Anil Kumar Sen, J.
1. The subject matter of challenge in this Rule is the detention of the detenu Dilip Kumar Mazumdar, alias, Mona under an order dated October 19, 1971, passed by the Commissioner of Police, Calcutta in the exercise of his powers under Section 3(1) read with Section 3(2) of the Maintenance of Internal Security Act, 1971. The impugned order recites that the Commissioner was satisfied that such detention was necessary with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order. The detention rests on two grounds which are set out hereunder:
(1) On 28.6.71 at about 11.45 hrs. you along with your associates Rathindra Kumar Sinha of 17/A. Simla St. and others, all being armed with bombs created a great disturbance on Tarak Pramanick Road in between premises Nos. 146 and 158A with a view to terrorise the locality. The incident led to the closure of shops, suspension of vehicular traffic and a widespread panic shrouded the area thereby affecting public order.
(2) On 29.9.71 at about 13.30 hrs. you along with your associates Durga Singh of 8. Simla Street Bimal Kumar Sinha of 46. Shib Narayan Das lane and others all being armed with bombs created a great disturbance of public order at the King of Tarak Pramanick Rd. and Simla St. and hurled bombs indiscriminately with a view to terrorize the locality. The incident led to the closure of shops suspension of vehicular traffic and a widespread panic shrouded the area thereby affecting public order.
2. The detenu was put to detention on October 19, 1971. The order of detention was duly approved by the State Government on October 28, 1971. The detenu made a representation on November 10, 1971. and the said representation was actually received by the Home Department on November 13, 1971. Under Section 10 the State Government made a reference to the Advisory Board on November 16, 1970. In making the said reference the State Government, however, proceeded on the basis that no representation had been received from the detenu and the relevant part of the pro from a order indicating forwarding of the representation to the Advisory Board was penned. through. The representation itself was taken up for consideration by the appropriate authority on behalf of the State Government on December 3, 1971. on which date it was rejected as a general denial and on the same date a copy of the representation was forwarded to the Advisory Board, The Advisory Board submitted its report oh December 7, 1971 expressing its views that there is sufficient cause for detention. Thereafter, by an order dated December 17, 1971 the order of detention was confirmed and the detention was directed to continue for a period of twelve months.
3. An important question has been raised by Mr. Acharya on the facts set out hereinbefore. According to him, when the detenu was put to detention on October 19, 1971 and when the detenu had made a representation on 21st day of his detention, it was incumbent on the State Government to place a copy of the representation before the Advisory Board within thirty days from the date of detention as enjoined by Section 10 of the said Act. When that was not done, there has not only been an infringement of the mandatory provision of Section 10, but also an infringement of the constitutional safeguard so far as the detenu is concerned which must be held to have vitiated the continued detention of the detenu. On the facts set out hereinbefore, there is no dispute that the thirtieth day from the date of detention would have been November 18, 1971 and long prior there to the representation was not only made by the detenu but was also received by the Home Department. But notwithstanding such receipts, it was not forwarded to the Advisory Board prior to the expiry of thirty days from the date of his detention and was actually forwarded to the Board on December 3, 1971.
4. A question thus arises for consideration as to what would be the effect of such delay in the matter of placing the representation before the Advisory Board. This question would involve consideration as to whether the obligation cast upon the State Government by Section 10 of the Act in the matter of placing the representation before the Advisory Board within thirty days is mandatory or not. It would be necessary to refer to Section 10 itself which reads as follows:
Reference to Advisory Boards! Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within thirty days from the date of detention under the order, place before the Advisory Board constituted by it under Section 9 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, and also the report by such officer under Sub-section (3) of Section 3.
5. On the language of the provision there can be no doubt that it enjoins that the State Government shall within thirty days refer the grounds and the representation, if any. to the Advisory Board; thus the obligation cast is patently imperative. It is true that in construing statutes at times the word 'shall' is construed as not Imperative, but is interpreted as 'may'. But Section 10 here provides for one of the constitutional safeguards for a person detained without trial under an executive order and we find no reason why such a provision though imperative on its terms should by construction be rendered directory. Such a construction is again contrary to the accepted principle of interpretation of statutes. The general rule is, that an absolute enactment must be obeyed or fulfilled exactly. It Is more so where the observance of the formalities is a duty imposed on an authority exercising powers for the protection of the person likely to be affected for non observance of the formality. This provision casts an obligation on the State Government in respect of a person put to preventive detention which when fulfilled would afford an opportunity to the detenu to challenge the detention before an independent authority, namely, the Board as constituted by the statute. Any statute casting such obligation, if imperative on Its term should not by construction be rendered directory. The word 'shall' in such a statute should never be construed as 'may'. It would be useful to refer in this context a number of cases disposed of by the Supreme Court where the Supreme Court has accepted the position that Section 10 of the said Act or the provisions similar thereto are imperative in their nature. Reference may be made to the decisions of the Supreme Court in the cases of Deb Sadan Roy v. State of West Bengal. Writ Petn. No. 218 of 1971 disposed of on 7.12.1971 : reported in AIR 1972 SC 1924 : Ujjal Mondal v. State of West Bengal. Writ Petn. No. 420 of 1971 disposed of on 21.1.11972 : reported in 1972 Cri LJ 916 (SC) and Sibapada Mukerji v. State of West Bengal. Writ Petn. No. 341 of 1971 disposed of on 25.1.1972 : reported in 1972 Cri LJ 845 (SC).
