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Vinayak Ramchandra Sakhalkar and Etc. Etc. Vs. D. Ramchandran, Commissioner of Police, Thane and Others Etc. - Court Judgment

LegalCrystal Citation
Overruled ByState of Manipur v Sanasam Ongbl
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petns. Nos. 90 and 76, 77 etc. etc. of 1985
Judge
Reported in1985(2)BomCR384; (1985)87BOMLR211; 1985MhLJ879
ActsConstitution of India - Article 22(4) and 22(5); Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3(2)
AppellantVinayak Ramchandra Sakhalkar and Etc. Etc.
RespondentD. Ramchandran, Commissioner of Police, Thane and Others Etc.
Excerpt:
.....the fact to the central government in section 3(5)--connotation of--mere despatch of report by state government within seven days to central government whether enough or even receipt of that report by central government, within seven days essential--effect of late receipt of report by central government on continued detention of detenu.;section 14 of the national security act, 1980 confers a supervisory power upon the central government and the power conferred is coupled with duty. the reports received by it under section 3(5) must be considered with reasonable expedition. submission of the report under section 3(5) is not a mere formality but it acts as an additional check or safeguard against improper exercise of power of detention. unless the fact of the detention is communicated..........contended before us that the continued detention of the detenus is bad in law since admittedly the state government has reported the fact of the detention to the central government, together with the grounds on which the orders have been made and other particulars having a bearing on the necessity for the order, after a period of seven days, from the date of approval of the order by the state government. it is not disputed by the learned counsel appearing for the union of india shri govilkar that the reports of the state government were received much after the said period. however, according to the learned public prosecutor shri more appearing for the state government and shri govilkar, the learned counsel for the union of india, the obligation of the state government under section 3(5).....
Judgment:
Dharmadhikari, J.

1. As all these writ petitions involve common questions of law and facts, they were heard together and are being disposed of by this common judgment. In these writ petitions the detenus were detained by the Commissioner of Police, Thane in exercise of powers conferred upon him by section 3(2) of the National Security Act, with a view to preventing them from acting in any manner prejudicial to the maintenance of public order. Together with the orders of detention, grounds of detention and the copies of the documents referred to and relied upon were also supplied to the detenus. It is these orders of detention and the continued detention of the detenus which are challenged in these writ petitions.

2. It is not necessary to make a detailed reference to the various averments made in the petitions or in the affidavits in reply, since the Counsel for the Petitioners has mainly argued before us only the questions of law which are common to all these writ petitions.

3. Shri Kotwal the learned Counsel appearing for the petitioners contended before us that the continued detention of the detenus is bad in law since admittedly the State Government has reported the fact of the detention to the Central Government, together with the grounds on which the orders have been made and other particulars having a bearing on the necessity for the order, after a period of seven days, from the date of approval of the order by the State Government. It is not disputed by the learned Counsel appearing for the Union of India Shri Govilkar that the Reports of the State Government were received much after the said period. However, according to the learned Public Prosecutor Shri More appearing for the State Government and Shri Govilkar, the learned Counsel for the Union of India, the obligation of the State Government under section 3(5) of the Act is only to send the report to the Central Government within 7 days and it is not necessary that the report should be received by the Central Government within the said period. In these cases the letters containing the reports were sent by the State Government within 7 days, though they were received much later, and therefore, according to the learned Counsel appearing for Respondents, the provisions of section 3(5) are duly complied with.

4. In support of his contention Shri Kotwal has placed strong reliance upon the decisions of the Supreme Court in : [1980]3SCR738 Sabir Ahmed v. Union of India, : [1975]3SCR154 Sher Mohammad v. State of West Bengal and : 1981CriLJ288 Lallubhai Jogibhai Patel v. Union of India. It was also contended by Shri Kotwal that in the affidavit filed on behalf of the Union of India it is nowhere stated that Shri M. L. Kaul was authorised either orally or in writing to deal with the reports received from the State Government under section 3(5) of the National Security Act. Under section 14 of the Act, the power of revocation or modification of detention order is conferred upon the Central Government. Therefore the person who has authority to issue orders of revocation or modification alone, can consider the reports submitted by the State Government under section 3(5) of the Act. Since in the present cases Shri Kaul was not specifically authorised either to deal with the reports under section 3(5) or pass orders of revocation under section 14 of the said Act, he had no authority or jurisdiction to consider the reports submitted by the State Government. Therefore on that count also the continued detention of the detenus is bad in law. However, it is contended by Shri Govilkar the learned Counsel appearing for the Union of India that under Entry No. 83 of the Allocation of Business Rules, 1961, the subject relating to the preventive detention for the reasons connected with the maintenance of public order is to be dealt with by the Home Department. Under these rules, the reports received from the State Government are to be dealt with or disposed of by a person authorised in that behalf under the general or special directions of the Minister in charge. It is nowhere laid down that these directions should be in writing. They could be oral. In the present cases, as per the practice followed by the Home Department, Shri Kaul who was the Joint Secretary in the Home Department, was authorised to deal with this subject, and, therefore, it is not correct to say that the orders passed by him in that behalf were either unauthorised or without jurisdiction. In support of these contentions Shri Govilkar has placed strong reliance upon the decisions of the Supreme Court in : [1968]2SCR267 Ishwarlal Girdharlal Joshi etc. v. State of Gujarat and : [1970]3SCR505 A Sanjeevi Naidu v. State of Madras.

