P (PLP)

This question had come up before the Lahore High Court in three cases, in which similar objection as to the jurisdiction of the High Court to entertain an application under section 491 Criminal Procedure Code had arisen. In 1948 Lah. p. 87 a ruling referred to by the learned Crown counsel ; Bhindari, J. while dealing with this question had observed " the object of habeas corns " is to enable the Court to inquire into and determine the legality of the detention of a person who is restrained of his liberty. As a person is entitled to be at liberty unless he is restrained by process of law initially the owns of proof lies on the Custodian to establish that the restraint is under the legal process. If he fails to make out a Prima facie case the detenu must be released. If on the other hand he produces an order which shows on the face of it that the detention is legal, the burden of proof shifts and the detenu must prove all the facts necessary to show that the restraint is illegal. In view of the legal maxim that all acts are presumed to have been done rightly and regularly the facts set out in the return submitted by Provincial Government in response to the writ are Prima facie presumed to be true unless this presumption is rebutted by the production of convincing evidence to the contrary. (1883) 11 Q. B. D. 440 rel on. It further on proceeds:‑ Where a person is ordered to be arrested under section 3, whether the authority issuing the order is " satisfied " within the meaning of that section must be proved by a subjective, and not by an 'objective test because the authority making the order has access to exclusive sources of information he is one of the high officers of State who by reason of his position is entitled to public confidence in his capacity and integrity and there is no justifiable Issue in cases of this kind but merely an exclusive act which is not open to legal review. Where, therefore, in response to a writ of habeas corpus the Provincial Government produce an order of arrest under section 3 that is complete answer to a writ unless the good faith of the Provincial Government is successfully impugned and as the order is issued under section 3 it must be presumed that the fundamental requirement of law have been complied with and that the detention is not illegal. 1942 A. C. 206 fol. The judgment further proceeds and the learned judge states: Where the Governor who is a Provincial Governor in the section 93 regime, says, that he is satisfied, his order is sufficient prima facie proof that he has acted lawfully and that the detention of the person detained under the order is not illegal, because, in the absence of proof to the contrary, credit should be given to public officers who have acted prima facie within the limits of their authority for having done so with honesty and discretion. Where the Governor makes an order under section 3 the question whether he had satisfied himself personally must be determined from the order itself, and if it says that the Provincial Government was satisfied and the Provincial Government is the Governor under section 93 regime, in the absence of evidence to the contrary that recital must be presumed to be true. In another case Suraj Parkash Ram Lal v. Emperor 1948 Lah. 84 Mohammad Munir, J. carne to the same conclusion though in a different language. He had held that in a petition under section 491 Criminal Procedure Code the first point to remem ber is that every arrest or detention is illegal unless authority for it is shown by the arresting or detaining authority. Where in an application under section 491 Criminal Procedure Code an allegation is made that a person who has not committed any offence has been arrested or detained, the High Court cannot but issue a writ requiring the Crown to show the authority for arrest or detention. If in reply to such writ the Crown cannot show the order directing the arrest but produced only an order of detention and an affidavit of the officer who effected the arrest under , subsection (1) of section 3 of the Act or an order of detention under subsection (2) of section 3 of the Act committing the person arrested to custody, the petitioner can require the attendance of the officer arresting or directing the arrest of the detenue with a view to cross‑examining him in regard to averment in the affidavit and it is only after cross‑examina tion that the Court is in a position to determine whether the arrest was or was not within the limits of subsection (1) of section 3 of the Act. Upto this stage the onus of justifying the arrest is throughout on the prosecution, not by reason of the fact that the objected official act was performed in exceptional circumstances. Sequel to illustration (e) to section 114 Evacuees Act but because the Crown does not produce any record of the official act containing the recital that the authority arresting or directing the arrest was satisfied that it was necessary to arrest the person with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of the public order. What is questioned in such cases is the original arrest and therefore the order of committal to custody drawn up under subsection (2) of section 3 of the Act does not raise any presumption