JUDGMENT G.N. Das, J. - This miscellaneous case arises out of a petition under sec. 491, Criminal Procedure Code, filed by Dr. N. K. Basu, father of the detenu Jyoti Basu, who was a resident of 55A, Hindusthan Park, within the limits of the Appellate Criminal Jurisdiction of this Court. On the 26th of March, 1948, the detenu was arrested by a police officer purporting to act under the provisions of the West Bengal Security Act, 1948 (West Bengal Act III of 1948). which had come into force on the 12th of March, 1948 and was later detained in the Presidency Jail within the said jurisdiction. 2. By order, dated the 8th April, 1948, the said Jyoti Basu was directed to be detained until the 6th day of July, 1918. This order of detention was duly served on the detenu, as would appear from his endorsement on the writ. At the request of his learned Advocates, this order was produced in this Court and was inspected by his learned Advocates. 3. The order runs as follows:-- GOVERNMENT Of WEST BENGAL. Home Department. Special Section. ORDER. No. 2487 H. S. Calcutta, the 8th April, 1948. WHEREAS the person known as Sri Jyoti Basu, M.L.A., son of Dr. N. K. Basu, of Barodi, Baidyer-bazar, Dacca, and of 55A, Hindusthan Park, Calcutta, is detained in the Presidency Jail under the provisions of section 30 of the West Bengal Security Act, 1948 West Bengal Act III of 1948); AND WHEREAS having considered the materials against the said person, the Governor is satisfied that with a view to preventing the said person from doing any subversive act, it is necessary to make the following order for the purpose of continuing his detention. Now, therefore, in exercise of the powers conferred by clause (a) of sub-section (1) and sub-section (4) of section (16) of the said Act, the Governor is placed to direct- (a) that the said person shall, subject to the provisions of section 17 of the said Act, be detained until the 16th day of July, 1948; (b) that subject to the provisions of clause (c) of the said paragraph the said person shall or until further orders, continue to be detained in the Presidency Jail; (c) that during such detention the said person shall be subject to the conditions laid down in the Bengal Security Prisoners Rules. 1940, as applicable for the time being to security prisoners referred to in the said rules. By order of the Governor. N. SOM. Assistant Secretary to the Government of West Bengal. 4. On the 14th of May, 1948, this application was moved in this Court by Mr. De, learned Advocate for the Petitioner, Dr. N. K. Basu. In the petition, it was prayed that the detenu Jyoti Basu be "set at liberty or dealt with according to law." 5. A rule nisi was issued upon the Chief Secretary to the Province of West Bengal. 6. The learned Advocate-General appeared on behalf of the Opposite Party to show cause. An affidavit was fided on behalf of the Opposite Party; this affidavit was affirmed by Sri R. Gupta, Home Secretary to the Government of West Bengal. 7. The jurisdiction of this Court to exercise its powers under sec. 491, Criminal Procedure Code, is expressly preserved by sec. 33 of the West Bengal Security Act and was not challenged. 8. The relevant clause is cl. (b) of sub-sec. (1) of sec. 491 of the Code. The exercise of the power is discretionary and depends on the question whether the detenu was "illegally or improperly detained." 9. The Petitioner contended (1) that the detention under the West Bengal Security Act was illegal; and (2) that it was mala fide. (1) The first ground was put by Mr. De under several heads:-- (a) Mr. De first contended that the order was bad in form inasmuch as it did not specify the particulars of the subversive acts. This point is of no substance. The statute doss not require that the order should be in any particular form. The order in question strictly follows the language of the statute. The order is "not a conviction nor an indictment nor even a charge." Under sec. 18 of the Act the reasons for the detention are communicated to the detenu, and he is entitled to particulars in the discretion of the Provincial Government, (b) It was next contended that the order if ex facie bad as it speaks of the satisfaction of the Governor and not of the Provincial Government as stated in sec. 16. 10. The expression "Provincial Government" is not defined in the Bengal General Clauses Act 1 (B. C.) of 1899. It is defined in sec. 3 (43a) of the General Clauses Act X of 1897. 16. 10. The expression "Provincial Government" is not defined in the Bengal General Clauses Act 1 (B. C.) of 1899. It is defined in sec. 3 (43a) of the General Clauses Act X of 1897. which is a Central Act. Sec. 3 of this Act makes the definition applicable to that Act and to all Central Acts and Regulations made after the commencement of the Act. The West Bengal Security Act not being such an Act but being a Local Act, the definition of the Provincial Government given in sec. 3(43a) would have been in applicable. Sec. 4A of the General Clause Act (X of 1897) which was added by the Adaptation Order, 1937, removed this difficulty. The material portion of sec. 4A reads as follows:-- 1 The definitions contained in section (3) of the expressions * * * 'Provincial Government * * * * apply also, unless there is anything repugnant to the subject or context, to all Indian Laws', The term 'Indian Law' is defined in section 3 (27a) which was added by the Adaptation Order, 1987, to include 'any law, ordinance, order, by-law, rule or regulation passed or made at any time by any competent Legislature authority, or person in British India'. The West Bengal Security Act is thus an Indian Law. The definition of 'Provincial Government' in section 3 (43a) would accordingly be attracted to the West Bengal Security Act. 11. The material portion of the definition of Provincial Government runs as follows:-- Provincial Government" as respects anything done or to be done after the commencement of part III of the Government of India Act, 1935, shall mean-- (a) 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 said Act;....... 12. Sec. 46 of the Government of India Act, 1935, mentions West Bengal as a Governor's Province. 13. Accordingly the satisfaction of the Provincial Government in the West Bengal Security Act, 1948, means the satisfaction of the Governor acting according to the provisions of the Government of India Act, 1935. 14. Chapter II of the Government of India Act, 1935, as adapted by the India (Provisional Constitution) Order, 1947, and the India Provisional Constitution (Amendment) Order. 1947. and the Provincial Legislature (Amendment) Order, 1947, deals with the Provincial Executive. 14. Chapter II of the Government of India Act, 1935, as adapted by the India (Provisional Constitution) Order, 1947, and the India Provisional Constitution (Amendment) Order. 1947. and the Provincial Legislature (Amendment) Order, 1947, deals with the Provincial Executive. Sec. 49 (I) of the Act is to the following effect:-- The executive authority of a Governor shall be exercised on behalf of His Majesty by the Governor either directly or through officers subordinate to him. 15. Thus the satisfaction of the Provincial Government may be that of the Governor himself or of an officer subordinate to him. In the case of King-Emperor v. Sibnath Banerji (1), the Home Minister was held to be subordinate to the Governor. Hence the impugned order does not suffer from any defect when it says that " the Governor is satisfied. Nor is the order ex facie bad because it is expressed to be promulgated " By order of the Governor." This follows from sec. 59 of the Government of India Act, 1935, which provides that all executive action of the Government of a Province shall be expressed to be taken in the name of the Governor. It is not disputed that the Order under sec. 16 of the West Bengal Security Act is an executive act. 16. The above conclusions are in accord with what was said by the Judicial Committee in the case of King-Emperor v. Sibnath Banerji L. B. 72 I. A 241 s. c. 50 C. W. N. 25 (1915). 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 us the term Executive in the broader sense as including both a decision as to action and the carrying out of such decision. 17. It may be mentioned that Mr. De, the learned Advocate for the Petitioner, did not challenge the authenticity of the order. Nor did he dispute the fact that the Assistant Secretary to the Government of West Bengal had authority to sign the order according to the Rules of Business formulated by the Governor under sec. 59 of the Government of India Act, 1935- Sec. 33 (2) of the West Bengal Security Act also raises a presumption in this behalf. 18. Mr. Nor did he dispute the fact that the Assistant Secretary to the Government of West Bengal had authority to sign the order according to the Rules of Business formulated by the Governor under sec. 59 of the Government of India Act, 1935- Sec. 33 (2) of the West Bengal Security Act also raises a presumption in this behalf. 