4A. For properly appreciating the controversy raised before us, it will be worthwhile if a reference is made to the relevant provisions of the National Security Act. Section 3 of the Act is the main section with which we are concerned in these writ petitions. It deals with the power to make the orders of detention. Sub-sections (4) and (5) of section 3 read as under :-

'3(4). When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government.

Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than fifteen days from the date of detention, this sub-section shall apply subject to the modification that, for the words 'twelve days', the words 'twenty days' shall be substituted.

3(5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars, as, in the opinion of the State Government, have a bearing on the necessity for the order'.

Section 8 deals with the communication of the grounds of detention to the detenu. By section 10 a reference to the Advisory Board is contemplated. Sections 11 and 12 deal with the submission of report by the Advisory Board and the action upon it. Then comes section 14 which confers a right upon the Central Government to revoke or modify the detention order. What is the scope of section 14 has been authoritatively laid down by the Supreme Court of India in Sabir Ahmed's case : [1980]3SCR738 of the said judgment reads as under :-

'12. It is true that section 3(2) of COFEPOSA mandates the State Government to send a report to the Central Government. But it does not mean that the representation made by the detenu, if any, should also be sent along with that report. There appears to be no substance in the contention that the Central Government is under no duty to consider a representation made to it by the detenu for revoking his detention, if it simply repeats the same allegations, statement of facts, and arguments which were contained in the representation made to the detaining authority. It is common experience that an argument or submission based on certain facts, which does not appeal to a Tribunal or authority of first instance, may find acceptance with a higher Tribunal or supervisory authority. Whether or not the detenu has under section 11 a legal right to make a representation to the Central Government is not the real question. The hub of the matter is whether the power conferred by section 11 on the Central Government, carries with it a duty to consider any representation made by the detenu, expeditiously. The power under section 11 may either be exercised on information received by the Central Government from its own sources including that supplied under section 3 by the State Government, or from the detenu in the form of a petition or representation. Whether or not the Central Government on such petition/representation revokes the detention is a matter of discretion. But this discretion is coupled with a duty. That duty is inherent in the very nature of the jurisdiction. The power under section 11 is a supervisory power. It is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government. If this statutory safeguard is to retain its meaning and efficacy, the Central Government must discharge its supervisory responsibility with constant vigilance and watchful care. The report received under section 3, or any communication or petition received from the detenu must be considered with reasonable expedition. What is 'reasonable expedition' is a question depending on the circumstances, of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inaction, avoidable red-tapism and unduly protracted procrastination'.

Therefore it is quite clear that section 14 confers a supervisory power upon the Central Government. The said power is conferred upon the Central Government as an additional check or safeguard against the improper exercise of the power of detention. If this statutory safeguard is to retain its meaning and efficacy, the Central Government is obliged to discharge its supervisory responsibility with constant vigilance and watchful care. Therefore the power conferred is coupled with duty. The Reports received under section 3(5) must be considered with reasonable expedition. Submission of the report under section 3(5) of the Act is not a mere formality but it acts as an additional check or safeguard against the improper exercise of power of detention. Therefore the phraseology used in section 3(5) of the Act will have to be understood in this background.

5. Prior to the enactment of this Act, in 1980, the Maintenance of Internal Security Act, 1971, popularly known as MISA was in the field. Sub-section (4) of section 3 of the said Act reads as under :-

'3(4). When any order is made or approved by the State Government under this section, the State Government shall within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order.'

Therefore provisions of section 3(4) of the MISA and section 3(5) of the National Security Act are pari materia and identical. The provisions of section 3(4) of the MISA, fell for consideration of the Supreme Court in Sher Mohammad's case 1975 Cri LJ 1751. After reproducing the said provision, this is what the Supreme Court has observed in para 3 of the said judgment :

'3. A fair reading of section 3 indicates that the State Government may directly issue an order of detention or, if it is done by a lesser authority, approve of such detention order as provided in the statute. Sub-section (4) of section 3, which we have extracted, obligates the State Government to communicate, within seven days of the order of detention it makes or it approves, that fact to the Central Government, together with the grounds on which the order has been made and other relevant particulars. Even assuming that the order is made by the District Magistrate and is approved by the State Government, the communication has to be made to Central Government within the time specified. This procedural mandate is inviolable except on peril of the order being voided.'

