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PETITIONER: STATE OF RAJASTHAN & ANR.

       Vs.

RESPONDENT: SHAMSHER SINGH

DATE OF JUDGMENT01/05/1985

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH FAZALALI, SYED MURTAZA

CITATION:  1985 AIR 1082            1985 SCR  Supl. (1)  83  1985 SCC  Supl.  416     1985 SCALE  (2)306  CITATOR INFO :  F          1986 SC 207  (5,6)  RF         1987 SC2080  (1)  RF         1990 SC 231  (24)

ACT:      Constitution  of   India  1956,   Article   22-Personal freedom-An invaluable  treasure-Not to  be curtailed  beyond necessity.      National Security  Act  1956  Sections  10  and  11(2). Advisory   Board-Delay   of   one   day   in   placing   the representation of  detenu before  Board-Non-consideration of documentary evidence  produced by detenu before Board-Entire record  of   Board  not   forwarded  to   State  Government- Intelligence reports  relied upon  by State  not supplied to detenu-Order of detention-Whether vitiated.

HEADNOTE:      The respondent, an Advocate, was ordered to be detained by the  State Government  under Section 3(2) of the National Security Act,  1950. He was taken into custody and detained. The grounds  of detention  were supplied  to him when he was detained.      The respondent  challenged his  detention in  the  High Court. The  High Court found: (1) that the representation of the  detenu  respondent  had  not  been  placed  before  the Advisory Board  within three  weeks as  required by s. 10 of the Act  and such violation vitiated the continued detention of the  respondent. (2)  that the  Advisory  Board  had  not considered the  documentary evidence  produced by the detenu and therefore  the opinion  formed by  the  Board  that  the respondent should  be detained  was not  an appropriate one, (3)  that  the  materials  in  the  record  which  had  been considered  by   the  Advisory   Board  in  formulating  its recommendation  to   the  State   Government  had  not  been transmitted  to   the  Government,  and  the  same  was  not available before  the State  Government, when  it  made  the order  of   confirmation,  (4)  that  the  contents  of  the intelligence reports referred to in the grounds of detention had not  been supplied  to the detenu and he had, therefore, been deprived  of the  opportunity of  making  an  effective representation  against   his  detention.   The  High  Court consequently held  that  the  detention  of  the  respondent

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cannot be  upheld,  and  directed  the  order  of  detention directing him to be detained for one year be quashed.      In the appeal to this Court, it was contended on behalf of the  State appellant,  that the  four grounds accepted by the High  Court in  quashing the detention was wrong and not sustainable as  a ground  for such  quashing. It was further contended that  as a fact there had been compliance of s. 10 of the  Act within  a week  of commencement of the detention and as  by then  no representation  from the  respondent had been received, the same could not be placed before the Board along with  the grounds  of detention.  The respondent  is a practising advocate  and must have therefore properly placed his points 84 before the  Advisory Board.  As the  Board had not been sent the entire  records, all  the records were not available for the consideration  of the  State Government  at the  time of confirmation of  the detention.  The respondent had actually been given in the grounds all the material details necessary for making an effective representation.      Allowing the Appeal, ^      HELD :  1(a) While  making of the reference under s. 10 with the  grounds of  detention is a must, furnishing of the representation is  conditional upon  it having been made and receipt thereof  by the appropriate Government. Though under the general scheme of the Act definite and different periods have been  prescribed for  compliance with  the step to step treatment of  the matter, there is no obligation cast on the detenu to  make a  representation within  any definite time. [91 H; 92 A]      (b) The procedure of the Advisory Board contained in s. 11 of  the Act  indicates that  the Board is to consider the materials placed  before it and is entitled to call for such information as  it may  deem necessary  from the appropriate Government or  from any  other person  concerned  and  after hearing the  detenu, if  he wants to be heard in person, has to report  to the  appropriate Government within seven weeks from the date of detention. [92 D-E]      (c) The legislative scheme in fixing the limit of three weeks in  s. 10  and the  further limit of seven weeks in s. 11, allows  at least  four weeks’  time to the Board to deal with the matter. [92 E]      (d) It  is obligatory for the appropriate Government to forward the  representation, when  received,  to  the  Board without  delay   because  unless   on  the   basis  of   the representation the appropriate Government rescinds the order of detention,  the representation is a document intended for the Board.  Where the  representation has  been received the same should,  as expeditiously as possible, reach the Board. [92 H; 93 A]      In the  instant  case  the  Board  on  receipt  of  the reference on  August 22,  1984, directed  its sitting  to be convened  for   September  10,1984   for   considering   the justifiability  of  the  respondents  detention.  The  State Government received  the representation  on August  30,1984, and placed  the same  before the  Board on September 6,1984. Six clear  days had  intervened between  the receipt  of the representation by  Government and the placing thereof before the Board. Admittedly, if the representation had reached the Board by  September 5,  1984, the  respondent would  not  be entitled to  raise  any  objection.  Keeping  the  attendant circumstances in view, it is difficult to hold that the time taken by  the State  Government can amount to withholding of the representation which resulted in non-compliance of s. 10

