1. This is a petition by one Kishorilal Bahati under the provisions of Article 226 of the Constitution of India, directed against an order of detention, dated 24-2-51, passed against him under the Preventive Detention Act of 1950 (Act IV of 1950) as amended by Act IV of 1951, by the District Magistrate, Sibsagar. The grounds of detention as communicated to the petitioner are these:
I. That on 6-2-51 Md. Sarif Ulla, Prof. Agriculture College, Borbheta went to your shop to purchase yarn, but you refused to give the yarn saying that you had no stock.
2. That on 7-2-51 Jogesh Chandra Charkravarty of Jorhat town purchased a pair of 10 yds. Dhuti from your shop @ Rs. 20/- for which you refused to issue any cash memo. The ex-mill rate of the pair of dhuti was 7-3-3 pies plus the excise duty -/5/9 pies.
3. That on 8-2-51 Narayan Sarma, B. L. of Jorhat town went to you and wanted to buy textile dhuti, but you did not give him dhuti saying that you had no dhuti in your stock.
4. That on 9-2-51 Jatindra Kumar Saikia of Majgaon went to your shop to purchase dhuti, but you refused to give dhuti saying that you have no stock.
5. That on 9-2-51 Nani Gopal Dey of Jorhat town purchased a pair of dhuti from your shop @ Rs. 18/- though the ex-mill rate was Rs. 7-8-9 pies plus excise duty -/5/4 pies. You refused to issue cash memo for the same.
6. That on 10-2-51, Dharmeswar Bora of Gohain Tekelagaon went to your shop in search of textile dhuti, yarn and markin for his own use; but you refused to sell saying that you had no such goods in stock.
7. That on 12-2-51, Debeswar Sarma, B. L., Ex-congress President, Provincial Congress Committee, Assam, sent his relative Jnandan Sarma of Jorhat town to purchase dhuti and accordingly he went to your shop, but you refused saying that you had no such stock.
8. That on 16-2-51, Dinesh Chakravarty of Jorhat town again went to you and wanted to buy textile dhuti, but on this occasion also you stated that you had no dhuti in stock.
9. That on 16-2-51, your firm, namely, Madanlal Kishorilal of Jorhat town, was searched under a search warrant and 270i pairs of textile dhuti, 6 thans of markin, and 67 thans (including pieces) of long cloth, and 8 bundles of yarn recovered from your shop house.
Besides these, there are other facts which cannot be disclosed to you for the public interest.
2. The petition before us was filed on 5-4-51. On 30-5-51 certain facts were brought to our notice, namely, that the statutory Advisory Board, in pursuance of the provisions of Section 8 of the Preventive Detention Act of 1950, was for the first time constituted by the Government of Assam by a Notification No. C. 216/51/159, dated 3-4-51. The following three gentlemen were appointed members of the Advisory Board: (1) Sri Rohini Kumar Chaudhuri (2) Sri Ikram Rasul and (3) Sri Kedar-mal Brahmin. The petitioner alleged that his case was not considered by all the three members, but by two only, as Sri Rohini Kumar Chaudhuri, a Member of Parliament, did not attend the sittings of the Board. In the original petition filed by the petitioner, various grounds were taken, but it is unnecessary to deal with them, as we propose to dispose of the petition on the ground taken in the supplementary petition, dated 30-5-51.
3. Mr. Medhi for the State concedes that the case of the petitioner has not been considered by all the three members of the Board, but he argues that there is no provision in the Preventive Detention Act (IV of 1950) as amended by Act IV of 1951, which lays down that the case of a detenu shall be considered by all the members constituting the Advisory Board, and not by a majority of them. We think this contention is quite opposed to the provisions of Act IV of 1950 as amended by Act IV of 1951. Under Act IV of 1950, in pursuance of Section 8 of that Act, the Advisory Board was to consist of 2 persons. No provision was made as to the procedure which was to be followed in case there was a difference of opinion between the two members of the Board constituted under Section 8 of Act IV of 1950. By the amending Act IV of 1951, in Sub-section (2) of Section 8 of Act IV of 1950, for the word 'two' the word 'three' has been substituted. The proviso added by the amending Act of 1951 to Sub-section (2) of Section 8 of the Act of 1950 completely negatives the contention of Mr. Medhi that after 22-2-51 the case of a detenu can be considered by a majority of the members of the Board. The proviso added to Sub-section (2) of Section 8 of Act IV of 1950 is in these terms:
Provided that where, immediately before the commencement of the Preventive Detention (Amendment) Act, 1951, any reference under Section 9, is pending before an Advisory Board, such Board may, for the purpose of disposing of that reference only, consist of two persons.
