23 July 1964
Supreme Court


Case number: Appeal (crl.) 87-91 of 1964






DATE OF JUDGMENT: 23/07/1964


CITATION:  1965 AIR  596            1964 SCR  (8) 295  CITATOR INFO :  R          1965 SC 877  (4)  D          1967 SC 483  (9)  D          1969 SC 323  (9)  F          1972 SC1924  (12)  RF         1976 SC1207  (566)  RF         1981 SC 728  (7)

ACT: Detention Order-Review-Continuation of detention beyond  six months--Order,   if   must  be  recorded  in   writing   and communicated to the detenu-Defence of India Rules, 1962, RR. 30 (1)(b), 30A(8).

HEADNOTE: The  Administrator of the Union Territory of Tripura  passed orders  detaining 68 persons, including the  appellants  and the  petitioners, under R. 30(1)(b) of the Defence of  India Rules,  1962.   While  gradually releasing  45  of  them  he purported to detain the appellants and the petitioners under R.  30A(8)  of  the said Rules.  The  appellants  moved  the Judicial Commissioner under Art. 226 of the Constitution and their  case  was  that  the decision  to  continue  them  in detention   was   not  recorded  in  writing  nor   was   it communicated  to  them and was, therefore, invalid  in  law. The  Judicial Commissioner dismissed the said  applications. The  petitioners  moved  this Court under  Art.  32  of  the Constitution  and their case was also the same.   The  first review  held on February 15, 1963, in respect of all the  68 detenus was recorded as follows,-               "On  review of the detention order in  respect               of  all  the  detenus CC.  decided  to  cancel               orders in respect of detenus at S. Nos. 1,  3,               4, 5, 6, 7, 8, 9, 12 and 13." It  was urged on behalf of the respondent that the order  by implication  continued the detention of the  appellants  and the   petitioners  and  such  detention  was  confirmed   by subsequent orders. Held:     (i)  The order did not comply with the  provisions of  R. 30A(8) of the Defence of India Rules and the  detenus



before this Court must be set at liberty. Decision to continue a detenu in detention must not only  be recorded  in  writing  but such  writing  must  clearly  and unambiguously indicate that decision. Subsequent  reviews  under the Rule could not  validate  the illegal continuance of the detention after the expiry of six months from the date of the original order of detention. Decision  recorded  under R. 30A(8) is in the nature  of  an independent decision and further detention can be  justified only if the decision is recorded as required by it. 296 Even assuming that an order passed under R. 30A(8) could  in a  proper case imply the decision to continue the  detention of  some of the detenus, the present case could not be  said to be one such. (ii) Assuming, though not deciding, that a decision recorded under R.   30A(8)  of  the  Rules was not in law  required  to  be communicated to the detenue, it was just and proper that the decision should in every case be communicated to the detenu.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.  87-91 of 1964. Appeal  by special leave from the judgment and  order  dated January  18, 1964, of the Judicial Commissioner’s Court  for Tripura in Criminal Misc. (Habeas Corpus) Petitions Nos. 15, 20, 25, 26 and 28 of 1963, and Habeas Corpus Petitions  Nos. 24 and 27 of 1963.                             AND Writ Petitions Nos. 43, 42, 40, 41, 65 and 80 of 1964. Petition Under Art. 32 of the Constitution of India for  the enforcement of the fundamental rights. R.   K.  Garg,  S.  C.  Agarwala, D.  P.  Singh  and  M.  K. Ramamurthi, for the appellants and petitioners in all. H.   N.  Sanyal,  Solicitor-General, D. R. Prem  and  R.  H. Dhebar, for the respondents (Except Respondent No. 2 in W.P. 43 of 1964). D.   Goburdhun, for respondent No. 2 (in W.P. 43 of 1 964). July 23, 1964, The Judgment of the Court was delivered by GAJENDRAGADKAR   C.  J.-These  Criminal  Appeals  and   Writ Petitions  have been placed for hearing together in a  group because they raise common questions of law. As  is well-known, after the Chinese attacked  the  northern border  of India on the 8th September, 1962,  the  President issued a Proclamation under Art. 352 of the Constitution  on the  26th October, 1962.  This proclamation declared that  a grave emergency existed which posed a threat to the security of India.  On the same day, an Ordi-                             297 nance was promulgated by the President.  This Ordinance  was subsequently modified by Ordinance No. 6 of 1962 on the  3rd of  November,  1962.   The President also  issued  an  Order tinder Art. 359(1) suspending the rights of citizens to move any  court  for the enforcement of the rights  conferred  by Articles  21  and 22 during the pendency  of  the  emergency proclamation.   On the 26th October, 1962, the Rules  framed by  the  Central Government under the Defence of  India  Act (hereinafter called ’the Rules’) were published.  Rule 30 of the Rules as originally framed was subsequently modified  on the  6th December, 1962 and Rule 30-A was added.  Later,  an Act  was passed on the 12th December, 1962, and s. 48(1)  of this Act provided for the repeal of the earlier  Ordinances.



