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Permanand Gour v. Rex
Structured Summary of the Opinion: Permanand (Parmanand) Gour — Detention under U.P. Maintenance of Public Order (Temporary) Act
Factual and Procedural Background
This is an application under Section 491 of the Criminal Procedure Code by Permanand (spelled in some places Parmanand) Gour seeking release from detention. He was detained and held in Naini Central Jail under the United Provinces Maintenance of Public Order (Temporary) Act (referred to in the opinion as "the Act"). The factual and procedural events recited in the opinion are:
- On 11 June 1948 the District Magistrate of Allahabad, acting under sub‑section (2) of Section 3 of the Act, issued a detention order directing detention of the petitioner for 15 days. A notice purporting to communicate grounds under Section 5 was issued the same day and served on the petitioner on 13 June 1948.
- On 19 June 1948 the Provincial Government (Governor of the United Provinces) issued a separate detention order under clause (a) of sub‑section (1) of Section 3 of the Act directing detention for six months from the date of that order. A notice under Section 5 communicating grounds was issued the same day and was served on the petitioner on 22 June 1948.
- The Deputy Government Advocate produced duplicate copies of the two orders and the two notices before the Court.
- The petitioner raised nine distinct grounds challenging the validity of his detention. The Court considered these grounds seriatim and ultimately rejected the petition.
Legal Issues Presented
- Whether the courts may inquire into the existence or sufficiency of the grounds of satisfaction of the District Magistrate or the Provincial Government for issuing detention orders under Section 3 of the Act, in the absence of malice, caprice or wantonness.
- Whether, after delegation under Section 11 of the Act, the Provincial Government remains competent to make an order under clause (a) of sub‑section (1) of Section 3.
- Whether the Provincial Government could make an order under Section 3(1)(a) for further detention when the person was already under detention by a District Magistrate under Section 3(2).
- Whether a fresh order by the Provincial Government in effect amounts to an impermissible extension of the District Magistrate's order (relying on Zamir Qasim v. Rex).
- Whether the combined duration of detention under the District Magistrate's order and the Provincial Government's order could exceed six months, contrary to Section 4 of the Act.
- Whether the Provincial Government, as a fresh ordering authority, was required to specify fresh grounds (distinct from the District Magistrate's grounds) when issuing its order.
- Whether the notices under Section 5 (particularly the District Magistrate's and the Provincial Government's notices) were so vague or indefinite as to be non‑compliant with the Act.
- Whether the Provincial Government's Section 5 notice was invalid for not being expressed in the name of the Governor or otherwise being in improper form.
- Whether the petitioner's detention was invalid because he received no substantive reply from the Provincial Government to his representation made under Section 5.
Arguments of the Parties
Petitioner's Arguments
- There were in fact no valid grounds for detention by either the District Magistrate or the Provincial Government; the Court's inquiry is limited but can inquire where action is malicious, capricious or wanton.
- After delegation under Section 11, the Provincial Government could not itself make an order under Section 3(1)(a).
- The Provincial Government could not lawfully make a further detention order while the petitioner was already in detention under the District Magistrate's order.
- The Provincial Government's order amounted to an unlawful extension of the District Magistrate's order, relying on Zamir Qasim v. Rex.
- The cumulative detention (15 days plus 6 months) exceeded the six‑month limit in Section 4 and was therefore invalid.
- The Provincial Government, as a fresh authority, should have given fresh grounds and not relied upon the same grounds as the District Magistrate.
- The District Magistrate's Section 5 notice (and perhaps other notices) was vague and indefinite and did not permit an adequate representation.
- The Provincial Government's Section 5 notice was not in proper form (not expressed in the name of the Governor) and so did not comply with the Act (referred also to provisions of the Government of India Act, 1935).
- The petitioner received no reply to his representation, which the petitioner contended invalidated the detention.
