Skip to content


Bhupati Goswami Vs. C.R. Krishnamurthi and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantBhupati Goswami
RespondentC.R. Krishnamurthi and ors.
Excerpt:
- - 1. this is an application under article 226 of the constitution of india praying for a writ in the nature of habeas corpus and directed against the order of detention passed on 2nd march 1968 by the district magistrate, kamrup, under section 3(2) of the preventive detention act, 1950, hereinafter referred to as 'the act'.2. the facts appearing in the petition as well as in the counter-affidavit are as follows: the advisory board took into consideration the representation of the petitioner and other relevant records and also gave personal hearing to the petitioner and finally recommended the detention of the petitioner. the district magistrate in his affidavit has affirmed that as there was possibility of the petitioner being released on bail and he was satisfied from his activities..... p.k. goswami, j.1. this is an application under article 226 of the constitution of india praying for a writ in the nature of habeas corpus and directed against the order of detention passed on 2nd march 1968 by the district magistrate, kamrup, under section 3(2) of the preventive detention act, 1950, hereinafter referred to as 'the act'.2. the facts appearing in the petition as well as in the counter-affidavit are as follows:the petitioner was arrested by the police on 26th february 1968 at a place called darrangagiri, goalpara, under section 54 of the criminal procedure code. he was later taken to gauhati under custody on 28th february 1968 and was lodged in gauhati jail. as many as five police cases were started against him by the police while he was in detention. one o the cases ended.....
Judgment:

P.K. Goswami, J.

1. This is an application under Article 226 of the Constitution of India praying for a writ in the nature of habeas corpus and directed against the order of detention passed on 2nd March 1968 by the District Magistrate, Kamrup, under Section 3(2) of the Preventive Detention Act, 1950, hereinafter referred to as 'the Act'.

2. The facts appearing in the petition as well as in the counter-affidavit are as follows:

The petitioner was arrested by the Police on 26th February 1968 at a place called Darrangagiri, Goalpara, under Section 54 of the Criminal Procedure Code. He was later taken to Gauhati under custody on 28th February 1968 and was lodged in Gauhati Jail. As many as five police cases were started against him by the Police while he was in detention. One o the cases ended in final report and the petitioner was discharged. While he was still in detention, he was served with the order of detention under Section 3(2) of the Act issued by the District Magistrate and the same was served on him on 3rd March 1968. He was served with the grounds of detention on 7th March. He submitted his representation addressed to the State Government through the Superintendent, Gauhati Jail, on 19th March. The order of the District Magistrate was approved by the Government on 12th March although this order was served on the petitioner on 28th March 1968.

The petitioner states that he secured bail orders in connection with several criminal cases which were registered by the Police against him and even his bail bonds were accepted by the Magistrate on 13th March 1968, and although release order from the Magistrate was passed in connection with those cases, he was kept in detention under the impugned order. The District Magistrate in the counter-affidavit has stated that 'the State Government placed the representation along with the grounds and the report of the Dist. Magistrate on 30.3.68 before the Advisory Board. The Advisory Board took into consideration the representation of the petitioner and other relevant records and also gave personal hearing to the petitioner and finally recommended the detention of the petitioner. The Government on receipt of the recommendation passed the final order on 22nd May, 1963. This order was communicated to the petitioner on 28th June 1968.

3. The learned Counsel for the petitioner urges the following grounds questioning the validity of the detention order:

(1) The order of detention is invalid as the same was served on the petitioner while he was in detention.

(2) The Advisory Board which finally considered the matter was not the Board to which the case of the petitioner had been referred by the State Government.

(3) The order of confirmation by the State Government was beyond three months of the date of detention.

(4) The grounds which have been furnished to the petitioner are vague, illusory, irrelevant and non-existent, and, as such, the petitioner could not make an effective representation against the detention order and hence the order of detention is invalid.

