1. The short point for decision in the present case is whether a person who is ordered to be detained by a District Magistrate but whose period of detention is extended by an order of the State Government is entitled to claim that fresh grounds of detention should be supplied to him.
2. The detenu in this case is one Roshan Lal, a shopkeeper of the Ferozepore District. On the 2nd March, 1951, the District Magistrate made an order under Section 3 of the Preventive Detention Act, 1950, by which he directed that the said Roshan Lal shall be arrested and detained for a period of three months. He was arrested on the following day, and the grounds of detention were supplied to him on the 8th March. About a month later, that is on the 10th April, the Home Secretary to Government passed an order under Section 3 of the said Act directing that the detenu shall be detained for a period of six months with effect from the 3rd March, 1951. This order was served on the detenu on the 16th April, but no fresh grounds of detention were supplied to him.
3. Mr. Jindra Lal, who has argued the case for the detenu with conspicuous ability, has taken several objections to the legality and propriety of the detention, among others being that the order issued by the District Magistrate, on the 2nd March was not shown to his client, that the grounds of detention supplied by the District Magistrate are vague and indefinite, and that no fresh grounds of detention were served upon the detenu after Government's order dated the 10th April had been passed. Only the last of the three objections mentioned above was pressed before us and this objection alone is sufficient in my opinion to enable us to decide the present case.
4. Mr. R. P. Khosla who appears for the State admits that Section 7 of the Act of 1950 imposes a statutory obligation on the authority making an order of detention to communicate to the detenu the ground on which the order has been made, but he contends that it is not necessary to communicate such grounds when the appropriate Government either confirms an order made by a Subordinate authority or extends the period for which the person has been ordered to be detained. Subsection (1) of Section 11 is in the following terms:
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.
5. Mr. Khosla's contention appears to me to be wholly devoid of force. In the first place, the order passed by the Home Secretary purports to have been passed under Sections 3 and 4 of the Preventive Detention Act and not under Section 11 of the said Act. Secondly, even if the order had been passed under Section 11, it seems to me that that section merely empowers the appropriate Government to 'confirm' the order of detention and to extend the period of detention; it does not empower the Government expressly or by implication to override the provisions of Section 7. Thirdly, even if an express provision were to be made in the statute that the provisions of Section 7 will not apply to an order made under Section 11, it seems to me that that provision would be repugnant to the provisions of the Constitution and would be void to the extent of the repugnancy. Clause (5) of Article 22 states clearly and in unambiguous language that 'the authority making the order' shall communicate to the detenu the grounds on which the order has been made. This clause does not draw any distinction between one authority and another or between an original order or an order made at a later date. If, therefore, a person is ordered to be detained by one authority and the period of his detention is extended by another authority, he is entitled to claim as of right that both the authorities should supply to him the particulars on which their orders are based. This is obviously a commonsense provision, for it seems to me that when the period for which a person has been ordered to be detained is extended by another authority the detenu is entitled to know the reasons which have prompted the other authority to keep him in detention for a longer period than was proposed by the original authority. Moreover the fact that the period of detention is extended by an order of a particular Government does not alter the fact that the said Government is 'the authority making the order' in pursuance of which the person is detained during the extended period. The original order in the present case was passed by the District Magistrate of Ferozepore and according to this order the detenu was to remain in custody for a period of three months with effect from the 2nd March. This order was confirmed and the detention was extended by the State Government on the 10th April, The later order was to operate retrospectively with effect from the 3rd April and was to continue in force for a period of six months, that is uptil the 2nd October 1951. The detenu was not supplied with the grounds on which the order of the State Government was based and his detention cannot thus be regarded as valid in the eye of law.
6. There is one other matter in respect of which the statutory formalities do not appear to have been complied with. The law requires that person who is ordered to be detained in pursuance of a detention order shall not only be supplied with the grounds on which the order has been made but also that he shall be afforded the 'earliest' opportunity of making a representation against the said order. If he makes a representation as soon as the grounds are supplied to him but if the representation is not forwarded to Government at once, it is little comfort to him that he was afforded the earliest opportunity of making a representation. The detenu in the present case was arrested on the 3rd March 1951. His brother submitted a representation to the Superintendent of Police on the 17th March. This representation was not forwarded to Government on the grounds that it was not made by the detenu himself. On the 24th April a lawyer submitted a fresh representation on behalf of the detenu. This representation was forwarded through the proper channel but it did not reach Government till the 25th June 1951, i.e., till after the expiry of two months after it had been submitted. It is of the utmost importance that representations of this kind should be forwarded to the appropriate Government with the utmost promptitude.
7. For these reasons I entertain no doubt whatever that the detenu is being unlawfully detained. I would accordingly accept the petition and direct that he be released from custody and set at liberty without loss of time.
8. I agree.