1. This is an application by Tabarak Khan under Section 491, Criminal P. C. complaining that his detention is illegal. Mr. Basanta Chandra Ghosh, who has appeared for the petitioner, has made general arguments, which, according to him, arise not only in this application but in a series of other applications by other detenus, for whom he has also appeared in this Court. It may be mentioned that Mr. Ghosh has represented the case of eleven detenus including the detenu Tabarak Khan. Mr. Bhabanand Mukherji has appeared for the detenu Madhub Chandra Sen in Criminal Miscellaneous No. 780 of 1949. Mr. Baidyanath Prasad No. II has appeared for two detenus, namely, Jagdish Sao in Criminal Miscellaneous No. 813 of 1949, and Musahari Sao in Criminal Miscellaneous No. 848 of 1949. Mr. J. N. Varma has appeared for one detenu Tribeni Choudhury in Criminal Miscellaneous No. 876 of 1949. Mr. Umesh Chandra Prasad has appeared for four detenus, namely, Syed Alley Nabi in Criminal Miscellaneous cases Nos. 829 and 861 of 1949, Chittaranjan Hati in Criminal Miscellaneous No. 862 of 1949, Birendra Nath Das Gupta in Criminal Miscellaneous No. 869 of 1949, and Rajdeo Singh in Criminal Miscellaneous No. 879 of 1949. In the case of nine detenus, no one has appeared for them and their applications in the various criminal miscellaneous cases have been sent to this Court from the Jail. The various advocates other than Mr. Ghosh appearing in their respective cases were asked if they had any further arguments to make then what had been urged by Mr. Ghosh by way of general submissions, and they stated that they had nothing further to add to what Mr. Ghosh had urged by way of general submissions. They have, however, urged the cases of the detenus represented by them regarding the merits of the applications made by them or on their behalf. The case of each detenu will be taken up separately and separate orders will be passed on the merits of their applications. The general submissions made by Mr. Ghosh will be dealt with in the present application of Tabarak Khan in Criminal Miscellaneoua No. 784 of 1949, and the decision with respect to them will be applicable to the cases of the other detenus in the various criminal miscellaneous applications, which were heard after the case of Tabarak Khan.
2. The Federal Court in the case of Jatindra Nath v. Province of Bihar, A. I. R. (36) 1949 F. C. 175; (50 Cr. L. J. 897) had declared ultra vires the proviso to Section 1 (3), Bihar Maintenance of Public Order Act of 1947. It has also declared the Bihar Act of 1949, which purported to amend the provisions of Section 1 (3) of the said Act invalid in law inasmuch as the enactment which it purported to amend was not legally in existence when the Bihar Act v of 1949 was passed. Subsequent to this decision of the Federal Court, the Governor of Bihar promulated an ordinance, namely, Bihar Order No. II of 1949, on 3rd June 1919. This Ordinance was declared by this Court to be void and inoperative on 21st of June 1949, as the Legislature of the Province of Bihar though not actually sitting was neither prorogued nor dissolved. Consequently, the Governor could not promulgate an Ordinance under Section 88 (1) , Government of India Act. The Governor of Bihar then promulgated an Ordinance, namely, Bihar Order No. IV of 1949, hereinafter referred to as the Ordinance, on 22nd June 1949. The Ordinance was declared intra vires by this Court and that decision was upheld by the Federal Court in the case of Lakhi Narayan Das v. Province of Bihar: (A. I. R. (37) 1960 F. C. 69) by its judgment dated 28th November 1949.
3. The detenu Tabarak Khan was ordered to be detained by the Provincial Government by its order dated 27th June 1949, under the provisions of Section 2 (1) (a) of the Ordinance. The document containing the grounds of detention under Section 4 (1) of the Ordinance is dated 22nd August 1949, and it was served upon Tabarak Khan on 24th August 1949. Such arguments as were made by Mr. Ghosh with reference to the case of Tabarak Khan only will be considered later after the general submissions which have been made by him challenging the validity of the detention not only of Tabarak Khan but of several detenus, whose case he has represented in this Court, have been dealt with. The cases of Tabarak Khan and of many other detenus were heard after the decision of the Federal Court in the case of Lakhi Narayan Das v. Province of Bihar, (A. I. R. (87) 1960 F. C. 69). It was neceasary to await this decision, as it was thought that the decision of the Federal Court would make it clear as to whether the Ordinance was ultra vires or not.
4. Mr. Ghosa commenced his arguments by referring to the observations of Sir Patrick Spens C, J., Federal Court of India, in the cage of Basanta, Chandra v. Emperor, 23 Pat. 678 at p. 692: ( A. I. R. (31) 1944 F. C. 86) to the following effect:
"In our judgment, no further curtailment of the power of the Court to investigate and interfere with orders for detention has been imposed by Order III  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 III  or a new order purporting to be made under Ordinance III  was in fact validly made, in exactly the same way 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 any of 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 III  will no more prevent it from so finding than Section 16, Defence of India Act did. Such an invalid order, though purporting to be an order, will not in fact be an 'order made under this Ordinance' or having effect by virtue of Section 6 as if made under this Ordinanoe at all for the purposes of Section 10."
