P.K. Chanda, J.
1. This is an application under Section 491 of the Code of Criminal Procedure filed by Hemaprova Bose on behalf of her son Rabi Bose who has been ordered to be detained by the Commissioner of Police, Calcutta, pursuant to order No. 226(M) dated 27-5-1972 with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The detenu was taken into custody on 27-5-1972. The order of detention was approved by the State Government on 6-6-1972 and it was referred to the Central Government on the same date. Thereafter, the case of the detenu was referred to the Advisory Board on 24-6-1972. The Advisory Board submitted its report on a consideration of the detenu's representation on 31-7-1972 that there was sufficient cause for continued-detention of the detenu. The State Government confirmed the order of detention on 4-8-1972. It appears that the mandatory provisions of the Maintenance of Internal Security Act have all been complied with in the time and manner prescribed by the Act. The State Government on receipt of the report of the Advisory Board confirmed the order of detention under Section 12(1) and directed the detention to continue for 3 years from the date of detention.
2. Section 17-A of the Maintenance of Internal Security Act, 1971, has been struck down by the Supreme Court in the case of Sambhu Nath Sarkar v. State of West Bengal being Writ Petn. No. 266 of 1972 (reported in 1973 Cri LJ 1155) (SC). In that case, Sambhu Nath Sarkar was taken into custody on 29-1-1972 pursuant to an order of the District Magistrate, Hooghly, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
The Supreme Court observed:-
The record before us shows that all the steps required under the Act have been taken and complied with in the time and manner prescribed by the Act. No objection, therefore, to the petitioner's detention on that ground can be validly taken.
As in the present case, the State Government in Sambhu Nath Sarkar's case confirmed the order of detention under Section 12 (1) and directed the detention to continue for 3 years from the date of detention.
The Supreme Court held:-
It is, therefore, enough for us to declare Section 17-A as not having satisfied the requirements laid down in Clause 7 (a) of Article 22 and therefore bad.
The consequence is that the petition succeeds and we direct that the petitioner be released forthwith from his detention.
3. It appears from the judgment of the Supreme Court that submission was made on behalf of the detenu on Section 13 of the Act as amended by Section 6(6)(d) of the Defence of India Act as being in violation of Article 14 and also on Sections 3, 8, 9, 10, 11 and 12 of the Act even as they stood before the enactment of Section 6 (6) (d) of the Defence of India Act on the ground that those provisions were not reasonable restrictions and were therefore void and the subsequent declaration of emergency and the enactment of Section 6 (6) (d) could not breathe life into those provisions which were already void. It was also contended on behalf of the detenu that the maximum period of detention prescribed by the amended Section 13 and Section 17-A (2) (d) of the Act did not satisfy Article 22 (7) (b) since the period fixed by Parliament therein was three years or until the expiry of the Defence of India Act, whichever is later, an event uncertain as no one could anticipate when the emergency would be terminated. The Supreme Court has observed:-
However, in the view we have taken of Section 17-A of the Act, we need not go into them as in accordance with the practice followed by this Court we need not decide more than what is necessary. We, therefore, do not express any views on the aforesaid contentions raised by Counsel.
4. It appears from the judgment of the Supreme Court that the order of detention was set aside on the ground that a new procedure as laid down by Section 17-A which has been found to be bad, had been followed. The effect of the expression 'notwithstanding anything in the foregoing pro-Visions of this Act' appearing in Section 17-A Was to supersede the other provisions of the Act. Section 17-A set up a new procedure which was to govern the class or classes of cases set out in Sub-clauses (a) and (b) of Sub-section (1) of Section 17-A, In the present case also the new procedure which has been found to be bad by the Supreme Court was adopted as will be evident from the fact that the order of detention for three years could be made only on the basis of Section 17-A. This view is strengthened by the facts that in the ground it was stated:-
Under Section 10 read with Section 17-A of the Maintenance of Internal Security Act, 1971, (Act 26 of 1971), your case may be placed before the Advisory Board at any time prior to but in no case later than 3 months before the expiration of two years'; and in the order confirming the detention it wa added:-Now, therefore, in exercise of the powee conferred by Sub-section (1) of Section 12 read with Section 13 and Clauses (c) and (d) of tub-section (2) of Section 17-A of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971) the Governor is pleased hereby to confirm the said detention order No. 226(M) dated 27-5-1972 in respect of the said Shri Rabi Bose and to continue his detention till the expiration of three years from the date of his detention.
By Section 6 (6) (d) of the Defence of India Act, 1971, Section 13 was amended by adding after the words therein 'from the date of detention', the words and figures 'until the expL y of the Defence of India Act, 1971 whichever is later'. For the words 'twelve months' the words 'three years' were substituted by Section 17-A (2d). Section 17-A having been struck down, the words 'twelve months' stand restored to the original position. The Government fixes the period of detention when it confirms the order of detention on receipt of the report of the Advisory Board. From the order dated 4-8-1972 confirming the detention we cannot infer that the State Government might have, possibly intended to detain the detenu for twelve months or until the expiry of the Defence of India Act, 1971. The order of detention for three years is not in conformity with Section 13 - Section 17-A having been struck down. Section 13 no doubt authorises the appropriate Government to revoke or modify the detention order at any earlier time. At present we are concerned with what the State Government has already done and not with what it can do in future.
5. It is a general rule that if any person procures the detention of another he must take care to do so by steps, all of which are entirely regular and that if he adopts a procedure not authorised by the Statute, the Court will not allow the detention to continue. In view of what has been stated earlier, the order of detention in this case is to be struck down and the detenu must go free.
6. In the result, the Rule is made absolute. Let the detenu be set at liberty forthwith.
7. Let this order be sent down to the Superintendent, Berhampore Central Jail, Murshidabad, by a special messenger at tha cost of the petitioner at once.
P.C Borooah, J.
8. I agree.