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of the Act so as to vitiate the detention. It cannot also be said that there has been any negligence or remissness on the part  of   the  State   Government  in   dealing  with   the representation of the detenu or in the matter of causing the same to  be placed  before the  Advisory Board. No prejudice has been  caused to  the detenu on account of the delay of a day 85 beyond the  statutory period  in placing  the representation before the Advisory Board inasmuch as the Advisory Board had caused the  matter to  be heard on  the 10th September, 1984 and before  the appointed date the representation was before the Board. [92 F; 93 B; D; 95 D-E]      A.K. Roy,  etc. v.  Union of  Indian &  Anr., [1982]  2 S.C.R. 272;  Ichhu Devi  Choraria v.  Union of India & Ors., [1981] 1  S.C.R 640; Khudi Ram Das v. State of West Bengai & Ors.,[1975] 2  S.C.R. 832;  Frances Coralie  Mullin v.  W.C. Khambra & Ors.,[1980] 2 S.C.R. 1095 and Raisuddin alias Babu Tamchi v.  State of Uttar Pradesh & Anr., A.I.R. 1984 SC 46; referred to.      2(a) Under  s. 11(2)  of the  Act  the  report  of  the Advisory Board has to specify in a separate part thereof the opinion  of  the  Board  as  to  whether  or  not  there  is sufficient cause  for the  detention of the person concerned and sub-s.  (4) provides,  the proceedings  of the Board and its report,  except that  part of  the report  in which  the opinion  of   the  Advisory  Board  is  specified  shall  be confidential. [95 G-H]      (b) The  Board is not required to write out a judgment. What  is  the  unbiased  and  impartial  conclusion  on  the materials  available   with  reference  to  the  grounds  of detention as  to whether  the detention  order when made and the  continued   detention  of   the  person  concerned  are justified. [96 E]      In the instant case, the Advisory Board was constituted by three  Judges of  the High  Court, one  of them being the Chairman. That  justifies the assumption that the members of the Board  by their  professional ability  and  acumen  were capable to  assess the  matter in  a proper  way and form an objective opinion  on the  basis of  materials produced. The detailed conclusions  with reasons  given by  the Board show that the detenu made before the Board very lengthy arguments and  cited  a  number  of  authorities  in  support  of  his submissions. The  High Court  had therefore no justification to accept  the submission of the detenu that the documentary evidence produced  by the  detenu had not been considered by the Board. [96 B-C; 96 F]      3. (a) Under s. 11(2) of the Act, the Board is required to submit  its report and there is no obligation cast by the Act that  the entire record of Board should be placed before the State  Government. Section  12 in  its  two  subsections indicates  two   alternative  courses   open  to  the  State Government on  the basis  of the  report. If the Board is of the view  that there is no sufficient cause for detention of the person,  the appropriate Government is obliged to revoke the detention  and release  the detenu.  On the  other hand, where the  Board is  of the  view that  there is  sufficient cause for  the detention  of  the  person,  the  appropriate Government may  confirm the detention order and continue the detention.  The   two  provisions  have  been  expressed  in different language. [96 G-H; 97 A-B]      Nand Lal  Bajaj v. State of Punjab & Anr. 1981 Cr. L.J. 1501, referred to. 86      (b) The  procedure established  by law does not require

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the entire  record to  be sent  by the  Board to  the  State Government; yet  it is  certainly  proper  that  the  record should be  available for being looked into in such manner as the confirming  authority considers  appropriate before  the final decision one way or the other is taken. The grounds of detention were  divided into  two groups,  one  labelled  as criminal activities  and the  other as extremist activities. [97 H; 98 A]      In the  instant case,  the documents  produced  by  the detenu before  the Board  did not contain any material which could persuade  the State  Government to  act in a different way. The High Court was therefore not right to hold that the order of confirmation of detention was bad. [98 F-G]      4. (a)  Personal freedom  is an invaluable treasure and the founding fathers took great care to protect it by making appropriate provisions  in the  Constitution. Simultaneously taking into consideration the peculiar situations prevailing in the  country, the  right of the State to order preventive detention was  also provided therein. In order that personal freedom may  not  be  curtailed  beyond  necessity  and  the executive administration may not make it an empty guarantee, detailed provisions  were made  in Article  22 providing  an effective   procedure   in   the   matter   of   making   of representation and scrutiny of the materials in the presence of the  detenu and even hearing him, if he so desired, by an independent Board with adequate judicial bias. [99 B-C]      (b) The  detenu is  not entitled to a disclosure of the confidential source  of information  used in  the grounds or utilised for  the making  of the order What is necessary for the making  of an effective representation is the disclosure of the  material and  not the  source thereof  By indicating that the facts have been gathered from confidential reports, a suggestive  disclosure of  the source  has also been made. [99 D-E]      State of  Punjab &  Ors.. v. Jagdev Singh Talwandi, AIR 1984 SC  444; Beni  Madhob Shaw v. State of West Bengal, AIR 1973 SC 2455; Har Jas Dev Singh v. State of Punjab, [1974] 1 S.C.R. 281  and Vakil  Singh v.  State of J & K, AIR 1974 SC 2337, referred to.      In the  instant case,  the grounds  of  detention  were divided into two groups, one labelled as criminal activities and the  other as  extremist activities.  Against  extremist activities it  was  further  indicated,  ’on  the  basis  of confidential reports’.  The facts by way of accusations were detailed, but  copies  of  the  reports  as  such  were  not furnished. The  respondent had  actually been  given in  the grounds  all   material  details  necessary  for  making  an effective representation. [98 H; 99 A]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 107-108 of 1985      From the  Judgment and  Order dated  20.12.1984 of  the Rajasthan High  Court in  D.B. Civil  Habeas Corpus Petition Nos. 1489 and 1575 of 1984. 87      N.L. Jain,  Advocate General  and Badri  Das Sharma for the Appellants.      Ram  Jethmalani   and  Miss  Rani  Jethmalani  for  the Respondent.      M.R. Sharma,  Dalveer Bhandari  and R.N. Poddar for the Intervener, Union of India.      The Judgment of the Court was delivered by

