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PETITIONER: GODAVARI SHAMRAO PARULEKAR

       Vs.

RESPONDENT: STATE OF MAHARASHTRA AND OTHERS

DATE OF JUDGMENT: 29/01/1964

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. SARKAR, A.K. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1964 AIR 1128            1964 SCR  (6) 446  CITATOR INFO :  R          1966 SC 340  (5)  R          1966 SC 816  (9)  RF         1966 SC1404  (7)  E          1967 SC 241  (6)  D          1967 SC1797  (5)  RF         1968 SC 327  (5)  RF         1986 SC2177  (37)

ACT: Detention under Preventive Detention Act, 1950-Order revoked by  the  State Government-Re-arrest under Defence  of  India Rules-validity  -Proper  authority  for  passing  order   of detention-Allocation of 447 business  of  Governor  under Art.  166(3)  of  Constitution whether  necessary-Satisfaction  of  State  Government  that detention  is necessary-Who should pass order of  detention- Revocation of order of detention during pendency of appeal.

HEADNOTE: Appellants  were  first detained on November 7,  1962  under Preventive  Detention Act, 1950.  That order was revoked  by the  Government  and the appellants were  released  but  re- arrested  under Rule 30 of the Defence of India Rules.   The orders of detention were served on appellants in Jail.   The appellants  challenged  those orders in the  High  Court  by filing  habeas  corpus  petitions  under  Art.  226  of  the Constitution  and s. 491 of the Code of Criminal  Procedure. The writ petitions were dismissed by the High Court and  the appellants  came to this Court under a certificate from  the High Court. The  contentions  raised by the appellants were  that  their detention was illegal because the detention order was served on them when they were in jail, that the orders of detention were  passed  without  the  satisfaction  of  the  authority concerned regarding their necessity, the satisfaction was to be that of the Governor and not of any Minister, that  there should  have  been  fresh  allocation  of  business  by  the Governor  under  Art. 166(3) of the Constitution  after  the

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passing  of the Defence of India Ordinance, Act  and  Rules, that  before the State Government could exercise  the  power conferred  by  Rule 30, there had to be  delegation  by  the Central Government that the order of detention did not  show that s. 44 of Defence of India Act was kept in mind when the order was made and that unless the order showed on the  face of  it that the State Government thought that detention  was the  only  mode in which the purpose of the  Act  and  Rules could  be  carried out, the order was bad.   Dismissing  the appeals. Held:     The  orders  of  detention  passed  by  the  State Government and their service on the appellants in jail  were perfectly valid and did not make the detention illegal.  The appellants were detained not as undertrials or as  convicted persons but as detenus and hence the cases of Rameshwar Shaw and Makhan Singh Tarsikka did not apply in the present case. Reading the detention order as a whole, it was clear that it did  Ray  in substance that it was necessary to  detain  the appellants  with a view to preventing them from acting in  a manner  prejudicial to the Defence of India,  public  safety and  maintenance of public order.  There was  no  difference between  the words "so to do" in Rule 30 and the  words  "to make the following order’ in the detention order. As  the detention order mentioned both the defence of  India and maintenance of public order, such an order could be made on  the satisfaction of a Minister who was incharge of  both the subjects in view of the Rules of Business promulgated by the Governor. It  was  not  necessary that fresh  allocation  of  business should  be made by the Governor under Art. 166(3) after  the passing  of the Defence of India Ordinance, Act  and  Rules. It Is enough if the allocation of the 448 subject  to  which the Defence of India Ordinance,  Act  and Rules refer has been made with reference to the three  lists in  the  Seventh  Schedule and if  such  allocation  already exists,  it may be taken advantage of if and when  laws  are passed. Rule  30  of the Defence of India Rules lays down  that  the power  can  be exercised by the Central  Government  or  the State   Government  and  hence  no  further  delegation   is necessary in favour of the State Government for the exercise of power under Rule 30. It  is true that s. 44 of the Defence of India Act  provides that  there  should  be  as  little  interference  with  the ordinary avocation of life as possible when orders are  made under  the Act or the Rules, but that does not mean  that  a detention  order must show on the face of it that the  State Government had considered the various clauses of Rule  30(1) and  had come to the conclusion that the only way  in  which the  purpose of the Act and the Rules could be  carried  out was by the use of Rule 30(1) (b).  When the order says  that it  is necessary to make an order of detention in  order  to restrain  the prejudicial activities mentioned  therein,  it means that that was the only way which the State  Government thought  was  necessary  to  adopt  in  order  to  meet  the situation.  It is for the detenu to show that the order  had gone  beyond  the needs of the situation and  was  therefore contrary to s. 44. Makhan  Singh Tarsikka v. State of Punjab A.I.R.  1964  S.C: 381  Keshav  Talpade  v. King  Emperor,  [1944]  F.C.R.  57, Rameshwar Shaw v. District Magistrate, Burdwan, A.I.R.  1964 S.C. 334, Alakhon Singh Tarasikka v. State of Punjab, A.I.R. 1964 S.C. 1120, referred to

