Dilawar Singh (Ex.Head Constable) vs State of Haryana and another

H.S. Brar, J.

Criminal Writ Petitions Nos. 1192 of 1991 to 1192 of 1991, 1201 of 1991 to 1201 of 1991 and 76 of 1992 will be disposed of by this judgment, as they involve common questions of law and fact and were also heard together.

In these Writ Petitions, the detenus were detained by the District Magistrates of various Districts of Haryana State with a view to preventing them from acting in any manner prejudicial to the maintenance of public order. Together with the orders of detention, Grounds of Detention were conveyed to the detenus. These are the orders of detention which have been challenged in these Writ Petitions. It is not necessary to make a detailed reference to the various averments made in these petitions or in the replies filed by way of affidavits, as the said petitions must succeed on short point.

Mr. H.S. Hooda, learned counsel appearing for the petitioners in all the petitions contended before me that the continued detention of the detenus is bad in law since the State Government had reported the order of detention approved by it to the Central Government after a period of seven days.

It is not disputed by learned Advocate General, appearing for the respondentState that the reports of the State Government were received by the Central Government after a period of seven days was over. According to him, the obligation of the State Government under Section 3(5) of the Act is only to send the report to the Central Government within seven days and it is not necessary that the report should be received by the Central Government within the said period. In these cases, the letters containing the reports were sent by the State Government within seven days, though they were received by the Central Government beyond a period of seven days and, therefore, according to the learned consel appearing for the State the provisions of section 3 (5) stand duly complied with.

The Scheme of the Act is in keeping with Article 22 of the Constitution and emphasises the various stages at which there will be consideration of the need for detention by the differnt Authorities such as District Magistrate, the State Government and ultimately the Central Government . For effective exercise of the powers, the Scheme has been built into this statute. The relevant portion of the provisions of the Act are extracted as under :

"Section 3. Power to make orders detaining certain persons : The Central Government or the State Government may,

(a) xx, xx, xx

(b) xx, xx, xx

(2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to maintenance of public order or from acting in any manner prejudicial to the community it is necessary so to do, make an order directing that such person be detained.

Explanation : xx, xx, xx

xx, xx, xx

(3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order such District Magistrate or Commissioner of Police may also, if satisfied as provided in subSection (2), exercise the power conferred by the said sub section :

"Provided that the period specified in an order made by the State Government under this subsection shall not, in the first instance, exceed three months, but the State Government, may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.

(4) When any order is made under this section by an officer mentioned in subsection (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime, it has been approved by the State Government :

Provided that where under Section 8 the ground of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this subsection shall apply subject to the modification that, for the words "twelve days" the words "fifteen days" shal be substituted.

(5) 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."

Section 8 deals with the communication of the grounds of order of detentionto the detenus. By Section 10, a reference to the Advisory Board is contemplated. Sections 11 and 12 deal with the submission of report by the Advisory Board to Government and action by the appropriate Government upon the report so submitted by the Advisory Board, Section 14 which confers right upon the Central Government to revoke or modify a detention order, reads as under :

"14. Revocation of detention orders without prejudice to the provisions of Section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified :

(a) notwithstanding that the order has been made by an officer mentioned in subsection (3) of Section 3, by the State Government to which that officer is subordinate or by the Central Government;

(b) notwithstanding that the order has been made by a State Government, by the Central Government.

(2) ......., ........, ......., ......

..........., ............., ............, ...........

A definite clue can be got about the scope of section 14 of the National Security Act, 1980 from what has been laid down by the Supreme Court in Sabir Ahmed v. Union of India, 1980 (3) SCC 295. Paragraph 12 of the said judgment reads as under :