in favour of the regularity of the original arrest. The Court, therefore, proceeded to cross‑examine the person arresting the petitioner and after considering his statement concluded that there was no proper compliance of law in that case and ordered the release of the petitioner: It may be pointed here that in other cases before the same learned judge where the order' directing the arrest was produced and the order was found on the face of it in conformity with the provisions of the Act ; and there were no allegations of mala fide or extraneous grounds for arrest, the applications were rejected. The following observations indeed' can be of great 'help in tackling with such a question :‑-- When an application under section 491 is made against the arrest under section 3 Punjab , Public Safety Act in determin ing whether the arresting officer was personally satisfied that it was necessary to arrest the detenu with a view to preventing him from acting in a manner prejudicial to the public safety or the maintenance of the public order, the Court cannot substitute its own judgment for the judgment of the arresting officer nor can the Court go into the question whether the grounds on which the arresting officer acted were reasonable or sufficient inquiry into any such‑ question being barred by section 43 of the Act. The short but difficult task which the Court has to perform in such cases is to read the mind of the arresting officer and if keeping in view the attendant facts the Court can accept the arresting officer's averments that he effected the arrest because he was satisfied that it was necessary to do so with a view to preventing the man concerned from acting in a manner prejudicial to the public safety it must discharge the rule, however poor, illogical or absurd, the grounds on which the officer acted may be, it not being a condition precedent to such arrests that the arresting officer had reasonable grounds to believe or reasonable suspicion against the person that unless arrested he would act in prejudicial manner. In a third case of the like nature it was alleged by the petitioner in his petition under section 491 Criminal Procedure Code, that his arrest was mala fide and not in accordance with the provisions of law. In that case the learned Single Judge, after the Crown produced all the relevant papers in response to the writ issued in the Crown went into the question raised by the detenu. On facts the learned judge after examining the relevant evidence held that the detention in police custody of the petitioner was not for its own sake ; it had a different meaning and purpose. He, therefore, held the detention illegal. But at the request of the Advocate‑General the matter was referred to the consideration of the larger Bench, as it was a question of far reaching consequence. The question before the Division Bench was whether the Court could go beyond the order under challenge and inquire into the allegations made by the petitioner under section 43 of the Punjab Act II of 1947. The observations of the Division Bench were to the effect :‑It is true that there is in the present case an official record which recites that the authority which directed the arrest was satisfied that it was necessary to arrest Mohammad Hussain Ata with a view to preventing him from acting in a manner prejudicial to the public safety and that record may give rise to the presumption that Ata was in fact arrested for the reason stated therein. But the 'presumption is not one of law and the Court need not raise it in all cases. Further, the presumption if raised is rebuttable by proof to the contrary. The learned Government Advocate depended on certain authorities in support of his contention. One of which 1948 Lab. 87 has already been discussed by me. 1934 C. 259 is besides the mark and has : no relevancy to the case before the Court. The observations on, page 267 of the report makes the matter clear. It was observed by the learned Judges:- Mr. Chaudhry on behalf of the petitioner has given us an elaborate disquisition on the history of the prerogative writ of habeas corpus. But section 4 Government of India Act VIII of 1932 lays down that " the powers conferred by section 491 Criminal Procedure Code 1898 shall not be exercised in respect of any person arrested committed to or detained in custody ", under the Bangal Criminal Law Amendment Act 1930 and the said Act was supplemented by Act VIII of 1932. It is not necessary for me to state in detail the reasons here which are given in that judgment to exclude the operation of section 491 Criminal Procedure Code in cases falling under the Bengal Acts quoted above. There were clear safeguard provided in those Acts for the protection of the liberties of the subject and they were that before any action could be taken by the executive under those Acts against any person his case had to be considered by a committee including two District and Sessions judges. 