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Parsuram Das and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectConstitution;Criminal
CourtOrissa High Court
Decided On
Case NumberCriminal Misc. No. 61 of 1951
Judge
Reported inAIR1952Ori208; 18(1952)CLT58
ActsPreventive Detention Act, 1950 - Sections 9(1), 9(2), 10(1) and 12; Preventive Detention (Amendment) Act, 1951; Constitution of India - Article 21
AppellantParsuram Das and ors.
RespondentState
Respondent AdvocateAdv. General
DispositionPetition allowed
Excerpt:
.....orissa, in exercise of the powers conferred by clause (a) of sub-section (1) of section 3 of the preventive detention act, 1950 (iv (4) of 1950), as amended by the preventive detention (amendment) act, 1951, read with section 4 thereof, is pleased to direct, that in partial modification of the order of the government of orissa in the home department, special section no. ' his case was placed before the advisory board on the 9th april, 1951. his representation to the board was also placed before them on the 14th april 1951. on the 6th may the board recommended that there was sufficient cause for the detention of this petitioner. dated cuttack, the 21st march 1951. whereas the state government is satisfied that with a view to preventing banamali das, son of harihar das of kadamsahi, p...........new act. on the other hand, in those orders the government expressly referred to their previous orders dated the 22nd october 1950 and the 2nd june 1950 respectively and said that 'in partial modification' of those orders the government were pleased to detain the petitioners till the 31st march 1952. these orders therefore merely continued the old orders of detention and extended the duration from the 31st march 1951 to the 31st march 1952. any doubt on this point would b.e set at rest if the subsequent communications of the government cnos. 942-c and 940-c, dated 27-3-1951 already quoted) are scrutinised. along with those communications the government enclosed the identical grounds which had been given for the detention of the petitioners under the old act with a view to facilitate.....
Judgment:

Narasimham, J.

1. This miscellaneous case under Article 226 of the Constitution was started on a petition filed by thirteen persons who are now under detention in pursuance of various orders passed by the State Government in exercise of their powers under the Preventive Detention Act, 1950 (Act IV (4) of 1950) as amended by the amending Act of 1951 CAct IV (4) of 1951). In his judgment the former Act will be referred to as the old Act and the amending Act of 1951 will be referred to as the new Act. After the admission of this case, we were informed by the State Government that eleven of petitioners excluding Manmohan Misra and Banamali Das have already filed 'habeas corpus' petitions before the Supreme Court of India against their detention. In this case therefore we will deal with the detention of Monmohan Misra and Banamali Das only. As regards the remaining eleven petitioners we decline to pass any order because the validity of their detention is now under challenge before a superior Court.

2. In order to appreciate the points of law involved in this case it is necessary to narrate certain facts in respect of each of the petitioners.

3. 'Monmohan Misra': This petitioner was detained by an order of the State Government (No. 5119-C dated the 28th October, 1950) which runs as follows:

'Government of Orissa

Home Department

Special Section

Order No. 5119-C.

Cuttack, the 28th October, 1950.

'Whereas the State Government is satisfied that with a view to preventing Manmohan Misra, son of Nilakantha Misra, Biramitrapur, P. S. Sadar, Puri, from acting in any manner prejudicial to the maintenance of public order it is necessary so to do, the Governor of Orissa, in exercise of the powers conferred by Clause (a) of Sub-section (1) of 'Section 3 of the Preventive Detention Act, 1950 (IV (4) of 1950), read with Section 4 thereof, is pleased to direct that the said Manmohan Misra be detained for a period of 6 months, 4 days until the 31st March 1951 in the Cuttack Jail in the district of Cuttack for (the purpose of detention in the said Jail.

By order of the Governor

(Sd) J. A. DAVE, Deputy Secretary to Government.'

The grounds of detention were supplied to him by an Order No. 5123-C, dated the 28th October 1950. After the passing of the new Act on the 22nd February 1951, the State Government passed another Order No. 795-C, dated the 2lst March 1951, which runs as follows:

'Government of Orissa, Home Department, Special Section.'

Order No. 795-C.

Dated Cuttack, the 21st March, 1951.

