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Hari Prosad Agarwalla and anr. Vs. the State of Assam - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantHari Prosad Agarwalla and anr.
RespondentThe State of Assam
Excerpt:
.....to show for what period the detention is meant but whore the preliminary order is silent as to the period of detention it is obligatory for the government to state for what period the order of detention will be in force and if there is no mention of such a period it only implies that the government did not apply its mind as to the period for which the detention should continue and as such the order of detention is bad and is in contravention of the provisions of the act. it is, therefore, for the government to show that the orders of detention in these two cases are perfectly valid and in strict adherance to the law as laid down. medhi, government advocate appearing on behalf of the state contends that the order of detention for an indefinite period is good. his arguments may be divided..........upon the petitioner but hero the contention is that after the matter passed through the advisory board, a period ought to have been specified for which the detention would continue. the judgment in that allahabad high court case opens with the following passage:in these criminal miscellaneous cases the point that arises is whether an order of detention passed under section 3, preventive detention act, 1950 (act iv [4] of 1950) which does not specify the period of detention is valid.the implication of section 11 of the act not being fully considered in that decision i respectfully disagree with the view that has been expressed in one of the nine petitions heard together that an order of detention which does not specify the period of detention is by no means illegal.12. i am, therefore,.....
Judgment:

Deka, J.

1. These are two criminal miscellaneous cases filed on behalf of Hari Prosad Agarwalla alias Hari Prosad Dhanuka alias Hariya and Kiahenlal Dhanuka numbered respectively criminal Misc. cases Nos. 71/51 and 72/51. The petitions have been filed in both these cases tinder Article 226 of the Constitution of India for a writ of habeas corpus or appropriate writs with regard to the detention order passed by the Assam Government on the petitioners.

2. The facts are identical in both these eases and the same point of law arises for decision of this Court, namely, whether the orders of detention passed in both these matters are in contravention of Section 11, Preventive Detention Act of 1950, as amended by amending Act IV [4] of 1951. The orders of detention were passed under Sub-section (2) of Section 3, Preventive Detention Act of 1950 as amended by Act IV [4] of 1951, no period being specified, however, for which the detention was intended. Both these matters came up before the Advisory Board for consideration under Section 9, Preventive Detention Act and the Board unanimously reported that there was sufficient cause for the detention of the persons concerned, under Section 10(2) of the Act whereupon the Government confirmed its original order as passed on 5.9.1951 in both the oases without naming any period for which this order of detention will be in force or how long the detention will continue.

3. Mr. Lahiri appearing for the petitioners submits that an order of detention is invalid unless the period of detention is specified by the appropriate Government when the order of detention is confirmed by the Central or State Government under Section 11 of Act IV [4] of 1951.

4. Section 11(1), Preventive Detention Act (Act IV [4] of 1951) runs as follows:

In any ease where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.

This provision definitely lays down that the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and Sub-section (2) of Section 11 says that where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.

5. The point, therefore, for consideration is whether an order of detention for an indefinite or unspecified period is good in view of the wordings of Section 11(1) or the scheme of the Preventive Detention Act itself. For the sake of brevity, I shall denote 'Preventive Detention Act of 1950' by the word 'Act' in my judgment.

6. It has been contended on behalf of the petitioners that the Act lays down the procedure by which the detention order has to be passed and how it has to be confirmed or revoked when thought necessary. This procedure has to be strictly followed. And once the Government confirms an order of detention, - it should decide for what period the detention is meant to continue, though it does not disentitle the Government to free the detente earlier when they consider it fit, but it is necessary that the appropriate Government should apply its mind at the time of confirmation of the order of detention foe what period the order of detention will stand. In those cases where the term of detention is specified in the preliminary order passed under Section 3 of the Act, mere confirmation under Section 11(1) of the Act is enough to show for what period the detention is meant but whore the preliminary order is silent as to the period of detention it is obligatory for the Government to state for what period the order of detention will be in force and if there is no mention of such a period it only implies that the Government did not apply its mind as to the period for which the detention should continue and as such the order of detention is bad and is in contravention of the provisions of the Act.

7. I quite agree with the view expressed in the Special Bench case of this Court reported in Kishorilal Bahati v. State A.I.R. 1951 Assam 169 (S.B.) that no person shall be deprived of his life or personal liberty except according to the procedure established by law, as prescribed under Article 21 of the Constitution of India. It is, therefore, for the Government to show that the orders of detention in these two cases are perfectly valid and in strict adherance to the law as laid down.

8. Mr. D.N. Medhi, Government Advocate appearing on behalf of the State contends that the order of detention for an indefinite period is good. His arguments may be divided into two branches - (1) that the Preventive Detention Act nowhere lays down the maximum period for which an order of detention may be passed by the appropriate Government and as such mere confirmation of the order of detention is good, even though for an indefinite period; (2) that the Government need not state in writing for what period the detention will continue because Section 11, Amending Act (IV [4] of 1951) says that the Government will continue the detention of the person concerned for such period as it thinks fit and it does not prescribe that the Government should pass an order prescribing or limiting the period of detention as Section 3 itself under which the original order of detention is passed, does not speak of any period being mentioned.