1926 Lah. 1, 6 is equally irrelevant. That referred to an extradition case and it was found as a fact by the learned judicial Commissioner that the arrest of the petitioner was perfectly legal. In those conditions section 491 Criminal Procedure Code became by .its very terms inoperative to that case. 1940 Lah. 129 has not an iota of relevancy to the point raised by the learned counsel. There the question was with respect to section 162 Criminal Procedure Code and section 27 of the Indian Evidence Act and whatever the observations were made with regard to the power of the Legislature to enact certain law, the language used there and the interpretation placed thereon by the Court referred to .a point which stands pole asunder from the difficult point before me. The last ruling quoted by the learned counsel 1943 Bom. 143 is of no assistance to him of all authorities quoted by the learned counsel for the Crown only two‑that is 1948 Lab. 87 and 1943 Born. 143 have relevancy to the point before the Court and both the rulings lay down a proposition which goes against his 'contention. Mr. Suharwardy addressed lengthy arguments to me on this point and cited a large number of authorities in support thereof. I have gone into them and find that the rule of decision on the point in controversy before me in those authorities is one and the same. I would therefore, touch" a few out of them so as not to burden the judgment unnecessarily. The authorities quoted at the Bar by the counsel refer to section 16 and Rules 16 and 129 of the Defence of 'India Act and Rules respectively. Section 16 of the Defence of India Act is analogous in terms to section 89 of the Lodal Act and the question in all those cases before the Courts was, whether the said section ousted the jurisdiction of the High Court in cases under section 491 Criminal Procedure Code. Before taking up those authorities I have to consider the effect of Clause 2 of the Firman Mubarak published in the Extraordinary Gazette dated 23rd February 1946 which according to the contention of, the learned counsel firmly establishes the rights of the subjects of His Highness to seek their redress under section 491 Criminal Procedure Code. Clause 2 of the said Firman reads:

‑that every person in our State shall have the right of writ of habeas corpus as' provided in Section 491 Criminal Procedure Code. Such rights may be suspended as may be prescribed in case of War, rebellion or serious. internal disorder. The learned counsel requested me to read Clause 3 of the Firman along with Clause 2. ' Though I consider that it would not be improper to read the two clauses together, yet I do consider it very necessary to do so as Clause 2 is very clear in its terms and repeats the privilege which according to me already existed and is not taken away by section 89 of the Act. It was contended by the learned Crown counsel that Clause 2 of the 'Firman cannot override; the provisions of section 89 of ‑the Bahawalpur Security Act and in support of his contention he has drawn my attention td the observations appearing on page 156 of Maxwell on the Interpreta tion of Statutes 8th edition. It is stated by the learned author that" a general later law does not abrogate an earlier special one by mere implication ". I have no quarrel with this proposition and therefore do not agree with the contention of Mr. Suharwardy that Clause 2 of the said Firman has enlarged the powers of the Court to the extent of ignoring the provision of section 89 of the Local Act in its entirety. In other words the powers of the High Court under section 491 Criminal Procedure Code with respect to section 89 of the Local Act are the same which existed before the promulgation of this Firman in other words they are neither increased nor decreased. The question is what are those powers. I have already considered this question in the light of the rulings quoted above. I am, however; of opinion that the authorities which are presently to be considered by me, make the point still more clear. I have stated, above that the authorities quoted by Mr. Suharwardy refer to an analogous law appearing in section 16 of the Defence of India Act. It was a War measure and was extensively applied and consequently gave rise to innumerable applications under section 491 Criminal Procedure Code and the effect of that section. On that section 16 of the Defence of India was the subject matter of each and every case; though those cases involved also other very important and intricate question with which this Court has no concern. Now in order to appreciate the arguments of the learned counsel and the decisions cited in support of those arguments it is essential to bear in mind the language of section 16 of the Defence of India. It reads:

