Criminal Appeal No 702 of 1989
From the Judgment and Order dated 471988 of the Andhra Pradesh High Court in WP No 8610 of 1988
MC Bhandare and Ms CK Sucharita for the Appellant
Ganesh section Muralidhar TVSN Chari and Raghav for the Respondents
109 The Judgment of the Court was delivered by KN SAIKIA J
Special leave granted
This appeal is from the Judgment and Order of the High Court of Andhra Pradesh at Hyderabad dated 471988 passed in Writ Petition No 86 10 of 1988
The appellant states that he enjoys popularity in his area and that he previously held several important positions in the Cuddapah District of Andhra Pradesh such as organis ing Secretary of the Andhra Pradesh Congress Committee for several years a Municipal Councillor from 1982 to 1986 and a Vice Chairman of Cuddapah Municipal Council
According to him in December 1985 he was elected as a Chairman of the Cuddapah Municipal Council for its residuary term and in March 1987 he was elected to the Municipal Council as an independent candidate defeating the Telugu Desam and Con gress I candidates by a large margin
It is his case that the local leadership of the ruling Telugu Desam Party
having failed to woo him into their fold he was pressurised through the Excise and Police authorities foisting false cases upon him
On 13111987 the police having summoned him to the Police Station for taking his photograph as was done in case of criminals he moved the Andhra Pradesh High Court by Writ Petition No 79038 of 1987 and the High Court was pleased to issue directions as prayed for by its order dated 17121987
Thereafter the excise authorities are stated to have registered some cases against the appellant who applied for and was granted bail on 1051988 rejecting the Excise authorities  prayer for custody
Scenting a move to detain the appellant under the provisions of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers Dacoits Drug Offenders Goondas Immoral Traffic Offenders and Land Grabbers Act 1986 hereinafter referred to as the Act  the appellant filed Writ Petition No 8610 of 1988 on 661988 in the Andhra Pradesh High Court averting inter alia that the successive actions initiated against him were a part of political vendetta
A learned Single Judge on 861988 was pleased to direct interim the respondents not to take the appellant into preventive custody for a period of 15 days on basis the cases already registered
However on 1061988 the appellant was served the detention order in SNo
71988 dated 361988 as well as the grounds of deten tion and he was taken into custody and detained in Secun derabad jail but was released after four days
The deten tion order stated that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order it was 110 necessary to make an order directing that he shall be de tained
 The grounds of detention as served upon the appel lant contained altogether 13 grounds ranging a period from 23111974 to 751988
The appellant filed on 2561988 in his writ petition a miscellaneous petition being WPMPSR No 51830 as an additional affidavit stating inter alia that the writ petition was filed by him seeking a direction to the re spondents to refrain from making an order detaining him under the provisions of the Act and the same was admitted and interim direction issued
But thereafter the detention order in SNo 7 of 1988 dated 361988 was served on him on 1061988 and therefore he submitted the additional affi davit with reference to the impugned order of detention
He assailed therein the grounds of detention as vague stale non existent and in any case irrelevant bearing no reasons for the decision that his detention was necessary to prevent him from acting in a manner prejudicial to the maintenance of public order
He also assailed the order on grounds of non application of mind by the respondent NO 2 and absence of nexus between the grounds and maintenance of public order and of non disclosure of any rational basis for formation of such an opinion
He refuted and denied each of the 13 grounds and prayed that the writ petition be amended by substituting the prayer so as to issue a writ order or direction and more particularly one in the nature of writ of mandamus declaring the order of the Collector and District Magistrate respondent No 2 herein in SR No 7 of 1988 dated 361988 made under Act 1 of 1986 as illegal and void and to pass such other orders as are necessary in the inter ests of justice
Admittedly no specific order was passed on this miscellaneous petition
It appears that a Counter Affidavit was filed in the writ petition on behalf of the respondents and the appellant filed a reply affidavit there to
A Division Bench of the High Court of Andhra Pradesh on reference by the learned Single judge heard the writ peti tion analogously with another writ petition and observing inter alia that as an order of detention was made even before the writ petition was filed held that the prayer in the writ petition had become infructuous and that there were no extraordinary or special reasons to depart from the normal rule namely that in such a case the appellant should first surrender and move for a writ of habeas corpus and accordingly dismissed the writ petition
