Supreme Court Cases
1972 AIR 1446 1972 SCR (3) 165 1972 SCC (1) 456
Supreme Court Cases
1972 AIR 1446 1972 SCR (3) 165 1972 SCC (1) 456
MATHEW, KUTTYIL KURIEN MATHEW, KUTTYIL KURIEN SHELAT, J.M.
KHANNA, HANS RAJ
CITATION: 1972 AIR 1446 1972 SCR (3) 165 1972 SCC (1) 456
CITATOR INFO :
R 1972 SC2173 (4) F 1974 SC2151 (18) R 1978 SC1155 (2,7,8)
Constitution of India, 1950, Art. 22(4) and West Bengal (Prevention of Violent Activities) Act (President's Act 19 of 1970), ss. 12 and 13-Detention beyond three months on Advisory Board's Report-Whether Government should confirm detention order within three months from date of detention.
The petitioner was arrested on May 11, 1971, under s. 3 of the West Bengal (Prevention of Violent Activities) Act, 1970. His case was placed before the Advisory Board and the Board submitted its report to the State Government on July 12, 1971 that there was sufficient cause for the peti- tioner's detention. The State Government confirmed the order of detention on August 17, 1971.
In a petition under Art. 32,
HELD : The detention was illegal, since the State Government confirmed the detention order beyond three months from the date of detention.
Article 22(4) has specified three months as the maximum period of initial detention and detention for a longer period can only be made on the basis of the report of the Advisory Board. Under ss. 12 and 13 of the Act, the State Government has power to detain a person beyond a period of 3 months but limited to a period of one year, on the basis of the opinion of the Board that there is sufficient cause for detention. When the State Government receives the opinion, it has the option either to confirm or not the detention order. It would not be necessary to confirm the detention if the Government wants to continue the detention only for the period of three months. When s. 12(1) speak of 'and continue the detention of the person concerned for such period as it thinks fit', it can only mean continuance of the detention from the point of time at which the detention would become illegal if the order of detention is not confirmed, namely, the expiry of three months from the date of detention. If that he so, the order of detention must be confirmed before the expiry of the three months. [168G;
169C-G] Dattatreya Moreshwar Pangarkar v. State of Bombay,  S.C.R. 612, 626 and Deb Sadhan Roy v. State of West Bengal, W.P. No. 218/71, followed.
Aswini Kumar Banerjee v. State & Ors., C.W.N. LXXV, 1970-71, 866, Kaur Singh v. State, A.I.R. 19,52 PEPSU 134, Sangappa Mulappa v. State of Mysore. A.I.R. 1959 Mys. 7 and Bhupati Goswami v. C. R. Krishnamurthi & Ors., A.I.R. 1969 Assam 14, approved.
ORIGINAL JURISDICTION : Writ Petition No. 420 of 1971.
Under article 32 of the Constitution of India for a writ in the nature of habeas corpus.
166 Santokh Singh, for the petitioner.
P. K. Chakrovorty and G. S. Chatterjee, for the respondent.
The Judgment of the Court was delivered by Mathew, J. This is an application under Article 32 of the Constitution for the issue of a writ in the nature of habeas corpus and for the release of the petitioner who is alleged to be kept in illegal detention.
On 11-5-1971, the petitioner was arrested under an order made on 29-4-1971, by the District Magistrate, 24 Parganas, in the exercise of his power under sub-section (1) read with subsection (3) of section (3) of the West Bengal (Prevention of Violent Activities) Act, 1970 (President's Act No. 19 of 1970), hereinafter called the Act. A copy of the grounds of detention was served on the petitioner as required by section 8 of the Act on 11-5-1971. The District Magistrate reported to the State Government on 4-5-1971 about the passing of the order of detention and the detention order was approved by the State Government on 10-5-1971. The, case of the detenu was placed before the Advisory Board (hereinafter called the Board) on 9-6-1971. Two representations were received by the State Government from the petitioner. They were rejected by orders dated 8-6-1971 and 7-7-1971. The representations were also forwarded to the Board. The Board was of the opinion that there was sufficient cause for the detention and it submitted its report to the State Government on 12-7-1971. The State Government confirmed the order of detention on 17-8-1971 and that was communicated to the detenu on 21-8-1971.