18. Mr. De next contended that the question of satisfaction of the Provincial Government is a matter for the Court and that the words used in sec. 16 unmistakably point to an external standard. He further submitted that the return and the affidavit of Sri R. Gupta do not clearly disclose the grounds on which the satisfaction of the Governor is based and are insufficient in law. He accordingly urged that the detention was illegal and the petition should succeed. 19. The question whether the reasonable satisfaction of the Governor should be tested by a subjective or objective standard is one of great importance involving as it does the liberty of the subject and the security of the realm. 20. The expression " satisfied on reasonable grounds," unlike the expression " it there are reasonable grounds " or " is satisfied," is certainly ambiguous. 21. In my opinion, the real significance of the expression should be gathered on a conspectus of the whole Act and not by a too rigid adherence to a supposed meaning of the expression standing by itself. 22. I propose now to give a brief resume of the Act. 23. The preamble of the Act states that the Act was passed " to make special provision for the maintenance of public order by the prevention of illegal acquisition, possession or use of arms, the suppression of subversive movements, endangering communal harmony or the safety or stability of the Province, the suppression of goondas and for maintaining supplies and services essential to the life of the community." 24. It is no doubt true that the preamble does not control any plain enactment which follows it but it may be a most useful guide when a question of doubt arises upon construction of a particular provision and considerations relating to the scope of the Act are involved, Sital Chandra Choudhury v. A. J. Dalanney 20 C. W. N 1158 (1168) (1916). 25. Turning of the body of the Act we find that Chapter I (sees. 25. Turning of the body of the Act we find that Chapter I (sees. 1 to 5) deals with preliminary matters, Chapter II (secs. 6 to 9) with subversive acts, Chapter III (secs. 10 to 22) with public safety and order, Chapter IV (secs. 23 to 26) with miscellaneous matter, Chapter V (secs. 27 to 37) with supplementary and procedural matters. 26. Sec. 1 (4) limits the life of the Act to one year with the possibility of a further lease of life for another year. 27. Contravention of some of the provisions of the Act entails sentences of varying terms of imprisonment or of fine or of both, but after a trial in a Court of law. 28. Secs. 16, 17, 29, 30 provide for detention without trial or arrest without warrant. 29. The Act also provides for searches, giving of information and requisitioning of property. 30. A survey of the different sections of the Act thus shows that the Legislature vested the Provincial Government with plenary powers for the safety and stability of the Province--the Act was inter alia intended to put a stop to the subversive activities of persons whose actions, according to the Provincial Government, were endangering the security of the Province and were calculated to disrupt it. It was thus an emergency measure. Its provisions should be construed in the light of principles governing emergency legislation. 31. These principles were thus enunciated by Viscount Maugham in Liversidge v. Sir John Anderson L. R. ( (1942) A. C. (H L E) 206, 219)-- If there is reasonable doubt as to the meanings of the words used, we should prefer a construction which will carry into effect the plain intention of those responsible for the order in Council rather than one which will defeat that intention. 32. In the same case, Lord Macmillan observed at page 252 that the rule applicable to all statutes or satutory regulations in war or in peace is to interpret emergency legislation so as to promote rather than to defeat its efficiency for the defence of the realm. 33. Such an interpretation may encroach upon the liberty of the subject and may entail chance of abuse. 34. 33. Such an interpretation may encroach upon the liberty of the subject and may entail chance of abuse. 34. The governing principle in such cases was thus stated by Lord Atkinson in Rex v. Halliday L. R. (1917) A. C. 260 (271)-- However precious the personal liberty of the subject may be there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in war or escape from national plunder or enslavement. It must not be assumed that the powers conferred by the statute will be abused. 35. I respectfully agree with the principles referred to above, in spite of the trenchant and forceful criticism of Lord Atkin in Liversidge's case L. R. (1942) A. C. (H. L. E.) 206 (219) that the above constructions show the attitude of the Judges to be more executive-minded than the executive. 36. In the present case, the Petitioner challenges as illegal and improper the detention made by the Provincial Government under sec. 16 (I) (a) and (4) of the West Bengal Security Act. This section empowers the Provincial Government to make the order of detention " if it is satisfied on reasonable grounds, with respect to any particular person that with a view to preventing him from doing subversive act it is necessary so to do." 37. The detention, therefore, is dependent for its validity on the reasonable satisfaction of the Provincial Government, that it is necessary to make the order with a view to prevent a person from doing a subversive act as defined in sec. 2 (7) of the Act. 38. The section is preventive and not punitive. The necessity for detention is of the Provncial Government based on its reasonable satisfaction. This at once introduces a personal rather an impersonal requirement. 39. The necessity for the detention is essentially a matter of opinion and policy and not of fact. Manifestly such a question can be appropriately decided by those who have both knowledge and responsibility in the matter, certainly not by a Court of Law. The decision of the question depends on evidence which is of a most confidential character and may also he hearsay; the former is privileged the disclosure being contrary to public interest, the latter inadmissible in a Court of Law. Only persons versed in statecraft and national policy can Judge what national security demands. The decision of the question depends on evidence which is of a most confidential character and may also he hearsay; the former is privileged the disclosure being contrary to public interest, the latter inadmissible in a Court of Law. Only persons versed in statecraft and national policy can Judge what national security demands. An inquiry by a Court would be inappropriate, unworkable and illusory; the matters for investigation not being fit to be subject of evidence or of public discussion in a Court of Law. 40. Satisfaction of the Provincial Government, i.e., of the Governor or his subordinate officer, has reference to the mental state of the person satisfied. It is a part of the content of the mind of a particular person who is to be satisfied and cannot be the subject of adjudication in a Court of Law. The satisfaction is of the executive and not of the judiciary. 41. The subjective test was accepted by the Court of an Appeal (Scot, L. J., Mackinon, L. J., Goddard, L. J.) in the case of Ex parte Greene L. R. (1942) 1 K. B. 87 which was affirmed on a different point by the House of Lords. This test was also adopted by the Court of Appeal in the case of Liversidge v. Sir John Anderson L. R. (1942) A. C. (H. L. E.) 206 (219) and the decision of the Court of Appeal was affirmed by the majority of the Law Lords (Viscount Maugham, Lord Macmillan, Lord Wright and Lord Romer); Lord Atkin alone dissented. The decision of the House of Lords is reported in Liversidge v. Sir John Anderson L. R. (1942) A. C. (H. L. E.) 206 (219). 42. Mr. De put forward several grounds in support of his contention that the subjective test should not be applied. 