4. It is admitted that the impugned order was served on the petitioner while in jail custody in connection with some other offences. The District Magistrate in his affidavit has affirmed that as there was possibility of the petitioner being released on bail and he was satisfied from his activities that immediately on his release on bail he would indulge in like activities prejudicial to the security of the State and maintenance of public order, he passed the impugned order on 2nd March 1968. The petitioner also has admitted that but for this detention order, he would have been released on bail. In this context the point that arises for consideration is whether an order under the Preventive Detention Act will be invalid in law if the same is served while the petitioner is in custody. The learned Counsel draws our attention to a decision of the Supreme Court in the case of Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 , where the following passage occurs:

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 mariner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, as a result of a remand order passed by a competent authority, it cannot 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 satisfaction that it is necessary to detain a person for the purpose at preventing him from acting in a prejudicial manner is thus the basis of the order under Section 3(1)(a), and this basis is clearly absent in the case of a person already in jail custody.

In this connection the Supreme Court has referred to two decisions of this Court reported in AIR 1951 Assam 43, Labaram Deka v. The State and AIR 1952 Assam 175, Haridas Deka v. State. Their Lordships also noticed another decision of this Court reported in AIR 1953 Assam 97, Sahadat Ali v. State of Assam. Their Lordships noticed that the detention order in Sahadat Ali's case AIR 1953 Assam 97, was passed in anticipation of his release order in a police case. The Court observed as follows:

These facts clearly illustrate how an order of detention can be passed against a person even though he may be in detention or jail custody, and also show that the said order should be served on the detenu after he is released. The test of proximity of time is fully satisfied in such a case and no invalidity or infirmity is attached to making of the order or its service.

From the aforesaid observations of the Supreme Court, the learned Counsel submits that an order of detention, even though it may be passed while he is in detention, cannot be served while he is still behind the bars and such an order served in that manner is invalid in law. The facts of Rameshwar Shaw's case : 1964CriLJ257 , are as follows: He was detained under the Preventive Detention Act by an order of the District Magistrate, Burdwan, on 9.2.1963 and the same was served on 15.2.63 while he was lodged in Burdwan Jail where he had been kept in pursuance of the remand order of a competent Court which had taken cognizance of a criminal complaint against him. In this case there was nothing to show that there was any prospect of his release. In the circumstances of this case, the Supreme Court ordered release of Rameshwar Shaw. The decision in Rameshwar Shaw's case : 1964CriLJ257 , was made on 11.9.1963 and a month later on 11.10.1963 the Supreme Court had to consider this decision in Makhan Singh's case : 1964CriLJ269 . Gajendragadkar, J., as he then was, speaking for the Court, while referring to Rameshwar Shaw's case : 1964CriLJ257 , observed as follows:

It would be recalled that in that case also, Rameshwar Shaw was ordered to be released on the ground that he was served with the order of detention whilst he was in jail and not on the ground that the making of the order was invalid. In fact, this Court made no finding on that question and based its decision on the narrow ground that the service of the order was invalid.

While setting aside the order of detention in Makhan Singh's case : 1964CriLJ269 at para 18, their Lordships observed as follows:

The result is, the appeal is allowed and the order of detention passed against the appellant is set aside on the ground that the service of the order is invalid and is outside the scope of Rule 30(1)(b) of the Rules.

It may be mentioned that their Lordships have held that there is no difference so far as this matter is concerned whether the detention is under Rule 30(1)(b) of the Defence of India Rules or under Section 3(1)(a) of the Preventive Detention Act. The aforesaid two cases had again to be considered in another decision of the Supreme Court in the case of Smt. Godavari Shamrao v. State of Maharashtra : 1964CriLJ222 , on 29.1.1964 and Gajendragadkar J., as he then was, was a party to this decision as his Lordship was in the two earlier decisions. In Godavari's case : 1964CriLJ222 , Wanchoo J., as he then was, speaking for the Court, while referring to the aforesaid two decisions Rameshwar Shaw and Makhan Singh Tarsikka's cases : 1964CriLJ257 respectively observed as follows:

Those two cases' referring to Rameshwar Shaw and Makhan Singh Tarsikka's cases : 1964CriLJ257 respectively, '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 circumstances, namely - (1) where he was in jail as an undertrial 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 has 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 of a person who was not already in prison.

