant of detention, although purporting to have been issued under the Bengal Regulation, was questioned, whether for one reason or another. It is, therefore, not enough that a warrant should purport to have been issued under the Regulation in order to exclude the jurisdiction of the High Court. It must be truly a warrant which is authorised by the Regulation. A case directly in point is Rana Birpal Singh v. Emperor (A I R 1949 Bom. 161) where the petitioner was detained "for reasons connected with the discharge of the functions of the Crown in its rela tions with Indian States" before the Partition: After the Partition, the Regulation was so adapted in India that "reasons connected with the discharge of functions of the Crown in its relations with Indian States" were substituted by "reasons connected with relations with acceding States". It was held that since the former reasons had no existence at the time when the petition was made, the warrant was entirely outside the Regulation as it now stands, and the detention was, there fore, not under the Regulation. Section 491 (3) was not a bar to the High Court's ascertaining whether a detention was in fact a detention under the Bengal Regulation. "Whether‑, a detention was or was not under the Regulation was matter of substance and was not concluded by the circumstance that the Regulation is mentioned in the warrant." We, therefore hold that the warrant in question is not a warrant under the Regulation and that, consequently, Mr. Niazi is not being detained under a valid warrant. We direct that he be set at liberty. A. H. Petition accepted.