Judgement Appeal (No.44 of 1944) by the Crown, by leave of the Federal Court, from a judgment of that Court (Spens C.J., Varadachariar and Zafrulla Khan JJ) (August 31, 1943) dismissing eight appeals by the Crown against, orders and judgments of the High Court at Calcutta (June 3, 1943). The orders and judgments of the High Court were made and delivered in respect of applications in the nature of habeas corpus proceedings made under s. 491 of the Criminal Procedure Code on behalf of nine persons, eight of whom were originally the respondents to this appeal, detained in various jails in pursuance of orders made under r. 26 of the Defence of India Rules on various dates between October 24, 1940, and March 8, 1943. The applications to the High Court were made on April 24, 1943, two days after the Federal Court in its judgment in Keshav Talpade v. King-Emperor (1) had declared that r. 26 was ultra vires of s.2, sub-s, 2 (x), of the Defence of India Act, 1939. The main points for determination in this appeal were (a) whether the appeals from the High Court to the Federal Court and from the latter to His Majesty in Council were competent; (b) whether Talpades case ([ 1943] F. C. R. 49.) was rightly decided; (c) whether the orders for the detention of the respondents had been validly made in conformity with the provisions of r. 26; and (d) whether the courts were precluded from investigating the validity of the orders of detention. The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee. 1945. Apr. 16, 18, 23, 24, 25, 26, 30; May 1. Pritt K.C. and Krishna Menon, for the respondents, at the request of the Board, argued first the question of the competency of the appeals from the High Court to the Federal Court. It is well settled that an order directing discharge under a writ of habeas corpus is not appealable in England, and though the position in India has been crystallized into the statute law relating to habeas corpus in India, it is in essence the same as that in England, and, applying that law, on the authorities the decision of the High Court was not appealable to the Federal Court. So even if the Board were to give special leave to appeal now in this case, the difficulty would still be whether the Federal Court itself had jurisdiction. In Cox v. Hakes (( 1890) 15 App. Cas. 506, 535.) it was held that no appeal lay to the Court of Appeal under s. 19 of the Judicature Act, 1873, from an order discharging a prisoner under a habeas corpus, and in Secretary of State for Home Affairs v. OBrien ([ 1923] A. C. 603, 621.), Lord Dunedin said that " when " once a person has been held entitled to liberty by a competent " court there shall be no further question." [Reference was also made to Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government ([ 1943] A. C. 147, 155.) and Benson v. Northern Ireland Road Transport Board ([ 1942] A. C. 520, 526.), where Viscount Simon L.C. referred to Reg. v. Tyrone County Justices (( 1906) 40 Ir. L. T. 181.) where Palles C.B. said that " before you can appeal against an acquittal, the " words must be clear, express, and free from any ambiguity."] We did take with us to India, broadly speaking, fundamental principles as to personal liberty and habeas corpus, and while it is open to the Indian Legislature to grant appeals against acquittals and to confine habeas corpus to a particular section of the Criminal Procedure Code, that does not alter the fact that the fundamental principles are there. The Indian position is the same in the end as that in England. To all intents and purposes the whole of the law of habeas corpus in British India, civil or criminal, is now contained within s. 491 of the Code of Criminal Procedure, and on the authorities what is called habeas corpus is exactly habeas corpus that we took out with us—s. 491 is the same habeas corpus in spirit and in essence; it did not lose its nature by getting a new coat Girindra Nath Banerjee v. Birendra Nath Pal (( 1927) I. L. R. 54 C. 727.); Matthen v. District Magistrate, Trivandrum (( 1939) L- R. 66 I. A. 222.). In re Narrondas Dhanji (( 1890) I. L. R. 14 B. 555.) was a case of refusal of habeas corpus, and it was held to be appealable. In re Narrondas Dhanji (( 1890) I. L. R. 14 B. 555.) was a case of refusal of habeas corpus, and it was held to be appealable. In re Horace Lyall (( 1902) I. L. R. 29 C. 286.) shows that habeas corpus in India had the same majesty as it has here. In re Hochunni Elaya Nair (( 1921) I. L. R. 45 M. 14.) is not of much assisance here. Neither in the Letters Patent of the Bengal High Court of 1865, nor in the Criminal Procedure Code, is there any provision for appeal from a. decision either way about habeas corpus in criminal matters. Thus in habeas corpus matters in India before the Government of India Act, 1935, there was no right of appeal from the decision of the High Court except to this Board by special leave. In s. 205 of the Government of India Act, 1935, the right of appeal to the Federal Court was limited. It should not be held that words such as those in s. 205 would give a right of appeal to the Crown against an order declaring a mans right to his liberty. The position must be the same in British India if, as has been submitted, in British India habeas corpus has the same origins, atmosphere and substance as it has in this country. The proper assumption, therefore, is that there was no appeal from the High Court to the Federal Court, and further, by parity of reasoning, under s. 208 of the Government of India Act there is no appeal from the Federal Court to this Board, even if the Federal Court had valid jurisdiction. It is also submitted that this is not a case in which the Board should, or would, readily entertain an appeal for the assistance and guidance of the courts in India. To do so would be a rather unusual departure from anything that the Board has done in the past, and this is not a proper case for such a departure. To do so would be a rather unusual departure from anything that the Board has done in the past, and this is not a proper case for such a departure. The Board has never adjudicated on (a) whether appeal lies in such a case as this, and (b) whether the Board will grant an appeal from a judgment which ought not to have come into existence at all The Queen v. Mount (( 1875) L. R. 6 P. C. 283.); Attorney-General for Hong Kong v. Kwok-a-Sing (( 1873) L. R. 5 P. C. 179.); and Attorney-General for Canada v. Fedorenko ([ 1911] A. C. 735.). The Federal Court had no jurisdiction to hear the appeal it did, and accordingly there is nothing to appeal here from. Sir Walter Monckton K.C., Wallach and B. MacKenna for the Crown. It is not clear that the incidents of habeas corpus in India are precisely the same as those of habeas corpus in this country. Also, whereas in England habeas corpus is something which issues as of right, it is a discretionary matter under s. 491 of the Criminal Procedure Code, so it would appear that it was not put on the same level as it was in England. Assuming, however, that the incidents of habeas corpus were the same in British India as in England, and no change was effected by s. 491 of the Code, the question must then be faced whether s. 205 of the Government of India Act, 1935, should be construed in this case as s. 19 of the Judicature Act of 1873 was construed in Cox v. Hakes (15 App. Cas. 506.). There are two considerations against that view. The first is the fact that in India there can be an appeal from an acquittal; that is, a person who has been discharged by the verdict of a jury or the decision of a judge can still be convicted on appeal and imprisoned. There is no reason to attach greater sanctity to an order of discharge in habeas corpus cases than in others. It was held in Hori Ram Singh v. The Crown ([ 1939] F. C. R. 159.) that the words "judgment, decree or final order " in s. 205, sub-s. 1, of the Government of India Act do not limit the appellate jurisdiction of the court to civil cases. It was held in Hori Ram Singh v. The Crown ([ 1939] F. C. R. 159.) that the words "judgment, decree or final order " in s. 205, sub-s. 1, of the Government of India Act do not limit the appellate jurisdiction of the court to civil cases. If, therefore, s. 205 does apply to appeals in criminal cases, it would presumably give an appeal in the case of an acquittal, and there is no reason why there should not be a right of appeal from an order of discharge under s. 491 of the Code. There is an appeal from the order of discharge here because it is one which involves a substantial question of law, and the High Court could certify under s. 205, and the Federal Court could deal with the whole case. Then under