N Criminal Appeal Nos
107 108 of 1985 From the Judgment and Order dated 20121984 of the Rajasthan High Court in DB Civil Habeas Corpus Petition Nos 1489 and 1575 of 1984
87 NL Jain Advocate General and Badri Das Sharma for the Appellants
Ram Jethmalani and Miss Rani Jethmalani for the Respondent
MR Sharma Dalveer Bhandari and RN Poddar for the Intervener Union of India
The Judgment of the Court was delivered by RANGANATH MISRA J
The respondent an Advocate was ordered to be detained by the Government of Rajasthan under section 32 of the hereinafter referred to as the Act on August 14 1984 and he was actually taken into custody and detained on the following day
The grounds of detention were supplied to him when he was detained
Respondent challenged his detention before the Rajasthan High Court by filing two applications under Article 226 of the Constitution on several grounds
Both the writ applications were clubbed and heard together and disposed of by a common judgment
The High Court found that the representation of the detenu respondent had not been placed before the Advisory Board within three weeks as required by section 10 of the Act and such violation vitiated the continued detention of the respondent
It also found that the Advisory Board had not considered the documentary evidence produced by the detenu and the opinion formed by the Board that the respondent should be detained was therefore not an appropriate one
The Court took the view that the materials in the record which had been considered by the Advisory Board in formulating its recommendation to the State Government had not been transmitted to the Government and the same was not available before the State Government when it made the order of confirmation
The Court was also of the further view that the contents of the intelligence reports referred to in the grounds of detention had not been supplied to the detenu and he had therefore been deprived of the opportunity of making an effective representation against his detention
On these findings the High Court held that the detention of the respondent cannot be upheld and the order of detention dated August 14 1984 and the subsequent order dated October 22 1984 directing him to be detained for one year be quashed
The Court further directed In the interest of justice and in the interest of National Security without curtailing seriously individual liberty we give the following directions 88 1 that the detenu Shamsher Singh being entitled to liberty on account of the above order of ours will be released from the Central Jail Ajmer 2 that the detenu Shamsher Singh would be none theless kept either under house arrest or in a place like Dak Bungalow or Circuit House at Ajmer or a nearby place within the radius of 50 kms
with the members of his family which would consist of his wife and three minor sons 3 that if the detenu is kept under house arrest the expenses will be borne by the detenu but if he is kept in some Dak Bangalow or other Circuit House then his expenses will be borne by the State 4 that the authorities would permit interview with other relatives also if the detenu is kept outside his house
In case no stay order is received staying the operation of the judgment of this Court the detenu shall be released on expiry of three weeks ie on 11185
 This Court granted special leave to appeal against the judgment of the High Court by its order dated January 18 1985
In the mean time the High Court had suspended the operation of its order till January 21 1985 and while granting special leave this Court stayed operation of the judgment
Learned Advocate General of the appellant State appearing in support of the appeal maintained that each of the four grounds accepted by the High Court in quashing the detention is wrong and not sustainable as a ground for such quashing while Mr Jethmalani appearing for the respondent supported the reasonings and the ultimate conclusion of the High Court
We have already stated that the High Court formulated the reasons for its order in the shape of four conclusions and we propose to deal with them seriatim for convenience
The first ground of attack advanced by the respondent against the order which impressed the High Court is that there has been 89 violation in complying with the provisions of section 10 of the Act
Indisputably the respondent was taken into custody on August 15 1984
On August 22 1984 the State Government placed before the Advisory Board the grounds on which the order of detention had been made
By then no representation had been made by the detenu and therefore there was no occasion for causing that also to be placed before the Board
The respondent made a representation on August 28 1984 which was received by the Superintendent of the Central Jail where the detenu had been lodged and the same was received by the State Government on August 30 1984
There is no dispute that the representation was placed before the Advisory Board on September 6 1984
As far as relevant section 10 of the Act provides  in every case where a detention order has been made under this Act the appropriate Government shall within three weeks from the date of detention of a person under the order place before the Advisory Board constituted by it 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   It is the contention of the respondent that his representation against the detention has been placed before the Advisory Board a day too late inasmuch as while section 10 requires the placing to be done within three weeks from the date of detention the representation has been placed before the Advisory Board on the 22nd day
There was no dispute before the High Court nor is there any challenge before us that there has been a day s delay in placing the representation of the respondent before the Board
The High Court has accepted the respondent s submission that the requirement under section 10 of the Act was mandatory and failure to place before the Advisory Board the representation of the respondent has vitiated the detention
