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PETITIONER: BALMUKAND

       Vs.

RESPONDENT: DIST.  MAGISTRATE, DELHI & ANOTHER

DATE OF JUDGMENT: 17/08/1964

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR MUDHOLKAR, J.R. SIKRI, S.M.

CITATION:  1965 AIR  877            1965 SCR  (1)  58

ACT: Defence of India Rules, 1962, r. 30A-Detention-Review before expiry  of six months-Whether reckoned from detention  order or from confirmation of detention order.

HEADNOTE: The  petitioner  whose  detention order was  issued  by  the respondent  on  February 25, 1963 under r. 30(1)(b)  of  the Defence  of India Rules, filed a petition under Art.  32  of the Constitution for a writ of habeas corpus.  The detention order was confirmed by the Administrator on March 26,  1963. The  Administrator reviewed the order on September 25,  1963 and  on March 11, 1962, each time deciding to  continue  the detention   order.   The  petitioner  contended   that   the detention  order  had to be reviewed  by  the  Administrator before  the  expiry  of  six months from  the  date  of  the detention  order, while the respondents contention was  that the  period of six months for the purpose of the  review  of the  detention  order was to be reckoned from  the  date  on which the Administrator confirmed the detention order.  HELD  : The review of a detention order made by an  officer empowered by the State’ Government or the Administrator  was to be at intervals of not more than six months from the date of  the detention order in the first instance and  from  the date of each subsequent order of the reviewing authority for the detention to continue. [63D]. Biren Dutta v. The Chief Commissioner of Tripura, (Cr.  App. Nos. 37-91 of 1964 decided July 23, 1964), referred to.

JUDGMENT: ORIGINAL  JURISDICTION  : Habeas Corpus Petition No.  85  of 1964 Petition  under Art. 32 of the Constitution for  enforcement of Fundamental Rights. Bawa Gurcharan Singh and Harbans Singh, for the petitioner. S.   V.  Gupte,  Additional  Solicitor-General  and  R.   N. Sachthey, for the respondent. The Judgment of the Court was delivered by Raghubar  Dayal J. Balmukand alias Balu has  presented  this

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writ  petition  under Art. 32 of the  Constitution  for  the issue  of a writ of habeas corpus.  He is detained  under  a detention order issued by the District Magistrate, Delhi, on February 25, 1963 under r. 30(1) (b) of the Defence of India Rules,  1962,  hereinafter called the rules.   The  District Magistrate  was  empowered  to issue  such  orders,  by  the Administrator.  The petitioner was arrested on February  27, 1963.   The  order of the Magistrate was  confirmed  by  the Administrator  of the Union Territory of Delhi on March  26. 1963.  The Administrator reviewed the 59 order on September 2,5, 1963 and on March 11, 1964, and each time  decided that the detention order should be  continued. The  orders  passed  on  review  were  communicated  to  the petitioner, each time. The  validity of the detention order is not  questioned  for the  petitioner.   The  facts  noted  above  are  also   not disputed.   It  is  contended for the  petitioner  that  the detention  order  had to be reviewed  by  the  Administrator before  the  expiry  of  six months from  the  date  of  the detention  order i.e., February 25, 1963.  On behalf of  the respondents  it  has been urged by  the  learned  Additional Solicitor General that the period of six months for the pur- pose of the review of the detention order is to be  reckoned from  the  date  on which the  Administrator  confirmed  the detention  order i.e., the 26th of March 1963 and  not  from the date of the detention order.  It is also urged that  the order  of confirmation itself should be taken as  the  first order  of  review  as  such  an  order  is  made  under  the provisions of r. 30A of the rules which deals with review of detention orders.  We are of opinion that the contention for the petitioner is sound. Sub-rule (1) of r. 30A provides that in that rule ’detention order’ means an order made under cl. (b) of sub-r. (1) of r. 30.   Sub-rule  (4) mentions the authorities which  have  to review  the detention order made by an officer empowered  by the   State   Government   or   the   Administrator.     The Administrator is the authority to review the order when made by  an  officer empowered by him to make a  detention  order under r. 30 (1 ) (b).  Sub-rule (5) enjoins that the officer empowered  by the State Government or the  Administrator  to make the detention order shall forthwith report the fact  of his  making the detention order to the  reviewing  authority or, as the case may be, to the Administrator.  Sub-rule 6(a) lays down what the reviewing authority has to do on  receipt of  a report under sub-r. (5).  The reviewing authority  for the  review of an order made by an officer empowered by  the State  Government  has, after taking into  account  all  the circumstances  of  the  case,  to  recommend  to  the  State Government whether the detention order is to be confirmed or cancelled  and  the  State Government,  on  receipt  of  the recommendation, has either to confirm or cancel the order as it   may  deem  fit.   Under  sub-r.  (b)  of  r.   6,   the Administrator  too  in regard to orders made by  an  officer empowered by him to make such detention orders, has to  take into   account  all  the  circumstances  of  the  case   and thereafter either confirm the detention order or cancel  it. Sub-rules (7) and (8) provide for the reviewing authority or the Administrator to review the detention order made by  the officers empowered by the State Govern- 60 ment  or the Administrator respectively at intervals of  not more than 6 months.  The reviewing authority has to send its recommendation to the Government which has to decide whether the   detention  order  be  continued  or  cancelled.    The