Government / Respondent
The opinion does not contain a detailed account of the Government's adversarial legal arguments beyond the production of the duplicate orders and notices by the Deputy Government Advocate. The Court's narrative primarily sets out the petitioner's contentions and the Court's responses.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Zamir Qasim v. Rex, 1948 A.L.J. 169; A.I.R. (35) 1948 ALL. 285; 49 Cr. L.J. 358 | Holds that, when the Act made no specific provision for extension, a fresh order detaining a person further without release — effectively an extension — was not contemplated and would be illegal. | The Court observed that since the decision in Zamir Qasim there had been an amendment (a proviso to Section 4) expressly permitting extension of the period up to six months. Consequently, the principle relied upon in Zamir Qasim no longer precluded the Provincial Government's action under the amended statute. |
Court's Reasoning and Analysis
The Court addressed the petitioner's nine points in sequence and applied statutory construction, limitations on judicial review, and the text of the Act as amended. The essential elements of the Court's reasoning are:
- Standard of judicial review: The Court stated that it may inquire into the existence or adequacy of the grounds for detention only where the detaining authority acted maliciously, capriciously or wantonly. As there was no allegation of malice in fact against either the District Magistrate or the Provincial Government, the Court was not entitled to substitute its view for the satisfaction of the authorities. The grounds communicated by the Provincial Government (instigating illegal strikes; organizing to cut telegraph, telephone and electric wires; persistence in such activities) did not establish malice, caprice or wantonness.
- Delegation under Section 11: The Court examined the Section 11 notification dated 1 August 1947 and emphasised the word "also" in the notification, concluding that delegation did not divest the Provincial Government of its power under Section 3(1)(a). After the notification the powers of the Provincial Government and District Magistrates to make orders under Section 3(1)(a) became concurrent.
- Validity of a Provincial order when detenu already in custody: The Court held that the Act contemplates that a District Magistrate may make a short emergency order (up to 15 days) and the Provincial Government may thereafter make a longer order. There was nothing in the Act to prevent the Provincial Government from issuing an order under Section 3(1)(a) in respect of a person already detained by a District Magistrate under Section 3(2).
- Extension versus fresh order (Zamir Qasim): The Court acknowledged the Zamir Qasim decision but noted a statutory amendment — a proviso to Section 4 — permitting the period specified to be extended from time to time so it does not exceed six months. With that amendment, the prohibition articulated in Zamir Qasim was no longer an absolute bar to a Provincial Government order of the sort impugned.
- Computation of the six‑month period: The Court interpreted Section 4 to mean that the six‑month period applicable to a Provincial Government order runs from the date of the Provincial Government's order. Therefore detention already served under a District Magistrate's order is not to be added to the six months specified in a succeeding Provincial Government order that takes effect from its own date.
- Whether fresh grounds were required: The Court compared the grounds communicated by the District Magistrate and the Provincial Government and found they were not identical; the Provincial Government added the specific ground of instigating workers to go on illegal strike. The Court further noted that even where the Provincial Government acts upon the same material, that may be permissible in view of the District Magistrate's order being of temporary and emergent nature.
- Vagueness of notices: The Court found parts of the District Magistrate's Section 5 notice were vague (e.g., "made preparation to organize a demonstration with a view to commit breach of peace"; "your remaining at large is dangerous to public peace and safety") but that the District Magistrate's notice was in any event redundant because Section 5 is only mandatory when an order under Section 3(1)(a) is made. By contrast, the Provincial Government's Section 5 notice was held to be sufficiently definite, listing (1) instigation of workers to go on illegal strike, (2) organizing to cut telegraph, telephone and electric wires, and (3) persistence in such activities.
- Nature of alleged acts: The Court analysed the allegation of instigating illegal strikes and observed that strikes may be legal or illegal, and that instigating illegal strikes is properly regarded as subversive of law and order. It further observed that organizing to cut telegraph, telephone and electric wires is an act of sabotage not justifiable under any circumstances.
- Form of the Provincial notice: The petitioner argued the Section 5 notice was not in proper form because it was not expressed in the Governor's name. The Court noted that the notice was issued by Government and signed by the Home Secretary, and that the Home Secretary is an authorised officer to authenticate orders in the Governor's name. Reading the Section 3 order and the Section 5 notice together, the Court held the notice effectively communicated the grounds on behalf of the Governor and that the failure to express it expressly in the Governor's name did not prejudice the detenu.
- Non‑receipt of a reply to representation: The Court observed Section 5 does not mandate that the Provincial Government must send a reply to the detenu's representation; it only requires consideration and provides that, if the Government is satisfied that detention is no longer necessary, the order shall be cancelled. Thus non‑receipt of a reply did not invalidate the detention.
Holding and Implications
HOLDING: The petition challenging the detention was dismissed. The Court concluded that the Provincial Government's order of detention (dated 19 June 1948) and the notices given were legally valid on the grounds presented and that there was no basis to set aside the detention.
IMPLICATIONS:
- Direct effect on the parties: The petitioner, Permanand (Parmanand) Gour, remains lawfully detained in accordance with the Provincial Government's order; the petition under Section 491 CrPC was rejected.