No order made in exercise of any power conferred by or under this Act shall be called in question in Court. (ii) where an order purports to have been 'made and signed by any authority in exercise of any power conferred by or under this Act, a' Court shall, 'within the meaning of the Indian Evidence Act, 1872, presume that such order was so made by that authority." It would appear that Clause 1 of the section 16 is analogous in terms with section 89 of the Act. In 1943 F. C. 73 the question of the power of the Court to go into the validity of the order of detention was railsed and Spens. C. J. disposed it of in the following terms :‑Section 59 (2) prohibits a duty authenticated order being called in question on one and one ground alone , namely, that it is not an order or instrument made or executed by the Governor. It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order particularly where that recital purports to state as a fact the carrying out of a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will in the absence of any evidence as to its inaccuracy be accepted by a Court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on tile detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate. If, however, in any cave a detenu can produce admissible evidence to that effect the mere existence of the recital in the order cannot prevent the Court considering such evidence and if it thinks fit corning to a conclusion, that the, recital is inaccurate. in the body of the judgment it is observed under the English practice, on 'an application for a writ of habeas corpus the respondent might state his reasons in justification' of the detention either when showing cause in the order nisi or when making a return to the writ of habeas corpus. In 1943 All. 277 F. B. a student of a College was arrested under section 4 and 5 Explosive Substance Act and Rule 129 of the Defence of India Rule. An application under section 491 Criminal Procedure Code was made on behalf of the arrested person to the High Court for his release. The judgment of the Full Bench was written by Iqbal Ahmad, C. J. while dealing with the applicability of section 491 Criminal Procedure Code to cases of the type covered by section 16 of the Defence of India Act, the C J. observed:‑The powers conferred on the High Court by section 491 are very wide and impose on the Court the duty of protecting tire liberty of His Majestys subjects. That power and duty has however to be exercised and discharged on certain fixed judicial principles and not in an arbitrary manner. The jurisdiction vested by Clause (b) can be exercised only if the Court is satisfied that the detention is illegal or improper. In the consideration of the question all that the Court has to see is whether or not the detention is in conformity with the dictates of law. It is how ever clear that in cases in which even though the forms of law have been observed, the detention constitutes a clear fraud on an enactment or amounts to an abuse of the powers given to the executive by the Legislature it is the duty of the Court to step in and to order that the person detained be set at liberty. If however, after entertaining an application under that section it transpires that the detention is not illegal or improper the application will fail on merits. In 1943 Nag. 26, a similar question arose as the learned Advocate‑General had pleaded that, section 16 of the Defence of India was a bar to the High, Court to entertain the petition under section 491 Criminal Procedure Code by the person detained. The position of the Advocate General was not accepted. The learned judge proceeded to state "But to examine the contention more closely must the applicants necessarily fail, that is to say is there nothing left into which the Courts enquire. The learned Advocate -General relying on (1941) 3 All. E. R. says no. He says it is enough for the Crown to produce the order of detention. Thereafter, there is nothing left for the Courts to do but to dismiss the petition. Again I do not agree. After considering the well‑known ruling quoted by the learned Advocate‑General the `learned judge had observed. As I understand (1941) 3 All. E. R. 338, the House of Lords 'do not hold that the jurisdiction of the Court is wholly barred and that there is nothing left for them to' investigate. It is true they hold that a lot is cut away, and that very hith is left, but I understand them to hold that there is a residue and that residue must be investigated when that issue is, raised. After discussing the dissenting view of Lord Atkins and the unanimous view of the other Lords, the conclusion arrived at was that the rights conferred by section 491 subsit and will continue to substantial either the section is expressly or by necessary implication abrogated, or the rights are expressly taken away. Some limit must be placed upon claims to the arbitrary exercise of absolute power in the matters connected with the restraint of a man's liberty, and unless such powers are unmistakably conferred either expressly or by means of implication, they must be taken at the very best to be subject, to the rights of a person detained to come before the High Court under section 491 and complain of that detention and demand that he be either dealt with according to law or be set‑ at liberty notwith standing that the Defence of India is a War measure. Section 16 requires that the order is passed in the exercise of the power conferred by the Act and not merely in colourable exercise of such power. It is not enough that the order should be passed under colour of the power conferred. They must be done in actual exercise of it and no power is conferred to make such order in bad faith or in abuse of the Act or for the purpose of affecting a fraud on the Act and consequently the issues must be investigated if they are raised. It may well be in the result that investigated will be difficult perhaps almost impossible to prove bad faith, especially with the