# AJAIB SINGH v. STATE OF PUNJAB

- **Citation:** [1965] 2 S.C.R. 845
- **Court:** Supreme Court of India
- **Decided:** 1965-02-02
- **Case number:** Criminal Appeal No. A 252 of 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ajaib-singh-v-state-of-punjab-3353
- **Pages:** 8

## Headnote

A
AJAIB SINGH
v.
STATE OF PUNJAB
February 2, 1965
B [K. SuBBA RAO, K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH
AND S. M. SIKRI, JJ.]
J..11fmc1 of India A.ct, 1962 (A.ct 51 of 1962), s. 3(2)(15)(i)-
De/mc• of India Rule., 1962 r. 30A.-Power of Detention-Exercise--
By whom.
Code of Criminal Procedure, 1898 (A.ct 5 o/ 1898), n.
10(1),
C
10(2) & ll~dditional District Magistrate-/n¥tsted with powers under
s. 10(2)-Whether District Magistrate-Officer Incharge
of District
Magistrate's Office-But absence of Appointment under s. 10(1)-I/
District Magistrate.
The Additional District Magistrate of Amritsar who was invested
with the powers of a District Maptrate under s. 10(2) of the Code
of Criminal Procedure,
1898 was under instructioo& from the State
Government in charge of the office of the District Magistrate, when the
D
District Magistrate was transferred.
No order appointing him aa District Magistrate as required by s. 10( 1) of the
Code was
however
passed. During the period he was in charge of the office of the District
Magistrate he passed an order detaining the appellant under r. 30(1)(b)
of the Defence of India Rules, 1962. In appeal by special leave from
Punjab High Court, it was contended by the appellant, Iha~ in the absence
of an order under a. 10(1) of the Code the Additional District Map
E
trate could n<>i be the District Magistrate for the purpose of passing an
order of detention under Defence of India Act and the Rules, and consequently the order Qf detention passed by him was without authority and
liable to be set aside.
HELD : The order of detention was not in accordance with the
Defence of India Act and Rules and must be set aside, as be was not
then the District Magistrate, but only an Additional District Magistrate.
F
[852 FJ
The Defence of India Act and the Rules show unmistakably that
the powers of detention can only be exercised by the State Government
or an officer or authority to whom it might be delegated but who shall
in no case be lower in rank than a District Magistrate. An Additional
Dmrict Magistrate is below the rank of a District Magistrate. (849 E-F;
851 H-852 A]
G
Even if an Additional Di.strict Magistrate hid been appointed with
all the powexs under the Code and also under any other law for the time
being in force, be was still not the District Magistrate unless the Government appointed him as such under s. 10(1) of the Code of Criminal
Procedure. [850 D-E)
Even if an officer was exercising the powers of the District Magiatrate on there being a vacancy in the office of the District Magistrate he
H
was still not the District Magistrate until be was appointed as such under
s. 10(1) of the Cede of Criminal Procedure._ [850 F-0]
The instructions could not take the place of a notification under
s. 10(1) of the Code. (851 C-D]
846
SUPllBMB COUllT llBPOR.TS
[1965) 2 S.C.R.
CllIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
A
252 of 1964.
Appeal by special leave from the judgment and order dated
July 30, 1964 of the Punjab High Court in Criminal Miscellaneous No. 742 of 1962.
M. C. Setalvad, and Naunit Lal, for the appellant.
I. N. Kaushal, Advocate-General for the State of Punjab and
R. N. Sachthey, for the respondents.

## Text

A
AJAIB SINGH
v.
STATE OF PUNJAB
February 2, 1965
B [K. SuBBA RAO, K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH
AND S. M. SIKRI, JJ.]
J..11fmc1 of India A.ct, 1962 (A.ct 51 of 1962), s. 3(2)(15)(i)-
De/mc• of India Rule., 1962 r. 30A.-Power of Detention-Exercise--
By whom.
Code of Criminal Procedure, 1898 (A.ct 5 o/ 1898), n.
10(1),
C
10(2) & ll~dditional District Magistrate-/n¥tsted with powers under
s. 10(2)-Whether District Magistrate-Officer Incharge
of District
Magistrate's Office-But absence of Appointment under s. 10(1)-I/
District Magistrate.