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.  109- 111 of 1963. Appeals  from the judgment and order dated May 31, 1963,  of the Bombay High Court in Criminal Applications Nos. 217, 218 and 114 of 1963. The appellants (in Cr.  A. Nos. 109 & 110 of 1963)  appeared in person. Janardan  Sharma and Appellant also, for the  Appellant  (in Cr.  A. No. 111 of 1963). N.   S. Bindra and R. H. Dhebar, for respondents (in Cr.  A. Nos. 109-111 of 1963). Purushottam Trikamdas and R. H. Dhebar, for the  respondents (in Cr.  A. No. 110 of 1963). 449 January  29, 1964.  The Judgment of the Court was  delivered by WANCHOO  J.-These three appeals on certificates  granted  by the Bombay High Court raise common questions of law and will be  dealt  with together.  They arise out  of  three  habeas corpus  petitions filed by the appellants in the High  Court under  s. 491 of the Code of Criminal Procedure  challenging their  detention under r. 30 of the Defence of  India  Rules (hereinafter  referred to as the Rules).  A large number  of constitutional questions were raised in the applications and were  decided  by  the High Court  against  the  appellants. These appeals came up for hearing in August 1963 along  with some other appeals from decisions of other High Courts,  and the  constitutional questions were decided by this Court  on September  2, 1963, (see Makhan Singh Tarsikka v.  State  of Punjab)  (1).   It was held therein  that  the  applications under  s.  491 (1) of the Code of  Criminal  Procedure  were incompetent  in  so  far as they  sought  to  challenge  the validity of the detention on the ground that the Defence  of India  Act and Rules framed thereunder suffer from the  vice that  they contravened the fundamental rights guaranteed  by Arts.  14, 21, 22(4), (5) and (7).  The other points  raised in  the appeals were not considered at that time and it  was directed  that  the appeals should be set down  for  hearing before  a Constitution Bench to be dealt with in  accordance with  law.   Consequently, these appeals have  been  put  up before  this Bench for disposal of the other  points  raised therein. A  preliminary objection has however, been raised on  behalf of  the State to the hearing of these appeals on the  ground that the orders under which the appellants were detained and which  are  under consideration in these  appeals  had  been revoked  by  the  State  Government  and  fresh  orders   of detention had been passed, and in consequence these  appeals had  become  infructuous.  Reliance in  this  connection  is placed  on  the  decision of the  Federal  Court  in  Keshav Talpade  v.  King Emperor(2).  In that case the  detenu  was released  while  his appeal was pending before  the  Federal Court.  It was however urged on his behalf that even (1)  A.T.R. (1964) S.C. 381. (2) 134-859 S.C.-29. 450 though he had been released and no order could thereafter be made  on  the habeas corpus application,  the  court  should pronounce  an opinion on the correctness of the  High  Court ’a’  judgment.  The Federal Court refused to do so and  dis- missed the appeal on the ground that no order in the  appeal could  be made after the release of the  detenu.   Generally

