Criminal Appeal No 72 of 1987
From the Judgment and order dated 21101986 of the Gujarat High Court in Spl
Appeal No 889 of 1986
Ram Jethmalani Ms Rani Jethmalani and AK Sharma for the Appellant
TU Mehta MN Shroff and KMM Khan for the Respond ents
The Judgment of the Court was delivered by CHINNAPPA REDDY J
We grant special leave and proced to hear the apeal
The appellant Abdul Latif Wahab Sheikh was in jail from November 12 1985 onwards awaiting trial on a charge of murder
He was acquitted on May 26 1986
Though acquitted he was not straightaway released from prison
The reasons are not clear to us from the record
Presumably he was required in connection with some other case
He was due for release from prison on June 23 1986
On that day however an order for his detention was made under the provisions of the Gujarat Prevention of Anti Social Activities Act 1985
The mandate of article 224 of the Constitution 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 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 206 period of three months that there is in its opinion suffi cient cause for such detention
Section 10 of the Gujarat Prevention of Anti Social Activities Act 1985 provides for the constitution of an Advisory Board sec
11 provides for reference to the Advisory Board and sec
12 prescribes the procedure to be followed by the Advisory Board
What is important for the purposes of this case is that sec
11 stipulates that in every case where a detention order has been made under the Act the State Government shall within three weeks from the date of detention of a person under the order place before the Advisory Board the grounds on which the order has been made the representation if any made by the detenu and the report if any of the authorised offi cer
What is intriguing in the case is that on the date when the detention order was made there was no Advisory Board in existence to which a reference could be made under sec
11 of the Act and whose report of its opinion regarding suffi cient cause for the detention was required to be obtained within three months of the detention under article 224 of the Constitution
The period of three weeks stipulated by sec
11 of the Act expired on July 14 1986
The petitioner was entitled to be released on July 14 1986 as no reference had been made to the Advisory Board within the period contem plated by sec
11 of the Act
But he was not so released
This state of affairs continued till August 7 1986 when the order of detention dated June 23 1986 was revoked and a fresh order of detention was made on the same facts on the same day
In the meanwhile the order of detention dated June 23 1986 had been challenged by filing a writ petition in the High Court
Consequent on the revocation of that order that writ petition was withdrawn as having become infructuous and another writ petition out of which the present appeal arises was filed questioning the second order of detention dated August 7 1986
The Advisory Board was constituted on August 18 1986
Reference to the Adviso ry Board was made on August 20 1986
The Advisory Board made its report on September 26 1986
It will be seen that the report of the Advisory Board was more than three weeks after the detention which commenced on the making of the order of detention though it was within three months from the date of the second order of detention
The learned counsel for the appellant contends that there has been a contravention of the constitutional protection afforded by article 224 and therefore the appellant is entitled to be set at liberty
He does not dispute that under sec
152 of the Gujarat Prevention of Anti Social Activities Act the expiry or revocation of an earlier detention order shall not bar the making of a subsequent detention order under the Act against the same person subject to the proviso that if there were no fresh facts the maximum period for which a person may be detained shall not extend beyond the expiry of 207 a period of 12 months from the date of detention under the earlier detention order
He submits that this provision if to be sustained as constitutionally valid must be read down so that it does not offend the mandate of article 224 of the Constitution that no law providing for preventive deten tion shall authorise the detention of a person for a longer period than three months unless the Advisory Board has reported within the period of three months that there is in its opinion sufficient cause for such detention
On the other hand the learned counsel for the State of Gujarat submits that it is enough if the report of the Advisory Board is obtained within three months of the subsequent order of detention where the earlier order is revoked and a subsequent order is made
The real question for consideration is whether a law may be made providing for successive orders for detention in a manner as to render the protection of article 224 of the Constitution ineffective For example can a fresh order of detention be made every 89th day making it unnecessary to obtain the report of the Advisory Board within three months of the detention That is what it will amount to if the submission of he learned counsel for the State is accepted
It therefore becomes imperative to read down sec
15 of the Gujarat Prevention of Anti Social Activities Act 1985 which provides for the making of successive of order of detention so as to bring it in conformity with article 224 of the Constitution
If there is to be a collision between article 224 of the Constitution and sec
15 of the Act sec
15 has to yield
But by reading down the provision the colli sion may be avoided and sec
15 may be sustained
So avoid ing the collision course we held that if the report of the Advisory Board is not made within three months of the date of detention the detention becomes illegal notwithstanding that it is within three months from the date of the second order of detention
The learned counsel for the petitioner invited our attention to the decision of the court in Shibapada Mukher jee vs State of West Bengal  where the court referring to clauses 4 and 7 of article 22 observed
It is clear from clauses 4 and 7 of Article 22 that the policy of Article 22 is except where there is a Central Act to the contrary passed under clause 7 a to permit detention for a period of three months only and detention in excess of that period is permissible only in those cases where an Advisory Board set up under the relevant statute 208 has reported as to the sufficiency of the cause for such detention
Obviously the Constitution looks upon preventive detention with disfavour and has permitted it only for a limited period of three months without the intervention of an independent body with persons on it of judicial qualifications of a high order
The facts that the report of such an Advisory Board has to be obtained before the expiry of three months from the date of detention shows that the maximum period within which the detaining authority can on its own satisfaction detain a person is three months The observation of the court to the extent that they go to support the contention of the learned counsel for the appel lant but we must say that in that case the court was not confronted with the present situation at all
The learned counsel for the State referred us to AK Roy vs Union of India   where the court referring to an argument based on sec
112 of the National Security Act said Section 112 of the Act provides specifical ly that the report of the Advisory Board shall specify its opinion as to whether or not there is sufficient cause for the detention of the person concerned
This implies that the question to which the Advisory Board has to apply its mind is whether on the date of its report there is sufficient cause for the detention of the person
