SHER MOHAMMAD @ SERU

THE STATE OF WEST BENGAL January 8, 1975

[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]

Maintena1we of ll!ternal Security Act (26 of 1971), s. 3(4)-Communication of District Magistrate's order by State Government to Cemral Government before approval by State Government-If sufficient compliance with statuJory requirement.

Section 3 of the Maintenance of Internal Security Act, 1971, indicates that the State Government mav directly issue all order of detention or, if it is done by a lesser authority, approve of such detention order as provided.

Section 3(4) obl(gates the State Government to communicate, within 7 days of the order of detention it makes or approves, that fact to the Central Go,·- ctoment, together with the grounds and other relev11nt particulars. The pro cedural mandate is inviolable exc:ept on pril of the order being avClided.

Jn the present case, the order of detention was 'made by the Dt. Magistrate on November 21, 1972 and the order wa:; approved by the State Government on December 2, 1972. The order was however communicated to the Central Oovemment on December 1, 1972.

HELD : There was no strict compliance with . statutory formalities and since there has been ao, infringement of the procedural safeguard, the order of detention is invalid. [155H-156Al

(11) The communication to the Centml Government by the State Oovcrn mcnt of its upproval was not with'n 7 days after its approval, as required by s. 3(4), because, the approval by the State Government was onl1 a clay after

the communication to the Centrul Government. (1$50]

(b) If what Is communicated is only the order of the D!strict Magistrate. this was not suffidcnt compliance with the statutory requirement, nnd ,\t further was also beyond the 7 days' period (155 OHJ

ORIGINAL JURISDICTION : Writ Petition No. 522 of 1974.

Petition under Article 32 of the Constitution.

ff. s. Marwah for the petitioner.

S. C. Majumdar, G. S. Chatterjee and Sukumar Basu for the respondent.

KRISHNA IYER, J. The detenu petitioner, challenges his detention 011 various rounds but Shri H S. Marwah, appearing as amicus curiae,

has raised big contentions and small, some of which do not merit consi- (; dt-1'ation a.nd others need not be deialt with since, on a short point, the petition must succeed.

The scheme of the Marntenance of Internal Security Act, 1971 (Act No. 26 of 1971) (hereinafter called the MISA, for short) is in keeping with Art. 27 of the Constitution and emphasizes the various stages at which there will be consideration of the need for the deten- H tion by different authorities, such .as the District Magistrate, the State Governm<:nt oand, ultimately, the Cefttral Government. For thr effective exen:ise of this power a scheme has been built into the statute.

SHER MO~MMAD v. WEST BENGAL (Krishna Iyer,/.) 155

We are concerned at present with the power to direct release of the detcnu. We may extract the provision here :

14 (1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897, a detention order may. at any time, he revok~ or modifiea-

(b) notwithstanding that the order has been made by a

Sate Government, by the Cdatral Government." .

With a view to posting the Central Government with th6 ':detention. nm! the grounds therefor, s. 3(4) proyides thus : '

"3. Power to make orders detaining certain persons.

( 4) When any order is made or approved by the State Government u,1der this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particul11rs as in the opinion of the State Government have a bearing on the 1,1ecessity for the order." (emphasis, ours) ·

A fair reading of s. 3 indicates that the State Government maY directly issue an order of detention or, if it is done by a lesser a1Jthority, approve of such detention order as provided in the statute. Subs. (4) or s. 3, which we have extracted, obligates the State Government to communicate, wihin seven days of the order of cletention 1t makes or it approves, that fact to the Central Government, together with the grounds on which the order has been made and other relcvr:int particulars. Even •assuming that the order is made by the District Magistrate and is approved by the State Government, the communication has to be made to the Central Governme1,1t within the time specified.

This procedural mandate is inviolable except on peril of the order being voided.

In the present case it is obvious that the detention order wa~ made on November 21, 1972 by the District Magistrate and approved by the , State Government on December 2, 1972. It is curiGus that on the State's own showing the communication to the Central Government in compliance with s. 3 ( 4) of the MISA has been made on December 1, 1972. This date is beyond seven days of the District Magistrate's order and it could not have been in compliance with the seven days' spell after the approval by the State Government, that having been done only a day after the alleged communication to the Central Government. It is thus plain that the State Government before H . the approval itself was made. Secondly, if what it communicated was the order of the District Magistrate, it was not sufficient compliance with the statutory requirement. Moreover, it was beyond the seven days' period.

156 SUPREME COURT REPOR'l'S [1975J 3 s.c.R.

In short, there has been an infringement of the procedural safeguard. This Court has, in several rulings, held that the liberty of the citien is a priceless freedom, sedulously secured by the Constitution. Even, so, during times of emergency, in compliance with the provisions of the Constitution, the said freedom may be curtailed, but only in strict compliance with statutory formalities which are the vigilant concern of the Courts to enforce.

We have pointed out how in the present case there has been a failure on the part of the State Government to comply \Vith s.3 ( 4).

Jutiicial enginring prevents breaches of constitutional .dykes protecting fundamc:ntal freedoms.

The order of detention is invalid and the <letenu is liable to b~ released.

The rule is made absolute.

Petition allowed.

V. P. S.