9. In support of the first branch of Mr. Medhi's argument he relies on the Supreme Court case reported in A.K. Gopalan v. State of Madras : 1950CriLJ1383 and lays stress on para. (33) where Kania C.J., says that Section 11, Preventive Detention Act is not ultra vires the Constitution because it does not state definitely for what maximum period an order of internment may continue. There the identical point did not arise for consideration as in this case i.e. whether a particular order of detention is good or bad because the duration of detention was not specified at any stage. Mr. Lahiri's contention is not that the Act is ultra vires. He admits that the Act is intra vires but contends that the order detaining a person for an indefinite period is not in keeping with the provision of the Act or in strict pursuance of Section 11(1) of Act IV [4] of 1951.

11. Another case on which Mr. Medhi relies in support of his argument is reported in Ram Adhar v. State : AIR1951All18 . That case is clearly distinguishable, from the case before us. There was no period mentioned in the order of detention when it was first passed as in this case before the matter came up before the Advisory Board but after the Advisory Board had reported that in its opinion there was sufficient cause for detention, the Government while confirming the order of detention specified that the detention will run for a fixed period. Apart from other alleged irregularities, the order of detention was challenged only in one case as illegal on the ground that the period was not initially mentioned when notices of detention under Section 3, Preventive Detention Act 1950 was served upon the petitioner but hero the contention is that after the matter passed through the Advisory Board, a period ought to have been specified for which the detention would continue. The judgment in that Allahabad High Court case opens with the following passage:

In these Criminal Miscellaneous cases the point that arises is whether an order of detention passed under Section 3, Preventive Detention Act, 1950 (Act IV [4] of 1950) which does not specify the period of detention is valid.

The implication of Section 11 of the Act not being fully considered in that decision I respectfully disagree with the view that has been expressed in one of the nine petitions heard together that an order of detention which does not specify the period of detention is by no means illegal.

12. I am, therefore, of the opinion that none of these cases really helps us in deciding the present issue before us.

13. With regard to the second branch of Mr. Medhi's argument to the effect that the Government need not express or specify for what period the detention will continue, my opinion is that it is totally misconceived. The Government has to express its intention in a way at the time of passing an order, so that its implication may be known to the person whose interest is affected or whose personal liberty is infringed. A mental reservation on the part of the Government might go to any extent. When the Preventive Detention Act itself definitely suggests that the detention should be for such period as it thinks fit, it is only just and natural that the person whose liberty is, interfered with, should know for what period he will have to be in detention or his movement will be restrained.

14. It is clear that the Amending Act (Act IV [4] of 1951) is definitely an improvement on the original Preventive Detention Act (Act IV [4] of 1950) - and all cases of detention are made referable to the Advisory Board and a time limit has been set during which the matter should be referred to the Advisory Board and the report of the Advisory Board has to be submitted. It is there, fore inconceivable that a person should be allowed to suffer imprisonment or detention under the scheme of this Act for an indefinite or unlimited period. This will only be as harassment. The wordings of Section 11 of the Amending Act make it clear that the appropriate Government has to consider the report submitted by the Advisory Board and only in cases where the Advisory Board finds sufficient reasons for detention - the Government may confirm the detention order. It is clear that the confirmation is not an automatic process, but the Government has to apply its mind and exercise its discretion and after the order of confirmation is passed, the Government is authorised under the Act to continue the detention of the person concerned for such period as it thinks fit. To my mind it is absurd to suppose that what Section 11(1) of the Act 'suggests is that the Government will just confirm the order as originally passed under Section 3 of the Act and continue detaining the person till and uncertain future date when the order of detention may be again considered with a view to terminate the detention or allow it to continue till the Act itself expires. I do not think such a construction of Section 11 of the Act is conceivable. If we take the whole of the sentence together into consideration that the 'Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit' - it will only imply that the Government has to think about the fitness and duration of detention and they cannot do without it. If it does not think or apply its mind to this aspect of the matter, it amounts to non-compliance of the provisions of this section.

15. The learned Government Advocate urges before me that the appropriate Government is not required to pass fresh orders of detention under Section 11(1) of the Act but it is simply authorised to continue detention for such period as it thinks fit. He obviously misses the implication of the words 'may confirm the detention order' which implies, that the Government has to pass a fresh order either confirming or varying the preliminary order of detention and it can continue detention of the person only after making such an order which the detenu is entitled to know.

16. My opinion, therefore, is that the order of detention for an indefinite period or without specifying the period at the time of confirmation as provided under Section 11(1) of the Act is bad in law and has to be set aside in keeping not only with the provisions of law but also according to the principle of natural justice. I hold therefore that the orders of detention in both these cases have been in contravention of the strict provisions of law and they have to be set aside. I accordingly sot aside the detention order in case of both the petitioners and the petitions are allowed and it is directed that the petitioners be set at liberty forthwith.

17. In consideration of my decision on the point as I have dealt with, I do not think it necessary to deal with the other points which Mr. Lahiri formulated.

18. This judgment will cover both the Criminal Miscellaneous cases.


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