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PETITIONER: CHOUDHURY DHARAM SINGH RATHI

       Vs.

RESPONDENT: THE STATE OF PUNJAB AND OTHERS

DATE OF JUDGMENT: 25/11/1957

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) AIYYAR, T.L. VENKATARAMA DAS, S.K. GAJENDRAGADKAR, P.B. SARKAR, A.K.

CITATION:  1958 AIR  152            1958 SCR  998

ACT:        Preventive  Detention--Failure  of  the  Advisory  Board  to        submit its report within time--Effect-Detenu, if must be set        at  liberty--Preventive Detention Act (No. IV of 1950),  ss.        10, 11.

HEADNOTE:        Submission  of its report by the Advisory Board under s.  10        of  the Preventive Detention Act within the time  prescribed        by  that section is of the utmost importance to  the  detenu        and if the Board fails to do so any further detention beyond        that period becomes unlawful.        Consequently,  where  the case of the detenu  was  that  the        Advisory Board had not submitted its report within ten weeks        of   his  detention  and  his  detention   thereafter   had,        therefore, become illegal and no attempt was made on  behalf        of  the Government to controvert that case in  the  counter-        affidavits  filed on its behalf, the detenu must be  set  at        liberty.

JUDGMENT:        ORIGINAL  JURRISDICTION:  Petition No. 135 of  1957.  (Under        Article  32 of the Constitution for a writ in the nature  of        habeas corpus)        N.   C. Chatterjee and Naunit Lal, for the petitioner.        N.   S. Bindra and T. M. Sen, for the respondents.        1957.  November 25.  The following Judgment of the Court was        delivered by        DAS,  C. J.-This is an application for a writ in the  nature        of  habeas corputs filed by the petitioner who was  detained        by an order made by the District Magistrate, Karnal under s.        3 of the Preventive Detention        997        Act  on the August 18, 1957, and which was approved  by  the        State Government on August 29, 1957.        In para 10(xii) of his petition the petitioner stated’  that        he  made  representations  before  the  Advisory  Board  and

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      personally  appeared twice before it, but the Board had  not        yet passed any order and he Contends that his detention  has        become  illegal  and  bad.  Under s. 10  of  the  Preventive        Detention  Act, the Advisory Board is enjoined, after  going        through the procedure therein laid down, to make its  report        to  the State Government within ten weeks from the  date  of        the   detention.   On  the  report  being  made  the   State        Government has to take steps under s. II of the Act.  If the        report is against the detention the Government has no option        but  must release the detenu forthwith.  In such a case  the        delay  in  the  submission  of  the  report  may  result  in        prolonging the detention beyond the period signified by  the        expression " forthwith " occurring in s. 11 read with s. 10.        On  the other hand if the report approves of  the  detention        the  Government  may  but  is  not  bound  to  continue  the        detention  and if it does decide to continue the  detention,        it  has to fix the period of such detention.  In  this  case        also the delay in the submission of the report deprives  the        detenu  of  the advantage of a fresh decision by  the  State        Government  about  the continuation of his  detention.   It,        therefore,  follows  that in either case the making  of  the        report  within the time prescribed by law is of  the  utmost        importance to the detenu and the failure to make the  report        in time may quite conceivably have the effect of  unlawfully        prolonging the detention and, therefore, after the expiry of        the ten weeks the detenu may well complain that he has  been        deprived   of  his  personal  liberty  otherwise   than   in        accordance  with  procedure  established by  law.   The  ten        weeks’  time within which the report of the  Advisory  Board        was  to be filed in this case expired on October  27,  1957.        This Petition was filed on November 8, 1957.  The detenu may        well  complain  that  on  and from  October  28,  1957,  his        detention has become illegal and bad and that, in substance,        is what he has said in para. 10(xii) of his petition.        998        Learned  counsel  appearing  on  behalf  of  the  State  has        submitted  that there is no allegation in the petition  that        the Board has not submitted its report and that all that has        been  said is that the Board has not made any  order.   Says        learned  counsel that if the petitioner had stated that  the        Board  had  not submitted its report  the  State  Government        could then be expected to deal with that allegation.   Under        s. 10 of the Act the Board has no power to make any order to        continue  or discontinue the detention, but is only under  a        duty to submit its report to the State Government.  In ;this        context,  therefore,  a  plain  reading  of  para.   10(xii)        indicates that the grievance of the petitioner, in subtance,        is  that the Board has -not submitted its report within  the        prescribed  period  and that, therefore, his  detention  has        become  illegal.   Learned counsel appearing for  the  State        wanted  time  to  ascertain  whether  the  report  had  been        submitted  within  the  time.   We  do  not  think  in   the        circumstances of this case any adjournment should be  given.        The allegation was definitely made in the petition that  the        Board  had not done its-duty and the detention was  on  that        account characterised as illegal and bad but this  paragraph        has  not  at  all  been dealt with  in  either  of  the  two        affidavits in opposition that have been filed.  There was no        scope for any misunderstanding about the petitioner’s  case.        In  these  circumstances,  we are of opinion  that  no  good        reason has been shown why any adjournment should be granted.        In the view we have taken on the effect of the noncompliance        with the procedure laid down in s. 10 of the Act. it is  not        necessary  for us to go into the other points raised in  the        petition.   We, therefore, direct that a writ be  issued  as

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      prayed for and the petitioner be set at liberty forthwith.                                Writ issued.                         Petitioner set at liberty. 999