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speaking,  no useful purpose would be served by  the  appeal court  deciding the appeal in a habeas corpus  matter  where the detenu has been released before the appeal comes up  for final  hearing.   But  the facts in  the  present  case  are different.  Here what has happened is that the earlier order of  detention which is the basis of the present appeals  has been revoked by the Government of Maharashtra on the  ground of  a technical -defect and a fresh order of  detention  was passed on the same date, and the appellants were immediately rearrested  after  their release from jail under  the  fresh order of detention.  In the Federal Court case, however,  it appears  that  the  detenu was released  and  there  was  no question  of  a fresh order of detention being made  on  the same day leading to his re-arrert.  In the circumstances, it is  urged  by  the appellants that  though  technically  the appellants were released before the present appeals came  up for  final  hearing, in substance they are  under  detention even  now and the points of law raised by them. against  the earlier  order of detention will apply equally to the  fresh order  of detention.  It is therefore urged that  the  Court should  decide the present appeals as that would settle  the law and help the detenus in case they make fresh application under  s. 491 of the Code of Criminal Procedure against  the fresh  order  of detention.  It is further  urged  that  the appellants  intend  after the emergency is over to  sue  for damages  for false imprisonment and the order of the  Bombay High Court would stand in their way ’in case such a suit  is brought, and therefore an authoritative pronouncement on the questions of law raised should be made by this Court in  the present  appeals, even though technically the order  out  of which the present appeals have arise ’ in has been  revoked. We  are  of opinion that the circumstances  of  the  present cases  are  different  from  the  circumstances  in   Keshav Talpade’scase(1) and therefore it would be in the  interests of justice to decide  (1) [1944] F.C.R. 57. 451 the  points raised in the present appeals.  We may add  that there  is nothing to preclude this Court from  deciding  the appeals even though the order from which these appeals  have arisen has been revoked, though ordinarily this Court  would not do so.  But as we have already indicated, it seems to us just and fair ’in view of the fact that the appellants  have not  been  filially released and are still  under  detention under  a fresh order of detention under the Rules  that  the points  raised  in  these appeals should  be  decided.   The points are of general importance and are likely to arise  in many   cases.   We  therefore  over-rule  the,   preliminary objection. The  facts  in the three appeals are similar  and  we  shall therefore briefly refer to the facts in Appeal No. 1 1 0 for the purposes of dealing with the points raised on behalf  of the appellants. The appellants were first detained on November 7, 1962 by an order  made by the Commissioner of Police,  Greater  Bombay, under  the  Preventive Detention Act, No. IV of  1950.   The matter  was then reported to the Government.   Before  this, however,  the security of India had been threatened  by  the Chinese  invasion and an Emergency had been  declared  under Art. 352 of the Constitution.  Further on October 26,  1962, the Defence of India Ordinance 1962 was passed, followed  by the  Rules framed thereunder.  When the matter  came  before the  Government,  it decided that the order of  November  7, 1962  made by the Commissioner of Police should  be  revoked and  ordered accordingly on November 10.  On the  same  day,