Therefore the words and expression 'report the fact to the Central Government within seven days' were construed by the Supreme Court to mean to 'Communicate' the fact within seven days. Prior to this decision, even in : 1969CriLJ525 Bidya Deb Barma v. District Magistrate Tripura, Agartala, expression 'communicate' was used for the said word. Therefore it is quite obvious that unless the fact of the detention is communicated to the Central Government within seven days, it cannot be said that the mandate of section 3(5) is complied with. However, it is seriously contended by Shri Govilkar and Shri More, that mere sending of a report is enough and it is not necessary that the report should also be received by the Central Government, within seven days' period. According to them these words should be liberally construed so as to achieve the object of the Act, namely to subserve the common good, consistent with the security of the society, so that even tempo of the community is least endangered. It is not possible for us to accept this contention.

6. As observed by the Supreme Court in : 1984CriLJ177 State of Punjab v. Jagdevsingh and : 1984CriLJ909 Vijay Naraian Singh v. State of Bihar, Preventive detention is a necessary evil, but essentially an evil. Therefore deprivation of personal liberty, if at all, have to be on the strict terms of the Constitution. Nothing less. Preventive detention is considered so treacherous and such an anathema to civilised thought and democratic polity that the safeguards against undue exercise of the power to detain without trial, have been built into the Constitution itself and incorporated as fundamental rights. There are two sentinels, one at either end. The Legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution; and the courts are required to examine, when demanded, whether there has been any excessive detention, that is, whether the limits set out by the Constitution and Legislature have been transgressed. It has always been the view of the Supreme Court that the detention of individuals without trials for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of citizen except in accordance with the procedure established by law. It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed.

7. In Sk. Salim v. State of West Bengal : [1975]3SCR394 , Supreme Court had an occasion to consider the scheme of laws of preventive detention. This is what the Supreme Court has observed while considering the said scheme (Paras 4 and 5) :-

'4. Laws of preventive detention by which subjects are deprived of their personal liberty without the safeguards available in a judicial trial ought to be construed with the greatest strictness. Courts must therefore be vigilant to ensure that the detenu is not deprived of the modicum of rights and safeguards which the preventive law itself affords to him. The Maintenance of Internal Security Act contains what is evidently thought to be a scheme of checks and counter-checks by which the propriety or necessity of a detention order may at various stages be examined by various authorities. If an order of detention is made by a District Magistrate or a specially empowered Additional District Magistrate or a Commissioner of Police, he is required by section 3(3) to report 'forthwith' to the State Government about the making of the order. The order cannot remain in force for more than 12 days or in the circumstances mentioned in the proviso to section 3(3), for more than 22 days unless in the meantime it has been approved by the State Government. If the order is made or approved by the State Government it must under section 3(4) report the fact to the Central Government within 7 days. By section 10, save as otherwise expressly provided in the Act, the appropriate Government shall within 30 days from the date of detention under the order, place before the Advisory Board constituted under section 9 the grounds on which the order has been made, the representation, if any, made by the detenu and in case where the order has been made by any of the officers specified under section 3(2), the report made by the officer under section 3(3). Section 11(1) requires the Advisory Board to submit its report to the appropriate Government within 10 weeks from the date of detention. This time-schedule, evolved in order obviously to provide an expeditious opportunity at different levels for testing the justification of the detention order has to be observed scrupulously and its rigour cannot be relaxed on any facile assumption that what is good if done within 7, 12 or 30 days could as well be good if done, say, within 10, 15 or 35 days.

5. The requirement that the District Magistrate or the other officers making the order of detention shall forthwith report the fact of making the order to the State Government can therefore admit of no relaxation, especially because it has a distinct and important purpose to serve. The 12 days' period which the Act in normal circumstances allows to the State Government for approving the detention order is evidently thought to be reasonably necessary for enabling the Government to consider the pros and cons of the order. Delay on the part of the District Magistrate or the other officers in reporting to the State Government the fact of making the detention order would inevitably curtail the period available to the State Government for approving the detention order. The period of 12 or 22 days, as the case may be, which is referred to in section 3(3) runs from the date on which the order of detention is made and not from the date on which the fact of making the order is reported to the State Government. Such a delay may conceivably lead to a hurried and cursory consideration of the propriety or justification of the order and thereby impair a valuable safeguard available to the detenu. A liberal construction of the requirement that the officer making the order of detention shall forthwith report the fact to the State Government is therefore out of place.'

In our view these observations aptly apply to the National Security Act also.

