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Gohel Umedsing Narubha and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1953CriLJ503
AppellantGohel Umedsing Narubha and ors.
RespondentState
Cases ReferredHoward v. Bodinton
Excerpt:
.....a law made by parliament under sub-clauses (a) and (b) of clause (7) of article 22. the advisory board's report has to be submitted before the expiration of the said three months because the detention of a person for a period longer than three months has not been permitted by the constitution, save on such report, and under clause (7), sub-clauses (a) and (b) of article 22. 4. under section 10(1) of the preventive detention act, the advisory board, after con. i consider this to be a wholesome and good rule, and to be in accordance with the great desire which english courts have always had to protect the liberty of every one of her majesty's subjects. if the advisory board's report is in favour of the release of the person, then to detain him any longer after the recommendation for the..........there is sufficient cause for the detention of the person concerned or not, and where the advisory board reports that there is in its opinion sufficient cause for such detention, the government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit, under section 11 of the act. if the advisory board reports that there is in its opinion no sufficient cause for the detention of the person concerned, the government shall revoke the detention order and cause the person to be released forthwith.in prescribing the period of ten weeks for the submission of the advisory board's report, the idea appears to be to leave sufficient time to the government to pass orders on the case in pursuance of the report. it was urged by the learned.....
Judgment:

Shah, C.J.

1. These are eleven petitions for a writ of habeas corpus involving common questions of law. Of course the petitioners in petitions Nos. 1, 2, 10, 11, and 12 of 1952 were arrested and detained on 27th March 1951 by an order of the District Magistrate, Central Saurashtra District, dated 25th March 1951. The petitioner in petition No. 7 of 1952 was arrested and detained on 26th March 1951 by a similar order of the said District Magistrate, and in the case of the above six petitioners the Advisory Board has submitted a report under Section 10(1) of the Preventive Detention Act on 1st August 1951.

2. The petitioner in petition No. 3 of 1952 was arrested on 12th April 1951 by an order of the District Magistrate Central Saurashtra District, dated 11th April 1951. The petitioner in petition No, 81 of 1951 was arrested and detained by an order of the District Magistrate, Gohilwad District, dated 17th April 1951. The petitioner in petition No. 6 of 1952 was arrested and detained on 18th April 1951 by an order of the District Magistrate, Central Saurashtra District, dated 16th April 1951, and in the case of these three petitioners, the Advisory Board has made its report on 17th July 1951.

The petitioner in petition No. 4 of 1952 was arrested and detained on 12th June 1951 by an order of the District Magistrate, Gohilwad District, dated 8th June 1951 and the Advisory Board has made its report on 7th November 1951. In none of these ten cases has the report of the Advisory Board been submitted within ten weeks of the date of the detention. The petitioner in petition No. 5 of 1952 was arrested and detained on 28th July 1951 by an order of the District Magistrate, Central Saurashtra District, dated the same day and in his case the Advisory Board has made no report.

3. The order of detention has been disputed by the petitioner on various grounds, but it is unnecessary to deal with them since in our opinion, the petitions can be disposed of on the preliminary objection, viz., that inasmuch as the report of the Advisory Board to whom the cases of the petitioners were referred, was not submitted to the Saurashtra Government within Jen weeks from the date of the order of detention, their further detention has become illegal. The right to personal liberty has been guaranteed as a fundamental right by the Constitution of India and under Article 21 no person can be deprived of the said right except according to procedure established by law.

Article 22 provides a limitation upon the power of the Legislature, under Article 21, to make any law as to the deprivation of personal liberty, but under Clause (4) of Article 22 the preventive detention of a person cannot be made for a longer period than three months unless the Advisory Board has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. Therefore, a person can be detained for more than three months provided the Advisory Board has submitted a report in favour of such detention. It must follow, therefore, that if the Advisory Board has failed to submit its report within three months then the detention after the said period of three months will be illegal, excepting where a person is detained under a law made by Parliament under Sub-clauses (a) and (b) of Clause (7) of Article 22. The Advisory Board's report has to be submitted before the expiration of the said three months because the detention of a person for a period longer than three months has not been permitted by the Constitution, save on such report, and under Clause (7), Sub-clauses (a) and (b) of Article 22.

4. Under Section 10(1) of the Preventive Detention Act, the Advisory Board, after con., sidering the materials placed before it and after calling such further information, as it may deem necessary, from the Government or from the person concerned, shall submit its report to the Government within ten weeks from the date of detention. The report has to specify whether in the opinion of the Board there is sufficient cause for the detention of the person concerned or not, and where the Advisory Board reports that there is in its opinion sufficient cause for such detention, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit, under Section 11 of the Act. If the Advisory Board reports that there is in its opinion no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith.