Observing as above, their Lordships upheld the order of detention in the case as the petitioners in that case were detained under the Preventive Detention Act by the orders of the Commissioner of Police which when sent to the State Government for approval, the latter revoked the same and passed orders of detention under the Defence of India Rules, and the order of the State Government was served on the petitioners while they were already lodged in jail, in pursuance of the earlier order of detention of the Commissioner of Police. In viewing this aspect, their Lordships observed in Godavari's case, : 1964CriLJ222 , as follows:

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.

Even so, Mr. Mazumdar, the learned Counsel for the State, submits that the decision of the Supreme Court in the case of Gopi Ram v. State of Rajasthan : 1967CriLJ279 , is an authority for the proposition that the order of detention can be served on an undertrial prisoner and the same cannot be held to be invalid on that ground. He draws our attention to the following passage in para 8 at p. 242:

Since he was already in jail custody, the argument proceeds, how could the District Magistrate be reasonably satisfied that his detention in jail was necessary for preventing him from acting in a manner prejudicial to public safety, etc? Reliance was strongly placed by the learned Counsel on certain observations in Makhan Singh's case : 1964CriLJ269 , in support of his contention that if a person is already in jail, the service of an order of detention on him is bad. As we read that decision as well as the one in Rameshwar Shaw's case : 1964CriLJ257 , the validity of an order of detention does not necessarily depend upon whether the order was served on him when he was or was not in jail custody. All the surrounding circumstances have got to be borne in mind for deciding whether or not the order is valid.

Their Lordships of the Supreme Court have consistently held in the aforesaid decisions Rameshwar Shaw, Makhan Singh Tarsikka and Godavari's cases : 1964CriLJ257 respectively that the service or an order or detention while a person is lodged in jail as an undertrial prisoner or as a convict for some length of time, makes the order invalid in the eye of law. In Gopi Ram's case : 1967CriLJ279 , their Lordships have not decided anything to the contrary. They have only held that the validity of the order of detention does not necessarily depend upon whether the order was served on him when he was or was not in jail custody. This observation of their Lordships will have to be understood in the context the case under their consideration. In Gopi Ram's case : 1967CriLJ279 , the order of detention was originally passed by the District Magistrate, Ganganagar, on 5.4.1963 and the same could not be served as the man was absconding. He was arrested on 1.11.1964 for offences under Sections 307/395, Indian Penal Code and was released on bail. The detention order dated 5.4.1963 was served on him on 4.11.1964.

The original order of detention was cancelled by the Government on 18.1.1965 because of some defect and he was released on 21.1.1965. A fresh order of detention had been passed by the District Magistrate, Ganganagar, on 19.1.1965. The order of cancellation was served on him on 21.1.65 and he was released in pursuance thereto. Immediately thereafter, he was arrested for offences under Sections 307/395, I.P.C., under a warrant issued by the Sub-Divisional Magistrate, Karampur. Prior to this on 19.1.65 the District Magistrate, Ganganagar, made the impugned order of detention of the petitioner. This order was served on him in jail on 23.1.1965 while he was in detention in pursuance of the warrant issued by the Sub-Divisional Magistrate, Karampur. In the circumstances of this case, their Lordships observed as follows:

In these circumstances the order dated January 19, 1965, cannot but be regarded as being based upon the satisfaction of the District Magistrate regarding the necessity of the detention of the petitioner arrived at before the petitioner was detained in jail as an undertrial prisoner.

