Decided on December 06,1946

STATE Respondents


Leonard Stone, Kt. , C. J. - (1.)THIS is an application by Navnitlal Hiralal Gandhi to this Court to exercise its power of habeas corpus under Section 491 of the Code of Criminal Procedure. On December 2 last, we made an order, that the detenue, who is detained in the Central Prison, Ahmedabad, should be produced in this Court today, and he having been so produced, we have proceeded to examine his contention that he is illegally detained.
(2.)THE only ground urged for the validity of his detention is to be found in Section 46b of the Bombay District Police Act, 1890, which is a new section added to the old Act, by Bombay Act No. XVI of 1946, "the Bombay District Police (Amendment) Act, 1946. " It is necessary to examine the scope and meaning of this new section. It provides that the Provincial Government may, if satisfied that the public peace or tranquillity in a district or any part thereof is disturbed, or is likely to be dsturbed, in consequence of a conflict between different communities or sections thereof or gangs or factions, declare, by a proclamation in the Official Gazette, that an emergency exists, and then, so far as is material, in Sub-section (2) a proclamation of emergency ceases to operate at the expiry of one month, unless before the expiry of that period it has been renewed. Sub-section (3) provides that after a proclamation of emergency, the District Magistrate of the district, whenever it appears to him that the presence, movements or acts of any person in the district is or are causing or calculated to cause danger or alarm, or that a reasonable suspicion exists that designs calculated to disturb public peace or tranquillity are entertained by such person, may, amongst other powers, by an order in writing direct that he be detained for a period not exceeding fifteen days at a time, and then follow two provisos, the first of which is as follows:
The second proviso is to the effect that any order made under the section shall cease to have effect on the proclamation of emergency ceasing to operate, and Sub-section (4) is in these terms: The Magistrate shall forthwith submit to the Provincial Government a copy of every order of detention made under Sub-section (3) together with the grounds on which it is made.

With the previous history of this particular case we are not concerned, but an emergency having been previously proclaimed at Ahmedabad, Mr. P. N. Damry, Additional District Magistrate of that place, on November 11, 1946, made an order under Sub-section (3) of Section 46b by which he stated that he was satisfied: "that the presence, movements and acts of the person specified below are calculated to cause danger and alarm and as a reasonable suspicion exists that designs calculated to disturb public peace and tranquillity are entertained by him", and then he orders in exercise of his powers conferred by the sub-section in question that the detenue, now produced before us, be detained in Ahmedabad Central Prison for a period of is days from November 15, 1946.

(3.)THAT order was in fact the fourth order which had been made by the District Magistrate in respect of this detenu, so that on its expiry on November 30, 194g, the powers of the District Magistrate were exhausted by reason of the two months' time limit contained in the first proviso, unless the Provincial Government by an order extended that time. On November 27, 1946, Government made the following order: In exercise of the powers conferred by the first proviso to Clause (ii) of Sub-section (3) of-s. 46b of th Bombay District Police Act, 1890, the Government of Bombay is pleased to direct that the order of the District Magistrate, Ahmedabad, dated September 30, 1946, directing the detention of the person known as Chandulal Hiralal Gandhi shall continue in force until further orders.
I will pass over the obvious blunder of purporting to continue the order dated September 30, 1946, which was in fact the first order made by the District Magistrate and which was only valid for 15 days, and had long since expired, because, in my judgment, there is a question of general importance in this case upon which a judicial ruling should be given.


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