In prescribing the period of ten weeks for the submission of the Advisory Board's report, the idea appears to be to leave sufficient time to the Government to pass orders on the case in pursuance of the report. It was urged by the learned Advocate General that the time limit was prescribed for the submission of the report by the Advisory Board, but once the report was submitted by the Board, there was nothing to require the Government to take action upon the report within a specified time, and that the Government can, even after the expiration of three months from the date of detention, take action to confirm the detention order and to continue the detention. The contention is not sound because the person concerned cannot be detained for a day longer than three months unless upon the report of the Advisory Board, which means unless upon action taken on such a report and that action must necessarily be taken before the expiration of the three months period allowed under Article 22 for else the detention of the person beyond the period of three months will be illegal. The very fact that the detention is not to exceed the period of three months implies that the action has to be taken before the expiration of the said period of three months. There is therefore no substance in this contention.

5. Another contention made by the Advocate General is that the provision as to the submission of the report within ten weeks from the date of detention is directory, and not imperative, and that the Government can confirm the detention order and continue the detention of the person even if the Advisory Board's report was made after the time limit of ten weeks, provided the Government made the order in pursuance of the Advisory Board's report, before the expiration of three months from the date of detention. This contention too is untenable. It is clear from the language of Section 10(1) of the Act that the provision as to the submission of the Advisory Board's report within ten weeks is imperative and that the Advisory Board has to conform to the time limit there prescribed.

In a previous decision in - Dabhi Harisinh Laxmanji v. State Criminal Misc. Habeas Corpus Appln. No. 73 of 1951 (Sau.) we have held that the provisions of Section 10 of the Act are mandatory and we there referred to and relied on - Kishorilal Bahati v. The State AIR 1951 Assam 169. Under Article 21 the right of personal liberty is a fundamental right and no person can be deprived of it except according to procedure established by law. The Preventive Detention Act deprives the subject of his liberty and a State can justify the continuance of the detention provided it follows the procedure established by law, viz., the procedure prescribed by the Preventive Detention Act. In a recent decision in - Makhan Singh Tarsikka v. The State of Punjab : 1952CriLJ321 the Supreme Court has observed:

It cannot be too often emphasised that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected.

We may also quote the dictum of Brett, L.J. in - Dale's Case; R.W. Enraght's case,', (1881) 6 Q.B. 376:

It is a general rule which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another, he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity, the Court will not allow the imprisonment to continue.

Although in this case, I consider that irregularity a matter of substance, I should be of the same opinion if it were only a matter of form, because, as I said before, I take it to be a general rule that the Courts at Westminster will not allow any individual in this Kingdom to procure the imprisonment of another, unless he takes care to follow with extreme precision every form and every step in the process which is to procure that imprisonment. I consider this to be a wholesome and good rule, and to be in accordance with the great desire which English Courts have always had to protect the liberty of every one of Her Majesty's subjects.

On the question as to when an enactment is to be considered absolute and when merely directory provisions with respect to time are considered to be always obligatory unless the power of extending the time is given to the Court - Barker v. Palmer (1881) 8 QB 9 at p. 10. Dealing with the same subject Lord Campbell observed in - Liverpool Borough Bank v. Turner (1861) 30 LJ Ch 379, at p. 380:

No universal rule can be laid down as to whether mandatory enactment shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.

In - Howard v. Bodinton (1887) 2 PD 203, 211 Lord Penzance, after citing this dictum of Lord Campbell, added as follows:

I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory.

The provisions of Section 10(1) of the Preventive Detention Act which deprive the subject of his fundamental right to personal liberty must be treated as imperative and not merely directory.

6. The question might also be considered from another point of view. Under Section 11(1) of the Act, the confirmation of the detention order and the continuance of the detention of the person concerned can only arise on a decision of the Government on a report of the Advisory Board. That is so where the Advisory Board reports in favour of the detention, but where the Advisory Board reports against the detention of the person concerned, then under Section 11(2) the Government must revoke the detention order and release the person forthwith. If the Advisory Board's report is in favour of the release of the person, then to detain him any longer after the recommendation for the release will not only be manifestly unjust, but will contravene the fundamental right of personal liberty, and it is precisely for this reason that the report has to be submitted within the prescribed time limit. A report not so submitted is really no report as required by Section 10(1) and upon such a report the Government cannot take action for the continuance of the detention. The time limit of ten weeks for the submission of the report is, therefore, mandatory and the detention cannot be continued excepting upon a report so submitted.

7. In ten out of the eleven petitions before us, the report has been submitted after the expiration of ten weeks from the date of detention and in the remaining one, no report has at all been submitted by the Advisory Board. We accordingly hold that the petitioners are entitled to be set at liberty as their further detention has become illegal. In the circumstances it is unnecessary to deal with the other objections, stated in the applications, to the grounds of detention. We grant all the applications and order that the applicants be set at liberty forthwith.

Baxi, J.

8. I agree.


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