GUHA, J. - (1.) THESE are two applications praying that orders under Article 226 of the Constitution of India may bo made and writs in the nature of Habeas Corpus issued in favour of Mahabir Prasad Periwal and his brother Gajanand Periwal now detained in the Darjeeling Jail under two detention orders passed under the Preventive Detention Act. The two cases were heard together and the arguments in both the canes are practically the same. This judgment will govern both the cases.
(2.) BEFORE dealing with the arguments advanced before us it is necessary to set out a few facts. On 20 -8 -1953, Mahabir Prasad Periwal and his brother Gajanand Periwal were arrested at Kalimpong and thereafter detained in the Darjeeling Jail under an order dated 19 -8 -1953 under the Preventive Detention Act 4 of 1950 purported to have been passed by the Deputy Commissioner of Darjeeling. Rules were obtained from this Court in both the cases and on 1 -10 -1953 a Bench of this Court held that the orders of detention were illegal and directed that both the detenus be set at liberty forthwith. Thereupon on 4 -10 -1953 both Mahabir Prasad Periwal and Cajanand Periwal were released from Darjeeling Jail, but they were immediately served with fresh orders under the Preventive Detention Act of 1950 by the District Magistrate of Darjeeling, who happens to be the same officer as the Deputy Commissioner of Darjeeling who had passed the previous detention orders. Since then both the detenus have been in detention and the present applications are directed against these subsequent orders of detention passed on 4 -10 -1953. Grounds as contemplated under Section 7, Preventive Detention Act, were served upon them on the same date, that is, 4 -10 -1953. Various points have been urged on behalf of the petitioners and the main points canvassed before us may be now dealt with seriatim.
(3.) IT has been contended on behalf of the detenus that Section 3(1)(a)(iii), Preventive Detention Act, empowering the Central Government or the State Government to detain a person with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community is ultra vires and 'a fortiori' the corresponding power as conferred on the District Magistrates, Additional District Magistrates, etc., by Sub -section (2) of the Act is also ultra vires the Constitution. It is contended that by making the above -mentioned provisions the Legislature has parted with its essential legislative function which consists in declaring its policy and making it a binding rule of conduct. It is urged that this is not legislation as contemplated in Article 246 of the Constitution. More particularly it has been contended that in the impugned legislation Parliament has not stated what it means by the term 'supplies and services 'essential' to the community' with the result that this vital matter has been left to the unfettered discretion of other authorities and in this respect the provisions of the P. D. Act have been contrasted with the corresponding provisions of Essential Supplies Act (Act 24 of 1939 (1946?), Defence of India Act under Section 2, Sub -section (1), Section 2(2), Clause (XX), Rule 81D, Clause (aa) of the Defence of India Rules, Bombay Public Security Measures (Amendment) Act, 1950 (S. 8). ;