4. We think the language of the proviso makes it clear that after 22-2-51, when the amending Act came into force, no reference can be disposed of by two members of the Advisory Board. Section 10 of Act IV of 1950, as amended, deals with the procedure to be followed by the Advisory Board. Originally no provision was made under Section 10 of Act IV of 1950 for cases in which a difference of opinion arose between the two members of the Advisory Board. Such a provision has now been made by Section 10 of the amending Act of 1951 by the insertion of Sub-section 2-A after Sub-section (2) of Section 10 of Act IV of 1950. Sub-section 2-A reads:
When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board.
It is not disputed by Mr. Medhi that the order of detention passed against the petitioner is governed by the Preventive Detention (Amendment) Act of 1951 (IV of 1951). Having regard to the proviso added to Sub-section (2) of Section 8 and to Subsection 2-A inserted after Sub-section (2) of Section 10 Of Act IV of 1950 by the amending Act of 1951, there cannot be any doubt that references made in respect of orders of detention passed on or after 22-2-51 must be considered by all the three members of the Advisory Board.
5. The next question for our consideration is — what is the effect of the order of detention passed against the petitioner on 24-2-51 by reason of the fact that the petitioner's case has not been considered by all the three members of the Advisory Board?
6. We think the effect is that the petitioner is entitled to immediate release. Article 21 of the Constitution of India lays down that
no person shall be deprived of his life or personal liberty except according to procedure established by law.
It has been held by the Supreme Court of India in 'A.K. Gopalan v. State of Madras' that Article 21 applies to orders passed under a Preventive Detention Act, A State can justify continuance of detention of a person if it has followed the procedure established by law, namely procedure as laid down in the Preventive Detention Act of 1950 (IV of 1950) as amended by Act IV of 1951. In view of the admission of Mr. Medhi that the petitioner's case was not considered by all the three members of the Advisory Board, it follows that the fundamental right of the petitioner as guaranteed by Article 21 of the Constitution of India has been infringed, and that the petitioner is entitled to be released forthwith.
7. Mr. Lahiri for the petitioner has referred us to Chalmers & Hood Philips' 'Constitutional Law', 6th edition, page 453, in which reference is made to the following observations of Lord Atkin in. 'Liversidge v. Anderson' 1942 A C 206:
English Law every imprisonment is 'prima facie' unlawful, and that it is for a person directing imprisonment to justify his act. The only exception is in respect, of imprisonment ordered by a Judge, who from the nature of his office, cannot be sued.
and contended that the State, in this case, having failed to observe the procedure established by law respecting order of detention, the petitioner is entitled to claim an immediate release. We think the contention is sound and must prevail.
8. In a case from Nigeria reported in 'Eshugbayi Eleko v. Officer Administering Govt. of Nigeria' AIR (18) 1931 PC 248, Lord Alton, delivering the judgment of their Lordships of the Privy Council, observed:
As the executive, he (Governor) can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence, no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice.
This dictum of Lord Atkin applies with equal force to matters arising out of the Indian Preventive Detention Act of 1950.
9. In another case reported in 'Murat Patwa v. Province of Bihar' AIR (35) 1948 Pat. 135, the learned Judges of the Patna High Court quoted, with approval, the following dictum of Brett, L.J. in 'R. W. Enraght's Case' (1881) 6 QBD 376:
It is a general rule which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another, he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity, the court will not allow the imprisonment to continue.
Although in this case, I consider that irregularity a matter of substance, I should be of the same opinion if it were only a matter of form, because, as I said before, I take it to be a general rule that the Courts at Westminister will not allow any individual in this Kingdom to procure the imprisonment of another, unless he takes care to follow with extreme precision every form and every step in the process which is to procure that imprisonment. I consider this to be a wholesome and good rule, and to be in accordance with the great desire which English Courts have always had to protect the liberty of every one of Her Majesty's subjects.
10. The Madras High Court in a case reported in 'M.R.S. Mani v. District Magistrate, Mathurai' A.I.R. (37) 1950 Mad 162, referred to dictum of Brett, L.J., with approval, Kapur, J., in a case reported in 'Har Tirath Singh v. The Crown' AIR (37) 1950, E P 222, also quoted Brett, L.J., with approval.... Mr. Medhi for the state has, however, contended that the present petition is infructuous, having regard to the fact that the petitioner was released on parole in pursuance of Section 14 o1 the Preventive Detention (Amendment) Act of 1951, before the expiry of 6 weeks the duration prescribed for making a reference to the Advisors Board. Section 14 is in these terms:
The appropriate Government may at any time direct that any person detained in pursuance of a detention order may be released for any specified period either without conditions or upon such conditions specified in the direction as that person accepts, and may at any time cancel his release.