The Additional District Magistrate of Amritsar who was invested
with the powers of a District Maptrate under s. 10(2) of the Code
of Criminal Procedure,
1898 was under instructioo& from the State
Government in charge of the office of the District Magistrate, when the
D
District Magistrate was transferred.
No order appointing him aa District Magistrate as required by s. 10( 1) of the
Code was
however
passed. During the period he was in charge of the office of the District
Magistrate he passed an order detaining the appellant under r. 30(1)(b)
of the Defence of India Rules, 1962. In appeal by special leave from
Punjab High Court, it was contended by the appellant, Iha~ in the absence
of an order under a. 10(1) of the Code the Additional District Map
E
trate could n<>i be the District Magistrate for the purpose of passing an
order of detention under Defence of India Act and the Rules, and consequently the order Qf detention passed by him was without authority and
liable to be set aside.
HELD : The order of detention was not in accordance with the
Defence of India Act and Rules and must be set aside, as be was not
then the District Magistrate, but only an Additional District Magistrate.
F
[852 FJ
The Defence of India Act and the Rules show unmistakably that
the powers of detention can only be exercised by the State Government
or an officer or authority to whom it might be delegated but who shall
in no case be lower in rank than a District Magistrate. An Additional
Dmrict Magistrate is below the rank of a District Magistrate. (849 E-F;
851 H-852 A]
G
Even if an Additional Di.strict Magistrate hid been appointed with
all the powexs under the Code and also under any other law for the time
being in force, be was still not the District Magistrate unless the Government appointed him as such under s. 10(1) of the Code of Criminal
Procedure. [850 D-E)
Even if an officer was exercising the powers of the District Magiatrate on there being a vacancy in the office of the District Magistrate he
H
was still not the District Magistrate until be was appointed as such under
s. 10(1) of the Cede of Criminal Procedure._ [850 F-0]
The instructions could not take the place of a notification under
s. 10(1) of the Code. (851 C-D]
846
SUPllBMB COUllT llBPOR.TS
[1965) 2 S.C.R.
CllIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
A
252 of 1964.
Appeal by special leave from the judgment and order dated
July 30, 1964 of the Punjab High Court in Criminal Miscellaneous No. 742 of 1962.
M. C. Setalvad, and Naunit Lal, for the appellant.
I. N. Kaushal, Advocate-General for the State of Punjab and
R. N. Sachthey, for the respondents.
The Judgment of the Court was delivered by
B
Wanchoo J.
This appeal by special leave from the judgment C
of the Punjab High Court was heard on January 20, 1965. We
then pronounced a short order allowing the appeal and directing
the release of the detenu and indicated that reasons would follow
later. We now proceed to give the reasons.
fl'
The appellant was detained under r. 30 (I) (b) of the Defence D
of India Rules (hereinafter referred to as the Rules) by an order
passed by Shri Lall Singh on June 30, 1964.
That order was
passed by Shri Lall Singh as District Magistrate of Amritsar. The
only point that has been urged before us on behalf of the detenu
is that Shri Lall Singh was not the District Magistrate of Amritsar
on June 30, 1964 and therefore he had no power to pass the order E
of detention under the Defence of India Act, No. 51 of 1962,
(hereinafter referred to as the Act) and the Rules.
It is necessary to set out certain facts with respect to the position Shri Lall Singh was occupying on June· 30, 1964 when the
order of detention was passed. It appears that Shri P. N. Bhalla
y
was the District Magistrate of Amritsar in April 1964. He was
ordered to be transferred to the Secretariat by an order passed on
April 23, 1964. At that time Shri Lall Singh was the Additional
District Magistrate of Amritsar and had been inter alia invested
under s. 10 (2) of the Code of Criminal Procedure (hereinafter
referred to as the Code) with all the powers of a District Magistrate G
under the Code or under any other law for the time being in force
by an order which had been passed on April 10, 1963. Further
when the order of transfer of Shri Bhalla was made, instructions
were issued that Shri Bhalla should hand over charge to Shri Lall
Singh, Additional Deputy Commissioner, Amritsar who would
hold the current charge of the post of Deputy Commissioner,
H
Amritsar, till further orders.