s. 208 of the Constitution Act an appeal may be brought here with leave of the Federal Court. Accordingly, if the Federal Court can entertain the matter when it comes before them, the appellant is in no worse position when he comes here. The second consideration is that s. 205 of the Constitution Act is distinguishable from s. 19 of the Judicature Act, 1873, both because it is part of a federal constitution and because it gives a right of appeal only where constitutional questions are raised. The fact that here one is dealing with a passage in a federal constitution, and that a right of appeal has been granted in cases where questions affecting the proper interpretation of that constitution emerge, are matters which should be borne in mind in considering whether it is not more difficult to cut down the general words " judgment, decree or " final order " than would be the case if the words had appeared in s. 19 of the Judicature Act. In any event, there would be ample jurisdiction in this Board to grant special leave to appeal from the orders of the High Court. Dealing with the appeal on the merits, on April 22, 1943, the Federal Court in Keshav Talpade v. King-Emperor (1), reversing the decision of the High Court at Bombay, held that r. 26 of the Defence of India Rules was ultra vires of the rule-making power conferred by the Defence of India Act, 1939. Dealing with the appeal on the merits, on April 22, 1943, the Federal Court in Keshav Talpade v. King-Emperor (1), reversing the decision of the High Court at Bombay, held that r. 26 of the Defence of India Rules was ultra vires of the rule-making power conferred by the Defence of India Act, 1939. On April 24, 1943, applications were made by the respondents to this appeal under s. 491 of the Criminal Procedure Code, submitting that their detention was unlawful. The questions that arise here are under four heads (a) Whether r. 26 was valid when Talpade s case (1) was decided; it is submitted that that case was wrongly decided. If so, and r. 26 is held to be valid, the only question then is whether what was done in respect of this order was proper, (b) If Talpade s case (1) was rightly decided, has any defect in the rule-making powers been cured by Ordinance XIV. of 1943 so as to validate these detention orders in that respect, (c) If the appellant succeeds on one or other of (a) or (b), that is, r. 26 was valid or the defect has been cured retrospectively, then can the orders of detention be challenged or questioned having regard to the terms of s. 59, sub-s.2, of the Government of India Act, 1935, and of s. 16 of the Defence of India Act, 1939. (d) If the appellant is wrong on (c), and if these orders can be questioned, then were there materials on which the courts below could properly decide that the orders were not made in conformity with r. 26 ? The principal point taken by the respondents under this last head was that before making an order the Provincial Government had to be satisfied, and they say that Provincial Government means the Governor personality. The majority of the Federal Court have so held, the Chief Justice dissenting. The decision in Talpade s case ([ 1943] F. C. R. 49.) eventually turned on the view that r. 26 was not within the rule-making power of s. 2, sub-s.2 (x), of the Defence of India Act, 1939. The majority of the Federal Court have so held, the Chief Justice dissenting. The decision in Talpade s case ([ 1943] F. C. R. 49.) eventually turned on the view that r. 26 was not within the rule-making power of s. 2, sub-s.2 (x), of the Defence of India Act, 1939. Assuming that the rule in some respects did go beyond the rule-making power set out in s.2, sub-s.2 (x), of the Act, it is submitted that s. 2, sub-s. 1, of the Act justifies the rule, and that was the Chief Justices view in Bombay. [Reference was made to Rex v. Comptroller General of Patents. Bayer Products, Ld., ex parte ([ 1941] 2 K. B. 306).] If Talpade s case (1) was rightly decided, Ordinance XIV. of 1943 must be considered, and it shows that the Governor-General is in the case of emergency entitled to legislate in precisely the same way as the Central Legislature could have legislated, with no more limits on it than that King-Emperor v. Benoari Lal Sarma (( 1945) L. R. 72 I. A. 57, 66.). Rule 26 was accordingly validated by the effect of s. 2 of that Ordinance. If it be right that Talpades case ([ 1943] F. C. R. 49) was wrongly decided, or that Ordinance XIV makes good any deficiency, then r. 26 is valid, and the next question is who can make an order under it ? We are here concerned with the Provincial Government, which is defined in s. 3 (43a) of the General Clauses Act as the Governor acting or not acting in his " discretion and exercising or not exercising his individual judgment . . . ." That means the Governor exercising such powers of delegation as are conferred on him by the Government of India Act, 1935. There are three ways in which the Governor can address himself to any particular matter—discretion, individual judgment, and otherwise. It is for him to determine in which way he is facing the function. If he is not acting in his discretion or individual judgment, then he acts on the advice which he asks for and gets from his ministers. The whole argument on this matter is that the Governor could have delegated this executive authority to a subordinate. Item I. of List II. If he is not acting in his discretion or individual judgment, then he acts on the advice which he asks for and gets from his ministers. The whole argument on this matter is that the Governor could have delegated this executive authority to a subordinate. Item I. of List II. of the VIIth Schedule to the Government of India Act indicates that " preventive " detention,” for which r. 26 was made, is a matter within the legislative competence of the Province, and the executive would be normally the executive of a Province. It is the Provincial Government which under the rule is to make the orders, and the orders of detention here are the orders of the Governor, and therefore of the Provincial Government under s. 59, sub-s.2, of the Constitution Act. The submission is that the orders are duly authenticated and therefore under s. 59, sub-s. 2, they cannot be challenged on the ground that they are not the Governors orders. Also, when there is an order of the Province duly authenticated and made in the exercise of a power conferred under the authority of a rule made under the Defence of India Act, 1939, it cannot be called in question under s. 16 of the Act of 1939 on the ground that there is no proof that the Governor was in fact satisfied. This submission disposes of the contention that no proper person was satisfied. If, however, it can be shown that by reason of s. 59 of the Constitution Act and s. 16 of the Defence of India Act the orders cannot be questioned, that is a short answer. Section 49 of the Constitution Act shows how the executive authority of the Provincial Government is dealt with, and reading ss. 49 and 50 together the scheme is that everything would be done in the name of the Governor, and it is open to him to act either directly or through officers subordinate to him. Section 49 of the Constitution Act shows how the executive authority of the Provincial Government is dealt with, and reading ss. 49 and 50 together the scheme is that everything would be done in the name of the Governor, and it is open to him to act either directly or through officers subordinate to him. Section 49, sub-s.1, where it says that " The executive " authority of a Province shall be exercised on behalf of " His Majesty by the Governor, either directly or through " officers subordinate to him,” covers the whole executive authority of the Province, whether it be derived from matters which fall within the competence of the Provincial legislature or whether it is the exercise of executive authority conferred by the Central legislature. It would be an astonishing thing if it were to be said that if executive authority is obtained from the Province subordinates may be used, but not if it is got from the Federal legislature, The importance of s. 50, sub-s. 3, of the Constitution Act cannot be exaggerated—the Governor is the only person who can say into what category any particular matter falls; he could say that there was nothing to prevent him from dealing with these matters through subordinates. There were no materials on which the courts in India could properly decide that the Governor or the Provincial Government was not satisfied within the meaning of r. 26 in respect of each of the respondents. Whatever the Board may decide the Government does not intend to take any further