While Mr Jethmalani appearing for the respondent reiterates that stand learned Advocate General in support of the appeal has contended that as a fact there has been compliance of section 10 of the Act within a week of commencement of the detention and as by than no representation from the respondent had been received the same could not be placed before the Board along with the grounds of detention
The State Government received the representation on the 30th August 1984 and after looking 90 into the contents caused it to be placed before the Board with due haste and that was done on September 6 1984
On the basis of the reference made on the 22nd August 1984 the Advisory Board had already fixed the consideration of the respondent s detention at the meeting on September 10 1984 and as a fact four days before the date of hearing fixed by the Board the representation was before it
As a fact no adjournment had to be given in the matter of consideration of the representation of the respondent on account of a day s delay in the placing of the representation before the Board
Learned Advocate General further submitted that when a representation from the detenu is received against his detention by the detaining authority here the State Government the contents of the representation are intended to be perused so that the detaining authority may consider whether continuing the detention is proper and expedient
At that stage it is open to the detaining authority to rescind the order of detention and in that event no further reference to the Advisory Board is warranted
Since the detaining authority is not a mere post office being required to receive the representation and have it placed before the Advisory Board a little time is bound to be taken in dealing with the representation
Taking a practical view of the situation some time is bound to lapse between the receipt of the representation and the forwarding of the same for being placed before the Board
A day s delay in such process cannot indeed be taken to be fatal so as to warrant the quashing of the detention
A Constitution Bench in A K Roy etc
vs Union of India Anr1 has upheld the vires of the Act
It was pointed out in Ichhu Devi Choraria vs Union of India  Ors2 that the burden of showing that the detention is in accordance with the procedure established by law has always been placed by this Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law
This constitutional right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life or personal liberty the authority responsible for such deprivation must satisfy the Court that it has acted in accordance with the law
This is an area where the Court has been most strict and scrupulous in ensuring observance with the 91 requirements of the law and even where a requirement of the law is breached in the slightest measure the Court has not hesitated to strike down the order of detention or to direct the release of the detenu even though the detention may have been valid till the breach occurred
 This Court in Khudi Ram Das vs State of West Bengal  Ors 1 said The constitutional imperatives enacted in this article 22 are two fold 1 the detaining authority must as soon as may be that is as soon as practicable after the detention communicate to the detenu the grounds on which the order of detention has been made and 2 the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention
These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security
 The view indicate in these decisions is well accepted and the same is not open to doubt or dispute
We have already pointed out that within a week of detention of the respondent a reference to the Advisory Board had actually been made in this case but without the respondent s representation as the same had not been made by then
Section 10 stipulates that the grounds on which the order has been made and also the representation of the detenu if any have to be placed before the Board when the reference is made
The legislative scheme contained in this section envisages the situation that there may be a case where no representation at all is made or within the time contemplated under section 10 the representation has not been forthcoming
We agree with the submission of Mr Jethmalani that the obligation cast under section 10 of the Act is paramount and the strictness with which such a mandate has to be complied with is absolute
While making of the reference under section 10 with the grounds of detention is a must furnishing of the representation is conditional upon it having been made and receipt thereof by the appropriate Government
Though 92 under the general scheme of the Act definite and different periods have been prescribed for compliance with the step to step treatment of the matter there is no obligation cast on the detenu to make a representation within any definite time
We are therefore prepared to accept the submission of the learned Advocate General that while considering the compliance with section 10 of the Act emphasis has to be laid on making of the reference and forwarding of the grounds of detention and the placing of the representation has to be judged on different basis
We may not be understood to be of the view that it is open to the appropriate Government to withhold the placement of the representation unduly or indefinitely
When the reference is received and the grounds of detention are available the Board proceeds to fix a date of hearing for consideration of the justification of detention
The procedure of the Advisory Board contained in section 11 of the Act indicates that the Board is to consider the materials placed before it and is entitled to call for such information as it may deem necessary from the appropriate Government or from any other person concerned and after hearing the detenu if he wants to be heard in person has to report to the appropriate Government within seven weeks from the date of detention in the manner indicatad in the remaining sub sections of that section
