Kaur Singh vs The State

Chopra, J.—This petition u/s 491 Cr.P.C. and Article 226 of the Constitution of India by Kaur Singh is before us on a reference toy a learned Judge of this Court for decision of two points of law which he considered to be of unusual importance and not free from complexity. With a view to prevent him from acting in a manner prejudicial to the maintenance of public order Kaur Singh was ordered to be detained under the provisions of Section 3 (2) of the Preventive Detention Act (IV of 1951) for a period of one year by District Magistrate, Sangrur. The order of detention is dated 19th March, 1951. Although the grounds of detention were supplied to the detenue, no copy of the detention order itself was made over to him and this, it is contended, has deeply affected his right to make an effective representation against the validity or legality of the order. The detenue, it is stressed, has from the grounds alone been unable to make out whether the order proceeded on the same cause and reasoning as contained in the grounds, or whether the order of detention has proceeded from a competent authority.

The other point on which the validity of the order is vehemently criticised is that the District Magistrate had no authority or power to make an order of detention for one year straightway. The grounds of detention communicated to the petitioner are alleged to be vague or outside the scope of the Act, and the legality of his further detention is challenged for that reason as well.

During the course of arguments, it transpired that the period of three months, for which the initial detention order could be effective without the opinion of the Advisory Board and the final decision of the Government thereupon, has already expired and that the Government has not so far confirmed the detention order and has not fixed the term for which the detention was to continue. Article 22 (4) of the Constitution of India lays down that, subject to the conditions of the proviso clauses, no law for preventive detention shall authorise the detention of any person for a longer period than three months. In consonance with the limitations placed on the Legislature, the Parliament of India has, in Preventive Detention Act (IV of 1951), made a provision setting out the circumstances and conditions under which the detention of a person beyond three months would be lawful.

In every case, where a person is ordered to be detained under this Act, it is imperative for the Government within six weeks of the detention to place before the Advisory Board constituted by it u/s 8 of the Act the grounds on which the order has been made and the representation, if any, made by the person affected by the order. The Advisory Board is then to scrutinise the material placed before it, & after calling for such further information, as it may deem necessary from the appropriate Govt. or from the person concerned, to submit a report to the Govt. within 10 weeks of the detention order. The report of the Advisory Board in a separate part of it must specify the opinion of the Board as to whether or not there is sufficient cause for the detention of the person concerned. On receiving the report of the Advisory Board that there is in its opinion sufficient cause for the detention, the Government can confirm the detention order and continue the detention of that person for such period as it thinks fit. The Government has to pass an order of revocation of the detention order, and to cause the detenue to be released forthwith where the Advisory Board reports absence of sufficient cause for detention. It is evident that on receiving the report of the Advisory Board, which must be done within 10 weeks of the detention order, the Government has to make an order of release and revocation of the detention order where in the opinion of the Advisory Board the detention is without sufficient cause.

It is equally obvious that the Government must before expiry of three months, computed from the date of the detention, in the event of Advisory Board''s report being in favour of the existence of sufficient cause of detention of the person concerned, take a decision confirming the detention order and continuing the detention for such period as it thinks fit. The law of the preventive detention vests the Government with the power to either accept the view of the Advisory Board in favour of justifiability of detention order or to reject it. It is only in case where the Advisory Board reports that there is in its opinion no sufficient cause of the detention of the person concerned that it is obligatory for the Government to rescind the order of detention and set the detenue at liberty immediately. In the petitioner''s case, the Government, as required by section 9, invited a report from the Advisory Board and the view of that Board was that the detention was justified. The learned Advocate General has admitted that the Government, after receiving the report of, the Advisory Board, has not until now passed any order u/s 11 of the Preventive Detention Act.

His contention that the Preventive Detention Act does not specify any period making it incumbent on the Government to make the requisite order on the report of the Advisory Board, cannot be accepted as it obviously militates against the fundamental safeguards provided by the Act against illegal or wrongful detention. The intention of the Legislature in enacting Sections 9, 10 and 11 is that no detention is to be regarded to be lawful beyond three months unless within that period the Government on a report from the Advisory Board justifying detention decides to confirm the detention order and to continue the detention for a period that in its view may appear to be necessary. It is mandatory that within three months of the detention, the initial detention order be reviewed in the light of the recommendation of the Advisory Board by the Government and that appropriate orders be passed within that period. The remaining period of two weeks after the report of the Advisory Board is provided by the statute for that purpose. The law does not confer any authority or option on the Government to make a validating order after the expiry of the statutory three months beyond which the detention, although valid originally, must become invalid unless the Government exercises its discretionary powers u/s 11 to confirm the order and continue the detention.

A simple reading of section 11 (1) of the Preventive Detention Act makes it clear that the matter has to be considered finally by the Government on receipt of the report of the Advisory Board, and the Government has then to decide whether the detention should terminate or be allowed to continue. Unless a specific order is made either way, it cannot be said that the matter was so considered by the Government. I cannot agree with the learned Advocate General that the absence of an order terminating the detention, would, by itself, mean that the Government had decided to continue the detention for the period originally fixed by the District Magistrate. My own view is that unless the Government makes a clear order to that effect, it cannot be taken to have considered the advisability of confirming the detention order and continuing the detention of the person concerned. As already observed, the Government, inspite of the report of the Advisory Board in favour of continuing the detention might on a reconsideration of the matter decide that further detention of the person was not necessary. A detenue must have advantage of his case being reviewed and thereupon order of detention being confirmed or revoked by the Government within three months of his detention.

The argument that the law does not enjoin that there must be an order of confirmation and that the mere fact that it continues to detain the person means that the Government had decided to confirm the initial detention order, ignores a very important and the most effective part of section 11. What section 11 provides is that the Government "may confirm" and "continue detention" have their own significance and they obviously mean that if the Government decided to continue the detention it must confirm the order of detention, and that the non-confirmation of the order would result in its revocation and termination of the detention. The verb "may" only indicates that it is not obligatory on the Government to confirm the detention order even though the Advisory Board has reported in favour of the necessity of continuing the detention. The phrase, read in its context, undoubtedly signifies that the Government, if it decides to continue the detention, must confirm the detention order.

The Preventive Detention Act confers powers upon the Government and Officers mentioned in Section 3, subject to specified conditions and circumstances, to detain a person by an executive order without sending him up for a regular trial and thus deprive him of his liberty which under the Constitution of India is his birth right to enjoy. As these powers are so dangerous to the freedom of the subject, the provisions of the Act relating to the safeguards placed by the Legislature for the proper consideration of every case, must be strictly construed. The necessity of strict compliance of every one of these provisions cannot be over estimated, and non-observance of any one of them would render further detention of the detenu illegal and without authority. The safeguard provided by Section 11 of the Act is none the less mandatory and it must be strictly complied with. The petitioner in the present case has admittedly been deprived of the advantages of this salutary provision of the law & that makes his further detention illegal.

In view of our decision that further detention of Kaur Singh after 19th June 1951 has become illegal, we do not think it necessary to go into the other points on which the validity of the detention is challenged. The petition is consequently accepted and Kaur Singh shall be released from custody forthwith if not required in any other case.

Kesho Ram Passey, J.

I agree.