UJ.JAL.MANDAL

STATE OF WEST BENGAL

.January 21, 1972

[J. M. SHl!LAT, H. R. ~NA AND K. K. MATHl!W, Jl".]

Constitution of India, 1950; Art. 22(4) and West Bengal (Prevention of Violent Activities) Act (Presidenfs Act 19 of 1970), ss. 12 and 13- Detention beyond three months on Advisory Board's Report-Whether Government should .confirm detention order within three months from date of detention. -

The petitioner was arreste.d on May 11, 1971, under s. 3 of the West liengal (Prevention of Violent Activities) Act, 1970. His case was placed before the Advisory lloard and the Board submitted its report to the State Government on July 12, 1971 that there was sufficient cause for the petitioner's detention. The .. State Government confirmed the order fif detention on August 17, 1971.

L Jn a petition under Art. 32,

HELD : The deiention was illegal, since the' State Government confirmed the detention order beyond three months from the date of detention. . ' ' .

Article 22(4) has specified three mont!>-o. as the maximum period of initial detentio11 and dotetitiori ior a lo11ger period cao only be made on the basis of the re11ort bf the Advisory Board. Under ss. 12 and 13 of the I Act, the State Government has' power to detain a person beyond a period of 3 months but limited to u period of.one year, on the basis of tbe opinion of. the Board tliare ii [IUlfigjent cause for detention.

Wben the Stal.• Government receives the opi.Qion, i~ pas_ -:tbe option either to con1Um or not the detention order: It would riot be necessary to confirm the detention if the Government wants to continue the detention only fdr the period of three months. Whep, s. l2(1) sppak of 'and continu.e. the detention of the person concerned. 'fbr such period as it thinks fit', it can only mean continuance of tbe defention from the point of time at which the detention F

would become-illegal if the order of detention is not confirmed, namely, the expiry of three.111ontbs from thedate of detention. lfthat be so,, the order of detenticin .. must be confirmed beiore the expiry of the three m<11tths. [168 G; 169 C:-OJ

Dattatreya Moreshwar Pangarkar v. State of Bombay, [1952] S.C.R.

G 612, 626 and Deb Sadhan Roy v. State of West Bengal, W.P. No. 218/71, followed.

Aswini Kumar Banerjee v. State & Ors., C.W.N. LXXV, 1970-71, 866, Kaur Singh v. State, A.I.R. 1952 PBPSU 134. , sangappa Mulappa v, State of Mysore, A.LR. 1959 Mys. 7 and Bhupati Goswami v. C. R.

Krishnamurthl & Ors., A. I. It.. 1991 Aasam 14, apprO\-ed.

H ORIGINAL JURISDICTION: Writ Petition No. 420 ot 1971.

Under article 32 ol the Constitution of India for a writ in the nature of habeas corpus.

Santokh Singh, for the petitioner.

P. K. Chakrovorty and G. S. Chatterjee, for the respondent.

The Judgment of µie Court was delivered by

Mathew, J. This is an application under Article 32 of the Constitution for the issue of a writ in. the nature of habeas corpus JI and for the release of the petitioner who is alleged to )le kept in illegal detention.

On 11-5-1971, the petitioner was arrested under an order made on 29-4-1971, by the District Magistrate, 24 Parganas, in the exercise ol' his power under sub-sectiqn ( 1) read with subt- C section (3) of section (3) of the West Bengal (Prevention. of Violent Activities) Act, 1970 (President's Act No. 19 of 1970), hereinfater called the Act. A copy of the grounds of detention was served on the petitiOi!ICr as required by section 8 of the Act on 11-5-1971. The District Magistrate reported to the State Government on 4-5-1971 about the passing of the o.rder of detention and the detention order was approved by the State Govern- D ment on 10-5-1971. The case ol' the detenu was placed bjefore the Advisory Board (hereinalter called the Board) on 9-6-1971.

Two rel?resentations were received by the State Government from the petitioner. They were rejected by orders dated 8-6-1971 and 7-7-1971. The representations were also forwarded to the Board.

The Board was of the opinion that there was sufficient E cause for the detention and it submitted its report to the State Government on 12-7-1971. The State Government confirmed the order of detention on 17-8-1971 and that was communicated to the detenu on 21-8-1971. · The only point taken on behalf of. the. petitioner in this writ petition is that since the detention order was confirmed by . the II State . Government only on 17-8·1971, it was beyond 3 months from the date of detention, namely 11-S-1971, and therefore, the detention of the petitioner after the expiry of 3 months from the date of detention was illegal.

It is necessary to examine the provisions of Article 22( 4) of the Constitution and the relevant sections of the Act to decide G this question.