While dealing with this aspect of the matter it is to be borne in mind that section 10 requires the reference to be placed before the Board within three weeks and section 11 requires the report to be submitted to the appropriate Government within seven weeks
The legislative scheme in fixing the limit of three weeks in section 10 and the further limit of seven weeks in section 11 allows at least four weeks  time to the Board to deal with the matter
The Board on receipt of the reference on August 22 1984 directed its sitting to be convened for September 10 1984 for considering the justifiability of the respondent s detention
This had apparently been done on the basis of the reference from the appropriate Government but without the representation but the representation was received by the Board in the mean time on September 6 1984
The first meeting of the Advisory Board was thus fixed within four weeks from the date of detention and the consideration of the matter by the Board was not required to be adjourned on account of any delay in receiving the copy of the representation of the detenu
We agree with the submission of Mr Jethmalani that it is obligatory for the appropriate Government to forward the representation when received to the Board without delay because unless on 93 the basis of the representation the appropriate Government rescinds the order of detention the representation is a document intended for the Board
Where the representation has been received the same should as expeditiously as possible reach the Board
In this case the State Government received the representation on August 30 1984 and placed the same before the Board on September 6 1984
Six clear days have intervened between the receipt of the representation by Government and the placing thereof before the Board
Admittedly if the representation had reached the Board by September 5 1984 respondent would not be entitled to raise any objection
Can it on the facts of the case and in the circumstances indicated be said to be non compliance with section 10 of the Act Mr Jethmalani placed before us a passage from Broom s Legal Maxims p 162 10th Edn where the doctrine of impossibility of performance lex non cogit ad imporsibilia has been discussed
It has been indicated therein that however mandatory the provision may be where it is impossible of compliance that would be a sufficient excuse for non compliance particularly when it is a question of the time factor
Keeping the attendant circumstances of this case in view we find it difficult to hold that the time taken by the State Government can amount to withholding of the representation which resulted in non compliance of section 10 of the Act so as to vitiate the detention
It is useful to refer to a paragraph from a judgment of this Court in Frances Corolie Mullin vs W C Khambra  Ors1 while we are on this point
A Division Bench was dealing with a COFEPOSA detention
Section 8 of the COFEPOSA requires the appropriate Government to make a reference to the Board within five weeks from the date of detention
While dealing with an argument referring to this aspect of the matter the Court observed The four principles enunciated by the Court in Jayanarayan Sukul vs State of West Bengal   as well as other principles enunciated in other cases an analysis will show are aimed at shielding personal freedom against indifference insensibility routine and red tape and thus to secure to the detenu the right to make an effective representation
We agree 1 the detaining authority must provide the detenu a very early opportunity to make a representation 2 the detaining 94 authority must consider the representation as soon as possible and this preferably must be before the representation is forwarded to the Advisory Board 3 the representation must be forwarded to the Advisory Board before the Board makes its report and 4 the consideration by the detaining authority of the representation must be entirely independent of the hearing by the Board or its report expedition being essential at every stage
We however hasten to add that the time imperative can never be absolute or obsessive
The Court s observations are not to be so understood
There has to be lee way depending on the necessities we refrain from using the word circumstances  of the case
One may well imagine a case where a detenu does not make a representation before the Board makes its report making it impossible for the detaining authority either to consider it or to forward it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before then but may merely forward it to the Board without himself considering it
Several such situations may arise compelling departure from the time imperative
But no allowance can be made for lethargic indifference
No allowance can be made for needless procrastination
But allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved
 It is useful at this stage also to refer to a later decision of another Division Bench of this Court in Raisuddin alias Babu Tamchi vs State of Uttar Pradesh  Anr1 That was a case of detention under the Act and there was a delay of six days between the receipt by the District Magistrate the detaining authority of the comments from the Superintendent of Police on the representation and despatch of the representation to the State Government