action under the orders they have mae, but they are not precluded from making fresh orders under r. 26 if it is held valid. Pritt K.C., having replied on the competence point, continued It is conceded that the Talpade case ([ 1943] F. C. R. 49.) cannot be supported. It was said by the Federal Court in that case that sub-s. 2, of s. 2, of the Defence of India Act must be looked at for the justification for making r. 26, and that the rule was ultra vires of s. 2, sub-s.2 (x). It was said by the Federal Court in that case that sub-s. 2, of s. 2, of the Defence of India Act must be looked at for the justification for making r. 26, and that the rule was ultra vires of s. 2, sub-s.2 (x). It is clear, however, that the Federal Court failed to give weight to the opening words of sub-s.2, of s. 2, without prejudice to the generality of the powers conferred by sub-s. 1." The only section of the case remaining for argument, therefore, is that even if r. 26 is intra vires, the detention of the respondents was improper. The orders for detention were not made in con formity with the provisions of r. 26 and are bad in law. The two main points in which the appellant is interested are (a) must the Governor take some personal part in the transaction? and if that is not necessary, then how far down can one travel in finding people who may act for him, and (b) the appellant says that s. 49, sub-s. 1, of the Constitution Act allows them to leave this important and dangerous power of detention to anybody they like. It is submitted, first, that this is a personal responsibility of the Governor, or, at any rate, a matter on which he must exercise his individual judgment. Secondly, the Governor had not validly delegated his authority or power in respect of these cases under s. 2, sub-s.5, of the Defence of India Act. On the true construction of all the relevant legislative provisions the presence of sub-s. 5 of s. 2, does reinforce the proposition that this is a matter on which the Governor has to use his individual judgment. Thirdly, it may be that on the nature of the functions involved the Board ought to say that s. 49 of the Constitution Act applies sufficiently to allow the Governor to act through subordinates in making the orders, but the Governor himself has still to satisfy the quasi-judicial function of being satisfied. It is a condition precedent to the making of the order. Fourthly, any presumption that the Governor did anything at all from the legal point of view is abundantly rebutted by the evidence. It is a condition precedent to the making of the order. Fourthly, any presumption that the Governor did anything at all from the legal point of view is abundantly rebutted by the evidence. In forming a judgment on a matter of this sort the Governor, or whoever it may be, is not exercising executive authority, and therefore it is not possible for him to divest himself of any possible consideration and leave it to be done by officers subordinate to him. In any event, on that basis, and on the construction of s.49, sub-s.1, of the Constitution Act and of r. 26, the true effect of r. 26 is that when the Provincial Government, that is, the Provincial Government as defined in the General Clauses Act, has to be satisfied of something, then by parity of reasoning with that which commended itself to all their Lordships in Liversidge v. Sir John Anderson ([ 1942] A. C. 206.), the true construction of r. 26 is that the satisfaction must be that of the Governor himself. The matter falls within s. 52 of the Constitution Act, and is a special responsibility, and the Government has in fact asserted that it is treated as a special responsibility. Section 50, sub-s.3, really consists of two prohibitions, but neither of them affects this argument. Summarising, it is submitted (a) " individual judgment " means the judgment of the individual Governor—his personal judgment; (b) all the evidence here shows that in fact the declared practice was that the Governor should exercise his individual judgment in these matters, and did so in general, though not in these particular cases. The ministers statements in the legislature show that the operation of r. 26 in the internment of members of the legislature and others is a matter which comes within the category wherein the Governor exercises his individual responsibility, and that orders under r. 26 cannot validly be made without the Governors individual judgment, (c) The complaint of these respondents is that the practice was completely neglected. The appeal should therefore be dismissed. It has been suggested that ministers are not officers subordinate to the Governor, so that if he leaves a thing to the minister he is not even following s. 49, sub-s. 1, of the Constitution Act Emperor v. Hemendra Prasad (I. L. R. [ 1939] 2C.411.). The appeal should therefore be dismissed. It has been suggested that ministers are not officers subordinate to the Governor, so that if he leaves a thing to the minister he is not even following s. 49, sub-s. 1, of the Constitution Act Emperor v. Hemendra Prasad (I. L. R. [ 1939] 2C.411.). There is nothing in the Act, except in s. 49, sub-s.1 which lays any function on the minister except that of aiding and advising. There was here a complete disregard of the law, and the Government of Bengal ought to have every presumption drawn against them. The Chief Justice in the Federal Court was wrong in applying the principle omnia praesumuntur rite esse acta—the whole mass of evidence destroys that presumption. Sir Walter Monckton K.C. replied. July 17. The judgment of their Lordships was delivered by LORD THANKERTON. This appeal is brought by leave of the Federal Court of India, from a judgment of that Court (Spens C.J., Varadachariar and Zafrulla Khan JJ.), dated August 31, 1943, dismissing eight appeals by the Crown against orders and judgments of a Divisional Bench of three judges (Hitter and Sen JJ., Khundkar J. dissenting) of the High Court of Judicature at Fort William in Bengal, dated June 3, 1943. The orders and judgments of the High Court were made upon applications under s. 491 of the Criminal Procedure Code for directions in the nature of habeas corpus on behalf of nine persons, detained in various jails in pursuance of orders made under r. 26 of the Defence of India Rules on various dates from October 24, 1940, to March 8, 1943. These orders and judgments directed the release of the applicants. Of the nine original applicants, eight are called as respondents in the present appeal, but their Lordships were informed that two of the respondents had been released, namely, Narendra Nath Sen Gupta, respondent No, 4, on a date before the judgment of the Federal Court, and Bijoy Singh Nahar, respondent No. 2, after the judgment of the Federal Court. The remaining six respondents, with whom this appeal is now concerned, are under detention by virtue of orders made under Bengal Regulation III. of 1818. The remaining six respondents, with whom this appeal is now concerned, are under detention by virtue of orders made under Bengal Regulation III. of 1818. Having regard to the known and well-settled principle of the English law that a discharge, or an order directing discharge, under a writ of habeas corpus is final and not subject to appeal, and the importance of preserving safeguards of the liberty of the subject, their Lordships asked for arguments of counsel on the competency, in the present case, of the appeals by the Crown from the High Court to the Federal Court, which might equally affect the competency of the further appeal to this Board. It is sufficient to refer to the decision of the House of Lords in Cox v. Hakes (15 App. Cas. 506.), where the law of England on this matter is fully dealt with. In the present case, the appeals have proceeded under ss. 205 and 208 of the Government of India Act, 1935. Section 205 provides as follows— "205.