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Administrator hits himself to decide whether that  detention order  be continued or cancelled.  Sub-rule (9)  deals  with the  review of detention orders made by the Central and  the State  Governments  respectively.  Such  orders  are  to  be reviewed  at  intervals  of not more than 6  months  by  the Government making the detention order. The contention that the order of confirmation be treated  as the  order of review is based on what -is stated  in  sub-r. (2)  Which  directs  that every  detention  order  shall  be reviewed  in  accordance with  the  provisions  thereinafter contained.  It is urged that the provisions about the review of  the  detention orders are contained  in  the  provisions following sub-r. (2) and that therefore the act of confining the  order should be considered to be equivalent to the  act of reviewing the order as contemplated by the various provi- sions of r. 30A.  We do not consider this to be the  correct view about the order of confirmation. Sub-rule  (1)  of r. 30 empowers the Central  Government  or State Government to make an order directing that the  person be  detained  in  certain  circumstances.   The   expression ’State-Government’  used therein means, in relation -to  the Union  Territory,  the  Administrator  thereof.   The  State Government and the Administrator confer on officers power to make  such orders.  The’ power so delegated to them is in  a way  subject to the supervision of the State Government  and the  Administrator, and for the exercise of  supervision  by these authorities, sub-rr. (5) and (6) provide the procedure to  be followed for the confirmation of the detention  order made  by the officer empowered to make it.  It may  be  said that the orders of such officers, though valid from the time they  are  made, are subject to the approval  of  the  State Government or the Administrator by way of those  authorities confirming them. Sub-rule  6(a) gives the power of confirming  or  cancelling the  detention  order made by an officer  empowered  by  the State  Government  to the State Government and  not  to  the reviewing authority mentioned in sub-r. (4) of r. 30A.  This indicates  that the order of confirmation is not  really  an order  of  review.   The review is  done  by  the  reviewing authority.   The  order of confirmation or  cancellation  is passed  by  the authority primarily empowered  to  make  the detention order in sub-r. (1 ) of r. 30. 61 It may further be noted that the matters which the authority affirming  the order has to take into  ’Consideration  would necessarily include the circumstances prevailing at the time and the nature of the activities of the person ordered to be detained  on  the  basis  of which  the  original  order  of detention  was made under r. 30.  The  confirming  authority has thus to decide for itself whether those matters  justify the detention order or not.  When a review is made after  an interval of not more than six months and therefore mostly in the  sixth  month  of making of  the  detention  order,  the reviewing  authority has no more to consider the  nature  of the activities of the detenu as subsequent to his  detention there  could  be  no such activity of  his  which  would  be helpful in forming an opinion whether he should be  detained further  or not.  Mostly, the reviewing authority will  have to take into consideration the change, if any, in the  other circumstances which had led to the detention of that person. The  matters  to  be considered on the  occasion  of  review appear  to be different from those to be considered  at  the time  of  confirming  the order and therefore  an  order  of confirmation cannot be treated to be an order of review con- templated by r. 30A.

