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Aswini Kumar Banerjee Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1972CriLJ1505
AppellantAswini Kumar Banerjee
RespondentState and ors.
Cases ReferredState of Uttar Pradesh v. Sinshara Singh
Excerpt:
- n.c. talukdar, j.1. this rule was issued on an application under section 491 of the code of criminal procedure, praying for a writ and/or order and/or direction in the nature of habeas corpus filed on behalf of the detenu. bikas banerjee and is against the state of west bengal through the secretary, home department, the district magistrate, 24-parganas and the superintendent of the dum dum central jail.2. the detenu was detained under sub-section (1) read with sub-section (3) to section 3 of the west bengal (prevention of violent activities) act 1970 president's act no. 19 of 1970 by an order no. 96 of 1970 dated the 18th december, 1970 passed by the district magistrate, 24-parganas. his detention commenced on and from the 21st december, 1970 and the order of detention was confirmed on.....
Judgment:

N.C. Talukdar, J.

1. This Rule was issued on an application under Section 491 of the Code of Criminal Procedure, praying for a writ and/or order and/or direction in the nature of habeas corpus filed on behalf of the detenu. Bikas Banerjee and is against the State of West Bengal through the Secretary, Home Department, the District Magistrate, 24-Parganas and the Superintendent of the Dum Dum Central Jail.

2. The detenu was detained under Sub-section (1) read with Sub-section (3) to Section 3 of the West Bengal (Prevention of Violent Activities) Act 1970 President's Act No. 19 of 1970 by an order no. 96 of 1970 dated the 18th December, 1970 passed by the District Magistrate, 24-Parganas. His detention commenced on and from the 21st December, 1970 and the order of detention was confirmed on 27-3-71 as would appear from the averments in paragraph 3 (i) (a) (e) and (h) of the affidavit-in-opposition affirmed on 19-5-71 by the respondent no, 2. District Magistrate. 24-Parganas, A copy of the said order is annexed to the petition and marked as annexure 'B'. The grounds of detention which are three in number, have also been annexed to the petition and marked as annexure 'C.

3. The Rule was issued on the 21st April, 1971 and the prayer for bail was refused at that stage. Subsequently on an application for bail filed on the 29th April, 1971, J. Sarma Sarkar and A. P. Das, JJ. by their order dated the 23rd June. 1971 were pleased to grant bail to the detenu on certain conditions and restrictions. A further order was passed by J. Sarma Sarkar and A P. Das, JJ. on the 22nd June, 1971 that the learned Advocate-General should be served with a notice of the matter inasmuch as the vires of the Act was challenged. The Rule came up thereafter for hearing before this Bench and at the time of the hearing of the Rule, Mr. S. K. Acharya. Advocate (with Mr. D. P. Kundu, Advocate) appearing on behalf of the detenu submitted that he would not press the vires point but argue only on the point of confirmation of the order of detention beyond three months of the date of detention, vitiating the same thereby. The learned Advocate-General who was present in court to argue on the vires point, thereupon prayed for being released from his obligations and said prayer was allowed. Mr. Dilip Kumar Dutt, Advocate (with Mr. Bhaskar Sen, Advocate) thereafter argued on behalf of the respondents. An affidavit-in-opposition affirmed on the 19th May, 1971 by respondent no. 2, District Magistrate, 24-Parganas and another Affidavit-in-opposition affirmed on the 7th May, 1971 by Shri Khagendra Nath Banerjee, Inspector of Police, attached to the District Intelligence Branch, 24-Parganas were filed on behalf of the respondents while an affidavit-in-reply affirmed on the 31st May, 1971 by the applicant was filed on behalf of the detenu.