43. Mr. De first submitted that the subjective view would leave the freedom of the subject to the tender mercies of the executive. This is to a certain extent correct; but in times of stress or war, the Legislature in all realms, wield powers in curtailment of abstract notions of unfettered freedom. Thus conscription, deportation or detention without trial, requisitioning of property, control of essential supplies are well-known. The liberty of the subject is thus controlled by law in various ways. This is to a certain extent correct; but in times of stress or war, the Legislature in all realms, wield powers in curtailment of abstract notions of unfettered freedom. Thus conscription, deportation or detention without trial, requisitioning of property, control of essential supplies are well-known. The liberty of the subject is thus controlled by law in various ways. In the words of Burke, the citizen enjoys only "a regulated freedom." True, as Farwell, L. J., said in Dyson v. Attorney-General (1911) 1 K. B. 410 (424), "Courts are the only defence of liberty of the subject against departmental aggression "; and Judges should be chary of putting a construction which derogates from such liberty. Hut, as already pointed out, when the safety of the State is in jeopardy and the whole nation runs the risk of enslavement, too much weight should not be put on abstract notions of individual liberty and the plain object of the Legislature as expressed in the statute taken as a whole, should not be subordinated to this consideration alone. The Legislature is supreme and its plain intent as expressed in the Act should be given effect to. 44. The West Bengal Security Act, it should be noted, imposes only a partial restraint on individual liberty. The restraint is limited in point of time and safe-guards have been provided for in the Act against the arbitrary exercise of the powers by the executive. 45. The lease of life of the Act is short. The detention under sec. 30 by a police officer lasts for 15 days and is subject to the final orders of the Provincial Government. The detention by the Provincial Government under sec. 16 is dependent on its reasonable satisfaction. It is not to be resorted to check lawful trade union activities or legitimate criticism of the policy of the Government. The detention cannot enure beyond three months. An extension of the period of detention can be made only after an examination, albeit exporte, of the papers of the detenu by a Judge of the High Court and even so, the extension cannot be for more than nine months. The detenu is to be apprised of the grounds of detention and may obtain some particulars of the grounds of detention. He can make a representation to the Provincial Government for further consideration of the order. 46. The detenu is to be apprised of the grounds of detention and may obtain some particulars of the grounds of detention. He can make a representation to the Provincial Government for further consideration of the order. 46. The above provisions rather suggest that the discretion of the Provincial Government should not be the subject of review in a Court of Law. 47. Mr. De also contended that in this Act when the Legislature intended to confer on the Provincial Government an absolute discretion it used apt words, such as " in the opinion of the Provincial Government consider it necessity or expedient etc., and this difference in language indicated that by the words " satisfied on reasonable grounds," an unfettered discretion was not conferred on the Provincial Government. 48. The Act is not artistically drawn and this diversity of language should not compel us to adopt an objective standard when the intention of the Legislature is otherwise apparent. Instances are not un-common where the draftsman "to improve the graces of style and to avoid using the same words over and over again constantly changes them " per Blackburn, J., in Hadley v. Parke (1866) L. R. 1 K. B. 444 (457). 49. Mr. De also pointed out that the words "on reasonable grounds" were added to the original draft Bill by the Select Committee and this was conclusive to show that an appeal to the Court was sought to be given by the insertion of those words. 50. This, however, is not a permissible mode of construction of statutes. Ashutosh Mookherjee, J., thus summarised the law in case of Dinanath Pal v. Raja Sati Prasad Garga Bahadur 27 C. W. N. 115 (119) (1922)-- As regards the principles, which as indicated by Lord Watson in Administrator-General v. Premlal Mallick L. R. 22 I. A. 107 exclude the consideration of the proceedings of the Legislature when the clauses of an Act of the British Legislature are under consideration it may be taken as well-settled that although light may be thrown on the scope of a statute by looking at what the Parliament was doing contemporaneously and at the history of the statute. Yet even when words in a statute are so ambiguous that they may be construed in more than one sense, regard may not be had to the Bill by which it was introduced, nor to what has been said in Parliament or elsewhere. The view has been consistly maintained that the Court cannot look at the history of a clause or of the introduction of a proviso, nor at debates in Parliament, nor at amendments and alterations made the Committee. 51. It was also urged that the subjective view would render the words "on reasonable grounds" a surplusage. This argument was put forward in Liversidge's case L. R. (1942) A. C. (H. L. E.) 256 and was thus answered by Lord Mac-Millan-- It may well be that in view of the gravity of this matter of detention, it was thought right to adopt more emphatic words by way of admonition to the Secretary of State to make more of the grounds before he took action. 52. Mr. De further submitted that as the power of the High Court to act under sec. 491, Criminal Procedure Code, was saved by sec. 33 of the West Bengal Security Act, the clear implication was that an appeal to the Court to explore the grounds for satisfaction of the Provincial Government was intended. 53. In my opinion, the reservation was made to remove any possible doubt as to the applicability of sec. 491 of the Criminal Procedure Code. It was made ex abundanti cautela. Even if the subjective test be adopted, there would still be room left for the issue of a writ of Habeas Corpus where the return is ex facie bad or insufficient or where the detention is in excess of the powers conferred on the Provincial Government by the West Bengal Security Act or is a mere colourable exercise of such powers or is done in bad faith. 54. In my opinion, the exercise of discretion under sec. 16 (I) (a), (4) of the West Bengal Security Act, 1948, is clearly and essentially a matter for the Executive Government and is not justifiable in a Court of Law. 55. 54. In my opinion, the exercise of discretion under sec. 16 (I) (a), (4) of the West Bengal Security Act, 1948, is clearly and essentially a matter for the Executive Government and is not justifiable in a Court of Law. 55. The above view is not opposed to the decision of the Judicial Committee in the case of King-Emperor v. Vimlabai Deshpande L. R. 73 I. A. 144 a c 50 C. W. N. 814 (1946) on which much reliance was placed on behalf of the Appellant. In that case the detenu, Purusattam Yeshwant Deshpande was arrested on the 21st August, 1944, by a police officer pursuant to an order given by the Deputy Inspector-General under r. 129 (2) of the Defence of India Rules, 1939. A report of the arrest was made to the Provincial Government as required by sub-r. (2). On August 26, 1944, the Provincial Government purporting to act under r. 129 (4) directed the detenu to be detained till 4th September, 1944. This period was extended under r. 129 (2), (4) for a further period of 15 days. On 25th August, 1944, Vimlabai Deshpande, the wife of the detenu, made an application under sec. 491, Criminal Procedure Code. This was allowed by the High Court. [Vimlabhai Deshpande v King-Emperor I. L. R. (1915) Nag. 6 (sic)], The Provincial Government appealed to His Majesty in Council. The appeal was dismissed by a Board of which Viscount Jowett, Lord Wright, Lord de Pareq, Morton, L. J. and Sir John Beaumont were members. 56. Before dealing with the opinion of the Board which was delivered by Sir John Beaumont, it is necessary to set out the material provisions of the Defence of India Rules, 1939. 57. By rule 129 (1), " any police officer........may arrest without warrant any person whom he reasonably suspects of having acted.......(a) in a manner prejudicial to the public safety or to the efficient prosecution of the war." 58. 57. By rule 129 (1), " any police officer........may arrest without warrant any person whom he reasonably suspects of having acted.......(a) in a manner prejudicial to the public safety or to the efficient prosecution of the war." 58. By rule 129 (2), "any officer who makes an arrest in pursuance of sub-rule (1) shall forthwith report the fact of such arrest to the Provincial Government and pending the receipt of the order of the Provincial Government may subject to the provisions of sub-rule (3) by order in writing, commit any person so arrested to such custody as the Provincial Government may by general or special order specify, provided-- (i) that no person shall be detained in custody under this sub-rule for a period exceeding fifteen days without the order of the Provincial Government; and (ii) that no person shall be detained in custody under this sub-rule for a period exceeding two months. 