6. Mr. Sen appearing for the State has also not disputed the position that both the time. schedule arid the obligation to make a reference of the case to the Advisory Board are imperative. What is contended by Mr. Sen is that the time. schedule of thirty days need Hot be construed to be imperative for the purpose of placing the representation before the Advisory Board. According to him the State Government is to consider and dispose of the representation within a reasonable time and then place the representation before the Advisory Board. The Advisory Board again has to consider the case and the representation within ten weeks so that it would be sufficient compliance of the requirements of law. if the representation is placed before the Advisory. Board before the matter is heard and disposed of by the Board, according to Mr. Sen to insist upon placing the representation within thirty days before the Advisory Board would be an useless formality when the representation itself has to be considered by the Board Hong thereafter and at any time before the expiry of the ten weeks from the date of detention.
7. Though somewhat attractive in its nature, this contention of Mr. Sen s does not appeal to us. The representation made by the detenu is the only 1 substantial remedy open to him to dispute the validity of the detention. Such representation has got to be considered independently by the two authorities, namely, the State Government and the Advisory Board. The Advisory Board Is not bound to wait for the decision of the State Government on the representation. The decision of the Board is in no way dependent on the decision of the Government. The statute no doubt furnishes the maximum time of ten weeks to the Advisory Board to consider the case and come to its decision, but nothing prevents the Board from considering the matter immediately on reference being made to it after the thirtieth day from the detention. Reference may be made to the observations of the Supreme Court in the case of AIR 1972 SC 1924 (supra). Except for Section 11(I) no specific procedure is laid down for the Advisory Board. No question of steps being taken preparatory to hearing does arise. There are no specific rules of business prescribed for the Board to fix any date and in law. if the detenu does not insist upon any personal hearing there is no bar to the Advisory Board to dispose of the entire matter as soon as it is placed before the Advisory Board. This being the position, when the Constitution furnishes a right to the detenu to have his case considered by an independent authority like the Advisory Board and when the statute provides correlated obligation for the State Government to refer the case along with the grounds and the representation to the Advisory Board within thirty days we are unable to agree with Mr. Sen that to insist on compliance with this time. schedule would be an useless formality. It may very well so happen that in a given case mere consideration of the representation may convince the Board immediately that there is no sufficient cause for detention and to delay placement of the representation beyond the time, specified in Section 10. would only delay the benefit of getting the aforesaid opinion of the Advisory Board to the prejudice of the man in detention. This being the position we are of the opinion that the time. schedule prescribed for placement of the representation before the Advisory Board as under Section 10 must also be considered to be imperative in its character and not merely directory, but subject to some inherent reservation, pointed out hereinafter.
8. Before we proceed to consider the reservation, in order to support the view taken by us, we would refer to a few decisions of the Supreme Court, though not exactly on the point. In the cases of Abdul Karim v. State of West Bengal reported in : 1969CriLJ1446 and Joy Narayan Sukul v. State of West Bengal reported in : 1970CriLJ743 the Supreme Court clearly laid down that it is necessary for the State Government to consider the representation and dispose of the same before reference under Section 10 is made to the Advisory Board. The principle so laid down was reaffirmed In the case of K.I. Singh v. State of Manipur : 1SCR1022 and P.S. Dhori v. S.G. Prodhan, Writ Petn. No 514 of 1970. disposed of on 18.12.1970 (SC). These decisions impliedly support the conclusion that where the representation has been made within the appropriate time, it should be disposed of by the State Government before the expiry of thirty days from the date of detention and then placed before the Advisory Board. Of course, these decisions came up for further consideration by the Supreme Court in two other cases of Nagendra Nath Mondal v. State of West Bengal Writ Petition No. 308 of 1971. disposed of on 13.1.1972 : reported in 1972 Cri LJ 482 (SC) and Jnanendra Nath Roy v. State of West Bengal. Writ Petn. No. 389 of 1971 disposed of on 24.1.1972 : reported in : AIR1972SC2143 . In explaining the earlier decisions the Supreme Court no doubt held, what was insisted upon in Abdul Karim's or Jay Narayan's case is an Independent disposal of the representation irrespective of its consideration or views thereon expressed by the Board. But it would be important to note that In both these two cases. Nagendra Nath Mondal and Jnanendra Nath Roy. the. representations were duly forwarded to the Advisory Board even before their disposal by the State Government as the same could not be disposed of before making reference to the Advisory Board.
