JUDGMENT Thomas, C.J. and Bennett, J. - These are applications u/s 491 of the Code of Criminal Procedure challenging the detention of certain persons under Rule 26 of the Defence of India Rules. There are nine altogether, but only eight have been pressed, as the learned Counsel who has represented all the applicants states that Thakur Satrohan Singh, the person concerned in application No. 106, has already been released. 2. In seven of the remaining eight applications the order impugned was passed by the Provincial Government; in the eight case it was passed by the Commissioner, Lucknow. 3. The applications raise the same general question, apart from particular facts relating to certain detenus, upon which some separate arguments have been founded. We shall first consider the objection which is common to all the applications 4. This objection is based on the decision of the Federal Court in AIR 1943 1 (Federal Court) , that Rule 26 of the Defence of India Rules is ultra vires. It is contended that the Defence of India (Amendment) Ordinance No. XIV of 1943 dated the 28th April, 1943, validating the rule, is also ultra vires and therefore the persons concerned in these applications are illegally and improperly detained. 5. The question of the validity of the amending Ordinance has recently been considered by their Lordships of the Federal Court in King-Emperor v. Sibnath Banerjee (1943) 6 Fed L.J. Rep 151, and one of the headnotes to the case reads: "Held by the Court: (1) Whether Section (2) of the Ordinance was valid or not. Section 3 of the Ordinance was not invalid or ultra vires, as it was within the ordinance-making powers of the Governor-General and was not so dependent upon, or connected with, Section 2 of the Ordinance as to be incapable of being given effect to itself, i.e., irrespective of whether Section 2 was valid or not." 6. Section 2 of the amending Ordinance substitutes a new clause for Clause (x) of Section 2(2) of the Defence of India Act, 1939. Section 2 of the amending Ordinance substitutes a new clause for Clause (x) of Section 2(2) of the Defence of India Act, 1939. Section 3 reads: "Validity of orders made under Rule 26, Defence of India Rules." "For the removal of doubts it is hereby enacted that no order heretofore made, against any person under Rule 26 of the Defence of India Rules shall be deemed to be invalid or shall be called in question on the ground merely that the said rule purported to confer powers in excess of the powers that might at the time the said rule was made be lawfully conferred by a rule made or deemed to have been made u/s 2 of the Defence of India Act, 1939" 7. The question of the validity of Section 2 was expressly left open by their Lordships of the Federal Court, it being said that the view which they take as to Section 3 makes it unnecessary to pronounce any decision in respect of Section 2. 8. We asked learned Counsel for the applicants if there is any reason now that the validity of Section 3 has been upheld why we should consider the question of the validity of Section 2 and he has agreed that there is not: the judgment of the Federal Court precludes him from questioning the validity of Section 3 and the orders cannot be attacked on the ground that they were passed under an invalid rule of the Defence of India Rules. 9. We have therefore in these applications only to consider certain other arguments which were put forward by the learned Counsel in order to show that the detention of the detenus in question is unlawful 10. Reference was made particularly to the other ruling given by the Federal Court in the same case, namely (as shown in the headnote): "That it was a condition precedent for the valid exercise of the power of detention conferred by Rule 26 that the Provincial Government should have applied its mind and become satisfied that such detention was necessary for preventing the person proceeded against from acting in a manner prejudicial to the matters mentioned therein, and orders of detention made in pursuance of a general order that if the Police recommended detention of any person under Rule 26 such person may be detained, were therefore Invalid". 11. 11. We have been supplied with copies of the Orders passed by the Government of the United Provinces and by the Commissioner. The Government orders are in printed forms, room being left for the name of the person concerned to be filled in together with the name of the place where be is to be detained. Omitting these particulars the Order reads: "Whereas the Government of the United Provinces is satisfied with respect to the person known as that with a view to preventing him from acting in a manner prejudicial to the efficient prosecution of the war, to the defence of British India or to the public order, it is necessary to make the following order;" "Now, therefore, in exercise of the power conferred by Clause (b) of Sub-rule (1) of Rule 36 of the Defence of India Rules, the Provincial Government is pleased to direct that the said shall be detained in the custody of the Superintendent, District Jail, until further orders of Government." 12. Similar phraseology is to be found in be Commissioner's Order, with a reference to the delegation to him of the power conferred by Clause (b) of Sub-rule, of Rule 26 by virtue of notification No. 8566-CX, dated September 16, 1942. 