—(1) An appeal shall lie to the Federal Court from " any judgment, decree or final order of a High Court in " British India, if the High Court certifies that the case involves " a substantial question of law as to the interpretation of this " Act or any Order in Council made thereunder, and it shall " be the duty of every High Court in British India to consider in " every case whether or not any such question is involved and " of its own motion to give or to withhold a certificate accordingly. (2.) Where such a certificate is given, any party in "the case may appeal to the Federal Court on the ground that " any such question as aforesaid has been wrongly decided, " and on any ground on which that party could have appealed " without special leave to His Majesty in Council if no such " certificate has been given, and, with the leave of the Federal " Court, on any other ground, and no direct appeal shall lie " to His Majesty in Council, either with or without special " leave." On the application of the Crown the High Court granted certificates under s. 205, sub-s.1, for leave to appeal to the Federal Court. After the decision of the Federal Court, leave was given by them under s. 208 (b) to appeal to His Majesty in Council. Their Lordships nave come to the conclusion that, in view of the special terms of s. 205, the appeals in the present case were competent. In Cox v. Hakes (15 App. Cas. 506.) it was held that the right of appeal given by s. 19 of the Judicature Act, 1873, did not include an appeal against an order of discharge made upon a writ of habeas corpus. Lord Halsbury L.C. said, My Lords, I have insisted " at some length upon the peculiarities of the procedure, because I think one cannot suppose that the Legislature intended to alter all the procedure by mere general words " without any specific provision as to the practice under the " writ of habeas corpus or the statutes which from time to " time have regulated both its issue and its consequences. My Lords, I do not deny that the words of s. 19 literally " construed are sufficient to comprehend the case of an order of " discharge made upon an application for discharge upon a writ " of habeas corpus; but it is impossible to contend that the " mere fact of a general word being used in a statute precludes "all inquiry into the object of the statute or the mischief " which it was intended to remedy" (Ibid. 517.). In their Lordships opinion, the condition of the law of habeas corpus in India, and the purpose and express words of s. 205 of the Government of India Act, 1935, afford a contrast to the condition of the English law and the object and general terms of s. 19 of the Judicature Act of 1873. The history of the matter is shortly stated by Sir George Rankin, then Chief Justice, in his admirable judgment in Girindra Nath Banerjee v. Birendra Nath Pal (( 1927) I. L. R. 54 C. 727.), from which the following quotation may be made "I proceed therefore to inquire whether according to " the law in India as it now stands there is or is not power in " the High Court to grant the writ of habeas corpus at " common law independently of s. 491 of the Criminal Procedure Code. Now in 1870 in the case of Ameer Khan (( 1870) 6 B.L. R. 392.), Norman J. held that the High Court could issue the habeas corpus outside the original jurisdiction to the Superintendent of the Jail at Alipore. In 1872 the Code of Criminal Procedure (Act X. of 1872) was enacted which gave the right " to European British subjects detained in custody whether " within the limits of the High Courts original jurisdiction or outside those limits to apply for an order directing the person " detaining him to bring him before the High Court, in other " words, for an order under s. 81 in the nature of habeas corpus. Section 82 provided that Neither the High Courts nor any judge of such High Courts shall issue any writ of habeas corpus, main prise, de homine replegiando, nor any other writ of the like nature beyond the Presidency towns.’ This prohibition cannot in my opinion be confined to the case of European British subjects nor has this been contended before Rs. In 1875, the High Courts Criminal Procedure Act (X. of 1875) in s. 148, set out various purposes for which an order in the nature of habeas corpus might be made and it gave power to the High Courts to make suc orders in the case of persons within the limits of their original jurisdiction. It went on to say that neither the High Court nor any judge thereof shall hereafter issue any writ of habeas corpus for any of the above purposes.’ Certain particular matters were excepted, it being stated that "nothing in this section applies to a person detained under Bengal Regulation III. of 1818 and certain other Regulations. But it is quite clear that for the purposes provided for by s. 148, the intention was that relief should be granted under the section and recourse should not be had to the old prerogative writs....The subsequent history of the " matter is shortly this, that when the Code of Criminal Procedure was amended in 1882 the Acts of 1872 and 1875 " were comprised in Schedule I. as enactments repealed by " s. 2 but not so as to restore any jurisdiction or form of procedure not existing or followed on January 1, 1883 (Act X. of 1882). The matter remained very much in the same position until 1923, when a right was given to everybody within the appellate jurisdiction of this Court to make an application under s. 491 of the present Criminal Procedure Code. The question which arises is whether for any of the " purposes mentioned in what is now s. 491, it is open to an "applicant still to say that he will make his application" independently of that section altogether for the prerogative " writ of habeas corpus on the civil side of the High Court. " I observe that it has been stated in certain cases that if there " is to be any question of the abolition of this right then the " Legislature must say so in the most specific terms. Whether " that be a correct view in a matter of procedure of this kind " need not be discussed for the Legislature has used the most " specific terms; and it is plain that the Indian Legislature " never intended that the Courts in giving relief of this " character should for any of the purposes mentioned in s. 491 " be at liberty to act under it or under the old procedure " (I. L. R. 54 C. 749-51.). In the recent case of Matthen v. District Magistrate, Trivandrum (( 1939) L. R. 66 I. A. 222.), this judgment was approved by the Board, and it was held that, in cases covered by s. 491, the power to issue a common law writ of habeas corpus in British India had been taken away by legislation, and the powers conferred by s. 491 substituted therefor. The present applications were under s. 491. Under s. 404 of the Criminal Procedure Code no appeal lies from any judgment or order of a criminal court except as provided for by the Code or by any other law for the time being in force. There is no provision in the Code for an appeal from an order made under s. 491; there is no conviction or acquittal in such proceedings, and s. 417, which taken along with the new s. 411 a (2.) enacted by s. 2 of the Amending Act of 1943 (Act XXVI. of 1943) allows an appeal on behalf of the Government only from an order of acquittal is equally inapplicable. of 1943) allows an appeal on behalf of the Government only from an order of acquittal is equally inapplicable. Accordingly, as regards appeal, the position under the Criminal Procedure Code as to proceedings under s. 491 is in effect the same as the position stated in Cox v. Hakes (15 App. Cas. 506.). Turning again to s. 205 of the Government of India Act of 1935, their Lordships are clearly of opinion that the section relates to both the civil and criminal jurisdiction of the High Courts; the terms of sub-s. 2, of s. 210, appear to put this beyond doubt, and their Lordships agree with the decision of the Federal Court to this effect in Hori Ram Singh v. The Crown ([ 1939] F. C. R. 159). Further, the width of the language used is striking, namely, " any judgment, decree or final order of a High " Court,” and " it shall be the duty of every High Court in " British India to consider in every case.” The purpose of the provision is to confer a right of appeal in every case that involves a substantial question of law as to the interpretation of the Act or any Order in Council made thereunder. The object is clearly to secure uniformity of decision in every High Court by the determination of a court superior to them all. On the most moderate view of the matter, the securing of that object is at least as important in cases of habeas corpus, in which such questions are very apt to arise, as in other cases. In the absence of an express exception of habeas corpus cases, and having in view the terms and purpose of the section, their Lordships are unable to limit the terms of the section by mere construction so as to exclude these cases from its operation. Accordingly, s. 205 of the Act of 1935 provides one of the exceptions referred to in s. 404 of the Criminal Procedure Code. Their Lordships are therefore of opinion that the appeals from the High Court were competent, and it follows that the appeal to His Majesty in Council was also competent, and they will proceed to deal with the appeal on the merits. Their Lordships are therefore of opinion that the appeals from the High Court were competent, and it follows that the appeal to His Majesty in Council was also competent, and they will proceed to deal with the appeal on the merits. The present applications under s. 491 of the Criminal Procedure Code were filed on April 24, 1943, two days after the decision of the Federal Court in Keshav Talpade v. King-Emperor (1), under which it was held, reversing the decision of the Bombay High Court refusing to make an order under s. 491 for release of the applicants, that r. 26 of the Defence of India Rules was ultra vires, and was not warranted by the Defence of India Act, 1939. On April 28, 1943, the Governor-General made and promulgated Ordinance No. XIV. of 1943 under s. 72 of the Ninth Schedule to the Government of India Act, 1935. By s. 2 of the Ordinance a new clause was substituted for cl. (x.) of s. 2, sub-s.2, of the Defence of India Act, 1939. Section 3 of the Ordinance provided " that no order heretofore made " against any person under r. 