"It is true that section 3 (2) of COFEPOSA mandates the State Government to send a report to the Central Government. But it does not mean that the representation made by the detenu, if any, should also be sent along with that report. There appears to be no substance in the contention that the Central Government is under no duty to consider a representation made to it by the detenu for revoking his detention, if it simple repeats the same allegations, statement of facts, and arguments which were contained in the representation made to the detaining authority. It is common experience that an argument or submission based on certain facts, which does not appeal to a tribunal or authority of first instance, may find acceptance with a higher tribunal or supervisory authority. Whether or not the detenu has under Section 11 a legal right to make a representation to the Central Government is not the real question. The hub of the matter is whether the power conferred by Section 11 on the Central Government carries with it a duty to consider any representation made by the detenu, expeditiously. The power under Section 11 may either be exercised on information received by the Central Government from its own sources including that suplied under Section 3 by the State Government, or from the detenu in the form of a petition or representation. Whether or not the Central Government on such petition/representation revokes the detention is a matter of discretion. But this discretion is coupled with a duty. That duty is inherent in the very nature of the jurisdiction. The power under Section 11 is a supervisory power. It is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government. If this statutory safeguard is to retain its meaning and efficacy, the Central Government must discharge its supervisory responsibility with constant vigilance and watchful care. The report received under Section 3 or any communication or petition received from the detenu must be considered with reasonable expedition. What is reasonable expedition'' is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inaction, avoidable red tapsim and duly protracted procrastination."

It is, thus, crystal clear that section 14 of the Act confers supervisor powers upon the Central Government which is a check or safeguard against the improper exercise of its power of detention. The Central Government is duty bound and is under an obligation to discharge its supervisory power conferred on it by the statute. The report received under Section 3(5) of the Act by the Central Government must be dealt with and considered with `reasonable expedition''. Phraseology used in Section 3 (5) of the Act will, thus, have to be understood in this background.

The contention of the learned counsel for the petitioners is that the reports of the State Government should be received by the Central Government within seven days from the approval of the detention orders of seven days. The learned counsel, thus, contends that the detention orders are liable to be struck down because the mandatory provisions of Section 3(5) of the Act were not complied with, by the State of Haryana. The learned counsel for the petitioners has relied upon Sher Mohammad v. State of West Bengal, AIR 1975 SC 204; Guru Charan Singh v. Superintendent, Central Sail and others, 1986 (1) Crimes 124 and Vinayak v. Ramchandran, 1985(2) Cri L.J. 12, in order to substantiate his submissions.

Prior to the enactment of National Security Act, 1980, the Maintenance of Internal Security Act, 1971 (hereinafter called the MISA'') was in the field. Subsection 4 of Section 3 of the said Act reads as under :

"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 orders."

The said provisions of section 3 (4) of the MISA, and section 3(5) of the National Security Act are pari materia and identical. The Supreme Court had an occasion to consider the provisions of section 3 (4) of the MISA in Sher Mohammad''s case (supra) and has made the following observations :

"A fair reading of Section 3 indicates that the State Government may directly issued an order of detention or, if it is done by a lesser authority, approve of such detention order as provided in the statute. Sub section (4) of Section 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."

Therefore, the words and expression `report the fact to the Central Government within seven days'' were construed by the Supreme Court to mean `to communicate the fact within seven days''. Prior to this decision even in Bidya Deb Barma etc. v. District Magistrate, Tripura Agartala, AIR 1969 SC 323, expression "communicate" was used for the said word. The Supreme Court had an occasion to construe the true import of the word "communicate" as used in Article 22 (5) of the Constitution in Lallubhai Jogibhai Patel v. Union of India and others, 1981 Cr. L.J. 288 (SC). It means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands . In Harikisan v. State of Maharashtra and others, AIR 1962 SC 911, their Lordship of the Supreme Court held that "communication" means bringing home the effective knowledge of facts. It is, therefore, obvious that unless the order of detention made or approved by the State Government is communicated to the Central Government within seven days, it cannot be said that the mandate of section 3 (5) is complied with. However, it is contended by Mr. H.L. Sibal, learned Advocate General, Haryana, that mere despatching a report by the State Government to the Central Government is enough and it is not necessary that the report should also be received by the Central Government within seven days. He has also contended that communicating means only despatching and not getting it delivered to the Central Government. He has relied on State of Punjab v. Khemi Ram, AIR 1970 SC 214; State of Punjab and others v. Balbir Singh etc. etc., AIR 1977 SC 629; Yogendra Singh v. State of Bihar and others, 1985 Cri. L.J. 889; and Ullas Sahu and etc. v. District Magistrate, Cuttack and others, 1988 Cr. L.J. 32, to substantiate his contention.

