minal Appeal Nos
87 91 of 1964
Appeal by special leave from the judgment and order dated January 18 1964 of the Judicial Commissioner s Court for Tripura in Criminal Misc
Habeas Corpus Petitions Nos 15 20 25 26 and 28 of 1963 and Habeas Corpus Petitions Nos 24 and 27 of 1963
AND Writ Petitions Nos 43 42 40 41 65 and 80 of 1964
Petition Under article 32 of the Constitution of India for the enforcement of the fundamental rights
R K Garg section C Agarwala D P Singh and M K Ramamurthi for the appellants and petitioners in all
H N Sanyal Solicitor General D R Prem and R H Dhebar for the respondents Except Respondent No 2 in WP 43 of 1964
D Goburdhun for respondent No 2 in WP 43 of 1 964
July 23 1964 The Judgment of the Court was delivered by GAJENDRAGADKAR C J
These Criminal Appeals and Writ Petitions have been placed for hearing together in a group because they raise common questions of law
As is well known after the Chinese attacked the northern border of India on the 8th September 1962 the President issued a Proclamation under article 352 of the Constitution on the 26th October 1962
This proclamation declared that a grave emergency existed which posed a threat to the security of India
On the same day an Ordi 297 nance was promulgated by the President
This Ordinance was subsequently modified by Ordinance No 6 of 1962 on the 3rd of November 1962
The President also issued an Order tinder article 3591 suspending the rights of citizens to move any court for the enforcement of the rights conferred by Articles 21 and 22 during the pendency of the emergency proclamation
On the 26th October 1962 the Rules framed by the Central Government under the Defence of India Act hereinafter called the Rules  were published
Rule 30 of the Rules as originally framed was subsequently modified on the 6th December 1962 and Rule 30 A was added
Later an Act was passed on the 12th December 1962 and section 481 of this Act provided for the repeal of the earlier Ordinances
Even so section 482 provided for the continuance of the Rules framed under the Ordinances so that the relevant Rules framed under the Ordinances have to be taken as Rules framed under the latter Act
It appears that Mr Mukerjee who was the Administrator of the Union Territory of Tripura at the relevant time considered the material placed before him as such Administrator and was satisfied that a group of Communists had been agitating amongst the tribals residing in the area and inciting them against the Government and he came to the conclusion that their activities were likely to endanger the security of the State
Acting on this view he directed that 68 persons should be detained under Rule 301b and passed appropriate orders in that behalf
Later lie was satisfied that 45 out of these 68 persons need not be detained any longer and so he ordered their release from time to time
That left 23 persons under detention and it is with the cases of these 23 persons that we are concerned in the present group if criminal appeals and writ petitions
12 out of these 23 persons moved the Judicial Commissioner of Tripura under article 226 of the Constitution and prayed that the orders of detention under which they continued to be detained at the time of their petitions were illegal and should be set aside and they should be ordered to be released forthwith
These applications were heard 298 together by the learned Judicial Commisioner and were ultimately dismissed
Against his decision Criminal Appeals Nos 87 91 of 1964 and 106 and 107 of 1964 have been filed by the detenues with special leave granted to them by this Court on petitions made by them in that behalf
It appears that the detenues Mohan Chaudhury and Jagabrata Sen Gupta who have joined in Cr
Nos 87 911964 have also preferred separate criminal appeals Nos 106 and 1071964 individually
That is how this group of appeals is concerned with the cases of 12 detenues who had moved the Judicial Commissioner under article 226 and their grievance is that the view taken by the Judicial Commissioner in regard to the points of law raised by them before him is not correct
The Writ Petitions deal with cases of 11 remaining detenues and they joined the detenues who have preferred appeals before us by special leave in contending that the continuance of their detention is invalid and that a similar plea raised by the appellants before the Judicial Commis sioner should have been upheld by him
That is how the criminal appeals and the writ petitions between them raise common questions of law
Mr Garg who appeared for the appellants and the petitioners as well as the learned Solicitor General who appeared for the respondent the Chief Commissioner of Tripura agreed that it would not be necessary to consider the facts in each individual case for the purpose of decid ing the common questions of law raised by them
It would be enough if we refer to the facts in one case because facts in other cases are exactly similar and there would be no point of distinction on facts as such
We would therefore refer to the facts relevant to the case of the detenu Biren Dutta
Biren Dutta was detained on the 25th December 1962 and an order issued in that behalf was duly served on him
On the 26th December 1962 he was transferred to the Hazaribagh Jail
The respondent s case is that on the 15th February 1963 the case of Biren Dutta was reviewed under R 30A8 and it was decided to continue his deten 299 tion
Subsequently his case was reviewed on the 3rd July 1963 5th September 1963 and 11th March 1964 and on each occasion it was decided to continue his detention
On the other hand Biren Dutta s contention before the Judicial Commissioner was that an order of review had not been passed as required by R 30A8 and had not been communicated to him
It was urged on his behalf that Rule 30A8 requires that the decision to continue the detention of a detenu must be reduced to writing and must be communicated to the detenu and the argument was that since these two conditions prescribed by the relevant Rule had not been complied with the continuance of the detenu s detention was invalid in law