13. It was contended for the applicants that the orders are inadequate as not showing the grounds on which the Government or the Commissioner was satisfied; and that the onus lies on them to show that in fact they were satisfied; and for the Crown that it was not open to the applicants to question the "satisfaction" of the authority making the order, reference also being made to the absence in the applications of any allegation of mala fides or of any suggestion that the orders were not justified. 14. On the question of onus we have considered the judgments of Zafrulla Khan, J. and the learned Chief Justice in King-Emperor v. Sibnath Banerjee. It was said by the former learned Judge in that case (the judgment being delivered on behalf of himself and Varadachariar J.) that it was conceded that the Court could not be invited to investigate the sufficiency of the material or the reasonableness of the grounds upon which the Governor had been satisfied. It was said by the former learned Judge in that case (the judgment being delivered on behalf of himself and Varadachariar J.) that it was conceded that the Court could not be invited to investigate the sufficiency of the material or the reasonableness of the grounds upon which the Governor had been satisfied. "The gist of the contention was that these cases were never before the Governor, that the Governor had never applied his mind to them and that therefore it could not be said that the Governor had been satisfied". With regard to the presumption on which the Crown relied that official acts have been regularly performed the English cases of Liversidge v. Sir John Anderson 1942 A.C. 206, and Greene v. Secretary of State for Home Affairs 1942 A.C. 284, were referred to as showing that the matter was one for the executive discretion of the Secretary of State, and that the Court was not entitled to investigate the grounds on which the Secretary of State was satisfied that the detention of the persons concerned was necessary. The learned Judge observed that before such a presumption can arise it must be shown that the orders are on the lace of them regular and conform to the provisions of the rule under which they purport to be made. He made the following comment on the form of the orders passed (similar, it would appear, to the form in the present cases). "This reads as if all that the authority making the order was satisfied about was that the person concerned in each case should be detained and was not certain as to the reason for detaining him i.e. whether that person was to be prevented from acting prejudicially to the defence of British India, or acting prejudicially to the public safety, or acting prejudicially to the maintenance of public order, or acting prejudicially to the efficient prosecution of the war. We were told that the order is a cyclostyled form in which the name and particulars of the persons to be detained are filled in as need arises. We were told that the order is a cyclostyled form in which the name and particulars of the persons to be detained are filled in as need arises. It is possible that the ministerial officer responsible for the drawing up of the order merely copied into this part the relevant portion of the language of the Rule itself, and failed to notice that though the word "or" before the words "efficient prosecution of the war" was perfectly in order in the Rule, it was out of place in the orders of detention It was suggested that some sort of reasonable meaning could still be read into this part of the orders of detention, but we see no reason to adopt a meaning different from that which would prima facie attach to the language used". 15. Zafrullah Khan J proceeded as follows: "Assuming, however, that the orders are regular in form and are open to no objection on the face of them there is so much material on the record showing that the requirements of Rule 26 were grossly violated in the making of the orders that it would not be safe to make any presumption regarding their validity. This material is contained in the affidavits filed on behalf of the Respondents and the counter affidavit sworn by Mr. Porter, Additional Home Secretary to the Bengal Government." 16. Upon this material and the evidence of answers given by the Home Minister, Bengal in the Bengal Legislative Assembly to questions put to him regarding detention under Rule 26 his Lordship found that: "The procedure adopted appears to have been that the police sent up lists of persons detained under Rule 129 together with a recommendation that these persons should be detained under Rule 26. Thereupon orders for detention under Rule 26 were issued forthwith as a matter of routine" and the conclusion drawn was that "every one of these orders is bad in law as in no case does it appear that the matter was considered by the Governor at any stage, much less that at the time the order was made he was satisfied with regard to any of the matters set out in the order of detention." 17. Affidavits were filed in support of most of the applications now under consideration but they only stated the facts relevant to each detenue and challenged the validity of Rule 26 and the amending Ordinance. They did not question the facts stated in the orders passed nor is there any evidence which suggests that the cases were not considered by the authority concerned. 