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the  Government decided to detain the appellants and  passed an  order  under r. 30 of the Rules.  This order  said  that with  a view to preventing the appellants from acting  in  a manner  prejudicial  to  the defence of  India,  the  public safety and the maintenance of public order, it was necessary to  detain  them,. and therefore in exercise of  the  powers conferred  upon  the Government by r. 30 of the  Rules,  the Government  directed the detention of the appellants.   This order  was  served  on  the  appellants  in  jail.   It  was challenged  by  the  appellants  by  filing  habeas   corpus petition under Art. 226 of the Constitution and under s. 491 of the Code of Criminal Procedure.  The 452 High Court, as already indicated, dismissed the applications but granted leave to the appellants to appeal to this Court. The constitutional points raised, as already indicated, were decided  by this Court on September 2, 1963, and now we  are concerned  with  the other points raised on  behalf  of  the appellants. The  first  contention that has been urged is that  the  de- tention  is  illegal  inasmuch as the  detention  order  was served  on  the  appellants while they  were  in  jail,  and reliance  in this connection is placed on the  judgments  of this  Court  in  the cases of  Rameshwar  Shaw  v.  District Magistrate,  Burdwan(1),  and Makhan Singh Tarsikka  v.  The State  of  Punjab(2).  In those cases, it was held  by  this Court  that where a person is detained in jail as an  under- trial  prisoner  no  order of  detention  either  under  the preventive Detention Act or under the Rules could be  served on him because one of the necessary ingredients which go  to make  up  the  satisfaction of the  detaining  authority  is necessarily  absent in such a case.  It was pointed  out  in Rameshwar  Shaw’s  case(1)  that "before  an  authority  can legitimately  come to the conclusion that the  detention  of the  person  is necessary to prevent him from  acting  in  a prejudicial  manner, the authority has to be satisfied  that if the person is not detained, he would act in a prejudicial manner  and that inevitably postulates freedom of action  to the  said  person  at the relevant time.   If  a  person  is already in jail custody, how can it rationally be postulated that  if he is not detained, he would act in  a  prejudicial manner?  At the point of time when an order of detention  is going  to be served on a person, it must be patent that  the said  person would act prejudicially if he is  not  detained and  that is a consideration which would be absent when  the authority  is dealing with a person already  in  detention." The  same  principle was reiterated in the  case  of  Makhan Singh  Tarsikka(2).   There is however  a  vital  difference between  the facts of those two cases and the facts  in  the present  appeals.  Those two cases were concerned  with  the service  of  an  order of  detention  under  the  Preventive Detention Act or under the Rules on a person who was in jail in one of two (1) A. I.  1964 S.C. 334.       (2) A. I. R. 1964 S.C. 1120 453 circumstances, namely-(1) where he was in jail as an  under- trial  prisoner and the period for which he was in jail  was indeterminate,  or (2) where he was in jail as  a  convicted person  and the period of his sentence had still to run  for some  length  of time.  In those cases the  service  of  the order  of  detention under the Preventive Detention  Act  or under  the Rules in jail would not be legal for one  of  the necessary  ingredients about which the authority had  to  be satisfied would be absent, namely, that it was necessary  to detain  the person concerned which could only be  postulated

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of  a person who was not already in prison.  In the  present cases,  however,  the appellants were  not  under  detention either as under-trial prisoners for an indeterminate time or as  convicted persons whose sentences were still to run  for some  length  of time.  They were detained  under  the  Pre- ventive Detention Act by an order of November 7, 1962  which had been reported to Government for approval and which order could only remain in force for 12 days under s. 3 (3) of the Preventive Detention Act unless in the meantime it had  been approved  by  the State Government.  The  State  Government, however,  decided on November 10, 1962, to revoke the  order of the Commissioner of Police under the Preventive Detention Act  and to pass an order itself under the Rules.  In  those circumstances,  the principle of the two cases  referred  to above  would not in our opinion apply, for the detention  of the  appellants  depended  upon the approval  of  the  State Government.   The  State  Government,  however,  decided  to revoke the order of November 7, 1962 and instead decided  to pass  an  order  under the Rules on  the  same  day,  namely November  10, 1962.  In these circumstances it would  be  in our opinion an empty formality to allow the appellants to go out  of jail on the revocation of the order of  November  7, and to serve them with the order dated November 10, 1962  as soon  as they were out of jail.  Where the detention is  not of  the  two  kinds considered in  the  cases  of  Rameshwar shaw(1)  and Makhan Singh Tarsikka (2 ) and is either  under the  Preventive  Detention Act or under the Rules,  and  its duration is dependent upon the will of the State Government, we  cannot  see  any reason for holding that  if  the  State Government decides 1964 S.C. 334.        (2) A. I. R. 1964 S.C. I 120. 454 to  revoke  an earlier order of detention it cannot  pass  a fresh  order of detention the same day and serve it  on  the detenu  in jail, for the two- orders are really of the  same nature  and are directed towards the same purpose.   Further the  order  of the Commissioner dated November 7,  1962  was subject  to  the approval of the  State  Government  without which  it  could  only be in force for 12  days.   In  these circumstances  the order passed by the State  Government  on November  10 under the Rules when it had decided  to  revoke the  order  of  November 7, 1962, would in  our  opinion  be perfectly  valid  so far as the time of the  making  of  the order  was concerned and its service in jail on the  persons who  were  detained  not as  under-trials  or  as  convicted persons but as detenus, could not be assailed on the  ground on which the order of detention was assailed in the cases of Rameshwar   Shaw(1)  and  Makhan  Singh  Tariskka(2).    The principal  of  those  two cases cannot  in  our  opinion  be applied to a case where a fresh order of detention is passed after the cancellation or revocation of an earlier order  of detention.  The contention therefore that the making of  the order  of detention on November 10, 1962 or its  service  in jail  in these cases, makes the detention illegal,  must  be negatived. It is next urged that the detaining authority has failed  to arrive at that kind of satisfaction which the Rules require. This  contention  is based on the words of the  order  dated November  10, 1962.  Rule 30 inter alia lays down  that  the State  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 India and civil defence, the public safety, the maintenance of  public order,   India’s   relations  with   foreign   powers,   the maintenance of peaceful conditions in any part of India, the