4. Mr. S. K. Acharya. Advocate (with Mr. D. P. Kundu, Advocate) appearing on behalf of the detenu raised a short point viz. that the further detention of the detenu concerned is illegal and invalid because the confirmation of the said order was not made within three months of the date of detention. The broad submission made by Mr. Acharya is that when a State Government passes an order of detention under Sub-section (1) read with Sub-section (3) to Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970, it shall be in force for three months only from the date of detention, unless on a report submitted by the Advisory Board within ten weeks from the date of detention, that there is sufficient cause for the detention, the State Government chooses to confirm it. and that such confirmation, in order to continue the detention further must be within the aforesaid period of three months. The steps of his reasoning are (a) that in Article 22(4) of the Constitution of India it has been provided that no law providing for Preventive Detention shall authorise detention of a person for a longer period than three months unless, as further provided in Sub-clause (a), a properly constituted Advisory Board reported before the expiration of the said period that there is in its opinion sufficient cause for such detention; (b) that in Section 12. Sub-section (1) of the West Bengal. (Prevention of Violent Activities) Act. 1970 it has been enjoined that the State Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit; and (c) that, as provided for in Section 13 of the said Act, the maximum period for which a person may be detained, on such confirmation under Section 12 (1) shall be 12 months from the date of detention. Several decisions, including an unreported Division Bench of this court were cited by the learned Advocate in support of his contention and the same will be considered in their proper context. Mr. Dilip Kumar Dutt, Advocate, (With Mr. Bhaskar Sen, Advocate) appearing on behalf of the respondents joined issue. He made a twofold submission viz. that (a) there is no such provision either in Article 22(4) of the Constitution of India or in Section 12 (1) of the President's Act No, 19 of 1970, that there must be an order confirming the detention order before it can be extended beyond three months from the date of detention; and (b) that even if such confirmation be necessary, it need not be made within the period of three months from the date of detention. Mr. Dutt next contended that he is conscious of the line of decisions under the Preventive Detention Act, 1950, referred to by Mr. Acharya but the said decisions have tried to read more into the provisions of the Constitution and of Act IV of 1950 than the law-making authority ever intended and based upon hypothesis and assumptions, requiring consideration by a Full Bench. In support of his contentions, Mr. Dutt also referred to some decisions which would be considered in the proper context.

5. The point involved is one of law and of some importance, relating to the interpretation of Sub-section (1) to Section 12 of the West Bengal (Prevention of Violent Activities) Act, 1970 as to whether (a) the confirmation referred to therein is the sine qua non for continuing the detention beyond three months from the date of detention; and (b) even if it be so, whether such confirmation is to be made within three months of such date of detention. There are several decisions on the point by the different High Courts, including an unreported decision by a Division Bench of this Court, but all are under the preventive Detention Act (Act IV of 1950) and so far as the President's Act, No. 19 of 1970 is concerned the point involved is one of first impression.

6. For a proper consideration of the point at issue, it is necessary to refer to the provisions of the Constitution of India as also those of Act IV of 1950 and of the President's Act No. 19 of 1970. In this context it is pertinent to remember that the provisions on the point at issue, in the two Acts, are quite similar. Clause (4) to Article 22 of the Constitution of India provides that

No law providing for Preventive Detention shall authorise detention of a person for a longer period than three 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 months 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); or (b) such person is detained in accordance with the provision of any law made by Parliament under Sub-clauses (a) and (b) of clause(7)'. Clause (7) to Article 22 is as follows:Parliament may by law prescribe (a) the circumstances under which and the class or classes 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.

Article 22 of the Constitution of India therefore does not form a complete code of Constitutional safeguards relating to preventive detention but to the extent that provision is made in Article 22 it cannot be controlled by Article 21. we may now pass on to a consideration of relevant provisions of the President's Act No. 19 of 1970, bearing on the point at issue. Under Section 11 (1) it is provided that 'the Advisory Board shall .... submit its report to the State Government within 10 weeks from the date of detention.' Section 12 provides as follows'. (1) In any case where the Advisory Board has reported that there is. in its opinion, sufficient cause for the detention of a person, the State Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit-(2) In any case where the Advisory Board has reported that there is. in its opinion, no sufficient cause for the detention of the person concerned, the State Government shall revoke the detention order and cause the person to be released forthwith'. The provisions of Section 13 are also material and are as follows:

The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Section 12 shall be twelve months from the date of detention.

We shall now proceed to refer to the relevant provisions of the Preventive Detention Act. 1950 (Act IV of 1950). which are quite similar, under Section 10 (1).

the Advisory Board shall...submit its report to the appropriate government within 10 weeks from the date of detention.