Mr MC Bhandare the learned counsel for the appellant submits inter alia that the High Court erred in dismissing the appellant s 111 writ petition holding that there were no extraordinary circumstance or special reasons to depart from the normal rule that the appellant in such a case should first surren der and then move a petition for habeas corpus thereby refusing to grant relief to the appellant against infringe ment of his fundamental right to liberty and that the grounds of detention were vague irrelevant stale and non existent having no relation to the stated purpose of deten tion and there was mala fide exercise of power and complete non application of mind on the part of the detaining author ity for which the grounds of detention ought to have been rejected and the detention order set aside
Counsel relies on a decision of the Bombay High Court reported in 19811 Crl
LJ 767 and one of the Gujarat High Court since re ported in AIR 1978 Gujarat 253
Counsel further submits that the detention order having not been approved by the State Government as required under section 33 of the Act and the appellant s case having not been placed before the Advisory Board as required under section 10 the detention order ceased to be in force and hence is liable to be quashed
Mr MS Ganesh the learned counsel for the respondents submits that the detention order having been passed before the writ petition was filed the High Court was right in dismissing the same following the court s practice and procedure and that there were no extraordinary or special reasons to depart from the normal rule inasmuch as granting relief at such a stage would defeat the very purpose of the Act
Counsel however could not deny that the detention order was not approved by the State Government and that the appellant s case was not placed before the Advisory Board
The first question to be decided therefore is whether the High Court was right in dismissing the writ petition holding that the rule or practice of the High Court in such a case was to interfere only where there were extraordinary or special reasons and otherwise to leave the appellant to first surrender and then move a petition for habeas corpus
From a perusal of the Judgment of the High Court it appears that it analysed the question of maintainability of the writ petition from two view points namely of the High Court s power and the High Court s rule or practice
The High Court correctly analysed the power of the High Court to interfere in such a case under Article 226 of the Constitu tion of India concluding that the High Court had power to interfere
While tracing the High Court s evolving rule or practice the Bench took the view that it was but appropri ate and proper that the 112 court evolved and followed a practice and procedure where it would not ordinarily entertain a challenge to a preventive detention unless the person concerned submitted himself to the order and not to encourage persons against whom orders of preventive detention were made by the competent authority under a valid enactment to avoid the process of law and at the same time seek the protection of law from this Court
Relying on several decisions of its own the Court observed There is no presumption that any and every order of detention is bad
The normal rule shall therefore be surrender to the order first and then approach this Court
 Only in extraordinary cases where it appears that the State is exercising its power under a preven tive detention statute for an oblique purpose or in an outrageous andor vindictive manner or where the order of detention is ex facie invalid would this Court depart from this rule
Now what would be such extraordi nary case cannot and indeed should not be defined or specified
It is better left to the sound judgment and decision of this Court
 The High Court on facts of the appellant s writ peti tion observed that the allegations that the entire adminis trative machinery was being misused by the local MLA who happened to be a Cabinet Minister to hound the appellant and that the Collector and District Magistrate was being used as a tool were not correct and therefore said Once we are of the opinion that there are no extraordinary or special reasons to depart from the normal rule we will not look into or examine the relevance or correctness of the grounds as we would do in a writ of habeas corpus
 The writ petition was accordingly dismissed
Mr Bhandare submits that when the appellant s fundamen tal right to liberty was threatened through the machination of a detention order he approached the High Court for protection and when despite the interim order of the High Court his fundamental right was violated by detaining him after serving the order of detention on vague stale irrel evant and non existent grounds though he was released after four days he ought not to have been denied relief on the ground of there having evolved a practice or procedure of the Court not to interfere in such a case except where there were extraordinary or special reasons 113 and to leave the appellant to surrender and then move a petition for habeas corpus
We find force in this submis sion
As the detention order was already passed and served and the detenu was already taken into custody during the pendency of the writ petition these subsequent events having been brought to the notice of the court by a Misc
application in the form of an Additional Affidavit the same ought to have been dealt with by the High Court
In Jayantilal Bhagwandas Shah vs The State of Maharash tra  the challenge was directed towards orders of detention passed under the  but the intended detenus under those orders were not in detention