And their Lordships refused to set aside the detention order in this case merely because the detention order was served while he was in jail custody. It may be noticed hers that in Gopi Ram's case : 1967CriLJ279 , the District Magistrate, Ganganagar, passed the impugned order of detention while another officer, namely, Sub-Divisional Magistrate, Karampur, had issued the warrant of arrest which also introduces a distinguishing feature in this case. Coming to the Assam cases AIR 1951 Assam 43 and AIR 1952 Assam 175, in Labaram's case AIR 1951 Assam 43, he was an undertrial prisoner in connection with a non-bailable police case and there was no prospect of is release either on bail or otherwise. In Haridas' case AIR 1952 Assam 175, he was also in detention in connection with a criminal case and awaiting trial. It was not established that there was any prospect of his release from detention in that case, From the aforesaid discussion it may be safely concluded that as an abstract proposition of law, it cannot be said that all orders of detention served on a person while in jail custody are for that reason alone in-valid.

The facts and circumstances of each case will have to be judged. It is, however, absolutely clear that if the person is lodged in jail in connection with a non-bailable case or when he is undergoing a sentence for some length of time, the order of detention cannot be served on him while in such detention. Although an order can be passed while the person is in detention provided the other conditions under Section 3(1)(a) of the Preventive Detention Act are satisfied, such an order cannot be served on the person while in detention. The position will not be the same if the petitioner is arrested not in connection with any particular offences but with a view to detain him under the Preventive Detention Act. Then the order passed under the Preventive Detention Act fulfilling the other conditions laid down under the law can be sewed on him even while he is in detention. Every case will have, therefore, to be judged on its own facts and circumstances. The danger of 'double detention' must be in case and not in posse; it must be a real danger and that is the test which must be applied in determining the validity of an order of detention, when served in jail custody.

It is sufficient to state as will be shown below that this danger is absent in the instant case, while their Lordships of the Supreme Court found that to be present in the cases of Rameshwar Shaw : 1964CriLJ257 and Makhan Singh : 1964CriLJ269 , but not in the cases of Godavari : 1964CriLJ222 and Gopi Ram : 1967CriLJ279 , as already discussed herein above. Having laid down the law as above, we have to consider whether in the case of this petitioner it can be said that he fulfils the test laid down for holding that the order of detention served on him while he was in jail is invalid. The petitioner's own case is that, but for the detention order, he would have been released on bail in all the cases brought against him as bail bonds had already been accepted by the Magistrate. He also claims that he was already discharged in the other police case. If that is the position, the service of the order of detention on the petitioner while he was in jail custody cannot be said to be invalid on that score. As their Lordships of the Supreme Court observed 'it would 13e, in our opinion, an empty formality' to allow him to get out of the jail and then take him back behind the bars after service of the detention order. The contention of the learned Counsel, therefore, cannot be accepted.

5. It appears, the State Government constituted an Advisory Board under the Preventive Detention Act by notification dated 30th May, 1961. That Board was constituted by Hon'ble Mr. Justice S.K. Dutta, as he then was, as Chairman with two other members. While the said Board was functioning, a second Board was constituted by the State Government by notification dated 15th February 1968, with Mr. K.P. Mathur as Chairman with two other members. The material portion of this notification dated 15th February 1968 may be read:

GOVERNMENT OF ASSAMOrders by the GovernorPolitical 'A' DepartmentNotification.

The 15th February 1968.

No. PLA. 18/68/31. - In exercise of the ?powers conferred by Sub-section (1) of Section 8 of the Preventive Detention Act, 1950 (Act 4 of 1950), the Governor of Assam is pleased to constitute a second Advisory Board with the following gentlemen as Members with immediate effect to review the cases of persons detained under the Preventive Detention Act:

1. Shri K.P. Mathur, Vigilance Commissioner, Assam, Shillong.

2. Shri N.K. Chaudhury, Presiding Officer, Labour Tribunal, Gauhati.

3. Shri Rambhadra Medhi (Retired District Judge), Member, Foreigners Tribunal, Nowgong.

The Governor is also pleased to appoint Shri K.P. Mathur to be the Chairman of the Board..

There is then the third notification of the State Government dated 1st May, 1968, whereby the two earlier Boards were dissolved and a new Board was reconstituted with Mr. K.P. Mathur as Chairman. The material portion of the notification may be read:

GOVERNMENT OF ASSAMOrders by the GovernorPolitical (A) DepartmentNotification.