It is well settled that the law of preventive detention is a hard law and, therefore, it should be strictly construed. That is what is derived from the observations made by the Supreme Court in State of Punjab and others v. Jagdev Singh Talwandi, AIR 1984 SC 444 and Vijay Narain Singh v. State of Bihar and others, 1984(2) R.C.R.(Criminal) 140 : AIR 1984 SC 1334.

In Sk. Salim v. The State of West Bengal, AIR 1975 Sc 60, the Supreme Court had an occasion to consider the scheme of laws of preventive detention. That is what the Supreme Court had observed while considering the said scheme:

"Para 4. Laws of preventive detention by which subjects are deprived of their personal liberty without the safeguards available in a judicial trial ought to be construed with the greatest strictness. Courts must therefore be vigilant to ensure that the detenu is not deprived of the modicum of rights and safeguards which the preventive law itself affords to him. The maintenance of Internal Security Act contains what is evidently thought to be a scheme of checks and counterchecks by which the propriety or necessity of a detention order may at various stages be examined by various authorities. If an order of detention is made by a District Magistrate or a specially empowered Additional District Magistrate or a Commissioner of Police, he is required by Section 3 (3) to report "forthwith" to the State Government about the making of the order. The order cannot remain in force for more than 12 days or in the circumstances mentioned in the Proviso to Section 3 (3), for more than 22 days unless in the meantime it has been proved by the State Government. If the order is made or proved by the State Government it must under Section 3(4) report the fact to the Central Government within 7 days. By Section 10, save as otherwise expressly provided in the Act, the appropriate Government shall within 30 days from the date of detention under the order, place before the Advisory Board constituted under Section 9 the grounds on which the order has been made, the representation if any made by the detenu and in a case where the order has been made by any of the officers specified under Section 3 (2), the report made by the officer under Section 3(3). Section 11(1) requires the advisory Board to submit its report to the appropriate Government within 10 weeks from the date of detention. This time schedule evolved in order obviously to provide an expeditious opportunity at different levels for testing the justification of the detention order has to be observed scrupulously and its rigour cannot be relaxed on any facile assumption that what is good if done within 7, 12 or 30 days could be as well be good if done say, within 10, 15 or 35 days.

Para 5. The requirement that the District Magistrate or the other officer making the order of detention shall forthwith report the fact of making the order to the State Government can therefore admit of no relaxation, especially because it has a distinct and important purpose to serve. The 12 days'' period which the Act in normal circumstances allows to the State Government for approving the detention order is evidently thought to be reasonably necessary for enabling the Government to consider the pros and cons of the order. Delay on the part of the District Magistrate or the other offices in reporting to the State Government the fact of making the detention order would inevitably curtail the period available to the State Government for approving the detention order. The period of 12 or 22 days, as the case may be, which is referred to in Section 3 (3) runs from the date on which the fact of detention is made and not from the date on which the fact of making the order is reported to the State Government. Such a delay may conceivably lead to a hurried and cursory consideration of the propriety or justification of the order and thereby impair a valuable safeguard available to the detenu. A liberal construction of the requirement that the officer making the order of detention shall forthwith report the fact to the State Government is therefore out of place."

Article 22 (4) of the Constitution also provides that no law providing for preventive detention shall authorise detention of a person for a longer period than two months unless an Advisory Board has reported before the expiration of said period that there is in its opinion sufficient cause for such detention. The expression "has reported" will obviously mean that it has communicated its opinion within the prescribed time. Similar is the import of the words used in Section 3(5) of the Act. The method as to how the fact of detention should be imported is not laid down in the Act. If the authorities chose to send it by post then it is done at their own risk. In any case it is not necessary to enter into this controversy, since in any case report musty reach the Central Government within seven days, otherwise it cannot be said that the order or detention made or proved by the State Government is reported to the Central Government within the period of seven days, as contemplated by section 3 (5) of the Act.