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 under s. 2 of the Defence " of India Act, 1939." The amendment effected by s. 2 of the Ordinance removed the grounds on which the Federal Court had pronounced r. 26 to be ultra vires. The terms of r. 26 were not altered by the Ordinance. In the present applications, Talpades case (1) was taken as binding on them by both the High Court and the Federal Court, and the new Ordinance No. XIV. was the main object of challenge by the applicants. But before this Board the Crown has placed in the forefront a challenge of the correctness of the decision in Talpades case ([ 1943] F. C. R. 49.), and success in that contention would vindicate the validity of r. 26 and would supersede any consideration or Ordinance No. XIV. It is therefore necessary to dispose of this question first. But before this Board the Crown has placed in the forefront a challenge of the correctness of the decision in Talpades case ([ 1943] F. C. R. 49.), and success in that contention would vindicate the validity of r. 26 and would supersede any consideration or Ordinance No. XIV. It is therefore necessary to dispose of this question first. The material portions of s. 2 of the Defence of India Act, 1939 (Act XXXV. of 1939), as amended by s. 2 of the Defence of India (Amendment) Act, 1940 (Act XIX. of 1940), are as follows— "2.—(1) The Central Government may, by notification " in the official Gazette, make such rules as appear to it to be " necessary or expedient for securing the defence of British " India, the public safety, the maintenance of public order " or the efficient prosecution of war, or for maintaining supplies " and services essential to the life of the community. (2) With-" out prejudice to the generality of the powers conferred by " sub-s.1, the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matters, namely— * * * * * "(v) preventing the spreading without lawful authority or " excuse of false reports or the prosecution of any purpose " likely to cause disaffection or alarm, or to prejudice His " Majestys relations with foreign powers or with States in " India, or to prejudice the maintenance of peaceful conditions in the tribal areas, or to promote feelings of enmity and hatred between different classes of His Majestys subjects; * * * * * "(x) The apprehension and detention in custody of any person reasonably suspected of being of hostile origin or of having acted, acting or being about to act, in a manner prejudicial to the public safety or interest or to the defence of British India, the prohibition of such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do, or abstain from doing, anything." The material part of r. 26, as it has stood since 1940, is as follows— "26.—(1) The Central Government or the Provincial Government, if it is satisfied with respect to any particular person that with a view to prevent him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order, His Majestys relations with foregin powers or Indian States, the maintenance of peaceful conditions in tribal areas, or the efficient prosecution of the war it is necessary so to do, may make an order "(a)………………….. "(b) directing that he be detained." In Talpades case ([ 1943] F. C. R. 49.) the judgment of the Federal Court was delivered by Gwyer C.J., who first dealt with the main argument of the appellant, which had been rejected by the High Court, and proceeded " We therefore reject the main " argument addressed to us on behalf of the appellant, and, " if there were nothing more in the appeal, we should dismiss " it without further discussion. There is, however, another aspect of the case, which was not argued until the Court itself drew the attention of counsel to it; for it seemed to us that it was open to question whether r.26 itself in its present form was within the rule-making powers conferred by the Defence of India Act. If it is not within those powers, then it must be held void and inoperative, either in whole "or in part; and the orders made under it will be similarly open to challenge " (Ibid. 61.). The learned judge then proceeded to discuss paras, (v) and (x) of s. 2, sub-s. 2, of the Act, and for reasons fully stated by him, he came to the conclusion that r. 26 was not within the powers conferred by sub-s. 2, of s. 2, and he stated, " The Legislature having set out in plain and " unambiguous language in para, (x) the scope of the rules " which may be made providing for apprehension and detention in custody, it is not permissible to pray in aid the more general words in s. 2, sub-s. 1, in order to justify a rule " which so plainly goes beyond the limits of para, (x); though " if para, (x) were not in the Act at all, perhaps different considerations might apply.....We are compelled there-" fore to hold that r. 26 in its present form goes beyond the " rule-making powers which the Legislature has thought fit " to confer upon the Central Government and is for that " reason invalid " (Ibid. 68-9.). Their Lordships are unable to agree with the lerned Chief Justice of the Federal Court on his statement of the relative positions of sub-ss. 68-9.). Their Lordships are unable to agree with the lerned Chief Justice of the Federal Court on his statement of the relative positions of sub-ss. 1 and 2 of s. 2 of the Defence of India Act, and counsel for the respondents in the present appeal was unable to support that statement, or to maintain that r. 26 was invalid, hi the opinion of their Lordships, the function of sub-s. 2 is merely an illustrative one; the rule-making power is conferred by sub-s.1, and the rules which are referred to in the opening sentence of sub-s. 2 are the rules which are authorized by, and made under, sub-s. 1; the provisions of sub-s.2 are not restrictive of sub-s. 1, as, indeed, is expressly stated by the words " without prejudice to the " generality of the powers conferred by sub-s. I." There can be no doubt—as the learned judge himself appears to have thought—that the general language of sub-s. 1 amply justifies the terms of r. 26, and avoids any of the criticisms which the learned judge expressed in relation to sub-s. 2, Their Lordships are therefore of opinion that Talpade’s case ([ 1943] F. C. R. 49.) was wrongly decided by the Federal Court, and that r. 26 was made in conformity with the powers conferred by sub-s.1 of s. 2 of the Defence of India Act. It is, accordingly, unnecessary for their Lordships to consider whether r. 26 was not also within paras, (v) and (x) of sub-s. 2 of s. 2, contrary to the opinion of the Federal Court, and their Lordships express no opinion on the matter. As already stated, their Lordships are also relieved from any consideration of Ordinance XIV of 1943. As regards the remaining questions, counsel for the Crown stated them under two main heads, namely, first, whether the orders of detention can be questioned in view of the provisions of s. 59, sub-s. 2, of the Government of India Act and s. 16 of the Defence of India Act, and secondly, assuming that they can be so questioned, whether there were materials on which the courts below could properly decide that the orders were not made in conformity with r. 26. The order for detention of respondent No. 1, which is typical of the other cases, is as follows— "Calcutta, October 27, 1942. The order for detention of respondent No. 1, which is typical of the other cases, is as follows— "Calcutta, October 27, 1942. "Whereas the person known as Sibnath Banerji, M. L. A, son of late Dwariknath Banerji of 3/1 Kali Banerji Lane, Howrah, is detained in the Howrah Jail under the provision " in r. 129 of the Defence of India Rules; "And whereas the Governor is satisfied that, with a view to preventing the said person from acting in any manner " prejudicial to the defence of British India, the public safety, " the