18. The learned Chief Justice took a different view of the form in which the orders were passed in Sibnath Banerjee's case, but as the learned Judges who pronounced the majority judgment questioned it and observed that before the ordinary presumption of law can arise it must be shown that the orders are on the face of them regular and conform to the provisions of the rule under which they purport to be made, the Government Advocate obtained from Mr. D.S. Barron, Home Secretary to the Provincial Government, affidavits in which it is stated that before the issue of the orders by the Government of the United Provinces in these cases the cases were placed before His Excellency the Governor, and that the orders of dentention were issued in accordance with the orders passed by His Excellency after he had considered the cases. 19. The affidavits were shown to the learned Counsel for the applicants and they were given further opportunity of addressing us, but they intimated that they did not desire to be heard again. In view of these affidavits it is in our opinion no longer possible for Counsel to contend that it is not established that the Governor was actually satisfied in any of these cases before the orders were issued, and we presume that on this account they no longer wish to press this point. 20. The learned Counsel for the applicants objected that the order under consideration (excepting that made by the Commissioner) purport to be made by the Government of the United Provinces or the Provincial Government, no reference being made to the Governor. This was presumably because Rule 26 empowers the Central Government or the Provincial Government to issue the order. 20. The learned Counsel for the applicants objected that the order under consideration (excepting that made by the Commissioner) purport to be made by the Government of the United Provinces or the Provincial Government, no reference being made to the Governor. This was presumably because Rule 26 empowers the Central Government or the Provincial Government to issue the order. At the same time he referred to the definition of "Provincial Government" in the General Clauses Act of 1897 as meaning in a Governor's Province "the Governor acting or not acting in his discretion and exercising or not exercising his individual Judgment" according to the provision in that behalf made by and under the Government of India Act of 1935. With these provisions may also be considered the proclamation issued by the Governor of the United Provinces u/s 93 of that Act, assuming to himself executive powers. Reference was also made by the learned Counsel for the Crown to the provinces of Sections 49 and 69(2) of the same Act. 21. We are satisfied upon consideration of these provisions and the affidavits filed that the orders under consideration were properly made by the Governor, and that the provisions in Section 59(2) of the Constitution Act is applicable to them. 22. The order made by the Commissioner was challenged on other grounds. Delegation of power to subordinate authorities is provided for in Sections 49 and 124 of the Constitution Act. The order under which power under Rule 26 was delegated to the Commissioner, Lucknow, was passed under the provisions of Section 2(5) of the Defence of India Act, which provides that: "A Provincial Government may by order direct that any power or duty which by rule made under Sub-section (1) is conferred or imposed on the Provincial Government, or which, being by such rule conferred or imposed on the Central Government, has been directed under Sub-section (4) to be exercised or discharged by the Provincial Government, shall, in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged by any officer or authority, not being (except in the case of a Chief Commissioner's Province) and officer or authority subordinate to the Central Government." 23. One argument put forward was based on the fact that while the Constitution Act refers to the conferring of powers on subordinate authorities, Section 2(5) provides that the Provincial Government may direct that the powers in question shall be exercised by a subordinate authority, an attempt being made to draw a distinction between the conferment of powers and a direction that those powers shall be exercised, and to invite the conclusion that the provision in Section 2(5) of the Defence of India Act was ultra vires. Another argument put forward was that the power to be satisfied could not be delegated. Reference was made on these points to the Calcutta case of Sibnath Banerjee v. A.E. Porter AIR 1943 Cal 337, but we can find nothing in the judgment: in this case which would be relevant for a consideration of these points upon the facts of the case under consideration, and the arguments appear to us to have no force. We see no repugnancy between the provision in the Constitution Act and the provision in Section 2(5) of the Defence of India Act, and it is, we consider, clearly implied in Sub-section (5) that it is the officer or authority to whom the power is delegated who must be satisfied according to the terms of Rule 26. There would be no object in delegating the power, if it was still necessary for the Provincial Government to be satisfied in each case before the order was passed. 