Article 22(4) of'the Constitution provides:

" ( 4) No law providing for preventive detention s)lall auth!>rise . the detention of a persolll for a longer period than thteC months unless-.:.. · H

(a) an AtviSory Board.consisting orpenons who are, or have been or are qualified to be 'appoiRted es,

l)JJAL, MANDAL v .. WBST BENGAL (Mathew, J.) 167

Judges :of a High Court has. reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention;

Providc; d that nothing in this sub-clause shall authorise the detention of any person qeyond the maximum period prescribe<:! by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of . clause (7)".

Section 10 of the Act provides that in every case where a deten- C tion order has been made under the Act, the State Government shall, within ):hirty days from the date of. detention under the order, place before the Board, the grounds on which the order has been made and the rqiresentation, if any, made by the person affected by .the order, and in case where the order has been made an officer specified in sub-section ( 3) of section 3, also the D report made by such officer under sub-section ( 4) of section 3 ..

Section 11 prescribes the procedure to be followed by the Board.

It says that the Board shall, after considering the materials placed before. it and after hearing the detenu in person, if he desires to be heard, submit its report to the State Government within ten weeks from ihe date of detention.

Section 12 reads as follows :-

E "Action upon the report of Advisory Board : (1) In any cas~ where the Advisory Board has reported that there is, in its (, pinion, sufficient cause for the detention of a person, the State Governmcmt may confirm the detention or4er and continue the detention of the person epncemed for such period as it thinks fit.

(2) Im l\hy case where the Advisory Board has re~ ported 'that there is, in its opinion, no sufficient caUSe for the detention of the person' con¢rned, the State Government shall revoke the detention order and cause the person to be released forthwith." Section 13 provides ibat the maximu~ period fQr which a person G may be detained in pursuance to any detention order under sec

tion 12 shall be 12 months from the date ol detention. , Section 14 provides thaHhe State Government may, at any time, revoke or modify the detentioo order.

Since .the appropriate Government has to make .. the reference to the Board within a period qf thirty days (rom the date ofthe detention under seetion 10. and the .Board has to s1,1bmit its report within ten weeks from the date of detention under section 11, there would be ample time for the appropriate Government to

168 sirP)lEME COURT REPORTS

[J 972] 3 S.C.R.

consider the f!lp<?rt and confirm the . detention order '!Vi thin 3 A months of the date of detention,, if it decides to continue the detention.

Now the Board has got to express its opinion only on. the point as to. whether there is sufficient cause for detention of the persoo concerned. It . is neither called upon nor is it competent to say B anything regarding the contiinuance of the• detention . _beyond 3 months. Once the Board expresses its view that there is sufficient cause for detention, what action is to be taken subsequently is left entirely to the appropriate Gove11llment. If the report records

the opinion that there is no sufficient cause for detention but no action is taken by the Government to rel.ease the detenu, the dete111:u is not aut9matically released. l, ikewise, if the opinion of C the Board is that there is sufficient cause for detention, but the Government does not confirm the order of . detention, the period of detention is not automatically extended beyQJid 3 months.. So when t~ report of the Board is received-'and that must be within 3 months--the appropriate Government must apply its mfnd and make an order or take an executive decision whether to confirm D the order of detention or revoke it.

Section JI of the Preventive Detention Act, 1950, where the phraseology employed is the same as iin section 12, came 'tip for consideration in Dattatreya Moreshwar .Pangarkilr v.· Stat~ of Bombay(1) before. this Court and this is wht Mukherjea J. said :

"In my opinion, the words 'for such PeriO<I as it thinks fit' presupe aoo imply that a!'til~ ~!J'! of e report Of the Advisory BO!ll'd the detaining authonty has to make up its mind as tb whether the original order of detention. should be confirmed !ind if so, fur what further period the detention is to continue. . Obviously, that is the proper stage tor making an or4er or decision of this description as the investigation with regard to a particular detenu. such as is. conte111Plated by the Preventive Detention Act is. then at an end 8lld the appropriate Government is in full possession of all the materials regarding him." · ·

G Article 22 ( 4) of the Constitution has specified the inaxinilllii limit of initial detention, and detention for a lonser period thati 3 months can only be made on the basis of the 'rep<)tt of the Board. The Act authorises a possible. detantion of more - 3 months.

It is because the appropriate Goverlllllent wants to detain a person for more than 3 months that the matter.is.'~ a to the Board and it is only when the Bi>ard pia1ce., its. l'fiW~:il!lll

(I) [19S2) S.C.R. 612, 626.