59. Rule 129 (4) reads as follows:-- On receipt, of any report made under the provisions of sub-rule (2), the Provincial Government may in addition to making such order subject to the second proviso of sub rule (2), as may appear to be necessary for the temporary custody of any person arrested under the rule, make, in exercise of any power conferred upon it by any law for the time being in force such final order as to his detention, release, residence or any other matter concerning him as may appear to the said Government in the circumstances of the case to be reasonable or necessary. 60. Rule 26 is in the following terms:-- (1) The Central Government or the Provincial Government. if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety. * * * or the efficient prosecution of the war, it is necessary so to do, make an order * * * *. (b) directing he be detained. 61. In that case, their Lordships in dealing with the merits of the case formulated two questions at page 152, viz.:-- (1) Whether a police officer making an arrest under r. 129 (2) is bound to prove to the satisfaction of the Court before whom the arrest is challenged that he had reasonable grounds for suspicion? 61. In that case, their Lordships in dealing with the merits of the case formulated two questions at page 152, viz.:-- (1) Whether a police officer making an arrest under r. 129 (2) is bound to prove to the satisfaction of the Court before whom the arrest is challenged that he had reasonable grounds for suspicion? (2) If he is so bound and fails to discharge the burden laid on him, is an order made by the Provincial Government under r. 129, sub-r. (4), for the temporary custody of a person so arrested valid notwithstanding that the arrest was invalid ? 62. On the first question above stated their Lordships followed the decision of the House of Lords in Shearer v. Shields (1914) A. C. 808 which was a case of arrest on suspicion, by a police officer under the Glasgow Police Act and held that the suspicion must be based on reasonable grounds and the burden rested on the police officer to show that the suspicion was reasonable. 63. Referring to r. 26, their Lordships observed-- It is to be noticed that the Government must be satisfied, mere suspicion is not enough, but there is no qualifying adverb such as 'reasonably ' or ' honestly ' attached to the word ' satisfied. 64. Their Lordships distinguished the case of Liversidge v. Sir John Anderson L. R. (1912) A. C. (H. L E.) 206, on two grounds, viz.:-- (1) that in Liversidge's case (3) the authority empowered to arrest was a high officer of the Government and (2) that the inconvenience and danger to the public which might arise if the Home Secretary was bound to disclose in public confidential matters on which he acted, was mitigated in the operation of Defence of India Rules, 1939, because the Provincial Government might avoid an inquiry in a Court of Law acting under r. 26. 65. In the West Bengal Security Act the dangers which were adverted to by the Law Lords in Liversidge's case L. R. (1942) A. C. (H. L. E.) 206 have full play and the detention in question is not by a police officer but by the order of the Governor who is to be satisfied on reasonable grounds and not on mere suspicion. 66. 66. It cannot he said that in the case of Vimlabai Deshpande L. R. 73 I. A. 144 s. e. 50 C. W. N. 814 (1946) the Judicial Committee, which included Lord Wright and Lord de Pareq, dissented from the view which was taken in Liversidge's case L. R. (1942) A. C. (H. L. E.) 206 by the majority of the House of Lords including Lord Wright and by the Court of Appeal (whose decision was affirmed by the majority of the Law Lords) which included Lord de Pareq. 67. The case of Eshugbai v. The Government of Nigeria L. R.(1913) A. C. 662 on which Mr. De also relied, is distinguishable, because in that case, the Ordinance in question, no-where purported to make the opinion of the Governor conclusive on the question whether the conditions precedent of a valid order of deportation had been fulfilled. 68. It was also argued that the affidavit of Sri R. Gupta, Home Secretary to the Government of West Bengal, did not justify the arrest by the police officer. This is correct. But the petition read as a whole merely complains about the action of the Provincial Government in detaining Jyoti Basu. This action of the Government, apart from the question of mala fides, is justified in the affidavit of Sri R. Gupta by quoting the order and by a statement that on a consideration of the materials against the said Jyoti Basu the Governor was satisfied. Though the affidavit is not as full or specific as the affidavit filed in the case of Ex parte Lees L. R. (1941) 1 K. B. D. 72, I think the affidavit and the order which forms a part of affidavit are a good answer to the petition. The question as to the necessity of an affidavit in support of the return was mooted by the House of Lords in the case of Greene v. Secretary of States for Home Affairs L. R. (1942) A. C. 284. which arose out of a petition for the issue of a writ of Habeas Corpus ad Subjiciendum in case of a detention under Regulation 18B of the Defence (General) Regulation, 1939, by an order of the Home Secretary. which arose out of a petition for the issue of a writ of Habeas Corpus ad Subjiciendum in case of a detention under Regulation 18B of the Defence (General) Regulation, 1939, by an order of the Home Secretary. It was held by the House of Lords that the production of the Home Secretary's order the authenticity and good forth of which were not impugned, consituted a complete answer to an application by the applicant for a writ of Habeas Corpus, and no affidavit by the Home Secretary justifying his cause of belief was necessary. 69. Mr. De further contended that as the Provincial Government did not attempt to justify the initial arrest of the detenu Jyoti Basu by the police officer on the morning of 26th March, 1948, this arrest was ex concessis bad, the subsequent detention which the order recites was a mere continuation of the initial arrest, was also bad. In support of this contention, he relied on the use of the word " continued " in the order of the Governor, dated 8th April. 1948. This is a more recital and states the patent fact that Jyoti Basu was in detention in the Presidency Jail and that the detention would, in point of fact, continue. The operative part of the order is clear and states that under cl. (a) of sub-sec. (I) and sub-sec. (4) of sec. 16 of the Act. the said person be detained until the 6th of July, 1948. In my opinion we should not be blinded to the real significance of the order by a much too meticulous attention to the phraseology of the recital. 70. Mr. De further urged that the order of the 8th of March, 1948, was the final order merely continuing the arrest by the police officer and as this arrest was illegal, the final order of detention was necessarily had. He relied on the decision of the Judicial Committee on the second point formulated by their Lordships in the case of King-Emperor v. Vimlabai Deshpande L. R 73 I. A. 114 s. c. 50 C. W. N. 814 (1946). This argument proceeds on a misconception of the facts of that case. In that case, the arrest was initially made by the police officer and the subsequent detention was under orders of the Provincial Government purporting to act under r. 129 (2) and (4) and not under rule 26. This argument proceeds on a misconception of the facts of that case. In that case, the arrest was initially made by the police officer and the subsequent detention was under orders of the Provincial Government purporting to act under r. 129 (2) and (4) and not under rule 26. At pages 153, 154 of the report their Lordships point out that sub-r. (4) does not enlarge the powers which the Government may possess under any law. It simply entitles the Government to take advantage of the temporary custody of the person detained while " making a final order under any other law." The Provincial Government in that case did not exercise their powers of detention either under rule 26 or under any other law. Their Lordships observed that " the only substantive power which is conferred by the Provincial Government by sub-r. (4) is a power to make such order as may appear necessary for the temporary custody of any person, not, be it noted "arrested," but "arrested under this rule." that is, on reasonable suspicion as to the person's activities. If no arrest was made under the rule, the power to make an order for temporary custody never arose." As the arrest by the police officer was found to be illegal in that case, there was no arrest in law under the rule and the subsequent detention by the Provincial Government under rule 129 (2), (4) was, therefore, illegal. In the present case, the present detention is under sec. 16 (I) (a) and (4) and is quite independent of the arrest by the police officer under sec. 30. The detention under sec. 16 has a separate independent existence and does not derive its sap and vitality from sec. 30 of the Act. 71. This contention is, therefore, not of any substance. 