Jia Lal Kilam, J.
1. This is an application submitted by Ghulam Nabi Jan detenu under Section 491, Criminal P.C. Ghulam Nabi Jan who has been ordered to be detained under Section 3 of the Public Security Act, is this time under detention in the Sub Jail, Udhampur. His contention as raised by his Learned counsel in brief is that his detention at Udhampur is both illegal and improper, that he had gone to the place wherefrom he was arrested (office of Kh. Ghulam Mohi-ud-Din Advocate) simply to get his papers back from Mr. Latif Advocate who had turned a politician and was not likely to devote much time to his profession and to the cases which the applicant says he had entrusted to him. Before us the detenu is represented by an Advocate of this Court, Pt. Lok Nath Sharma.
Pandit Sharma has made a two pronged attack upon the validity of the order of detention on two grounds: firstly that the arrest of, the detenu by S. Ghulam Qudir, Inspector of Police, was not effected strictly according to law, and secondly that his transfer from Kothibagh sub-jail Srinagar to Udhampur sub-jail is illegal and that his detention at Udhampur is equally against the provisions of law. As regards the illegality of the arrest, the Learned counsel has raised a number of pleas, chief amongst them being that the order of arrest was in fact not existing at the time when the arrest of the detenu was effected, the suggestion being that it has been prepared afterwards to tide over a difficult legal position. But in view of the order that we propose to pass in the case on other grounds we need not go into this and other allied questions raised with regard to the legality or otherwise of the arrest. We might, therefore, straightway go to the second point which in our opinion is sufficient to dispose of this application.
2. As already stated, the detenu is this time under detention in the Udhampur sub-jail. The order of detention has been passed by the Superintendent of police Srinagar. Two questions crop up in this case; (1) Can a person be detained at a place outside the jurisdiction of a detaining authority? (2) Was the authority who ordered the detenu's transfer from Srinagar to Udhampur empowered to do so?
3. There can be no denial to the fact that the Superintendent of Police who has made the detention order in the present case could make such an order. Sub-sections (1) and (2) of Section 3 of the Public Security Act lay down that an officer authorized by the Government under this section can effect the arrest and detention of a detenu under certain circumstances. Reference may in this connection be made to Annexure to Council Order No. 356-C of 1947 which empowers all Police officers of and above the rank of Sub-inspector of Police to exercise powers of arrest and detention under this section. But then there is another condition laid down in the above referred to Annexure to Council Order that the power of arrest and detention has to be exercised by a police officer within his own jurisdiction.
From this it would follow that as long as Ghulam Nabi Jan continued to be in detention in the Sub-jail Kothibagh which is within the jurisdiction of the Superintendent of Police Srinagar, his detention was perfectly legal. But then the jurisdiction of the Superintendent of Police Srinagar does not extend to Udhampur Sub-jail. Therefore obviously the detention of the detenu at a place beyond the jurisdiction of the Superintendent of Police Srinagar in pursuance of a detention order of the same Superintendent of Police would not be legal. Reference may in this connection be made to a Division Bench judgment of this Court - Shambu Dutt v. State (J. & K.) (A)', in which it has been held that
If a S.R.O. orders that a detenu be kept at a place beyond his jurisdiction, such an order of detention is clearly bad in law.
A similar view has been taken in a Bombay casa reported as - Bashan Madar v. Emperor AIR 1949 Bom 37 (B), in which it has been held that
Thus where the District Magistrate of Sholapur passes an order under Section 2(4) detaining a person in the Yeravada Jail in the poona District, the order is without jurisdiction. In view of the Notification No. 671, dated 26th April 1947, under which the powers have to be exercised by the District Magistrate within the jurisdiction. Such an order cannot be separated from the one passed under Section 2(1)(a). Such an illegal order cannot be revalidated under Section 2(4) by the Government.