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The  provision about confirming or cancelling the  order  is not  in the nature of a review of the order of  the  officer empowered to make it, but is for the purpose of seeing  that the order made by the officer empowered was justified in the circumstances  of the case and on the materials  taken  into consideration  before ’passing that order and is thus  wider in its ambit than that for review. The order of confirmation is contemplated to be made by  the authority  mentioned  in  sub-r. (6), very  soon  after  the making  of the detention order.  This is apparent  from  the fact that the officers empowered by the State Government  or by the Administrator are required to make a report forthwith to the reviewing authority or to the Administrator  whenever they  make  a  detention order.  This  direction  to  report forthwith  the action taken by the officer empowered by  the State  Government  or  the  Administrator,  emphasises   the desirability  and necessity for the State Government or  the Administrator knowing of the order soon after it is made and being in a position to consider it and to pass the order  of confirmation  or cancellation as it may consider  fit  after taking into consideration all the circumstances of the case. If  the order of confirmation be considered to amount to  an order  of review, as contemplated by the  various  sub-rules dealing with the review of the detention order at  intervals of  not more than six months, it may lead to the  confirming authority not Ip./64-5 62 considering  the  circumstances of the  case  including  the nature  of  activities of the detenu on which the  order  is founded,  for  the purpose of confirming or  cancelling  the order  till about six months after the making of  the  order and  thus  defeat  the purpose  behind  the  provisions  for confirmation  of  the orders.  The  authority  empowered  to confirm  or  cancel  such orders will fail in  its  duty  to consider  the  propriety  of the order made  by  an  officer empowered  by it within a reasonable time of the  making  of the order, an order which affects the fundamental right of a citizen with respect to his personal liberty. It  is  also  urged that sub-rr. (7) and (8)  speak  of  the review of every detention order made by an officer empowered by a State Government or the Administrator and confirmed  by it or him as the case may be and that therefore the  further expression  in  these sub-rules referring to  the  intervals after  which  a reviewing authority is to review  should  be taken  from the date of confirmation of the detention  order and  not  from the date of the detention order.  We  do  not agree.   The  use  of the expression  ’and  confirmed’  with respect  to  the detention order to be  reviewed  is  merely descriptive  of  the order which is to be reviewed  and  has nothing to do with the further provision about the  interval within  which  the detention order is to  be  reviewed.   No question of reviewing an order which is not confirmed arises as,  in  that case, the order of the  appropriate  authority would be to cancel the detention order.  It is only in cases where  the  detention order is confirmed by  that  authority that the question of a subsequent review at intervals of not more than six months arises. The  review  is  of the detention order  and  therefore  the interval mentioned in sub-rr. (7) and (8) must relate to the interval  between the making of the detention order and  its review.  It is to be noticed that the provisions of  sub-rr. (7), (8) and (9) provide for the review of detention  orders at  intervals of not more than six months.  The  Central  or the  State  Government has not to confirm an order  made  by

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itself.  Sub-rule (9) therefore does not use the  expression ’and  confirmed’  which  is  used  in  connection  with  the detention  order in sub-rr. (7) and (8).  The provisions  of sub-r.  (9) therefore enjoin upon the Central or  the  State Government to review the detention order at intervals of not more  than  six  months.   The  interval  has  to   commence necessarily  from  the  date of  the  detention  order.   It follows  therefore  that this common interval of  ’not  more than  six  months’  for the review of  the  detention  order should,  in  each case, be taken to refer  to  the  interval between the making of the detention order and the 63 first  review  and, subsequently, to the  intervals  between dates of consecutive reviews.  It is to be noted that  there is  no  provision in the Defence of India Act or  the  rules framed thereunder which provides for the detention order  to specify the period of detention.  The detention order should not therefore be deemed to be for a period of six months  in the  first instance.  When a reviewing authority  reviews  a detention  order, it orders that the detention be  continued and as there is no specific date when the original detention is  to come to an end, the order of the reviewing  authority justifies  the further detention from the date of the  order made  by it for the continued detention of the detenu.   The further  orders  on  review  for  the  continuation  of  the detention  order would therefore be effective from the  date of  the orders and not after the expiry of the  sixth  month from  the  date of the detention order or from that  of  any subsequent review order. We therefore hold that the review of a detention order made- by an officer empowered by the State Government or the Admi- nistrator is to be at intervals of not more than six  months from  the date of the detention order in the first  instance and from the date of each subsequent order of the  reviewing authority for the detention to continue. Reference  may now be made to the following observations  in Biren  Dutta v. The Chief Commissioner of Tripura,(1)  where this Court had to consider whether a certain detention order had  been reviewed in accordance with the provisions  of  r. 30A:               "It   is  necessary  to  emphasize  that   the               decision  recorded under r. 30A(8) is  in  the               nature   of  an  independent  decision   which               authorises the further detention of the detenu               for  a period of six months.  In other  words,               the  initial order of detention is  valid  for               six  months  and the detention of  the  detenu               thereafter can be justified only if a decision               is recorded under r. 30A(8)." These  observations clearly indicate that the  review  order under r. 3OA(8) is to be within six months from the date  of the initial order of detention which will not be valid after six  months if  no,  order  for  the  continued  detention  is  made  in accordance with 3OA(8). We therefore hold that the detention of the petitioner under the detention order made by the District Magistrate,  Delhi, on (1)  Crl.  Appeals.  Nos. 87-91 of 1964 etc. decided on July 23, 1964 64 February  25, 1963, became illegal after the expiry  of  six months  from  that date as it had not been reviewed  by  the Administrator  within that period as required by sub-r.  (8) of  r. 30A and, accordingly, direct that the  petitioner  be

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set at liberty at once. Petition granted.                              65