No one could doubt the validity of the observations made by the learned Chief Justice. I am of opinion that it is always open to a Court of law to enquire into the propriety of a detention made under a particular legislation in order to Bee whether the order of detention was a valid one or not. Mr. Ghosh, however, urged that where the liberty of the subject was involved, unless there were safeguards in the particular legislation to protect such liberty, that legislation was invalid. No one can doubt that the preservation of the liberty of the subject is of the utmost importance to the State and to a Court of law. The Courts of law, however, at the same time have to administer the law as it exists, and if the particular legislation is validly enacted, it is not within the scope of the authority of a Court of law to ignore that legislation because it interferes with the liberty of the subject. In this connection I would like to quote the opinions of their Lordships of the House of Lords is the case of Liversidge v. Sir John Anderson, 1942 A. C.206: (110 L. J.K.B.. 724). Viscount Maugham observed at p. 218 as follows :
"Before dealing with the construction of the regulation, it is desirable to consider how the matter should be approached. The appellant's counsel truly say that the liberty of the subject is involved. They refer in emphatic terms to Magna Carta and the Bill of Rights, and they contend that legislation dealing with the liberty of the subject must be construed, if possible, in favour of the subject and against the Crown. Adopting the language of Lord Finlay L. C in this House in the case of Bex v. Halliday, 1917 A. C. 260 at p. 270 : (86 L. J. K. B. 1119). I hold that the suggested rule has "no relevance in dealing with an executive measure by way of preventing a public danger" when the safety of the State is involved. The language of the Act of 1939 (above cited) shows beyond a doubt that Defence Regulations may be made which must deprive the subject 'whose detention appears to the Secretary of State to be expedient in the interests of the public safety' of all his liberty of movement while the regulations remain in force. There can plainly be no presumption applicable to a regulation made under this extraordinary power that the liberty of the person in question will not be interfered with and equally no presumption that the detention must not be made to depend (as the terms of the Act Indeed suggest) on the unchallengeable opinion of the Secretary of State. The legislature obviously proceeds on the footing that there may be certain persons against whom no offence is proved nor any charge formulated, but as regards whom it may be expedient to authories the Secretary of State to make an order for detention."
Lord Atkin, who had expressed a dissenting opinion in the case when referring to the case of Bex v. Halliday, 1917 A. c. 260 : 86 L. J. K. B, 1119) observed at p. 238 :
"In that case the regulation undisputedly gave to a Secretary of State unrestricted power to detain a suspected person, though only on the recommendation of an advisory Committee presided over by a Judge. The argument for the appellant was that the regulation was ultra vires because though the words of the Defence of the Realm Act under which that regulation was made were plainly wide enough to enable a regulation to be made giving unrestricted powers, yet they ought to be read with a limitation in favour of liberty. Every Judge who dealt with the case, including the noble Lords, refused to limit the natural meaning of the words, pointing out that a state of war would itself tend to confine the construction to the plain meaning of the words and would discourage any attempt to make the words lean in favour of liberty. What that case has to do with the present I cannot see.
No one doubts that the Emergency Powers (Defence) Act, 1939, empowers. His Majesty in Council to vest any minister with unlimited power over the person and property of the subject. The only question is whether in this regulation His Majesty has done so."
Lord Macmillan observed at p. 267 :
"I yield to no one in my recognition of the value of the jealous securtiny which our Courts have always rightly exercised in considering any invasion of the liberty of the subject. But I remind myself, in Lord Atkinsort's words, that 'however precious the personal liberty of the subject may be there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war or escape from national plunder or enslavement': Rex v. Halliday, (1917 A. C. 260 : 86 L.J.K.B. 1119). The liberty which we BO justly extol is itself the gift of the law and as Magna Carta recognizes may by the law be forfeited or abridged. At a time when, it is the undoubted law of the land that a citizen may by conscription or requisition be compelled to give up his life and all that he possesses for his country's cause it may well be no matter for surprise that there should be confided to the Secretary of State a discretionary power of enforcing the relatively mild prosecution of detention."