That inquiry neces sary involves the consideration of the ques tion as to whether there was sufficient cause for the detention of the person when the order of the detention was passed but we see no justification for extending the jurisdiction of the Advisory Board to the consideration of the question as to whether it is necessary to continue the detention of the person beyond the date on which its report or beyond the period of three months after the date of detention
 The learned counsel for the State also invited our attention to the decision of a learned single Judge of this Court rendered during the vacation in Talib Hussain vs State of Jummu  Kashmir  where he observed In regard to the submission that the peti tioner was arrested and deprived of his person liberty long before the order of his arrest and this invalidated his detention it is 209 sufficient to point out that in habeas corpus proceeding the Court has to consider the legality of the detention on the date of hearing If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law a writ of habeas corpus cannot issue
 Neither of the cases cited by the learned counsel for the State deal with the question now at issue even in a remote way
They do not have any application
We only desire to add that in a habeas corpus proceeding it is not a sufficient answer to say that the procedural requirements of the Constitution and the statute have been complied with before the date of hearing and therefore the detention should be upheld
The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority
The procedural requirements are there fore to be strictly complied with if any value is to be attached to the liberty of the subject and the constitution al rights guaranteed to him in that regard
If a reference to an Advisory Board is to be made within three weeks it is no answer to say that the reference though not made within three weeks was made before the hearing of the case
If the report of the advisory Board is to be obtained within three months it is no answer to say that the report though not obtained within three months was obtained before the hear ing of the case
If the representation made by the detenu is required to be disposed of within a stipulated period it is not answer to say that the representation though not dis posed of within three months was disposed of before the hearing of the case
We mentioned that we were intrigued that an order of detention should have been made knowing full well that there was no Advisory Board in existence to whom a reference could be made under the Act and whose report could be obtained as required by the Constitution
Such a casual and indifferent approach betrays a disregard for the rights of citizens and this has to be deprecated
We have no option but to allow the appeal and quash the order of detention dated August 7 1986
The petitioner is now on parole
He need not surrender to his parole
In the view that we have taken we have refrained from referring to the other submissions of the learned counsel for the appellant
SR Appeal allowed


Summary:
Section 11 of the Gujarat Prevention of Anti Social Activi ties Act 1985 stipulates that in every case where a deten tion order has been made under the Act the State Government shall within three weeks from the date of detention of a person under the order place before the Advisory Board constituted under section 10 the grounds on which the order has been made the representation if any made by the detenu and the report if any of the authorised officer
Under section 152 the expiry or revocation of an earlier detention order shall not bar the making of a subsequent detention order under the Act against the same person subject to the proviso that if there were no fresh facts the maximum period for which a person may be detained shall not extend beyond the expiry of a period of 12 months from the date of detention under the earlier detention order
While the appellant was in Jail from November 12 1985 onwards awaiting trial on a charge of murder he was acquit ted on May 26 1986
He was due for release from prison on June 23 1986
On that day however an order for his deten tion was made under the provisions of the Gujarat Prevention of Anti Social Activities Act 1985
The period of three weeks stipulated by section 11 of the Act expired on July 14 1986
Since there was no Advisory Board in existence the appellant was entitled to be released on July 14 1986 itself
But he was not so released
However during the pendency of the writ petition challenging the said detention order in the High Court the order of detention dated 23rd June 1986 was revoked on 7th August 1986 and a fresh order of detention was made on the same facts on the same day with the result the earlier writ petition was withdrawn and a fresh write petition came be filed
An Advisory Board was however constituted on August 18 1986
A reference under section 11 was made to the Advisory Board on 204 August 20 1986 and the Advisory Board made its report on September 6 1986
The report of the Advisory Board was more than three weeks after the detention which commenced on the making of the order of detention though it was within three months from the second order of the detention
The appellant contended in the writ petition that there has been a contravention of the constitutional protection afforded to him by Article 224
The writ petition having been dis missed the Appellant has come in appeal by Special Leave
Allowing the appeal the Court HELD 1
No law can be made providing for successive orders for detention in a manner so as to render the protec tion of Article 224 of the Constitution ineffective
Section 15 of the Gujarat Prevention of Anti Social Activi ties Act 1985 which provides for the making of successive orders of detention must be read down so as to bring it in conformity with Article 224 of the Constitution
If there is to be a collision between Article 224 of the Constitu tion and section 15 of the Act section 15 has to yield
But by read ing down the provision the collision may be avoided and section 15 may be sustained
So avoiding the collision course It must be held that if the report of the Advisory Board is not made within three months of the date of detention the detention becomes illegal notwithstanding that it is within three months from the date of he second order of detention
207C F Shibapada Mukherjee vs State of West Bengal  AK Roy vs Union of India  and Talib Hussain vs State of Jammu  Kashmir  distinguished
In a Habeas Corpus proceeding it is not a sufficient answer to say that the procedural requirements of the Con stitution and the Statute have been complied with before the date of hearing and therefore the detention should be upheld
The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authori ty
The procedural requirements are therefore to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaran teed to him in that regard
If a reference to an Advisory Board is to be made within three weeks it is no answer to say that the reference though not made within three weeks was made before the hearing of the case
If the report of the Advisory Board is to be obtained within three months it is no answer to say that the report though not obtained within three months was obtained before the hearing of the  205 case
If the representation made by the detenu is required to be disposed of within a stipulated period it is no answer to say that the representation though not disposed of within three months was disposed of before the hearing of the case
209B F OBSERVATION An order of detention should not have been made knowing full well that there was no Advisory Board in existence to whom a reference could be made under the Act and whose report could be obtained as required by the Constitution
Such a casual and indifferent approach betrays a disregard for the rights of citizens