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efficient conduct of military operations or the  maintenance of  supplies  and  services essential to  the  life  of  the community,  it  is  necessary so to do, may  make  an  order directing  that  the person be detained.  Now the  order  of November 10, 1962 is in these terms:- "No.  S.B.III/DOR.1162-IV Home Department (Special) (1) A.I.R. 1964 S.C. 334.  (2) A.I.R. 1964 S.C.1120. 455                            ORDER               "Whereas  the  Government  of  Maharashtra  is               satisfied with respect to the person known  as               Shri  Shamrao Vishnu Parulekar of Bombay  that               with a view to preventing him from acting in a               manner  prejudicial to the defence  of  India,               the public safety and the maintenance of  pub-               lic  order,  it  is  necessary  to  make   the               following order:               "Now,  therefore,  in exercise of  the  powers               conferred upon it by rule 30 of the Defence of               India   Rules,   1962,   the   Government   of               Maharashtra  does hereby direct that the  said               Shri Shamrao Vishnu Parulekar be detained.               By  order and in the name of the  Governor  of               Maharashtra     Sd.   Deputy   Secretary    to               Government  of Maharashtra, (Home  Department)               Sachivalaya,   Bombay,   this  10th   day   of               November, 1962". The  contention of the appellants is that the first part  of the  order does not say that it is necessary to  detain  the appellants.   The words used in the first part of the  order are  "it is necessary to make the following order" and  then follows  the  second  part which says  that  the  Government directs that the said person be detained.  We are of opinion that  when the first part says "it is necessary to make  the following order", it in effect says that "it is necessary so to  do which is what r. 30 of the Rules  requires.   Reading the  order as a whole, in substance it does say that  it  is necessary to detain the person with a view to preventing him from acting in a manner prejudicial to the defence of India, etc.      In  r.  30 the words are "so to do" while  in  the order they     are  "to make the following order".  The  two expressions in our opinion mean the same thing and we cannot 456 accept the argument that the satisfaction necessary under r. 30  of  the Rules was not arrived at in these cases  by  the authority making the order. Then it is urged that as the State Government is  equivalant to the Governor, it is the Governor who should. be satisfied and  not the Home Minister as is the case according  to  the affidavit  filed  on behalf of the  State  Government.   The State  Government in this connection relies on the Rules  of Business,  copy  of  which has been made  available  to  us. These rules have been framed by the Governor under Art.  166 of  the Constitution for the more convenient transaction  of the  business  of Government and for  the  allocation  among Ministers of the said business.  In the affidavit on  behalf of the State Government reliance is placed on item 2 (b)  of the  First  Schedule to the Rules of Business  dealing  with subjects  allocated to the Home Department (Special),  entry (7)  which  provides for preventive  detention  for  reasons connected  with the security of a State, the maintenance  of public  order  or the maintenance of supplies  and  services essential  to  the  community.   During  the  hearing,   our attention was drawn to item (1) of the First Schedule to the