- On legal principles: The Court applied the statutory text (including an amendment to Section 4 permitting extensions up to six months) and emphasised limits on judicial review (inquiry limited to instances of malicious, capricious or wanton action). The Court also held that delegation under Section 11 did not oust the Provincial Government's competence and that a Provincial order may validly be made in respect of a person already detained by a District Magistrate under Section 3(2), with the six‑month period running from the date of the Provincial order.
- No indication that the Court announced a broader novel precedent beyond applying the statute and the amendment; the decision addresses the validity of the detention in the circumstances before it and resolves the petition accordingly.
End of summary. This summary is based exclusively on the content of the provided opinion and does not add or infer facts or arguments not present in that text.
1. This is an application under, Section 491 of the Cr PC, by one Permanand Gour for release. He is at present under detention in the Naini Central Jail under the provisions of the U.P Maintenance of Public Order (Temporary) Act, 1917 (hereinafter referred to as “the Act”). The facts are as follows: On nth June 1948, the District Magistrate of Allahabad, acting under subs. (2) of Section 8 of the Act, passed an order of detention against the petitioner in following terms:
“Whereas I.R.P Bhargava, I.C.S, District Magistrate of Allahabad am, on the basis of reports received, satisfied that the person known as Shri Parmanand s/o Shree Ramanand Gaur R/o 445, Badshahi Mandi P.S Kotwali, Allahabad has acted in a manner prejudicial to the public safety and maintenance of public order and whereas it is necessary in the interest of maintenance of public order to prevent the said Shri Parmanand from acting in such a manner by detaining him, I, in exercise of the powers conferred by sub-section (2) of Section 3 of the United Provinces Maintenance of Public Order (Temporary) Act, 1947 (Act IV of 1947) hereby direct that the said Shri Parmanand shall be detained in the custody of the Superintendent Central Jail, Allahabad, for a period of 15 days from the date of this order.”
2. The same day, viz., on 11th June, 1948, the District Magistrate issued a notice to the detenu through the Superintendent Central Jail, Naini, communicating to him “under S. 5” the grounds of detention in the following terms:
“Under S. 5, United Provinces Maintenance of Public Order (Act IV of 1947), I give below a short note giving the grounds on which the order of detention for period of 15 days has been passed against you.
That you made preparation to organize a demonstration with a view to commit breach of peace. That yon made preparation to cut telegraph, telephone and electric wires between 10th and 15th June, 1948, with a view to stop all communications. That your remaining at large is dangerous to public peace and safety.
2. I further inform you that you have got a right to represent your case to me.”
3. This notice was served on him on 13th June, 1948. Eight days later, viz., on 19th June, 1948, the Provincial Government, acting under S. 3(1)(a) of the Act, passed an order of detention against the petitioner in the following terms:
“Whereas the Governor of the United Provinces is satisfied with respect to the person known as Parmanand Gour, resident of Badshahi Mandi, Allahabad that with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of public order it is necessary so to order;
“Now, therefore, in exercise of the powers conferred by cl. (a) of sub-s. (1) of Section 3 of the United Provinces Maintenance of Public Order (Temporary) Act, 1947 (U.P Act No. IV of 1947) as amended, the Governor of the United Provinces is hereby pleased to direct that the said Parmanand Gour shall be detained in the custody of the Superintendent of any Central Prison in the District in the United Provinces for a period of is months from the date of the issue of this order.”
4. The same day, viz., on 19th June, 1948, the Provincial Government issued a notice under Section 5 of the Act communicating the grounds of detention to the petitioner. It runs as follows:
“GOVERNMENT OF THE UNITED PROVINCES
Confidential Department
No. E—1030(iii) XXV/CX.
Dated Lucknow, 19th June, 1948
Notice under Section 5 of the United Provinces Maintenance of Public Order (Temporary) Act, 1947 (U.P Act, No. IV of 1947).
In pursuance of the provisions of Section 5 of the United Provinces Maintenance of Public Order (Temporary) Act, 1947, you Parmanand Gour R/o Badshahi Mandi, Allahabad are hereby informed that the grounds of your detention are that you have been instigating the workers of the Electric Supply Co., to go on illegal strike. You were also organizing to cut the telegraph, telephone and electric wires in different parts of the city between June 10 and 15 to stop all communications. You have persisted in such activities and your actions are prejudicial to the public safety and maintenance of public order.
You are further informed that you have a right to make a representation in writing against the order under which you are detained. If you wish to make such a representation you should address it to Government through the Superintendent of your jail as soon as possible.”
