ORDER

Waliullah, J. - This is an application u/s 491, Criminal P.C., filed by Gauri Nandan Upadhya, praying that he be brought up before this Court and be set at liberty on the ground that his detention is utterly illegal.

2. This application was sent by post by the petitioner himself from Central Jail, Banaras, on 18th February 1948. It is stated in it that the applicant is an advocate of this High Court and has been practising as such in Banaras for the last 23 years. It is further stated that on 3rd February 1948, after a search of his house, the applicant was arrested and was sent to the District Jail, Banaras, for detention. On 4th February, the applicant submitted from jail an application to the City Magistrate but received! no reply from the latter. On 5th February he made a similar application to the Sessions' Judge of Banaras, but again with no result. On "the evening of the 5th February, he was transferred to the Central Jail, Banaras, and was locked up in a solitary cell. On 6th February 1948, the District Magistrate, Banaras, served upon the applicant, in jail, a notice of an order detaining him for a period of two months u/s 5, U.P. Maintenance of Public Order (Temporary) Act, 1947, (U.P. Act IV of 1947). Thereupon the applicant made a representation in writing to the District Magistrate, Banaras. The contents of this representation are all reproduced in extenso in paragraph 7 of the application filed by the applicant. Finding no relief from his representation aforementioned he has moved this Court by means of this application for an order for his release.

3. On receipt of this application, notice was issued to the Government Advocate. The learned Government Advocate then filed an affidavit-sworn to by Mr. Brahma Singh, Deputy Superintendent of Police (Intelligence), Banaras, along: with a copy of the order u/s 3 and the original notice u/s 5 of the Act. In the affidavit, inter alia, it was stated that on 2nd February 1948, the District Magistrate, Banaras, after considering the case of the applicant, passed an order of detention for two months u/s 3(1)(a), U.P. Maintenance of Pub, lie Order (Temporary) Act, 1947, and that in consequence of this order the applicant was arrested on 3rd February 1948. It is further stated that on 5th February 1948, the grounds on which the order of detention was based were embodied in the notice u/s 5 of the Apt and they were served upon the applicant in jail on 6th February 1948. The affidavit in its last two paragraphs i.e., Nos. 4 and 5, purports to give instances of the activities of the applicant which were alleged to be violent and likely to promote, breach of public peace and disturb communal harmony.

4. On 11th March 1948, when the application came on for hearing before me, Mr. Pandey, the learned Counsel for the applicant, filed an affidavit in support of his application and an affidavit in rejoinder was also filed by the learned Government Advocate.

5. At the hearing elaborate arguments were addressed to me both by the learned Counsel for the applicant as well as by the learned Government Advocate for the Crown.

6. Learned Counsel for the applicant has contended in the first place that the notice served upon the applicant did not comply with the mandatory provisions of Section 5 of the Act inasmuch as the grounds on which the order of detention was made were not adequately specified in the notice, nor were other particulars, necessary for enabling the applicant to make a representation against the order, embodied in it. The original notice u/s 5 of the Act served upon the applicant is on the record. It reads thus:

Whereas the assassination of Mahatma Gandhi has revealed the existence of a widespread conspiracy to commit acts of violence, to disturb the public tranquility, and disrupt the machinery of Government, and whereas I am satisfied that you Gauri Nandan Upadhya are likely to promote or take part in such acts of violence, disturbance of public tranquility, or disruption of