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Rules of Business dealing with subjects allotted to  General Administration  Department, entry (44), which  provides  for preventive  detention  for reasons connected  with  defence, foreign  affairs  or the security of India.  It  is  obvious from  the  Rules of Business that preventive  detention  has been  divided into two parts and allocated to two  different departments.   Where  preventive detention  is  for  reasons connected  with the security of a State, the maintenance  of public  order  or the maintenance of supplies  and  services essential  to  the community, it can be dealt  with  by  the Minister  in-charge  of  item 2 (b)  dealing  with  subjects allocated  to the Home Department (Special); but  where  the preventive detention is for reasons connected with  defence, foreign  affairs or the security of India, it can  be  dealt with  by  the  Minister  in-charge of  item  1  relating  to subjects allotted to the General Administration  Department. The detention order in the present cases states that it  was made with a view to preventing the appellants from acting in a manner prejudicial to the defence of India, the public 457 safety  and the maintenance of public order.  As the  deten- tion  order  mentions  both the defence  of  India  and  the maintenance  of  public order, such an order could  only  be made by a Minister who was in-charge both of item 1 relating to  subjects allotted to the General Administration  Depart- ment and of item 2(b) relating to subjects allotted to  Home Department  (Special).   In the affidavit on behalf  of  the State  the  order was sought to be justified on  the  -round that  it was made by the Home Minister in-charge of  item  2 (b)  relating to subjects allocated to the  Home  Department (Special).   We are of opinion that as the  detention  order was for reasons connected with the defence of India also, it could  not  be dealt with under item 2 (b), entry  (7)  only which  item  deals with subjects allocated to the  Home  De- partment (Special) and had to be dealt by a Minister who was in-charge  of both item 1 relating to subjects  allotted  to the  General  Administration  Department  and  item  2   (b) relating to subjects allotted to Home Department  (Special). In  the original affidavit filed on behalf of the  State  it was  however not clear whether the Minister who  dealt  with these orders was also in-charge of the subjects allotted  to the  General Administration Department but it was stated  at the  bar  that the Minister who dealt with  the  matter  and passed  the order on the basis of which the appellants  were detained  was in-charge not only of item 2 (b)  relating  to subjects allocated to the Home Department (Special.) but was also  in-charge of item 1 relating to subjects  allotted  to the General Administration Department.  We therefore  called upon  the  State  Government to file an  affidavit  to  that effect  and  an affidavit was filed on  December  21,  1963. That affidavit says that the order of November 10, 1962  was passed  by the Chief Minister who was at the  relevant  time in-charge  both of the General Administration Department  as well  as  the Home Department (Special).   We  have  already referred to the terms of the order of detention.  That order refers to three reasons as the basis for the order,  namely, (i) the defence of India, (ii) the public safety, and  (iii) the  maintenance of public order.  Now preventive  detention connected  with the defence of India could only  be  ordered under  the  Rules of Business by the Minister  who  was  in- charge of the General Administration Department. 458 while  preventive detention for reasons connected  with  the maintenance  of  public order could only be ordered  by  the Minister in-charge of subjects allocated to the Home Depart-

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ment  (Special).   The order therefore in the  present  case could  only be made by a Minister who was in-charge both  of subjects  allotted to the General Administration  Department and subjects allotted to the Home Department (Special).   In view  of the affidavit now filed it appears that  the  Chief Minister  was in-charge of both the departments and  in  the circumstances he could pass the order under challenge.   The contention under this head must therefore fail. The  next argument is that there is no order  of  allocation made  by  the Governor under Art. 166  of  the  Constitution after the passing of the Defence of India Ordinance and  the Rules  framed  thereunder and therefore  the  allocation  of business by the, Rules of Business which were enforced by an order of the Governor dated May 1, 1960 would not be of  any effect  in  allocating the subject of  preventive  detention arising  under  the Defence of India Ordinance Act  and  the Rules  to the Minister and the Governor should  have  passed the  order  of detention himself.  We are  of  opinion  that there  is no force in this contention.  Allocation of  busi- ness under Art. 166 (2) of the Constitution is not made with reference  to particular laws which may be in force  at  the time  the allocation is made; it is made with  reference  to the three lists of the Seventh Schedule to the Constitution, for the executive power of the Centre and the State together extends to matters with respect to which Parliament and  the Legislature  of  a  State may make  laws.   Therefore.  when allocation of business is made it is made with reference  to the  three  Lists  in  the Seventh  Schedule  and  thus  the allocation  in the Rules of Business provides for  all  con- tingencies which may arise for the exercise of the executive power.   Such  allocation  may be made even  in  advance  of legislation  made  by Parliament to be available  when  ever Parliament  makes  legislation conferring power on  a  State Government with respect to matters in List I of the  Seventh Schedule.   It  was therefore in our opinion  not  necessary that  there  should  have been an  allocation  made  by  the Governor under Art. 166 (3) of the power to detain under 459 the  Defence  of India Ordinance, Act and Rules  after  they were passed; it will be enough if the allocation of the sub- ject to which the Defence of India Ordinance, Act and  Rules refer has been made with reference to the three Lists in the Seventh  Schedule and if such allocation already exists,  it may  be  taken  advantage of if and when  laws  are  passed. Preventive detention is provided for in List 1, item 9,  for reasons  connected  with defence, foreign  affairs  and  the security  of  India, and in item 3 of List III  for  reasons connected  with the security of a State, the maintenance  of public  order, or the maintenance of supplies  and  services essential to the community.  The allocation of business made under Art. 166 is in pursuance of these entries in the three Lists  in the Seventh Schedule and would be available to  be used whenever any law relating to these entries is made  and power is conferred on the State Government to act under that law.  The contention of the appellants that fresh allocation should  have  been made under Art. 166 (3) by  the  Governor after the passing of the Defence of India Ordinance, Act and Rules must therefore fail. Lastly reliance is placed on ss. 40 and 44 of the Defence of India Act.  Section 40 gives power to the Central Government to  delegate  its powers under the Act or the Rules  to  any officer  or authority subordinate to the Central  Government or  to  any  State Government or any  officer  or  authority subordinate  to such Government or to any  other  authority, and  the  argument is that before the State  Government  can