5. This notice was served on him on 22nd June, 1918. The order and notice both issued by the Provincial Government are signed by Shri Govind Narain, Home Secretary to Government, United Provinces. Learned Deputy Government Advocate has placed before me the duplicate copies of the aforesaid two orders and the two notices.
6. Nine points have been urged on behalf of the petitioner to question the validity of his detention and I deal with them seriatim.
7. Firstly, it is contended that there were really no grounds either for the District Magistrate or for the Provincial Government to make an order under Section 3 of the Act. The Courts can, go into the question of the existence or sufficiency of the grounds of satisfaction of the appropriate authority for the issue of an order under S. 3 only when the authority has acted maliciously, capriciously or “wantonly.” Malice may be in fact or in law. If the appropriate authority has not acted maliciously, capriciously or wantonly, it is not open to the Court, having regard to the language of S. 3, to go into the question of the existence or adequacy of the grounds which were regarded by it as adequate. Now, in the present case there is no allegation that there was any malice in fact on the part of the District Magistrate or the Provincial Government. Inter alia the ground, upon which the petitioner has been detained, is that he was organizing to cat the telegraph, telephone and electric wires. The petitioner in his affidavit denies this. We are not sitting as a Court of appeal to determine whether or not there was sufficient evidence for the District Magistrate or the Provincial Government to come to the above conclusion. On the fact, as stated in the notice under S. 5, dated 19th June, 1948, issued by the Provincial Government, it cannot be said that the Provincial Government acted maliciously, capriciously or wantonly.
8. The second ground taken is that after the Provincial Government delegated its powers to the District Magistrate under Section 11 of the Act it was not competent for the Provincial Government to make any order under clause (a) of sub-S. (1) of Section 3 of the Act. Section 11 runs as follows:
“The Provincial Government may, by order, direct that any power or duty, which is conferred or imposed on the Provincial Government under this Act shall in such circumstances and under such conditions, if any, as may be specified in the order, be exercised or discharged by any officer or authority, not being an officer or authority subordinate to the Central Government.”
9. The notification, which the Provincial Government issued on August 1, 1947, under S. 11, is in the following terms:
“In exercise of the powers conferred by Section 11 of the United Provinces Maintenance of Public Order (Temporary) Act, 1947 (IV of 1947) the Governor is hereby pleased to direct that the powers exercisable by him under cl. (a) of sub-s. (1) of Section 3 of the said Act shall also be exercisable by all District Magistrates within their respective districts. An order made under the said clause of the said sub-section by the District Magistrate shall, unless revoked earlier, remain in force for a period not exceeding six months from the date of such order, as prescribed in Section 4 of the said Act.”
10. The word “also” in the above notification is important. It shows that the Provincial Government did not divest itself of the authority to make an order under S. 3(1)(a) when delegating its powers to the District Magistrates. I hold that even after the notification of 1st August 1947, the Provincial Government can make an order under S. 3(i)(a). The powers of the Provincial Government and the District Magistrates to make an order under S. 3(1)(a) have become concurrent after this notification.
11. The third ground taken is that when the District Magistrate had passed an order under sub-s. (2) of S. 3 it was not competent for the Provincial Government to make an order under S. 3(1)(a) for the further detention of the petitioner. It is argued that the Act does not contemplate the order of detention against the person who is already under detention. It is pointed out that the Provincial Government passed the order of detention at a time when the petitioner was already under detention under the order of the District Magistrate. According to S. 3, the Provincial Government may pass an order of detention against “any person.” The word “any” is important and it connotes the idea that the order of detention may be passed against a person wherever he may be, whether in jail or outside, subject of course only to one condition, namely, that he should be within the territorial jurisdiction of the authority making the order. The scheme of the Act is to confer powers upon the District Magistrate to act in times of emergencies and for leave the question of the final orders of detention upon the Provincial Government or its delegate under Section 11 of the Act. It is for this reason that District Magistrates have by sub-s. (2) of S. 3 been given power to detain a person only for a period not exceeding fifteen days whereas an order made by the Provincial Government can remain in force for a period of six months. The Provincial Government acts on receipt of information from the district authorities. There is bound to be an interval of time between the apprehended act of the detenu and the communication to the detenu of the action taken by the Provincial Government. To avoid complications arising out of this inevitable delay, the Act has authorised the District Magistrates to detain a person for a period not exceeding fifteen days and to leave the question of his further detention upon the Provincial Government or its delegate. I am of opinion that there; was no illegality in the Provincial Government passing an order of detention under S. 3(1)(a) against the petitioner when he was already under detention by virtue of the order passed by the District Magistrate under S. 3(2), on 11th June, 1948.