Lord Wrigbt observed at p, 260 ;
"What is involved is the liberty of the subject. Your Lordships have bad your attention called to the evils of the exercise of arbitrary powers of arrest by the executive and the necessity of subjecting all such powers to judicial control. Your Lordships have been reminded of the great constitutional conflicts in the seventeeth century which culminated in the famous constitutional charters, the Petition of Right, the Bill of Rights, and the Act of Settlement. These struggles did, indeed, involve the liberty of the subject and its vindication against arbitrary and unlawful power. They sprang (to state it very broadly) from the Stuart theory that the King was King by divine right and that his powers ware above the law. Thus a warrant of arrest 'per special mandatum Domin Regis' was claimed, to be a sufficient justification for detention without trial. But by the end of the seventeenth century the old common law rate of the supremacy of law was restored and substituted for any theory of royal supremacy. All the Courts to-day, and not least this House, are as jealous as they have over been in upholding the liberty of the subject. But that liberty is a liberty confined and controlled by law, whether common law or statute. It is in Burke's words, a regulated freedom. It is not an abstract or absolute freedom."
Lord Romer also cited the passage from the speech of Lord Atkinson in Bex v. Halliday, (1917 A. o. 260 : 86 L. J. K. B, 1119), which has already been raferred to above. It will thus be seen that in the opinion of their Lordships in Liversidge's case, (1942 A. C. 206 : 110 L, J. K. B. 734) the liberty of the subject is not an abstract or an absolute freedom. It is capable of being regulated by legislation when the safety of the state is involved. The safety of the State may be involved in various ways. The degree of the safety of the state may vary according to circumstances. The threat of invasion by another state would be involving the safety of the state in the highest? degcee. Maintenance of law and order would also be a matter of very great importance for the safety of the state. Disaster of a very great magnitude caused by natural events would also involve the safety of the state in some degree. In all these circumstances and others where the established Government finds it necessary to maintain law and order in the state, it is compelled to legislate and in as legislating may have to curtail the liberty of the subject. It may also have to curtail the powers of the Courts of law. So long as the legislation is within the legislative field of the legislating authority, such legislation would be valid legislation. After referring to the following passage from Lord Atkinaon's speech in the case of Bex v. Halliday, (1917 A.C. 260 : 86 L. J. K. B. 1119).
"However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war or escape from national plunder or enslavement. It must not be assumed that the powers conferred upon the executive by the statute will be abused."
Lord Wright in Liversidge'a case observed :
"These speeches embody statements of principle very relevant to the present case, and, notwithstanding, difference in the particular enactments, furnished an important and direct precedent for the conferring of powers to exercise preventive detention upon his own responsibility on the Home Secretary, and, subject to theoretical exceptions not relevant here, ousting the jurisdiction of the Court. In ordinary administrative measures, the legislative practice of substituting for the jurisdiction of the Court that of a specially constituted tribunal is well established, and increasingly frequent, particularly since the decision of this House in Local Government Board v. Arlidge, 1915 A. C. 120 : (84 L. J. K. B. 72). That ease dealt with closing orders under the Housing, Town planning, etc. Act, 1909, Lord Haldane, L. C., pointed out that in regard to these administrative orders; "The jurisdiction both as regarda original applications and as regards appeals was in England transferred from the Courts of Justice to the local authority and the local Government Board, both of them administrative bodies." It is true that the personal liberty of the subject is there not affected, but only his liberty to do what he likes with his own, but the principle is the same. Parliament excludes the jurisdiction of the Courts and substitutes in the ona case a specially constituted administrative body in a case like the present, the Secretary of State. In no oaae are ordinary legal rights to be affected, unless to the extent that Parliament has said."
5. The Ordinance and the entire provisions of Section 4(l) of the Ordinance were declared to ba intra vires by their Lordahipa of the Federal Court by their judgment dated 28th November 1949, in the cage of Lakhi Narayan Das v. Province of Bihar, (A. I. R. (37) 1950 F. C. 59) and it would be just as well to quote the various passages from their Lordships' judgment as to this, There Lordships observed :
"That all the provisions of the Ordinance relates to or are concerned primarily with the maintenance of public order in the Province of Bihar and provide for preventive detention and similar other measures in connection with the same."
"It is true that detention of a person without a judicial order in a sense goes against the provision of the Criminal law but that is the very essence of preventive detention. The ordinance lays down what in the opinion of the legislative authority is essential for maintenanae of publio order in the province. That is the trua nature and character of the legislation which unquestionably brings it within Item (1) of List II."
"The word 'arbitrary' oonnotea want of reasonable or proper justification. If a particular piece of legislation is entirely within the ambit of the Legislature's authority, there could be nothing arbitrary in it so far as a Court of law is concerned, The Courts have nothing to do with the policy of the Legislature or the reasonableness or unreasonableness of the legislation."
"The Court has got to decide on a consideration of the true nature and character of legislation whether it is really on the subject of preventive detention or not. Once that point is decided in favour of the legislative authority, and it is held that it has not trespassed beyond the limits of its assigned powers, it is not for the Court to criticise the wisdom and policy of the Legislature."
The Ordinance having thus been declared to be intra vires by their Lordships and to have been validly legislated, it is quite clear that its provisions cannot be declared te be invalid merely on the ground that it confers powers on the executive to interfere with the liberty of the subject.
