JUDGMENT 1. This is a Rule u/s 491(1)(b) of the Code of Criminal Procedure obtained at the instance of one Abdur Rahim alias Rahima, at present detained in the Presidency Jail. He was first arrested on June 18, 1947, u/s 54 of the Code of Criminal Procedure. He was released the next day on a bail of Rs. 20,000. On the following day he was re-arrested under the provisions of Section 18(1) of Bengal Ordinance No. VI of 1946. The Deputy Commissioner recommended to Government action u/s 10A of Bengal Ordinance No. VI of 1946 as amended by Ordinance No. II of 1947. The Local Government ordered further detention of the Petitioner u/s 18(2) up to the 20th August. Then, on the 13th August, they issued order No. 3020 H.S. directing the detention of the Petitioner (subject to the provisions of Section 10B or the period of the Ordinance) in the Presidency Jail and-- (c) that during such detention the said person shall be subject to the same conditions as provided in the Bengal Jail Code for convicted prisoners undergoing rigorous imprisonment and classified in Division III except that Ch XXI of the said Code shall not apply. 2. This Rule was issued mainly on the ground that Section 10A of the Ordinance did not justify detention of a person in a jail, making him liable to undergo hard labour. 3. The main contention on behalf of the Petitioner is that he has been in all respects treated in jail as if he had been sentenced to rigorous imprisonment and liable to work as such prisoner. When the Rule was issued, it was directed that it should be ascertained whether, in fact, the Petitioner was undergoing hard labour. An affidavit has been filed stating that, so far, the particular Petitioner has not been so doing because he has been ill, but it has been stated that other persons against whom orders in similar terms have been passed are undergoing such imprisonment and being made to work. 4. There was a further point, which was not seriously pressed, namely, that Government had no power to pass the order u/s 10A in view of the fact that the Petitioner had originally been dealt with u/s 18. There is no substance in this point. 4. There was a further point, which was not seriously pressed, namely, that Government had no power to pass the order u/s 10A in view of the fact that the Petitioner had originally been dealt with u/s 18. There is no substance in this point. Section 18 makes it clear that it provides only for a temporary custody pending such investigation as is necessary, the total period being limited to two months, but it is specifically provided that the Provincial Government may, in addition to the order for temporary custody, make, in exercise of any power conferred upon it by any law for the time being in force, such final order as to the detention or other matter as may appear to the Provincial Government, in the circumstances of the case, to be reasonable or necessary. In the present case, the other law in question, under which the order has been passed, is Section 19A of the Ordinance itself. 5. There was also some question at first whether the provisions of Section 10C had been complied with. An affidavit to this effect has been filed to-day by the Deputy Jailor and on seeing the original and a copy of the order No. 3021 H.S., also dated the 13th August, we find that it had been served on the Petitioner, clearly complying with the terms of Section 10C Mr. Talukdar has stated that his information is that the copy of this order was only placed before his client for signature yesterday. However that may be, it is clear that by now the terms of Section 10C have been complied with. 6. The main contention of Mr. Talukdar is that, in effect, Government has sentenced his client to six months' rigorous imprisonment and that it has no power to do so under the provisions of Section 10A(4) of the Bengal Special Powers Ordinance as subsequently amended. The terms of that sub-section are: As long as there is in force in respect of any person such an order as aforesaid directing that he be detained, he shall be liable to be removed to and detained in such place and under such conditions including conditions as to maintenance, discipline and the punishment of offences and breaches of discipline, as the Provincial Government may from time to time by general or special order specify. 7. 7. Two questions arise: (1) whether under these provisions Government can prescribe as conditions that the accused shall be detained as in the terms of item (c) of the order quoted above, if those terms are to be interpreted as meaning that, in effect, the prisoner served with the order is, in all respects, to work and be treated in the jail as if he had been sentenced to rigorous imprisonment and (2) whether, in fact, the terms of item (c) of the order do have this effect. 8. If the Jail Code is examined, it will be seen that there is no direct specific provision for treatment of prisoners sentenced to rigorous imprisonment by making them do work. The main chapter which regulates the matter is Ch. XVI (Discipline and Daily Routine). The rules in that chapter depict and provide for the daily life of the ordinary prisoner in jail from the time he gets up and till he goes to bed and incidentally provision is made about his going to work. In Ch. XXII (Labour and Jail Industries), there are specific provisions as to the procedure and conditions under which labour is to be carried out. We may also note that in the Prisons Act on which the Code is based the question of labour as punishment is nowhere specifically referred to. There are some provisions in Ch. VII of the Act, for example Section 35, making nine hours a day the limit for any labour in jail and there is provision in the rulemaking Section 59 "for classifying and prescribing the forms of labour "and regulating the periods of rest from labour." In the Code itself other types of prisoners are dealt with by way of exception, for example, those sentenced to simple imprisonment, Civil Prisoners, Prisoners