Section 11 (1) of the Act lays down that '(1) 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. (2) In any case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned the appropriate Government shall revoke the detention order and cause the person to be released forthwith'.

The maximum period of such detention is provided for in Section 11A (1) as follows:

The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Section 11 shall be 12 months from the date of detention.

The intention of the law-making authority therefore, as incorporated in the provisions of Sub-section (1) to Section 12 of, the West Bengal (Prevention of Violent Activities) Act 1970. can be put in a short compass. In a case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the State Government has two alternatives viz. (a) it may confirm the detention order and continue the detention of the person concerned and (b) it may not confirm the detention order and release the detenu concerned. There appears to be no scope for a third alternative, as sought to be put into the body of the statute by the learned advocate appearing for the respondents, viz. that the State Government may not confirm the detention order but continue the detention for a reasonable time. In view of the context and in view of the specific words used by the law-making authority the concept of a reasonable time for confirming the detention order cannot be imported within the bounds of the provisions of Sub-section (1) to Section 12 of the President's Act No. 19 of 1970. The submission made by Mr. Dutt in this behalf is ruled out by the same. Section 12 (1) of the West Bengal (Prevention of Violent Activities.) Act, 1970 has to be read against the backdrop of the provisions of Clause (4) to Article 22 of the Constitution of India enjoining that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months and the same is only subject to the sub-clauses and the proviso, as also the other clauses following thereafter. Apart from the plain meaning of the words incorporated in. the West Bengal (Prevention of Violent Activities) Act, 1970, the same cannot also be construed in contravention of the clear and unambiguous provisions of the Constitution. The sine qua non of a continuance of detention made under Sub-section (1) read with Sub-section (3) to Section 3 of the President's Act No. 19 of 1970, accordingly are (a) report by the Advisory Board submitted to the State Government within 10 weeks from the date of detention; (b) a recommendation by the Advisory Board in its report that there is, in its opinion, sufficient cause for the detention of the person concerned; (c) the confirmation thereafter of the said order of detention by the State Government; and (d) such confirmation should be made within three months from the date of detention. Anything short of that would be long off the mark, being de hors the President's Act No, 19 of 1970 and in clear contravention of the provisions of the Constitution of India.

7. It is pertinent now to refer to the principles of interpretation of statutes to ascertain the intention of the law-making authority as incorporated in the relevant provisions of the West Bengal (Prevention of Violent Activities') Act, 1970. Some meaning and effect must be given to the specific words used in the provisions concerned. As is observed by Maxwell on 'The Interpretation of Statutes'.

A Statute is the will of the legislature and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of them that made it.

A reference in this context may be made to the golden rule of construction of statutes. Viscount Simon. L. C. held in the case of Nokes v, Doncaster Amalgamated Collieries. Ltd. reported in (1940) A C 1014 at page 1022 that

The golden rule is that the words of a statute must prima facie be given their ordinary meaning.

It was further observed by the Lord Chancellor that

At the same time, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.

Judges are not called upon ordinarily to apply their opinion of sound policy so as to modify the plain meaning of statutory words. It is again to be remembered that the principles of interpretation of statute rule out redundancy. As was observed by Lord Summer in the case of Quebec Railway Light Heat and Power Co Ltd v. Vandry reported in AIR 1920 PC 181 at page 186 that

Effect, must be given if possible to all the words used, for the Legislature is deemed not to waste its words or to say anything in vain.

Mr. Justice Subbarao (as His Lordship then was) also observed in the case of Ghanashyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur, reported in : [1964]51ITR557(SC) that.

A construction which would attribute redundancy to a legislature shall not be accepted except for compelling reasons.

