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Criminal Miscellaneous Case No. 30 of 1149 under section 491 Criminal Procedure Code decided on 8th July 1949.
(a) Government of India Act, 1935, as adapted by the Pakistan (Provincial Constitution) Order, 1947, S. 88 (1)‑---Governor satisfied as to the existence of circumstances necessitating the promulgation of an Ordinance‑Satisfaction is the satisfaction of the Governor‑‑East Bengal Preventive Detention Ordinance (VI of 1949).
As to the satisfaction contemplated by the section it is now no lo11rer in dispute that the satisfaction is the satisfaction of the Governor and the Court cannot go into the question whether such circumstances exist as to render it necessary for the Governor to promulgate an Ordinance.
--- Limit to period of detention not prescribed‑‑Ordinance merely saying that an order for detention under S. 2 (1) shall remain in force for the period during which the Ordinance itself continues in operation‑Legality of Ordinance not affected.
(c) Government of India Act, 1935 (as adapted by the Pakistan (Provincial Constitution) Order, 1947, S. 88‑What the Provincial Legislature could do the Governor can do by Ordinance in a proper case. 53 C. W. N. p. 27 referred to.
(d) Government of India Act, 1935 (as adapted by the Pakistan (Provincial Constitution) Order, 1947, & ‑98‑Govern" is entitled to give retrospective effect to an Ordinance which he promulgates. 1942 F. C. R. 110 ; A. I. R. 1944 Bom. 119; L. R. 73 I. A. 199 (1946) followed.
(as adapted by the Pakistan (Provincial Constitution) Order, 1947, S. 88‑Governor cannot extend the life of an Ordinance by another Ordinance.
The Governor under section 88 has no power to resuscitate an expiring Ordinance by another Ordinance specifically designed for the purpose. Held, as such, that the promulgation of Ordinance No. VII of 1949 (East Ban‑al Preventive Detention Ordinance) to continue the East Bengal Preventive Detention Ordinance No. VI of 1949 is ultra vires.
S. 491‑Court has only to see if the detention is under a valid order, not that a prior stage there was no valid order.
In an application under section 491, Criminal Procedure. Code, the
Note :‑In the above head note in paragraphs (a), (c), (d) and (e) "Provincial" should read "Provisional".
Court is to see if the detention is under a valid order. " If at any time before the Court directs the release of the detenu a valid order directing his detention is produced the Court cannot direct his release merely on the ground that at some prior stave there was no valid cause for detention.
46 Cr.L.J p: 559 referred to.
Refusal of Provincial Government to furnish information regarding a detenue beyond what was contained in the affidavits disapproved.
Provincial Government's action in serving the detenue with a fresh order of detention during the pendency of proceedings under section 491, Criminal Procedure Code also disapproved.
H. S. Suhrawardy and M. A. Khondkar, for Petitioner.
The Advocate‑General, for Crown.
---In this case a Rule was issued on the Chief Secretary to the Government of East Bengal, and on the Superintendent of the Dinajpur jail to show cause why one Dabirul Islam, who was alleged to be illegally and improperly detained in the Dinajpur Jail should not be set at liberty. The rule was issued at the instance of one Moulvi Tamizuddin Ahmed, father of the detenue, who moved an application under section 491 of the Code of Criminal Procedure on the 16th of May 1949.
The detenue is described in his father's application as a Bachelor of Arts and a student of the 2nd Year B. L. Class of the Dacca University, and a resident of the Iqbal Hall under the University. It is stated that he was associated with the Bengal Muslim Students League before the partition of Bengal. After the partition he was one of the conveners of the conference of the students of East Pakistan which resulted in the re‑organisation of the East Pakistan Muslim Students League His activities brought Dabirul Islam into prominence in the student community and he was one of the leaders of the student body when on the 6th of March 1949 they struck in sympathy with the menials and low paid employees of the University.