12. Fourthly, it is agued that the order passed by the Provincial Government in the present case is really one extending the period of detention as ordered by the District Magistrate. In this connection reliance is placed upon Zamir Qasim v. Rex, 1948 A.L.J 169 : (A.I.R (35) 1948 ALL. 285 : 49 Cr. L.J 358). It was held in that case that inasmuch as the Act makes no specific provision for extension, a fresh order detaining a person further without releasing him, which amounts in reality to an extension of the period of detention is not contemplated by the Act and is, therefore, illegal. In the first place, since that ruling was given there has been an amendment of Section 4 of the Act. Proviso 2 added to S. 4 runs as follows:
“Provided further that the period specified may be extended from time to time so as not to exceed six months.”
13. As the law now stands, it is permissible to extend the period of detention subject only to one condition that the total period of detention shall not exceed six months.
14. Fifthly, it is contended that the petitioner was already under detention for eight days under the orders of the District Magistrate when the Provincial Government passed the order of detention for six months on 19th June, 1948. The total period for which the petitioner will be under detention under the orders of the District Magistrate and the Provincial Government will thus be six months eight days; whereas, according to Section 4 of the Act, his period of detention cannot be more than six months. On this ground the validity of the order passed by the Provincial Government is challenged. The substantive portion of S. 4 runs as follows:
“As order made under S. 3 by the Provincial Government shall unless revoked earlier remain in force for a period not exceeding six months as may be specified in the order or, if no period is specified, for six months from the date thereof.”
15. Under Section 3(1)(a) of the Provincial Government acts, but under Section 3(2) of the the District Magistrate Acts. The period of six months prescribed by S. 4 is applicable only to the orders passed by the Provincial Government. It is clear from it that the Provincial Government can order the detention of any person for a period not exceeding six months “from the date of such order.” The underlined words (here italicised) are important and clearly indicate that the period of six months begins to run from the date of the order by the Provincial Government and not from the date of detention of the person under the orders of the District Magistrate acting under sub-s. (2) of S. 3. In this connection it has also been argued that as the District Magistrate has been conferred the powers of the Provincial Government under S. 11, his order passed on 11th June is tantamount to that of the Provincial Government. I do not agree with this. The District Magistrate acts under the Act in two capacities. He acts in his own right under sub-s. (2) of S. 3. He acts as a delegate from the Provincial Government under S. 3(1)(a). It is open to him to act under one or the other aforesaid provisions or under both. His capacities are different under the two provisions. In the present case he acted under sub-s. (2) of S. 3. The period of detention ordered by the District Magistrate cannot be added to that ordered by the Provincial Government for determining the period of six months. If he had acted under S. 3(1)(a), then of course it would have been added.
16. Sixthly, it is urged that the order passed by the Provincial Government was a fresh order; hence there should be fresh grounds and not the same grounds upon which the District Magistrate passed the order. In the first place, a perusal of the grounds given by the District Magistrate and the Provincial Government will show that they are not identical. Only in one particular the grounds are common, namely, preparation to cut telegraph, telephone and electric wires. The Provincial Government, however, gave an additional ground, namely, the instigation of the workers of the Electric Supply Company to go on illegal strikes. This does not appear in the grounds given by the District Magistrate. Thus, it cannot be said that the grounds upon which the Provincial Government directed the petitioner's detention, were identical with those which were given by the District Magistrate. In these circumstances of the present case, it is unnecessary for me to go into the question whether or not the Provincial Government can act under S. 3(1)(a) upon the same grounds upon which the District Magistrate acted under Section 3(2) of the Act. It may be noted, however, that if the order passed by a District Magistrate under S. 3(2) betaken of a temporary and emergent nature and if the Provincial Government is the authority to take final decision in the matter, it follows that the Provincial Government can act upon the same material on the basis of which the District Magistrate passed the temporary order under sub-s. (2) of Section 3 of the Act.