We respectfully agree with the said observations and we do not find any compelling reasons to hold otherwise. The said observations clearly rule out the interpretation given by Mr. Dilip Kumar Dutt. The method of construction again of statutes encroaching on the liberty of the subject must be strict one and cannot be so expansive as Mr. Dutt submitted. It is observed in Maxwell on 'The Interpretation of Statutes' (12th Edn.) at page 251 that

Statutes which encroach on the rights of the subject whether as regards person or property are subject to a strict construction in the same way as penal Acts'

and a reference was made therein to the observations of Lord Westbury L. C. in the case of Walsh v. Secretary of State for India (1863) 10 H. L. C. 367 thatIt is a recognized rule that they should be interpreted if possible, so as to respect such rights.

As was again observed in David v. Desilva reported in (1934) A. C. 106.

If there is any ambiguity the construction which is in favour of the freedom of the individual should be adopted11.

A reference may also be made to the case of Barnard v. Gorman reported in (1941) A. C. 378 at Page 395 wherein Lord Wright cited with approval the well-known dictum of Pollock C. B. in Bowditch v. Balchin reported in (1850) 5 Ex. 378 that

In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.' We respectfully agree with the said observation and we hold that Mr. Dutt's interpretation is against the natural construction of such statutes. Mr. Acharya contended in this context that the provisions of a statute cannot possibly contain all details to make the same free from all ambiguity and on that purported ground alone the same should not be struck down or an interpretation thereof be made, wholly against the intention of the legislature or the law-making authority. In support of his proposition, he referred to the case of Seaford Court Estates Ltd. v. Asher reported in (1949) 2 K. B, 481 at page 498 wherein Denning L.J. observed thatWhenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of fact which may arise: and that even if it were, it is not possible to provide for them in terms free from all ambiguity.

We respectfully agree and hold that the absence of a time-limit in express terms in the body of Section 12 (1) of the Act, does not render it to be ambiguous. Mr. Dutt's interpretation of Section 12 (1) of the President's Act No. 19 of 1970 is also untenable because an order of detention cannot continue on its own steam. The State Government must pass it in the first instance but in order to further continue it beyond three months of the date of detention the State Government must act before the expiry of three months of the date of detention, by confirmation of the detention order, under certain circumstances viz., when the Advisory Board reports within 10 weeks from the date of detention that there is sufficient ground for detention. The Advisory Board cannot be equated with the State Government and it can only 'advise' and not 'act' by way of passing an order of detention or continuing it thereafter and the same is left to the overriding discretion of the State Government alone. Mr.Dutt's interpretation on ultimate analysis invited the court not to determine what the law is but what it ought to be. A reference may be made in this connection to the observations of Lord Simond in the case of Magor and St. Mellons Rural District Council v. New Port Corporation reported in (1952) A. C. 189 at page 191 that.

The power and duty of the court to travel outside them (the words used by the legislature) on a voyage of discovery are strictly limited.

We respectfully agree with the said observations and we hold that both by 'the principles of intent and that of meaning', the interpretation of the provisions of the Act as made by Mr. Dutt are not tenable. To give effect to Mr. Dutt's contention would be to legislate and embark 'on a voyage of discovery'. The principles of interpretation of statutes rule out therefore the construction sought to be put on the provisions referred to above by Mr. Dilip Kumar Dutt. It cannot ultimately be overlooked that the West Bengal (Prevention of Violent Activities) Act. 1970 is an act encroaching on the liberty of the subject and as such must be strictly construed. It is pertinent in this context to refer to the majority view contained in the judgment delivered by Mr. Justice A. K. Sarkar (as His Lordship then was) in the case of Ram Manohar Lohia V. The State of Bihar reported in : 1966CriLJ608 viz. that

If a man can be deprived of his liberty under a rule by the simple process of the making of a certain order, he can only be so deprived if the order is in terms of the rule strict compliance with the letter of the rule is the essence of the matter. We are dealing with a statute which drastically interferes with the personal liberty of people. We are dealing with an order behind the face of which a court is prevented from going.... Circumstances may make it necessary, but it would be legitimate to require in such cases strict observance of the rules. If there is any doubt whether the rules have been strictly observed, that doubt must be resolved in favour of the detenu

We respectfully agree with the said observations and applying the said yardstick to the facts of the present case, we hold that the absence of any confirmation of the detention order before the expiry of three months from the date of detention constitutes a non-conformance to the procedure established by law and as such the further detention of the detenu concerned is illegal and invalid.