While negativing the contention founded on delay and the resultant effect on the order of detention this Court observed In this context we consider it necessary to emphasise that the question whether the representation 95 submitted by a detenu has been dealt with all reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical counting of dates but by a careful scrutiny of the facts and circumstances of each case if on such examination it is found that there was any remissness indifference or avoidable delay on the part of the detaining authorityState Government in dealing with the representation the Court will undoubtedly treat it as a factor vitiating the continued detention of the detenu on the other hand if the Court is satisfied that the delay was occasioned not by any lack of diligence or promptness of attention on the part of the party concerned but due to unavoidable circumstances or reasons entirely beyond his control such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention  We agree with the principle indicated above and in our opinion in the facts of the present case it cannot be said that there has been any negligence or remissness on the part of the State Government in dealing with the representation of the detenu or in the matter of causing the same to be placed before the Advisory Board
We are impressed by the fact that no prejudice has been caused to the detenu on account of the delay of a day beyond the statutory period in placing the representation before the Advisory Board inasmuch as the Advisory Board had caused the matter to be heard on the 10th September 1984 and before the appointed date the representation was before the Board
The first ground on which the High Court came to hold that the detention was invalid has therefore to be negatived
The next contention advanced on behalf of the respondent which has been accepted by the High Court in support of its conclusion against the detention is that the Advisory Board did not consider the documentary evidence produced by the detenu
Under section 11 2 of the Act the report of the Advisory Board has to specify in a separate part thereof the opinion of the Board as to whether or not there is sufficient cause for the detention of the person concerned and as sub section
4 provides the proceedings of the Board and its report except that part of the report in which the opinion of the Advisory Board is specified shall be confidential
In view of the 96 specific plea raised by the detenu and the argument advanced before the High Court that the Board had not considered the documentary evidence the State Government placed the report before the High Court and the same has been also placed before us as a part of the record
On a reference to the report we find that the Advisory Board in the instant case was constituted by three Judges of the High Court one of them being the Chairman
That would justify our assumption that the members of the Board by their professional ability and acumen were capable to assess the matter in a proper way and form an objective opinion on the basis of materials produced
The detailed conclusion with reasons given by the Board has also been disclosed
That shows that the detenu made before the Board very lengthy arguments and cited a number of authorities in support of his submissions
The detenu in the instant case is a practising advocate and we are impressed by the learned Advocate General s submission that we could assume that such a practising advocate must have very properly placed his points before the Board
The Board is not required to write out a judgment wherein one would expect mention of the respective pleas materials produced by the parties specification of contentions advanced and reasons for the conclusion as may have been drawn
What is required is the unbiased and impartial conclusion on the materials available with reference to the grounds of detention as to whether the detention order when made and the continued detention of the person concerned are justified
The High Court in our view had no justification to accept the submission of the detenu that the documentary evidence produced by the detenu had not been considered by the Board
The second ground accepted by the High Court has therefore to be repelled as not sustainable
We proceed to examine the next ground viz that all the records had not been sent to the State Government by the Board and therefore such records were not available for consideration of the State Government at the time of confirmation of the detention
There is no dispute that the Board had not sent the entire record to the State Government
Under section 112 of the Act the Board is required to submit its report and there is no obligation cast by the Act that the entire record of the Board should be placed before the State Government
It is however not disputed by learned Advocate General that the report of the Board is only a recommendation and 97 the ultimate decision on the basis of the report as to what further action has to be taken is for the State Government to make
Section 12 in its two sub sections indicates two alternative courses open to the State Government on the basis of the report
If the Board is of the view that there is no sufficient cause for detention of the person the appropriate Government is obliged to revoke the detention and release the detenu
On the other hand where the Board is of the view that there is sufficient cause for the detention of the person the appropriate Government may confirm the detention order and continue the detention
The two provisions have been expressed in different languages
Where the report is against the detention no option is left to the State Government and a duty is cast on it to release the detenu
When the Board recommends that there is sufficient cause for detention the State Government may confirm the detention or even revoke it
Since the final order has to be made by the State Government we are inclined to accept the submission of Mr Jethmalani that the entire record or at least all relevant materials should be available to the State Government when it proceeds to apply its mind to decide whether the detention should be continued or revoked
This view is in accord with produce and is also judicially supported by a decision of this Court
In Nand Lal Bajaj vs The State of Punjab  Anr1 this Court observed We were informed that the Advisory Board did not forward the record of its proceedings to the State Government
If that be so then the procedure adopted was not in consonance with the procedure established by law
