P (PLP)

CONSTANTINE, J.‑

This is an application under section 491, Criminal Procedure Code, by Muzaffar Mahmood, son of Bazgul who has been detained under the Sind Maintenance of Public Safety. Act. The grounds furnished to him for his detention are that "he is a member of a gang of dacoits and an association of dangerous criminals. Mr. Ayaz on his behalf has argued that the case of Lalu Gope v. The Icing A, I R 1949 Pat. 299, applies to the facts of this case and should be followed. We do not agree. In the first place in that case, so far as can be gathered from the report, the Government Order apparently did not state that the Pro vincial Government had made it with a view to preventing the detenu from acting in any manner prejudicial to the public safety and the maintenance of public order, but merely on the ground that Government had good reason to believe that if he was allowed to remain at large, he would again indulge in thefts in railways. Here, in the present case, the Government order states specially that Government is satisfied as required by section 2 (1) of the Sind Act. Secondly, the learned judges in the Patna case held that indulgence in thefts in railways could by no stretch of reason amount to acting in a manner prejudicial to the public safety and maintenance of public order. Here, however, the applicant is charged, in the grounds furnished, with being a member of a gang of dacoits and it is common knowledge that dacoits often cause injuries to persons ineffecting their dacoity and recently a number of dacoities have taken place, clearly showing that it was the aim of certain gangs to attack persons carrying moneys to or from post offices, banks and business houses, activities which must be regarded as being prejudicial to the public safety and the maintenance of public order. A ground which Shearer, J., took, and against with Reuben, J., safeguarded himself, was that since Chapter VIII, Criminal Procedure Code, deals with habitual criminals, and since the prevention of crime is not, as such, an entry in the Provincial Exclusive List in the Government of India Act's Seventh Schedule, the Bihar Maintenance of Public Order Act; 1947, was ultra vires of the Provincial Legislature in so far it purported to empower the Executive to detain a man without a trial on the ground of being an habitual criminal. With respect; this reasoning does not appear to us any more than it did to Reuben, J. The pith and substance of the Sind Maintenance of Public Safety Act falls within entries "Public Order" and) "Preventive detention for reasons connected with the; maintenance of Public Order." The order of Government states that it is satisfied' that the activities of the detenu are such as prejudicial to the public safety and maintenance of public order. The detenu has stated that his detention is due to political spite that is, however, unsubstantiated by anything except‑ his own word, and the burden of proof lies upon a detenu who asserts that an order has been passed mala fide by the Provincial Government. The application therefore is dismissed. Since a learned judge of Patna High Court has denied the validity pro tanto of such Provincial Acts, the question is sub stantial in the sense of being debatable and that it is substantial as affecting the interest of the applicant is plain. We, therefore, certify that this case involves a substantial question of law .as to the interpretation of the Constitution Act. M.K.A. Application dismissed.