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    RANGANATH MISRA,  J. The  respondent, an  Advocate, was ordered to  be detained by the Government of Rajasthan under section 3(2) of the National Security Act, 1980 (hereinafter referred to  as the  Act), on  August 14,  1984, and  he was actually taken  into custody  and detained  on the following day. The  grounds of  detention were supplied to him when he was detained. Respondent challenged his detention before the Rajasthan  High  Court  by  filing  two  applications  under Article 226 of the Constitution on several grounds. Both the writ  applications  were  clubbed  and  heard  together  and disposed of  by a common judgment. The High Court found that the representation  of the  detenu-respondent had  not  been placed before  the Advisory  Board  within  three  weeks  as required by s. 10 of the Act and such violation vitiated the continued detention  of the  respondent. It  also found that the  Advisory  Board  had  not  considered  the  documentary evidence produced  by the  detenu and  the opinion formed by the Board  that  the  respondent  should  be  detained  was, therefore, not  an appropriate  one. The Court took the view that the  materials in  the record which had been considered by the  Advisory Board  in formulating its recommendation to the  State  Government  had  not  been  transmitted  to  the Government and  the same  was not available before the State Government when it made the order of confirmation. The Court was also  of the  further view  that  the  contents  of  the intelligence reports referred to in the grounds of detention had not  been supplied  to the detenu and he had, therefore, been deprived  of the  opportunity of  making  an  effective representation against  his detention. On these findings the High Court  held that the detention of the respondent cannot be upheld  and the order of detention dated August 14, 1984, and the  subsequent order  dated October 22, 1984, directing him to  be detained  for one  year  be  quashed.  The  Court further directed:           "In the interest of justice and in the interest of      National   Security,   without   curtailing   seriously      individual liberty, we give the following directions: 88           (1) that  the detenu Shamsher Singh being entitled      to liberty  on account  of the above order of ours will      be released from the Central Jail, Ajmer;           (2) that  the detenu Shamsher Singh would be none-      theless kept  either under  house arrest  or in a place      like Dak Bungalow or Circuit House at Ajmer or a nearby      place within  the radius of 50 kms. with the members of      his family,  which would  consist of his wife and three      minor sons;           (3) that if the detenu is kept under house arrest,      the expenses  will be borne by the detenu, but if he is      kept in  some Dak Bangalow or other Circuit House, then      his expenses will be borne by the State;           (4) that  the authorities  would permit  interview      with other  relatives  also,  if  the  detenu  is  kept      outside his house.           In case  no stay  order is  received  staying  the      operation of  the judgment  of this  Court, the  detenu      shall be  released on  expiry of  three weeks,  i.e. on      11.1.85."      This Court  granted special leave to appeal against the judgment of  the High  Court by  its order dated January 18, 1985. In  the mean  time, the  High Court  had suspended the operation of  its order  till January  21, 1985,  and  while granting special  leave, this  Court stayed operation of the judgment.      Learned   Advocate-General   of   the   appellant-State