Dabirul Islam is said to be good public speaker and a popular platform orator in his own District of Dinajpur. A meeting of Dinajpur District Muslim Students League was arranged for the 15th of March 194 for the purpose of electing office holders and one Matiur Rahman, a student of the 4th Year B.A. Class of the Dinajpur College, came to Dacca to escort Dabirul Islam to Dinajpur for the meeting, When they arrived at Dinajpur Railway‑ Station at about 8 P.M. or Sunday, the 13th of March, they were both arrested under section 18 of the Bengal Special Powers Ordinance VI of 1946 by Md. Bazlur Rahman, Sub‑Inspector of Police in the Dinajpur District Intelligence Branch. They were detained for the night in the office of the Government Railway Police at Dinajpur Station, and at 2 P. M. on the 14th of March they were lodged in the Dinajpur Jail.
On the 15th of March 1949 the Government of East Bengal, Home Dapartm3nt, issued an order, being Order No. 879 H.S., in respect of Dabirul Islam. That order is in the following terms :‑
" Government of East Bengal Home Department special Section.
Order No. 879 H. S. Dacca, the 15th March 1949. Whereas the person known as Dabirul Islam, son of Tamizuddin of Bamunia, P.S. Baliadangi, District Dinajpur, is detained in the Dinajpur Jail under the provisions of section 18 of the Bengal Special Powers Ordinance, 1946 (Ordinance VI of 1946) as enacted and continued in operation by the East Bengal Ordinances Temporary Enactment and Re‑enactment Act, 1948 (East Bengal Act X11 of 1948) :
And whereas having considered the materials against the said person the Governor is satisfied that, with a view to preventing the said person from acting in any marine: prejudicial to the maintenance of public order, it is necessary to make the following order for the purpose of continuing his detention :
Now, therefore, in exercise of the powers conferred by subsections (1), (2) and (4) of section 2 of the East Bengal Preventive Detention Ordinance, 1949 (East Bengal Ordinance VI of 1949) the Governor is pleased to direct‑--
(a) that the said person shall subject to the provisions of sub section 4 of section 2 of the said Ordinance be detained until further orders ;
(b) that, subject to the provisions of clause (a) of this paragraph the said person shall, until further orders, continue to be detained in the Dinajpur Jail ; and.
(c) that during such detention the said person shall be subject to the conditions laid down in the Bengal Security Prisoners Rules, 1940, for the time being in force as applicable to security prisoners referred to in the said rules.
By order of the Governor,
(Sd). A. BARI,
Assistant Secretary to the Government of East Bengal.
The order was served on the detenue on 27th March 1949, he first endorsed his receipt in the top left hand corner of the order "Received 1 copy with thanks, Dabirul Islam, 27th March 1949 " then he cancelled this endorsement and subscribed his objection in the following remarks "I refuse to accept it as because I find the Jailor of this Jail take me to be treated as convicted Division III prisoner in violation to the conditions laid down in the last (c) paragraph of this order.
Dabirul Islam."
27th March, 1949.
On the 4th of April 1949 the Government of Fast Bengal, Home Department Special section addressed a memo being memo. No. 1029 H. S., to the Superintendent of Dinajpur Jail and forwarded to him a communication under section 2 (5) of the East Bengal Preventive Detention Ordinance, 1949 (East Bengal Ordinance No. VI of 1949) for service on Dabirul Islam. The communication is couched in the following language :‑
" In pursuance of clause 5 of section 2 of the East Bengal Preventive 'Detention Ordinance, 1949 you Dabirul Islam, son of Tamizuddin Ahmed of Bamunia, P. S. Baliadangi, Dinajpur, at present detained in the Dinajpur jail under order No. 746 H. S. dated the 18th March 1949 made under sub‑sections (I), (2) and (4) of section 2 of the East Bengal Preventive Detention Ordinance, 1949 (East Bengal Ordinance No. VI of 1949) are hereby informed that your detention has been considered necessary on the following grounds:‑
1. That you have been and are associated wire the illegal activities of a secret association in the districts of Dacca and Dinajpur the object of which is to overthrow this Government (i.e., Government of East Bengal) violent means and in this connection you have been carrying on prejudicial and disloyal propaganda against the Government and have been inciting the students, Kisans and laborers of the districts of Dacca, Rajshahi and Dinajpur to acts of disloyalty and violence against this Govern ment.
2. That all your activities mentioned above Threaten and are likely to endanger the existence of public order and safety in this Province.