The State Government while confirming the detention order under section 12 of the Act has not only to peruse the report of the Advisory Board but also to apply its mind to the material on record
If the record itself was not before the State Government it follows that the order passed by the State Government under section 12 of the Act was without due application of mind
This is a serious infirmity in the case which makes the continued detention of the detenu illegal
 We have already indicated that the procedure established by law does not require the entire record to be sent by the Board to the State Government yet it is certainly proper that the record should 98 be available for being looked into in such manner as the confirming authority considers appropriate before the final decision one way or the other is taken
The grounds of detention were available with the State Government
Materials referred to in the grounds of detention were also available in the file
The only materials which the State Government did not have before it are the documents which the detenu claims to have produced before the Board
With a view to forming a prima facie impression that there was any material document which would have a bearing on the question at issue we sent for the record and the same has been produced before us
On looking into the documents produced by the detenu before the Board we have come to the conclusion that this did not contain any material which could persuade the State Government to act in a different way
We are cognizant of the position that it is for the State Government and not for this Court to act as the confirming authority and non compliance with the procedure laid down by law makes the order of detention liable to be quashed
But we have also already said that non placing of the record of the Board before the appropriate Government is not a failure of compliance with the prescribed procedure
It is therefore that we looked at the record to find out if it can be said to be a defect having material bearing on the question and a matter of prejudice so far as the detenu is concerned
We reiterate by agreeing with the view of our learned Brother Sen J expressed in Nand Lal Bajaj s case supra that the appropriate Government should have the entire material before it along with the report of the Board when it is called upon to consider whether to confirm or not to confirm the detention on the basis of the report of the Board under section 121 of the Act
The Board should therefore forward the record containing the papers placed before it at the hearing of the matter along with its report so that the matter can be attended by the State Government with due despatch and on taking a full view of the matter
Our conclusion with reference to the third ground therefore is that the High Court was not right in the facts of the case to hold that the order of confirmation of detention was bad
The respondent contended and the High Court accepted the submission that not providing copies of intelligence reports to the detenu though the same had been relied upon in the grounds of detention vitiated the order of detention
The grounds of detention were divided into two groups one labelled as criminal activities and the other as extremist activities
Against extremist activities it was 99 further indicated  on the basis of confidential reports 
The facts by way of accusations were detailed but copies of the reports as such were not furnished
It is the settled position in law and learned Advocate General did not attempt to contend to the contrary that the detenu has to be supplied all materials relied upon in making the order of detention with a view to being provided an adequate opportunity of making an effective representation
Personal freedom is an invaluable treasure and the founding fathers took great care to protect it by making appropriate provisions in the Constitution
Simultaneously taking into consideration the peculiar situations prevailing in the country the right of the State to order preventive detention was also provided therein
In order that personal freedom may not be curtailed beyond necessity and the executive administration may not make it an empty guarantee detailed provisions were made in Article 22 providing an effective procedure in the matter of making of representation and scrutiny of the materials in the presence of the detenu and even hearing him if he so desired by an independent Board with adequate judicial bias
While that is so the detenu is not entitled to a disclosure of the confidential source of information used in the grounds or utilised for the making of the order
What is necessary for the making of an effective representation is the disclosure of the material and not the source thereof
By indicating that the facts have been gathered from confidential reports a suggestive disclosure of the source has also been made
The Constitution Bench in the case of State of Punjab  Ors
vs Jagdev Singh Talwandi1 dealt with this aspect of the matter
The learned Chief Justice speaking for the Court observed It was further argued by the learned counsel that the detaining authority should have disclosed the evidence on the basis of which the order of detention was passed because in the absence of knowledge of such evidence the respondent could not have made an effective representation against the order of detention
There is no substance in this contention
It is not the law that the evidence gathered by the detaining authority against the detenu must also be furnished to him
Reference was made to Beni Madhob Shaw vs State of West Bengal2 Har Jas Dev Singh vs State of Punjab3 and Vakil Singh vs 100 State of J  K1 and the learned Chief Justice proceeded to state These cases show that the detenu is not entitled to be informed of the source of information received against him or the evidence which may have been collected against him as for example the evidence corroborating that the report of the CID is true and correct