The answer to this contention is supplied by the language of Section 9 of the Preventive Detention (Amendment) Act of 1951 which lays down that
In every case where a detention order has been made under this Act, the appropriate Government shall, within six weeks from the date specified in Sub-section (2) place before an Advisory Board constituted by it under Section 8 the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer, also the report made by such officer under Sub-section (3) of Section 2.
'It seems to us plain from the language of Section 9 that the necessity for a reference to an Advisory Board is the subsistence of an order of detention and that it matters not that the detenu has been temporarily released in pursuance of Section 14 of the Act.
11. Our conclusion is that further detention of the petitioner is illegal as no reference was made to the Advisory Board in accordance with Section 9 of the Act. The result is that the petitioner is released forthwith. For reasons stated in our order dated the 13th June, 1951 the petitioner was ordered to be released on that date.
12. I agree.
Ram Labhaya, J.
13. I entirely agree with my Lord the Chief Justice in the conclusion that he has reached. I wish, however, to add a few words.
14. The petitioner was detained by an order dated the 24th February 1951. As provided by Section 9 of the Preventive Detention Act, 1951, as amended, the State Government had to place before the Advisory Board, as constituted by it under Section 8 the grounds on which the order had been made the representation, if any, made by the person affected by the order and report under Section 3, Sub-section (3) of the Officer who passed the detention order.
15. Under Section 10, the Advisory Board after considering the material placed before it or any other material that it may call for from the Government or from the person concerned has to submit its report to the appropriate Government within ten weeks from the date of detention. The report of the Advisory Board has to specify whether in the opinion of the Board there is sufficient cause for the detention of the person concerned or not, Where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of the persons concerned, the Central Government or the State Government, may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit under Section 11 of the Act. Where the Advisory Board reports that there is no sufficient cause for the detention of the persons concerned, the appropriate Government is under an obligation to revoke the detention order and cause the person detained to be released forthwith.
16. The petitioner has put in an affidavit alleging that though there was an Advisory Board consisting of three members, the State Govt. could not place the petitioner's case before it and that it has not been possible for all the three members of the Advisory Board to consider his case and to submit their report as required by Sections 9 and 10 of the let.
17. These allegations of fact contained in the affidavit of the petitioner have not been denied, The learned Government Advocate, merely argued ;hat the case could be considered by two members of the Advisory Board and if they came to the conclusion that the detention was necessary, the State Government could confirm the detention order under Section 11. He did not put in any counter-affidavit nor did he state that the case was considered by two members of the Board and that they had submitted their report.
18. The contention that two members of the Board could act in the absence of the third is opposed to the language of Sections 8 and 9 of the Act Clause (2) of Section 8, as amended, provides that the Board referred to in Clause (1) shall consist of three members. This clause also provides for their qualifications. Section 9 requires that when &. detention order has been made, the State Government shall place the case before the Advisory Board constituted under Section 8. The case, therefore, has to be put before the Board as constituted under Section 8. There is nothing in the language of Section 8 or Section 9 which suggests that the case can be placed before a majority of the members or before each one in turn. The language employed in these sections indicates that a joint deliberation by the Board was contemplated. This, conclusion is supported also by the express provisions contained in Section 10, which lays down that the Advisory Board, after considering the materials placed before it and after calling for such further information, as it may deem necessary, shall submit its report to the appropriate Government within ten weeks from the dates-specified in Clause (2) of Section 9. It is the Board that is to consider the material and to submit the-report. Only two members would not constitute the Board If there is a difference of opinion. amongst the members forming the Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board as provided: in Clause (2-A) of Section 10 as amended. This provision clinches the matter. It requires a consideration of the case by the members forming the Board and not by a majority thereof. It is only after joint deliberation of the matter by the members forming the Board that the opinion of majority is to prevail in case of difference of opinion. The relevant Sections (8, 9 and 10), do not at all indicate that consideration of the case by one or two members was contemplated. If the contention is> accepted, a great deal has to be read in the law which it does not contain. If two members of the Board could consider the case in the absence of the third, it may also be open to the Government to circulate the case to the members for eliciting; their opinion. This would be opposed to the provision contained in Section 10 of the amended Act In these circumstances, it is clear that in the-absence of an express provision allowing the majority of the members to consider the case in the absence of the third, the State Government would not be complying with the requirements of Section. 10 if it submits the case only to two members of the Board. In such a case, there would be no consideration of the case by the members forming, an Advisory Board.