The State having raised a preliminary objec tion to the maintainability of the petition on the ground that the habeas corpus jurisdiction under article 226 of the Constitution was exercisable only to examine the legality of a detention where there was a detention and in no other case a Division Bench of the Bombay High Court took the view that though the writ of habeas corpus might be issued only when there was actual illegal detention that was not to say that an illegal order of detention could not be successfully challenged
In para 11 of the report the Court held article 226 is couched in language wide enough to protect a person against an illegal inva sion of his fight to freedom by protecting him while still free and by regaining his freedom for him if he has already been wrongfully detained
We cannot countenance and do not accept the Advocate General s submission that the High Courts are impotent to give relief against the prospect of illegal detention and must first require the intended detenu to surrender to the illegal detention
We are satisfied that the High Courts may under the provisions of article 226 issue a direction order and writ in the nature of mandamus andor certiorari quashing an illegal order of detention and may by direction order and writ in the nature of prohibition enjoin the person threatening the illegal detention from execut ing the threat
 Accordingly the Court held that it would intervene to strike down an illegal order of detention
If the court could in matters of personal liberty intervene on the strength of a mere post card they surely could intervene on the strength of a petition though they may seek the 114 wrong relief or be phrased in the wrong form
The position of a person who is actually under illegal detention and of a person who is in imminent jeopardy of illegal detention are not far dissimilar
We are inclined to agree with this view as we feel that refusal to interfere in such a case may amount to denial of the fundamental right itself
A Full Bench of the Gujarat High Court in Vedprakash Devkinandan Chiripal vs State of Gujarat since reported in AIR 1987 Gujarat 253 where the petitioner was said to be detained under the provisions of Prevention of Blackmarket ing and maintenance of Supply of Essential Commodities Act 1980 and the petitioner having absconded a notification was issued in the official gazette as provided under section 71b of the said Act and the person moved the petition under article 226 of the Constitution of India praying a writ of habeas corpus or a writ of mandamus the question was whether the petition would be maintainable before the detenu had been served with order of detention and had been de tained in custody answered the question in the affirmative
Relying on the decisions in AK Gopalan vs State of Madras  and Addl
District Magistrate Jabalpur vs Shivakant Shukla   the Full Bench took the view that before detention if writ of mandamus is moved for challenging unauthorised detention order which is al ready passed on the ground that the order is a nullity because it is passed a by an incompetent person or b it is a mala fide order or c it is contrary to the legal procedure prescribed for passing such order or d it is otherwise a nullity for any other reason for example passed against a wrong person it cannot be said that such challenge would be per se not maintainable
 We are inclined to agree inasmuch as it would be a challenge to an existing order of detention which is posing an imminent threat to a fundamental right of the named person guaranteed under article 21
There could therefore be no reason why in such an exceptional and rare case detention order already made and either served or yet to be served and the person is still free could not be legally brought under challenge
Article 2261 of the Constitution of India notwith standing anything in Article 32 empowers the High Court throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within those territo ries directions orders or writs including writs in the nature of habeas corpus mandamus prohibition quo warranto and certiorari or any of them for the enforcement of any of the rights conferred by Part III and for any other pur pose and it also envisages 115 making of interim orders whether by way of injunction or stay or in any other manner in such a proceeding
Article 21 giving protection of life and personal liberty provides that no person shall be deprived of his life or personal liberty except according to procedure established by law
For en forcement of one s right to life and personal liberty resort to Article 2261 has thus been provided for
What is the ambit of enforcement of the right The word enforcement  has also been used in Article 32 of the Constitution which provides the remedy for enforcement of fights conferred by Part III of the Constitution
The word enforcement  has not been defined by the Constitution
According to Collins English Dictionary to enforce means to ensure observance of or obedience to a law decision etc
Enforcement according to Webster s Comprehensive Dictionary means the act of enforcing or the state of being enforced compulsory execu tion compulsion
Enforce means to compel obedience to laws to compel performance obedience by physical or moral force
If enforcement means to impose or compel obedience to law or to compel observance of law we have to see what it does precisely mean
The right to life and personal liberty has been guaranteed as a fundamental right and for its enforce ment one could resort to Article 226 of the Constitution for issuance of appropriate writ  order or direction
Precisely at what stage resort to Article 226 has been envisaged in the Constitution When a right is so guaranteed it has to be understood in relation to its orbit and its infringement