limitation which (1941) 3 All. E. R. 3138 imposes ; but if the House of Lotas consider that the issue if raised, must be tried, it is not for Courts in India to shrink from the task, however, difficult or disagreeable it may be. Lord Atkins while delivering the judgment of the Privy Council in (1931) A.' C. 662 ' bad observed at page 670. " In accordance with British. Jurispru dence no member of the Executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the Executive ". In '_944 F. C. p. 86. . A question had arisen whether the Legislature was competent by section 10 of (Ordinance 3 of 1944) to interdict the powers of the High Court under section 491 Criminal Procedure Code. It was held, section 10 does not purport to repeal section 491 Criminal Procedure Code. It. would be too much to maintain that no Ordinance could contain any provision inconsistent with a provision contained in any Act of .the Legislature. Section 491 Criminal Procedure Code confers a certain power or jurisdiction on the High Court, and all that section 10 of the Ordinance does is to interdict the High Court from exerci sing, that power or jurisdiction in a certain class of cafes and this was permissible for the ' Ordinance making, authority to do. But it does not follow from that that the Court can no longer consider the validity of an order which on the face of it appears or purports to have been passed under rule 26 Defence of India Rules. No further curtailment of the power of the Court to investigate and interfere with orders of detention has been imposed by Ordinance 3 of 1944. The Court is and will be still at liberty to investigate whether an order purporting to" have been made under Rule 26 and. now deemed to be made under Ordinance 3 of 1944 was in fact validly made inexactly the same manner as immediately before the promulgation of the Ordinance. If on consideration the Court comes to the conclusion that it was not validly made on any of the grounds indicated in the long line of decisions in England and this country on the subject other than , the ground that Rule 26 was ultra wires, section 10 of Ordinance 3 of 1944 will no more prevent, it from so doing than section 16 ; Defence of India Act did. Such an invalid order, though purporting to be an order will not in fact be in "order made under the Ordinance " or having effect by virtue of section 6 as if made under the Ordinance at all for the purposes of section

10. It is therefore not correct to say that the Ordinance has taken away the power of the High Court to pass any order under section 491 Criminal Procedure Code and that the proceedings must be treated as discharged under the provisions of section 10' (2) of the Ordinance. See in this connection 1945 Nag. 203 where exactly the same question had arisen and was' decided against the Crown. 1945 Nag. 8, 24 and 25, 1944 Lah. 34 ; 1945 Oudh 222 and 1945 P. C. 1945 Pat. 44 may be read with advantage. It was no doubt contended by Mr. H. S. Suharwardy that as the language of section. 3 of the West Punjab Act is different from the language of section 73 of the Local Act, the test applied by the Lahore High Court to judge the value of the order passed under section 3 of the Punjab Act does not apply to the present case. In section 73 of the State Act, be urged, it is not " the satisfaction " of the "Government " as in the case of section 3 of the Punjab Act, where no doubt the word " Governor " is used for the " Government ". Accord ing to the language of section 73 the material and‑ the grounds which lead the Government to consider that for. reasons of State or the preservation of peace and tranquility in the territories o the State, which render it necessary for the Government to place a person in restraint must be placed before the Court. I am unable to agree with the contention of the learned counsel. The object and the spirit of the law in both the cases is one and the same though expressed in different language. It was held in. Emperor v. Shivnath Banerji, 1943 (P. C.) that the Court can not investigate into the sufficien cy of the material or the reasonableness of the grounds upon which the Government had been satisfied. In discussing this question, Sen J. had observed " ordinarily the ipse dixie of the Governor would be enough and it would be difficult for any one to prove that the Governor was not in fact satisfied when he stated he was. The matter was still more made clear in 1943 Nag. 26, where the Judges had held, there is no substantial difference in meaning between the two phrases " has reasonable cause to believe " or is satisfied. After giving my due consideration to the arguments on both sides and going into the authorities cited at the Bar, the conclu sion to which I arrive at are :‑-- The power of the High Court under section 491 Criminal Procedure Code is abridged to a certain extent in the presence of section 89 of the Bahawalpur State Public Safety Act 1944, but is not taken away in its entirety. The High Court is, therefore, competent to call upon the Crown under its residuary power to produce all the relevant papers before the Court. If in response to the writ so issued, the Crown places on the record all the relevant papers prepared in conformity with the