8. We shall now proceed to consider the case law cited on behalf of the respective parties. Mr. Acharya appearing on behalf of the detenu referred in the first' instance to the case of Kaur Singh, v. State decided by Chopra and Passey JJ. reported in AIR 1952 Pepsu 134. The said case is under the Preventive Detention Act, 1950 and Mr. Justice Chopra delivering the Judgment of the Court observed at page 135 that

the intention of the legislature in enacting Sections 9, 10 and 11 is that no detention is to be regarded to be lawful beyond three months unless within that Period the government on a report from the Advisory Board justifying detention decides to confirm the detention order and to continue the detention for a period that in its view may appear to be necessary.

It was further observed that

What Section 11 provides is that the government 'may confirm'' and 'continue detention' have their own significance and they obviously mean that if the government decided to continue the detention it must confirm the order of detention, and that the non-confirmation of the order would result in its revocation and termination of the detention. The verb 'may' only indicates that it is not obligatory on the government to confirm the detention order even though the Advisory Board has reported in favour of the necessity of continuing the detention'. The next case cited is the case of Gohel Umedsing Narubha v. State reported in AIR 1953 Sau 51. Mr. Acharya relied on observations of Chief Justice Shah delivering the judgment of the court at page 52 that

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(4) or else the detention of the person beyond the period of three months will be illegal'. Mr. Acharya next referred to the case of Sangappa Mallappa v. State of Mysore, reported in AIR 1959 Mysore 7 wherein Chief Justice S. R. Das Gupta, sitting with Mr, Justice Malimath observed at page 9 thatThe order of confirmation which the government is required to make under Section 11 of the Act has to be made within a period of three months from the date of detention ....The use of the expression 'may confirm the detention order and continue the detention of the person' in my opinion indicates quite clearly that before the government, after it has received the report from the Advisory Board, can continue the detention, it has to confirm the order of detention and unless it does so, the government has no authority to continue the detention.

Their Lordships after considering all the relevant provisions of the Preventive Detention Act, 1950 ultimately held that the Advisory Board has to make its report within 10 weeks from the date of detention and

up to this point the order of detention which has been approved by the government will continue in force. After the Advisory Board has made its report to the government, the government has to confirm the order of detention before it can further continue the detention'. In a later decision viz., in the case of Bhupati Goswami v. C. R. Krishnamurthi reported in AIR 1969 Assam & Naga-land 14, Mr.Justice P. K, Goswami followed the decision in AIR 1959 Mysore 7 and observed at Page 21 on a consideration of all the different Section of the Preventive Detention Act, 1950 which are similar to those of the President's Act No. 19 of 1970 that

All the time limits laid down under the Act from after the passing of the first order must be held to be mandatory provisions and although Section 11 (1) does not in terms mention any time limit, the time limit of three months is implicit in the entire scheme of the Act and the setting of the provisions'. Their Lordships ultimately held thatthe impugned order of detention must therefore be struck down in absence of a confirming order of the government within three months from the date of detention

Mr. Acharya finally referred to an un-reported decision of R. N. Dutt and T. P. Mukherji JJ. D/-19-9-1968 in Criminal Misc Case No 708 of 1968 (Cal). Sabyasachi Chakrabortv v. Commissioner of Police. Calcutta. It was held by the Division Bench that

The law of Preventive Detention as provided for in the Preventive Detention Act, 1950 has to be interpreted in the light of the Constitutional provisions contained in Article 22 of the Constitution' It was observed further thatThe Preventive Detention Act has enacted laws which empower the State Government to detain a detenu without trial beyond the period of three months but limited to a period of one year. That power the State Government may exercise on receipt of the opinion of the Advisory Board that there are sufficient grounds for detaining the detenu beyond the three months and when the State Government receives that opinion, the State Government has to exercise its power either to continue the detention beyond the period of three months or not and the order of confirmation is the exercise of that power and unless that power is exercised within the period of three months from the date of detention, the order of detention automatically lapses.

