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