The Judicial Commissioner has negatived the contentions thus raised by the detenu
He has found that the decision to continue the detenu s detention reached by the respondent under R 30A8 had in fact been reduced to writing and in support of this contention he has referred to the fact that the original file containing a record of the decision had been produced on behalf of the respondent before the Judicial Commissioner but since the respondent s learned Advocate was apparently not prepared to allow the lawyer of the detenu inspection of the said record the court did not consider the evidence supplied by it
The argument urged by the detenu that the said record may have been subsequently manufactured was rejected by the Judicial Commissioner
The Judicial Commissioner also considered the fact that the affidavit made on behalf of the respondent showed that when the cases of the detenues were considered by him from time to time he actually ordered the release of some of them
This fact according to the Judicial Commissioner showed that the respondent had applied his mind to the cases of all the detenues and since he released some of them it followed that in regard to the rest he was satisfied that their detention should be continued
The Judicial Commissioner was apparently inclined to take the view that the relevant Rule did not seem clearly to require that the decision reached by the appropriate authority under R 30A8 should be reduced to writing but he thought it unnecessary to make a definite finding 300 on this issue because he was satisfied that in the case of Biren Dutta the decision in question had been reduced to writing
The argument that R 30A8 requires that the said decision should be communicated to the detenu was rejected by the learned Judicial Commissioner
It is on these findings that he rejected the petition filed by Biren Dutta and 11 other detenues and held that the continuance of their detention was justified in law
When these matters were argued before this Court on the 6th May 1964 an interim order was passed directing that the Chief Secretary to the Tripura Administration should forthwith transmit to this Court the original files in respect of the detenues concerned and that the Minister or the Secretary or the Administrator who reviewed the cases of the detenues and had arrived at a decision that their detention should be continued should file an affidavit in this Court on or before the 8th June 1964 and that the affidavit should state all material facts and should indicate whether the decision arrived at was duly communicated to the detenues or not
Accordingly the original files have been produced before us and additional affidavits have been filed
The learned Solicitor General fairly conceded that he would allow Mr Garg for the appellants an opportunity to inspect the files inasmuch as he was not going to raise any question of privilege in respect of theme
It is in the light of the minutes made on these files that the principal points raised before us now fall to be considered
Mr Garg contends that the scheme of the Rules clearly shows that the original order of detention passed under R 301b as well as the decision to continue the detention of the detenues reached by the appropriate authority under R 30A8 must be recorded in writing and must comply with the provisions of article 166 of the Constitution
He also urges that R 30A8 further requires that the relevant decision reached by the appropriate authority must be communicated to the detenu
In support of his argument that the relevant decision under R 30A8 must comply with article 166 and must be communicated to the detenu Mr Garg has relied on the decision of this Court in Dattatreya Moreshwar Pangarkar 301 vs The State of Bombay1 and Bachhittar Singh vs State of Punjab1
He has also invited our attention to the observations made by Raghubar Dayal J in section Partap vs State of Punjab1
The learned Solicitor General has conceded that the order directing the detention of a citizen under R 301 b as well as the order incorporating the decision to continue the detention under R 30A8 must be in writing
He however challenges the correctness of Mr Garg s contention that these orders must comply with article 166 and he disputes his case that the decision reached under R 30A 8 must be communicated to the detenu
In support of his case he has referred us to the decision of this Court in Mohammad Afzal Khan vs State of Jammu and Kashmir4 as well as the decision of the Bombay High Court in Pralhad Krishna Kurne vs The State of Bombay1 and that of the Allahabad High Court in Nandan Singh Bhist vs State of UP6
We do not think it necessary to consider the question as to whether the orders passed under R 301 b and the record of the decision reached under R30A8 should comply with article 166 of the Constitution or not
It also appears to us to be unnecessary to decide in the present group of cases whether the decision recorded under R 30A8 should be communicated to the detenu
We are satisfied that the decision to continue the detention of the detenues which it is urged on behalf of the respondent was reached by him under R 30A8 has not been recorded in writing as required by the said Rule and there is no other evidence on record to show that such a decision had then been reached and reduced to writing
It will be recalled that in the present proceedings it is common ground between the parties that there has to be an order in writing indicating the decision of the appropriate authority reached by him after reviewing the case of the detenu that the continuance of his detention should be ordered
Rule 30A8 provides that every detention order made by an 1  2 1962 SUPP
3 SCR 713 3  5 ILR 1952 Bom
