G NARAYANASWAMI NAIDU Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) The Full Bench (1949) 1 M.L.J. 1 (F.B.) has now decided that the powers of this court to interfere under Section 491, Criminal Procedure Code, are strictly confined to the various categories enumerated in the judgment and unless any one of such categories exists, this court cannot interfere with an order of detention made by the Provincial Government. If the petitioner can bring his case within one of these instances, then according to the Full Bench, the detention is not one made in exercise of the powers conferred under the Act or in accordance with the provisions of the Act.

(2.) Mr. A.K. Pillai contends that the Provincial Government in ordering the detention of the petitioner was actuated by mala fides with the result that the third circumstance mentioned in the judgment of the learned Chief Justice can be invoked in his client's favour and that the petitioner is therefore entitled to be released. For this argument, he placed reliance on the affidavit of Mr. K.G. Sivaswamy, dated the 24 May, 1948, wherein the deponent states that the grounds of detention served on the petitioner are not true to facts. It is pertinent to observe that Mr. Sivaswamy is a permanent resident of Madras having his abode in No. 8, Westcott Road, Madras, and the grounds of detention relate to facts and circumstances which occurred in the Tanjore district and therefore Mr. Sivaswamy could have, had no personal knowledge of what happened in Tanjore. Even if we are to accept the statements contained in that affidavit they amount only to this, that Mr. Sivaswamy believes that the petitioner has not committed any of the acts mentioned in the order of detention. From the mere circumstance that a senior member of the Servants of India Society does not believe that the acts mentioned in the order of detention can be attributed to the petitioner, it cannot be said that the Provincial Government has acted mala fide. We have carefully perused the grounds of detention submitted to the Provincial Government by the District Magistrate as well as the Government Order, dated 8 April, 1948, Memorandum, No. 334/48-8, and we cannot find any reason to doubt that the action of the Provincial Government was mala fide.

(3.) It is next contended by Mr. Pillai that the order of detention has been made by an authority not competent to make it and if that is so, the provisions of Madras Maintenance of Public, Order Act, 1947, cannot be invoked against the petitioner. Reliance is placed upon the circumstances that the Government Order referred to above does not make mention of the fact that it was issued under the authority and by the order of His Excellency the Governor, but is signed only by the Chief Secretary to Government. According to Section 59 (1) of the Constitution Act, all executive actions of the Government of the Province shall be expressed to be taken in the name of His Excellency the Governor and since on the face of the order of the Government it does not appear that the action was taken in the name of His Excellency the Governor, learned Counsel strenuously contends that the order of detention does not conform to the Act. Even if this is a defect, we are of opinion that it is only one of form and not of substance. In Gas Plant Manufacturing Co., Ltd. V/s. Emperor (1947) 2 M.L.J. 402 : (1947) F.L.J. 71, the Federal Court has decided that where instead of the words " Governor-General in Council " a particular order referred to the Central Government, the contention that the order was invalid has to be rejected. The learned Public Prosecutor also, invites our attention to Sub-section (2) of Section 59 of the Constitution Act which states that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in the rules to be made by the Governor and the validity of an order or instrument which is so authenticated shall not be called into question on the ground that it is not an order or instrument made or executed by the Governor. He also informs us that there are rules made under this sub-section empowering the Chief Secretary to issue the order on behalf of the Governor. We are not inclined to accept the contention of the learned Counsel for. the petitioner that the Government Order, dated the 8 April, 1948, was not issued by order of His Excellency the Governor as contemplated in Section 59(1) of the Constitution Act. This contention has therefore no force.