6. It was, however, contended by Mr. Ghosh that the decision of their Lordships in Lakhi Narayan Das's case, (A. I.R. (37) 1950 p. c. 69) was obiter. In my opinion, this is an idle contention. Their Lordships could not have been clearer in terms than they have been in declaring the Ordinance as intra vires. Their Lordships had decided the matter after considering the various provisions of the Government of India Act and of the Ordinance concerned. Mr. Umrigar, who had appeared for some of the detenus before their Lordships had raised as bis fourth contention that the provisions of Sections 23 and 24 and the proviso of Section 4 (1) of the Ordinance were illegal and ultra vires, and as they were not severable from the rest of the Ordinance, the entice Ordinance was bad on account of these offending provisions. So far as Section 23 is concerned , their Lordships held that it was superfluity for the reasons already stated in their judgment and it could certainly be ignored but it would not affect the validity of the Ordinance itself in any way. With reference to Section 24 of the Ordinance, their Lordships held that assuming its provisioua to be bad, it was not so inextricably woven into the scheme of the whole Ordinance and so inseparably connected with its other provisions that this invalid section would make the whold Ordinance invalid and that if the section is struck out, the rest of the Ordinance would certainly survive as an effective piece of legislation fulfilling the identical object for which the Ordinance was passed.
7. So far as Section 4 (1) of the Ordinance was concerned, Mr. Umrigar had urged before their Lordships that this clause was beyond the capacity of any Provincial Legislature to enact and it was not a matter included in any of the items in the Provincial list. Their Lordships then referred to the provisions of Section 4 (1) of the Ordinance and dealt with the contention of Mr. Umrigar that the proviso in it wholly took away the only safeguard which was provided for in Section 4 (1) and which enabled a detenu to make an effective representation by way of reply to the allegations made against him, Mr. Umrigar had further contended that once this safeguard available to a detenu was whittled down and rendered illusory by the proviso, the detention was no longer a "preventive detention", which item (1) of the Provincial List contemplated; it degenerated into 'arbitrary detention' and in respect of such a matter no power of legislation had been given to the province by the Government of India Act. Reference was made by Mr. Umrigar to the Full Bench decision of thia Court in Murat Patwa v. Province of Bihar 26 Pat. 628 : (A. I. E. (36) 1948 Pat. 135 : 49 Cr. L. J. 132 F.B). After considering the arguments of Mr. Umrigar, their Lordships rejected the arguments made by him. They were of the opinion that the observations made in Murat Patwas's case, 26 Pat. 628: (A. I.R. (35) 1948 pat. 135 : 49 Cr. L. J. 132 F.B.), where a distinction was made between 'preventive' and 'arbitrary detention, were obiter dicta and were of the opinion that the provisions of Section 4 (1) of the Ordinance with its proviso were validly enacted. They clearly approved of the view taken by a Bench of the Calcutta High Court in Sushil Kumar v. Government of West Bengal, 53 C. W. N. 645. The only question which their Lordships left open was as to whether the proviso to Section 4(l) of the Ordinance practically nullified the main section to which it was engrafted and whether it would prevail over the section itself. This was a question of construction in the opinion of their Lordships which could be raised on a proper occasion. It seems to me that Mr. Umrigar had specifically raised various questions in support of his argument that the Ordinance was ultra vires and had specially raised the question that the proviso to Section 4 (1) of the Ordinance was beyond the capacity of any Provincial Legislature to enact. His contentions having been rejected by their Lordships, it cannot be said with any good sense that the observations of their Lordships in this connection were obiter. I think, we must proceed, after the decision of their Lordships, on the basis that the Ordinance was not ultra vires and that the proviso to Section 4 (1) of the Ordinance was within the competency of the legislative authority to enact, and, consequently the proviso was a valid provision.
8. It was argued, however, by Mr. Ghosh that even if the proviso to Section 4 (1) of the Ordinance was validly exacted, whenever recourse was taken to it, it was to render the Ordinance ultra vires or at least the powers exercised under it ultra vires. This contention was made with reference to the proviso before its amendment: under Bihar Ordinance No. v of 1949 promulgated by the Governor of Bihar on 2lst September 1949, by which the words
'where the Provincial Government IB of opinion that 'it would be against the public interest to disclose all the grounds of the order,"
in the proviso were directed to be omitted. As I have already indicated, the proviso to Section 4 (1) before the amendment was declared by their Lordships of the Federal Court was validly enacted, and, consequently whenever, recourse was taken to it, it could not render the entire provisions of the Ordinance ultra vires, not the powers exercised under it ultra vires. At best, it could be urged as a matter of construction that the proviso before the amendment practically nullified the main sub-section itself to which it was engrafted. It is now to be seen as to whether this is so. The provisions of Section 4(1) with the proviso before the amendment are in the following terms:
"Where an order is made in respect of any person under Clause (a) of Sub-section (1) of Section 2, as soon may be after the order is made, the authority making the order shall communicate to the person affected thereby, so far as such communication can be made without disclosing facta which the said authority considers it would be against the public interest to disclose, the grounds on which the order has been made against him and such other particulars as are io the opinion of such authority sufficient to enable him to make, if he wishes, a representation against the order and such person may within fifteen days of the receipt of such communication make a representation in writing to suoh authority against the order and it shall be the duty of such authority to inform such person of his right of making such representation and to afford him the earliest practicable opportunity of doing so:
Provided that where the Provincial Government 13 of opinion that it would be against the public interest to disclose all the grounds of the order, neither the said order nor the detention of the said person thereunder shall be invalid or unlawful and improperon the ground of any defect, vagueness or insufficiency of the communication made to such person under this section."