The 1st May, 1968.

No. PLA. 18/68. - The Governor of Assam is pleased to dissolve the two Advisory Boards constituted under Notification No C. 526/57/75, dated 30th May, 1961, and No. PLA. 18/68/31, dated 15th February 1968, and in exercise of the powers conferred by Sub-section (1) of Section 8 of the Preventive Detention Act, 1950 (Act 4 of 1950), the Governor of Assam is further pleased to reconstitute the Advisory Board ?with the following gentlemen as Members, with immediate effect, to review the cases of persons detained under the Preventive Detention Act:

1. Shri K.P. Mathur, Vigilance Commissioner, Assam, Shillong.

2. Shri A.S. Khongphai, Advocate.

3. Shri S.R. Khaund, Advocate, Assam High Court, Gauhati.

The Governor is also pleased to appoint Shri K.P. Mathur to be the Chairman of the reconstituted Advisory Board..

The learned Counsel submits that when the order of detention was served on the petitioner on 3rd March, 1968, the only Board that was in existence was the Board constituted under the Government notification dated 15th February 1968. On 2nd April 1968 when the case was placed by the State Government before the Board, this Board was functioning. The petitioner's case was considered by a different Board which was reconstituted under the Government notification dated 1st May, 1968, and, as such, it cannot be said that the Government has referred the matter to this Board within thirty days from the date of detention as required under Section 9 of the Act.

5-A. Section 8(1) of the Act is as follows:

8. Constitution of Advisory Boards. - (1) The Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards for the purposes of this Act.

(2) Every such Board shall consist of three persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, and such persons shall be appointed by the Central Government or the State Government, as the case may be.

(3) The appropriate Government shall appoint one of the members of the Advisory Board who is or has been a Judge of a High Court to be its Chairman, and in the case of a Union Territory, the appointment to the Advisory Board, of any person who is a Judge of the High Court of a State shall be with the previous approval of the State Government concerned:

Provided that nothing in this sub-section shall affect the power of any Advisory Board constituted before the commencement of the Preventive Detention (Second Amendment) Act, 1952, to dispose of any reference under Section 9 pending before it at such commencement.

Section 9 also may be read:

9. Reference to Advisory Boards. - In every case where a detention order has been made under this Act, the appropriate Government shall, within thirty days from, the date of detention under the order, place before the 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 by such officer under Sub-section (3) of Section 3.

The Board that has heard the petitioner's case on 8th May, 1968 is the reconstituted Board and is a successor to the Board that was constituted in the Government notification dated 15th February, 1968. Under the General Clauses Act, Section 18 provides that in any Central Act or Regulation made after the commencement of the Act, it shall be sufficient, for the purpose of indicating the relation of a law to the successor or any functionaries or of corporations having perpetual succession, to express its relation to the functionaries or corporations. Section 17 of the said Act also refers to substitution of functionaries. Besides, under Section 21 of the same Act, where, by any Central Act or Regulation, a power to issue any notification, order, scheme, rule, form, or by-laws is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any notifications, orders, rules or by-laws so issued. From all these provisions, it is clear that there can be no valid objection, to the present Board considering the case of the petitioner which was pending before the earlier Board, The objection of the learned Counsel in that behalf is overruled.

6. Thirdly, it is contended that the order of confirmation by the State Government was beyond three months of the date of detention. According to the petitioner, the order of confirmation was passed by the Government on 28.6.1968 which was clearly beyond three months of the date of detention. According to Mr. Mazumdar the order was actually passed by the Government on 22.5.68 when the Chief Minister approved of the release order against seven persons out of a good number including the petitioner. Since the Chief Minister has agreed to the note put up by the Chief Secretary for releasing only seven persons out of a large number of detenus whose detention orders have been held to be on sufficient grounds by the Advisory Board, he submits that by a process of elimination it can be definitely inferred that the Government in the same breath must be deemed to have confirmed the orders of detention in the cases of those whose names do not appear in the list of the release order. Section 11 of the Act may be read:

11. Action upon the report of Advisory Board.

(1) In any case 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.