4. Incidentally it may be remarked here that the Notification referred to in the Bombay ruling is almost the same as the Notification in force in this State. It is argued by the learned Asstt. Advocate General that in this case it is not the detaining authority which has ordered the transfer of the detenu to Udhampur Sub-jail, and that he has been transferred under an order of a competent authority, i.e., Hon'ble Home & Deputy Prime Minister. Apart from the fact as to whether the Home & Deputy Prime Minister had authority to transfer the detenu from one place to another, a point which will be just taken up-this fact cannot be denied that the detenu has been admitted in the sub-Jail at Udhampur only in pursuance of the original order of detention passed by the S.P. Srinagar. The question even then remains as to whether this order of the Superintendent of Police Srinagar can be operative at a place beyond his jurisdiction and whether the Hon'ble Home & Deputy Prime Minister can override a Notification issued under Council authority under Annexure to Council Order No. 358-C.
5. The learned Asstt. Advocate General tried to build yet one more argument by reference to the following words in Sub-section (2) of Section 3 of the Public Security Act:
An officer making or directing the arrest may by order in writing commit any person so arrested to such custody as the Government may by general or special order specify in this behalf, & such person shall be placed under personal restraint during the pleasure of the Government
From these words the learned Asstt. Advocate General draws the inference that the place of detention has to be specified by the Government and the detaining authority shall have to commit the person arrested to such custody as the Government may by general or special order specify, and as Udhampur has been specified by the Government as the place of detention of the detenu, therefore the detention of the detenu at Udhampur Sub-Jail cannot be said to be illegal. The learned Asstt. Advocate General has conveniently forgotten that the committal of the detenu to custody has to be made by the person who has ordered the arrest or directed the arrest of the detenu and not by any other authority, even the Government. This is clear and unambiguous meaning of the words on which he tried to build his argument. Here the transfer to Udhampur Sub-jail has been made by an authority other than the detaining authority.
The matter would have been different if there were a provision of law which authorized the Government to order transfer of a detenu from on place to the other - a place which may be even beyond the jurisdiction of the detaining authority. This, therefore, leads us to the second questions posed above as to whether the Hon'ble Home & Deputy Prime Minister who ordered the detenu's transfer from Srinagar to Udhampur was authorized to do so. The learned Asstt. Advocate General has referred to Section 38-A of the Public Security Act which is as follows:
The Government may by order direct that any power or duty conferred or imposed upon the Government by this Act, shall in such circumstances, and under such conditions, if any, as may be specified in this direction, be exercised or discharged by any officer or authority appointed by the Government in this behalf.
The learned Asstt. Advocate General is right in saying that under this section the Government has authority to delegate its powers which it possesses under the Act to any authority or officer. He has then referred us to another Notification (Annexure to Cabinet Order No: 928-C of 1949 dated 27.11.1948) according to which the Government were pleased to order that the following powers of the Government vested in them by subsection (2) of Section 3 of the Public Security Act shall be exercisable by the Home & Deputy Prime Minister as well, namely:
Specify by general or special order the custody to which an arrested person may be committed including powers to transfer a detenu from one place to another.
This in the submission of the learned Asstt. Advocate General sufficiently clothes the Home and Deputy Prime Minister with powers to transfer a detenu from one place to another. The matter is not so simple as the learned Asstt. Advocate General thinks. According to Section 38-A Public Security Act, the Government can delegate only those powers to an officer or authority which it possesses. The question is: does any of the 40 sections of the Public Security Act empower the Government anywhere to transfer a detenu from one place of detention to another? We have ransacked and explored each and every section of the Public Security Act and nowhere do we find that the Government possesses any such power of transfer. By a reference to the Notification by which power of transfer has been given to the Home and Dy. Prime Minister we find that the Government has delegated some powers which it thought it possessed under Sub-section (2) of Section 3 including power to transfer a detenu from one place to another to the Hon'ble Home and Deputy Prime Minister.
6. Now we might again revert back to Sub-section (2) of Section 3. A reference to this sub-section would reveal that the Government comes in only for the following purposes:
1) That the factum of arrest made by or on the direction of any officer shall be referred forthwith , to the Government.
2)The arresting authority may commit the person to such custody as the Government may by general or special order specify in this behalf.
3)The person detained shall be placed under personal restraint during the pleasure of the Government.