8. Article 22(4) of the Constitution also provides that no law providing for preventive detention shall authorise detention of a person for a longer period than two months unless an Advisory Board - has reported before the expiration of said period - that there is in its opinion sufficient cause for such detention. The expression 'has reported' will obviously mean that it has communicated its opinion within the prescribed time. In our view similar is the import of the words used in section 3(5) of the Act. In the present cases it is nowhere stated as to how the reports were sent. Whether they were sent by ordinary post, registered post or through special messenger is not disclosed. However, it is clear that reports sent reached the Central Government much after the period prescribed. In writ petition No. 90 of 1985 the report dated 13th July was received by the Central Government on 23rd July 1984. In other petitions also it is an admitted position that reports were received much after the prescribed time limit. It was therefore contended by the learned counsel for the petitioners that the alleged letters must have been deliberately anti-dated so as to show that they were sent or despatched within the period of seven days. It is also contended that if the contention of the Respondents is accepted it will result in unnecessary and unforeseen complications. In such cases what could be treated as date of report, whether it will be date of the letter or date of despatch or date of actual posting of the report, will be a mute question. In a given case communication could be by telegram or telex also. In Bidya Deb's v. District Magistrate, Tripura : 1969CriLJ525 , the fact of detention was communicated to Central Government telegraphically. The method as to how the fact of detention should be reported is not laid down in the Act. If the authorities choose to send it by post then it is done at their risk. In our view it is not necessary to enter into this controversy, since in any case report must reach the Central Government within seven days, otherwise it cannot be said that the fact of detention is reported to the Central Government within the period of seven days, as contemplated by section 3(5) of the Act.

9. The word 'report' is also used in section 3(4), section 11, and section 12 of the Act. Section 11 contemplates submission of report to the appropriate Government by the Advisory Board within seven weeks from the date of the detention of the person concerned. This clearly means that the appropriate Government must receive the report of the Advisory Board within the time prescribed, because the State Government has to act on it. Similar is the position qua the report under section 3(4). Same meaning will have to be given to the word 'report' as used in section 12. The rule is well settled that where the same expression is used in the same statute at different places the same meaning ought to be given to that expression, as far as possible (see Lalchand v. Radhekisan : [1977]2SCR522 . Even in common parlance 'to report the fact' means to give or furnish information about the fact. In Sher Mohammad's case 1975 Cri LJ 1751, Supreme Court has interpreted it as to mean 'communicate'. Ordinary meaning of the term 'communicate' is to impart, confer or transmit information (see Shorter Oxford English Dictionary). The Supreme Court had also an occasion to consider the true import of the word 'communicate' as used in Article 22(5) of the Constitution, in Lallubhai's case : 1981CriLJ288 . It means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully to the detenu in writing in a language which he understands. In : AIR1962SC911 Harikisan v. State of Maharashtra, the Supreme Court held that 'communication' means bringing home the effective knowledge of facts. In our view same is the import of expression 'report the fact' as used in Section 3(5) of the Act. Section 3(5) casts a duty on the State Government to report the fact to the Central Government within seven days together with the grounds on which order has been made and such other particulars, as in the opinion of the State Government, have bearing on the necessity of the order. Therefore, unless the report sent by the State Government under section 3(5) of the Act is received by the Central Government, it cannot be said that the fact of detention together with the grounds on which the order has been made is communicated or reported to the Central Government within the meaning of section 3(5) of the Act.

10. In this context it is pertinent to note that when the National Security Act was enacted in 1980, the Legislature had before it the interpretation put forward by the Supreme Court on pari materia provisions of section 3(4) of MISA. Therefore it appears that while enacting the National Security Act and particularly section 3(5) thereof the Legislature has given statutory approval to the interpretation put forward by the Supreme Court in Sher Mohammad's case 1975 Cri LJ 1751. This is further clear from the fact that in COFEPOSA Act different and distinct expression has been used by the Parliament while enacting the similar provisions. Section 3(2) of the COFEPOSA Act reads as under :

'3(2). When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order'.

In section 3(5) of the National Security Act the word 'forward', is not used. This is also indicative of the legislative intent.

11. Therefore if the words 'report the fact' as used in section 3(5) means communication, then admittedly in the present cases the fact of detention was not communicated or reported to the Central Government within a period of seven days. On this short ground alone, these writ petitions deserve to be allowed.

12. In the view which we have taken, it is not necessary to consider or decide other contentions raised and argued before us. In the result, therefore, Rule is made absolute in all these writ petitions and detenus are directed to be released forthwith, if not required in any other cases.

13. At this stage Shri Govilkar prays for leave to appeal to the Supreme Court. Since we have decided these writ petitions on the basis of the law laid down by the Supreme Court itself, we do not feel that this is a fit case wherein such a leave should be granted. Hence leave refused.

14. Ordered accordingly.


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