inal Writ Petition No 1238 of 1978
Under Article 32 of the Constitution for grant of a Writ of habeas corpus
A K Sen and Herginder Singh for the Petitioner
E C Agarwal and Miss A Subhashini for Respondent No 1 M N Phadke and M N Shroff for Respondent No 2 The Judgment of the Court was delivered by SARKARIA J
This is a petition under Article 32 of the Constitution for the grant of a writ of habeas corpus
The petitioner has been detained with effect from October 24 1977 by an order passed by the Secretary to the Government of Maharashtra under Section 3 1 of the for short called COFEPOSA
Reference was made to the Advisory Board on 24 11 1977
At its sitting held on 23 12 i977 the Board rejected the representation of the detenu and opined that there was sufficient cause for the detention
The detention has been challenged mainly on the ground that no order under clause f of Section 8 of the Act confirming the detention was passed by the appropriate Government within three months of the commencement of the detention and as such the continuance of the detention beyond the initial period of three months was violative of the mandate of Article 224 of the Constitution
In support of this contention Mr Asoke Sen appearing for the petitioner has cited five decisions of this Court Shibapada Mukherjee vs State of West Bengal1 Ujjal Mondal vs State of West Bengal2 Deb Sadhan Roy vs State of West Bengal3 Micki Khan etc
vs The State of West Bengal 4 and Satyadeo Parshad Gupta vs State of Bihar5
As against the above Mr Phadke appearing for the State of Maharashtra contends that the view taken in the aforesaid decisions of this Court is not in conformity with the plain language of Article 224
In the counsel s view what Article 224 requires is that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board consisting of persons having the qualifications specified therein reports before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention
This requirement proceeds the argument was fully complied with in 1 A I R 2 A I R 31972 2 SCR 787 4A I R 5  819 the instant case because the Advisory Board had made such a report within three months of the date of detention and within 11 weeks of the receipt of the Reference from the Government
It is stressed that there is nothing in the language of Article 224 or in COFEPOSA which requires that the confirmation of the detention on the basis of the report of the Advisory Board should also be within three months from the commencement of the detention
According to Mr Phadke COFEPOSA on the other hand clearly indicates that an order of confirmation of the detention can be passed by the appropriate Government within a reasonable time even after the expiry of the initial period of three months  detention
In this connection counsel has adverted us to Clause c of Section 8 which requires that the Advisory Board shall on receiving the Reference from the appropriate Government submit its report as to whether or not there is sufficient cause for the detention within 11 weeks from the date of the detention while under the corresponding provisions of the  the period prescribed for the report of the Advisory Board is ten weeks only
The point sought to be made out is that if the Advisory Board makes a report that there is sufficient cause for the detention to the appropriate Government just before the expiry of the aforesaid period of 11 weeks then hardly about 13 or 14 days would be left to the Government to consider whether or not the detention should be confirmed
This period it is contended left to the Government for taking a decision on the report of the Advisory Board is too short from a practical point of view
On the above premises Mr Phadke urges that the aforesaid decisions of this Court none of which was a case of detention under COFEPOSA need reconsideration
Before dealing with these arguments it may be noted that the aforesaid ground of challenge has been specifically adumbrated as Ground No 12 in the petition
In the counter filed on behalf of the respondent State the fact that the order of confirmation of the detention was not passed by the appropriate Government within three months of the date of detention appears to have been impliedly admitted in these terms   
No confirmation is needed on the part of the State Government
After the advice of the Advisory Board the detention of the detenu was continued and the order of the State continuing the detention on the basis of the advice of the Advisory Report was served upon the detenu of 27 2 78
 Nothing has been placed before us to show that the order of detention was in fact passed by the appropriate Government within the requisite period of three months
We therefore take it that the order if any for confirmation of the detention of the petitioner by the Government was made beyond three months of the date of the detention
820 The ground is now clear for considering the legal question raised by Mr Asoke Sen
The decisions cited by Mr Sen primarily proceed on an interpretation of Article 224 of the Constitution though they also in the context examine the relevant provisions of the detention law under which the detention in question in those cases was purportedly made
We can do no better than reiterate what Mathew
J speaking for this Court said in Ujjal Mondal s case supra Article 224 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 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 121 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  When Section 121 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 no t 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 three 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 held that the order of detention must be confirmed before the expiry of 3 months
 The observations extracted above apply mutatis mutandis to the language of clause f of Section 8 which is similar
This clause runs as follows 8
For the purposes of sub clause a of clause 4 and sub clause c of clause 7 of article 22 of the Constitution f in every case where the Advisory Board has reported that there is in 821 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 and in every 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 emphasis supplied The key words in clause f are those which have been underlined