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appearing in  support of  the appeal maintained that each of the four  grounds accepted by the High Court in quashing the detention is  wrong and not sustainable as a ground for such quashing while  Mr. Jethmalani  appearing for the respondent supported the  reasonings and the ultimate conclusion of the High Court.  We have  already stated  that  the  High  Court formulated the  reasons for  its order  in the shape of four conclusions and  we propose  to deal  with them seriatim for convenience.      The first  ground of  attack advanced by the respondent against the  order which  impressed the  High Court  is that there has been 89 violation in  complying with  the provisions of s. 10 of the Act. Indisputably  the respondent  was taken into custody on August 15,  1984. On  August 22,  1984, the State Government placed before  the Advisory  Board the  grounds on which the order of  detention had been made. By then no representation had been  made by  the detenu  and, therefore,  there was no occasion for  causing that  also to  be  placed  before  the Board. The  respondent made  a representation  on August 28, 1984, which  was  received  by  the  Superintendent  of  the Central Jail  where the  detenu had been lodged and the same was received  by the  State Government  on August  30, 1984. There is  no dispute  that  the  representation  was  placed before the  Advisory Board  on September  6, 1984. As far as relevant, s. 10 of the Act provides:           "...in every case where a detention order has been      made under  this Act, the appropriate Government shall,      within three  weeks from  the date  of detention  of  a      person under the order, place before the Advisory Board      constituted by it under section 9, the grounds on which      the order has been made and the representation, if any,      made by the person affected by the order .." It  is   the  contention   of  the   respondent   that   his representation against  the detention has been placed before the Advisory  Board a  day too  late inasmuch as while s. 10 requires the  placing to be done within three weeks from the date of detention, the representation has been placed before the Advisory  Board on  the 22nd  day. There  was no dispute before the  High Court  nor is there any challenge before us that  there   has  been   a  day’s   delay  in  placing  the representation of the respondent before the Board.      The High Court has accepted the respondent’s submission that the  requirement under  s. 10  of the Act was mandatory and  failure   to  place   before  the  Advisory  Board  the representation of the respondent has vitiated the detention. While Mr. Jethmalani appearing for the respondent reiterates that stand,  learned Advocate  General  in  support  of  the appeal  has   contended  that  as  a  fact  there  has  been compliance of s. 10 of the Act within a week of commencement of the  detention and  as by than no representation from the respondent had  been received,  the same could not be placed before the  Board along  with the  grounds of detention. The State Government  received the  representation on  the  30th August, 1984, and after looking 90 into the  contents, caused  it to be placed before the Board with due  haste and  that was  done on September 6, 1984. On the basis  of the  reference made  on the 22nd August, 1984, the Advisory  Board had  already fixed  the consideration of the respondent’s  detention at  the meeting on September 10, 1984, and  as a  fact, four  days before the date of hearing fixed by  the Board  the representation  was before it. As a fact, no  adjournment had  to be  given  in  the  matter  of

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consideration of  the representation  of the  respondent  on account  of   a  day’s   delay  in   the  placing   of   the representation before  the Board.  Learned  Advocate-General further submitted that when a representation from the detenu is received against his detention by the detaining authority (here  the   State  Government),   the   contents   of   the representation are  intended  to  be  perused  so  that  the detaining authority  may  consider  whether  continuing  the detention is  proper and expedient. At that stage it is open to the detaining authority to rescind the order of detention and in that event no further reference to the Advisory Board is warranted.  Since the  detaining authority  is not a mere post office-being required to receive the representation and have it  placed before  the Advisory  Board-a little time is bound to be taken in dealing with the representation. Taking a practical  view of  the situation  some time  is bound  to lapse between  the receipt  of the  representation  and  the forwarding of  the same for being placed before the Board. A day’s delay  in such  process cannot  indeed be  taken to be fatal so as to warrant the quashing of the detention.      A Constitution  Bench in  A. K.  Roy etc.  v. Union  of India Anr.,(1)  has upheld  the vires  of the  Act.  It  was pointed out  in Ichhu  Devi Choraria  v. Union  of  India  & Ors.(2) that "the burden of showing that the detention is in accordance with  the procedure established by law has always been placed by this Court on the detaining authority because Article  21  of  the  Constitution  provides  in  clear  and explicit terms  that no one shall be deprived of his life or personal  liberty   except  in   accordance  with  procedure established by  law. This  constitutional right  of life and personal liberty  is placed  on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of  life  or  personal  liberty,  the  authority responsible for such deprivation must satisfy the Court that it has  acted in  accordance with  the law.  This is an area where the  Court has  been most  strict  and  scrupulous  in ensuring observance with the 91 requirements of the law, and even where a requirement of the law is  breached in the slightest measure, the Court has not hesitated to strike down the order of detention or to direct the release of the detenu even though the detention may have been valid  till the  breach occurred."  This Court in Khudi Ram Das v. State of West Bengal & Ors., (1) said:           "The constitutional  imperatives enacted  in  this      article (22)  are two-fold: (1) the detaining authority      must,  as   soon  as  may  be,  that  is,  as  soon  as      practicable after  the detention,  communicate  to  the      detenu the  grounds on which the order of detention has      been made,  and (2) the detaining authority must afford      the  detenu   the  earliest  opportunity  of  making  a      representation against  the order  of detention.  These      are  the   barest  minimum  safeguards  which  must  be      observed before an executive authority can be permitted      to preventively  detain a  person and thereby drown his      right of  personal liberty  in the  name of public good      and social security." The view  indicate in  these decisions  is well accepted and the same is not open to doubt or dispute.      We have  already pointed  out that  within  a  week  of detention of  the respondent  a reference  to  the  Advisory Board had  actually been  made in  this case but without the respondent’s representation as the same had not been made by then. Section  10 stipulates  that the  grounds on which the order has  been made  and also  the  representation  of  the