1346 AIR 1964 All 327 302 officer empowered by the Administrator and confirmed by him under clause b of the sub rule 6 and every detention order made by the Administrator himself shall be reviewed at intervals of not more than six months by the Administrator who shall decide upon such review whether the order should be continued or cancelled
The question which we have to decide is whether it is shown by the minutes made on the file produced before us by the respondent that he did decide that it was necessary to continue the detention of the detenues before us
The minutes made on the file are no doubt a written record of his decision and so the requirement that whatever is decided under R 30A8 should be reduced to writing is satisfied but the question is do these minutes show that the cases of the detenues before us were considered and a decision to continue their detention was reached by the respondent on the relevant occasion and that presents a very narrow problem for our decision in relation to the construction of the said minutes
The first occasion on which the respondent claims to have reviewed the cases of the detenues before us was on the 15th February 1963
On that date he made the following order On review of the detention order in respect of all detenus CC decided to cancel detention orders in respect of detenues at section No 1 3 4 5 6 7 8 9 12 and 13
 It is urged by the learned Solicitor General that this order shows that the appropriate authority considered the cases of all the detenues and decided to cancel the detention of some of them and that he suggests should be construed to mean that he decided to continue the detention of detenues other than those whose release he ordered
There is no doubt that this order makes a reference to the review of all detenues and prima facie it would be open to the Solicitor General to contend that this part of the order shows that the cases of all the 68 detenues must have been considered by the appropriate authority
In this connection
we would like to emphasise the fact that in exercising its power under 303 R 30A8 the appropriate  authority should record its decision clearly and unambiguously
After all the liberty of the citizen is in question and if the detention of the detenue is intended to be continued as a result of the decision reached by the appropriate authority it should say so in clear and unambiguous terms
But assuming that an order passed by the appropriate authority under R 30A8 can in a proper case be construed to mean his implied decision to continue the detention of some detenues while releasing some others we find it difficult to hold that such an implied decision can be inferred from the present order
It is relevant to remember that this order was passed on the 15th February 1963 and the six months  period within which review had to be made under R 30A8 would have expired on the 25th June 1963
It is quite likely that even before the six months period expired the authority considered the matter and came to the conclusion that any further detention of the detenues specified in the order was not justified and so even before the six months  period expired he directed that they should be released
That undoubtedly shows that the authority was considering the question very carefully and as soon as he felt satisfied that further detention of the said detenues would be unnecessary he ordered their release forthwith but this very consideration suggests that he may have considered the cases of only such detenues as should be released forthwith
Besides there is nothing to show that after the 15th February 1963 and before the 25th June 1963 he considered the matter in respect of the detenues before us and held that the continuance of their detention was justified after the expiration of six months
It is necessary to emphasise that the decision recorded under R 30A8 is in the nature of an independent decision which authorises the further detention of the detenu for a period of six months
In other words the initial order of detention is valid for six months and the detention of the detenu thereafter can be justified only if a decision is recorded under R 30A8
That being the nature of the decision which is required to be recorded under R 30A8 we are unable to hold that the memorandum in question can be reasonably said to include a decision that the continuance of the detention of the 304 detenues before us was thought to be necessary by the appro priate authority after the expiry of the period of six months
It is true that in the additional affidavit filed by the respondent it has been stated as a submission by him that as a result of the said review 15263 the detention of Biren Dutta as well as others whose detention orders were not cancelled continued
 This undoubtedly is a matter of argument it being the respondent s contention that since the order detaining some detenues was cancelled logically it follows that the detention of the others was ordered to continue
But even assuming that the respondent had stated in his additional affidavit clearly and unambiguously that he had decided on the 15th February 1963 that the detention of the detenues before us should be continued we would not have attached much significance to such a state ment because what we have to consider is the order passed on the 15th February 1963 and not what the authority making the order thought it meant or intended it to mean and so it comes back to the question of the construction of the order itself
We have carefully considered the argu ments urged before us by the Solicitor General but we are unable to hold that this order can be said to satisfy the requirements of R 30A8 at all
We are satisfied that this order cannot be construed to contain a written record of the decision of the respondent that the detention of the detenues before us should be continued after the expiry of six months from the date of the original order of detention
Then as to the next order passed on the 3rd July 1963 the position is still worse