These very words were also employed in Section 121 of the West Bengal Prevention of Violent Activities Act 1970 the interpretation of which had come up for consideration in the context of Article 224 of the Constitution in Ujjal Mondal s case
These words also occurred in Sections 10 and 11 of the  which were in pari materia with Sections 11 and 12 of the 
The expression may confirm in clause f of Section 8 is significant
It imports a discretion
Even where the Advisory Board makes a report that in its opinion there is sufficient cause for the detention of the detenu concerned the Government may not confirm the detention order
Read in the light of Article 224 of the Constitution and the context of the words continue the detention they definitely lead to the conclusion that the sine qua non for continuing the detention made beyond the period of three months is the confirmation the detention order by the appropriate Government
Conversely the non confirmation of the initial order by the appropriate Government before the expiry of the period of three months detention shall automatically result in revocation and termination of the legal authority for its continuance
This position is further clear from the language of Section 10 which provides  The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under clause f of Section 8 shall be one year from the date of detention
 The crucial words in the Section are  which has been confirmed under clause f of Section 8
They under score the same policy which underlies the constitutional mandate in Article 224
These words put it beyond doubt that if the initial order of detention is not confirmed by the appropriate Government within three months of the date of the detention the detention after the expiry of that period ipso facto becomes unauthorised and illegal
We do not find any merit in the contention that since the period prescribed for the Advisory Board to make its report has been increased from 10 weeks as prescribed under MISA to 11 weeks in COFEPOSA leaving only a short period for the Government to take a decision under Section 8f the legislative intent was that the order of confirmation of the detention and its continuance could be made after the expiry of three months from the date of the detention
It is true that in certain situation when the Advisory Board makes its report in favour of the detention just before the expiry of II weeks from the date of the detention the time left to the Govern 822 ment for taking a decision as to the confirmation of the detention and its continuance would be hardly two weeks
That only shows the anxiety on the part of the legislature to ensure that the Government continues the preventive detention of a person beyond three months after due application of mind and for that purpose acts with utmost promptitude
The law does not lend its authority to the continuance of the detention even for a day more than the initial period of three months if the Government does not take a decision for that purpose on the report of the Advisory Board within three months of the commencement of the detention
There is no reason to doubt the law enunciated by this Court in the aforesaid decisions
Respectfully following the ratio of those decisions we hold that since no order of confirmation of the detention was made under clause f of Section 8 within three months of the date of detention by the appropriate Government further detention of the petitioner after the expiry of that period is without the authority of law
In the result we allow this petition quash the detention of the petitioner and direct that he be set at liberty forthwith
Rule made absolute
SR Petition allowed


Summary:
The petitioner was detained with effect from October 24 1977 by an order passed by the Secretary to the Government of Maharashtra under Section 31 of COFEPOSA
The Advisory Board reported on 23 12 77 that there was sufficient cause for the detention but the Government did not pass any order confirming the detention within three months from the date of detention
The petitioner assailed it as violative of article 224 of the Constitution
Allowing the petition the Court
HELD  1
since no order of confirmation of the detention was made under clause f of Section 8 within three months of the date of detention by the appropriate Government further detention of the petitioner after the expiry of that period is without the authority of law
822 C 2The law does not lend its authority to the continuance of the detention even for a day more than the initial period of three months if the Government does not take a decision for that purpose on the report of the Advisory Board within three months of the commencement of the detention
822 A B 3The expression may confirm in clause f of Section 8 of COFEPOSA is significant
It imports a discretion
Even where the Advisory Board makes a report that in its opinion there is sufficient cause for the detention of the detenu concerned the Government may not confirm the detention order
Read in the light of Article 224 of the Constitution and the context of the words continue the detention the expression definitely leads to the conclusion that the sine qua non for continuing the detention made beyond the period of three months
is the confirmation of the detention order by the appropriate Government
Conversely non confirmation of the initial order by the appropriate Government before the expiry of the period of three months detention shall automatically result in revocation and termination of the legal authority for its continuance
This position is further clear from the language of Section 10 which provides  The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under clause f of Section 8 shall be one year from the date of detention
 The crucial words in the Section are  which has been confirmed under clause f of Section 8 They underscore the same policy which underlies the constitu tional mandate in Article 224
These words put it beyond doubt that if the initial order of detention is not confirmed by the appropriate Government within three months of the date of the detention the detention after the expiry of that period ipso facto becomes unauthorised and illegal
821 C F Ujjal Mandal vs State of West Bengal  reiterated Shibapada Mukherjee vs State of West Bengal AIR 1972 SC 1356 Deb Sadhan Roy vs State of West Bengal  Micki Khan etc
vs The State of West Bengal
AIR 1972 SC 2262 and Satyadeo Parshad Gupta vs State of Bihar  referred to 818