provisions of section 73 of the Act, the initial burden placed on the Crown is discharged as it is for the Government to see reasons of State or the preservation of place and tranquility in the territories of the Bahawalpur State that render it necessary to place under personal restraint any person and not for the Court. If in such cases, therefore, no allegations of male fides on the part of the Crown are made by the petitioner the petition under section 491 Criminal Procedure Code should be dismissed as the initial burden placed on the Government stands discharged. If on the other hand the challenger makes the allegations of mala fides on the part of the Government or of extraneous circumstances which prevailed on the Government to make the order of restraint or of fraud on the Act and so forth ; the burden of proof shifts on him and the duty is cast on the Court to try the issue in spite of the fact that no presumption in favour of bad faith dishonesty or fraud exists, least of all when they are attributed to an officer of the State See A. I. R. 1945 Pat.

44. If after trying that issue the Court is of the opinion that the burden placed on the petitioner is discharged, it should accept the petition and release the detenu. If on the other hand the petitioner fails to discharge the burden the petition under section 491 Criminal Procedure Code should be dismissed. In a recent unreported case Ghulam Mohammad Khan v. Grown the copy of whose judgment was produced by the learned counsel of the petitioner, the Chief Court of Sindh tried such an issue and after considering the evidence therein accepted the petition. In face of these conclusions the important point which finally arises for consideration is whether the two warrants of detention placed by the ‑Crown on the file were issued in conformity with the provisions of section 73 of the Act, in other words they were issued by a competent authority. In deciding this question we have again to refer to the language of the said section.

1. When reasons of state or the preservation of place and tranquility in the territories of the Bahawalpur State or of a declared State or in British India render it necessary to place under personal restraint any person it shall be lawful for the Govern ment to order that such person, shall be placed under personal restraint during the pleasure of the Government and such person may be detained in any fortress, jail or other place under the authority‑of the Government. It is not necessary to reproduce Clause 2 of the section. The controversy between the parties centres around the word " Government " used in the said section. The contention of the learned counsel of‑the petitioner was that according to the General Clauses Act the Government means the Governor, and as there is no Governor, hence Government in this section means His Highness the Nawab Ruler Bahadur. I do not agree with him. According to Clause (6) of Subsection

2. Section 2 of the Act, " Government " means " The Government of His Highness the Nawab Ruler Babadur ", According to Clause (12) of the same subsection, " Ruler means His Highness the Nawab Ruler Bahadur of Bahawalpur State or any other authority legally exercising the powers of the Ruler in the State ". There is no reference throughout the Act to His Highness the Nawab Ruler Bahadur and no function for carrying out the purposes of this Act is assigned to His Highness. His. Highness was therefore, defined in the Act for the purposes of defining the word " Government " and for, no other purpose. In the ordinary dictionary meaning the word Government " means `' persons governing the State ". In other words unless otherwise defined in an enactment, Government cannot ordinarily be treated to have been constituted by one person, but by more than one person. This negatives the idea that the " Government for the purposes of this Act is A. M. the Prime Minister of Bahawalpur State. If that bad ''been the object of the Legislature ; then " Government could easily be defined as Prime Minister of Bahawalpur Government. I find no difficulty therefore, in coming to the conclusion that neither His Highness the Nawab Ruler Bahadur is contemplated to be " Government " for the purpose of this Act, nor A. M. Prime Minister, now Wazir‑i‑Azam but some other person who that person is not defined or proved by the learned Crown counsel. To my mind the learned counsel found himself in a fix when he was called upon to clear this point. He, however, could lay his hand on a copy of Rules and Orders for the transaction of business of the Government of Bahawalpur of the year 1949 and on a copy of Extra, ordinary Gazette No. 5 dated 23rd January 1949. In the first instant, those documents are absolutely irrelevant' for our purposes as they refer only to the discharge of ordinary routine business of the executive nature, they can have no relevancy to the Act before us and cannot control its provisions. It was only under section 90 of the Act. That the rules of business could be framed to carry out the objects of the Acts. Section 90 reads:

1. The Government may make such rules as may be necessary for carrying out the object of this Act and from time to time to repeal, alter and to such rules.