'Whereas the State Government is satisfied that with a view to preventing Manmohan Misra, s/o Nilakantha Misra of district Puri from acting m any manner prejudicial to the maintenance of public order it is necessary so to do, the Governor of Orissa, in exercise of the powers conferred by Clause (a) of Sub-section (1) of Section 3 of the Preventive Detention Act, 1950 (IV (4) of 1950), as amended by the Preventive Detention (Amendment) Act, 1951, read with Section 4 thereof, is pleased to direct, that in partial modification of the order of the Government of Orissa in the Home Department, Special Section No. 5119-C, dated the 28th October 1950 the said Manmohan Misra be detained until the 31st March 1952 in the Cuttack Jail in the district of Cuttack.

By order of the Governor

(Sd) J. A. DAVE,

Deputy Secretary to Government.'

Then on the 27th March 1951, the State Government sent him the following communication and enclosed along with that a copy of the very grounds supplied to him on the 28th October 1950.

'Government of Orissa, Home Department, Special Section.

No. 942-C.

To

Manmohan Misra,

Dated, Cuttack, the 27th March, 1951. 'Subject: Communication of grounds of detention under Section 7 of the Preventive Detention Act,1950, as amended by the Preventive Detention (Amendment) Act, 1951.

Reference: Order No. 795-C, dated the 21st March1951.

'Whereas under the Preventive Detention Act, 1950, as amended by the Preventive Detention(Amendment) Act 1951, your case is being referred to the Advisory Board and you have a right of representation to the Advisory Board a copy of the ground for your detention, as originally communicated to you, is enclosed herewith for ready reference to facilitate your making a representation, should you choose to do so.

By order of the Governor,

(Sd) E. B. SAMUEL, Under Secretary to Government.'

His case was placed before the Advisory Board on the 9th April, 1951. His representation to the Board was also placed before them on the 14th April 1951. On the 6th May the Board recommended that there was sufficient cause for the detention of this petitioner. It appears that on receipt of the Board's opinion, Government passed an order under Section 11 (1) of the Act confirming the detention of this petitioner. But a copy of that order was not placed before us. From the affidavit of the Under Secretary to Government in the Home Department) it appears that this petitioner received the order of confirmation on 28-5-1951.

4. Banamali Das: This petitioner was detained under the provisions of the old Act by an order of the State Government (No. 3249-C dated the 2nd June 1950). After the passing of the new Act, the following order was passed by the State Government on the 21st March, 1951.

'Government of Orissa, Home Department, Special Section.

Order No. 807-C.

Dated Cuttack, the 21st March 1951.

Whereas the State Government is satisfied that with a view to preventing Banamali Das, son of Harihar Das of Kadamsahi, P. S. Niligiri, Balasore, from acting in any manner prejudicial to the maintenance of public order it is necessary so to do, the Governor of Orissa, in exercise of the powers conferred by Clause (a) of Sub-section (1) of Section 3 of the Preventive Detention Act 1950 (IV (4) of 1950), as amended by the Preventive Detention (Amendment) Act, 1951, read with Section 4 thereof, is pleased to direct that in partial modification of the order of the Government of Orissa in the Home Department, Special Section No. 3249-C, dated the 2nd June 1950, the said Banamali Das be detained until 31st March 1952 in the Cuttack Jail in the district of Cuttack.

By order of the Governor,

(Sd) J. A. DAVE,

Deputy Secretary to Government.'

Then on the 27th March, 1951, the following Intimation was also sent to him enclosing with it the very grounds which had been communicated to him on the 2nd June 1950, in connection with his first detention.

'Government of Orissa, Home Department, Special Section.

No. 940-C.

To

Banamali Das-

Dated Cuttack, the 27th March 1951. Subject: Communication of grounds of detention under Section 7 of Preventive Detention Act, 1950, as amended by the Preventive Detention (Amendment) Act, 1951.

Reference: Order No. 807-C, dated the 21st March1951.

Whereas under the Preventive Detention Act, 1950, as amended by the Preventive Detention (Amendment) Act, 1951, your case is being referred to the Advisory Board and you have a right of representation to the Advisory Board, a copy of the ground for your detention, as originally com-municated to you, is enclosed herewith for ready reference to facilitate your making a representation, should you choose to do so.

By order of the Governor,

(Sd.) E. B. SAMUEL,

Under Secretary to Government.'

His case was placed before the Board on 9-4-1951 and the Board on the 22nd May 1951, submitted their report to the Government stating that there was sufficient cause for the further detention of this petitioner. It, appears that on receipt of the Board's opinion Government passed an order under Section 11 (1) of the Act confirming the detention of this petitioner. But a copy of that order was not placed before us. From the affidavit of the Under Secretary to Government in the Home Department it appears that this petitioner received the order of confirmation on 28-5-1951.