Even so, s. 48(2) provided for the continuance of the  Rules framed  under  the Ordinances, so that  the  relevant  Rules framed under the Ordinances have to be taken as Rules framed under the latter Act. It  appears that Mr. Mukerjee who was the  Administrator  of the  Union  Territory  of Tripura  -at  the  relevant  time, considered   the   material  placed  before  him   as   such Administrator  and was satisfied that a group of  Communists had been agitating amongst the tribals residing in the  area and inciting them against the Government, and he came to the conclusion that their activities were likely to endanger the security  of  the State.  Acting on this view,  he  directed that  68 persons should be detained under Rule 30(1)(b)  and passed  appropriate orders in that behalf.  Later,  lie  was satisfied  that  45  out of these 68  persons  need  not  be detained  any longer; and so, he ordered their release  from time  to time.  That left 23 persons under detention and  it is with the cases of these 23 persons that we are  concerned in the present group if criminal appeals and writ petitions. 12  out of these 23 persons moved the Judicial  Commissioner of  Tripura  under Art. 226 of the Constitution  and  prayed that  the orders of detention under which they continued  to be detained at the time of their petitions were illegal  and should  be  set  aside  and they should  be  ordered  to  be released forthwith.  These applications were heard 298 together  by  the  learned  Judicial  Commisioner  and  were ultimately   dismissed.   Against  his  decision,   Criminal Appeals  Nos.  87-91 of 1964, and 106 and 107 of  1964  have been  filed by the detenues, with special leave  granted  to them by this Court on petitions made by them in that behalf. It  appears that the detenues Mohan Chaudhury and  Jagabrata Sen Gupta who have joined in Cr.  As.  Nos. 87-91/1964, have also  preferred  separate  criminal  appeals  Nos.  106  and 107/1964 individually.  That is how this group of appeals is concerned  with the cases of 12 detenues who had  moved  the Judicial Commissioner under Art. 226; and their grievance is that  the view taken by the Judicial Commissioner in  regard to  the  points  of law raised by them before  him,  is  not correct. The Writ Petitions deal with cases of 11 remaining  detenues and  they  joined the detenues who  have  preferred  appeals before   us  by  special  leave  in  contending   that   the continuance of their detention is invalid and that a similar plea  raised by the appellants before the  Judicial  Commis- sioner  should  have been upheld by him.  That  is  how  the criminal  appeals and the writ petitions between them  raise common questions of law. Mr.   Garg   who  appeared  for  the  appellants   and   the petitioners,  as well as the learned  Solicitor-General  who appeared  for  the  respondent, the  Chief  Commissioner  of Tripura,  agreed that it would not be necessary to  consider the facts in each individual case for the purpose of  decid- ing the common questions of law raised by them.  It would be enough  if we refer to the facts in one case, because  facts in  other  cases are exactly similar and there would  be  no point of distinction on facts as such.  We would, therefore, refer to the facts relevant to the case of the detenu  Biren Dutta. Biren Dutta was detained on the 25th December, 1962, and  an order issued in that behalf was duly served on him.  On  the 26th  December, 1962, he was transferred to  the  Hazaribagh Jail.   The respondent’s case is that on the 15th  February, 1963,  the case of Biren Dutta was reviewed under R.  30A(8) and it was decided to continue his deten-