(2) In any case 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.

The scheme of the Preventive Detention Act is that an order of detention can be passed when valid grounds exist to satisfy the detaining authority to pass such order in conformity with the conditions laid down under the law and if the order is passed by an officer the same has to be approved by the Government within twelve days of the order. In other words, the order of the District Magistrate, which is the order in the instant case, will automatically lapse on the expiry of twelve days unless Government approves of the order under Section 3(3). Under Section 7, the grounds have to be communicated to the detenu not later than five days from the date of detention and he may submit his representation to the Government against the order, if he so desires. Under Section 9, the Government has to refer the case of the detenu to the Advisory Board within thirty days from the date of detention and place before the Board the grounds on which the order has been made and the representation, if any, made by the person and in case the order had been made by an officer, his report under Sub-section (3) of Section 3.

The Advisory Board has to submit his report to the Government within ten weeks from the date of detention under Section 10. It is only on receipt of this report that Government is required to consider under Section 11 what further orders it will pass under the said section. While Section 11(2) gives no option to the Government to pass any order other than releasing the detenu on the report of the Board holding that there is no sufficient ground for his detention, under Section 11(1) it is open to the Government to release the detenu even though the Advisory Board has held that the order of detention is passed on sufficient grounds. The words used in Section 11(1) are 'the appropriate Government may confirm the detention order and continue the detention of the person concerned' whereas the words used in Section 11(2) are 'the appropriate Government shall revoke the detention order'. The word 'may' in Section 11(1) goes to show that it leaves the Government with an option to consider the case of the detenu even at that stage whether it will confirm the order and continue the detention or pass any other order. No option is left to Government in the case under Section 11(2).

That being the position, It is absolutely necessary that on receipt of the Advisory Board's report, the Government considers the case of the detenu and makes an order confirming the order of detention. We have considered the submission of Mr. Mazumdar in all its aspects but are unable to accept the submission that there was any order of confirmation in this case earlier than 28.6.68. That being the position, the order detaining the person is beyond three months which was the limit for the order of the District Magistrate which must be deemed to have spent its force on the expiry of three months in absence of confirmation of the Government within that period. The scheme of the Act shows that Government with all the time limits laid down at various stages is left with only about a fortnight after the receipt of the Advisory Board's report within ten weeks from the detention order, to consider the matter. All these time limits laid down with care are with a view to protect the liberty of a citizen who is kept under detention without a trial. The preventive detention is a very serious thing and the provisions of law in that behalf must be strictly construed, and the safeguards which are provided under the law should be liberally interpreted. Mr. Mazumdar, however, contends that even though the order of confirmation by the Government is held as being passed on 28.6.68, such an order need not be passed within three months of the date of detention. In making this submission he draws our attention to Article 22(4) of the Constitution which may be read:

22 (4). No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7); or

(b) such person is detained in accordance with the provisions of any law made by Parliament under Sub-clauses (a) and (b) of Clause (7)

We may also read Article 22(7):

22 (7). Parliament may by law prescribe-

(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an enquiry under Sub-clause (a) of Cause (4).

Mr. Mazumdar's argument is that Article 22(4) by itself has not put any restriction of time limit for passing the order of confirmation within three months or any particular time limit. He contends that since the Advisory Board has already approved of the order of detention, detention beyond three months is automatically permitted under the law and there is no time limit laid down for the Government to pass the confirming. order after receipt of this approval of the Board. The argument, however, fails to take note of the legal position that Article 22(4) enables the Legislature to make necessary law providing for preventive detention and it has further laid. down certain conditions for such legislation. In conformity with the imperative directions in Articles 22(4) and 22(7), Parliament has passed the Preventive Detention Act. This Act has laid down various time limits as noticed earlier. Since this law which has been passed by Parliament, has laid down that preventive detention cannot be ordered for more than a period of twelve months from the date of detention under Section 11A, it has provided for various safeguards with some provision for scrutiny by a responsible Advisory Board regarding the sufficiency of the grounds on which the detention order is passed.

