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PETITIONER: ABDUL LATIF ABDUL WAHAB SHEIKH

       Vs.

RESPONDENT: B.K. JHA & ANR.

DATE OF JUDGMENT09/02/1987

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) KHALID, V. (J)

CITATION:  1987 AIR  725            1987 SCR  (2) 203  1987 SCC  (2)  22        JT 1987 (1)   397  1987 SCALE  (1)275  CITATOR INFO :  F          1989 SC1234  (14)  R          1989 SC1812  (5)

ACT:     Gujarat Prevention of Anti Social Activities Act,  1985, section  15-- Preventive Detention providing for  successive detentions--  Validity of--Whether the section be read  down so  that it does not offend the mandate of Article 22(4)  of the Constitution--Procedural requirements stricts compliance of, reiterated.

HEADNOTE: Section 11 of the Gujarat Prevention of Anti Social  Activi- ties Act, 1985 stipulates that in every case where a  deten- tion order has been made under the Act, the State Government shall,  within three weeks from the date of detention  of  a person  under  the order, place before  the  Advisory  Board constituted  under s. 10 the grounds on which the order  has been  made the representation if any made by the detenu  and the report if any of the authorised officer. Under s. 15(2), the expiry or revocation of an earlier detention order shall not bar the making of a subsequent detention order under the Act against the same person, subject to the proviso that  if there  were no fresh facts, the maximum period for  which  a person may be detained shall not extend beyond the expiry of a  period of 12 months from the date of detention under  the earlier detention order.     While  the appellant was in Jail from November 12,  1985 onwards awaiting trial on a charge of murder he was  acquit- ted  on May 26, 1986. He was due for release from prison  on June 23, 1986. On that day, however, an order for his deten- tion was made under the provisions of the Gujarat Prevention of  Anti  Social Activities Act, 1985. The period  of  three weeks  stipulated  by s. 11 of the Act expired on  July  14, 1986.  Since there was no Advisory Board in  existence,  the appellant  was  entitled  to be released on  July  14,  1986 itself.  But  he was not so released.  However,  during  the pendency of the writ petition challenging the said detention order  in the High Court, the order of detention dated  23rd June, 1986 was revoked on 7th August, 1986 and a fresh order of detention was made on the same facts on the same day with

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the  result  the earlier writ petition was withdrawn  and  a fresh  write petition came be filed. An Advisory Board  was, however constituted on August 18, 1986. A reference under s. 11 was made to the Advisory Board on 204 August  20, 1986 and the Advisory Board made its  report  on September 6, 1986. The report of the Advisory Board was more than three weeks after the detention which commenced on  the making of the order of detention though it was within  three months from the second order of the detention. The appellant contended,  in  the  writ petition, that there  has  been  a contravention  of the constitutional protection afforded  to him  by  Article 22(4). The writ petition having  been  dis- missed, the Appellant has come in appeal by Special Leave. Allowing the appeal, the Court,     HELD:  1.  No law can be made providing  for  successive orders for detention in a manner so as to render the protec- tion  of  Article  22(4) of  the  Constitution  ineffective. Section 15 of the Gujarat Prevention of Anti Social  Activi- ties  Act, 1985 which provides for the making of  successive orders  of detention must be read down so as to bring it  in conformity with Article 22(4) of the Constitution. If  there is to be a collision between Article 22(4) of the  Constitu- tion and s. 15 of the Act, s. 15 has to yield. But by  read- ing down the provision, the collision may be avoided and  s. 15  may be sustained. So, avoiding the collision course,  It must be held that if the report of the Advisory Board is not made  within  three  months of the date  of  detention,  the detention becomes illegal notwithstanding that it is  within three months from the date of he second order of  detention. [207C-F]     Shibapada  Mukherjee v. State of West Bengal,  [1974]  3 SCC  50;  A.K. Roy v. Union of India, [1982] 1 SCC  271  and Talib Hussain v. State of Jammu & Kashmir, [1971] 3 SCC 118, distinguished.     2. In a Habeas Corpus proceeding, it is not a sufficient answer  to say that the procedural requirements of the  Con- stitution and the Statute have been complied with before the date  of  hearing  and therefore, the  detention  should  be upheld. The procedural requirements are the only  safeguards available to a detenu since the court is not ,expected to go behind the subjective satisfaction of the detaining authori- ty.  The  procedural  requirements  are,  therefore,  to  be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaran- teed  to him in that regard. If a reference to  an  Advisory Board  is to be made within three weeks, it is no answer  to say that the reference, though not made within three  weeks, was  made before the hearing of the case. If the  report  of the Advisory Board is to be obtained within three months, it is  no  answer to say that the report, though  not  obtained within three months, was obtained before the hearing of the . 205 case.  If the representation made by the detenu is  required to  be  disposed  of within a stipulated period,  it  is  no answer  to say that the representation, though not  disposed of  within three months, was disposed of before the  hearing of the case. [209B-F] OBSERVATION     An order of detention should not have been made, knowing full  well that there was no Advisory Board in existence  to whom  a  reference could be made under the  Act,  and  whose report  could be obtained as required by  the  Constitution. Such  a casual and indifferent approach betrays a  disregard