It will be apparent from these provisions that the sub-section provides thai as soon as may be after an order is made in respect of any person under Clause (a) of Sub-section (1) of Section 2 of the Ordinance, the authority making the order shall communi-cate to the person affected thereby, (1) the grounds on which the order has been made against him, (2) such other particulars as are in the opinion of such authority sufficient to enable him to make, if he wishes, a representation against the order, (3) it shall be the duty of the said authority to inform such person of his right to make such a representation, and (4) to afford him the earliest practicable opportunity of doing so. These provisions are mandatory and must be complied with by the authority making the order in respect of any person, under Clause (a) of Sub-section (1) of Section 2. The proviso does not, in my opinion, nullify any of these provisions. It is a saving clause to the effect that neither the order nor the detention of tbe said person thereunder shall be invalid or unlawful or improper on the ground of any defect, vagueness or insufficiency of the communication made to suoh person under this section. The main part of Sub-section (1) does give certain safeguards which would prevent it from being described as an 'arbitrary detention'. The provisions of Sub-sections. (2), (8), (4) and (6) of Section 4 of the Ordinance do provide further safeguards in that an Advisory Council has to be constituted by the Provincial Government to consider the case of every detenu and to make a report to the Provincial Government. Lord Macmillan observed in Liversidge's case'. (1942 A C. 206: 110 L. J. K. B. 724) as to this at page 261:
"Were the person detained left without any safeguard, this might be an argument against holding that an absolute discretion hag been conferred on the Secretary of State, buttheargument is the other way when it is found, as it is in this regulation, that elaborate provision is made for the safeguarding of the detained person's interests. I refer to the constitution of advisory committees to which any person aggrieved by a detention order may make representations. The duty is imposed on the chairman to inform the objector of the grounds on which the detention order has been made and to furnish him with such particulars as are in the chairman's opinion sufficient to enable him to state his case. I say nothing as to the efficacy of this safeguard, for I do not know how it operates in practice, but I emphasize the significance of its presence in the regulation. It suggests that this special procedure was introduced for the very reason that review by the law Courts was excluded. Yet here again the paramount concern not to diminish the personal authority and responsibility of the Secretary of State is evidenced by the recognition of his right to decline to follow any advice given to him by an advisory committee."
What has been saved by the proviso, however, is not that tbe detaining authority shall not comply with the mandatory provisions of tbe sub-section on tbe contrary, it shall comply with these provisions but that if there was any defect, vagueness or insufficiency in the communications made to tbe detenu, that by itself would not make the detention invalid or unlawful or improper. Tbe reason why this proviso was made would appear to be clear from the provisions of Sub-section (2) (3), (4) and (5) of Section 4 of the Ordinance. By these provisions, the Provincial Government is bound to constitute an Advisory Council of at least three members before whom the Provincial Government shall place the grounds on which tbe order bas been made, and the representation, if any, of the detenu with any other relevant matter which the Provincial Government may consider necessary. The Advisory Council has to submit a report within three weeks from the date of its receiving tbe materials and further information which it may have asked for. No doubt it was left to the Provincial Government after considering the report, to either confirm, modify or cancel the order made under Clause (a) of Sub-section (1) of Section 2. If there was any defect, vagueness or insufficiency in the communication made to a detenu, it is clear the Advisory Council could ask for further information from the Provincial Government or from the detenu. I have no doubt that after having been supplied with the materials and such further information as it called for, the Advisory Council would be in a position to make a report that, in the circumstance in its opinion the detention was uncalled for or otherwise. In other words, the Ordinance set up a procedure beyond the jurisdiction of the Courts of law to consider the case of each detenu by an Advisory Council. Although it was left open to the Provincial Government either to confirm, modify or cancel the order of detention after considering the report of the Council. It the detaining authority did not comply with the main provisions of Sub-section (1) of Section 4 of the Ordinance, that is to say, did not supply as soon as may be the grounds of detention or any particulars at all, or did not inform the detenu as to his right to make a representation, or did not afford him the earliest practicable opportunity of doing so, the proviso could not stand in the way of a Court of law declaring, in such circumstances, such a detention illegal, A Court of law would and would in an application made to it under Section 491, Criminal P. C., examine the grounds of detention in order to ascertain amonst other things as to whether they contained any particulars at all. If such grounds contained no particulars at all, the provisions of Sub-section (1) of Section 4 of the Ordinance would not have been com. plied with. Very great care would have to be taken in distinguishing between vagueness in the particulars supplied and particulars not being supplied at all.