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detenu, if  any, have to be placed before the Board when the reference is  made. The legislative scheme contained in this section envisages  the situation  that there  may be  a case where no  representation at  all is  made or within the time contemplated under  s. 10,  the representation  has not been forthcoming. We  agree with the submission of Mr. Jethmalani that the obligation cast under s. 10 of the Act is paramount and the  strictness with  which such  a mandate  has  to  be complied with  is absolute.  While making  of the  reference under s.  10 with  the  grounds  of  detention  is  a  must, furnishing of  the representation  is  conditional  upon  it having been  made and  receipt thereof  by  the  appropriate Government. Though 92 under the  general scheme  of the Act definite and different periods have been prescribed for compliance with the step to step treatment of the matter, there is no obligation cast on the detenu  to make  a representation  within  any  definite time. We  are, therefore,  prepared to accept the submission of the  learned Advocate-General  that while considering the compliance with  s. 10 of the Act emphasis has to be laid on making of  the reference  and forwarding  of the  grounds of detention, and  the placing  of the representation has to be judged on different basis. We may not be understood to be of the view  that it  is open  to the appropriate Government to withhold the  placement  of  the  representation  unduly  or indefinitely. When the reference is received and the grounds of detention are available, the Board proceeds to fix a date of  hearing   for  consideration  of  the  justification  of detention. The  procedure of the Advisory Board contained in s. 11 of the Act indicates that the Board is to consider the materials placed  before it and is entitled to call for such information as  it may  deem necessary  from the appropriate Government or  from any  other person  concerned  and  after hearing the  detenu, if  he wants to be heard in person, has to report  to the  appropriate Government within seven weeks from the  date of  detention in  the manner indicatad in the remaining sub-sections  of that  section. While dealing with this aspect  of the matter it is to be borne in mind that s. 10 requires  the reference  to be  placed before  the  Board within three  weeks and  s. 11  requires the  report  to  be submitted to  the appropriate Government within seven weeks. The legislative scheme in fixing the limit of three weeks in s. 10  and the  further limit of seven weeks in s. 11 allows at least  four weeks’  time to  the Board  to deal  with the matter.      The Board  on receipt  of the  reference on  August 22, 1984, directed  its sitting to be convened for September 10, 1984, for considering the justifiability of the respondent’s detention. This had apparently been done on the basis of the reference from  the appropriate  Government but  without the representation but  the representation  was received  by the Board in  the mean  time on  September 6,  1984.  The  first meeting of  the Advisory  Board was  thus fixed  within four weeks from  the date  of detention  and the consideration of the matter  by the Board was not required to be adjourned on account  of   any  delay   in  receiving  the  copy  of  the representation of the detenu.      We agree  with the submission of Mr. Jethmalani that it is obligatory  for the appropriate Government to forward the representation, when  received, to  the Board  without delay because unless on 93 the basis  of the  representation the appropriate Government rescinds the  order of  detention, the  representation is  a