His right is to receive every material particular without which a full and effective representation cannot be made
If the order of detention refers to or relies upon any document statement or other material copies thereof have of course to be supplied to the detenu as held by this Court in Ichhu Devi Choraria supra
 In view of what has been said by the Constitution Bench there was no force in the submission of the respondent that there has been an infraction of the law in not supplying the respondent copies of the reports or disclosing the source thereof
The respondent had actually been given in the grounds all material details necessary for making an effective representation
The fourth ground accepted by the High Court in support of its order is also not tenable in law
As all the grounds accepted by the High Court for its conclusion are not sustainable for reasons discussed above the order of the High Court quashing the detention is not supportable
The appeal is allowed and the order of the High Court is set aside
In course of the hearing Mr Jethmalani had drawn our attention to the fact that many detenus like the respondent have been and are being released and the respondent who has already under gone more than two thirds of the period should be released
That is a matter entirely for the detaining authority to decide and we hope and trust that notwithstanding the reversal of the decision of the High Court the State Government will proceed to review the matter expeditiously and make such appropriate directions as it consider fit
NVK Appeal allowed


Summary:
The respondent an Advocate was ordered to be detained by the State Government under Section 32 of the National Security Act 1950
He was taken into custody and detained
The grounds of detention were supplied to him when he was detained
The respondent challenged his detention in the High Court
The High Court found 1 that the representation of the detenu respondent had not been placed before the Advisory Board within three weeks as required by section 10 of the Act and such violation vitiated the continued detention of the respondent
2 that the Advisory Board had not considered the documentary evidence produced by the detenu and therefore the opinion formed by the Board that the respondent should be detained was not an appropriate one 3 that the materials in the record which had been considered by the Advisory Board in formulating its recommendation to the State Government had not been transmitted to the Government and the same was not available before the State Government when it made the order of confirmation 4 that the contents of the intelligence reports referred to in the grounds of detention had not been supplied to the detenu and he had therefore been deprived of the opportunity of making an effective representation against his detention
The High Court consequently held that the detention of the respondent cannot be upheld and directed the order of detention directing him to be detained for one year be quashed
In the appeal to this Court it was contended on behalf of the State appellant that the four grounds accepted by the High Court in quashing the detention was wrong and not sustainable as a ground for such quashing
It was further contended that as a fact there had been compliance of section 10 of the Act within a week of commencement of the detention and as by then no representation from the respondent had been received the same could not be placed before the Board along with the grounds of detention
The respondent is a practising advocate and must have therefore properly placed his points 84 before the Advisory Board
As the Board had not been sent the entire records all the records were not available for the consideration of the State Government at the time of confirmation of the detention
The respondent had actually been given in the grounds all the material details necessary for making an effective representation
Allowing the Appeal  HELD  1a While making of the reference under section 10 with the grounds of detention is a must furnishing of the representation is conditional upon it having been made and receipt thereof by the appropriate Government
Though under the general scheme of the Act definite and different periods have been prescribed for compliance with the step to step treatment of the matter there is no obligation cast on the detenu to make a representation within any definite time
91 H 92 A b The procedure of the Advisory Board contained in section 11 of the Act indicates that the Board is to consider the materials placed before it and is entitled to call for such information as it may deem necessary from the appropriate Government or from any other person concerned and after hearing the detenu if he wants to be heard in person has to report to the appropriate Government within seven weeks from the date of detention
92 D E c The legislative scheme in fixing the limit of three weeks in section 10 and the further limit of seven weeks in section 11 allows at least four weeks  time to the Board to deal with the matter
92 E d It is obligatory for the appropriate Government to forward the representation when received to the Board without delay because unless on the basis of the representation the appropriate Government rescinds the order of detention the representation is a document intended for the Board
Where the representation has been received the same should as expeditiously as possible reach the Board
92 H 93 A In the instant case the Board on receipt of the reference on August 22 1984 directed its sitting to be convened for September 101984 for considering the justifiability of the respondents detention
The State Government received the representation on August 301984 and placed the same before the Board on September 61984
Six clear days had intervened between the receipt of the representation by Government and the placing thereof before the Board