maintenance of public order or the efficient prosecution " of the war, it is necessary to make the following orders to " continue his detention; "Now, therefore, in exercise of the powers conferred by cl. (b) of sub-r.1 and sub-r.5 of r. 26 of the Defence of India Rules, the Governor is pleased to direct— "(a) that the said person shall until further orders be detained; "(b) that until further orders the said person shall continue to be detained in the Howrah Jail; and "(c) that during such detention the said person shall be subject to the conditions laid down in the Bengal Security Prisoners Rules, 1940. "By order of the Governor, "S. B. Bapat, "Addl. Dy. Secy, to the Govt. of Bengal" Except that in the case of respondent No. 6, Niharendu Dutt Majumdar, there was no previous arrest under r. 129, and that in some cases the order was signed on behalf of the Governor by " A. E. Porter, Addl. Secy, to the Govt. of Bengal," there is no material difference from the above order in the case of the remaining orders. The Crown maintained that the orders being on their face regular and in conformity with the language of the rule, it was not open to the court to investigate their validity any further, and relied on the statutory provisions already referred to. It should, however, be stated, that r. 3, sub-r. 1, of the Defence of India Rules provides that the General Clauses Act, 1897, is to apply to the interpretation of these rules as it applies to the interpretation of a Central Act, and that, under s. 3, (43A) of the General Clauses Act, " (43a) Provincial " Government,’ as respects anything done or to be done by " the Provincial Government after the commencement of " Part III. of the Government of India Act, 1935, shall mean— "(a) in a Governors 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 said Act .,-.." Section 59, sub-s.2, of the Government of India Act, on which the Crown relies, provides " Orders and other instruments made and executed in the name of the Governor shall " be authenticated in such manner as may be specified in " rules to be made by the Governor, and the validity of an " order or instrument which is so authenticated shall not be " called in question on the ground that it is not an order or " instrument made or executed by the Governor." In the opinion of their Lordships, the contention of the Crown goes too far, as the sub-section only relates to one specified ground of challenge, namely, that the order or instrument was not made or executed by the Governor. Their Lordships agree with the statement by the learned Chief Justice of the Federal Court, namely, " It is quite a different " thing to question the accuracy of a recital contained in a duly " authenticated order, particularly where that recital purports " to state as a fact the carrying out of what I regard as a " condition necessary to the valid making of that order. In " the normal case the existence of such a recital in a duly " authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate ([ 1944] F.C. R. 42.). On this point the Federal Court was unanimously against the Crown. The other statutory provision relied on by the Crown before the Board was not, it appears, brought before the Federal Court; it was s. 16 of the Defence of India Act, which provides as follows "16.—(i) No order made in exercise of any power conferred by or under this Act shall be called in question in any Court. The other statutory provision relied on by the Crown before the Board was not, it appears, brought before the Federal Court; it was s. 16 of the Defence of India Act, which provides as follows "16.—(i) No order made in exercise of any power conferred by or under this Act shall be called in question in any Court. "(2) Where an order purports to have been made and signed by any authority in exercise of any power conferred by or " under this Act, a Court shall, within the meaning of the " Indian Evidence Act, 1872, presume that such order was so made by that authority.” Sub-section (1) assumes that the order is made in exercise of the power, which clearly leaves it open to challenge on the ground that it was not made in conformity with the power conferred, heavily though the burden of proof may lie on the challenger, as stated by the Chief Justice in the passage just cited. Sub-section (2) raises a presumption of fact, which may be displaced, though here again the burden is likely to be heavy. Section 4 of the Indian Evidence Act provides "Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, " unless and until it is disproved, or . ..." Accordingly, the contention of the Crown that the court has no jurisdiction to investigate the validity of the orders fails. On construction of r. 26, the majority of the judges of the Federal Court held that the Governor must be personally satisfied as to the matters therein set out, and that, in view of the admission by the Crown that in none of the cases before them had the Governor himself considered the case, the orders for detention were not in conformity with the rule. They based their conclusion mainly on the power of delegation (which has admittedly not been exercised in the present case) conferred by sub-s.5 of s. 2 of the Defence of India Act, which provides as follows, (5.) A Provincial Government may by " order direct that any power or duty which by rule made " under sub-s. (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-s. (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 Commissioners Province) an " officer or authority subordinate to the Central Government." The learned Chief Justice disagreed, holding that sub-s. 5 was merely supplementary, and afforded no ground for excluding the ordinary methods by which the Provincial Governments executive business was authorized to be carried on by Chapter II. of Part III. of the Government of India Act, 1935. Their Lordships are of opinion that the learned Chief Justice was right. It will be remembered that the definition of Provincial Government in s. 3 (43A) of the General Clauses Act refers one to the provisions of the Government of India Act for the action or non-action of the Governor, and this takes one to Chapter II. of Part III., which is headed " The Provincial Executive— " The Governor." The material sections are as follows— " 49.—(1) The executive authority of a Province shall be " exercised on behalf of His Majesty by the Governor, either " directly or through officers subordinate to him, but nothing " in this section shall prevent the Federal or the Provincial "Legislature from conferring functions upon subordinate " authorities, or be deemed to transfer to the Governor any " functions conferred by any existing Indian law on any " court, judge, or officer or any local or other authority. "(2) Subject to the provisions of this Act, the executive authority of each Province extends to the matters with respect to which the Legislature of the Province has power to make laws." "50.—(1) There shall be a council of ministers to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Act required to exercise his functions or any of them in his discretion Provided that nothing in this sub-section shall be construed as preventing the Governor from exercising his individual judgment in any case where by or under this Act he is required so to do. "(2) The Governor in his discretion may preside at meetings of the council of ministers. "(3) If any question arises whether any matter is or is not " a matter as respects which the Governor is by or under this Act required to act in his discretion or to exercise his individualjudgment, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion, or ought or ought not to have exercised his individual judgment.” "52.—(1) In the exercise of his functions the Governor shall have the following special responsibilities, that is to say—(a) the prevention of any grave menace to the peace or tranquility of the Province or any part thereof; * * * * * "(3) If and in so far as any special responsibility of the Governor is involved, he shall, in the exercise of his functions, exercise his individual judgment as to the action to be taken." "59.