72. The only other point which requires consideration is the question of mala fides. It cannot be disputed that this is available to the Petitioner. 73. The material allegations in the petition are contained in paragraphs (3), (10), (15), (17), (27) to (30). The detenu Jyoti Basu is a member of the Legislative Assembly and a Vice-President of All-India Railwaymen's Federation. He is a member of the English Bar and an Advocate of this Court and alleges to be a lawabiding citizen of the Indian Union. The material allegations in the petition are contained in paragraphs (3), (10), (15), (17), (27) to (30). The detenu Jyoti Basu is a member of the Legislative Assembly and a Vice-President of All-India Railwaymen's Federation. He is a member of the English Bar and an Advocate of this Court and alleges to be a lawabiding citizen of the Indian Union. The suggestion is that the detention was made with a view to muzzle the opposition in the Assembly which was carried on by the detenu and one Ratanlal Brahman, to suppress legitimate trade union activities, to facilitate the election of certain members of the Cabinet who are not members of the Legislative Assembly, and was the outcome of ill-will of Sri N. R. Sarkar. It is conceded that the onus of proving mala fides is on the Petitioner. Unquestionably the onus is a heavy one and difficult, if not impossible, to discharge. Reference may be made in that connection, to the case of Ex parte Greene L. R. (1942) I. K. B. 87 affirmed on appeal by the House of Lords in Greene v. Secretary of States for Home Affairs L. R. (1942) I. K. B. 87. 74. The allegations made in the petition are vague and at the most raise suspicion and prejudice. No prima facie case of mala fides has been made out which calls for an answer on the part of the Provincial Government. 75. In the facts of this case, it has not been proved that the order of the detaining authority was in the colourable exercise of its powers or was made for an ulterior purpose. 76. No other point was raised by Mr. De, learned Advocate for the Petitioner. 77. The detention of the detenu Jyoti Basu has now in my opinion, been proved to be either illegal or improper. 78. This miscellaneous case must, therefore, be dismissed. 79. Sinha, J.--This rule was issued on the petition of Dr. Nishikanta Basu, father of the detenu Sri Jyoti Basu, under sec. 491, Criminal Procedure Code, for showing cause why the said detenu should not be brought up before this Court and be set at liberty or dealt with according to law. 80. The facts out of which this application arises are as follows:-- 81. The detenu is a member of the English Bar and an Advocate of this Court. 491, Criminal Procedure Code, for showing cause why the said detenu should not be brought up before this Court and be set at liberty or dealt with according to law. 80. The facts out of which this application arises are as follows:-- 81. The detenu is a member of the English Bar and an Advocate of this Court. He is a member of the West Bengal Legislative Assembly and Vice-President of All-India Railwaymen's Federation. 82. In December, 1947, the West Bengal Special Powers Bill was introduced in the West Bengal Legislative Assembly. After certain modifications, the Bill was introduced again as West Bengal Security Bill on December 8, 1947, and was passed into law as the West Bengal Security Act, 1948, in the middle of January. 1948. The Act was assented to by the Governor-General and published in the Calcutta Gazette on March 13, 1948. 83. The Bill was opposed by the detenu and others inter alia on the ground that it was designed to suppress political opposition and Trade Union activities and was against all principles of democracy. The said detenu during the agitation following the introduction of the Bill made speeches inside and outside the Assembly in opposition to the Bill and charged the Government with improper motive. 84. On or about March 17, 1948, Sri Nalini Ranjan Sarkar. a Minister of the West Bengal Government, made a speech threatening the said detenu and the Communists with detention. 85. On March 26, 1948, the detenu was arrested by the police without any Warrant and thereafter on the same day he was removed to the Presidency Jail where he has been detained ever since. 86. The detenu has been detained under an order purported to have been passed under sec. 16 (i) (a) of the said Act. Certain grounds on which the order has been made have been given by the Government to the detenu in a document handed to him but, it is said, the reasons so given are not grounds as contemplated by sec. 18 of the Act and did not justify the order of detention. 87. 16 (i) (a) of the said Act. Certain grounds on which the order has been made have been given by the Government to the detenu in a document handed to him but, it is said, the reasons so given are not grounds as contemplated by sec. 18 of the Act and did not justify the order of detention. 87. The Petitioner states that the detenu never acted nor intended to act nor was there any likelihood of his acting in a manner which could be called a "subversive act." He was connected with the All-India Trade Union Congress and some of the members of the West Bengal Government and persons who influence their policies are connected with a rival organisation by the name of the Indian National Trade Union Congress. 88. It is said that several bye-elections to the Legislative Assembly are going to be held soon and the country will have a general election. 89. It is alleged that the detenu has been arrested and detained in order to suppress political opposition, to crush the All-India Trade Union Congress and to secure success for members of the Government in bye-elections and in general elections to be held in the near future. 90. It is said the Government has acted arbitrarily and mala fide and for an indirect and collateral purpose. 91. It is, therefore, submitted that the order of detention is illegal and improper and the detention has been without lawful authority and the detenu should be ordered to be set at liberty. 92. Mr. Ranjit Gupta, Home Secretary to the Government of West Bengal, has filed an affidavit An order, dated April 8, 1948, has been exhibited as an annexure to the affidavit. In the affidavit it has been stated that before the order of detention was made, the reports and informations from persons and officers in responsible position whose duty is to make investigation regarding subversive acts were received and carefully considered and the Provincial Government was satisfied on reasonable grounds that the order of detention in respect of the person detained should be made and the order was accordingly made. It is also stated that Government acted honestly, fairly and reasonably on materals before it, and all charges of mala fides and bad faith against the Government and the Ministers are denied. 93. The order exhibited to the affidavit is as follows:-- GOVERNMENT OF WEST BENGAL. It is also stated that Government acted honestly, fairly and reasonably on materals before it, and all charges of mala fides and bad faith against the Government and the Ministers are denied. 93. The order exhibited to the affidavit is as follows:-- GOVERNMENT OF WEST BENGAL. Home Department. Special Section. ORDER. No. 2487 H. S. Calcutta, the 8th April, 1948. Whereas the person known as Sri Jyoti Basu, M.L.A., son of Dr. N. K. Basu, of Barodi, Baidverbazar, Dacca, and of 55A, Hindusthan Park, Calcutta, is detained in the Presidency Jail under the provisions of sec. 30 of the West Bengal Security Act, 1948 (West Bengal Act III of 1948). And whereas having considered the materials against the said person, the Governor is satisfied that, with a view to preventing the said person from doing any subversive act, it is necessary to make the followingg orders for the purpose of continuing his detention: Now, therefore, in exercise of the powers confeffred by clause (a) of sub sec. (1) and sub-sec. (4) of sec. 16 of the said Act the Governor is pleased to direct-- (a) that the said person shall, subject to the provisions of sec. 17 of the said Act, be detained until the 6th day of July, 1948; (6) that subject to the provisions of clause (c) of this paragraph, the said person shall, until further orders, continue to be detained in the Presidency Jail; and (c) that during such detention the said person shell be subject to the conditions laid down in the Bengal Security Prisoners Rules, 1940. as applicable for the time being to security prisoners referred to in the said rules. By order of the Governor, N. SOM, Assistant Secretary to the Government of West Bengal. 