The word "report" is also used in section 3(4), section 11 and section 12 of the Act. Section 11 contemplates submission of report to the appropriate Government by the Advisory Board within seven weeks from the date of detention of the person concerned. It clearly means that the appropriate Government must receive the report of the Advisory Board within the time prescribed, because the State Government has to act on it. Similar is the position qua the report under Section 3(4). Same meaning will have to be given to the word `report'' as used in section 12. The rule is well settled that where the same expression is used in the same statute at different places the same meaning ought to be given to that expression, as far as possible. (See Lal Chand and others v. Radha Kishan, AIR 207 S.C. 700). Even in common parlance, `to report the fact'' means to carry, convey, to give or furnish information about the fact. When constructing the expression `report to some one'', it means to report it to the same person. Take for example (A), an Officer is directed by his superior to report for duty to another Officer (B) in at Delhi at a given time. Thus the report by (A) to (B) at Delhi will be compete only if (A) physically presents himself at Delhi before (B) at a given time. Here also, report by that State Government to the Central Government will be taken to be complied with if the report of the State Government physically reaches the Central Government as the Central Government is obliged to take an action under Section 14 of the Act, i.e., the Central Government may modify or even revoke the detention order. Simple despatch of report by the State Government to the Central Government can neither be the intention nor the mandate of section 3 (5) of the Act. If that construction is put on the meaning of the word "report" then it will be entirely contrary to the mandate, language as well as the spirit of Article 22 of the Constitution. Such an interpretation shall be against Article 22 of the Constitution and cannot fulfil mandate of the Act.

In my considered view, the same is the import of expression "report the fact" as used in section 3(5) of the Act. Same view has been taken in Vinayak Ramchandra Sakhalkar and etc. etc. v. D. Ramchandran Commissioner of Police, Thane and others, 1985 Cri. L.J. 1257, by a Division Bench of the Bombay High Court, relevant portion of which reads as under :

"Section 3 (5) casts a duty on the State Government to report the fact to the Central Government within seven days together with the grounds on which order has been made and such other particulars, as in the opinion of the State Government, have a bearing on the necessity of the order. Therefore, unless the report sent by the State Government under Section 3(5) of the Act is received by the Central Government, it cannot be said that the fact of detention together with the grounds on which the order has been made is communicated or reported to the Central Government within the meaning of Section 3(5) of the Act."

The Division Bench while indicating the Legislature intent of section 3 of the Act, observed as under :

"In this context it is pertinent to note that when the National Security Act was enacted in 1980, the Legislature has before it the interpretation put forward by the Supreme Court on pari materia provisions of section 3(4) of MISA. Therefore it appears that while enacting the National Security Act and particularly section 3 (5) thereof the Legislature has given statutory approval to the interpretation put forward by the Supreme Court in Sher Mohammad''s case (1975 Crl. L.J. 1751). This is further clear from the fact that in COFEPOSA Act different and distinct expression has been used by the Parliament while enacting the similar provisions. Section 3 (2) of the COFEPOSA Act reads as under :

"3 (2). When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order."

In Section 3 (5) of the National Security Act the word `forward'' is not used. This is also indicative of the legislative intent."

A division Bench of the Allahabad High Court in Guru Charan Singh''s case (supra) also agreeing with the view expressed by the Division Bench of the Bombay High Court, has held as under :

"We are in respectful agreement with the above view expressed by the Division Bench of the Bombay High Court. In our view, the report of the State Government must reach to the Central Government within seven days from the date of the approval of the detention order."

In Khemi Ram''s case (supra), the Government had suspended the Government servant before his retirement in order to start departmental enquiry against him and the factum of his suspension order was sent to him through a telegram before his retirement date, though the telegram was received by him after the date of his retirement. The question posed for determination has been described in Paragraph 10 of the judgment, which is reproduced as under :

"The question for determination thus is whether the said order of suspension admittedly made before the date of the respondent''s retirement as required by the said Rule 3.26 (d) did not take effect by reason only that it was received by the respondent after the said date of retirement and whether he must, therefore, be held to have retired on August 4, 1985, rendering he enquiry and the ultimate order of dismissal invalid."