Admittedly if the representation had reached the Board by September 5 1984 the respondent would not be entitled to raise any objection
Keeping the attendant circumstances in view it is difficult to hold that the time taken by the State Government can amount to withholding of the representation which resulted in non compliance of section 10 of the Act so as to vitiate the detention
It cannot also be said that there has been any negligence or remissness on the part of the State Government in dealing with the representation of the detenu or in the matter of causing the same to be placed before the Advisory Board
No prejudice has been caused to the detenu on account of the delay of a day 85 beyond the statutory period in placing the representation before the Advisory Board inasmuch as the Advisory Board had caused the matter to be heard on the 10th September 1984 and before the appointed date the representation was before the Board
B D 95 D E AK Roy etc
vs Union of Indian  Anr
   Ichhu Devi Choraria vs Union of India  Ors   Khudi Ram Das vs State of West Bengai  Ors1975 2 SCR 832 Frances Coralie Mullin vs WC Khambra  Ors1980 2 SCR 1095 and Raisuddin alias Babu Tamchi vs State of Uttar Pradesh  Anr   referred to 2a Under section 112 of the Act the report of the Advisory Board has to specify in a separate part thereof the opinion of the Board as to whether or not there is sufficient cause for the detention of the person concerned and sub section
4 provides the proceedings of the Board and its report except that part of the report in which the opinion of the Advisory Board is specified shall be confidential
95 G H b The Board is not required to write out a judgment
What is the unbiased and impartial conclusion on the materials available with reference to the grounds of detention as to whether the detention order when made and the continued detention of the person concerned are justified
96 E In the instant case the Advisory Board was constituted by three Judges of the High Court one of them being the Chairman
That justifies the assumption that the members of the Board by their professional ability and acumen were capable to assess the matter in a proper way and form an objective opinion on the basis of materials produced
The detailed conclusions with reasons given by the Board show that the detenu made before the Board very lengthy arguments and cited a number of authorities in support of his submissions
The High Court had therefore no justification to accept the submission of the detenu that the documentary evidence produced by the detenu had not been considered by the Board
96 B C 96 F 3
a Under section 112 of the Act the Board is required to submit its report and there is no obligation cast by the Act that the entire record of Board should be placed before the State Government
Section 12 in its two subsections indicates two alternative courses open to the State Government on the basis of the report
If the Board is of the view that there is no sufficient cause for detention of the person the appropriate Government is obliged to revoke the detention and release the detenu
On the other hand where the Board is of the view that there is sufficient cause for the detention of the person the appropriate Government may confirm the detention order and continue the detention
The two provisions have been expressed in different language
96 G H 97 A B Nand Lal Bajaj vs State of Punjab  Anr
1981 Cr LJ 1501 referred to
86 b The procedure established by law does not require the entire record to be sent by the Board to the State Government yet it is certainly proper that the record should be available for being looked into in such manner as the confirming authority considers appropriate before the final decision one way or the other is taken
The grounds of detention were divided into two groups one labelled as criminal activities and the other as extremist activities
97 H 98 A In the instant case the documents produced by the detenu before the Board did not contain any material which could persuade the State Government to act in a different way
The High Court was therefore not right to hold that the order of confirmation of detention was bad
98 F G 4
a Personal freedom is an invaluable treasure and the founding fathers took great care to protect it by making appropriate provisions in the Constitution
Simultaneously taking into consideration the peculiar situations prevailing in the country the right of the State to order preventive detention was also provided therein
In order that personal freedom may not be curtailed beyond necessity and the executive administration may not make it an empty guarantee detailed provisions were made in Article 22 providing an effective procedure in the matter of making of representation and scrutiny of the materials in the presence of the detenu and even hearing him if he so desired by an independent Board with adequate judicial bias
99 B C b The detenu is not entitled to a disclosure of the confidential source of information used in the grounds or utilised for the making of the order What is necessary for the making of an effective representation is the disclosure of the material and not the source thereof By indicating that the facts have been gathered from confidential reports a suggestive disclosure of the source has also been made
99 D E State of Punjab  Ors vs Jagdev Singh Talwandi   Beni Madhob Shaw vs State of West Bengal AIR 1973 SC 2455 Har Jas Dev Singh vs State of Punjab  and Vakil Singh vs State of J  K AIR 1974 SC 2337 referred to
In the instant case the grounds of detention were divided into two groups one labelled as criminal activities and the other as extremist activities
Against extremist activities it was further indicated on the basis of confidential reports 
The facts by way of accusations were detailed but copies of the reports as such were not furnished
The respondent had actually been given in the grounds all material details necessary for making an effective representation
98 H 99 A