5. Before discussing the points of law raised by the petitioners I may briefly refer to some of the Important changes made in the old Act by the new Act. The new Act extended the life of the old Act to the 3lst March 1952 and replaced Section 12 of the old Act by the following new section.

'S. 12. Validity and duration of detention in certain cases:--For avoidable of doubt it is hereby declared that:

(a) every detention order in force at the commencement of the Preventive Detention (Amendment) Act, 1951 shall continue in force and shall have effect as if it had been made under this Act as amended by the Preventive Detention (Amendment) Act, and

(b) Nothing contained in Sub-section (3) of Section 1 or Sub-section (1) of Section 12 of this Act as originally enacted shall be deemed to affect the validity or duration of any such order.'

It then provided for a compulsory reference of every case of detention to the Advisory Board Within six weeks from the date of the commencement of the new Act or from the date of the order of detention, as the case may be Section 10 of the new Act further provided that the Advisory Board's report should be submitted to the Government within ten weeks from the aforesaid date. There are other provisions regarding the action to be taken on the report of the Advisory Board which are, however, not material for the present discussion. I may, however, quote section 9 and Sub-section (1) of section 10 because the validity of the detention of the petitioners depends on a proper construction of these two sections:

'S. 9. Reference to Advisory Boards:--(1) 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 3.

(2) The date referred to in Sub-section (1) shall be:

(a) in every case, where at the commencement of the Preventive Detention (Amendment) Act, 1951, the person is under detention in pursuance of a detention order made under Sub-clause (i) or Sub-clause (ii) of Clause (a) of Sub-section (1) of Section 3, the date of commencement of the said Act; and

(b) in every other case the date of detentionunder the order.'

'Sub-section (1) of Section 10:--The Advisory Board shall, after considering the materials placed before it and after calling for such further information, as it may deem necessary from the appropriate Government or from the person concerned, and, if in any particular case it considers it essential, after hearing him in person, submit its report to the appropriate Government within ten weeks from the date specified in Sub-section (2) of Section 9.'

6. It will thus be seen that under the new Act all cases of preventive detention must be referred to the Advisory Board within six weeks from a specified date and the report of the Board also must be submitted to the Government within ten weeks of that date. For the purpose of fixing the commencing date the new Act divided preventive detentions into two classes:

(i) those detentions in which orders were passedunder the old Act but which continued inforce by virtue of Section 12 (a) of the newAct : and

(ii) those detentions in which orders were passedunder the new Act.

As regards the former class of detentions the relevant date is the commencement of the new Act, that is, the 22nd February 1951, Clause (a) of Subsection (2) of Section 9 of the new Act makes this clear beyond any doubt. Therefore, in those cases the reference to the Board should be made by the 5th April at the latest and the report of the Board should also be submitted by the 3rd May. Doubtless if the orders of detention expired before the 5th April the necessity for making such a reference may not arise. Consequently though Clause (a) of Sub-section (2) of Section 9 in terms applies to all classes of detentions under the old Act which continued to be in force from the date of the commencement of the new Act by virtue of Section 12 (a), the scope of that clause should however be limited to those classes of detentions where the orders did not expire within; six weeks from 22-2-1951.

7. The petitioners' contention is that they were detained under the old Act and their detention was validated and continued in force by Section 12 of the new Act. Therefore their case ought to have been referred to the Advisory Board within six weeks (5-4-1951), from the date of the commencement of the new Act and the Board's report also ought to have been submitted to the Government within ten weeks (3-5-1951) from that date. This has admittedly not been done. The reference to the Board was made after the expiry of the period of six weeks from 22-2-1951 and similarly the report of the Board was submitted to the Government after the expiry of ten weeks from that date.

8. The Advocate-General contended that this is not a case of continuance of the order of detention passed under the old Act but that the petitioners were being detained in pursuance of a fresh order passed under the new Act on the 21st March 1951 and that consequently by virtue of Clause (b) of Sub-section (2) of Section 9 the periods of six weeks and ten weeks should be calculated from that date. In support of this argument he relied on Government order No. 795-C., dated the 21st March 1951 and order No. 807-C, of that date addressed to petitioner Monmohan Misra and petitioner Banamali Das respectively and urged that those orders were, in effect, fresh orders of detention passed under the new Act.

