Judgment

BOSE J.: This is an appeal from an order of the Bombay High Court directing the release of the respondent who had been detained under section 3 of the Preventive Detention Act, 1950.

2. The learned Attorney-General states at the outset that Government does not want to re-arrest the respondent but merely desires to test the High Court s decision on certain points which will have far-reaching effects on preventive detentions in the State of Bombay. Following the precedent of their Lordships of the Privy Council in EMPEROR v. VIMLABAI DESHPANDE , ILR (1946) Nag 651 at p. 655, we proceed to decide the appeal but direct that the respondent shall not, in any event, be rearrested in respect of the matters to which the appeal relates.

3. The respondent was originally arrested under an order of the District Magistrate, Belgaum, dated the 26th February 1950 though he was then beyond the jurisdiction of that authority. On the 11th of July 1950, the Bombay High Court held that a detention of that kind was invalid. The decision was given in the case of IN RE GHATE , 52 Bom L R 711. This necessitated a review of 57 cases, among them the respondent s. Orders were passed in all those cases on the 17th of July 1950. About 52 of the detenus were released and in the remaining cases fresh orders of detention were passed by the Government of Bombay.

4. In the respondent s case the order was in these terms:

"Whereas, the Government of Bombay is satisfied with respect to the person known as Shri Purushottam Jog Naik of Ulga village, Taluka Karwar, Distict Kanara, that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order, it is necessary to make the following order :

Now, therefore in exercise of the powers conferred by sub-section (1) of section 3 of the Preventive Detention Act, 1950 (No IV of 1950), the Government of Bombay is pleased to direct that the said Shri Purushotam Jog Naik be detained.

By order of the Governor of Bombay,

Sd/- V. T. Dehejia,

Secretary to the Government of Bombay,

Home Department.

Dated at Bombay Castle, this 17th day of July 1950."

5. He was served with the grounds of detention on the 26th of July 1950 and with a fuller set on the 9th of August. The original grounds were as follows :

"In furtherance of your campaign for non-payment of rent, you were instigating the people in the Belgaum District to commit acts of violence against landlords.

In all probability, you will continue to do so."

6. The second set gave the following additional particulars:

"The people in Belgaum District, whom you were instigating to commit acts of violence against landlords in furtherance of your campaign for non-payment of rent, were the tenants in Hadalge and round about villages in the Khanapur Taluka of Belgaum District, and the said instigation was carried on by you for some months till your arrest in April 1949."

7. On the 24th of August 1950, the respondent applied to the Bombay High Court under section 491 of the Criminal Procedure Code for an order of release. He succeeded, and the appeal is against that order.

8. The first ground on which the learned High Court Judges proceeded was that the detention order of the 17th July was defective as it was not expressed in proper legal form. The basis of their reasoning is this.

9. Article 166 (1) of the Constitution requires that :

"All executive action of the Government of a State shall be expressed to be taken in the name of the Governor."

It will be seen that the order of detention states in the preamble

"Whereas the Government of Bombay as satisfied.........."

and the operative part of the order runs :

"Now, therefore...... the Government of Bombay is pleased to direct etc."

It does not say that the Governor of Bombay is pleased to direct. The learned Judges held that this is not an order expressed to be made in the name of the Governor and accordingly is not protected by clause (2) of Article 166. They conceded that the State could prove by other me