Conferring the right to life and liberty imposes a corre sponding duty on the rest of the society including the State to observe that fight that is to say not to act or do anything which would amount to infringement of that right except in accordance with the procedure prescribed by law
In other words conferring the fight on a citizen involves the compulsion on the rest of the society includ ing the State not to infringe that right
The question is at what stage the right can be enforced Does a citizen have to wait till the right is infringed Is there no way of enforcement of the right before it is actually infringed Can the obligation or compulsion on the part of the State to observe the fight be made effective only after the right is violated or in other words can there be enforcement of a fight to life and personal liberty before it is actually infringed What remedy will be left to a person when his right to life is violated When a right is yet to be violat ed but is threatened with violation can the citizen move the court for protection of the right The protection of the right is to be distinguished from its restoration or remedy after violation
When right to personal liberty is guaran teed and the rest of the society including the State is compelled or obligated not to violate that right and if someone has threatened to violate it or its violation is imminent 116 and the person whose right is so threatened or its violation so imminent resorts to Article 226 of the Constitution could not the court protect observance of his right by restraining those who threatened to violate it until the court examines the legality of the action Resort to Article 226 after the right to personal liberty is already violated is different from the pre violation protection
Post viola tion resort to Article 226 is for remedy against violation and for restoration of the right while pre violation pro tection is by compelling observance of the obligation or compulsion under law not to infringe the right by all those who are so obligated or compelled
To surrender and apply for a writ of habeas corpus is a post violation remedy for restoration of the right which is not the same as restrain ing potential violators in case of threatened violation of the right
The question may arise what precisely may amount to threat or imminence of violation
Law surely cannot take action for internal thoughts but can act only after overt acts
If overt acts towards violation have already been done and the same has come to the knowledge of the person threat ened with that violation and he approaches the court under article 226 giving sufficient particulars of proximate actions as would imminently lead to violation of right should not the court call upon those alleged to have taken those steps to appear and show cause why they should not be restrained from violating that right Instead of doing so would it be the proper course to be adopted to tell the petitioner that the court cannot take any action towards preventive justice until his right is actually violated whereafter alone he could petition for a writ of habeas corpus In the instant case when the writ petition was pending in court and the appellant s right to personal liberty happened to be violat ed by taking him into custody in preventive detention though he was released after four days but could be taken into custody again would it be proper for the court to reject the earlier writ petition and tell him that his petition has become infructuous and he had no alternative but to surrender and then petition for a writ of habeas corpus The difference of the two situations as we have seen have difference legal significance
If a threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation the rights remain protected and the compulsion against its violation is enforced
If the right has already been violated what is left is the remedy against such violation and for restora tion of the right
In KK Kochunni vs The State of Madras and Ors 1959 Suppl
2 SCR 316 where the grievance of the petitioner was that the Madras Marumakkathayam Removal of Doubts Act 1955 Act 32 of 1955 117 provided in section 2 of the Act that notwithstanding any decision of court any Sthanam which fulfilled the conditions stated in the section shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which the provisions of the Madras Marumakkathayam Act 1932 shall apply and thus unlike other Acts that contemplated some further action to be taken by the State after the enactment had come into force automatically took away or abridged a person s fundamental right as right to property then was immediately it came into force a Consti tution Bench of this Court speaking through Das CJ held that there was no reason why the aggrieved person should not immediately be entitled to seek the remedy under article 32 of the Constitution
The argument that an application under article 32 could not be maintained until the State had taken or threatened to take any action under the impugned law which again if remedy to be taken would infringe the petitioner s fundamental rights was negatived by this Court holding that in cases arising under those enactments the proprietors could invoke the jurisdiction of this Court under article 32 when the State did or threatened to do the overt act emphasis supplied
It was observed that quite conceivably an enactment may immediately on its coming into force take away or abridge the fundamental rights of a person by its very terms and without any further overt act being done