7. Nowhere has in this sub-section been any power given to the Government to transfer a detenu from one place of custody to another. The committal to custody has in all cases to be made by the officer who has effected or directed the arrest of the detenu, and therefore, the Notification by which powers of transfer are deemed to have been delegated to the Hon'ble Home and Dy Prime Minister is ultra vires of Sub-section (2) of Section 3 of the Public Security Act and Section 38-A of the same Act.
8. The learned Asstt. Advocate General understood the force of this argument and began to advance arguments in a general manner - one such argument being that the Government being the fountain-head of all powers, can order the transfer of a detenu from one place to another, even though the law did not specifically or even generally empower them to do so. We find considerable difficulty in agreeing to this proposition advanced by the learned Asstt. Advocate General, we suppose, in sheer dismay. He must know that the Government can exercise only those powers which have been delegated to it by the Legislature. Governments have no inherent powers of their own. They have to execute the wishes of the legislature which in fact has the sovereign authority. If the legislature does not in specific words authorize the Government to take a certain action against a person who is dealt with under some law, the power to take such action cannot be presumed without a clear provision of law. The Courts have to administer the law as it is, and as pointed out by their Lordships of the Allahabad High Court reported in - Deputy Commr. Kheri v. President Notified Area Committee Misri-Kum-Nimar AIR. 1949 All 683 (C).
It is not the function of Courts to amend bye-laws so as to make Ultra vires; they can only decide whether the bye-laws as they stand are; within the bye-law making power, if the authority making the bye-law is of the opinion that it can validate the bye-laws by making home alteration in their language, it is upto it to make that alteration.
9. Following the principle laid down in this authoritative pronouncement, we have to see whether the Notification which purports to authorize the Hon'ble Home & Dy. Prime Minister to order the transfer of a detenu from one place to another is. or is not ultra vires of Sub-section (2) of Section 3. We have come to the conclusion that it is not intra vires of this section, and it is not upto us to set it right. It is for the legislature to do so if they so choose. The Courts have got only to see that the law should be administered as it is and, not as it should have been. In - Makhan Singh v. State of Punjab (I) : 1952CriLJ321 , it has been observed that:
It cannot too often be emphasized that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected.
The learned Asstt. Advocate General at long last, tried to argue that if there is a provision of law which is susceptible of two interpretations, that interpretation should be taken as correct which: does not negative the working of an Act of the Legislature. This might be a principle applicable in civil cases, but not so in cases where a person has been deprived of his personal liberty without. trial. Two constructions of a provision of law would mean that the provision of law is of a doubful meaning. The benefit of doubt must always go to the person on whose liberty an inroad has been made without trial. According to the ruling just cited and which has been quoted with approval, in - Naranjan Singh v. State of Punjab (I) : 1952CriLJ656 the procedure established by law must be strictly followed and must not be departed from to the disadvantage of a person deprived of personal liberty.
10. We have just found that the Public Security Act in general or Sub-section (2) of Section 3 does not in any way authorize the Government to order transfer of a detenu from one jail to the other. Such a power must have been directly given to the Government by the legislature and cannot be presumed. A reference may in this connection be made to the Preventive Detention Act of 1950 as in force in the Indian Union. According to Section 4 of that Act the Government has been specifically authorized to remove a detenu from one place of detention to another. If the legislature of this place wanted such a power to be given to the Government there was nothing to prevent them from doing so. Then in our own. Defence Rules (Jammu & Kashmir Defence Rules) the Government has been given power under Sub-rule 5(B) of Rule 24 to remove a person detained from one place of detention to another situate in any area of the State. When our own legislature authorized the Government under Defence Rules to remove a detenu from one place to another, there was nothing to prevent it from giving a similar power to the Government bf this place under the Public Security Act. But this has not been done. The result of this application is therefore obvious.
11. For the foregoing reasons we find that the detention of Ghulam Nabi Jan detenu is both improper and invalid. We, therefore, accept this Habeas Corpus application and order that Ghulam Nabi Jan be forthwith released unless wanted In connection, with some other case.
12. I agree.