                           299 tion.  Subsequently, his case was reviewed on the 3rd  July, 1963, 5th September, 1963, and 11th March, 1964, and on each occasion, it was decided to continue his detention. On  the  other  hand, Biren Dutta’s  contention  before  the Judicial  Commissioner was that an order of review  had  not been  passed  as  required by R. 30A(8)  and  had  not  been communicated  to him.  It was urged on his behalf that  Rule 30A(8) requires that the decision to continue the  detention of  a  detenu  must  be  reduced  to  writing  and  must  be communicated to the detenu, and the argument was that  since these two conditions prescribed by the relevant Rule had not been   complied  with,  the  continuance  of  the   detenu’s detention was invalid in law. The Judicial Commissioner has negatived the contentions thus raised  by  the detenu.  He has found that the  decision  to continue  the detenu’s detention reached by  the  respondent under R. 30A(8) had in fact been reduced to writing, and  in support of this contention, he has referred to the fact that the  original file containing a record of the  decision  had been  produced  on  behalf  of  the  respondent  before  the Judicial  Commissioner, but since the  respondent’s  learned Advocate was apparently not prepared to allow the lawyer  of the detenu inspection of the said record, the court did  not consider the evidence supplied by it.  The argument urged by the  detenu that the said record may have been  subsequently manufactured was rejected by the Judicial Commissioner.  The Judicial  Commissioner  also considered the  fact  that  the affidavit made on behalf of the respondent showed that  when the  cases of the detenues were considered by him from  time to  time, he actually ordered the release of some  of  them. This  fact, according to the Judicial  Commissioner,  showed that the respondent had applied his mind to the cases of all the detenues and since he released some of them, it followed that  in  regard  to the rest he was  satisfied  that  their detention  should be continued.  The  Judicial  Commissioner was  apparently inclined to take the view that the  relevant Rule  did  not  seem clearly to require  that  the  decision reached by the appropriate authority under R. 30A(8)  should be reduced to writing, but he thought it unnecessary to make a definite finding 300 on this issue, because he was satisfied that in the case  of Biren  Dutta, the decision in question had been  reduced  to writing.  The argument that R. 30A(8) requires that the said decision  should be communicated to the detenu was  rejected by  the  learned  Judicial Commissioner.   It  is  on  these findings that he rejected the petition filed by Biren  Dutta and 11 other detenues and held that the continuance of their detention was justified in law. When these matters were argued before this Court on the  6th May,  1964, an interim order was passed directing  that  the Chief   Secretary  to  the  Tripura  Administration   should forthwith  transmit  to  this Court the  original  files  in respect of the detenues concerned and that the Minister,  or the Secretary or the Administrator who reviewed the cases of the  detenues  and  had arrived at  a  decision  that  their detention  should be continued, should file an affidavit  in this  Court  on or before the 8th June, 1964, and  that  the affidavit  should  state  all  material  facts  and   should indicate   whether   the  decision  arrived  at   was   duly communicated  to  the  detenues or  not.   Accordingly,  the original  files have been produced before us and  additional affidavits  have been filed.  The learned  Solicitor-General fairly  conceded  that  he  would allow  Mr.  Garg  for  the



appellants  an opportunity to inspect the files inasmuch  as he  was  not  going to raise any question  of  privilege  in respect of theme.  It is in the light of the minutes made on these  files that the principal points raised before us  now fall to be considered. Mr. Garg contends that the scheme of the Rules clearly shows that  the  original  order  of  detention  passed  under  R. 30(1)(b), as well as the decision to continue the  detention of  the detenues reached by the appropriate authority  under R.  30A(8) must be recorded in writing and must comply  with the  provisions  of Art. 166 of the Constitution.   He  also urges  that  R. 30A(8) further requires  that  the  relevant decision  reached  by  the  appropriate  authority  must  be communicated to the detenu.  In support of his argument that the  relevant decision under R 30A(8) must comply with  Art. 166  and  must be communicated to the detenu, Mr.  Garg  has relied  on  the  ,decision  of  this  Court  in   Dattatreya Moreshwar Pangarkar 301 v.   The  State of Bombay(1), and Bachhittar Singh v.  State of  Punjab(1).   He has also invited our  attention  to  the observations made by Raghubar Dayal J. in S. Partap v. State of Punjab(1). The  learned Solicitor-General has conceded that  the  order directing the detention of a citizen under R. 30(1) (b),  as well as the order incorporating the decision to continue the detention under R. 30A(8) must be in writing.  He,  however, challenges  the  correctness of Mr. Garg’s  contention  that these orders must comply with Art. 166, and he disputes  his case  that  the decision reached under R. 30A  (8)  must  be communicated  to the detenu.  In support of his case he  has referred us to the decision of this Court in Mohammad  Afzal Khan  v.  State  of Jammu and Kashmir(4),  as  well  as  the decision  of the Bombay High Court in Pralhad Krishna  Kurne v.  The  State of Bombay(1) and that of the  Allahabad  High Court in Nandan Singh Bhist v. State of U.P.(6). We do not think it necessary to consider the question as  to whether the orders passed under R. 30(1) (b) and the  record of  the decision reached under R.30A(8) should  comply  with Art. 166 of the Constitution or not.  It also appears to  us to  be unnecessary to decide in the present group  of  cases whether  the  decision recorded under R.  30A(8)  should  be communicated  to  the  detenu.  We are  satisfied  that  the decision to continue the detention of the detenues which, it is  urged  on behalf of the respondent, was reached  by  him under  R.  30A(8),  has  not been  recorded  in  writing  as required by the said Rule; and there is no other evidence on record  to show that such a decision had then  been  reached and  reduced  to writing.  It will be recalled that  in  the present proceedings, it is common ground between the parties that  there  has to be an order in  writing  indicating  the decision  of the appropriate authority reached by him  after reviewing the case of the detenu that the continuance of his detention  should  be ordered.  Rule  30A(8)  provides  that every detention order made by an      (1) [1952] S.C.R. 612,(2) [1962] SUPP. 3 S.C.R. 713      (3) A.I.R. 1964 S.C. 72(4) A.I.R. 1957 S.C. 173      (5) I.L.R. 1952 Bom. 134(6) A.I.R. 1964 All. 327 302  officer empowered by the Administrator and confirmed by him under  clause  (b) of the sub-rule (6) and  every  detention order made by the Administrator himself shall be reviewed at intervals  of not more than six months by the  Administrator who  shall decide upon such review whether the order  should be  continued or cancelled.  The question which we  have  to



