The power of detention under the Defence of India Act, 1962 and the Rules can only be exercised by the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate.

Judgment

WANCHOO, J. : This appeal by special leave from the judgment of the Punjab High Court was heard on January 20, 1965. We then pronounced a short order allowing the appeal and directing the release of the detenu and indicated that reasons would follow later. We now proceed to give the reasons.

2. The appellant was detained under Rule 30 (1) (b) of the Defence of India Rules (hereinafter referred to as the Rules) by an order passed by Shri Lall Singh on June 30, 1964. That order was passed by Shri Lall Singh as District Magistrate of Amritsar. The only point that has been urged before us on behalf of the detenu is that Shri Lall Singh was not the District Magistrate of Amritsar on June 30, 1964 and, therefore, he had no power to pass the order of detention under the Defence of India Act, No. 51 of 1962, (hereinafter referred to as the Act) and the Rules.

3. It is necessary to set out certain facts with respect to the position Shri Lall Singh was occupying on June 30, 1964 when the order of detention was passed. It appears that Shri P. N. Bhalla was the District Magistrate of Amritsar in April 1964. He was ordered to be transferred to the Secretariat by an order passed on April 23, 1964. At that time Shri Lall Singh was the Additional District Magistrate of Amritsar and had been inter alia invested under Section 10(2) of the Code of Criminal Procedure (hereinafter referred to as the Code) with all the powers of a District Magistrate under the Code or under any other law for the time being in force by an order which had been passed on April 10, 1963. Further when the order of transfer of Shri Bhalla was made, instructions were issued that Shri Bhalla should hand over charge to Shri Lall Singh, Additional Deputy Commissioner, Amritsar, who would hold the current charge of the post of Deputy Commissioner, Amritsar till further orders. It appears that Shri Bhalla handed over charge of the office of the Deputy Commissioner to Shri Lall Singh on the afternoon of May 15, 1964 in accordance with the instructions above mentioned, and thus Shri Lall Singh was in current charge of the office of Deputy Commissioner, Amritsar from May 16, 1964. No order appointing Shri Lall Singh as District Magistrate of Amritsar as required under S. 10(1) of the Code was passed. But as Shri Lall Singh was already invested is an Additional District Magistrate with all the powers of the District Magistrate under the Code and under any other law for the time being in force, he carried on the duties of the office of the District Magistrate also. At the same time it may be noted that no other officer was posted as District Magistrate. Shri Iqbal Singh took over charge as District Magistrate, Amritsar on July 1, 1964 and Shri Lall Singh was then appointed as District Magistrate. Hissar.

4. On these facts the contention on behalf of the detenu is that Shri Lall Singh was not the District Magistrate of Amritsar on June 30, 1964, even though he signed himself as District Magistrate when he passed the order of detention. It is submitted that in the absence of an order under S. 10(1) of the Code appointing Shri Lall Singh as District Magistrate of Amritsar, he could not be the District Magistrate of Amritsar for the purpose of passing an order of detention under the Act and the Rules, whatever might be his powers to carry on the administration of the district as an Additional District Magistrate and Additional Collector under the powers conferred on him by various notifications of April 1963. Consequently the order of detention passed by him on June 30, 1964 was without authority and liable to be set aside.

5. In reply, the learned Advocate General for the State of Punjab has raised two points. In the first place he urges that the notification delegating to all District Magistrates the State Government s, powers to detain persons under R.30 of the Rules is law and relies in this connection on the decision of this Court in Jayantilal Amritlal Shodhan v. F. N. Rana,