94. The relevant sections of the Act may now be set out. 16. (1) The Provincial Government, if satisfied on reasonable grounds, with respect to any particular person that with a view to preventing him from doing any subversive act it is necessary go to do, may make an order-- (a) directing that he be detained; ***** 17. Save as hereinafter in this section otherwise provided, an order made under sec. 16. (1) The Provincial Government, if satisfied on reasonable grounds, with respect to any particular person that with a view to preventing him from doing any subversive act it is necessary go to do, may make an order-- (a) directing that he be detained; ***** 17. Save as hereinafter in this section otherwise provided, an order made under sec. 16 shall be in force for such period not exceeding three months as may be specified in the order or for the period subsequent to the date of issue of such order during which this Act continues in operation, whichever is less, unless earlier cancelled by the authority making the order: Provided that the Provincial Government may if and so often as it thinks fit, before the date on which under this section any such order would otherwise have ceased to be in force, place before a Judge of the High Court in Calcutta, the grounds on which the order is made, the representation. if any, made under sec. 18 by the person affected thereby and such further materials as the Provincial Government may think fit and the Provincial Government shall, in accordance with the decision of the Judge thereon, issue an order of release or a fresh order of detention for such period not exceeding nine months as may be determined by the Judge: Provided also that the person affected by the order shall not be entitled to be defended or represented by any lawyer or other person before the Judge: Provided further that the Provincial Government shall be at liberty to release any such person at any time notwithstanding any provision here in be fore contained. * * * * * 30.(1) Any police officer not below the rank of Sub-Inspector, or any other officer of Government empowered in this behalf by general or special order of the Provincial Government, may arrest without warrant any person whom he reasonably suspects of having done, of doing, or of being about to do any subversive act. (2) Any officer who makes an arrest in pursuance of sub-sec. (2) Any officer who makes an arrest in pursuance of sub-sec. (1) shall forthwith report the fact of such arrest to the Provincial Government, and, pending the receipt of the orders of the Provincial Government may, by general or special order, specify: Provided that no person shall be detained in custody under this sub-section for a period exceeding fifteen days without the order of the Provincial Government. (3) On receipt of any report made under the provision of sub-sec. (2), the Provincial Government may, in addition to making such order as may appear to be necessary for the temporary custody of any person arrested under this section, make, in exercise of any power conferred upon it by any law for the time being in force, such final order as to his detention, release, residence or any other matter concerning him as may appear to the Provincial Government in the circumstances of the case to be seasonable or necessary. 95. The order has been challenged before us on two grounds-- (a) that it is an illegal order; (b) assuming that the order is legal in form, it has been made improperly and for an indirect and collateral purpose and in bad faith. (a) The legality of the order has been attacked on various grounds. (i) It is urged that the order is bad on the face of it. It will be seen that the order states that it is necessary to make the orders set out in the operative portion " for the purpose of continuing the detention " of the detenu. The detenu was arrested on March 26, 1948, by a police officer under sec. 30 (I) of the Act which empowers certain classes of officers to arrest without warrant any person whom the officer concerned reasonably suspects of having done, of doing, or of being about to do any subversive act. It is also provided in the section that the officer making the arrest may commit the person arrested to such custody as the Provincial Government may specify, the maximum period of such detention being 15 days. The arrest under this section can only be made if the officer making the arrest "reasonably suspects" a person of having done, of doing or of being about to do any subversive aft. The arrest under this section can only be made if the officer making the arrest "reasonably suspects" a person of having done, of doing or of being about to do any subversive aft. It was held in King-Emperor v. Vimlabai Deshpande L.R. 73 I.A. (sic) : S.C. 50 C.W.N. 814 (1946), that where a police officer makes an arrest under sec. 129(I) of the Defence of India Rules, 1939, the burden was on him to prove to the satisfaction of the Court before whom the arrest was challenged that he had reasonable grounds of suspicion. If he failed to discharge that burden the arrest was illegal and an order made by the Provincial Government under sub-r. (4) of rule 129 for the "temporary custody" of the detenu was invalid. Rule 129 of the Defence of India Rules substantially corresponds to sec. 30 of the Act. The arrest and detention by the police officer under sec. 30 has, therefore, to be justified before this Court as having been made on reasonable grounds of suspicion. No attempt has been made in the affidavit filed to justify the order of detention by the police. The order made on April 8, 1948, by the Provincial Government was made to continue the detention which had been made under sec. 30. The initial arrest being bad, it is submitted, the order made on April 8, 1948, for continuation of the detention is also illegal and invalid. I do not agree with this argument. In Deshpande's case L.R. 73 I.A. (sic) : S.C. 50 C.W.N. 814 (1946), the order made by the Provincial Government was for " temporary custody " of the detenu under sec. 129 (4) of the Defence of India Rules. The validity of the order for "temporary custody " depended on the legality of the arrest by the police. It was pointed out by the Privy Council that if the order had been a final order for detention under rule 26 of the said rules the position would have been different. 129 (4) of the Defence of India Rules. The validity of the order for "temporary custody " depended on the legality of the arrest by the police. It was pointed out by the Privy Council that if the order had been a final order for detention under rule 26 of the said rules the position would have been different. The Privy Council at page 155 said as follows:--" But a final (10) L. R. 73 I. A. (sic): s. c. 50 C. W. N. 814 (1948) order for detention can be made under rule 26 on Government being satisfied as in the rule mentioned and its validity depends in no way on the person against whom the order is made being already under arrest." This observation makes it clear that in that case if a fresh and final order had been made under rule 26 it would have been considered to be good even if the initial order for arrest by the police officer was bad. In this case the order, dated April 8, 1948, expressly states that it is made in exercise of the powers conferred by sec. 16 (I) (a) of the Act. Therefore that order is a fresh and final order and did not depend for its validity on the validity of the arrest and detention by the police. In spite of the recital that the order was being made " for continuation of the detention," the operative portion of the order makes it clear that it is an order made under sec. 16 (I) (a). (ii) Secondly, it is urged that the order is bad on the face of it because the duration of the order is for more than three months, the maximum period of detention permissible under paragraph 1 of sec. 17 being limited to three months. Sec. 30 permits detention by the police officer for the maximum period of 15 days. Sec. 17 of the Act provides that a detention order under sec. 16 shall be in force for a maximum period of three months unless a decision of a Judge of the High Court in Calcutta is made as provided for in paragraph 2 of sec. 17 for detention up to a further period of nine months. In this case the order was made on April 8, 1948, and the period of detention is up to July 6, 1948. 