TMI Blog1946 (5) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... en at the hearing of an appeal, notwithstanding that special leave has been given without reserving express power to challenge the competency of the appeal, was established by two decisions of this Board, Shah Zahid Husain v. Mohammad Ismael ('30) 17 A.I.R. 1930 P.C. 196 and Mukhlal Singh v. Kishuni Singh ('31) 18 A.I.R. 1931 P.C. 22. In support of his argument that the appeal is incompetent counsel relied mainly on the well-known case in Cox. v. Hakes (1890) 15 A.C. 506, and a recent decision of this Board in Emperor v. Sibnath Benerji ('45) 32 A.I.R. 1945 P.C. 156. In Cox. v. Hakes (1890) 15 A.C. 506 the House of Lords decided that in England no appeal lay from an order of discharge made on the return to a writ of habeas corpus. The question returned primarily on the construction of Section 19, Judicature Act, 1878. In their speeches, both Lord Halsbury and Lord Herschell noticed two decisions of, the Privy Council, Attorney-General for Hong-Kong v. Kwok-A-Sing (1873) L.R. 5 P.C. 179 and Reg. v. Mount (1875) L.R. 6 P.C. 283, and pointed out that special considerations applied to appeals from Colonial Courts in which the Privy Council was tendering advice to His Majest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order specify: Provided- (i) that no person shall be detained in custody under this sub-rule for a period exceeding 15 days without the order of the Provincial Government; and (ii) that no person shall be detained in custody under this sub-rule for a period exceeding two months. (4) On receipt of any report under the provisions of Sub-rule (2) the Provincial Government may, in addition to making such order subject to the proviso 2 to Sub-rule (2) as may appear necessary for the temporary custody of any person arrested under this rule, make in exercise of any power conferred on it by any law for the time being in force, such final order as to his detention, release, residence or any other matter concerning him as may appear to the said Government in the circumstances of the case to be reasonable or necessary. Rule 26(1) The Central Government or the Provincial Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order, His Majesty's relations with foreign powers or Indian States, the maintenance of pea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment dealing with the grounds of suspicion against the detenu was an affidavit sworn by the Chief Secretary of the Provincial Government on 10th September 1944, which said that the report of the arrest of the detenu had been received by the Provincial Government on 23rd August, and that it revealed reasonable grounds for suspecting that the detenu was actively associated with certain persons engaged in underground activities calculated to prejudice the public safety and efficient prosecution of the war, and in the opinion of the Provincial Government there were reasons to suspect that they had already acted in a manner which had prejudiced the public safety. It will be noticed that this affidavit contains no allegation that the detenu himself had been engaged in any subversive activities, or even that he was aware of such activities on the part of his associates, (h) The application was heard by the High Court of Nagpur on 11th September, and judgment was given on 29th September, holding that the detention of the detenu was illegal, and directing that he be set at liberty forthwith. 5. The two questions which in their Lordships' view arise on this appeal are: (i) Where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very largely mitigated by the existence of Rule 26, under which the Government can act whenever it is satisfied as to the matters mentioned in the rule. Cases in India under the Defence of India Rules which may involve disclosure of secret and confidential information will arise only in cases lying in the border-land between the police being suspicious, and Government being satisfied, as to a person's subversive activities, and such cases are hardly likely in practice to be either numerous or serious. In their Lordships' opinion, therefore, the High Court was right in holding that the burden lay upon the police officer to satisfy the Court that his suspicions were reasonable, and it is plain that on the evidence he had not discharged that burden. 6. The second question turns on the construction of Sub-rule (4) of Rule 129, and was strongly pressed by Sir Thomas Strangman on behalf of the appellant. His contention was that the Provincial Government, acting under the power conferred by Sub-rule (4), had made orders for the temporary custody of the detenu which were on their face unobjectionable, and that such orders were valid whether or not the detenu had been validly ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson's activities. If no arrest was made under the rule, the power to make an order for temporary custody of the detenu never arose. Their Lordships therefore agree with the High Court in thinking that the Provincial Government had no power to make an order for the temporary custody of the detenu, whose arrest under Sub-rule (1) was invalid. 7. Mr. MacKenna, for the appellant, further relied on Section 16, Sub-section (1), Defence of India Act, 1939, which provides no order made in exercise of any power conferred by or under this Act shall be called in question in any Court. But this argument only raises the same question in a different form. If the orders made by the Police or the Provincial Government were invalid they were not made in exercise of a power conferred by the Act. The learned Judges of the High Court in their judgment - which is not open to criticism on the ground of undue brevity - discussed various other aspects of the case, and their Lordships must not be taken as being in agreement with all the opinions expressed by the learned Judges. Upon the view which their Lordships have expressed that the Provincial Government have failed to prove that the arrest o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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