9. The matter again came up for consideration by the Supreme Court in the case of Baidyanath Chunakar v. State of West Bengal reported in : AIR1972SC1198 . In this case the Supreme Court was again reaffirming the principles laid down in the case of K.I. Singh which again followed its earlier decision in the cases of Abdul Karim and Joy Narayan Sukul. The fourth principle reaffirmed in this case is that the appropriate Govt. is to consider and come to its own decision on the representation before sending the. case alone with the detenu's representation to the Advisory Board. Thus in all these decisions wherein the principles laid down in Joy Narayan Sukul's case are being reaffirmed the Supreme Court is laying emphasis on the point that a representation received from the detenu should be disposed of before the reference under Section 10 is made and in making the reference under section, the representation itself should be placed before the Advisory Board. Even in the case of Nagendra Nath Mondal or Jnanendra Nath Roy wherein these decisions were partly explained, there is nothing to indicate that there can be any exception to the obligation of sending the representation to the Advisory Board while making reference under Section 10. In our opinion, if the reference of the case has sot to be made within thirty days and where the representation of the detenu is available within the said time, to make a reference without the representation is to make an incomplete reference because the Advisory Board is expected to act by considering both the sides of the case on the one side there being an order for detention and its grounds and on the other the representation of the detenu in answer thereto. Therefore, it would be inconsistent to construe that while the time. schedule for making the reference of the case to the Advisory Board should be considered to be mandatory the time. schedule for placing the representation before the Advisory Board is to be construed to be merely directory.
10. Now we are proceeding to1 consider the reservation referred to by us hereinbefore. Section 10 as set out hereinbefore clearly indicates that the representation is to be sent to the Advisory Board If there is any. So that if there Is no representation or no representation worth a representation the obligation under the section does not arise at all. It is further obvious that the State Government's obligation to maintain the time. schedule for placing the representation before the Advisory Board is dependent upon the detenu's making the representation within the appropriate time and in an appropriate manner so that the Government can fulfil Its obligation. It would be unreasonable to hold that the mandatory nature of the provision is so absolute in character that even where it cannot be fulfilled because of the detenu's laches in the Blotter of making the representation, its Infringement would invalidate the detention. Therefore, we hold that the mandatory obligation under Section 10 for placement of the representation would always be subject to the State Government's getting the representation within the appropriate time giving it a reasonable opportunity to place it before the Advisory Board in accordance with Section 10 so that If the representation is made in such a manner that it furnishes no reasonable margin of time from its receipt and making the reference under Section 10. in such case though the obligation is mandatory, the infringement being not due to the laches on the part of the State Government, it would not invalidate the detention. But on the other hand, if the representation is not placed before the Advisory Board within thirty days due to laches on the part of the State Government, it must necessarily be held that thereby the statutory safeguard has been infringed and it affects the detention itself.
11. Judging the present case on the principles as aforesaid we find that the detenu made a representation clearly, nine davs before the expiry of the thirtieth day from the date of his detention. The detenu was in the Presidency Jail at Calcutta. A margin of nine days must be held to be reasonable enough to afford an opportunity to the State Government not only to consider and dispose of the representation before making the reference under Section 10 but also to place the same before the Advisory Board. In the case of Rameswar Bhagat v. State of Bihar. Crl. Appeal No. 194 of 1967 disposed of on 15.1.1968 (SC), the Supreme Court held that seven days' time is sufficient for rendering appropriate opportunity to the State Government to place such representation before the Advisory Board. Whatever explanation may be furnished in the affidavit for not disposing of the representation within this period, there is no explanation for not placing the representation itself before the Advisory Board within the time prescribed by Section 10. This being the position, we must hold that failure to place the representation before the Advisory Board in accordance with Section 10, on the facts of the present case, must be considered to have prejudicially affected the detenu and as such it invalidates the continued detention.
11. The application accordingly succeeds and the Rule is made absolute.
12. We direct that the detenu be get at liberty at once. We also direct that this order be communicated to the Superintendent Cuddalore Central Jail, Tamil Nadu, where the detenu is stated to be detained at present.
N.C. Mukherji, J.
13. I agree.