9. I am, however, unable to accept this contention of the learned Advocate-General Theaforesaid two orders (which have been quoted in full) cannot by any stretch of imagination be held to be fresh orders of detention under the new Act. On the other hand, in those orders the Government expressly referred to their previous orders dated the 22nd October 1950 and the 2nd June 1950 respectively and said that 'in partial modification' of those orders the Government were pleased to detain the petitioners till the 31st March 1952. These orders therefore merely continued the old orders of detention and extended the duration from the 31st March 1951 to the 31st March 1952. Any doubt on this point would b.e set at rest if the subsequent communications of the Government CNos. 942-C and 940-C, dated 27-3-1951 already quoted) are scrutinised. Along with those communications the Government enclosed the identical grounds which had been given for the detention of the petitioners under the old Act with a view to facilitate the making of a representation by the petitioners to the Board. If the Government thought that this was a case of fresh detention under the new Act they would surely have communicated grounds bearing numbers and dates different from those used on the former occasion. Moreover in such a case, one would expect that the order of detention under the new Act would state expressly that it was being issued in super session of the old order or after cancelling the same. It may be than had they adopted this course the relevant date for the purpose of computing the period of six weeks and ten weeks would be the date of the order of fresh detention. But in view of the express statement in the orders of the Government dated the 21st March 1951 to the effect that they were merely 'partial modifications' of the previous orders I cannot but hold that those orders only continued the old orders passed under the old Act. As pointed out by his Lordship Patanjali Sastri, J., in the Supreme Court decision in 'S. KRISHNAN v. THE STATE OP MADRAS', (Petn. No. 303 of 1950 : AIR 1951 S C 301) 'detention is a hard physical fact' and the petitioners have been under continuous detention from 22-2-1951 till to date. There was not even a momentary interval between the expiry of the previous order of detention passed under the old Act and their arrest under a fresh order of detention passed under the new Act. Such a position might have arisen if the petitioners had been released on the 31st March 1951 and re-arrested and detained immediately thereafter under the new Act. But the old order of detention was continued in force by fresh orders passed on the 21st March 1951, ten days before the date of the expiry of the old orders, and there was no question of release and re-arrest. The detention has been all along continuous and consequently the right of the petitioners to have their case referred to the Advisory Board within six weeks from 22-2-1951 cannot be taken away and similarly the duty cast on the Board to submit their report to the Government within ten weeks from that day must be strictly obeyed.

10. The next question is what is the effect of the failure of the Government and the Advisory Board to comply with the provisions of the new Act regarding the time-limit? Is it a mere curable irregularity or an illegality which affects the validity of the order of detention? I do not think that there can be any doubt on this question. Article 21 of the Constitution says that no person shall be deprived of his liberty except according to the procedure established by law.' It was decided by their Lordships of the Supreme Court of India in 'GOPALAN v. STATE OF MADRAS',1950 S C R 88, that procedure established by law means procedure enacted by the Legislature and that a person can be deprived ofhis personal liberty only if such deprivation is brought about in accordance with the procedure enacted by the appropriate Legislature. In the present case that procedure was prescribed in the Preventive Detention Act as amended by the new Act and it makes it mandatory on the part of the Government to place before the Board the cases of those persons who were detained under the old Act, within six weeks from 22-2-1951 and also it makes it mandatory on the part of the Board to submit their report to Government within ten weeks from that date. If, therefore, the time-limits fixed in Sub-section (1) of Section 9 and Sub-section (1) of Section 10 of the new Act are not complied with it cannot be held that the detention is in accordance with the procedure established by law. There is a clear violation of the fundamental right guaranteed under Article 21 which invalidates the subsequent detention even if it be held that the detention orders were valid in their inception.

11. This view is supported by a recent decision of their Lordships of the Supreme Court of India in 'S. KRISHNAN v. THE STATE of MADRAS', (Petn. No. 303 of 1950). In that case the main point for consideration by their Lordships was whether Section 9 (2) (a) and Section 12 (1) of the new Act were valid in view of the requirements of Sub-clause (b) of Clause (4) of Article 22. While holding that the impugned provisions were valid Patanjali Sastri, J., observed:

'It will be seen that although the object of the new Act was to liberalise the provisions of the old Act in the manner indicated above. Section 12 had the effect of enlarging the period of detention of the petitioners who were under detention at the commencement of the new Act by enacting the legal fiction that detention in such cases shall have effect as if it had been made under the new Act. On that basis, the new Act seeks to bring detention orders in force at its commencement and more than three months old into conformity with Article 22(4)(a) by prescribing a period of six weeks in Section 9 for referring such cases to the Advisory Board and ten weeks in Section 10 (1) for the submission by the Board of its report, the period in each case being calculated from the commencement of the new Act.'