3. You are further informed that you have a right to make a representation in writing to this Government against the order of detention made against you, and should you wish to do so you should send the representation, to the undersigned through the Superintendent of Dinajpur Jail where you are at present detained.
By order of the Governor
(Sd.) A. BARI
Assistant Secretary to the Government of East Bengal
(Political) Department."
Dabirul Islam received the communication on the 12th April 1945 and on the 14th April 1949 addressers the following reply to the Assistant Secretary to the Government of East Bengal, Home (Political; Department :‑
To
Mr. A. B. Khan, Esq.,
Assistant Secretary to the Government of East Bengal,
Home (Political) Department.
Through the Jail Superintendent, Dinajpur Jail.
Dated Jail Hospital, the 14th April 1949.
Dear Sir,
Very glad to receive your communication of grounds of detention under clause 5 of section 2 of the East Bengal Preventive Detention Ordinance, 1949, dated 4th April 1949, and thereby Pet a chance to reply.
I have the honour to tell you with all emphasis that neither I am nor I have had ever been associated with any illegal activity of any Secret Association of any place. Not to speak of any illegal activity, even no name of any Secret. Association is ever known to me.
I do not have faintest idea to overthrow the Government of East Bengal. Overthrow of this Government means anarchism in East Bengal which no man of sense can even dream of. If it means only the present cabinet. I do not believe in the change in its extent too. Because hardly it can be found a person or a group of persons in the present Assembly House of East Bengal who may stand better than the cabinet, now in the helm of affairs. I have neither any idea, nor object nor any concern in lieu of it. Apprehension against me is bogus and wrong.
Since 1937. I have had been carrying strenuous work and making tremendous sacrifices for the cause of Muslim League and since 1940, for, Pakistan while to my utter satisfaction, Pakistan has been achieved there can be hardly any better‑minded citizen to wish will for this state and proud to be a loyal subject to our Pak State. The charge against me of carrying prejudicial or disloyal propaganda is baseless.
Not to speak of inciting students, Kisans and laborers, I always carry association of students with kisans or labourers. I have never incited anybody either at Dacca or Dinajpur. I had never been to Rajshahi with any political purpose at anytime.
I am out and out a loyal subject, am born of constitutional procedure and do hate violence. Charges against me are simply baseless, maliciously false and carry no sense.
I have been arrested, harassed, detained in Jail unnecessarily and at last your administration has gone so far as to put. me 'in this hospital after dealing a cruel lathi charge upon me. On the 8th April last your tailor foolishly whistled out for the alarm‑bell, I was hammered, some 30 policemen came and by them the Jailor led a heavy lathi charge upon political prisoners, got me fainted arid put me to this death‑bed. I have received heavy injuries all over my body and am till now too, sick to sit even. Lying flat across my bed I write this petition to you. I am physically so week that further detention under these hard conditions of Jail will eventually shorten my life most speedily. Hope my release would be granted immediately. Thanking you in anticipation. Regardless of my release, your note has seemed ever pleasant to me and it would have been more nice had your generosity added a word 'Moulvi' before the name Tamizuddin Ahmed. That is the name of my reverend father. Courtesy in an Islamic State can cost nothing. Let me however guess that it was dropped while typed hurriedly.
Yours Sincerely
14th April 1949. Dabisul Islam
On the 21st of May, 1949, five days after the Rule had been issued, Dabirul Islam asked the Superintendent of the Dinajpur Jail to forward the grounds of detention to his father : after a reference to the District Magistrate he was informed that this could not be done as the document was meant for his information only.
While in Dinajpur Jail Dabirul Islam was informed that he was one of the six students expelled from the University for four years for their activities in support of the menials' strike.