' , A

the appropriate Government ca.n fix the period of detention under sul>6ection (1) oi section (12). So, when the Government receives the report of the Board stating that there is sufficient cause for detention of a person, if the <; Jovernmeot wants to detain

him for a period beyond 3 months, it has to pass an order or make a decision under section 12(1) to confirm the order. of B detention. The confirmation Of the detenti.on order without anything more would' result in an automatic continuation of the deten. tion, even if )here is no separate decision to continue the detention for any specific period as held by this Court in Dattatreya Moreshwar Pangarkar v. State of Bombay(1). When section 12(1) of the Act speaks oi "and continue the detention of the person cone cemed for such period as it thinks fit", it can only mean continuance of detentmn from the point of time at which detention would become illegal if the order Of detention is not confirmed, namely, the expiry of 3 months from the date of detention. It would not be necessary to confirm the order of detention even after the receipt of the report of the _Board by the Government if~ the Government only wants to continue the detention for the D period of 3 months from the date of detention, as the initial order of detention would authorise the continuance of detention for that period without any confirmation. Confirmation is lllllCCSsary only to continue the detention after the expiry of 3 months. If that be so, it stands to reason to hold that the order of detentiqn. must be confirmed before the expiry of the 3 months.

E To put the matter .i; n a nut-shell : the State Government has power under the Aet to detain a person without trial beyond a period of 3 months but limited to a period of one year.

That power the State Government may exercise on the receipt oi the

inion of the Board that there is sufficient cause for the deteni' tion. ·. Wilen the State Government receives that opjnion, it has

still the option to exerci!e the power and to continue the detmtion ond the period of 3 months or not.

CQD\firmation is tile eiceroi, Co of the power to continue the detention aftei: the expiry of the tliree months. Unless that power is exercised within the period G't 3 months from the date of detention. the deteotion after the G expiry of that period would be without the aut):lority of the law .

. In Aswini Kumar Banerjee v. The State and. others( 8), the Calcutta High Court, in considering the point in question has

analysed the relevant provisions of the Act in the light of article 22 ( 4) of the Constitution and come to the conclusion thllt the sine qua non for continuance of th11 detention made utnder sub- H section ( 1) read with sub•section ( 3) of section 3 of the Act

(J) (1952) S.C.R. 612.

(2) Calcutta Weekly Notei, Vol. LXXV, 1970-71 p. 866. 12-L864Sup CI/72

beyond the period of the 3 months are (a) a report by the Board A submitted to the State Govemment within 10 weeks from the date of detention recording its opinion th.!lt there is sutlicierit cause or the detention of the person concernelf, and (b) the confirmatiOlll thereafter of the said order of detention by the State Government within 3 months from the date of dete; ntion. ·

The question was considered by the High Court of Pepsu in Kaur Singh v. The State(') with reference to the provisions of sections 10 and 11 of the Preventive Detention Act, 1950, which

are iin pari materia with sections 11 and 12 of the 6ct, and the Court came to the conclusion that without confirming the detention order within 3 months of the date oi detention, tlie detention c of a person c3jllllot be continued after the 3 months.

The Court said:

"The argument that the law does not enjoin that there must be an order of confirmation and that the mere fact that it continues to detain the person meains that the Government had decided to confirm the initial detention order, ignores a very important and the most effecitve part of sectiQU 11. What section 11 provides is that the Government 'may cOnfii111' and 'continue detention' have their own significance and they obviously mean that if the Govemiment decided to continue the detention it must confirm the order of detention, and that the non-confirmation of the order would result in its revocation and termination of the . detention. The verb 'may' only indicates that it is not obligatpry on the Government to confirm the detention order even though the Advisory Board has reported in favour of the necessity oi cootinuing the detention.

The phrase, read in its context, undoubtedly signifies that the Government, if it decides to continue the detention, must confirm the detention order."

In Sangappa Mallappa v. State of Mysore('), the High Court of Mysore held, after considering the provisions of section 11 of the Preve; ntive Detention Act, 1950, which, as already stated, are G identical with those of section 12 of the Act, that to continue the detenion of a detenu after the expiry of 3 months from the date of detention, it is essential that the order of detention must be cOlllfirmed within the 3 months.

In Bhupati Goswami v. C. R. Krishnamurti and others(•) the High Court of Assam, after considering the scheme of the Preven- H

(I) A.l.R. 1952 Pepsu 124.

(3) A.l.R. 1969 Assam 14.

(2) A.l.R. 1959 Mysore 7.

tive Detention Act, 1950, held that although the provisions of A section 11 ( 1) of that Act does not in terms mentiqn any time limit for confirming the order of detention, the time limit of 3 months is impl.icit in the entire scheme of the Act.

The question was considered by this Court iri Deb Sadhan Roy_

v. The State of West Bengal(') and the Court took the view that B the order of detention must be confirmed within 3 months of the date of detention : else the detention bey(\rid that period would become illegal.

We see no reason to doubt the correctness of this decision and'we follow it.

We think that the detention of the petitioner is illega! and that he has to be released forthwith.

We order accordingly.

V.P.S.

Petition alloived,

---- --· ----- (I) W.P. No. 218 o 1971.