17 for detention up to a further period of nine months. In this case the order was made on April 8, 1948, and the period of detention is up to July 6, 1948. which is within the limits of the maximum duration fixed under sec. 17. It is, however, argued that because the detention made by the police officer is being continued under the order, dated April 8, 1948, the commencement of the period or detention under sec. 16 must be held to be 26th March, 1948, and inasmuch as detention is ordered up to July 6, 1948, the maximum duration of detention allowable under paragraph 1 of sec. 17 of the Act is exceeded. T do not agree with this argument. The effect of the recital is not to antedate the order made on April 8, 1948, or to commence the period of detention under that order from March 26. The detention under that order begins from April 8 and is tacked on to the period of detention under sec. 30. (iii) It is next urged that having regard to the terms of sec. 16, if the reasonableness of the grounds of satisfaction is challenged, it is incumbent on the Government to prove before a Court of Law that the order has been made on grounds which are in fact reasonable. It is urged that the standard laid down in sec. 16 is not a subjective but an external and objective standard, that is to say, the authority making the order has to justify it before a Court of Law that it was made on grounds which are in fact reasonable. The principles of construction governing statutes such as we are now considering have been laid down in the well-known case of Liversidge v. Anderson L. R. (1945) A. C. (H. L. E.) 208 (219). There the relevant phrase was " if the Home Secretary has reasonable cause to believe." It was contended in that case that the phrase means "If there was in fact reasonable cause for believing." The House of Lords, however, by a majority held that the phrase meant "If the authority acting on what he thinks is reasonable cause believes" the things in question. In other words, the standard was subjective and not objective. In other words, the standard was subjective and not objective. Their Lordships agreed that prima facie and in the absence of a context, such a phrase should be construed as "If there was in fact reasonable cause for believing." Having regard, however, to the context, the circumstances and the purpose of the Act. their Lordships came to the conclusion that they should be construed to mean "If the authority thought that he had reasonable cause to believe." It was also held that the principle of construction of emergency legislation was that if the words employed were capable of bearing more than one meaning, that construction should be adopted which carried into effect the object and intendment of the legislation. The grounds which induced the Court to adopt that construction of the words used were inter alia as follows.-- (a) The question of necessity to exercise control was so clearly a matter for executive discretion and nothing else that it was impossible to hold that it was ever contemplated that the action of the Secretary of State would be subject to discussion and criticism of a Judge in a Court of Law. (b) The Home Secretary acted on information of a most confidential character which could not be disclosed without the greatest risk of prejudicing future efforts in like matters. The Home Secretary might not be compelled to disclose the confidential information consistently with public interest. If there was no disclosure, the Court could not elicit facts which amounted to reasonable cause. (c) The power was entrusted to a high Minister of the Crown who was responsible to Parliament. 96. The grounds on which the House of Lords held that a meaning different to the prima facie meaning should be assigned to the words used also exist in this present case. We must hold that this is an emergency measure enacted to meet a situation which has arisen and which could not be coped with by exercise of powers under the ordinary law. The Legislature has given wide powers to the executive for curtailing the liberty of the subject. In the nature of things the executive must be in possession of confidential communications which it may be impossible to disclose to the Court as such disclosure may be against public interest. The Legislature has given wide powers to the executive for curtailing the liberty of the subject. In the nature of things the executive must be in possession of confidential communications which it may be impossible to disclose to the Court as such disclosure may be against public interest. The detention is for a limited time and it can only be prolonged by an order of a Judge of tin High Court Before the Judge only such materials as the Provincial Government may choose to disclose are directed to be produced and the detenu has no right of representation by a lawyer. Under sec. 18, grounds of detention have to be disclosed to the detenu but the detaining authority has the right to withhold such facts, disclosure whereof would in the opinion of the authority concerned be against public interest. The decision as to necessity to exercise control over a person depends on so many factors that a Court of Law is a most inappropriate forum for the decision of such a question. Power is given to the Provincial Government who are responsible to and can be controlled by the Legislature, if the wide powers given under the Act are abused. 97. These considerations induce me to hold that the principles of construction which were applied by the House of Lords in Liver sidge v. Anderson L. R. (1912) A. C. (H. L. E.) 206 (219) are applicable here, namely, that such construction should be put on the words as would promote and not defeat the purpose of the Act. I think the general scheme and purpose of the Act is such that it is reasonable to hold that it was never contemplated that the grounds of satisfaction as to the necessity for detention should be the subject of evidence in and determination by a Court of Law. 98. Learned Counsel for the Petitioner urged that the authority of Liversidge v. Anderson L. R. (1912) A. C. (H. L. E.) 206 (219) should not be applied to the facts of this case because-- (a) the Emergency Powers (Defence) Act. 1939, gave wide powers to the executive to frame regulations, (b) there are other sections in the Act which show that where a subjective standard is intended the language used is different. 99. Reference is made to secs. 1939, gave wide powers to the executive to frame regulations, (b) there are other sections in the Act which show that where a subjective standard is intended the language used is different. 99. Reference is made to secs. 21 to 25 of the Act, where the words are " If the Government is satisfied 'or' if it is of opinion." It is, therefore, urged that the Legislature by using different language intended to convey that the subjective standard should not be employed in cases under sec. 16. 100. I am not impressed by these grounds of distinction. I think sec. 16 is in pari materia with Regulation 18B of the Defence of Realm Regulations. Here also large powers have been given to the executive to curtail the liberty of the subject. In Liversidge's case L. R. (1942) A. C. (H. L. E.) 206 also there was difference in language in the different regulations. Still their Lordships held that the difference in language did not show that the Legislature wanted to apply the objective standard in Regulation 18B. It was pointed out as one of the grounds for so holding that even in statutes changes of words often occur without change of meaning. (iv) The next point argued is that the condition precedent laid down in sec. 16 has not been satisfied. The section provides that the " Provincial Government " has to be " satisfied on reasonable grounds." The order, dated April 8, 1948, states that the Governor has been satisfied that it was necessary to make an order for detention. Question, therefore, arises whether the satisfaction of the Governor was enough and whether it fulfils the condition precedent laid down in sec. 16. The words " Provincial Government " have been defined in sec. 3 (43A) of the General Clauses Act of 1897, and means in a Governor's Province, the Governor. That section, however, does not apply to the construction of a provincial statute. The words " Provincial Government" have not been defined in the Bengal General Clauses Act. It is, therefore, submitted that the satisfaction of the Governor alone does not fulfill the condition precedent laid down in sec. 16. 101. In King-Emperor v. Shib Nath Banerjee L. R. 72 I. A. 241 (246) s. c. 50 C. W. N. 25 (1945) a similar question arose in the following way. It is, therefore, submitted that the satisfaction of the Governor alone does not fulfill the condition precedent laid down in sec. 16. 101. In King-Emperor v. Shib Nath Banerjee L. R. 72 I. A. 241 (246) s. c. 50 C. W. N. 25 (1945) a similar question arose in the following way. Rule 26 of the Defence of India Rules provided for the satisfaction of the Central or Provincial Government as the case might be before an order for detention could be made. In that case the order for detention had been made in the name of the Governor and the order recited that the Governor had been satisfied. It was held in that case that the words " Provincial Government " having been defined in sec. 3 (43A) of the General Clauses Act the satisfaction of the Governor was sufficient and that the Governor need not be personally satisfied but the satisfaction of any person to whom the powers had been delegated under r. 2 (5) of the Defence of India Rules or under the Rules of Business framed under sec. 59 of the Government of India Act was enough. 