At the time when the Rule was issued Dabirul Islam was being detained under the East Bengal Preventive Detention Ordinance, 1949 (East Bengal Ordinance No. VI of 1549) and the of this Ordinance has been challenged by Air. Suhrawardy, learned Counsel, who has appeared on his behalf, Mr. Suhrawardy has first attacked the Ordinance on he ground that it did not state that the Governor was satisfied as to the existence of circumstances necessitating the promulgation of the Ordinance as required by section 88 of the Government of India Act, 1935. This attack cannot but fail, and the learned Advocate General who opposed the Rule had no difficulty in pointing out that the language of the preamble had been practi cally " lifted" from section 88 of the Act. The language of the preamble reads :‑Whereas the Provincial Legislature is not in session and the Governor is satisfied that it is urgently necessary to make, provision for ensuring the maintenance of public order and that immediate action should be taken for the purpose ;
The Governor is pleased, in exorcise of the powers conferred by sub section (1) of section. 88 of the Government of India Act, 1935, as adapted by the Pakistan (Provisional Constitution) Order, 1947. to make and promulgate tie following Ordinance, "and it closely follows the language of section 88 of the Act." Section 88 (1) "If at any time when the Legisla ture of a Province is not in session the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action he, may promulgate such Ordinances as the circumstances appear to him to require,"
As to the satisfaction contemplated by the section it is now no longer in dispute that the satisfaction is the satisfaction of the Governor and the Court cannot go into the question whether such circumstances exist as to render it necessary for the Governor to promulgate an Ordinance:
Mr Suhrawardy's next point, that the Ordinance is an extraordinary Ordinance because it sets no limit to the period of detention and merely provides that an order for detention under section 2 (1) shall remain in force for the period during which the Ordinance itself continues in operation does not affect the legality of the Ordinance as was urged by him as placing on the Courts the duty of being vigilant on behalf of the subject.
The next line of attack presents more serious problems. The Ordinance was published in the " Dacca Gazette, Extraordinary " of the 10th March, 1949. The East Bengal Legislative Assembly was summoned to meet at 4 p.m, on Friday the 11th of March, 1949, in the Legislative Chamber in the Jagannath Hall Ramna, Dacca. The Assembly did meet on the appointed day, and on the next day, the 12th March. 1949 the East Bengal Preventive Detention Ordinance, 1949 (The East Bengal Ordinance No. VI of 1949) was laid before it under section 88 (2) (a) of the Government of India Act, 1935, as adapted. Mr. Suhrawardy stated that the Ordinance was not placed before the Assembly, but we have satisfied ourselves from a certified copy of the journal of the Proceedings of the Assembly for the 12th March, 1949, that this statement is not correct : the Ordinance was Item No. XIII of the list of Ordinance so placed. Mr. Suhrawardy argues that, under section 88 (2) (a) the Ordinance ceased to operate at the expiration of six weeks from the reassembly of the Legislature, that is on the 22nd of April, 1949 and emphasizes that sub‑section (2) (a) stressed the death of an Ordinance, not its life. The provisions of the Ordinance were sought to be kept, alive by yet another Ordinance, the East Bengal Preventive Detention (Continuance) Ordinance, 1949 published in the "Dacca Gazette Extraordinary " of the 21st April 1949, as East Bengal Ordinance No. VII of 11949.
The reason why the Governor found it necessary to promulgate Ordinance No, VII of 1949, is not far to seek. When the Legislature was in session, a Bill was introduced on the l2th of March, 1949, being the East Bengal Ordinances Temporary Enactment and Re‑Enactment Bill, 1949, which was to continue in operation for a period of six months with effect from the 16th day of March, 1949, the provisions of certain Ordinances specified the Schedule and the third item of Schedule I was the Bengal Special Powers Ordinance, 1946. The Bill was passed by the East Bengal Legislative Assembly at its meeting held on the 15th March, 1949. The Assembly rose on April 11th. There was some unexplained delay from the 15th March to the 16th of April, 1949 when the printed Bill was endorsed by the Speaker as having been passed by the Legislature. On the 19th of April the Governor of East Bengal reserved the Bill for the consideration of the Governor General. The Governor‑General assented to the Bill at Karachi on the 21st of April, 1949. But from the 11th of March time began to run against Government in the matter of the detentions already made under the East Ben al Preventive Detention Ordinance, 1949, and possible future detentions. It was not known whether the Governor‑General's assent to the Bill would be received in time for action to be taken under its provisions. Accordingly recourse was had to another Ordinance as a temporary ex pedient to bridge a possible gap, and this ordinance is Ordinance No. VII
This Ordinance has, inevitably, come under heavy fire from Mr. Suhrawardy and its preamble and its provisions call for close scrutiny. They are expressed in the following terms :‑‑
" East Benal Ordinance No. VI I of 1949. (Published in the "Dacca Gazette, Extraordinary " of the 21st April, 1949).