decide  is  whether it is shown by the minutes made  on  the file produced before us by the respondent that he did decide that  it  was  necessary to continue the  detention  of  the detenues  before  us.  The minutes made on the file  are  no doubt  a  written  record  of  his  decision,  and  so,  the requirement that whatever is decided under R. 30A(8)  should be  reduced to writing is satisfied; but the question is  do these minutes show that the cases of the detenues before  us were  considered and a decision to continue their  detention was reached by the respondent on the relevant occasion,  and that  presents  a very narrow problem for  our  decision  in relation to the construction of the said minutes. The  first occasion on which the respondent claims  to  have reviewed the cases of the detenues before us was on the 15th February, 1963.  On that date, he made the following order:-               "On  review of the detention order in  respect               of all detenus CC decided to cancel  detention               orders in respect of detenues at S. No. 1,  3,               4, 5, 6, 7, 8, 9, 12 and 13." It is urged by the learned Solicitor-General that this order shows that the appropriate authority considered the cases of all the detenues and decided to cancel the detention of some of them, and that, he suggests, should be construed to  mean that he decided to continue the detention of detenues  other than those whose release he ordered.  There is no doubt that this  order makes a reference to the review of all  detenues and, prima facie, it would be open to the Solicitor  General to contend that this part of the order shows that the  cases of  all  the 68 detenues must have been  considered  by  the appropriate authority.  In this connection. we would like to emphasise the fact that in exercising its power under                             303 R.   30A(8),  the appropriate’ authority should  record  its decision clearly and unambiguously.  After all, the  liberty -of  the citizen is in question and if the detention of  the detenue  is  intended  to be continued as a  result  of  the decision reached by the appropriate authority, it should say so  in  clear and unambiguous terms.  But assuming  that  an ,order  passed by the appropriate authority under R.  30A(8) can  in  a  proper case be construed  to  mean  his  implied decision  to continue the detention of some detenues,  while releasing  some  others, we find it difficult to  hold  that such  an implied decision can be inferred from  the  present order.   It  is  relevant to remember that  this  order  was passed  on  the  15th February, 1963, and  the  six  months’ period  within which review had to be made under  R.  30A(8) would  have  expired on the 25th June, 1963.   It  is  quite likely  that even before the six months period expired,  the authority  considered the matter and came to the  conclusion that any further detention of the detenues specified in  the order  was  not  justified, and so,  even  before  the,  six months’  period  expired, he directed that  they  should  be released.   That  undoubtedly shows that the  authority  was considering  the question very carefully and as soon  as  he felt  satisfied that further detention of the said  detenues would  be unnecessary, he ordered their  release  forthwith; but  this  very  consideration suggests  that  he  may  have considered  the  cases of only such detenues  as  should  be released forthwith.  Besides, there is nothing to show  that after  the  15th February, 1963, and before the  25th  June, 1963,  he considered the matter in respect of  the  detenues before  us and held that the continuance of their  detention was  justified  after the expiration of six months.   It  is necessary  to emphasise 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).  That being the  nature  of  the decision  which is required to be recorded under R.  30A(8), we are unable to hold that the memorandum in question can be reasonably  said to include a decision that the  continuance of the detention of the 304 detenues before us was thought to be necessary by the appro- priate  authority  after  the expiry of the  period  of  six months. It  is  true that in the additional affidavit filed  by  the respondent it has been stated as a submission by him that as a result of the said review (15/2/63) the detention of Biren Dutta  as  well as others whose detention  orders  were  not cancelled,  continued."  This  undoubtedly is  a  matter  of argument;  it being the respondent’s contention  that  since the  order detaining some detenues was cancelled,  logically it  follows that the detention of the others was ordered  to continue.  But even assuming that the respondent had  stated in  his additional affidavit clearly and unambiguously  that he  had  decided  on  the  15th  February,  1963,  that  the detention of the detenues before us should be continued,  we would  not have attached much significance to such a  state- ment,  because what we have to consider is the order  passed on  the  15th  February, 1963, and not  what  the  authority making  the order thought it meant or intended it  to  mean; and so, it comes back to the question of the construction of the  order itself.  We have carefully considered  the  argu- ments  urged before us by the Solicitor-General, but we  are unable  to hold that this order can be said to  satisfy  the requirements  of  R. 30A(8) at all.  We are  satisfied  that this  order cannot be construed to contain a written  record of the decision of the respondent that the detention of  the detenues  before us should be continued after the expiry  of six months from the date of the original order of detention. Then as to the next order passed on the 3rd July, 1963,  the position  is still worse.  It appears that on the 15th  May, 1963, the Superintendent of Police, Tripura recommended that some of the detenues should be released, because he  thought there  was no longer any justification for  their  continued detention.    This   matter  was   discussed   between   the Superintendent of Police and the Chief Secretary on the  6th June,  1963,  and eventually as a result of  the  conference held  between the Chief Minister and the Chief  Commissioner an order was passed on the 3rd July, 1963.  This order shows that  the  cases  of  the persons  whose  release  had  been recommended by the Superintendent of Police were considered. These detenues were 25 in                             305 number.   During  the course of the discussion  between  the Chief  Minister  and  the  Chief  Commissioner,  the   Chief Minister appears to have suggested that instead of releasing all the aforesaid 25 detenues together it would be better if they  were  released in batches, but ultimately,  the  order passed  by the Chief Minister which was assented to  by  the Chief  Commissioner was that all of them may be released  at the  same  time  on the 6th July,  1963.   In  other  words, reading  the letter written by the Superintendent of  Police to  the  Chief Commissioner on the 15th May, 1963,  and  the record  of the discussion that took place between the  Chief Secretary, the Chief Minister and the Chief Commissioner  on the  3rd July, 1963, it is clear that the only  cases  which