It appears that on the 15th May 1963 the Superintendent of Police Tripura recommended that some of the detenues should be released because he thought there was no longer any justification for their continued detention
This matter was discussed between the Superintendent of Police and the Chief Secretary on the 6th June 1963 and eventually as a result of the conference held between the Chief Minister and the Chief Commissioner an order was passed on the 3rd July 1963
This order shows that the cases of the persons whose release had been recommended by the Superintendent of Police were considered
These detenues were 25 in 305 number
During the course of the discussion between the Chief Minister and the Chief Commissioner the Chief Minister appears to have suggested that instead of releasing all the aforesaid 25 detenues together it would be better if they were released in batches but ultimately the order passed by the Chief Minister which was assented to by the Chief Commissioner was that all of them may be released at the same time on the 6th July 1963
In other words reading the letter written by the Superintendent of Police to the Chief Commissioner on the 15th May 1963 and the record of the discussion that took place between the Chief Secretary the Chief Minister and the Chief Commissioner on the 3rd July 1963 it is clear that the only cases which the authorities considered were the cases of 25 detenues whose release had been recommended by the Superintendent of Police
It is common ground that the detenues before us were not included in the said list of 25 detenues and so there is no scope for suggesting that at this time the cases of the detenues other than those who were released were concerned
That being so we must hold that like the earlier order passed on the 15th February 1963 the order passed on the 3rd July 1963 is also of no assistance to the respondent because neither order can be reasonably construed as containing a decision of the appropriate authority reached under R 30A8 to continue the detention of the detenues before us
This conclusion necessarily means that the requirement of R 30A8 has not been complied with and that inevitably makes the continuance of the detention of the detenues before invalid in law
The fact that those cases were reviewed subsequently on the 25th September 1963 and 11th March
1964 and the decision of the authority was in fact communicated to them would not validate the illegal continuance of the detention of the detenues after six months had expired from the date of their original detention
We have already indicated that we do not propose to consider in these proceedings the two other points of law urged by Mr Garg but before we part with these matters we would like to emphasise that even assuming that the decision recorded by the appropriate authority under 51 SC20
306 R 30A8 is not as a matter of law required to be com municated to the detenu it is desirable and it would be fair and just that such a decision should in every case be communicated to the detenu
If the appropriate authority considers the question about the continuance of the deten tion of a particular detenu and decides that such continu ance is justified we see no justification for failing to communicate the said decision to the detenu concerned
If the requirement as to such communication were held to be necessary as a matter of law non communication would render the continuance of the detention invalid but that is a matter which we are not deciding in these cases
We are only emphasising the fact that it would be fair that such a decision should be communicated to the detenu
In the result the appeals and writ petitions are allowed and the detenues concerned ordered to be set at liberty at once
Appeals and Writ Petitions allowed


Summary:
The Administrator of the Union Territory of Tripura passed orders detaining 68 persons including the appellants and the petitioners under R 301b of the Defence of India Rules 1962
While gradually releasing 45 of them he purported to detain the appellants and the petitioners under R 30A8 of the said Rules
The appellants moved the Judicial Commissioner under article 226 of the Constitution and their case was that the decision to continue them in detention was not recorded in writing nor was it communicated to them and was therefore invalid in law
The Judicial Commissioner dismissed the said applications
The petitioners moved this Court under article 32 of the Constitution and their case was also the same
The first review held on February 15 1963 in respect of all the 68 detenus was recorded as follows On review of the detention order in respect of all the detenus CC
decided to cancel orders in respect of detenus at section Nos 1 3 4 5 6 7 8 9 12 and 13
 It was urged on behalf of the respondent that the order by implication continued the detention of the appellants and the petitioners and such detention was confirmed by subsequent orders
Held i The order did not comply with the provisions of R 30A8 of the Defence of India Rules and the detenus before this Court must be set at liberty
Decision to continue a detenu in detention must not only be recorded in writing but such writing must clearly and unambiguously indicate that decision
Subsequent reviews under the Rule could not validate the illegal continuance of the detention after the expiry of six months from the date of the original order of detention
Decision recorded under R 30A8 is in the nature of an independent decision and further detention can be justified only if the decision is recorded as required by it
296 Even assuming that an order passed under R 30A8 could in a proper case imply the decision to continue the detention of some of the detenus the present case could not be said to be one such
ii Assuming though not deciding that a decision recorded under R 30A8 of the Rules was not in law required to be communicated to the detenue it was just and proper that the decision should in every case be communicated to the detenu