The only point taken on behalf of the petitioner in this writ petition is that since the detention order was confirmed by the State Government only on 17-8-1971, it was beyond 3 months from the date of detention, namely 11-5- 1971, and therefore, the detention of the petitioner after the expiry of 3 months from the date of detention was illegal.
It is necessary to examine the provisions of Article 22(4) of the Constitution and the relevant sections of the Act to decide this question.
Article 22(4) of the Constitution provides "(4) No law providing for preventive detention shall authorise the 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, 167 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 provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7)".
Section 10 of the Act provides that in every case where a detention order has been made under the Act, the State Government shall, within thirty days from the date of detention under the order, place before the Board, 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 specified in sub-section (3) of section 3, also the report made by such officer under subsection (4) of section
3. Section 1 1 prescribes the procedure to be followed by the Board. It says that the Board shall, after considering the materials placed before it and after hearing, the detenu in person, if he desires to be heard, submit its report to the State Government within ten weeks from the date of detention. Section 12 reads as follows "Action upon the report of Advisory Board :
(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." Section 13 provides that the maximum period for which a person may be detained in pursuance to any detention order under section 12 shall be 12 months from the date of detention. Section 14 provides that the State Government may, at any time, revoke or modify the detention order.
Since the appropriate Government has to make the reference to the Board within a period of thirty days from the date of the detention under section 10 and the Board has to submit its report within ten weeks from the date of detention under section 11, there would be ample time for the appropriate Government to 168 consider the report and confirm the detention order within 3 months of the date of detention, if it decides to continue the detention.
Now the Board has got to express its opinion only on the point as to whether there is sufficient cause for detention of the person concerned. It is neither called upon nor is it competent to say anything regarding the continuance of the detention beyond 3 months. Once the Board expresses its view that there is sufficient cause for detention, what action is to be taken subsequently is left entirely to the appropriate Government. If the report records the opinion that there is no sufficient cause for detention but no action is taken by the Government to release the detenu, the detenu is not automatically released. Likewise, if the opinion of the Board is that there is sufficient cause for detention, but the Government does not confirm the order of detention, the period of detention is not automatically extended beyond 3 months. So when the report of the Board is received-and that must be within 3 months-the appropriate Government must apply its mind and make an order or take an executive decision whether to confirm the order of detention or revoke it.
Section 1 1 of the Preventive Detention Act, 1950, where the phraseology employed is the same as in section 12, came up for consideration in Dattatreya Moreshwar Pangarkar v. State of Bombay(1) before this Court and this is what Mukherjea J.
"In my opinion, the words 'for such period as it thinks fit' presuppose and imply that after receipt of the report of the Advisory Board the detaining authority has to make up its mind as to whether the original order of detention should be confirmed and if so, for what further period the detention is to continue. Obviously, that is the proper stage for making an order or decision of this description as the investigation with regard to a particular detenu such as is contemplated by the Preventive Detention Act is then at an end and the appropriate Government is in full possession of all the materials regarding him." Article 22(4) of the Constitution has specified the maximum limit of initial detention, and detention for a longer period than 3 months can only be made on the basis of the report of the Board. The Act authorises a possible detention of more than 3 months. It is because the appropriate Government wants to detain a person for more than 3 months that the matter is referred to the Board and it is only when the Board makes its report that (1)  S.C.R. 612, 626.