—(1) All executive action of the Government of a Province shall be expressed to be taken in the name of the Governor. [Sub-section (2), already quoted.] "(3) The Governor shall make rules for the more convenient transaction of the business of the Provincial Government, and for the allocation among ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Act required to act in his discretion. [Sub-section (2), already quoted.] "(3) The Governor shall make rules for the more convenient transaction of the business of the Provincial Government, and for the allocation among ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Act required to act in his discretion. (4) The rules shall include provisions requiring ministers and secretaries to Government to transmit to the Governor all such information with respect to the business of the Provincial Government as may be specified in the rules, or as the Governor may otherwise require to be so transmitted, and in particular requiring a minister to bring to the notice of the Governor, and the appropriate secretary to bring to the notice of the minister concerned and of the Governor, any matter under consideration by him which involves, or appears to him likely to involve, any special responsibility of the Governor. (5) In the discharge of his functions under sub-ss. 2, 3 and 4 of this section the Governor shall act in his discretion after consultation with his ministers.” Rules of Business have been framed by the Governor of Bengal under s. 59, under which it is not disputed that questions of detention fall to be transacted in the Home Department. Under r. 12 all orders or instruments made or executed by or on behalf of the Government of Bengal are to be expressed to be made by or by order of the Governor of Bengal; and under r. 13, save in cases of special authorization, every order or instrument of the Government of Bengal is to be signed by either a secretary (an additional secretary), a joint secretary, a deputy secretary, an under-secretary, or an assistant-secretary to the Government of Bengal, and such signatures are to be deemed to be the proper authentication of such orders or instruments. In the first place, their Lordships observe that the provisions of Chapter II. of Part III. of the Act of 1935 as to the Provincial Executive and its executive authority use the term " executive in the broader sense as including both a decision as to action and the carrying out of such decision. In the first place, their Lordships observe that the provisions of Chapter II. of Part III. of the Act of 1935 as to the Provincial Executive and its executive authority use the term " executive in the broader sense as including both a decision as to action and the carrying out of such decision. Counsel for the respondents submitted a contention, which the majority of the learned judges in the Federal Court had accepted, based on sub-s. 2 of s. 49 of the Act of 1935, to the effect that the sub-section limited the operation of the section to matters with respect to which the Provincial Legislature has power to make laws, and that the subject matter of the Defence of India was not within those powers. The learned judges, in confirmation of this view, referred to sub-s. 2 of s. 124, which provides that " an Act of the Federal " Legislature may, notwithstanding that it relates to a matter " with respect to which a Provincial Legislature has no power " to make laws, confer powers and impose duties or authorize " the conferring of powers and the imposition of duties upon " a Province or officers and authorities thereof. Their Lordships are unable to agree with such a narrow reading of these provisions, which would involve the necessity of the Federal Legislature making provision in each case for the executive machinery to carry out the powers and duties so imposed, instead of using the existing Provincial machinery. This view is supported by sub-s. 4 of s.124, which provides, inter alia, that where an Act of the Federal Legislature, by virtue of sub-s.2, confers powers and imposes duties upon a Province or officers and authorities thereof in relation to a matter with respect to which a Provincial Legislature has no power to make laws, the Federation is to pay to the Province such sum as is agreed, or determined by arbitration, in respect of any extra costs of administration incurred by the Province in connexion with the exercise of those powers and duties. This appears to contemplate extra costs incurred by the existing machinery of Provincial administration. Their Lordships construe sub-s.2 of s. 49 as providing an extensible limit and not a maximum limit, and the provisions of sub-s.2 of s. 124 as affording a means of such extension. This appears to contemplate extra costs incurred by the existing machinery of Provincial administration. Their Lordships construe sub-s.2 of s. 49 as providing an extensible limit and not a maximum limit, and the provisions of sub-s.2 of s. 124 as affording a means of such extension. But, further, their Lordships construe the incorporation of the General Clauses Act, both in the Defence of India Act, and in the Defence of India Rules, with its reference in s. 3 (43A) to the provisions of Part III. of the Act of 1935 as to the acting or non-acting of the Provincial Governor, as necessarily embodying the relevant provisions of Chapter II. of Part III., including in particular s. 49. It is for the same reasons that their Lordships are unable to accept the respondents contention, also agreed to by the majority judges in the Federal Court, that the provision of sub-s. 5 of s. 2 of the Defence of India Act provides the only means by which the Governor can relieve himself of a strictly personal function. Their Lordships would also add, on this contention, that sub-s. 5 of s. 2 provides a means of delegation in the strict sense of the word, namely, a transfer of the power or duty to the officer or authority denned in the sub-section, with a corresponding divestiture of the Governor of any responsibility in the matter, whereas under s. 49, sub-s. 1, of the Act of 1935 the Governor remains responsible for the action of his subordinates taken in his name. The respondents next contended that, assuming that s. 49 did apply, this question was one which involved a special responsibility of the Governor within the meaning of s. 52, sub-s. 1 (a), of the Act of 1935, and therefore required the individual judgment of the Governor. In their Lordships opinion, they are excluded from considering the somewhat debatable question whether the present matter does fall within head (a) of s. 52, sub-s.1, by the provisions of s. 50, sub-s.3, as the contention of the respondents is that the Governor should have exercised his individual judgment. Nor is it necessary for their Lordships to consider whether “individual judgment " excludes the operation of s. 49, sub-s. 1. Nor is it necessary for their Lordships to consider whether “individual judgment " excludes the operation of s. 49, sub-s. 1. So far as it is relevant in the present case, their Lordships are unable to accept a suggestion by counsel for the respondents that the Home Minister is not an officer subordinate to the Governor within the meaning of s. 49, sub-s. 1, and so far as the decision in Emperor v. Hemendra Prasad Ghosh (I. L. R. [ 1939] 2 C. 411.) decides that a minister is not such an officer their Lordships are unable to agree with it. While a minister may have duties to the Legislature, the provisions of s. 51 as to the appointment, payment and dismissal of ministers, and s. 59, sub-ss. 3 and 4, of the Act of 1935, and the Business Rules made by virtue of s. 59, place beyond doubt that the Home Minister is an officer subordinate to the Governor. Their Lordships are therefore in agreement with the learned Chief Justice of the Federal Court that such matters as those which fell to be dealt with by the Governor under r. 26, could be dealt with by him in the normal manner in which the executive business of the Provincial Government was carried on under the provisions of Chapter II. of Part III. of the Act of 1935, and, in particular, under the provisions of s. 49, and the Rules of Business made under s. 59. There remain the criticisms on the manner in which the individual cases of detention have been dealt with. The six cases with which this appeal is concerned are the cases of respondents Nos. 1, 3, 5, 6, 7 and 8. In view of the opinions already expressed by their Lordships, the orders for detention in each of these cases must be taken as ex facie regular and proper, and it follows, as already stated, that there is a heavy burden on the respondents to displace the presumption enacted by s. 16, sub-s.2, of the Defence of India Act. The respondents were enabled to raise the question whether the Governor was bound to give his personal consideration to the matter by reason of the Crowns admission that he had not in fact done so in any of these cases. The respondents were enabled to raise the question whether the Governor was bound to give his personal consideration to the matter by reason of the Crowns admission that he had not in fact done so in any of these cases. They were also able to raise a question as to the so-called routine order