2. All such rules and all repeals and alterations thereof and additions thereto shall be published in the Gazette. Now the presence of section 90 in the Act makes it amply clear that the Rules of Business in which the learned counsel could lay his hand can in no manner take the place of the Rules of Business which could be framed under Section 90 of the Act. It would mean therefore, that the Rules of Business referred to above have no relevancy to the present case. No Rules of Business were made under section 90 of the Act the Court has thus to depend on section 73 of the Act alone and according to that section all functions are to be performed by the Govern ment alone and not by an individual officer, whether as a member of the Government or in any other individual capacity. I would refer in this connection to 1925 Oudh .222. The observations of Their Lordship of the Federal Court of India in A. I. R., 1943 F. C. p. 75 were reproduced and acted upon. They are to the fo119wing effect :‑-- " Whenever powers ;of, this kind or indeed other special statutory powers are conferred, they must to the extent to which specific provisions had been made in the statute conferring the powers be exercised by the authority and in the manner specified, in the statute and in strict conformity with the provisions thereof ". There are other rulings in which the question of the delega tion of powers was discussed. It was held therein that delegation of powers under the Rule of the Defence of India Act could not be treated as delegations under the other Rules. This, therefore, leads to the conclusion that any action if it was taken under the Rules of Business or the Firman quoted above, could not be an action in conformity with the law. Secondly, according to those Rules even, all questions of importance could not be dealt with and disposed of by A. M. the Prime Minister alone. From this it is clear that neither His Highness the Nawab Ruler Bahadur nor the Prime Minister could be the " Government " for the purposes of this Act. There is some other person in between His Highness Nawab Ruler Bahadur and A. M. the Prime Minister who could constitute " The Government for the purposes of this Act. That person though not revealed by the learned Crown counsel could be none else, but the ` Cabinet " including A. M. the Prime Minister and this conclusion in the present conditions fits in with the ordinary dictionary meanings of the word " Government" The next question raised by Mr. H. S. Suharwardy was that the issue of the warrants of detention alone was not the compliance of the provisions of section 73 of the Act. His contention was that before the issue of the warrants of detention the Govern ment should have passed an independent order of detention that the Government could apply their mind to the material before them and decide whether the reasons of State or the preservation of peace and tranquility in 'the State rendered it necessary to place the petitioner under restraint. The learned Crown counsel could meet this contention in an halfhearted manner by stating that the warrants of detention were the combination of the order of detention and warrants of detention. From this reply it is evident that the learned counsel practically admitted the force of that contention. Mr. Abdul Hamid did not say that a separate order of detention preceding the warrants of detention was not necessary according to section

73. I think he could not say so. The very language of the section supports the counsel of the petitioner. The order of detention according to section 73 is distinct and separate from the warrant of detention. It is at the time of passing an order that the Government can apply their mind to see that the requisites needed under the law for passing an order to restrain the liberty of a citizen exist, If no such order is passed it means that no such mind is applied ; and consequently the issue of warrants of detention cannot be treated as compliance of the law nor the mere recital in the warrants that the preservation of peace and tranquility in the territories of under it necessary to place under personal restraint any person can either be treated as compliance of law while dealing with such like point in 1949 Mad.