It appears that Shri Bhalla
handed over charge of the office of the Deputy Commis-
AJAIB SINGH v. STATE (Wanchoo, /.)
847
A sioner to Shri Lall Singh on the afternoon of May 15, 1964 in
accordance with the instructions above mentioned, and thus Shri
Lall Singh was in current charge of the office of Deputy Commissioner, Amritsar from May 16, 1964. No order appointing Slui
Lall Singh as District Magistrate of Amritsar as required under
s. 10 (1) of the Code was passed.
But as Shri Lall Singh was
B already invested as an Additional District Magistrate with all the
powers of the District Magistrate under the Code and under any
other law for the time being in force, he carried on the duties of
the office of the District Magistrate also. At the same time.it may
be noted that no other officer was posted as District Magistrate
C from May, 16 till June 30, 1964 when the order of detention was
passed. The new District Magistrate Shri Iqbal Singh took over
charge as District Magistrate, Amritsar; on July 1, 1964 and
Shri Lall Singh was then appointed as District Magistrate, Hissar.
On these facts the contention on behalf of the detenu is that
D Shri Lall Singh was not the District Magistrate of Amritsar on
June 30, 1964, even though he signed himself as District Magistrate when he passed the order of detention. It is submitted that
in the absence of an order under s. 10 (1) of the Code appointing
Shri Lall Singh as District Magistrate of Amritsar, he could not
be the District Magistrate of Amritsar for the purpose of passing
I: an order of detention under the Act and the Rules, whatever might
be his powei;:s to carry on the administration of the district as an
Additional District Magistrate and Additional Collector under the
powers conferred on him by various notifications of April 1963.
Consequently the order of detention passed by him on June 30,
F
1964, was without authority and liable to be set aside.
In reply, the learned Advocate General for the State of Punjab
has raised two points. In the first place he urges that the notification delegating to all District Magistrates the State Government's
powers to detain persons under r. 30 of the Rules is law and relies
in this connection on the decision of this Court in I ayantila/ A mratG lal Shodhan v. F. N. Rana(1). It is further contended that by the
notification of April 1963, Shri Lall Singh was invested with all
the powers of a District Magistrate under the Code and under
any other law for the time being in force and would therefore
have the power to detain persons under the law contained in the
notification delegating the power of detention to all District
H
Magistrates. In the second place it is urged that as Shri Lall
I, A.I.R. 1964 S. C. 648.
848
SUPREME COURT REPORTS
(1965] 2 S.C.ll.
Singh was holding charge of the current duties of tile office of A
the Deputy Commissioner and as no one else had been posted
in Amritsar between May 16 and June 30, 1964 as District Magistrate he was in fact and in law the District Magistrate of Amritsar.
We do not think it necessary for purposes of this case to
decide the first point raised by the learned Advocate General, for
B
we l)ave come to the conclusion that no officer other than the
District Magistrate of a District can pass an order of detention
under r. 30 of the Rules in view of the provisions of the Act and of
the Rules to which we shall now refer.
Section 3(1) of the Act
gives power to the Central Government by notification in the OlliC
cial Gazette to make such rules as appear to it necessary or
expedient for securing the defence of India and civil defence, the
public safety, the maintenance of· public order or the efficient
conduct of military operations, or for maintaining supplies and
services essential to the life of community.
Section 3 (2) then
provides for the making of rules for various purposes without D
prejudice to the generality of the powers conferred by s, 3 (1 ),
and the 15th clause thereof provides for detention. The relevant
portion of that clause necessary for our purposes reads thus :-
"(15). Notwithstanding anything in any other law
for the time being in force-
(i) the apprehension and detention in custody of
any person whom the authority empowered by the rules
to apprehend or detain {the authority empowered to
detain not being lower in rank than that of a District
Magistrate), suspects, on grounds appearing to that
authority to be reasonable, of being of hostile origin
or having acted, acting, being about to act or being
likely to act in a manner prejudicial to the defence of
India and civil defence, the security of the State, the
public safety or interest, the maintenance of public
order, India's relations with foreign States, the maintenance of peaceful conditions in any part or area of
India or the efficient conduct of military oJierations, or
with respect to whom that authority· is satisfied that his
apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner."
