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PETITIONER: UJJAL MANDAL

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT21/01/1972

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN SHELAT, J.M. KHANNA, HANS RAJ

CITATION:  1972 AIR 1446            1972 SCR  (3) 165  1972 SCC  (1) 456  CITATOR INFO :  R          1972 SC2173  (4)  F          1974 SC2151  (18)  R          1978 SC1155  (2,7,8)

ACT: Constitution  of  India, 1950, Art. 22(4)  and  West  Bengal (Prevention  of Violent Activities) Act (President’s 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.

HEADNOTE: The  petitioner was arrested on May 11, 1971, under s. 3  of the  West  Bengal (Prevention of  Violent  Activities)  Act, 1970.  His case was placed before the Advisory Board and the Board  submitted its report to the State Government on  July 12,  1971  that  there was sufficient cause  for  the  peti- tioner’s  detention.   The State  Government  confirmed  the order of detention on August 17, 1971. In a petition under Art. 32, HELD : The detention was illegal, since the State Government confirmed  the detention order beyond three months from  the date of detention. Article  22(4)  has specified three months  as  the  maximum period  of  initial  detention and detention  for  a  longer period  can only be made on the basis of the report  of  the Advisory  Board.  Under ss. 12 and 13 of the Act, the  State Government has power to detain a person beyond a period of 3 months but limited to a period of one year, on the basis  of the opinion of the Board that there is sufficient cause  for detention.  When the State Government receives the  opinion, it  has  the option either to confirm or not  the  detention order.   It would not be necessary to confirm the  detention if  the Government wants to continue the detention only  for the  period  of three months.  When s. 12(1) speak  of  ’and continue  the  detention of the person  concerned  for  such period  as it thinks fit’, it can only mean  continuance  of the detention from the point of time at which the  detention would  become  illegal  if the order  of  detention  is  not confirmed, namely, the expiry of three months from the  date of detention.  If that he so, the order of detention must be

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confirmed  before  the expiry of the  three  months.  [168G; 169C-G] Dattatreya  Moreshwar Pangarkar v. State of  Bombay,  [1952] S.C.R. 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. 19,52 PEPSU 134,  Sangappa Mulappa v. State of Mysore.  A.I.R. 1959 Mys. 7 and  Bhupati Goswami v. C. R. Krishnamurthi & Ors., A.I.R. 1969 Assam 14, approved.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 420 of 1971. Under article 32 of the Constitution of India for a writ  in the nature of habeas corpus. 166 Santokh Singh, for the petitioner. P. K. Chakrovorty and G. S. Chatterjee, for the respondent. The Judgment of the 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 and for the release of the petitioner who is  alleged to be 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 of his power under sub-section (1) read with subsection (3) of section (3) of the West Bengal (Prevention of Violent Activities) Act, 1970 (President’s Act No. 19  of 1970), hereinafter called the Act.  A copy of the grounds of detention  was  served  on the  petitioner  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 order of detention and the  detention  order was  approved  by the State Government on  10-5-1971.   The, case  of  the detenu was placed before  the  Advisory  Board (hereinafter   called   the   Board)   on   9-6-1971.    Two representations  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  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 State Government only on 17-8-1971, it  was beyond  3  months from the date of detention,  namely  11-5- 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 this question. Article 22(4) of the Constitution provides "(4)  No  law  providing  for  preventive  detention   shall authorise the detention of a person for a longer period than three months unless- (a)  an  Advisory  Board consisting of persons who  are,  or have been or are qualified to be appointed as,               167               Judges of a High Court has reported before the               expiration of the said period of three  months

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             that there is in its opinion sufficient  cause               for such detention;               Provided that nothing in this sub-clause shall               authorise  the detention of any person  beyond               the maximum period prescribed 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 detention  order  has  been made under the  Act,  the  State Government  shall,  within  thirty days  from  the  date  of detention  under  the  order, place before  the  Board,  the grounds   on  which  the  order  has  been  made   and   the representation,  if any, made by the person affected by  the order,  and  in  case where the order has been  made  by  an officer specified in sub-section (3) of section 3, also  the report made by such officer under subsection (4) of  section 3.  Section 1 1 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  the  date  of detention.  Section 12 reads as follows               "Action  upon the report of Advisory  Board  :               (1)  In any case where the Advisory Board  has               reported  that  there  is,  in  its   opinion,               sufficient  cause  for  the  detention  of   a               person,  the State Government may confirm  the               detention order and continue the detention  of               the  person  concerned for such period  as  it               thinks fit.               (2)   In any case where the Advisory Board has               reported  that  there is, in its  opinion,  no               sufficient  cause  for the  detention  of  the               person  concerned, the State Government  shall               revoke  the,  detention order  and  cause  the               person to be released forthwith." Section  13  provides that the maximum period  for  which  a person  may be detained in pursuance to any detention  order under  section  12  shall  be 12 months  from  the  date  of detention.   Section 14 provides that the  State  Government may, at any time, revoke or modify the detention order. Since  the appropriate Government has to make the  reference to the Board within a period of thirty days from the date of the  detention under section 10 and the Board has to  submit its report within ten weeks from the date of detention under section  11, there would be ample time for  the  appropriate Government to 168 consider the report and confirm the detention order within 3 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 person concerned.  It is neither called upon nor  is it  competent to say anything regarding the  continuance  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  Government.  If the report records the  opinion that  there  is  no sufficient cause for  detention  but  no action is taken by the Government to release the detenu, the detenu  is  not automatically released.   Likewise,  if  the

