Wali Ullah Ag., C.J. - (1.) This is an application Under Section 491, Criminal P. C. The applicant, Sir Gulab Singh, is the ex-Maharaja, Rewa State. The Rewa State acceded to the Indian Union in August 1947. On 20th May 1948, the Governor-General passed an order addressed to the Superintendent of Police, Dehra Dun. It is an order passed under the provisions of the Bengal State Prisoners Regulation, 1818, as adapted by the Bengal State Prisoners Regulation (Adaptation) Order, 1947, promulgated on 26th August 1947, and directs that Sir Gulab Singh, the applicant, shall be placed under personal restraint at No. 10, Dolialwala, Dehra Dun, and be dealt with in accordance with the orders of the Government and the provisions of the Bengal State Prisoners Regulations, 1818. In pursuance of this order--the warrant of commitment--the applicant is being kept in personal restraint at Dehra Dun. By means of this application, it is prayed that the applicant may be set at liberty inasmuch as his detention is contrary to law.
(2.) In the application many grounds were set out for attacking the order of detention, but, in the course of arguments, only one main point has been urged. It is to the effect that the new provisions of the Bengal State Prisoners Regulation, 1818, under which the order of detention has been passed, were introduced into the old Regulation as it stood prior to 15th August 1947, by means of the Bengal State Prisoners Regulation (Adaptation Order), 1947, passed on 26th August 1947. According to the contention of the learned counsel for the applicant, this Adaptation Order made by the Governor-General was a nullity inasmuch as the Governor-General had no power to introduce the relevant provisions into the Regulation on 26th August 1947. It may be noted here that Sub-section (3) of Section 491, Criminal P. C., inter alia, provides that nothing in the section applies to persons detained under the Bengal State Prisoners Regulation, 1818. It is obvious, therefore, that if the order of detention of the applicant is covered by the provisions of the Bengal State Prisoners Regulation, this Court will have no power to interfere with it in these proceedings.
(3.) The crucial question in the case is whether the Bengal State Prisoners Regulation (Adaptation Order), 1947, of 26th August 1947, (hereinafter referred to as the impugned adaptation order) is ultra vires of the powers of the Governor-General. This Adaptation Order purports to have been made "In exercise of the powers conferred on the Governor General by Section 9, Indian Independence Act, 1947, and of all other powers enabling him in that behalf." Article 1 (2) of the Order provides that it is to take effect from 15th August 1947, Article 2 introduces many 'adaptations' into the various sections as well as the appendix of the Regulation of 1818. In substance, for the words 'the discharge of the functions of the Crown in it relations with Indian States' wherever they occur, the words 'relations with acceding States' or words 'reasons of State connected with relations with acceding States..." have been substituted. Lastly, Article 3, Adaptation Order declares that this Adaptation Order, i.e,. the Adaptation Order dated 26th August 1947, shall have effect notwithstanding anything to the contrary contained in the India (Adaptation of Existing Indian Laws) Order, 1947, dated 14th August 1947.;