308. The Hon'ble Chief Justice observed " An order of detention though purporting to be made under section 2 will not in fact be such an. order in the following circumstances " .‑ (a) when an order is not duly .authenticated; as for example when it is passed by an officer or authority not empowered under section 15 of the Act. (b) when the person detained in pursuance of the order is not the person intended to be detained that is to say when there is a mistake of identity. (c) when there is lack of bona fides and (d) when it is established that the essential requirements of section (2) namely the satisfaction of the Provincial Government or an officer or other authority empowered under section 15 with respect to the particular person that he is acting or about to act in any manner prejudicial to the public safety or the maintenance of public order or that with a view to preventing him from doing so it is necessary to direct him to be detained or otherwise dealt with under section 2 (1) of the Act is not present. If it is established that neither the Provincial Government nor the officer or other authority empowered under section 15 has exercised its or his mind on the material placed before it or him then an order of detention though purporting to be passed under section 2 (2) must be deemed to be no order under section

2. A similar question arose in Harkishan Das v. Emperor A. I. R. 1944 L. 33 and was disposed of by the Bench in the following terms : The order under section 26 (1) (b) recited that "the Governor of the Punjab was satisfied that it was necessary to detain the person named with a view to preventing them from acting in any manner prejudicial to the defence of British India, the Public Safety, the maintenance of public order and the efficient prosecution of the War, Further the order for their actual detention and subsidiary orders following therefrom all purported to be made by the Government and the document was signed by the Chief Secretary, "by order of the Governor of the Punjab". Held that the recital that the "Governor of the Punjab is satisfied" in the order could not in the circumstances of the case be safely read as meaning that the Governor was himself satisfied. It might well mean only that the Provincial Government was satisfied and that there was a distinct possibility or even a probability that the Governor personally was never asked to satisfy himself as to the necessity for the orders. The onus, therefore, lay on the Crown to prove that the Governor was personally satisfied as to the necessity of the orders and since it had failed to discharge that onus the orders were invalid. The present is a case weaker than the cases cited above. Here there is no order of detention by Government separate from the warrant of detention and conseq uently the contention of Mr. Suharwardy must prevail that the fundamental requirements to place a person under detention under section 73 of the Act were not complied with. If there is no order of the detention of the petitioner by the Government it can hardly be said that the warrants of detention which were not proved to have been issued by a proper authority served the purpose of the law by mere recital of the language of section therein. From this discussion I conclude that the Crown has failed to prove that the detention of the petitioner is in conformity with the law. If such be the case then the High Court is competent to declare under 'section 491 Criminal Penal Code that the detention of the petitioner is illegal and he should be released forthwith. The application is accepted and the petitioner is to, be released forthwith. I may note in the end that if action had been taken under section 90 of the Act then the difficulty which the Crown and the Court had to countenance in this case would have been obviated. There is no right of appeal against a decision in an application under section 491 Criminal Penal Code but I have noticed that several High Courts of the Provinces have granted certificates of fitness to appeal under section 205 of the Constitution Act. In view of the fact that this was probably the first case of its kind before this High Court and that it involved several intricate questions of law I would have certified it as a fit case for appeal to the judicial Committee. But I have left this question for the consideration of the Crown, so as to enable it to take such action as is deemed fit. Abdul Hamid Mukhtar of the petitioner and Government Advocate present. Pronounced. Director of Prisons be addressed to release the petitioner forthwith. K. M. A. Petition accepted.