The East Bengal Preventive Detention (Continuance) Ordinance; 1949.
Whereas the East Bengal Preventive Detention Ordinance, 1949 (hereinafter referred to as the said Ordinance), will cease to have effect from the 22nd day of April, 1949 ;
And whereas the Provincial Legislature is not in session and the Governor is satisfied that it is urgently necessary in the Public interest to continue in operation the said Ordinance and that immediate action should be taken for the purpose ;
The Governor is pleased, in exercise of the powers conferred by sub section of Government of India Act, 1935, as adapted by the Pakistan (Provisional Constitution) Order,. 1947, to make and promulgate the following Ordinance, namely :‑
1. (1) This Ordinance may" be called the East Bengal Preventive Detention (Continuance) Ordinance, 1949.
(2) It shall come into force at once.
2. The East Bengal Preventive Detention Ordinance 1949 shall continue in operation and shall have the same force and effect as an Act of the Provincial Legislature until the, publication of the assent of the Governor-General to the East Bengal Ordinance Temporary Enactment and Re‑enactment Bill, 1949, in the Official Gazette.
3. All orders and notifications issued, all directions given, all actions taken and all proceedings commenced under any provisions of the said Ordinance shall continue in force and have effect until superseded or modified by the Provincial Government or competent authority,"
Mr. Suhrawardy contends that this Ordinance is ultra vices ; his argument is that the preamble and section 2 both state that it is designed to continue the East Bengal Preventive Detention Ordinance .in operation, and the Governor has no powers under section 88 of the Government of India Act. 1935, to continue any Ordinance in operation. He stresses once more in this connection that Section 88'2) (al of the Act is concerned with the death of an Ordinance, not its life ; if it has duly been laid before the. Legislature on its reassembly, and the Assembly takes no action by way of resolution in disapproval, then the Ordinance has a life of six weeks only from the date of reassembly and then must die. And the Governor under section 88 has no power to resuscitate an expiring Ordinance.
On the other hand the learned Advocate General urges that the powers of the Governor under section 88 of the Act are co‑extensive with those of the Legislature. An ordinance. promulgated by him has the same force and effect as an Act of the Provincial Legislature assented to by the Governor. The Legislature is supreme in its own field it can repeal an act or alter it : it can revive a dying enactment. Consequently the Governor, at a time when the Legislature is not in session, can, if circumstances justify the promulgation of an Ordnance exist, promulgate an Ordinance to keep alive a dying Ordinance.
The learned advocate General claims that he finds strong support for his proposition from the observations of Harries C.J. in the case of Jnan Prasanna Das Gupta v. The Province of West Bengal, reported in 53 C W N, p. 2: and, in particular, the following passages there from " section 88 (2) also provides that an Ordnance promulgated under that section shall have the same force; and effect as an Act of the Provincial Legislature assented to by the Governor, and it appears to me that what the Provincial Legislature could do, the Governor can do by Ordinance in a proper case. The provincial Legislature could undoubtedly amend the existing Provincial Law and that being so the Governor can do so in Ordinance if circumstances exist justifying the promulgation of such Ordinance." It was then contended that even assuming the Governor could amend existing Provincial Legislation by Ordinance, he could not give retrospective effect to the Ordinance. It was argued that clause (2) of section I was clearly retrospective and so also was section 3. By clause (2) of section 1 it is enacted that‑ certain provisions in section 2 which amended section 16(1) of the Security Act are to be deemed to have taken effect on and from the date of the commencement of the Security Act, as if on that the Ordinance promulgated had been in force.
In my view if a Governor can legislate in proper circumstances and such legislation is to have the same effect as if passed by the Legislature then it appears to me that the Governor is entitled to give retrospective effect to an Ordinance which he promulgates. It has been held by the Federal Court in the case of The United Provinces v. Mst. Atiqa Begum 1942 F. C. R. 110 that the right to legislate retrospectively is inherent in the right to legislate. That being so, if the Governor has a right to legislate and such legislation has the effect of legislation by the Provincial Legislature then it appears tome that inherent in that right is a right to legislate retrospectively if such course were necessary. This was the view of a Full Bench of the Bombay High Court in Prabhahar Rondaji Bhapkar v. Emperor A. I R. 1944 Bombay 119 and it has been accepted by the Privy Council in Kumar Singh Chhagor v. King Emperor .L R. 73 I. A. 199 (1946).
