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Dabhi Harisinh Laxmanji Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1953CriLJ586
AppellantDabhi Harisinh Laxmanji
RespondentState
Cases ReferredKishorilal Babati v. The State A.I.R.
Excerpt:
- - a preliminary objection arises whether in view of the failure of the advisory board in submitting its report as required by 3. 10 and the consequent failure of the government to pass orders under section 11, the detention of the applicant is legal. the failure of the state government to comply with the provisions contained in sections 9 and 10, preventive detention act as amended leads to this result......observed as under:the detention order has to be confirmed or revoked under section 11. if the board reports that there is sufficient cause for the detention of the persons concerned in its opinion, the appropriate government may confirm the detention order and continue the detention of the persons concerned for such period as it thinks tit. if, on the other hand, the advisory board reports that there is no sufficient cause for the detention of tee person concerned, the appropriate government is bound to revoke the detention order. in that case it has no option in the matter. action under section 11 can be taken only if the advisory board has reported in compliance with the requirements of section 10. the report of the advisory board has to be submitted within ten weeks from the date.....
Judgment:

Chhatpar, J.

1. This is an application for a writ of Habeas Corpus under Section 491 (1)(b), Criminal P.C. The applicant was detained by an order of the District Magistrate, Madhya Saurashtra f District, passed under Sub-section (2) of Section 3 read with Sub-section (1)(a)(ii) of the said Section of the Preventive Detention Act, 1950. The order was passed on 4.8.1951; the applicant was arrested on 18.8.1951 and since then ho has been in detention. Grounds dated 18.8.1951 of his detention were thereafter supplied to him. On 6.9.l951, the papers relating to his detention including the grounds on which r the order was made were forwarded to the Advisory Board constituted under Section 8 of the Act as required by Section 9, On 25.9.1951, further information called for by the Board was supplied to it. Thereafter the present application was filed in this Court on 19.10.1951 and a representation was, at the same time, made to the Government by the applicant against the order of his detention, which was forwarded to the Board on 23.10.1951.

These facts are not in dispute and it is now also admitted that till the present date the Advisory Board has not submitted its report to the Government as enjoined by Section 10 of the Act. Consequently, the Government has not as yet passed any order under Section 11 either confirming the detention order and continuing the detention of the applicant or revoking it and ordering his release.

2. The detenu has been produced before the Court and we have to consider whether his present detention is proper and legal. A preliminary objection arises whether in view of the failure of the Advisory Board in submitting its report as required by 3. 10 and the consequent failure of the Government to pass orders under Section 11, the detention of the applicant is legal.

3. Article 22(4), Constitution of India lays down:

No law providing for preventive detention shall authorise the detention of a person for a longer period than throe 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 mouths 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)

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

Clause (7) of the Article reads as under:

(7) Parliament may by law prescribe-

(a) the circumstances under which, and the class or Glasses 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 inquiry under Sub-clause (a) of Clause (4).

It would be seen that any law providing for the preventive detention for a period longer than three months must make provision for an Advisory Board to be constituted which must give its report before the expiry of the said period of three months. We, however, find that in the Preventive Detention Act the Parliament has fixed the period within which the Board is to give its report at 10 weeks in Section 10 from the date specified in Sub-section (2) of Section 9, which in the present case would be the date of detention i.e. 6.8.1951. These 10 weeks have expired and at the present date the three months contemplated by Clause (4) of Article 22, Constitution of India have also expired.

4. The Constitution gives the detenu the right to make a representation against the order of his detention and that representation still stands undisposed of. The provisions of Section 10, Preventive Detention Act deals with the liberty of the citizen guaranteed by the Constitution. Detention without a trial being a very serious limitation upon his right, certain safeguards have been provided to guard against the action of the executive in encroaching on this fundamental right in the shape of the constitution of an Advisory Board and the decision to be given by the Board recommending the detention or release of the detenu, and making it obligatory on the Government to release the detenu in case the Board is of opinion that there is no sufficient cause for the detention of the detenu. Such safeguards in their very essential nature must be strictly construed in favour of the subject and jealously preserved.

Indeed, we find Section 10 stating in mandatory language that 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 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 Government within ten weeks. If the Advisory Board fails to submit its report within the period prescribed by Section 10 and consequently the Government does not pass orders under Section 11, what is the result? If we construe the provisions o these sections strictly, we cannot help coming to the conclusion that the detention of the detenu after the expiry of the period provided will in any case become illegal. Reference of the case of the detenu to the Advisory Board is obligatory and equally obligatory it is for the Board to send its report and for the Government to pass orders. The Act makes it incumbent on the Government to pass an order of revocation of detention to release the detenu in case the Advisory Board gives its report that there is in its opinion no sufficient cause for the detention of the person concerned.

5. In this view of ours we are supported by the recent decision in the case of - Kishorilal Babati v. The State A.I.R. 1951 Assam 169, remarks at pp. 171 and 172, wherein Thadani C.J., observed as under:

The detention order has to be confirmed or revoked under Section 11. If the Board reports that there is sufficient cause for the detention of the persons concerned in its opinion, the appropriate Government may confirm the detention order and continue the detention of the persons concerned for such period as it thinks tit. If, on the other hand, the Advisory Board reports that there is no sufficient cause for the detention of tee person concerned, the appropriate Government is bound to revoke the detention order. In that case it has no option in the matter. Action under Section 11 can be taken only if the Advisory Board has reported in compliance with the requirements of Section 10. The report of the Advisory Board has to be submitted within ten weeks from the date specified in Clause (2) of Section 9. In this case there has been no consideration of the case by the Board as required by law. There could not, therefore, be any report of the Board within ten weeks as laid down in Section 10 of the Act. It is thus not possible for the State Government in this case to confirm the detention order under Section 11. Confirmation is possible only if the report of the Advisory Board has been received within ten weeks. The period of ten weeks bas admittedly expired.

In the absence of a report satisfying the requirements of law, the detention order now is incapable of confirmation. A report from the Advisory Board consisting even of all the three members now may not be due compliance with the law as there would be no reference to it according to law; nor would the report satisfy the requirements of Section 10. A detention order which is incapable of confirmation, must be. cancelled. The failure of the State Government to comply with the provisions contained in Sections 9 and 10, Preventive Detention Act as amended leads to this result. The order of detention may be valid when passed. It could not be confirmed unless the Advisory Board reports that there is sufficient cause for the detention of the persons concerned within ten weeks from the specified date. If a situation is created when confirmation of the order according to law, is not possible, the order could not be allowed to stand.

We accordingly hold that the applicant is entitled to be set at liberty as his further detention has in any case become illegal.

6. Under the circumstances, we do not think it necessary to go into the other objections to the. grounds of detention supplied to the applicant raised in the application. We grant the application and order the applicant to be set at liberty forthwith.

Shah, C.J.

7. I agree.


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