The impugned Act was said to be an instance of such enactment
In such a case it was held the infringement of the funda mental right was complete eo instanti the passing of the enactment and therefore there could be no reason why the person so prejudicially affected by the law should not be entitled immediately to avail himself of the constitutional remedy under article 32
It was also observed that to say that a person whose fundamental right had been infringed by the mere operation of an enactment was not entitled to invoke the jurisdiction of this Court under article 32 for the en forcement of his fight would be to deny the benefit of a salutary constitutional remedy which was itself his funda mental right
The same reasoning is applicable to the facts of the instant case inasmuch as the detention order was already passed and served and the appellant was already taken into custody and though released after 4 days the Government could at any time cancel his release under sec tion 15 of the Act
In the Special Reference No 1 of 1964 reported in   the Constitution Bench speaking through Gajendragadkar CJ held at page 493 If a citizen moves this Court and complains that his fundamental fight under article 21 had been contravened it would 118 plainy be the duty of this Court to examine the merits of the said contention and that inevitably raises the question as to whether the personal liberty of the citizen has been taken away according to the procedure estab lished by law
In fact this question was actually considered by this Court in the case of Pandit Sharma 1959 Supp 1 SCR 806 The same law applies to a High Court moved under Article 226 of the Constitution of India against similar contravention
In MC Mehta vs Union of India 1987 1 SCC 395 the Constitution Bench speaking through Bhagwati CJ said We are also of the view that this Court under Article 321 is free to devise any procedure appropriate for the particular purpose of the proceeding namely enforcement of a fundamental right and under Article 322 the Court has the implicit power to issue whatever direction order or writ is necessary in a given case including all incidental or ancillary power necessary to secure enforcement of the fundamental right
The Power of the Court is not only injunctive in ambit that is preventing the infringement of a fundamental right but it is also remedial in scope and provides relief against a breach of the fundamental right already committed vide Bandhua Mukti Morcha case  If the court were powerless to issue any direction order or writ in cases where a fundamental right has already been vio lated Article 32 would be robbed of all its efficacy because then the situation would be that if a fundamental right is threatened to be violated the court can injunct such violation but if the violator is quick enough to take action infringing the fundamen tal right he would escape from the net of Article 32
That would to a large extent emasculate the fundamental right guaranteed under Article 32 and render it impotent and futile Despite the power of the State says Jean Dabin there are always smart people who contrive to violate the laws without incurring the rigours of compulsion or again certain rules are psychologically or technically awkward to apply so that the machinery of compulsion lends them but insufficient aid
In any case actual inefficacy or impo tence of compulsion can affect the validity of the rule even less than disobedience that validity binds and continues to bind by virtue of 119 the very disposition made by the rule
 Analytical positivist concept of right has been differ ently analysed
Hohfeld writing on fundamental legal con cepts as applied in judicial reasoning analysis four ideas
One of those is that a right may be claim right
P has a right to do X it means to indicate that Q or everyone else has a duty to let P do X
The existence of such a duty gives P some sort of claim against Q Claim rights may be either in personam or in rem
A claim right in personam co relates to a duty of a person while claim rights in rem co relate to duties in principle incumbent on everyone
A right en joyed by one thus co relates to a duty on the part of oth ers
In Hans Kelsen s analysis it is usual to oppose the concept of right to the concept of obligation and to cede priority of rank to the former as we speak of rights and duties
The behaviour of one individual that corresponds to the obligated behaviour of the other is usually designated as a content of a right  as an object of a claim  that corresponds to the obligation
The behaviour of the one individual that corresponds to the obligated behaviour of the other particularly the claiming of the obligated beha viour is designated as exercising a right In case of an obligation to tolerate something the behaviour of the one corresponding to the obligation of the other is spoken of as enjoyment  of the right
According to Kelsen the right  or a claim  of an individual is merely the obligation of the other individual or individuals
When we speak of a right as a legally protected interest in the words of Kelsen it refers to a right as the reflex of a legal obligation
Right is often understood as a will power conferred by law
A right  in the sense is present if the conditions of the sanction that constitutes a legal obligation includes a motion normally of the individual in relation to whom the obligation exists the motion is aimed at the execution of the sanction and has the form of a legal action brought before the law applying organ