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document intended  for the  Board. Where  the representation has been  received the  same  should,  as  expeditiously  as possible, reach the Board. In this case the State Government received the  representation on  August 30, 1984, and placed the same  before the  Board on  September 6, 1984. Six clear days  have   intervened   between   the   receipt   of   the representation by  Government and the placing thereof before the Board. Admittedly, if the representation had reached the Board by September 5, 1984, respondent would not be entitled to raise any objection. Can it, on the facts of the case and in the circumstances indicated, be said to be non-compliance with s. 10 of the Act?      Mr. Jethmalani  placed before us a passage from Broom’s Legal Maxims  (p. 162),  10th Edn.,  where the  doctrine  of impossibility of performance (lex non cogit ad imporsibilia) has been  discussed. It  has  been  indicated  therein  that however  mandatory   the  provision  may  be,  where  it  is impossible of  compliance that  would be a sufficient excuse for non-compliance,  particularly when  it is  a question of the time factor. Keeping the attendant circumstances of this case in  view, we  find it  difficult to  hold that the time taken by  the State  Government can amount to withholding of the representation which resulted in non-compliance of s. 10 of the  Act so  as to vitiate the detention. It is useful to refer to  a paragraph  from a  judgment  of  this  Court  in Frances Corolie  Mullin v.  W. C. Khambra & Ors,(1) while we are on  this point.  A Division  Bench was  dealing  with  a COFEPOSA detention.  Section 8  of the COFEPOSA requires the appropriate Government  to make  a reference  to  the  Board within five  weeks from the date of detention. While dealing with an argument referring to this aspect of the matter, the Court observed:           "The four  principles enunciated  by the  Court in      Jayanarayan Sukul  v. State of West Bengal [1970] 3 SCR      225, as  well as  other principles  enunciated in other      cases, an  analysis will  show, are  aimed at shielding      personal freedom  against indifference,  insensibility,      routine and  red-tape and  thus to secure to the detenu      the right  to  make  an  effective  representation.  We      agree: (1)  the detaining  authority must  provide  the      detenu   a   very   early   opportunity   to   make   a      representation, (2) the detaining 94      authority must  consider the  representation as soon as      possible, and  this,  preferably  must  be  before  the      representation is  forwarded to the Advisory Board, (3)      the representation  must be  forwarded to  the Advisory      Board before  the Board  makes its  report, and (4) the      consideration  by   the  detaining   authority  of  the      representation must  be  entirely  independent  of  the      hearing by  the Board  or its  report, expedition being      essential at  every stage.  We, however,  hasten to add      that the  time-imperative  can  never  be  absolute  or      obsessive. The  Court’s observations  are not  to be so      understood. There  has to  be lee-way, depending on the      necessities   (we   refrain   from   using   the   word      ’circumstances’) of  the case.  One may well imagine, a      case where  a detenu  does not  make  a  representation      before the  Board makes its report making it impossible      for the detaining authority either to consider it or to      forward it  to the  Board in  time or  a case  where  a      detenu  makes   a  representation   to  the   detaining      authority so shortly before the Advisory Board takes up      the  reference  that  the  detaining  authority  cannot      consider the  representation before then but may merely

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    forward it to the Board without himself considering it.      Several such  situations may arise compelling departure      from the  time-imperative. But no allowance can be made      for lethargic  indifference. No  allowance can  be made      for needless procrastination. But allowance must surely      be  made   for  necessary   consultation  where   legal      intricacies and factual ramifications are involved."      It is  useful at  this stage  also to  refer to a later decision  of   another  Division  Bench  of  this  Court  in Raisuddin alias  Babu Tamchi  v. State  of Uttar  Pradesh  & Anr.(1) That was a case of detention under the Act and there was a  delay of six days between the receipt by the District Magistrate (the  detaining authority)  of the  comments from the Superintendent  of  Police  on  the  representation  and despatch of  the representation  to  the  State  Government. While negativing  the contention  founded on  delay and  the resultant effect  on the  order  of  detention,  this  Court observed:           "In this  context  we  consider  it  necessary  to      emphasise that the question whether the representation 95      submitted  by   a  detenu   has  been  dealt  with  all      reasonable promptness  and diligence  is to  be decided      not by  the application of any rigid or inflexible rule      or set  formula nor  by a mere arithmetical counting of      dates, but  by a  careful scrutiny  of  the  facts  and      circumstances of  each case;  if on such examination it      is found that there was any remissness, indifference or      avoidable  delay   on  the   part  of   the   detaining      authority/State  Government   in   dealing   with   the      representation, the  Court will undoubtedly treat it as      a factor  vitiating  the  continued  detention  of  the      detenu; on  the other  hand, if  the Court is satisfied      that the  delay was  occasioned  not  by  any  lack  of      diligence or promptness of attention on the part of the      party concerned,  but due  to unavoidable circumstances      or reasons entirely beyond his control, such delay will      not be  treated as furnishing a ground for the grant of      relief   to    the   detenu   against   his   continued      detention..." We agree  with the  principle indicated  above  and  in  our opinion, in the facts of the present case, it cannot be said that there has been any negligence or remissness on the part of the  State Government  in dealing with the representation of the  detenu or  in the  matter of  causing the same to be placed before  the Advisory  Board. We  are impressed by the fact that  no prejudice  has been  caused to  the detenu  on account of the delay of a day beyond the statutory period in placing  the   representation  before   the  Advisory  Board inasmuch as  the Advisory  Board had caused the matter to be heard on  the 10th  September 1984  and before the appointed date the  representation was  before the  Board.  The  first ground on  which the  High  Court  came  to  hold  that  the detention was invalid has, therefore, to be negatived.      The  next   contention  advanced   on  behalf   of  the respondent which  has been  accepted by  the High  Court  in support of  its conclusion against the detention is that the Advisory Board  did not  consider the  documentary  evidence produced by  the detenu.  Under s.  11 (2)  of the  Act  the report of  the Advisory  Board has  to specify in a separate part thereof  the opinion  of the Board as to whether or not there is  sufficient cause  for the  detention of the person concerned and as sub-s. (4) provides, the proceedings of the Board and  its report,  except that  part of  the report  in which the  opinion of the Advisory Board is specified, shall