102. The learned Advocate-General relies on sec. 49 of the Government of India Act which provides that the executive authority of a province is to be exercised by the Governor. It may be that the Governor in performing his executive functions has to be aided and advised by Ministers, as there is no longer any question of the Governor exercising his individual judgment or individual discretion under the Government of India Act as modified by the Indian Independence Orders. Sec. 16 of the Act empowers the Provincial Government to decide as to the necessity for detention and if satisfied as to necessity, to make an order for detention. The Provincial Government means the Provincial Executive. The act of decision as to necessity for detention is not a judicial but an executive act. The Provincial Government performs an executive function when it decides as to necessity of detention. Under sec. 49 of the Government of India Act, the Governor has to exercise the executive authority of the province. If, therefore, the Governor is satisfied as to the necessity for detention the condition precedent is fulfilled. 103. Two questions arise and have to be dealt with-- (a) What is the meaning of " Provincial Government " in sec. Under sec. 49 of the Government of India Act, the Governor has to exercise the executive authority of the province. If, therefore, the Governor is satisfied as to the necessity for detention the condition precedent is fulfilled. 103. Two questions arise and have to be dealt with-- (a) What is the meaning of " Provincial Government " in sec. 16 of the Act? (b) When the " Provincial Government " satisfies itself about the necessity of detention and takes a decision, is the Provincial Government exercising executive authority? (a) The decision which has to be made by the Provincial Government under sec. 16 of the Act is not a judicial but an executive decision. In the case of In re: Banowarilal Roy (10), Mr. Justice Das had to consider the question whether the decision to be made by the Provincial Government under r. 51 (f) (6) of the Defence of India Rules was a judicial or an executive decision. He held on an elaborate reference to the authoritative decisions that the act was not a judicial or quasi-judicial act and that it was an administrative or executive order. The authority must of course apply his mind to consider the matter and may take into consideration materials which would not be acted upon in Court but the order made was an executive order and the condition precedent was that the appropriate authority must be of a certain opinion. [See In re: Banowarilal Roy 48 C. W. N. 766 (1944)]. 104. In King-Emperor v. Shibnath Banerjee (1914) F. R. 1 at p. 49 s. c. 48 C. W. N. 1 (1943), Spens, C. J., said this: " Having regard to the view which I have taken of these cases from Bengal, it is not necessary in my judgment to determine who or what is meant by the ' Provincial Government' in rule 26. Whatever meaning is given to that phrase, whether applying the definition from the General Clauses Act or not, in my view the procedure adopted in these cases could have been legally authorised under the Constitution Act by Rules of Business made under sec. 59 (3) of that Act; and as I have previously said in my view that is sufficient to dispose of these cases." 105. 59 (3) of that Act; and as I have previously said in my view that is sufficient to dispose of these cases." 105. In King-Emperor v. Shibnath Banerjee L. R. 72 I. A. 241 s. c. 50 C. W. N. 25 (1945), the Privy Council said at page 264 as follows:-- 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. 106. It appears to me, therefore, that in coining to a decision as to the necessity for detention under sec. 16 of the Act, the Provincial Government is exercising executive authority. Such executive authority under sec. 49 of the Government of India Act has to be exercised by the Governor. It follows that if the Governor is satisfied the condition precedent is fulfilled. In this case there is no question of any delegation by the Governor either under sec. 35 of the Act or under the Rules of Business. The order says that the Governor was satisfied and we cannot go behind the order. There is no evidence before us that the recital in the order that the Governor was satisfied is wrong. That being so the order itself is sufficient. There is another answer to the argument. By the Adaptation Order of 1937, sec. 4A was added to the General Clauses Act, 1897, which provides that the definition of the words " Provincial Government" in sec. 3 of the said Act shall apply to all " Indian Law " unless there is anything repugnant in the subject or context. " Indian Law " has been defined in se:. 3 (27A) of the said Act and includes any law made by any competent Legislature in British India. It, therefore, appears that the definition in sec. 3 (43A) applies to the interpretation of sec. 16 of the West Bengal Security Act and the words " Provincial Government" in that section mean the Governor. The satisfaction of the Governor, therefore, complies with the condition precedent in sec. 16. [See in this connection, Kandaswami Mudaliar v. Province of Madras I. L. R. (1948) Mad. 3 (43A) applies to the interpretation of sec. 16 of the West Bengal Security Act and the words " Provincial Government" in that section mean the Governor. The satisfaction of the Governor, therefore, complies with the condition precedent in sec. 16. [See in this connection, Kandaswami Mudaliar v. Province of Madras I. L. R. (1948) Mad. 283 at p 294 (b) The last point which has been made is that the order has been made in bad faith and for an indirect and collateral purpose. The allegation is that the order has been made for suppressing political opposition and Trade Union activities. The facts relied on in support of the challenge to the propriety of the order are-- (a) that the detenu opposed the passing of the Act and along with another gentleman formed the only opposition in the Assembly; (b) he made speeches inside and outside the Assembly in opposition to the Bill and charged the Government with bad motive; (c) Sri N. R. Sarkar, one of the Ministers, made a speech threatening him with detention; (d) some of the members of the Government and persons who influence their policies are concerned with a rival organisation, namely, Indian National Trade Union Congress and the detenu is connected with the All-India Trade Union Congress; (e) several bye-elections are going to be held soon and the country will have a general election. 107. The onus of proving bad faith is heavily on the Petitioner. The facts relied on in support of the charge of bad faith do not necessarily lead to the conclusion that the detention was for an indirect purpose. At the highest they may give rise to suspicion. The facts alleged have not been challenged in the affidavit filed on behalf of the Government. But admitting the facts to be correct the Petitioner is far from discharging the onus of showing that the order for detention has been made for the reasons suggested in the petition. The affidavit of the Home Secretary and the order which has been exhibited to the affidavit state that reports and information from persons and officers in responsible positions were received and materials against the detenu were considered by the Governor. T do not think that there is sufficient evidence to negative the accuracy of the recital in the order or of the statements in the affidavit. T do not think that there is sufficient evidence to negative the accuracy of the recital in the order or of the statements in the affidavit. I appreciate that it is difficult, almost impossible, for a Petitioner to prove bad faith if facts relating to the necessity of detention are not disclosed by the Government which they are not bound to do. The affidavit filed on behalf of the Government gives the minimum possible information and is remarkable for economy of words. The Government is of course not bound to file any affidavit. It was held in Greene's case (15) that the existence of the order was sufficient to constitute a complete defence unless there was evidence submitted to the Court by the Petitioner showing that the recital was wrong. There is no evidence before us as to the reasons for the detention given to the detenu under sec. 18 of the Act. 108. I hold, therefore, that it has not been established that the detenu has been illegally or improperly detained. I agree that the application should be dismissed.