of October 1st, 1942, because of Mr. Porters admission in his affidavit. The majority of the Federal Court held all the detention orders to be bad because of the first of these admissions, though they also deal with the routine order, and criticize adversely the whole procedure. The learned Chief Justice agreed with the majority as to the cases which were subject to the routine order; he disagreed as to the necessity for personal satisfaction of the Governor, holding that the procedure authorized by s, 49 was available to the Governor, but he held that the routine order vitiated the orders as to which it operated. One of these three cases—that of Respondent No. 2, Bijoy Singh Nahar, is not before the Board, as he was released shortly after the judgment of the Federal Court. On the other hand, as regards the cases of the present respondents Nos. 3, 6, 7 and 8, he stated that he was unable to find in the evidence anything which established even a prima facie case that the orders under r. 26 had been improperly made or to contradict the accuracy of the narrative of the orders. Thereby he differed from the majority of the court as regards these cases. The evidence before the Federal Court consisted of affidavits by the respondents, the counter affidavit by Mr. Porter, Additional Home Secretary to the Bengal Government, and certain statements and answers regarding detention under r. 26 given by the Home Minister, Bengal, in the Bengal Legislative Assembly. In common with the Chief Justice of the Federal Court, their Lordships have been unable to find anything—apart from the routine order—in these statements and answers of the Home Minister which affords evidence of improper procedure in the individual cases before the court, even assuming that such evidence was admissible, which, in the opinion of their Lordships, was at least open to doubt. It is the evidence of Mr. Porter that establishes the application of the routine order in some of these individual cases. It is the evidence of Mr. Porter that establishes the application of the routine order in some of these individual cases. Further, there is nothing in the affidavits filed by the respondents which establishes such a prima facie case, and they were not so founded on at the hearing before the Board. The respondents case was founded on the statements and answers by the Home Minister, as to which their Lordships have expressed their view above, and Mr. Porters counter affidavit, which their Lordships will now consider. In para. 8 of his affidavit, Mr. Porter states that on October 1, 1942, the Home Minister directed that, on receipt of the report of arrest under r. 129 of the Defence of India Rules, together with a recommendation by the police for detention under r. 26 in respect of persons arrested in con nexion with the disturbances or suspected of being so connected, orders of detention under r. 26, sub-r. 1 (6), should at once be issued as a matter of course, subject to review by Government on receipt of further details to be supplied in each case by the Intelligence Branch. That clearly meant the substitution of the recommendation by the Police in place of the satisfaction of the Governor prescribed by r. 26, and equally rendered any order under r. 26 in conformity with the Home Ministers direction, to which their Lordships have already referred as the routine order, ab initio void and invalid as not being in conformity with the requirements of r. 26. Their Lordships now turn to the cases before them, to which the routine order applied, and they quote the statement of Mr. Porter with regard to the first of these two cases, that of respondent No. 1, "10. Sibnath Banerji He was arrested by the Police under r. 129 of the Defence of India Rules on October 20, 1942. On October 27, 1942, I considered the materials before me and in accordance with the general order of Government directed the issue of an order of detention under r. 26, sub-r.1 (b), of the Defence of India Rules. On receipt of fuller materials the case was later submitted for consideration of the Honourable Home Minister, Bengal, from whom no order directing withdrawal or modification of the order of detention was received.” Their Lordships are unable to read Mr. On receipt of fuller materials the case was later submitted for consideration of the Honourable Home Minister, Bengal, from whom no order directing withdrawal or modification of the order of detention was received.” Their Lordships are unable to read Mr. Porters statement that he had considered the materials before him as involving anything more than that he had considered the report of the arrest and the recommendation of the Police to see if there was material sufficient to justify the issue of an order under the routine order. It cannot mean that, in spite of the direction of the Home Minister in the routine order, he considered the materials before him so as to satisfy himself, independently of the police recommendation, that an order under r. 26 should be issued. That would not be in accordance with the requirement of the routine order that—the police having recommended it—the order of detention should be issued as a matter of course. Further, the inaction of the Home Minister on the later submission of the fuller materials to him could not cure the invalidity of the order of October 27, 1942. The case of Nanigopal Majumdar, respondent No. 5, is stated in para. 11 of Mr. Porters affidavit, and is substantially the same as that of respondent No. 1. The order in his case was issued by Mr. Porter on March 8, 1943, and no further materials had been received at the date of the affidavit, May 24, 1943. Their Lordships agree with the unanimous conclusion of the Federal Court that the orders of detention in the cases of the present respondents Nos. 1 and 5 are invalid. There remain the cases of respondents Nos. 3, 6, 7 and 8. The orders of detention in these cases were earlier in date than the routine order of October 1, 1942, and are not affected thereby. As their Lordships have already stated, there is no evidence in these cases sufficient to rebut the presumption as to their regularity. There is only one point on which their Lordships desire to add an observation. In paras.2, 3 and 4 of his affidavit Mr. Porter states that in the cases of Debabrata Roy, present respondent No. 3, Pratul Chandra Ganguli, present respondent No. 8, and Birendra Ganguli, present respondent No. 7, he himself considered the materials supplied and, in fact, the orders of detention were signed by him. In paras.2, 3 and 4 of his affidavit Mr. Porter states that in the cases of Debabrata Roy, present respondent No. 3, Pratul Chandra Ganguli, present respondent No. 8, and Birendra Ganguli, present respondent No. 7, he himself considered the materials supplied and, in fact, the orders of detention were signed by him. In the case of Niharendu Dutt Majumdar, present respondent No. 6, Mr. Porter, in para. 6 of his affidavit, does not say by whom the case was considered. The order of detention is signed by S. B. Bapat, Deputy Secretary to the Government of Bengal. This is a case typical of the application of the presumption, and, if the respondents had wished to probe the matter, in case the consideration might have been by someone not qualified as an officer subordinate to the Governor within the terms of s. 49 of the Act of 1935, they should not have let the matter rest there, but proceeded either by counter affidavit or by cross-examination of Mr. Porter on his affidavit. As they did not take such a course, the presumption remains undisturbed. Accordingly, their Lordships agree with the Chief Justice of the Federal Court that the orders of detention in the cases of respondents 3, 6, 7 and 8 were valid, and the appeal of the Crown will be allowed in the case of these four respondents. Counsel for the Crown stated to their Lordships that, without prejudice to any further action under r. 26 that the Crown may find it expedient or necessary to take, it was not intended that any further action should be taken against these four respondents under the particular orders which are before the Board in this appeal. Their Lordships will therefore humbly advise His Majesty that the appeal should be allowed as respects respondents Nos. 3, 6, 7 and 8, and the judgments and orders of the courts below should be set aside, and that it should be declared that the order of detention under r. 26 of the Defence of India Rules in each of these cases was a valid and proper order; that in the case of respondents Nos. 1 and 5 the appeal should be dismissed and the judgments and orders of the courts below should be affirmed. There will be no order as to costs.