9. Mr. Ghosh, however, relied upon the Full Bench decisions of this Court in Murat Patwa's case: (26 pat. 628: A. I. R. (35) 1948 pat. 135: 49 or. L. J. 182 F. B.) and the case of Nek Mohammad v. Province of Bihar, A. I. B. (36) 1949 Pat. 1 : (50 Cr. L. 3. 44 F. B.) to the effect that the vagueness in the particulars in the grounds as supplied to a detenu which could not enable him to make an effective representation would make the detention illegal. Consequently, the effect of the proviso in Sub-section (1) of Section 4 of the Ordinance had the effect of nullying the mandatory provisions of the main sub-section. It is, however, to be remembered that these decisions were given with reference to Bihar Act v  of 1947 (The Bihar Maintenance of Public Order Act, 1947) Section 4 of the said Act is in similar terms to Sub-section (1) of Section 4of the Ordinance but without the proviso. It did not contain such provisions as are found in sub-as. (2), (3), (4) and (5) of the Ordinance. The proviso to Sub-section (1) of Section 4 of the Ordinance no doubt makes ineffective the decision in Nek Mohammad's case: (A. I. R. (36) 1949 pat. l: 50 Cr. L. j. 44 P. B.) in this respect. That, however, was within the com-petence of the Legislative authority to do. In construing the provisions of a statute, the Court has to look to the provisions contained therein and if the words are clear, effect has to be given to those provisions. I am very doubtful, if Section 4 of the Act v  of 1947 had a similar proviso to it as is to be found in Sub-section (1) of Section 4 of the Ordinence, that the decision in Nek Mohammad's case : ( A. I. R. (36) 1949 pat. 1: 50 or. L. J. 44 F. B.) would have been what it has been, Bihar Act v  of 1947 was no longer law when the Ordinance was enacted. As I have already pointed out, the proviso to Sub-section (1) of Section 4 of the Ordinance has been found by their Lordships of the Federal Court to have been validly enacted, and on a matter of construction, I can find no such thing in it as would nullify the main provisions of Sub-section (1) as they stand in the Ordinance. In construing the wording of Sub-section (1) with its proviso, I am unable to take into consideration the decision of this Court in Nek Mohammad's case; (A. I.R. (36) 1949 Pat. l: 60 or. L. J. 44 F. B.) or in Murat Patwa's case : (26 Pat, 628: A. I. R. (35) 1948 Pat. 135: 49 Cr. L. J. 132 P. B.) regarding the vagueness of insufficiency of the particulars supplied to a detenu.
10. It was next urged by Me, Ghosh that the proviso to Sub-section (1) of Section 4 of the Ordinance had been amended by Bihar Ordinance, No. v  of 1949 which directed that the words "where the Provincial Government is of opinion that it would be against the public interest to disclose all the grounds of the order" shall be omitted, and this rendered the whole of Ordinance No. IV  of 1949 ultra vires. As I under stood his argument, by this amendment, the detaining authority could make the communication of the grounds and the particulars vague and insufficient with all kinds of defects and the detenu would not be in a position to make an effective representation. The exercise of such power would make the detention arbitrary, and the provisions of the Ordinance could not be said to be with reference to preventive detention. I am unable to accept this contention as the detaining authority would haye still to comply with the main provisions of Sub-section (1) . So long as the detaining authority observed the mandatory provisions of the main provisions of Sub-section (1), any defect, vagueness or insufficiency in the communication to the detenue would not render the order of detention or the detention itself unlawful or improper. I cannot see how the Ordinance in its entirety could ba said to ba ultra vires because of the amendment made by Ordinance No. v  of 1949.