The question here, however, is not the same. 11r. Suhrawardy claims that the impugned Ordinance would expire or‑ the 22nd of April 1949, and the Governor had no power to continue its life by another Ordinance specifically designed for that purpose. Under the scheme of the Act the Ordinance must die there is no provision in section 88 for its continuance by another Ordinance‑and rightly so for otherwise Government by Ordinance could be continued indefinitely. In his support is the undisputed fact that the Legislature cannot extend the life of an' Ordinance. That is why it legislates to continue in operation the provisions of an Ordinance, as was done by the East Bengal Ordinances Temporary Enactment and Re‑Enactment Act, 1949. Mr. Suharwardy contends that as the Legislature could not extend the impugned Ordinance, so the Governor had no power to do so. We are inclined to agree with him on this point.
The learned Advocate General points to section 3 of the Ordinance, a saving clause providing, that "all orders and notifications issued, all directions given; all actions taken and all proceedings commenced, under any provisions of the East Bengal Preventive Detention Ordinance, 1949 shall continue in force and have effect until superseded or modified by the Provincial Government or competent authority" and claims that this was within the powers of the Governor. Had the section stood but there is no surmounting the barrier of the preamble and section 2 of the Ordinance.
Had no further orders been served on the detenue we should have held that, after the 22nd of April, 1949, his detention was illegal and, should have directed his release, but during the pendency of these proceedings fresh orders were issued on the detenu on the 25th of May, 1949; and were served on him on the 7th June, 1949.
Those orders are in the following terms:‑
Government of East Bengal,
Home Department
Special section.
No. 1338‑H. S.
Dacca, the 25th May, 1949.
Whereas the person known as Dabirul Islam son of Tamizuddin of Bambunia, P. S. Baliadangi, District Dinajpur, is detained in the Rajshahi Central Jail under Order No. 879 H. S., dated the 15th March, 1949.
And whereas having considered the materials against the said person the governor is satisfied that, with a view to preventing the, said person from acting in any manner prejudicial to the public safety and the maintenance of Public Order, it is necessary to make the following order for the purpose of continuing leis detention.
Now, therefore, in exercise of powers conferred by clause (a) of subsection (1:) and sub‑section (4) of section l0A of the Bengal Special Powers Ordinance, 1946, (Bengal Ordinance No. VI of 1946) as enacted and continued in operation by the East. Bengal Ordinances Temporary Enactment and Re‑Enactment Act, 1949 (East Bengal Act I of 1949) the Governor is pleased to direct ‑
(a) that the said person shall subject to the provisions of section 10 B of the said Ordinance as so enacted and continued , in operation be detained until further orders ;
(b) that, subject to the provisions of clause (a) of this paragraph the said person shall until further orders, continue to be detained in the Rajshahi Central Jail and
(c) that during such detention the said person shall be subject to the conditions laid down in Government ‑‑Order‑ No. 710 H. S., dated the 15th March, 1949:
By Order of the Governor,
25‑5.1949. (Sd) A. BARI,
Assistant Secretary, to the Government of East Bengal.
The endorsement "Received one copy. Dabirul Islam 7th June, 1949 shows it was served on the 7th of June, 1949.
The Advocate General contends that, in an application under section 491 of the Code of Criminal Procedure the Court has to see if the detenu is, in fact, being held under a valid order, and he cites the observations of the Privy Council, quoted in the case of a Basanta Chandra v. Emperor reported in 46 Cr. L. J. P, 559 in his support. Their Lordships in dealing with the powers of the Court under section 491 observed as follows:‑
The analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceeding cannot be invoked here. If at any time before the court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the latter order valid dates the earlier detention but whether in the face of the latter valid order, the Court can direct the release of the petitioner.