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be confidential. In view of the 96 specific plea raised by the detenu and the argument advanced before the  High Court that the Board had not considered the documentary evidence, the State Government placed the report before the  High Court  and the  same has  been also  placed before us  as a  part of  the record.  On a reference to the report we  find that  the Advisory Board in the instant case was constituted  by three  Judges of  the High Court, one of them being  the Chairman.  That would justify our assumption that the  members of the Board by their professional ability and acumen were capable to assess the matter in a proper way and form  an objective  opinion on  the basis  of  materials produced. The  detailed conclusion with reasons given by the Board has  also been  disclosed. That  shows that the detenu made before  the Board  very lengthy  arguments and  cited a number of  authorities in  support of  his submissions.  The detenu in  the instant  case is a practising advocate and we are impressed  by the  learned Advocate General’s submission that we  could assume  that such  a practising advocate must have very properly placed his points before the Board.      The Board  is not  required to  write  out  a  judgment wherein one  would expect  mention of  the respective pleas, materials  produced   by  the   parties,  specification   of contentions advanced  and reasons  for the conclusion as may have been  drawn. What  is  required  is  the  unbiased  and impartial  conclusion   on  the   materials  available  with reference to  the grounds  of detention  as to  whether  the detention order when made and the continued detention of the person concerned are justified. The High Court, in our view, had no  justification to accept the submission of the detenu that the documentary evidence produced by the detenu had not been considered  by the Board. The second ground accepted by the High  Court  has,  therefore,  to  be  repelled  as  not sustainable.      We proceed  to examine  the next ground, viz., that all the records had not been sent to the State Government by the Board and,  therefore, such  records were  not available for consideration  of  the  State  Government  at  the  time  of confirmation of  the detention. There is no dispute that the Board  had   not  sent   the  entire  record  to  the  State Government. Under s. 11(2) of the Act, the Board is required to submit  its report and there is no obligation cast by the Act that  the entire  record of  the Board  should be placed before the State Government. It is, however, not disputed by learned Advocate  General that  the report  of the  Board is only a recommendation and 97 the ultimate  decision on the basis of the report as to what further action  has to  be taken is for the State Government to make.  Section 12  in its  two sub-sections indicates two alternative courses  open to  the State  Government  on  the basis of  the report. If the Board is of the view that there is no  sufficient cause  for detention  of the  person,  the appropriate Government  is obliged  to revoke  the detention and release  the detenu.  On the other hand, where the Board is of  the view  that there  is  sufficient  cause  for  the detention of  the person,  the  appropriate  Government  may confirm the  detention order and continue the detention. The two provisions  have been  expressed in different languages. Where the  report is against the detention no option is left to the  State Government and a duty is cast on it to release the  detenu.   When  the  Board  recommends  that  there  is sufficient cause  for detention,  the State  Government  may confirm the  detention or  even revoke  it. Since  the final

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order has  to be  made  by  the  State  Government,  we  are inclined to accept the submission of Mr. Jethmalani that the entire record  or at  least all relevant materials should be available to  the State Government when it proceeds to apply its mind to decide whether the detention should be continued or revoked.  This view is in accord with produce and is also judicially supported  by a  decision of  this Court. In Nand Lal Bajaj  v. The  State of  Punjab &  Anr.(1),  this  Court observed:           "We were  informed that the Advisory Board did not      forward the  record of  its proceedings  to  the  State      Government. If  that be  so, then the procedure adopted      was not in consonance with the procedure established by      law.  The   State  Government   while  confirming   the      detention order  under section  12 of  the Act  has not      only to  peruse the  report of  the Advisory Board; but      also to  apply its  mind to  the material on record. If      the record  itself was not before the State Government,      it  follows   that  the   order  passed  by  the  State      Government under  s. 12  of the  Act  was  without  due      application of mind. This is a serious infirmity in the      case which  makes the continued detention of the detenu      illegal." We have  already indicated that the procedure established by law does  not require  the entire  record to  be sent by the Board to  the State  Government; yet  it is certainly proper that the record should 98 be available  for being  looked into  in such  manner as the confirming authority  considers appropriate before the final decision one  way or  the other  is taken.  The  grounds  of detention  were   available  with   the  State   Government. Materials referred  to in the grounds of detention were also available in  the file.  The only  materials which the State Government did  not have  before it  are the documents which the detenu  claims to have produced before the Board. With a view to  forming a prima facie impression that there was any material document which would have a bearing on the question at issue,  we sent  for the  record and  the same  has  been produced before  us. On  looking into the documents produced by the  detenu  before  the  Board,  we  have  come  to  the conclusion that  this did  not contain  any  material  which could persuade  the State  Government to  act in a different way. We  are cognizant  of the  position that  it is for the State Government  and not  for this  Court  to  act  as  the confirming authority  and non-compliance  with the procedure laid down  by law  makes the order of detention liable to be quashed. But  we have  also already said that non-placing of the record of the Board before the appropriate Government is not a  failure of  compliance with the prescribed procedure. It is,  therefore, that  we looked at the record to find out if it  can be said to be a defect having material bearing on the question  and a matter of prejudice so far as the detenu is concerned.  We reiterate by agreeing with the view of our learned Brother  Sen, J.  expressed in Nand Lal Bajaj’s case (supra) that  the appropriate  Government  should  have  the entire material before it along with the report of the Board when it is called upon to consider whether to confirm or not to confirm  the detention  on the basis of the report of the Board under s. 12(1) of the Act. The Board should therefore, forward the record containing the papers placed before it at the hearing  of the matter along with its report so that the matter can  be attended  by the  State Government  with  due despatch and  on taking  a full  view  of  the  matter.  Our conclusion with reference to the third ground, therefore, is

