- (1.) The two brothers Kamla Rai and Birja Rai, who have presented this habeas corpus petition, were convicted in the year 1954 for an offence Under Sec. 302 read with Sec. 34 IPC and were sentenced to life imprisonment, but were subsequently released in the year 1959, under the provisions of the UP Prisoners' Release on Probation Act, on licences imposing certain conditions, one of which enjoined them not to associate with persons known to be of bad character and not to lead a dissolute or evil life. Subsequently complaints were received by the district authorities regarding the conduct of the Petitioners and notices were accordingly issued to them in the year 1965, first by the Probation Officer and next by the District Magistrate of Ghazipur. And finally, on the recommendation of the District Magistrate, the State Government revoked the licences by an order passed on 17 -2 -1966; and as a result they are again bring detained in (sic) to serve out their sentences of life imprisonment.
(2.) The Petitioners contend that they are being unlawfully detained and ask for a writ of habeas corpus directing them to be set at liberty. Four arguments have been advanced on their behalf by their counsel Sri S.K. Verma and these are as follows: (I) That the requirements of Art 166 of the Constitution have not been complied with, inasmuch as the impugned revocation orders are not in the name of the Governor. (II) That the impugned revocation orders have been passed by a mere Deputy Secretary, who was not competent to pass such order Under Sec. 6 of the UP Prisoners' Release on Probation Act. (III) That the Petitioners were not afforded any reasonable opportunity of showing cause against the proposed revocation before the orders were passed. (IV) That while making his recommendations to Government for revocation of the licences the District Magistrate "acted mechanically", accepting the advice given by the Probation Officer without applying his own mind to the problem.
(3.) We see no force in any of these contentions. It is true that the impugned revocation orders are not expressed in the name of the Governor, as Article 166 of the Constitution would seem to require. But the provisions of Article 166 are directive and not mandatory; and even if an executive order of the State Government is not expressed in the name of the Governor it will still be valid, if it is proved to have actually been passed by the State Government - -vide Rule Chitralekha and Anr. v/s. State of Mysore and Ors. : AIR 1964 SC 1823. That the impugned orders were passed by the State Government is clear from the recital contained therein, which runs : "The State Government hereby revokes..."; and under the rules framed Under Article 166 a Deputy Secretary is empowered to sign orders on behalf of the State. The suggestion that the Petitioners were not afforded a reasonable opportunity to show cause is contradicted by the counter -affidavit of the Probation Officer and the order of the District Magistrate dated 31 -1 -1966 (annexure H), which show that the District Magistrate not only considered the written replies given by the Petitioner to the show cause notices but also heard them in person. And the allegation that the District Magistrate "acted mechanically" when making his recommendation is not supported by any material on record, indeed annexure H shows clearly that he did apply his own mind to the problem before making his recommendations.;