the  authorities  considered were the cases of  25  detenues whose release had been recommended by the Superintendent  of Police.   It is common  ground that the detenues  before  us were  not included in the said list of 25 detenues, and  so, there is no scope for suggesting that at this time the cases of  the  detenues other than those who  were  released  were concerned.   That  being  so, we must  hold  that  like  the earlier  order passed on the 15th February, 1963, the  order passed  on the 3rd July, 1963, is also of no  assistance  to the  respondent,  because neither order  can  be  reasonably construed  as  containing  a  decision  of  the  appropriate authority reached under R. 30A(8) to continue the  detention of  the  detenues before us.   This  conclusion  necessarily means  that  the  requirement  of R.  30A(8)  has  not  been complied  with and that inevitably makes the continuance  of the  detention of the detenues before invalid in  law.   The fact that those cases were reviewed subsequently on the 25th September,  1963 and 11th March. 1964, and the  decision  of the  authority  was in fact communicated to them  would  not validate  the  illegal continuance of the detention  of  the detenues after six months had expired from the date of their original detention. We have already indicated that we do not propose to consider in  these proceedings the two other points of law  urged  by Mr.  Garg  but before we part with these matters,  we  would like  to  emphasise  that even assuming  that  the  decision recorded by the appropriate authority under 51 S.C.20. 306 R.   30A(8) is not, as a matter of law, required to be  com- municated  to  the detenu, it is desirable and it  would  be fair  and just that such a decision should in every case  be communicated  to the detenu.  If the  appropriate  authority considers  the question about the continuance of the  deten- tion  of a particular detenu and decides that such  continu- ance  is justified, we see no justification for  failing  to communicate  the said decision to the detenu concerned.   If the  requirement  as to such communication were held  to  be necessary as a matter of law, non-communication would render the  continuance  of the detention invalid; but  that  is  a matter  which  we are not deciding in these cases.   We  are only emphasising the fact that it would be fair that such  a decision should be communicated to the detenu. In  the result, the appeals and writ petitions  are  allowed and  the detenues concerned ordered to be set at liberty  at once. Appeals and Writ Petitions allowed.