Sub-clause (a) of Clause (4) of Article 22 requires that the report of the Advisory Board regarding the sufficiency or otherwise of the detention of a person should be obtained before the expiry of three months from the date of detention. This is one of the fundamental rights guaranteed in the Constitution and the only exception provided therein is contained in Sub-clause (b) of that clause which says that the said period of three months may be enlarged by a law made by the Parliament. It was held in that case that Sections 9 (2) (a) and 12 (1) of the new Act which enlarged that period in respect of persons detained under the old Act was a valid piece of legislation. Consequently if the time-limit fixed in those sections is exceeded there is no detention 'in accordance with the provisions of any law made by Parliament' and Sub-Clause (b) of Clause (4) of Article 22 does not come into operation with the result that there is a contravention of the fundamental right guaranteed under Sub-clause (a) of Clause (4) of that Article. Thus if the time-limit is exceeded even by one day there is a con-travention of the fundamental right guaranteed to a person and the detention must be held to be invalid from the date of the contravention,

12. I may refer to the following passage in the Statement of Objects and Reasons to the Preventive Detention (Amendment) Bill, 1951 which was introduced in the Parliament on the 28th January 1951:

'It is further proposed to make it clear that no person will be kept under detention unless upon such reference the Advisory Board reports within ten weeks of his detention that there is sufficient cause for detention.'

If no report is received from the Board within the 70th day from 22-2-1951, the Government are bound to release the detenu and it is immaterial as to whether the report was received one or two days later. In such a case the detention though validly brought out became unlawful by reason of subsequent non-compliance with the procedural requirements of law.

13. I would therefore hold that the detention of the two petitioners has become invalid and direct that they be restored to liberty forthwith.

Ray, C.J.

14. I concur. The two formidable contentions, canvassed by the learned Advocate-General at the Bar, that require to be resolved, have been carefully dealt with by my learned brother.

15. In view of their importance I have been advised to add just a few words. The requirements that the Government shall, within six weeks from the date specified in Sub-section (2) (of Section 9), place before an Advisory Board the grounds on which the order (of detention) has been made, and that the Advisory Board shall, after considering the materials placed before it and making other enquiries what it considers appropriate, submit its report to the appropriate Government within ten weeks from the date specified in Sub-section (2) of Section 9, are indisputably fundamental conditions of the most essential character of detention orders under the Preventive Detention Act, 1950, as amended by the Preventive Detention (Amendment) Act, 1951 (IV (4) of 1951). Under such conditions are subsumed conditions precedent and conditions subsequent. Placing the case before the Advisory Board and submission of the latter's report within the appointed time are both conditions subsequent to the passing of an order of detention, but they serve as conditions precedent to the continuation of the detention. Failure of compliance with the said requirements entitles the detenu to a forthwith order of release.

16. The contention ancillary to the contentions aforesaid relates to the date from which the aforesaid appointed time is to run. It is urged strenuously by the learned Advocate-General that it must begin to run from the date the Government passed an order in partial modification of the previous order of detention, There is a fallacy behind this argument as it overlooks the provision contained in Section 12 of the Act, wherein it is said:

'12. Validity and duration of detention in certain cases.--For the avoidance of doubt it is hereby declared that:

(a) every detention order in force at the commencement of the Preventive Detention (Amendment) Act. 1951, shall continue in force and shall have effect as if it had been made under this Act as amended by the preventive Detention (Amendment) Act, 1951; and

(b) nothing contained in Sub-section (3) of Section 1 or Sub-section (1) of Seetion of this Act shall be deemed to affect the validity or duration of any such order.'

17. The result is that the petitioners' detention under a pre-amendment order shall be taken to be an order under this Act in force and effective at the date of the commencement of the Act (Amendment Act). Even if the order, passed by way of partial modification of the said order, be taken to be an independent order by itself, its effect was at any rate to continue the detention which was a valid detention under the Amendment Act at the date of its commencement. Therefore, the petitioners' cases fall within Sub-section (2) (a) of Section 9 of the Act and the date from Which the periods of six weeks and ten weeks, referred to in Sections 9 (1) and 10 (1), shall commence running is the date of commencement of the Amendment Act. As these conditions are mandatory, I would hold that the petitioners have by now earned their liberation from custody. I would, therefore allow their petitions and direct their release forthwith.


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