11. Mr. Ghosh further argued that the Gover. nor of Bihar had no power to amend the Ordinance. He argued that under Section 88, Government of India Act, the power of the Governor to legis iate was a limited authority. He argued that once an Ordinance was enacted by the Governor, he could neither repeal nor amend it. He could only withdraw it under Clause (c) of Sub-section (2). He arelied upon the decision of the Dacca High Court in the case of Tamizuddin Ahmad v. Province of East Bengal, (36) A, I. R. 1949 Dacca 33 : (51 Cr. L. J. 65). This decision, however, ia not in point as it decided that the Governor had no power to extend an ordinance. In that decision itself, reference has been made to the cage of Jnan Prasanna v. Province of West Bengal, 53 C. W. N. 27 : (A. I. R. (36) 1949 Cal. 1 F. B.) jand the observations of Harries, C. J. have been quoted. In my opinion, the power to enact laws in a legislative authority contains within it the inherent power to repeal or amend an enacted law. Clause (c) of Section 88 (2) in my opinion, is merely an enabling provision by which the Governor could by aome order withdraw an Ordinance duly promulgated by him without having recourse to promulgating a fresh Ordinance repealing the previous Ordinance. This does not mean that if the Governor wished to amend an Ordinance already promulgated by him, it was not within his competence to do so by duly promulgating an Ordinance under Section 88, Government of India Act. Harries, C. J. in the Full Bench decision of the Calcutta case in this connection observed :
"Section 88 (2) also provides that an Ordinance promulgated under that section shall have the same force and effect as an Aot 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 & proper case, The Provincial Legislature could undoubtedly amend the existing Provincial law and that being so the Governor can do so by 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 eSect to the Ordinance. It was argued that Clause (2) of Section 1 was clearly retrospective and so alao was Section 3. By of (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 Aot, as if on that date 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 oase of the United Provinces v. Mt. Atiqa Begum, 1940 F. C. R. 110 : ( A. I. R. (28) 1941 F. C. 16), that the right to legislate retrospectively ia 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 to me that inherent in that right is a right to legislate retrospectively if suoh course were necessary. This was the view of a Full Bench of the Bombay High Court in Prabhakar Kondaji v. Emperor, A. I. R. (31) 1944 Bom. 119 : (45 Gr. L. J. 604) and it hag been accepted by the Privy Council in Kumar Singh v. Emperor, 73 I. A. 199 : (A. I. R, (33) 1946 P. 0. 169 : 47 Cr. L. J. 933)."
I respectfully agree with the opinion of his Lordship,
12. A further argument was raised by Mr. Ghosh that the amending Ordinance V  of 1949 could not have a retrospective effect, that is to say, could not apply to cases where orders of detention had been passed before the date of the amending Ordinance. It has always been understood that no statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require such a construction, and that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary. This was the view which Lindlay, L. J. expressed in Lauri v. Benad, (1892) 3 ch. 402 : (61 L. J. oh. 580). There may, however, be exceptions to this general rule. In Edn. 4 of Craiea on Statute Law at p, 341 it has been stated : "Where a statute is passed for the purpose of supplying an obvious omission in a former statute or, as Parke J, said in R. v. Durslay, (1832) 3B & Ad. 469 : (1 L. J. M. C. 37), "to 'explain' a former statute," the subsequent; statute has relation back to the time when the prior Act was passed," Craies also state that where an Act is in its nature declaratory the presumption against construing it reatrospectively is inapplicable. In my opinion, the amending Ordinance should be read as one to which the presumption against construing it reatrospectively is inapplicable.
13. Mr. Ghosh also argued that the provisions of Sections 23 and 24 of the Ordinance rendered the Ordinance ultra vires. This has been fully considered by their Lordships of the Federal Court in the case of Lakhi Narayan Das v. The Province of Bihar, A. I. R. (37) 1950 F. C. 59, so recently decided, in which such a contention has been negatived, and I am bound to follow the decision of their Lordships.
14. It was next urged that the expression "as soon as may be" in Sub-section (1) of Section 4 of the Ordinance means nott more than 16 days from; the date of the order of detention. It ia impossible to construe the provisions of Sub-section (1) of Section 4 of the Ordinance in such a way. Reliance, however, was placed on certain observations of their Lordships in the Pull Bench decision of this Court in Murat Patwa's case, 26 Pat. 628 : (A.I.R. (35) 1948 Pat. 135; 49 Cr. L. J. 132). Their Lordships observed :
"What in this context is the effect of the words 'aa soon as may be?' We may ask ourselves--as soon as may be--what? In this respect, the Legislature in providing that, once the grounds have been served, the person affected shall be afforded the earliest practical opportunity of making a representation, has provided aa express indication of its intention because it cannot have intended that there should be any greater degree of delay in communicating the grounds to the person affected than in affording him an opportunity of making his representation. Any contrary inference would lead to an absurdity."
While their Lordships no doubt so observed they clearly stated later on in the judgment that:
"Beyond saying that it should ordinarily he possible to communicate the grounds to a detena within a comparatively abort period of time and that after the lapse of such a period the onus will shift to the authority in question to show that the grounds were served as goon aa was reasonable, we think it better net to indicate any particular period as being sufficient to shift the onua of proof. The circumstances will obviously differ to a substantial extent. What is reasonable in one set o! circumstances may be quite unreasonable ia another."