under Regulation III and so on. In each as there is specific provision that none of these would be required to work. 9. In each as there is specific provision that none of these would be required to work. 9. The whole argument on behalf of the Petitioner on examination appears to us to be based on a fallacy that labour, as such is in some way distinguishable from other conditions of detention in jail and has a special characteristic of its own as punishment which takes it out quite apart from all other conditions and therefore gives it a character such that provision for it cannot be made u/s 10A(4) as one of the conditions of detention of a person against whom an order has been made under the Ordinance. Examination of the matter shows that this is entirely incorrect Even if an order is made against a person for detention without labour, if the conditions are so laid down, the same objection, can be made that this detention amounted to punishment. From the point of view of the jailor, receiving and dealing with the prisoners, he does not have to consider the various classes as being subject to one kind of punishment or to another kind of punishment; he merely has different categories of prisoners who are liable to various conditions of detention. 10. In that view of the matter, it appears to us that Section 10A(4) clearly allows that Government may impose as a condition of detention of any person under the Ordinance that he shall in all respects, including the liability to work, be treated as a prisoner sentenced to rigorous imprisonment. 11. We have not the slightest doubt that the terms of the order as actually made in this case were intended to and do provide that the Petitioner shall be liable to put to work in jail in the same manner as if he had been sent there as a convicted prisoner sentenced to undergo rigorous imprisonment. 12. 11. We have not the slightest doubt that the terms of the order as actually made in this case were intended to and do provide that the Petitioner shall be liable to put to work in jail in the same manner as if he had been sent there as a convicted prisoner sentenced to undergo rigorous imprisonment. 12. We may mention, although it is not strictly necessary to do so, that it has been brought to our notice that the provisions of Section 10A(4) are very similar to (though clearly wider than) those of Rule 26(5) of the Defence of India Rules, that under those rules certain rules called the Bengal Security Prisoners Rules of 1940 were brought into force, that, after the promulgation of the Ordinance, by notification No. 338 H.S., dated March 29, 1947, the provisions of those rules are applied to security prisoners defined as persons ordered to be detained in prison in Bengal under the provisions of Section 10A of the Bengal Special Powers Ordinance, 1946. Rule 72 of those Rules is a general order under Rule 26(5) of the Defence of India Rules (and therefore now under Rule 10A of the Bengal Special Powers Ordinance, 1946), specifying the classes of persons who may be directed by the Provincial Government to be detained under the condition laid down in Sub-rule 2(b) of Rule 72, whose terms are identical with those of item (c) of the order passed in the present case and quoted above. 13. The order u/s 10C served on the Petitioner states that the ground on which the order was served on him was that he was an active and habitual criminal with previous convictions to his credit and his remaining at large was a danger to the public safety and the maintenance of public order; he is not unaccustomed to detention in jail with labour. 14. We may also mention that we have referred to similar legislation in England on this point. We find in Butterworth's Emergency Legislation Service, Vol. 14. We may also mention that we have referred to similar legislation in England on this point. We find in Butterworth's Emergency Legislation Service, Vol. II, that Section 18B of the Defence (General) Regulations, 1939, contains similar provisions to those in Section 10A of the Local Ordinance and under Sub-section (8) thereof it is provided: Any person detained in pursuance of this Regulation shall be deemed to be in lawful custody and shall be detained in such place as may be authorised by the Secretary of State and in accordance with instructions issued by him. 15. There is a note referring to Cmd. 6162 to the effect that-- The Secretary of State issued instructions with regard to the detention in prison establishments of persons detained in pursuance of this Regulation. These instructions deal with food, clothing, visits, communications, exercise, recreation and smoking, labour, medical arrangements, complaints and welfare generally. 16. It is, in fact, obvious that the question as to whether a person detained is to be required to work or not is one of the important conditions necessary to be laid down from the point of view of the jailor. If we regard the detention as a punishment, there are many conditions of the detention which will make the punishment more or less severe, quite apart from the question whether the prisoner detained is required to work or not. An examination of the problem shows, in fact, that the question of work or no work is in no way any different from any of the other questions which must arise as to the conditions under which a person, ordered to be determined, is to be required to spend his time while in detention. 17. The mere fact that the effect of the conditions laid down is that, so far as the person detained is concerned, he spends his time exactly as if he had been sentenced to a term of rigorous imprisonment is no basis for a contention that such conditions of detention cannot be laid down. Nor is there any substance in the contention that the terms of detention with labour can only be provided for as a punishment by an order of a Court. 18. The result is that, in our opinion, the Petitioner is not being illegally or improperly detained. 19. The Rule accordingly is discharged.