24. Reference was then made to three cases in particular, namely those of Thakur Prasad Saxena, Gopal Narain Saxena and Jagan Prasad Rawat, refered to in applications Nos. 111, 112 and 142 respectively. 25. It is stated in the application of Thakur Prasad Saxena that he was arrested on the 9th August, 1942, under Rule 26, and that while in detention in the Central Jail, Lucknow, he was convicted on the 23rd January, 1943, under Rule 52 of the Jail, Manual and sentenced to six month's rigorous imprisonment. It is further stated that on his conviction the warrant under Rule 26 was cancelled and that it on the completion of his term of sentence on the 7th July, 1943, "the old cancelled warrant under Rule 26, Defence of India Rules, was received by the Jail authorities at Fyzabad (where he had been transferred) for his indefinite detention." 26. It is further stated that on his conviction the warrant under Rule 26 was cancelled and that it on the completion of his term of sentence on the 7th July, 1943, "the old cancelled warrant under Rule 26, Defence of India Rules, was received by the Jail authorities at Fyzabad (where he had been transferred) for his indefinite detention." 26. In the application filed on behalf of Gopal Narain Saxena it is stated that he was convicted under Rule 38(5) read with Rule 34(6)(a) and (k) on the 4th August, 1942 and that on preferring an appeal against the conviction in the Court of the Sessions Judge, Lucknow, he was granted bail the same day. On the 9th August, 1942, while on bail, he was arrested under Rule 26. His appeal to the Sessions Judge against his conviction was dismissed on the 21st September, 1942. Upon this, it is alleged, the warrant under Rule 26 was cancelled. His term of sentence expired in June and he was to be released on the 15th Jane, from the Fyzabad District Jail. Baton that date, when he was brought to the Jail gate to be released, another, warrant under Rule 129 of the Defence of India Rules, issued by the District Magistrate, Lucknow was received for his detention and subsequently warrant under Rule 26 took its place and the previous warrant under Rule 129 was cancelled. 27. The application of Jagan Prasad Rawat states that he was arrested on the 1st June, 1942, and tried and convicted under Rule 38 road with Rule 34 of the Defence of India Rules on the 30th July, 1942. On appeal his sentence of 18 months' rigorous imprisonment was reduced to 9 months This sentence expired on the 24th March, 1943, and on that date he was detained under Rule 26 upon a warrant dated the 5th August, 1942. 28. Mr. Bahadurji the senior counsel for these and the other applicants, stated that he could not vouch for the allegation that the original warrant under Rule 26 in the case of Thakur Prasad Saxena was cancelled and then returned upon completion of his sentence; he did not know upon what information this allegation was based The allegation was not admitted on behalf of the Crown. 29. 29. We are unable to understand why the original warrant under Rule 26 should have been cancelled when this applicant was convicted under Rule 52 of the Jail Manual and we doubt whether the statement is correct, but if it was cancelled we see no reason to think that it was sent to Fyzabad on the completion of his sentence in its cancelled form, that is, with the form showing that it had been cancelled and nothing further appearing on it to show that it was being re-issued. 30. Upon the facts stated in the case of Gopal Narain Saxena the argument is put forward that he should have been actually released from the jail before being arrested on the warrant under Rule 129. The argument is not supported by any authority and we do not consider that there is any force in it. The jail authorities were presumably entitled to inform the applicant that he had completed the sentence imposed on his conviction, but that as a warrant had been received for his further detention he would not be released. Upon the learned Counsel's argument it would be necessary in the case of a prisoner who had been sentenced to various terms of imprisonment for different offences, to run consecutively, to release him on the expiration of each earlier term and then re-arrest him to under-go the next period of imprisonment imposed. 31. The objection put forward to the procedure in the case of Jagan Prasad Rawat is that the warrant upon which he was detained on the 24th March, 1943, was out of date, having been issued on the 5th August, 1942. But since it authorised his detention until further orders there is no reason why it should not have been served at any time, unless it had been cancelled. The only reason why it was not served before was no doubt that as Jagan Prasad Rawat was undergoing a sentence of imprisonment for a substantive offence the warrant was not required to authorise his detention until that sentence had expired. 32. For these reasons we see no reason to think that any of the persons concerned in these applications is being illegally or improperly detained and we dismiss them. 33. u/s 205 of the Government of India Act, 1935, we certify that the applications involve a substantial question of law as to the interpretation of that Act.