169 the appropriate Government can fix the period of detention under sub-section (1) of section (12). So, when the Government receives the report of the Board stating that there is sufficient cause, for detention of a person, if the Government wants to detain him for a period beyond 3 months, it has to pass an order or make a decision under section 12(1) to confirm the order of detention. The confirmation of the detention order without anything more would result in an automatic continuation of the detention, even if there is no separate decision to continue the detention for any specific period as held by this Court in Dattatreya Moresh- war Pangarkar v. Stare of Bombay(1). When section 12(1) of the Act speaks of "and continue the detention of the person concerned for such period as it thinks fit"', it can only mean continuance of detention from the point of time at which detention would become illegal if the order of detention is not confirmed, namely, the expiry of 3 months from the date of detention. It would not be necessary to confirm the order of detention even after the receipt of the report of the Board by the Government if the Government only wants to continue the detention for the period of 3 months from the date of detention, as the initial order of detention would authorise the continuance of detention for that period without any confirmation. Confirmation is necessary only to continue the detention after the expiry of 3 months. If that be so, it stands to reason to hold that the order of detention must be confirmed before the expiry of the 3 months.
To put the matter in a nut-shell : the State Government has power under the Act to detain a person without trial beyond a period of 3 months but limited to a period of one year.
That power the State Government may exercise on the receipt of the opinion of the Board that there is sufficient cause for the detention. When the State Government receives that opinion, it has still the option to exercise the power and to continue the detention beyond the period of 3 months or not. Confirmation is the exercise of the power to continue the detention after the expiry of the three months. Unless that power is exercised within the period of 3 months from the date of detention, the detention after the expiry of that period would be without the authority of the law.
In Aswini Kumar Banerjee v. The State and others(2), the Calcutta High Court, in considering the point in Question has analysed the relevant provisions of the Act in the light of article 22(4) of the Constitution and come to the conclusion that the sine qua non for continuance of the detention made under subsection (1) read with sub-section (3) of section 3 of the Act (1) (1952) S.C.R. 612 (2) Calcutta Weekly Notes, Vol. LXXV, 1970-71 p. 866.
12-L864Sup CI/72 170 beyond the period of the 3 months are (a) a report by the Board submitted to the State Government within 10 weeks from the date of detention recording its opinion that there is SUfficient cause for the detention of the person concerned, and (b) the confirmation thereafter of the said order of detention by the State Government within 3 months from the date of detention.
The question was considered by the High Court of Pepsu in Kaur Singh- v. The State(1) with reference to the provisions of sections 10 and 11 of the Preventive Detention act, 1950, which are In pari materia with sections 1 1 and 12 of the Act, and the Court came to the conclusion that without confirming the detention order within 3 months of the date of detention, the detention of a person cannot be continued after the 3 months. The Court said :
"The argument that the law does not enjoin that there must be an order of confirmation and that the mere fact that it continues to detain the person means that the Government had decided to confirm the initial detention order, ignores a very important and the most effective part of section 11. What section 1 1 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 phrase, read in its context, undoubtedly signifies that the Government, if it decides to continue the detention, must confirm the detention order." In Sangappa Mallappa v. State of Mysore(2), the High Court of Mysore held, after considering the provisions of section 11 of the Preventive Detention Act, 1950, which, as already stated, are identical with those of section 12 of the Act, that to continue the detention of a detenu after the expiry of 3 months from the date of detention, it is essential that the order of detention must be confirmed within the 3 months.
In Bhupati Goswami v. C. R. Krishnamurti and others(3) the High Court of Assam, after considering the scheme of the Preven- (1) A.I.R. 1952 Pepsu 124.
(3) A.1,R. 1969 Assam 14.
(2) A.T.R. 1959 Mysore 7.
171 tive Detention Act, 1950, held that although the provisions of section 11(1) of that Act does not in terms mention any time limit for confirming the order of detention, the time limit of 3 months is implicit. in the entire scheme of the Act.
The question was considered by this Court in Deb Sadhan Roy v. The State of West Bengal(1) and the Court took the view that the order of detention must be confirmed within 3 months of the date of detention : else the detention 'beyond that period would become illegal. We see no reason to doubt the correctness of this decision and we follow it.
We think that the detention of the petitioner is illegal and that he has to be released forthwith. We order accordingly.
V.P.S. Petition allowed.