Then this organ may apply the general norm to effectuate the fight which is the reflex of the legal obligation by executing the sanction
The right which is the reflex of legal obligation is equipped with the legal power of the entitled individual to bring about by a legal action the execution of a sanction as a reaction against the non fulfilment of the obligation whose reflex is his right or as it is sometimes called the enforcement of the fulfilment of this obligation
To make use of this legal power of motion is exercise of the right
In this sense each right of an individual contains a claim to the behaviour of another individual namely to that behaviour to which the second individual is obligated toward the first the beha viour that constitutes 120 the content of the legal obligation identical with the reflex right
If an individual towards which another indi vidual is obligated to a certain behaviour does not have the legal power to bring about by a legal action the execu tion of a sanction as a reaction against the non fulfilment of the obligation then the act by which he demands fulfil ment of the obligation has no specific legal effect the act is legally irrelevant except for not being legally prohib ited
Therefore a claim  as legally effective act exists only when a law exists which means that an individual has the legal power
The subject of a right may be not only one individual but two or several individuals including the State
In the language of Kelsen the right of an individual is either a mere reflex right the reflex of a legal obligation existing towards this individual or a private right in the technical sense the legal power bestowed upon an individual to bring about by legal action the enforcement of the ful filment of an obligation existing toward him that is the legal power
From the above analysis it is clear that in the instant case the appellant s fundamental right to liberty is the reflex of a legal obligation of the rest of the society including the State and it is the appellant s legal power bestowed upon him to bring about by a legal action the enforcement of the fulfilment of that obligation existing towards him
Denial of the legal action would therefore amount to denial of his right of enforcement of his right to liberty
A petition for a writ of habeas corpus would not be a substitute for this enforcement
We therefore proceed to consider the merits of this case instead of remanding to the High Court to avoid further delay
Mr Bhandare s submission is that the detention order having not been approved by the State Government under sub section 3 of section 3 it had ceased to be in force after 12 days of its being made
We find force in this submission on the facts of the case
Section 3 of the Act provides the power to make detention orders
Sub section 1 thereof empowers the State Government to make a detention order
Sub section 2 empowers the State Government to authorise a District Magistrate or a Commissioner of Police to exercise the powers conferred by sub section 1 during such period as may be specified in the order not exceeding three months at the first instance with power to extend such period from time to time by any period not exceeding three months at any one time
Admittedly the impugned detention order was passed by the District Magistrate in exercise of powers under section 2
Sub section 3 is to the following effect 121 When any order is made under this section by an officer mentioned in sub section 2 he shall forthwith report the fact to the Govern ment together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government
 Examining the records we find that before the High Court in the Misc
case WPMPSR 51830 in the form of an Additional Affidavit at para 11 it was urged Apart from the infirmities stated above which vitiate the order statutory requirement of reporting to the Government and obtaining approval of the Government within the pre scribed time has not been complied with
 In the counter affidavit filed by the Collector and District Magistrate in the High Court to the writ petition as well as the WPMP there was no reply to para 11 of the WPMP and it was nowhere stated that the detention order was approved by the State Government
In this Court in the Special Leave Petition Ground No V is as follows The Hon ble High Court has erred in not noting the infirmity in the order of detention inasmuch as the approval of State Government of Andhra Pradesh for the order of the deten tion made by the District Magistrate Cuddapah was not obtained within the period of 12 days as enjoined under sub section 3 of section 3 of the Act
The order is therefore non est in law In the Counter Affidavit of the Collector and District Magistrate there was not even a whisper in denial of this fact
The learned counsel for the respondents at the heating could not deny before us that the detention order had not been approved by the Government within 12 days
On his request time was granted to produce materials
He has now filed reply affidavit on behalf of the respondents to the rejoinder affidavit filed by the appellant
Scanning this affidavit also we do not find any statement that the deten tion order was approved
Though the learned counsel submits that it was 122 approved in view of the above affidavits it cannot be acted upon
We have therefore no other alternative than to hold that the detention order had not been approved by the State Government within 12 days of its being made