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for the rights of citizens.]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  72 of 1987.     From  the  Judgment and order dated  21.10.1986  of  the Gujarat High Court in Spl. Crl. Appeal No. 889 of 1986.     Ram Jethmalani, Ms. Rani Jethmalani and A.K. Sharma  for the Appellant.     T.U. Mehta, M.N. Shroff and K.M.M. Khan for the Respond- ents. The Judgment of the Court was delivered by     CHINNAPPA REDDY, J. We grant special leave and proced to hear the apeal.     The  appellant,  Abdul Latif Wahab Sheikh, was  in  jail from November 12, 1985 onwards awaiting trial on a charge of murder. He was acquitted on May 26, 1986. Though  acquitted, he  was not straightaway released from prison.  The  reasons are  not  clear  to us from the record.  Presumably  he  was required in connection with some other case. He was due  for release from prison on June 23, 1986. On that day,  however, an order for his detention was made under the provisions  of the Gujarat Prevention of Anti Social Activities Act,  1985. The mandate of Art. 22(4) of the Constitution is that no law providing  for  preventive  detention  shall  authorise  the detention of a person for a longer period than three  months unless  an Advisory Board consisting of persons who are,  or have been, or are qualified to be appointed as, Judges of  a High Court, has reported before the expiration of the said 206 period  of three months that there is in its opinion  suffi- cient  cause for such detention. Section 10 of  the  Gujarat Prevention of Anti Social Activities Act, 1985 provides  for the constitution of an Advisory Board, sec. 11 provides  for reference  to the Advisory Board and sec. 12 prescribes  the procedure  to  be followed by the Advisory  Board.  What  is important  for  the purposes of this case is  that  sec.  11 stipulates  that in every case where a detention  order  has been made under the Act, the State Government shall,  within three weeks from the date of detention of a person under the order, place before the Advisory Board the grounds on  which the order has been made, the representation, if any, made by the  detenu and the report, if any, of the authorised  offi- cer. What is intriguing in the case is that on the date when the detention order was made, there was no Advisory Board in existence  to which a reference could be made under sec.  11 of the Act and whose report of its opinion regarding  suffi- cient  cause for the detention was required to  be  obtained within three months of the detention under Art. 22(4) of the Constitution.  The period of three weeks stipulated by  sec. 11  of the Act expired on July 14, 1986. The petitioner  was entitled to be released on July 14, 1986 as no reference had been  made to the Advisory Board within the  period  contem- plated  by sec. 11 of the Act. But he was not  so  released. This state of affairs continued till August 7, 1986 when the order  of  detention dated June 23, 1986 was revoked  and  a fresh  order of detention was made on the same facts on  the same  day.  In the meanwhile, the order of  detention  dated June 23, 1986 had been challenged by filing a writ  petition in  the  High Court. Consequent on the  revocation  of  that order  that  writ petition was withdrawn  as  having  become infructuous  and  another writ petition, out  of  which  the present  appeal  arises, was filed  questioning  the  second