There can now be no challenge of the Bengal special Powers Ordinance, 1946 (Bengal Ordinance NO. VI of 1946) as illegal nor can there be any attack on the East Bengal Ordinances Temporary Enactment and Re‑Enactment Act, 1949 (East Bengal Act. T of 1949) But Mr. Suhrawardy had some hard things to say of what he called an attempt to legalize an illegal order, and of the treatment of Civil Courts which if it did not amount to contempt of Court, was indubitably shabby.
Now the order of the 25th May, 1949, is signed by Mr. Abdul Bare Khan, Assistant Secretary to the Government of East Bengal, Home Department. We are satisfied that the order was signed by him in accordance with the Rules of Business framed by the Governor of Bengal under section 59 of the Government of India Act, 1935. Under Rule 12 ‑all orders or instruments made or executed by or on behalf of the Govern ment are to be expressed to be made by or by order of the Governor; and under Rule 13, save in cases of special authorization, every order or instru ment of the Government of Bengal is to be signed by either a Secretary (an Additional Secretary) a Joint Secretary, a Deputy Secretary, an Under Secretary or an Assistant Secretary and such signatures are to be deemed to be the proper authentication of such orders or instruments.
As to the circumstances in which the order of the 25th of May, 1949 was passed against the Detenu, Mr, Abdul Bary Khan solemnly affirmed, on the 7th of June, 1949., "That the East Bengal Preventive Detention Ordinance, VI of 1949, has come to an end and the deponent in his capacity as Assistant Secretary, Government of East Bengal (Home Department) has issued (Sic) authenticated another order for detention i. e., Order No. 1338 H. S. on the 25th May, 1949 under Section IOA (1) (a) and (4) of the Bengal Special Power Ordinance No. VI of 1946 as continued in force and re‑enacted by the East Bengal Ordinances Temporary Enactment and Re‑Enactment Act 1 of 1949 and Maulvi Dabirul Islam is now being detained under that order."
No counter affidavit was, or could be filed by the Detenue : and there is nothing on record on the side of the Detenue impugning the "satisfaction of the Governor or challenging his "Bona Fides", in discharge of the heavy burden laid on him.
Mr. Suhrawardy has however argued that the grounds of detention ‑communicated to the deteuu consequent upon the new order are, save for one addition, the same as the grounds served on him after the first order of detention, and the additional ground relates to his. conduct in jail. That ground reads as follows. "That you since your admission in the Jail have constantly been acting against the jail discipline by refusing food and indulging in other acts of disorderly conduct inside the jail, and actually on the morning of 8th April 1949 along with 10 other prisoners formed an unlawful assembly, and attempted to break open the inner gate of the jail and incited other prisoners to join the our break." As yet, so far as we know, no reply has been submitted, but, as we have already seen, Dabirul Islam did give his version of the events of the 8th of April, 1949 in his representation of the 14th April, 1949. And Mr. Suhrawardy would dispose of the additional ground by claiming that if is a ground outside the Act and therefore no ground at all.
Mr. Suhrawardy comments adversely on the delay in serving the order of the 15th of March, I949, on the detenu and argues that this is in itself evidence of "mala fides" on the part of the Government : while the copy of the grounds of detention was not submitted until there had been more delay. The order was dated the 15th of March: it was served on the 27th of March. The communication of grounds. detention under clause 5 of Section 2 was dated the 4th April : it was served on the 12th of April.. Mr. Suhrawardy argues that if the Government were in possession of sufficient materials to justify an order being made against Dabirul Islam on the 15th of March, there can be no excuse for not communicating the grounds of detention to him till the 12th of April. Mr. Abdul Bary Khan has solemnly affirmed on Affidavit the reasons why Government could not issue the grounds of detention till the 4th of April. Between the 15th of March and 4th of April Government had to examine the relevant papers and decide what facts relating to the grounds of detention could be disclosed and what facts could not be disclosed in the public interest, not only with regard to Dabirul Islam but also with regard to some 150 other security prisoners and that too at a time when the officers of Government concerned had to attend the Legislative Assembly which was then in session.; postal delays accounted for the failure of the notice issued on the 4th of April to arrive before the 11th of April. Rulings cited on either side on this point are not helpful, it is impossible to lay down any hard and fast rule as to what is to be construed as "reasonable" or "unreasonable" delay, or what is meant by such expressions as soon as possible"; "as soon, as; maybe", "within a reasonable time" or "Within a comparatively short: period of time" all of which appear in the rulings cited. Each case has to be decided on its own merits, and in view of the number of cases demanding attention, as sworn to in the affidavit of Mr. Abdul Bary Khan, and the known postal delays; we cannot hold that the delay in this case has been unreasonable.