The result is that the order could not claim in force more than 12 days after making thereof and as such must be treated as to have ceased to be in force and non existent thereafter
Mr Bhandare then submits that the case of the appellant was not at all referred to the Advisory Board under section 10 of the Act
This too has not been denied by the learned counsel for the respondents
Section 10 of the Act provides for reference to the Advisory Board and says In every case where a detention order has been made under this Act the Government shall within three weeks from the date of detention of a person under the order place before the Advisory Board constituted by them 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 the case where the order has been made by an officer also the report by such officer under sub section 3 of section 3
 Section 11 of the Act prescribes the procedure for the Advisory Board
Under sub section 1 of section 12 in any case where the Advisory Board has reported that there is in his opinion sufficient cause for the detention of a person the Government may confirm the detention order and continue the detention of person concerned for such period not ex ceeding the maximum period specified in section 13 as they think fit
Under sub section 2 thereof in any case where the Advisory Board has reported that there is in his opin ion no sufficient cause for the detention of the person concerned the Government shall revoke the detention order and cause the person to be released forthwith
Thus section 10 makes it mandatory for the Government to place the ground on which the order has been made and the representation if any made by the person affected by the order and in the case where the order has been made by an officer also the report by officer under sub section 3 of section 3
This section prescribes a period of 3 weeks from the date of detention irrespective of whether the person continues to be in deten tion or not
Therefore even though the detenu was released if the detention order was in force his case was required to be placed before the Advisory Board
This being a manda tory provision and having not been complied with the deten tion order even if 123 otherwise it was in force cannot be said to have been in force after three weeks
Under Article 22 of the Constitu tion of India a person cannot be kept in detention beyond three months without referring his case to an Advisory Board under the appropriate law
In either case the appellant s case having not been referred to an Advisory Board the detention order cannot be said to have remained in force after the statutory period
It is therefore not necessary to go into the validity or otherwise of the grounds of detention
In the result we set aside the impugned Judgment of the High Court and hold that the detention order ceased to be in force after 12 days of making thereof and even if it was in force it ceased to be in force for failure to refer the appellant s case to Advisory Board within the time pre scribed by law and accordingly we quash the same
The appeal is accordingly allowed
After the Judgment was finalised another affidavit on behalf of the respondents affirmed by one belonging to the office of the Advocate on Record has been circulated
This affidavit is not acceptable
Even if it was accepted it would not affect the ultimate legal position
RSS Appeal allowed


Summary:
In a Writ Petition filed before the High Court the respondents a group of medical graduates challenged the prospectus for admission to the post graduate medical courses for the year 1989 which prescribed 31st May 1989 as cut off date of eligibility as contrary to the direc tions of this Court in Dr Dinesh Kumar  Ors
vs Motilal Nehru Medical College Allahabad  Ors  Finding that the timeframe set by this Court was not adhered to the High Court quashed the prospectus to the extent that the cut off date of eligibility was fixed as 3151989
In the appeal before this Court the appellants contend ed that as the All India Entrance Examination held by the All India Institute of Medical Sciences was not conducted in time as fixed by this Court and intimation of the results was sent late the scheme formulated by the Court was not being implemented properly
The examining body in its affidavit expressed regrets and assured that there would not be any default in future
Disposing of the Writ Petition this Court HELD The relevant directions of this Court have not been followed by the examining body for the current year
Similarly the State did not follow the directions while drawing up its prospectus
If the courses of study were to commence from May 2 the last qualifying date could not have been fixed as May 31 1989
Everyone including the States the Union Territories and other authorities running Medical Colleges with Post Graduate Courses are bound by this Court s order and must strictly follow the time schedule laid down therein in this regard
A serious view would be taken if any violation of this Court s 169 order is brought to notice in future
Everyone concerned should comply with the time frame strictly and there should be no lapse in this regard in future
171C E F The mistake of the State in fixing a date beyond the cut off date fixed by this Court has misled a group of candidates
It is in the interest of all that this mistake should be condoned and admissions for this year should be permitted on the basis of the result of the selection exami nation with 31st of May 1989 as cut off date
This depar ture is confined to the present year only
172A B Dr Dinesh Kumar  Ors
vs Motilal Nehru Medical Col lege Allahabad  Ors