It would be seen that s. 3 (2) (I 5) (i) which is the source <if power
to detain according to the Rules to be framed thereunder itself
-E
F
G
H
' '
•
AJAIB SINGH v. STATE (Wonchoo, /.)
849
A Jays down that the authority empowered to detain shall not be
lower in rank than that of a District Magistrate.
Then we came to s. 40 (2) of the Act, which gives power to
the State Government to delegate its powers to any officer or
authority subordinate to it.
This power of delegation, however,
B must be read harmoniously with s. 3 (2) (15) and therefore under
s. 40 (2) the State Government cannot delegate its power to
detain to any officer below the rank of a District Magistrate.
Rule 30 of the Rules then provides for detention and under that
rule the power is conferred on the Central Government or the
State Government to detain any person.
That power of the
c State Government can however be delegated under s. 40 (2) to
any officer subordinate to it. But as we have already indicated
the power of delegation must be read harmoniously with s. 3(2)(15)
and therefore the State Government
cannot
delegate
the
power to detain to any officer who is lower in rank than the
District Magistrate.
The position is further clearly brought out
D in r. 30-A which provides for review of a detention order made
by an officer. It is made clear there also that the officer shall
in no case be lower in rank than a District Magistrate.
The
effect of these provisions thus is that the power of detention can
either be exercised by the State Government or by its delegate
who however can in no case be lower in rank than a District
J: Magistrate. The Act and the Rules therefore show unmistakably
that the power of detention can only be exercised by the State
Government or an officer or authority to whom it might be
delegated but who shall in no case be lower in rank than a
District Magistrate.
F
We may in this connection contrast the language of s. 3 (2)
of the Preventive Detention Act, No. 4 of 1950, which lays down
that any of the following officers, namely :-
(a) district magistrates,
(b) additional district magistrates specially emG
powered in this behalf by the State Government,
(c) ..
(d) ..
may exercise the powers conferred by s. 3 (1) (a) (ii) and (iii). If
the intention under the Act and the Rules was that the Additional
H District Magistrate may also exercise the power of detention conferred thereunder we would have found a provision similar to
that contained in the Preventive Detention Act.
850
SUPIUIM'.11 COtmT REPORTS
[1965) 2 S.C.R.
Two questions then arise on the view we hold that no A
officer below the rank of a District Magistrate can exercise the
power of detention under the Act and the Rules.
The first is
whether Shri Lall Singh was the District Magistrate of Amritsar
on June 30, 1964. Secondly if he was not the District Magistrate
on that date, could he as Additional Disb.ict Magistrate exercise B
the power of detention and that would depend upon whether an
Additional District Magistrate is of the same rank as the District
Magistrate or below him in rank? Nows. 10 (I) of the Code
provides for the appointinent of a District Magistrate and lays
down that "in every district outside the presidency-towns, the
State Government shall appoint, a Magistrate of the first class,
C
who shall be called the District Magistrate". The appoinb.nent
of a District Magistrate therefore has to be made under s. IO (I).
Section 10(2) then gives power to the State Government to
appoint any Magistrate first class to be an Additional District
Magistrate and such Additional District Magistrate shall have all
or any of the powers of a Disb.ict Magistrate under the Code or D
under any other law for the time being in force as the State
Government may direct. But even if an Additional District
Magistrate has been appointed with all the powers under the Code
and also under any other law for the time being in force, he is
still not the District Magistrate unless the Government appoints
him as such under s. 10 (1) of the Code. Further s. 11 of the E
Code envisages the contingency of the office of the District Magistrate becoming vacant. It provides that where this contingency
arises, any officer succeeding temporarily to the chief executive
administration of the district shall, pending the orders of the State
Government, exercise all the ·powers and perform all the duties
respectively conferred and imposed by the Code on the District F
Magistrate. But even if an officer is exercising the powers of the
District Magistrate on there being a vacancy in the office of the
District Magistrate he is still not the District Magistrate until he
is appointed as such under s. 10(1) of the Code.
We have therefore to see whether Shri Lall Singh was appointed G
as District Magistrate of Amritsar under s. IO (I) of the Code.
As to that it is admitted that there was no notification appointing
Shri Lall Singh as the District Magistrate of Amritsar under
s. 10(1) of the Code.
