JUDGMENT

Gwyer, C.J. - In this case the appellant appeals against the refusal of a Division Bench of the High Court of Bombay to grant an order Under Section 491, Criminal P.C., in the nature of a writ of habeas corpus in order to secure the release of the appellant from detention under an order purporting to be made Under Rule 26 of the Defence of India Rules. The appellant was arrested on 24th August last Under Rule 129, and an order for his detention Under Rule 26 was made by the Provincial Government on 27th August. The ground on which the appellant asked for an order Under Section 491 was that the Defence of India Act, 1939, and as a necessary corollary the rules made thereunder are ultra vires, since the Act purports to relate to the defence of India, and no power is conferred on the Central Legislature or upon any other Legislature in India to legislate on that subject. This is a startling contention and, if it is sound, would have even more startling consequences. It is therefore necessary to examine closely the facts of the case and the relevant statutory provisions which have been brought to our notice. The appellant states that he was arrested by a police officer on 24th August 1942 and detained in custody that on 4th September, he was removed to the Thana Jail; and that he learned later that an order had been made by the Bombay Government dated 27th August, which is in the following terms:

Whereas the Government of Bombay has received a report from the Commissioner of Police, Bombay, that the person known as Keshav Talpade has been arrested and committed to jail custody Under Sub-Rules (1) and (2) respectively, of Rule 129 of the Defence of India Rules.

And whereas the Government of Bombay is satisfied that with a view to preventing the said Keshav Talpade from acting in a manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of the war, it is necessary to make the following order;

Now, therefore, in exercise of the powers conferred by Sub-rule (4) of Rule 129 read with Rule 26 of the said rules, the Government of Bombay is pleased to direct: (a) that the said Keshav Talpade be detained until further orders; (b) that he shall be detained in the Thana District Prison until any other place for his detention is determined by a competent authority Under Sub-rule (5) of the said Rule 26; and (c) that he shall for the purposes of the Security Prisoners Detention Conditions Order, 1941, be classified as a Class II security prisoner.

2. The appellant further states that he is now detained in the Yeravada Central Jail, Poona. He denies that he has acted in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of war; on the contrary he says that he believes in giving unqualified aid to the efficient prosecution of war. It is not disputed that he is in fact detained under the order to which we have referred. The two Rules, 26 and 129, are in the following terms:

26. (1) The Central Government or the Provincial Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order, His Majesty's relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war it is necessary so to do, may make an order; (a) directing such person to remove himself from British India in such manner, by such time and by such route as may be specified in the order, and prohibiting his return to British India; (b) directing that he be detained; (c) directing that, except in so far as be may be permitted by the provisions of the order, or by such authority or person as may be specified therein, he shall not be in any such area or place in British India as may be spec