Their Lordships further proceeded to hold that the said interpretation

is the only reasonable interpretation of Article 22 of the Constitution and Sections 11 and 11A of the Preventive Detention Act

The detenu in that case was directed ultimately to be set at liberty forthwith inasmuch as his detention was not confirmed in the case within three months from the date of detention. Mr, Acharya relied on the observations made in the aforesaid decisions and submitted that the provisions of Act IV of 1950 being pari materia with the provisions of the President's Act No. 19 of 1970, the said observations clearly support the contention raised by him in the present Rule Mr. Dutt appearing on behalf of the respondents joined issue and contended that there has been a misconstruction of Article 22(4) of the Constitution of India and that there was scope for a reconsideration of the principles laid down in the decisions of the different High Courts referred to above and also in the unreported decision of the Division Bench of this High Court. He ultimately submitted that for a proper determination of the point at issue the present case should be referred to the Full Bench. Mr. Dutt fairly conceded, however, that relevant provisions of Act X of 1.950 being quite similar to those of the West Bengel (Prevention of Violent Activities) Act, 1970, his objection did not extend, on that ground alone, to the applicability of the principles laid down in the light of cases under the former Act to the interpretation of the provisions of the President's Act No. 19 of 1970, as such. In support of his contention Mr. Dutt referred in the first instance to the case of Sital Parshad. v. State, reported in AIR 1952 Punjab 349 and relied on the observations of Bhandari and Falshaw JJ. that

Sub-section (1) of Section 11 does not specify the period during which the order of detention should be confirmed by the appropriate government, but there can be little doubt that it should be confirmed within a reasonable period, i. e. within a period which a man of ordinary prudence would consider reasonable in the circumstances of the case

It cannot, however, be overlooked that the point raised for consideration in the present case was not in issue in the case referred to above either directly or even indirectly and the facts referred to therein also do not disclose whether the confirmation in the case was made within three months of the date of detention. Mr Justice Bhandari who delivered the judgment of the court further proceeded to observe that

section 11 imposes a statutory obligation on the appropriate government to 'confirm' the order of detention, and it seems to me therefore, that it was incumbent on the State to satisfy Us that the order has in fact been confirmed by the Chief Commissioner'. No evidence of such confirmation having been placed before the court, Their Lordships held that it was to be deemed that no such order was passed and ultimately proceeded to direct the release of the detenu. The said decision therefore far from supporting the contention of Mr. Dutt runs counter to the first part of his submission that such confirmation is not necessary under the Constitution or the statute to continue the detention of the person concerned beyond three months of the date of detention. Mr. Dutt is not also correct in importing the concept of reasonable time into the body of the provisions contained in Sub-section (1) to Section 12 of the West Bengal (Prevention of Violent Activities) Act. 1970. A reference in this context may be made to the observations of Maxwell 'On the Interpretation of Statutes (11th Edn.) page 341 as follows.

When a statute requires that something shall be done 'forthwith' or 'Immediately' or even 'instantly', it would probably be understood as allowing a reasonable time for it'. But when there is a specified time provided for in Clause (4) to Article 22 of the Constitution of India, the concept of such reasonable time cannot be introduced in interpreting the provisions of Sub-section (1) to Section 12 of the President's Act No. 19 of 1970. The next case referred to is the case of Dattatraya Moreshwar, v. The State of Bombay, decided by Patanjali Sastri. C. J. Mahajan, B. K. Mukharji; S. R. Das and Chandrasekhara Aiyar. JJ. and reported in : 1952CriLJ955 . Mr. Dutt relied on the observations of Mr. Justice S. R. Das (as His Lordship then was) delivering the judgment of the court at page 183 that.