All that the Advw..,ate General can point
out is the instruction issued by the Governor of the Punjab
when transferring Shri Bhalla who was the District MagisH
Irate of Amritsar to the effect that Shri Bhalla should hand
over charge to Shri Lall Singh who will hold the current
•
AJAIB SINGH v. STATB (Wanchoo, /.)
851
A charge of the office of the Deputy Commissioner, Amritsar. This
means that there was a temporary vacancy on the transfer of
Shri Bhalla and Shri Lall Singh temporarily succeeded to the chief
executive administration of the district
As such he would be
entitled to exercise the powers of the District Magistrate under
the Code under s. 11. Further as he had been empowered as
B Additional District Magistrate to exercise powers of the District
Magistrate under any other law for the time being in force, he
would exercise those powers also by virtue of being so authorised.
But even though Shri Bhalla may have gone away after handing
over charge on the afternoon of May, 15, 1964 Shri Lall Singh
could not and did not become the District Magistrate of Amritsar
C
in the absence of a notification under s. l 0 { l ) of the Code by
the State Government.
The instructions to which we have
already referred cannot in our opinion take the place of a notification under s. IO (l) of the Code. Therefore though Shri Lall
Singh may be exercising all the powers of the District Magistrate
D by virtue of his being an Additional District Magistrate under the
notification issued in Apnl 1963 and also by virtue of s. 11 of
the Code he was not the District Magistrate of Amritsar in Jaw
on June 30, 1964.
It is true that when passing the order he
showed his designation as District Magistrate and that may be
because Shri Bhalla who was the District Magistrate had gone
E
away and no other officer had replaced him till June 30, 1964.
The transfer of Shri Bhalla would not automatically make Shri
Lall Singh, the District Magistrate of Amritsar, in the absence of
a notification under s. l 0 (I) of the Code. When we say this we
should not be understood to mean that a notification appointing
a District Magistrate must necessarily recite in terms that it was
F
being made under s. 10 of the Code; all that we mean is that
there must be an order of the State Government appointing an
officer as District Magistrate of the district.
In the absence of
such an order no officer can claim to be the District Magistrate
of the district. The instructions which were issued in this case
however do not say that Shri Lall Singh was being appointed the
G
District Magistrate of the district in place of Shri Bhalla. If
that were so, we would have found a proper notification to that
effect, published in the Gazette. We, therefore, hold that Shri
Lall Singh was not the District Magistrate of Amritsar when he
made the order on June 30, 1964.
H
The next question is whether an Additional District Magistnte
can be said to be of the same rank as the District Magistr-.i..e.
We are clearly of the opinion that an Additional District Magis-
852
SUPIUIMB COURT llEPOllTS
[196S) 2 S.C.R.
trate is below the rank of a District Magistrate and cannot be A
said to be of the same rank as the District Magistrate. We may
in this connection refer to s. 10(2) of the Code which shows that
an Additional Distdct Magistrate need not necessarily be conferred with all the P9Wers of the District Magistrate under the
Code or .any other law for the time being in force. He can be
an Additional District Magistrate though he may be exercising
B
only some of the powers of the District Magistrate.
Clearly,
thereforel an Additional District Magistrate must be an officer
below the rank of the District Magistrate. Further sub-s. (3) of
s. 10 bears this out. That sub-section says that for certain purposes, the Additional District Magistrate shall be deemed to be
subordinate to the District Magistrate.
Therefore even if the c
Additional District Magistrate is invested with all the powers of
a District Magistrate under the Code or under any other law for
the time being in force he is still below the District Magistrate
for certain purposes mentioned in s. 10(3) of the Code. Besides -
there is only one District Magistrate in a district and all other
0
magistrates whether they be Magistrates first class or even Additional District Magistrates must obviously be bel~w him in rank.
As s. 3 (2) ( 15) of the Act provides that the power of detention
cannot be exercised by any officer below the rank of the District
Magistrate, such power cannot be exercised by an Additional District Magistrate who is in our opinion an officer below the rank E
of a District Magistrate. The order of the detention passed by
Shri Lall Singh on June 30, 1964 when he was not the District
Magistrate of Amritsar but only an Additional District Magistrate is not in accordance with the Act and the Rules and must
be set aside.
F
Appeal alluwed.