It is quite obvious that in Murat Patwa's case, 26 Pat. 628 : (A.I.R. (35) 1948 Pat. 135; 49 Cr.L J. 132 (F,B.) ), there is no decision to this effect that the words "as soon aa may be" mean that the grounds of detention should be served in all cages within 15 days from the date of the order of detention.
15. Mr. Ghosh also urged that the detention was mala fide in that there was an inordinate delay, after the recommendation of the Advisory Council, in passing final orders under Sub-section (5) of Section 4 of the Ordinance. He further urged that due care and diligence was not exercised by the detaining authority, and, consequently, the detention was mala fide. These are matters which really should be more properly considered when the case of each detenu ia dealt with. If the detention is a mala fide one, then no doubt, having regard to the decisions of the Courts in this country, and the observations of their Lordships in Liversidge's case, (1942 A. C. 206 : no L. J. K. B. 724), the detention can be declared illegal by a Court of law. A mala, fide detention, however, would not make the Ordinance ultra vires.
16. Having given due consideration to the submissions made by Mr. Ghosh, so far as I waa capable of understanding them, I have come to the conclusion that none of them can reasonably establish the proposition that the Otdinance was ultra vires.
17. Coming now to the specific case of Tabarak Khan, I have already set out at the commencement of this judgment the various dates regarding the order of detention, the grounds of detention, and their service. Mr, Ghosh pointed out that there had been a delay of 58 days since the order of detention and the service of the grounds of detention. This was non-compliance with the mandatory provisions of Sub-section (1) of Section 4 of the Ordinance in that the grounds of detention were not served aa soon as may be after the order of detention. On behalf of the Government, affidavits have been filed to show that Tabarak Khan was released from jail on 3rd June 1949, by virtue of an order of this Court. That release, I take it, was due to Bihair Ordinance, II  of 1949 having been declared ultra vires by this Court. A fresh order of deten. tion was made by the Provincial Government on 27th June 1949, under Ordinance IV  of 1949; It was not until 3rd August 1949, that Tabarak Khan was arrested and brought to Dhanbad Bubjail, The Additional Deputy Commissioner of Dhanbad having come to know of his arrest sent to the Assistant Jailor, B. A. Martin the order of detention made, under Section 2 (1) (a) of the Ordinance which was received by him on 9th August 1949 and he served the order on the detenu on that very day. On loth August 1949, Martin communicated the service of the order to the Political Department, Special Branch of Bihar. He received the grounds of detention dated 22nd August 1949, on 24th August 1949, and served them upon the detenu the same day. In my opinion, there has not been such a delay in serving the grounds of detention upon Tabarak Khan as to make his detention illegal. It was no use drawing up the grounds of detention against Tabarak Khan until the Provincial Government had intimation that he had been arrested and detained,
18. Mr. Ghosh frankly conceded that he had no submissions to make on the grounds of detention and the particulars contained therein. I have looked into the particulars stated in the grounds of detention against Tabarak Khan, and I can find nothing which would justify my saying that there has been non-compliance with the provisions of Sub-section (1) of Section 4 of the Ordinance.
19. Mr. Ghosh further submitted that the detention was mala fide. No facts, however, have been stated in the petition, nor is there any affidavit to prove that the detention is mala fide Mr. Ghosh urged that the detention must b& deemed to be mala fide as there was nothing ta show that the case of Tabarak Khan had been placed before the Advisory Council within three months of the order of detention as required by Sub-section (2) of Section 4 of the Ordinance. He pointed out that the Provincial Government is bound to place the case of a detenu before the Advisory Council within three months of the order of detention, and the Advisory Council was bound, under Sub-section (4), to submit, within three weeks of its receiving the material and further informa. tion as called for, its report to the Provincial Government, He then referred to Section 3 of the Ordinance, pointing out (hat an order of detention made under Clause (a) of Sub-section (1) of Section 2 shall be in force for a period not exceeding sis months from the date on which it is confirmed or modified under Sub-section (5) of Section. 4. Under Sub-section (5) if the Provincial Government delayed in passing final orders after considering the report of the Advisory Council, it could continue to detain a detenu indefinitely and that when it did pass final orders confirming the order of detention, then that order of detention would be in force for six months from the date of confirmation under Sub-section (5). With such wide powers, it was the bounden duty of the Provincial Government to pass final orders after considering the report of the Advisory Council within a reasonable time, otherwise its failure to do so would be regarded as mala fide, and the detention would be illegal as it would be a mala fide detention. Mr. Ghosh however, has not been able to place a single fact to prove that the case of Tabarak Khan has not been placed before the Advisory Council within three months of the order of detention as required by Sub-section (2), nor has he been able to place a single fact to show that the Advisory Council submitted its report and that the Provincial Government did not pass any orders on it under Sub-section (5). In these circumstances, I do not think it is possible for me to hold that the detention of Tabarak Khan is illegal because it is a mala fide detention.
20. The application of Tabarak Khan is accordingly dismissed.
21. I agree.