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:
Provided that the total period of detention shall not without the order of the Provincial Government in any case exceed two months.
3. 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.
4. 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.
5. 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.
6. 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.
7. Section 46B gives the power of detention and the responsibility for making orders to the District Magistrate, such powers being circumscribed by three safeguards, viz. that orders are only valid for fifteen days at a time, so that for each fifteen days' period the District Magistrate has to re-apply his mind to the necessity of detaining the person in question, secondly, the detention comes to an end when the emergency ceases, and, thirdly, the total period of detention shall not exceed two months, this is however subject to the first proviso which is to be found in Sub-section (3), and which I have already read.
8. The Government Pleader would have us read this proviso, i.e. as giving the ministerial function of Government as well as the District Magistrate authority to make detention orders, but no part of Section 46B gives the Provincial Government any such power. The responsibility for making detention orders is exclusively vested in the District Magistrate, and Government's powers are limited to enlarging the maximum period of two months, in which the District Magistrate can, in any particular ease, make detention orders which are themsolves only valid for fifteen days each.
9. This is not a technical question of construction, but one which goes to the intention of the legislature, which is, in my judgment, very apparent from the language which it has used. The case of a detenu has to be re-considered every fifteen days by the District Magistrate in the light of the then existing circumstances, but his power to make orders in any particular case is limited to two months. Then comes in for the first time the power of the Provincial Government to enlarge the time limit of two months so that the District Magistrate may make further orders, during the extended period, but each of them is valid for a maximum of 15 days.
10. What the order of November 27, 1946, purports to do is to extend an expired detention order of the District Magistrate indefinitely 'until further orders of Government'. So that it is possible for the person detained to remain in detention indefinitely without the salutary safeguard of having his case re-considered every fifteen days.
11. The document dated November 27, 1946, is not, and could not be a detention order, and as the District Magistrate has made no fresh order after his order of November 11, which expired on November 30, it follows that the detenu is now illegally detained, and is entitled to an order from this Court for his immediate discharge from detention.
12. We order Navnitlal Hiralal Gandhi to be released forthwith.
13. I agree.
14. It is difficult to understand why Government by its order dated November 27, 1946, wanted to continue the order of detention of the petitioner's brother made by the District Magistrate on September 80, 1946. That order expired on October 15, 1946, and a wholly new order was passed by the District Magistrate on October 14, 1946. Clause (ii) of Sub-section (3) of Section 46B of the Bombay District Police Act, 1890, empowers the District Magistrate to direct the detention for a period not exceeding fifteen days at a time, and he has no power to extend the previous order at the end of every fifteen days. He has to pass a new order every time and the new order comes to an end at the end of fifteen days. After the order of September 30, 1946, he passed three more orders and the last order which he passed was on November 11, 1946.
15. When Government issued the order on November 27, 1946, it was this order of November 11, 1946, which was in force and that order could have been continued. As my Lord, the Chief Justice, has pointed out, it is not a question of continuation of that order, but a new order should have been passed by the District Magistrate in continuation of the last order of November 11, 1946, with the sanction of the Provincial Government as the total period of two months was about to expire. The order of the Government of Bombay as it stands is not warranted by the provisions of Section 46B of the Act.
16. I, therefore, agree with the order proposed by my Lord, the Chief Justice.