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order of detention dated August 7, 1986. The Advisory  Board was constituted on August 18, 1986. Reference to the Adviso- ry  Board  was made on August 20, 1986. The  Advisory  Board made its report on September 26, 1986. It will be seen  that the  report of the Advisory Board was more than three  weeks after  the  detention which commenced on the making  of  the order  of detention, though it was within three months  from the  date  of  the second order of  detention.  The  learned counsel  for  the appellant contends that there has  been  a contravention  of the constitutional protection afforded  by Art.  22(4) and therefore, the appellant is entitled  to  be set at liberty. He does not dispute that under sec. 15(2) of the  Gujarat  Prevention of Anti Social Activities  Act  the expiry or revocation of an earlier detention order shall not bar the making of a subsequent detention order under the Act against  the  same person, subject to the  proviso  that  if there  were no fresh facts, the maximum period for  which  a person may be detained shall not extend beyond the expiry of 207 a  period of 12 months from the date of detention under  the earlier detention order. He submits that this provision,  if to  be  sustained, as constitutionally valid, must  be  read down so that it does not offend the mandate of Art. 22(4) of the Constitution that no law providing for preventive deten- tion shall authorise the detention of a person for a  longer period  than  three  months unless the  Advisory  Board  has reported within the period of three months that there is  in its  opinion  sufficient cause for such  detention.  On  the other  hand,  the learned counsel for the State  of  Gujarat submits  that  it is enough if the report  of  the  Advisory Board  is  obtained within three months  of  the  subsequent order of detention, where the earlier order is revoked and a subsequent order is made.     The real question for consideration is whether a law may be  made providing for successive orders for detention in  a manner  as  to render the protection of Art.  22(4)  of  the Constitution ineffective? For example, can a fresh order  of detention  be made every 89th day making it  unnecessary  to obtain the report of the Advisory Board within three  months of  the  detention? That is what it will amount  to  if  the submission of he learned counsel for the State is  accepted. It,  therefore, becomes imperative to read down sec.  15  of the  Gujarat Prevention of Anti Social Activities Act,  1985 which  provides  for the making of successive  of  order  of detention so as to bring it in conformity with Art. 22(4) of the Constitution. If there is to be a collision between Art. 22(4)  of the Constitution and sec. 15 of the Act,  sec.  15 has to yield. But by reading down the provision, the  colli- sion may be avoided and sec. 15 may be sustained. So, avoid- ing the collision course, we held that if the report of  the Advisory  Board is not made within three months of the  date of detention, the detention becomes illegal  notwithstanding that  it is within three months from the date of the  second order of detention.     The  learned  counsel  for the  petitioner  invited  our attention to the decision of the court in Shibapada  Mukher- jee  v.  State of West Bengal, [1974] 3 SCC  50,  where  the court referring to clauses 4 and 7 of Art. 22 observed.               "It  is  clear  from clauses (4)  and  (7)  of               Article  22 that the policy of Article 22  is,               except  where  there is a Central Act  to  the               contrary  passed  under  clause  (7)  (a),  to               permit detention for a period of three  months               only,  and detention in excess of that  period               is  permissible only in those cases  where  an