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opinion  of 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  beyond 3 months.  So when the report of the  Board is received-and that must be within 3 months-the appropriate Government must apply its mind and make an order or take  an executive decision whether to confirm the order of detention or revoke it. Section 1 1 of the Preventive Detention Act, 1950, where the phraseology  employed is the same as in section 12, came  up for consideration in Dattatreya Moreshwar Pangarkar v. State of Bombay(1) before this Court and this is what Mukherjea J. said:               "In my opinion, the words ’for such period as               it thinks fit’ presuppose and imply that after               receipt  of the report of the  Advisory  Board               the  detaining  authority has to make  up  its               mind  as  to  whether the  original  order  of               detention  should be confirmed and if so,  for               what  further  period  the  detention  is   to               continue.  Obviously, that is the proper stage               for  making  an  order  or  decision  of  this               description  as the investigation with  regard               to a particular detenu such as is contemplated               by the Preventive Detention Act is then at  an               end and the appropriate Government is in  full               possession  of  all  the  materials  regarding               him." Article 22(4) of the Constitution has specified the  maximum limit  of  initial  detention, and detention  for  a  longer period  than 3 months can only be made on the basis  of  the report  of  the  Board.   The  Act  authorises  a   possible detention  of  more  than  3  months.   It  is  because  the appropriate  Government  wants to detain a person  for  more than  3 months that the matter is referred to the Board  and it is only when the Board makes its report that (1)  [1952] S.C.R. 612, 626. 169 the  appropriate Government can fix the period of  detention under  sub-section  (1)  of  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 Government 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 detention.  The  confirmation of the detention order without anything more would result in an automatic continuation of the detention, even if there is no  separate  decision  to continue the  detention  for  any specific period as held by this Court in Dattatreya  Moresh- war Pangarkar v. Stare of Bombay(1).  When section 12(1)  of the Act speaks of "and continue the detention of the  person concerned  for such period as it thinks fit"’, it  can  only mean  continuance  of detention 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 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 necessary 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 detention must be confirmed before the  expiry

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of the 3 months. To put the matter in a nut-shell : the State Government  has power under the Act 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 of  the opinion of the Board that there is sufficient  cause for the detention.  When the State Government receives  that opinion,  it has still the option to exercise the power  and to  continue the detention beyond the period of 3 months  or not.  Confirmation is the exercise of the power to  continue the detention after the expiry of the three months.   Unless that  power is exercised within the period of 3 months  from the  date  of detention, the detention after the  expiry  of that period would be without the authority of the law. In  Aswini  Kumar Banerjee v. The State and  others(2),  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  that  the sine qua non for  continuance  of  the detention  made under subsection (1) read  with  sub-section (3) of section 3 of the Act (1)  (1952) S.C.R. 612 (2)  Calcutta Weekly Notes, Vol.  LXXV, 1970-71 p. 866. 12-L864Sup CI/72 170 beyond  the period of the 3 months are (a) a report  by  the Board submitted to the State Government within 10 weeks from the  date of detention recording its opinion that  there  is SUfficient cause for the detention of the person  concerned, and  (b)  the confirmation thereafter of the said  order  of detention  by the State Government within 3 months from  the date of detention. The  question was considered by the High Court of  Pepsu  in Kaur Singh- v. The State(1) with reference to the provisions of sections 10 and 11 of the Preventive Detention act, 1950, which  are In pari materia with sections 1 1 and 12  of  the Act,  and  the  Court came to the  conclusion  that  without confirming  the detention order within 3 months of the  date of detention, the detention of a person cannot 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 means that  the  Government               had  decided to confirm the initial  detention               order,  ignores a very important and the  most               effective part of section 11. What section 1 1               provides is that the Government ’may  confirm’               and   ’continue  detention’  have  their   own               significance  and they obviously mean that  if               the   Government  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  obligatory  on               the Government to confirm the detention  order               even  though the, Advisory Board has  reported               in  favour of the necessity of continuing  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(2), the High  Court

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of Mysore held, after considering the provisions of  section 11 of the Preventive Detention Act, 1950, which, as  already stated,  are identical with those of section 12 of the  Act, that to continue the detention of a detenu after the  expiry of 3 months from the date of detention, it is essential that the  order  of  detention must be  confirmed  within  the  3 months. In  Bhupati Goswami v. C. R. Krishnamurti and others(3)  the High  Court  of Assam, after considering the scheme  of  the Preven- (1)  A.I.R. 1952 Pepsu 124. (3)  A.1,R. 1969 Assam 14. (2) A.T.R. 1959 Mysore 7. 171 tive Detention Act, 1950, held that although the  provisions of  section 11(1) of that Act does not in terms mention  any time  limit for confirming the order of detention, the  time limit  of 3 months is implicit. in the entire scheme of  the Act. The question was considered by this Court in Deb Sadhan  Roy v.  The State of West Bengal(1) and the Court took the  view that  the  order  of detention must be  confirmed  within  3 months of the date of detention : else the detention ’beyond 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 illegal and that he has to be released forthwith.  We order accordingly. V.P.S.                           Petition allowed. (1) W. P. No. 218 to 1971 17 2