The order of the District Magistrate, as noted earlier, lapses after twelve days if no Government approval is given. This necessarily means that Government approval must be given within this short period laid down and it cannot be contended that the order of approval can be passed beyond expiry of twelve days and since the order is after all approved, the detention cannot be held to be invalid. Similarly, the time limit of thirty days within which the Government has to place the case of the detenu before the Advisory Board is necessary because the Board itself has to exercise its powers in conformity with the procedure laid down under Section 10 and even for this a time limit is fixed, namely the Board has to submit its report to the Government within ten weeks of the detention. After receipt of the Board's approval, it is incumbent on the Government to consider the detenu's case for the purpose of confirming the order if it so desires in order that the detention may be continued. Prior to the passing of the confirmation order by the Government, the order that exists is that of the District Magistrate, which is in force because of the Government approval, given within twelve days of the detention.

It has to be given a further lease of life beyond three months by making an order of confirmation by the Government and unless this order of confirmation is passed within a period of three months, there will be no force in the order of detention. The order will automatically lapse for not securing the confirmation of the Government within the period of three months. Section 11(1) can only be construed in this manner in order to safeguard the interests of the detenu as provided under the law. All the time limits laid down under the Act from after the passing of the first order must be held to be mandatory provisions and although Section 11(1) does not in terms mention any time limit, the time limit of three months is implicit in the entire scheme of the Act and the setting of the provisions. The view which we have taken finds support in a decision in the case of Sangappa Mallappa v. State of Mysore AIR 1959 Mys 7, and with respect, we agree with the views expressed therein on the interpretation of Section 11(1) read with Article 22(4) of the Constitution. The impugned order of detention must therefore be struck down in absence of a confirming order of the Government within three months from the date of detention. The third contention of the Learned Counsel for ?the petitioner must, therefore, be upheld.

7. In the view we have taken on the above ground, it is not necessary to consider the fourth ground urged by the learned Counsel for the petitioner. We may, however, make it clear that detention orders have to be passed with care and the provisions of law and the safeguards that are laid down must be kept in view by the detaining authority. When the detaining authority passes an order, it has got to be reasonably satisfied on the materials and informations placed before it. When the grounds are given to the detenu, those grounds which are the conclusions of the detaining authority on the facts disclosed at that stage, must be clear and specific. There must not be any vagueness about them. The object is to enable the detenu to make an effective representation against the order and unless the grounds are given with sufficient particulars on which he is expected to make a representation, the salutary provision for making the representation will become meaningless and illusory. Another factor which the detaining authority must consider is that the grounds which are furnished must have direct connection with the object for which the detention order is passed.

If the detention order is passed with a view to prevent the person from acting in any manner prejudicial to the security of the State or the maintenance of public order, the grounds given must have reasonable connection with those objects. Each ground has to be considered by the detaining authority on the touch-stone of the object for prevention of which the particular order is passed. If any of the grounds is found to be irrelevant inasmuch as it has no reasonable probative value in respect of the object for which the detention order is made, the presence of such a ground will vitiate the order of detention. It is true that the Court is not final arbiter of the sufficiency or otherwise of the satisfaction determination of which must rest with the detaining authority, but when the matter comes before the Court the detaining authority has got to establish that the grounds are relevant and germane and not foreign to the object, for which the order is passed. In this particular case, the learned Counsel for the petitioner has strenuously contended that some of the grounds are absolutely irrelevant, illusory and non-existent, and, as such, the order is liable to be set aside even on that score. In the view we have taken on the third ground, as aforesaid, we are, however, not inclined in this case to pursue this matter.

8. In the result, the application is allowed and the impugned order is hereby quashed in exercise of our powers under Article 226 of the Constitution. The petitioner shall be released forthwith. Issue Writ accordingly.

M.C. Pathak, J.

9. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //