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PETITIONER: SHER MOHAMMAD @ SERU

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT08/01/1975

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH

CITATION:  1975 AIR 2049            1975 SCR  (3) 154  1975 SCC  (2)   2

ACT: Maintenance of Internal Security Act (26 of 1971), s.  3(4)- Communication  of  District  Magistrate’s  order  by   State Government  to Central Government before approval  by  State Government-If    sufficient   compliance   with    statutory requirement.

HEADNOTE: Section 3 of the Maintenance of Internal Security Act, 1971, indicates  that the State Government may directly  issue  an order of detention or, if it is done by a lesser  authority, approve  of such detention order as provided.  Section  3(4) obligates the State Government to communicate, within 7 days of the order of detention it makes or approves, that fact to the Central Government, together with the grounds and  other relevant particulars.  The procedural mandate is  inviolable except on peril of the order being avoided. In the present case, the order of detention was made by  the Dt.   Magistrate  on  November 21, 1972 and  the  order  was approved  by the State Government on December 2, 1972.   The order was however communicated to the Central Government  on December 1, 1972. HELD  :  There  was  no  strict  compliance  with  statutory formalities and since there has been ail infringement of the procedural  safeguard,  the order of detention  is  invalid. [155H-156A] (a) The communication to the Central Government by  the State Government of its approval was not within 7 days after its approval, as required by s.    3(4),    because,     the approval  by the State Government was only a day  after  the communication to the Central Government. [155G] (b)If  what  is  communicated is only  the  order  of  the District Magistrate, this was not sufficient compliance with the  statutory requirement, and it further was  also  beyond the 7 days’ period [155 G-H]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 522 of 1974. Petition under Article 32 of the Constitution. H.   S. Marwah for the petitioner.

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S.   C. Majumdar, G. S. Chatterjee and Sukumar Basu for  the respondent. KRISHNA  IYER,  J.  The detenu  petitioner,  challenges  his detention on various rounds but Shri H. S. Marwah, appearing as amicus curiae, has raised big contentions and small, some of  which do not merit consideration and others need not  be dealt  with  since,  on a short  point,  the  petition  must succeed. The scheme of the Maintenance of Internal Security Act, 1971 (Act  No.  26  of 1971) (hereinafter called  the  MISA,  for short)  is in keeping with Art. 27 of the  Constitution  and emphasizes  the  various  stages  at  which  there  will  be consideration  of  the need for the detention  by  different authorities,  such  as the District  Magistrate,  the  State Government and, ultimately, the Central Government.  For the effective  exercise  of this power a scheme has  been  built into the statute. 15 5  We  are  concerned  at present with  the  power  to  direct release of the detenu.  We may extract the provision here :               14(1)  Without prejudice to the provisions  of               section 21 of the General Clauses Act, 1897, a               detention  order may, at any time, he  revoked               or modified=               (b)notwithstanding that the order has  been               made  by  a State Government, by  the  Central               Government.",               With a view to posting the Central  Government                             with  the detention and the grounds  t herefore,               s. 3(4) provides thus :               "3.  Power to make orders detaining certain persons.               (4)When  any order is made or  approved  by               the  State Government Under this section,  the               State  Government  shall, within  seven  days,               report  the  fact to  the  Central  Government               together  with the grounds on which the  order               has been made and such other particulars as in               the  opinion  of the State Government  have  a               bearing  on  the  necessity  for  the  order."               (emphasis, ours) A  fair reading of s. 3 indicates that the State  Government may  directly issue an order of detention or, if it is  done by  a lesser authority, approve of such detention  order  as provided in the statute.  Sub-s. (4) of s. 3, which we  have extracted,  obligates the State Government  to  communicate, within  seven days of the order of detention it makes or  it approves, that fact to the Central Government, together with the  grounds  on  which the order has been  made  and  other relevant particulars.  Even assuming that the order is made by  the  District Magistrate and is approved  by  the  State Government, the communication has to be made to the  Central Government  within  the  time  specified.   This  procedural mandate  is  inviolable except on peril of the  order  being voided. In  the present case it is obvious that the detention  order was made on November 21, 1972 by the District Magistrate and approved by the State Government on December 2, 1972.  It is curious that on the State’s own showing the communication to the  Central  Government in compliance with s. 3(4)  of  the MISA has been made on December 1, 1972.  This date is beyond seven  days of the District Magistrate’s order and it  could not have been in compliance with the seven days’ spell after the approval by the State Government, that having been  done only  a day after the alleged communication to  the  Central

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Government.   It  is thus plain that  the  State  Government before  the approval itself was made.  Secondly, if what  it communicated  was the order of the District Magistrate,  it, was   not   sufficient   compliance   with   the   statutory requirement.   Moreover,  it  was beyond  the  seven,  days’ period. 156 In  short, there has been an infringement of the  procedural safeguard.   This  has, in several rulings,  held  that  the liberty  of  the citien is a priceless  freedom,  sedulously secured  by  the  Constitution.  Even so,  during  times  of emergency,   in  compliance  with  the  provisions  of   the Constitution, the said freedom may be curtailed, but only in strict  compliance with statutory formalities which are  the vigilant concern of the Courts to enforce. We have pointed out how in the present case there has been a failure  on the part of the State Government to comply  with s.3(4).   Judicial   engineering   prevents   breaches    of constitutional dykes protecting fundamental freedoms. The  order of detention is invalid and the detenu is  liable to be ,released.  The rule is made absolute.                                           Petition allowed.  V. P. S.                    ..... 157