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Issues Involved: Competency of the appeal, Validity of arrest under Rule 129, Validity of temporary custody orders under Rule 129(4), Application of Section 16(1) of the Defence of India Act, 1939.
Issue-wise Detailed Analysis: Competency of the Appeal: The respondents contended that no appeal was competent. Despite special leave being granted, the competency of the appeal was challenged, referencing cases like Shah Zahid Husain v. Mohammad Ismael and Mukhlal Singh v. Kishuni Singh. The primary argument against competency relied on Cox v. Hakes, which established that no appeal lies from an order of discharge made on the return to a writ of habeas corpus in England. However, the Privy Council ruled that there was no Act of Parliament prohibiting an appeal to His Majesty in Council against an order discharging a person from custody under Section 491, Criminal P.C. Therefore, the preliminary objection failed. Validity of Arrest under Rule 129: The arrest of the detenu was challenged on the grounds that the police officer did not have reasonable grounds for suspicion as required under Rule 129(1), Defence of India Rules, 1939. The High Court held that the burden of proving reasonable suspicion lay on the police officer, which was not discharged. The Privy Council agreed, noting that the affidavit from the Chief Secretary did not allege that the detenu himself was engaged in subversive activities, thus failing to justify the arrest. Validity of Temporary Custody Orders under Rule 129(4): The Provincial Government made orders for the temporary custody of the detenu under Rule 129(4). The appellant argued that these orders were valid despite the arrest's validity. The Privy Council held that the power to make an order for temporary custody under Rule 129(4) only arises if the arrest was made under the rule, i.e., on reasonable suspicion. Since the arrest was invalid, the Provincial Government had no power to make the temporary custody orders. The High Court's decision that the orders for custody were illegal was upheld. Application of Section 16(1) of the Defence of India Act, 1939: The appellant further relied on Section 16(1) of the Defence of India Act, 1939, which states that no order made under the Act shall be called into question in any Court. The Privy Council dismissed this argument, stating that if the orders were invalid, they were not made in the exercise of a power conferred by the Act. Conclusion: The High Court was justified in making the order under Section 491, Criminal P.C., setting the detenu at liberty. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal as between solicitor and client. The Privy Council advised His Majesty accordingly.
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