It follows that it is not necessary to include a direction for the continuation of the detention in the decision confirming the detention order.

and submitted that confirmation accordingly is not the sine qua non of continuing the detention. Mr. Dutt's interpretation is not correct as would be borne out by the further observations of the Supreme Court made in the said context viz., that.

the confirmation of the detention order certainly contemplates the taking of an executive decision but the detenu being already in custody and the detention order being confirmed, his detention continues automatically and therefore no further executive decision is called for to continue the detention.' It is further to be considered that the Supreme Court pinpointed the necessity of confirmation of the detention order and the principles laid down therein accordingly do not support Mr. Dutt's contention. The next case cited by Mr. Dutt is the case of Dhadhal Kanthad Valeg v. Saurashtra State decided by Shah. C. J. and Bakshi J. and reported in AIR 1953 Sau 138, Mr. Dutt relied on the observations made therein that the confirmation order under Section 11 (1) need not be made within 10 weeks nor need it be communicated to the detenu within that period and that the communication to the detenu of the confirmation order is merely an intimation to him of the government decision to continue the detention and does not amount to a warrant of arrest. The facts therein are quite different from those obtaining in the present case and Mr. Dutt. overlooks the ultimate obesrvations of the Division Bench made at page 139 that.

the Advisory Board's report having been made within 10 weeks and government having taken action thereon within three months of the order of detention, the further detention of the petitioner is perfectly valid.

This indeed supports the contention of Mr. Acharya referred to earlier. Mr. Dutt next referred to a decision of the Supreme Court in the case of Mohd. Iqbal v. State of Jammu and Kashmir, reported in 1969 (2) Cri. Ap. Re. 94 to support his submission that although the order of detention was made on 3-1-68, the report of the Advisory Board was made on 25-4-68 and the government confirmed the order of detention on 17-5-69 much beyond the period of three months, the said detention was not held to be invalid. The analogy is wholly misconceived because in the first instance the period provided for under the Jammu and Kashmir Preventive Detention Act. 1964 (Act XIII of 1964) in this behalf is six months and not three months and therefore the order of confirmation is clearly within the statutory period and secondly this was not even the point at issue and the court was considering the ground of remotenesss as it was urged therein that prejudicial or objectionable acts were alleged to have been committed so far back as in the year 1965 on which action the detenu was detained under the Defence of India Rules. It was ultimately held by Mr. Justice Grover delivering the judgment of the court that since the satisfaction of the detaining authority is subjective 'it is not for the courts to examine the sufficiency of the grounds on which that satisfaction is based'. The principles laid down in the said case therefore do not apply to the facts of the present case. It is necessary to refer to the provision of Article 35(c) of the Constitution of India and to the relevant provisions of the Jammu and Kashmir Preventive Detention Act, 1954 (Act XIII of 1964). Article 35(c) in its application to the State of Jummu and Kashmir provides that.

No law with respect to preventive detention made by the legislature of the State of Jammu and Kashmir whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954 shall be void on the ground that it is inconsistent with any of the provisions of this (part III) part but any such law shall to the extent of such inconsistency, cease to have effect on the expiration of 15 years from the commencement of the said order except as respects things done or omitted to be done before the expiration thereof.

Section 13 of the Jammu and Kashmir Preventive Detention Act. 1964 prescribes the maximum period of detention in pursuance of any detention order viz., two years. Section 13A provides that the person concerned may be detained for a period longer than three months but not longer than six months, from the date of detention, without obtaining the opinion of any Advisory Board, It is apparent therefore that the provisions of Act XIII of 1964 are quite distinct from the relevant provisions of Act IV of 1950 and the President's Act No. 19 of 1970. The other case referred to by Mr. Dutt is the decision of the Supreme Court in the case of Abdul Aziz, v. State of Jammu and Kashmir, reported in 1969 (2) Cri-Ap. Re. 96. The facts therein are again distinguishable and the case is under the Jammu and Kashmir Preventive Detention Act. 1964 whereunder the relevant period is six months. In the said case the order dated the 3rd January, 1968, the Advisory Board submitted its report on the 25th April. 1968 and the government confirmed the order of detention on the 17th May, 1968, It is therefore very much within the period of six months provided for under the relevant Act. The points raised for determination therein are again quite different. Those are three in number and are as follows, (a) the detention order is illegal because read with the concluding part that the grounds had showed total lack of application of mind and (b) the petitioner having been detained under the Defence of India Rules, on the ground of preventing him from acting in a manner prejudicial to public safety and maintenance of peaceful conditions, the impugned order of detention which was made with a view to preventing him from acting in any manner prejudicial to the security of the State and maintenance of public order even though he had continued to remain in detention throughout was mala fide and (c) the grounds were vague preventing the detenu from making a proper representation. It is abundantly clear therefore that the decisions in the aforesaid two cases by the Supreme Court do not help the present contention of Mr. Dutt. Apart from the difference in facts as also the points at issue in the aforesaid cases, Mr. Acharya relied on the observations of the Earl of Halsbury, L. C. in the case of Quinn, v. Leathern reported in (1901) A. C. 495, It was observed by the Lord Chancellor at page 506 that