The Supreme Court has been held in Paragraph 16 of the judgment as under :

".....In our view, once an order is issued and it is sent out to the concerned Government servant, it must be held to have been communicated to him, no matter when he actually received it. We find it difficult to persuade ourselves to accept the view that is only from the date of the actual receipt by him that the order becomes effective. If that be the true meaning of communication, it would be possible for a Government servant to effectively thwart an order by avoiding receipt of it by one method or the other till after the date of his retirement even though such an order is passed and despatched to him before such date. An officer against whom action is sought to be taken, thus, may go away from the address given by him for service of such orders or any deliberately give a wrong address and thus prevent or delay its receipt and be able to defeat its service on him. Such meaning of the word `communication'' ought not to be given unless the provision in question expressly so provides. Actually knowledge by him of an order where it is one of dismissal may, perhaps, become necessary because of the consequences which the decision in AIR 1966 SC 1313 contemplates. But such consequences would not occur in the case of an officers who has proceeded on leave and against whom an order of suspension is passed because in his case there is no question of his doing any act or passing any order and such act or order being challenged as invalid."

The Supreme Court has observed in Paragraph 16 narrated above as under :

"Actually knowledge by him of an order where it is one of dismissal, may, perhaps, be come necessary because of the consequences which the decision in State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313 contemplates. But such consequences would not occur in the case of an officer who has proceeded on leave and against whom an order of suspension is passed because in his case there is no question of his doing any act or passing any order and such act or order being challenged as invalid."

It was held in these circumstances and entirely in a different context that once an order is issued and it is sent out to the concerned Government servant, it must be held to have been communicated to him, no matter when he actually received it.

The factual and legal position is different in the case in hand. In this case, it is mandatory for the State Government to report the fuctum of an order of detention made or approved by the State Government 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 bearing on the necessity for the order. It is only on receipt of this report by the State Government under Section 3 (5) that the Central Government will take action under section 14 of the Act. The Central Government may modify or even revoke the order of detention passed or approved by the State Government. It is, thus, a statutory as well as the constitutional obligation of the Central Government to take immediate action on the order of detention. It is in these circumstances that Amar Singh Harika''s case (supra) cited by the learned counsel for the respondent is not applicable to the facts of this case.

In the second place, the learned counsel for the respondent relied upon State of Punjab and others v. Balbir Singh etc. etc., AIR 1977 SC 629. In view of my reasoning stated above this authority is also not helpful to the respondents.

Mr. Sibal, then place reliance on Yogendra Singh v. State of Bihar and others, 1985 Cri L.J. 819. All that has been said and held by a Division Bench of the Patna High Court about the duty of he State Government under section 3 (5), is mentioned in Paragraphs 1 and 14 of the judgment. The said Paragraphs are reproduced in verbatim;

The contention of Mr. Prasad that the report ought to have reached the Central Government within seven days cannot be accepted because the obligation imposed upon the State Government under Section 3 (5) of the Act is that the State Government shall send a report and it is not that the report should reach within a period of seven days. There is absolutely no ambiguity or any question of interpretation of the provision stated above and, therefore, the contention raised, as stated above, is not tenable.

The provisions of section 3(5) of the Act cannot be read as subject to law of limitation and the same principle can neither exercise any control nor affect the provisions of subsection (5) of section 3 of the Act and that will be affected and controlled only when there is an element of in ordinate delay."

In view of my reasoning interpreting section 3 (5) of the Act and in view of the Division Bench judgments, mentioned above I respectfully agree with the interpretation made therein but I am unable to concur in the view expressed by the learned Judges in Yogendra Singh''s case (supra).

It is not out of place to mention here that in Ullas Sahu''s case (supra), it was held that the obligation of a State Government is fully discharged if the report is forwarded by the known modes of communication within the prescribed time of seven days. While holding so, observations in K.N. Jogelkar v. Commissioner of Police, Greater Bombay, AIR 1957 SC 228, were relied upon. In this case, the meaning of the word `forthwith'' only comes in for consideration and not the word `report'' or the word `communication'' which came in for consideration in Sher Mohammad''s case (supra), or even in Yogendra Singh''s case (supra).

In view of my discussion above, the orders approved by the State Government along with the required papers must reach the Central Government within seven days from the date of approval of the detention orders. Thus, in the present cases, the orders of approval by the State Government along with the required papers were not communicated or reported to the Central Government within a period of seven days and the mandatory provisions of section 3 (5) of the National Security Act have not been complied with. On this ground alone, the continued detention of the petitioners becomes illegal and invalid. The detention orders are, thus, set aside. The petitioners shall be set at liberty forthwith, if not required in connection with any other case.

The Writ Petitions are allowed.