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             Advisory  Board  set  up  under  the  relevant               statute,               208               has  reported  as to the  sufficiency  of  the               cause  for  such  detention.  Obviously,   the               Constitution  looks upon preventive  detention               with disfavour and has permitted it only for a               limited  period  of three months  without  the               intervention  of  an  independent  body   with               persons on it of judicial qualifications of  a               high order. The facts that the report of  such               an  Advisory Board has to be  obtained  before               the  expiry of three months from the  date  of               detention shows that the maximum period within               which  the detaining authority can on its  own               satisfaction detain a person is three months The  observation of the court to the extent that they go  to support the contention of the learned counsel for the appel- lant,  but we must say that in that case, the court was  not confronted  with the present situation at all.  The  learned counsel  for the State referred us to A.K. Roy v.  Union  of India,  [1982]  1 SCC 271, where the court referring  to  an argument  based on sec. 11(2) of the National  Security  Act said:               "Section 11(2) of the Act provides specifical-               ly that the report of the Advisory Board shall               specify  its  opinion "as to  whether  or  not               there is sufficient cause for the detention of               the  person concerned". This implies that  the               question  to which the Advisory Board  has  to               apply  its mind is whether on the date of  its               report  there  is  sufficient  cause  for  the               detention  of the person. That inquiry  neces-               sary  involves the consideration of the  ques-               tion as to whether there was sufficient  cause               for the detention of the person when the order               of  the  detention was passed, but we  see  no               justification  for extending the  jurisdiction               of the Advisory Board to the consideration  of               the question as to whether it is necessary  to               continue  the detention of the  person  beyond               the  date  on which its report or  beyond  the               period  of  three  months after  the  date  of               detention."               The learned counsel for the State also invited               our  attention  to the decision of  a  learned               single  Judge of this Court,  rendered  during               the  vacation,  in Talib Hussain v.  State  of               Jummu  & Kashmir, [1971] 3 SCC 118,  where  he               observed:               "In  regard to the submission that  the  peti-               tioner was arrested and deprived of his person               liberty  long before the order of  his  arrest               and this invalidated his detention, it is               209               sufficient to point out that in habeas  corpus               proceeding  the  Court  has  to  consider  the               legality  of  the  detention on  the  date  of               hearing. ’If on the date of hearing it  cannot               be  said  that the aggrieved  party  has  been               wrongfully  deprived of his  personal  liberty               and his detention is contrary to law a writ of               habeas corpus cannot issue."     Neither  of the cases cited by the learned  counsel  for the  State  deal with the question now at issue  even  in  a

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remote way. They do not have any application. We only desire to  add  that  in a habeas corpus proceeding, it  is  not  a sufficient answer to say that the procedural requirements of the  Constitution  and the statute have been  complied  with before  the  date of hearing and  therefore,  the  detention should  be upheld. The procedural requirements are the  only safeguards  available  to a detenu since the  court  is  not expected  to  go behind the subjective satisfaction  of  the detaining authority. The procedural requirements are, there- fore,  to  be strictly complied with if any value is  to  be attached to the liberty of the subject and the constitution- al  rights guaranteed to him in that regard. If a  reference to an Advisory Board is to be made within three weeks, it is no answer to say that the reference, though not made  within three weeks, was made before the hearing of the case. If the report of the advisory Board is to be obtained within  three months,  it is no answer to say that the report  though  not obtained within three months, was obtained before the  hear- ing of the case. If the representation made by the detenu is required to be disposed of within a stipulated period, it is not  answer to say that the representation, though not  dis- posed  of  within three months, was disposed of  before  the hearing  of  the case. We mentioned that we  were  intrigued that  an order of detention should have been  made,  knowing full  well that there was no Advisory Board in existence  to whom  a  reference  could be made under the  Act  and  whose report  could be obtained as required by  the  Constitution. Such  a casual and indifferent approach betrays a  disregard for the rights of citizens and this has to be deprecated. We have  no option but to allow the appeal and quash the  order of detention dated August 7, 1986. The petitioner is now  on parole.  He  need not surrender to his parole. In  the  view that we have taken, we have refrained from referring to  the other submissions of the learned counsel for the appellant. S.R.                                                  Appeal allowed. 210