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that the  High Court  was not right in the facts of the case to hold that the order of confirmation of detention was bad.      The respondent  contended and  the High  Court accepted the submission  that not  providing copies  of  intelligence reports to  the detenu, though the same had been relied upon in  the   grounds  of   detention,  vitiated  the  order  of detention. The  grounds of  detention were  divided into two groups, one labelled as criminal activities and the other as extremist activities. Against extremist activities it was 99 further indicated,  ’ on the basis of confidential reports’. The facts  by way of accusations were detailed but copies of the reports  as such  were not  furnished. It is the settled position in law and learned Advocate-General did not attempt to contend  to the  contrary  that  the  detenu  has  to  be supplied all  materials relied  upon in  making the order of detention  with   a  view  to  being  provided  an  adequate opportunity of  making an effective representation. Personal freedom is  an invaluable  treasure and the founding fathers took  great   care  to  protect  it  by  making  appropriate provisions in  the Constitution.  Simultaneously taking into consideration the  peculiar  situations  prevailing  in  the country,  the   right  of  the  State  to  order  preventive detention was  also provided therein. In order that personal freedom may  not  be  curtailed  beyond  necessity  and  the executive administration may not make it an empty guarantee, detailed provisions  were made  in Article  22 providing  an effective   procedure   in   the   matter   of   making   of representation and scrutiny of the materials in the presence of the  detenu and even hearing him, if he so desired, by an independent Board with adequate judicial bias. While that is so, the  detenu is  not entitled  to  a  disclosure  of  the confidential source  of information  used in  the grounds or utilised for  the making of the order. What is necessary for the making  of an effective representation is the disclosure of the  material and  not the  source thereof. By indicating that the facts have been gathered from confidential reports, a suggestive  disclosure of  the source  has also been made. The Constitution Bench in the case of State of Punjab & Ors. v. Jagdev  Singh Talwandi,(1)  dealt with this aspect of the matter. The  learned Chief  Justice, speaking for the Court, observed:           "It was further argued by the learned counsel that      the  detaining  authority  should  have  disclosed  the      evidence on  the basis  of which the order of detention      was passed because, in the absence of knowledge of such      evidence,  the   respondent  could  not  have  made  an      effective   representation   against   the   order   of      detention. There is no substance in this contention. It      is not  the law  that  the  evidence  gathered  by  the      detaining authority  against the  detenu must  also  be      furnished to him". Reference was  made to  Beni Madhob  Shaw v.  State of  West Bengal(2) Har Jas Dev Singh v. State of Punjab(3), and Vakil Singh v. 100 State of  J & K.(1), and the learned Chief Justice proceeded to state:           "These cases  show that the detenu is not entitled      to be  informed of  the source  of information received      against  him  or  the  evidence  which  may  have  been      collected against  him as,  for example,  the  evidence      corroborating that the report of the C.I.D. is true and      correct.  His   right  is  to  receive  every  material      particular  without   which  a   full   and   effective

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    representation  cannot   be  made.   If  the  order  of      detention  refers  to  or  relies  upon  any  document,      statement or  other material,  copies thereof  have, of      course, to  be supplied  to the  detenu as held by this      Court in Ichhu Devi Choraria (supra)." In view  of what  has been  said by  the Constitution Bench, there was  no force in the submission of the respondent that there has been an infraction of the law in not supplying the respondent copies  of the  reports or  disclosing the source thereof. The  respondent had  actually  been  given  in  the grounds  all   material  details  necessary  for  making  an effective representation.  The fourth ground accepted by the High Court  in support  of its  order is also not tenable in law. As  all the  grounds accepted by the High Court for its conclusion are  not sustainable for reasons discussed above, the order  of the  High Court  quashing the detention is not supportable. The appeal is allowed and the order of the High Court is set aside.      In course  of the hearing, Mr. Jethmalani had drawn our attention to  the fact that many detenus like the respondent have been and are being released, and the respondent who has already under gone more than two-thirds of the period should be released.  That is  a matter  entirely for  the detaining authority  to   decide  and   we   hope   and   trust   that notwithstanding the  reversal of  the decision  of the  High Court, the  State Government  will  proceed  to  review  the matter expeditiously and make such appropriate directions as it consider fit. N.V.K.    Appeal allowed. 101