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exercise  the  power conferred by r. 30, there has to  be  a delegation by the Central Government.  This argument in  our opinion  is  misconceived.   It is true  that  s.  40  gives authority  to the Central Government to delegate its  powers under  the  Act  or the Rules to the  State  Government  and others.   But no delegation under that section  is  required for  the  exercise  of the power under r. 30  by  the  State Government, for r. 30 itself lays down that the power there- in  can be exercised by the Central Government or the  State Government.   No further delegation therefore was  necessary in favour of the State Government in so far as the  exercise of power under r. 30 is concerned. 460 Next  it is urged that the order of detention does not  show that  s. 44 was kept in mind when it was made.   Section  44 lays down that "any authority or person acting in  pursuance of this Act shall interfere with the ordinary avocations  of life  and  the  enjoyment of property as little  as  may  be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence".  It is urged  that  an order of  detention  necessarily  interferes completely with the ordinary avocation of life of the person detained  and therefore before such an order could be  made, s.  44  should  be borne in mind.  Therefore  the  order  of detention is to be made when it is the only way of  carrying out  the purposes of the Act, for s. 44 provides that  there should   be  as  little  interference  with   the   ordinary avocations of life as possible under the Act.  The  argument further is that r. 30 (1) provides as many as eight  clauses which provide for the regulation of conduct of an individual and cl. (b) relating to detention, which amounts to complete interference with the avocation of life of the detenu  could only  be resorted to in view of s. 44 when it is shown  that no  other  way of regulating the conduct of the  person  de- tained  as provided in the other clauses of r. 30 (1)  would meet the needs of the situation.  So it is urged that unless the order shows on the face of it that the State  Government thought  that the detention was the only mode in  which  the purposes of the Act and the Rules could be carried out,  the order  would be bad in view of s. 44 of the Act.  We are  of opinion  that there is no force in this contention.   It  is true  that  s. 44 provides that there should  be  as  little interference  with  the  ordinary  avocations  of  life   as possible  when orders are made under the Act or  the  Rules; but  that does not mean that a detention order must show  on the face of it that the State Government had considered  the various clauses of r. 30 (1) and had come to the  conclusion that  the only way in which the purposes of the Act and  the Rules  could be carried out was by the use of cl. (b) of  r. 30  (1).   In  our opinion when the order says  that  it  is necessary to make an order of detention in order to restrain the  prejudicial activities mentioned therein it means  that that was the only way which the State Government thought was necessary to adopt in order to meet the situation.  It  will then 461 be for the detenu to show that the order had gone beyond the needs of the situation and was therefore contrary to s.  44. No such thing has been shown in the present cases and we are satisfied  that the orders in question cannot be said to  go beyond the needs of the situation, even assuming that s.  44 is  mandatory as urged on behalf of the appellants  and  not merely directory as urged on behalf of the State. The appeals therefore fail and are hereby dismissed.                                        Appeals dismissed

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