Mr. Suhrawardy's next contention is that the order of detention is illegal because the grounds of detention as communicated to Dabirul Islam are not sufficiently precise. Rulings have been cited in support of the proposition that the grounds must be clear, precise and accurate and it is argued that the grounds communicated to the detenu on the 12th of April fail to satisfy these tests. We are not however, in view of the opinion we hold of the legality of the Ordinance, called upon to decide whether the grounds are so deficient in clarity, precision and accuracy as to require the release of the detenu. We would nevertheless mention that Mr. Suhrawardy protests that Dabirul Islam has been detained in jail out of political rivalry at the instance of the party now in power which has taken advantage of the Ordinance to satisfy its grudge against him because of the prominent part he took in the students' Strike and because of his persistent opposition to the present ministry a protect which the learned advocate General counters by pointing out that in his representation the detenu disclaimed all desire to replace the present ministry by another. Mr. Suhrawardy pours particular scorn on the allegation that the detenu has been and is associated with the, activities of a secret association in the Districts of Dacca and Dinajpur an association so secret that even its name cannot be divulged, and comments that so far no Association in Pakistan has been declared illegal, and therefore there was no "Prejudicial" association in Pakistan within the meaning of the term and he roundly claims that the refusal of Government to furnish any further information on the matter in Court is proof of its "mala fides." He contrasts the action of the Government of East Bengal most unfavorably with that of the government of Bihar which, in similar circumstances, without reservation, furnished the Patna High Court with the information required ; he quotes the following extract from the Full Bench Judgment of the Patna High Court in the case of Nek Mohammad and other v. The Province of Bihar, reported in A. 1. R. (36) 1949 Patna page 1 at page 15 : "The learned Government Advocate has not claimed privilege with regard, to any of the papers which have been placed before us. In several of the cases the District Magistrate concerned has sent us a copy of the report of the Superintendent of Police addressed to the Government of Bihar for the detention of the particular person mentioned in the report These reports are very enlightening and show that nothing was known of the antecedents of the persons reported against, except that they were members of the R.S.S. or the Muslim League National Guard, the activities of which were considered to be prejudicial to public safety and the maintenance of public order. Nothing is stated about the nature of the activities in which the persons reported against were engaged. This would show that, except mere membership of a particular organisation, which has been declared unlawful, there was nothing else against those persons." Mr. Suhrawardy comments that in the case under report, as the extract quoted shows, the information was supplied by the Government of Bihar although it told heavily against the Government case. While we are not prepared to conclude "mala fides" from the refusal of Govern meat to furnish us with any further information beyond what is contained in the affidavits filed, we do place on record our disapproval of its action in the matter and observe that, in our opinion, the action of the Government of Bihar in a similar situation was far more commendable.
And we cannot approve of Government's action in serving the detenue" with a fresh order during the pendency of these proceedings We are holding that, Ex‑Facie, this fresh order is a good order ; so far, on the side o the detenu, there is nothing to say, against it : and though the grounds of his detention were communicated to him under section 10‑C of the Bengal Special Powers Ordinance, as yet, so far as we know, the detenu has not made any representation, and we are not entitled to speculate or make any assumption as to what his reply may be.
Our conclusions therefore are that the Governor has no power to extend one Ordinance by another Ordinance, and so Ordinance No. VII of 1949. The East Bengal Preventive Detention (Continuance) Ordinance, 1949 is ultra vires. It follows that the detention of Dabirul Islam after the 22nd of April 1949, was illegal. Had there been no other order against him we should have directed his release. But a fresh order was served on him during the pendency of these proceedings, and under the ruling of Their Lordships of the judicial Committee we have to see whether we can direct his release in the face of that order, That order we hold to be Ex Facie a good order and before us, on the record, there is nothing to sustain an attack on the only grounds on which it can be attacked. We cannot therefore order the release of the detenu.
The Rule is accordingly discharged.
---‑I agree.
A. H. Rule discharged.
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