Every judgment must be read as applicable to the particular facts proved or assumed to be proved

and that 'a case is only an authority for what it actuallly decides'. We respectfully agree with the same and find that the analogy sought to be drawn by Mr. Dutt from the aforesaid two decisions by the Supreme Court is unwarranted and untenable. We accordingly hold that the imprimatur of the judicial decisions referred to above lends assurance to the contentions of Mr. Acharya and rules out the interpretation sought to be given to the provisions concerned by Mr. Dilip Kumar Dutt.

9. The point at issue may also be approached from another standpoint viz. a non-conformance to the procedure established by law. In the wellknown case of Taylor v. Taylor reported in (1876) 1 Ch. D, . 426 Jessel M. R observed at p. 431 that

When a statutory power is conferred for the first time upon a court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted...

The said principles were approved of and applied by their Lordships of the Judicial Committee in the case of Nazir Ahmed v. The King Emperor reported, in 63 Ind App 372 : AIR 1936 PC 253 (2) Lord Roche delivering the judgment of the Judicial Committee, observed at pages 381 and 382 that.

the rule which applies is a different and not less well recognized rule viz., that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden'. In a later decision the Supreme Court again reiterated the said principles when in the case of State of Uttar Pradesh v. Sinshara Singh-reported in : [1964]4SCR485 A. K. Sarkar J. (as His Lordship then was) delivering the judgment of the court observed at p. 361 that.The rule adopted in (1876) 1 Ch D. 426 is well recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power is to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so. the statutory provision might as well not have been enacted

We respectfully agree with the said observations and applying the said principles to the facts of the present case, we hold that there has been a non-conformance to the procedure established by law resulting in the detention being invalid.

10. One other point abides our consideration an ancillary point raised by Mr. Dilip Kumar Dutt viz. that Mr. Acharya's interpretation is too technical unreasonably circumscribing the operation of the President's Act No. 19 of 1970 and reducing it to futility. It is difficult however to agree with the contention of Mr. Dutt. There is certainly no chemistry of justice. In the context of Judicial Reforms in England when Ben-tham posed the question 'Does justice require less precision than chemistry the answer given was that 'the precision attainable in the one case is of a nature which the other does not admit'. We respectfully agree with the same and having given our anxious consideration to the matter. we find no reason to differ with the unreported Division Bench decision of this High Court delivered by R. N. Dutt and T. P. Mukherji JJ. on 19-9-68 in Criminal Misc. Case No. 708 of 1968 (Cal). and refer the present case to the Full Bench for a proper determination. We accordingly hold that in order to continue the detention made under Sub-section (1) read with Sub-section (3) to Section 3 of the West Bengal (Prevention) of Violent Activities Act 1970 beyond the period of three months from the date of detention the order of detention must be confirmed by the State Government within the period of three months from the date of detention. The contention raised by Mr. S. K. Acharya relating to confirmation accordingly succeeds.

11. In view of our findings made above, we do not consider it necessary to enter into the merits of the grounds of detention and we refrain from making any observations thereupon.

12. Before we part with the case we must place on record our appreciation of the able manner in which Mr. Acharya and Dr. Dutt, appearing on behalf of the respective parties, placed their cases, sparing no pains to assist the court to. come to a proper decision.

13. In the result the Rule is made abolute; the detention of the detenu, beyond the period of three months from the date of detention, is held to be invalid; and we direct that the detenu, who is on bail, be discharged from his bail bonds and set at liberty forthwith.

A.P. Das, J

14. I agree.


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