17. Seventhly, it is urged that as the notice under S. 5 is vague and indefinite, there has been no compliance with the provisions of the law. So far as the notice, dated 11th June, 1948, issued by the District Magistrate is concerned, its first and third grounds suffer from vagueness and indefiniteness. When he accused the petitioner of having made preparation to organise a demonstration with a view to commit breach of peace, he should have indicated in what manner the breach of peace was intended. Similarly, the accusation that “your remaining at large is dangerous to public peace and safety” is vague. Definite acts or preparation for acts tending to disturb public peace should be indicated, so that the detenu may be in a position to make the representation as contemplated by S. 5 of the act. The second ground, however, in the District Magistrate's notice, namely, the preparation to cut telegraph, telephone, and electric wires is quite definite. It may be mentioned here that according to s. 5 it is not necessary for the District Magistrate acting under sub-s. (2) of S. 3, to communicate the grounds of detention to the detenu. It is only when an order under S. 3(1)(a) is passed that such grounds have to be communicated. The notice under S. 5 issued by the District Magistrate is redundant. The notice under S. 5 issued by the Provincial Government, however, does not suffer from such a vagueness or indefiniteness as to deprive the detenu of the opportunity to make a representation. The provincial Government has definitely informed the petitioner of the grounds upon which he has been detained, namely, (1) instigation of workers to go on illegal strikes, (2) organizing to cut telegraph, telephone and electric wires and (3) persistence in such activities.
18. Learned counsel for the petitioner has urged in this connection that to instigate workers to go on strike is not an act subversive of law and order. A perusal of the Industrial Disputes Act, 1947 (XIV[14] of 1947) and of the U.P Industrial Disputes Act, 1947 (U.P Act No. XXVIII[28] of 1947) will show that strikes are of two kinds: (1) legal and (2) illegal. If a person instigates the workers to go on strike according to law, it is not an act subversive of law and order. But if he instigates the workers to go on illegal strikes, then it is an act subversive of law and order. The petitioner in this case has been charged for instigating the workers of the Electric Supply Company to go on “illegal strikes.” It is easy to see that an action of this nature is bound to lead to serious danger to the health and safety of the people of the town. The water works would stop, the light would disappear and many industries fed by electricity would cease. The act of sabotage activities, namely, organizing to cut telegraph, telephone and electric wires is, however, one which under no circumstances is justifiable. I hold that the grounds given in the notice under S. 5 by the Provincial Government are not vague or indefinite. In this connection it has also been argued that as according to the notice under S. 5 given by the Provincial Government the petitioner was alleged to be organizing to cut telegraph, telephone and electric wires between June 10 and 16, there was no justification for the Government to issue an order of detention after June 15 on June 19. The dates June 10 to 16 were mentioned only to give the particulars of the grounds. The mention of those dates does not mean that there was no apprehension of such subversive activities from the petitioner after June 15.
19. Eighthly, it is argued that as the notice, dated 19th June, 1948, under S. 6 purporting to be from the Provincial Government is not in proper form as required by law, so there has been no compliance of Section 6 of the Act. It is contended that, having regard to the provisions of Section 69 of the Government of India Act, 1935, the notice should have been expressed to have been issued in the name of the Governor in the same manner as the order, dated 19th June, 1948, under S. 3(1)(a) was expressed. The notice has been reproduced above in extenso. It issues from the Government of the United Provinces and is signed by the Home Secretary. The last sentence in it informs the detenu of his right to make a representation to the Provincial Government. The Home Secretary does not say in it that the representation is to be made to him. The very officer, who had issued the order under S. 3(1)(a) in the name of the Governor, has signed it. The Home Secretary is one of the officers, who by rules made under Section 59 of the Government of India Act, is authorised to authenticate orders and instruments made and executed in the name of the Governor. This notice under S. 5 must be read in conjunction with the order under S. 3(1)(a) dated 19th June, 1948. Reading the two together, there can be no doubt that it was on behalf of the Governor and in continuation of the order under section 3(1)(a) that the Home Secretary in compliance with S. 5 communicated the grounds of detention to the petitioner. The notice under S. 6 is expressed in passive, voice. It would have been certainly better if the notice under section 5 issued by the Provincial Government had been expressed to have been issued in the name of the Governor. This omission, however, does not invalidate the notice. The broad fact remains that the object of S. 5 is to communicate grounds of detention to the detenu so as to enable him to make the representation. The detenu has not been prejudiced from the fact that the notice under S. 5 was not expressed in the name of the Governor.
20. Ninethly, it is contended that the petitioner has received no reply from the Provincial Government to his representation. A perusal of S. 5 will show that it is not mandatory for the Provincial Government to send a reply to the detenu, it provides that if the Government is satisfied on considering the representation made that it is no longer necessary to maintain the order, the order made under S. 3 shall be cancelled.
21. Hence non-receipt of reply by the petitioner does not invalidate his detention.
22. The result is that the petition fails and it is hereby rejected.
23. Petition rejected.
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