19. The detention order has to be confirmed: or revoked under Section 11. If the Board imports-that there is sufficient cause for the detention of the persons concerned in its opinion, the appropriate Government may confirm the detention order and continue the detention of the persons concerned for such period as it thinks fit. If, on the other hand, the Advisory Board reports that there is no sufficient cause for the detention of the persons concerned, the appropriate Government is bound to revoke the detention order. In that case it has no option in the matter. Action under Section 11 can be taken only if the Advisory Board has reported in compliance with the requirements of Section 10. The report of the Advisory Board has to be submitted within ten weeks from the date specified in Clause (2) of Section 9. In this case there has been no consideration of the case by the Board as required by law. There could not, therefore, be any report of the Board within ten weeks as laid down in Section 10 of the Act. It is thus not possible for the State Government in this case to confirm the detention order under Section 11. Confirmation is possible only if the report of the Advisory Board has been received within ten weeks. The period of ten weeks has admittedly expired. In the absence of a report satisfying the requirements of law, the detention order now is incapable of confirmation. A report from the Advisory Board consisting even of all the three members now may not be due compliance with the law as there would be no reference to it according to law; nor would the report satisfy the requirements of Section 10. A detention order which is incapable of confirmation must be cancelled. The failure of the State Government to comply with the provisions contained in Sections 9 and 10 of the Preventive Detention Act as amended leads to this result. The order of detention may be valid when passed. It could not be confirmed unless the Advisory Board reports that there is sufficient cause for the detention of the persons concerned within ten weeks from the specified date. If a situation is created when confirmation of the order, according to law, is not possible, the order could not be allowed to stand.
20. The petitioner was temporarily released under Section 14 of the Act. In spite of this release his liability to detention under the order remains. The order may, therefore, be challenged if it has lost its force or validity. The petitioner has prayed for its reversal. His temporary release does not prevent him from claiming this relief. The order now is not capable of confirmation on account of the failure of the State Government to obtain from the Advisory Board a report to the effect that there is sufficient cause for the detention of the person concerned. The period within which such a report should have been obtained has already expired. The procedure prescribed in Sections 9 and 10 of the Act was to be followed regardless of the fact whether the petitioner was actually in detention or not. Even if the person concerned has been temporarily released, a reference to the Advisory Board within 6 weeks from the dates specified in Clause (2) of Section 9 is obligatory. Similarly, it is obligatory in the Board to submit its report within ten weeks from the date specified. Section 9 provides expressly that where a detention order has been made under this Act, the appropriate Government shall place the case before the Advisory Board within 6 weeks. Actual detention is not a necessary pre-requisite for a reference under Section 9. The failure of the State Government to follow the procedure laid down in Sections 9 and 10 cannot thus be explained away by the fact of temporary release of the petitioner. The release also affords no answer to the contention raised.
21. Provisions contained in Sections 9 and 10 of the Act do not lay down mere formalities attending arrest or detention under the Act. They confer on the person against whom an order for detention is issued certain valubale privileges. Non-compliance with the directions contained in them can cause substantial injury. Strict compliance with them is apparently necessary for justifying an order of detention. Detention without trial is a serious encroachment on the right of personal liberty. The one important safeguard allowed to the person against whom an order of detention is passed under this Act is to have his case considered by a duly constituted Board within the time fixed by the Act. Such a person can with abundant Justification demand strict compliance with the procedure designed to protect him from detention without sufficient cause. He can also invoke the famous dictum of Brett, L.J., reproduced by my Lord the Chief Justice in his Judgment and referred to with approval by the High Courts of Madras, Patna and East Punjab in detention matters.
22. For the reasons given above, the detention order must be reversed. On its reversal, the liability of the petitioner to further detention would cease and the petitioner could be declared as released.
23. Mr. Medhi for the State asks the Court to certify that this is a fit case for appeal to the supreme Court of India, under Clause (c) of Article 134(i). Mr. Medhi first referred us to Article 132(i) of the Constitution of India, but it is plain that before we can grant a certificate under that Article the case must involve a substantial question of law as to the interpretation of the Constitution of India. The interpretation involved in the case before us is interpretation of the Preventive Detention Act, and, not the Constitution of India.
24. As to the prayer for a certificate under the provisions of Article 134(1), we have laid down certain tests for our guidance in that behalf in 'Chowthmal Sharma v. Hiralal Patni' S.C. Appeal No. 4 of 1950 : AIR (38) 1951 Assam 38. We are not satisfied that this case answers any of the tests which we have laid down in that case. The present case merely involves the interpretation of certain sections of the Preventive Detention Act IV of 1950, as amended by Act 'IV of 1951' and the short point for our determination was whether a detenu is entitled to be released forthwith when his case has not been considered within the period prescribed by all the 3 members of the Advisory Board constituted under the Preventive Detention Act, as amended.
25. We have answered the point in the affirmative, Accordingly we decline to certify that this is a fit case for appeal to the Supreme Court.