Mahamani vs Union of India (UOI)

V.S. Sirpurkar, J.—The petitioner herein challenges the detention order dated 26-2-1999 passed by the Commissioner of Police,

Tiruchirappalli City, Tiruchirappalli against Panchu alias Panchanathan under the provisions of Section 3(2) of the National Security Act. 1980

(hereinafter referred to as ''the Act'') The Detaining Authority has given detailed reasons in support of the order. However, we need not go into the

said reasons in view of the fact that the learned counsel for the petitioner has restricted himself to a singular attack of technical nature.

The learned counsel for the petitioner contended that the mandatory provision of Section 3(5) of the Act has been breached in this case

inasmuch as the report of the detention order or the approval thereof by the State Government has not reached the Central Government within

seven days from the date of detention order or the approval. It is contended in the Counter filed on behalf of the Union of India in paragraph 3 that

the report envisaged u/s 3(5) of the Act about the detention of Thiru. Panchu alias Panchanathan was made by the Government of Tamil Nadu to

the Central Government in the Ministry of Home Affairs vide their letter dated 8-3-1999 and that the said report was received by the Central

Government in the concerned Desk of Ministry of Home Affairs on 17-3-1999. The learned counsel points out that the detention order having

been passed on 26-2-1999, this communication would clearly be beyond the period of seven days as envisaged by Section 3(5) of the Act. He

further submits that there is nothing on record to show as to when the said detention order was approved by the State Government. The learned

counsel has heavily relied on the Supreme Court judgment reported in 1975 SCC 360 : 1975 Cri LJ 1751 (Sher Mohammad v. State of West

Bengal) as also the Division Bench judgment of this Court passed in H.C.P. No. 645 of 1999 dated 8-9-1999 (E. Thalaimalai v. State of Tamil

Nadu).

The learned Additional Public Prosecutor, however, points out that the communication by the State Government dated 8-3-1999 cannot be said

to be a belated communication beyond the period of seven days, as the State Government could have communicated to the Central Government

regarding the detention order and the grounds even after the State Government had accorded approval to the said detention order. According to

the learned Additional Public Prosecutor, the State Government had approved the said detention order on 2-3-1999. According to him, if the

State Government had sent the communication to the Central Government intimating the facts of detention order and the approval on 8-3-1999,

there would be no question of breach of Section 3(5) of the Act. According to the learned Additional Public Prosecutor, if the State Government

had despatched the report to the Central Government on 8-3-1999, it would be on the 6th day of passing of the order of the approval and,

therefore, within time. In short, the contention of the learned Additional Public Prosecutor that the relevant date to be taken into consideration for

the purposes of Section 3(5) of the Act would be that a date on which the State Government has despatched the report and not the date when it

has reached the Central Government.

This Court had taken the view in H.C.P. No. 645 of 1999, cited supra, that it is imperative that the report u/s 3(5) of the Act ""should reach"" the

Central Government within seven days from the passing of the order of detention or as the case may be, the order granting approval. The learned

Additional Public Prosecutor, however, reiterates that this view was based on a Division Bench decision of Bombay High Court reported in

Vinayak Ramchandra Sakhalkar and Vs. D. Ramchandran, Commissioner of Police and Others etc., . He points out that the view of the said

Division Bench of the Bombay High Court has been overruled by the Full Bench of that Court in a case reported in Nizam Babamiya Bhatti Vs.

A.S. Samra and others, . The learned Additional Public Prosecutor also relies on one other judgment of the Apex Court reported in Gora Vs.

State of West Bengal, to suggest that the relevant date u/s 3(5) would not be the date when the communication reaches the Central Government,

but the date on which the State Government has despatched its communication to the Central Government. Lastly, the learned Additional Public

Prosecutor contends that the decision of the Apex Court reported in Sher Mohammad alias Seru Vs. The State of West Bengal, does not give a

clue for solving this riddle regarding the relevant date u/s 3(5) of the Act. He, therefore, contends that the view expressed by this Court in H.C.P.

No. 645 of 1999, cited supra, needs re-consideration.

It is true that the Bombay High Court judgment in Vinayak Ramchandra Sakhalkar and Vs. D. Ramchandran, Commissioner of Police and

Others etc., , mentioned in paragraph 8 of the judgment of this Court in E. Thalaimalai''s case, cited supra, has not remained good law in view of

the Full Bench judgment of that Court reported in Nizam Babamiya Bhatti Vs. A.S. Samra and others, . However, it is also true that the Full Bench

of the Bombay High Court in the aforementioned case has referred to Sher Mohammad''s case, cited supra. However, according to us, the learned

Judges of the Bombay High Court in the Full Bench decision have not noticed that in Sher Mohammad''s case, cited supra. However, according to

us, the learned Judges of the Bombay High Court in the Full Bench decision have not noticed that in Sher Mohammad''s case 1975 Cri LJ 1751,

cited supra, the Supreme Court was clearly considering the date when the alleged reports reached the Central Government. In paragraph 4, it is

stated in that case as follows :-

It is curious that on the State''s own showing the communication to the Central Government in compliance with Section 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

Government.

(Emphasis supplied)

If the portion emphasised is seen from the correct perspective and its full impact is realised, it will be seen that the Apex Court accepted the

communication u/s 3(4) of the MISA ""to be made"" to the Central Government within seven days from the detention order and in that case, the

communication not having been so made to the Central Government within seven days, the Apex Court proceeded to hold that there was infraction

of Section 3(4) of the MISA. It is obvious that communication cannot be made to any person or authority, unless that communication reaches the

concerned person or authority. The word ""communication"" itself is sufficient to suggest that what is required to be conveyed must have reached to

the concerned person for completing the process of communication. The learned Judges of the Bombay High Court in the Full Bench decision have

not taken into consideration the full impact of these observations. We are, therefore, unable to agree with the Full Bench decision of the Bombay

High Court. This is apart from the fact that in the judgment of E. Thalaimalai v. State of Tamil Nadu, cited supra, it was not the decision of the

Division Bench of the Bombay High Court reported in Vinayak Ramchandra Sakhalkar and Vs. D. Ramchandran, Commissioner of Police and

Others etc., , which alone was relied on by us. The main reliance in that judgment was on the decision in Sher Mohammad''s case 1975 Cri LJ

1751, cited supra, which will be clear from paragraphs 5, 6 and 7 of that judgment.

The learned Additional Public Prosecutor, however, tried to suggest that the decision reported in Gora Vs. State of West Bengal, , was a clear

pointer to hold that the relevant date would be the date of despatch. He also relied on the decision of the Orissa High Court reported in Ullas Sahu

and etc. Vs. District Magistrate and Others, . We are unable to agree. In the first place, the controversy in Gora''s case, cited supra, was

completely different. What fell for consideration in that case was Section 3(3) of the MISA which required the Detaining Authority to report the

fact of detention order ""forthwith"" to the State Government. Now, the Apex Court, on the basis of the facts in that case, held that the order of

detention was reported to the State Government with some delay. The challenge was that since it was not done forthwith, there was infraction of

Section 3 of the Act. The Apex Court repelled this argument by holding that even if the word ""forthwith"" was used in Section 3(3), there was no

infraction if the concerned Authority was not in a position to report the order of the State Government for reasons beyond his control making it

impossible for the Detaining Authority to comply with Section 3(3). The learned Additional Public Prosecutor wants us to read this decision also in

his favour, while considering the true impact of the phraseology of Section 3(5) of the National Security Act which is identical with the phraseology

of Section 3(4) of MISA. Once the phraseology u/s 3(4) of MISA has been explained by the Apex Court in Sher Mohammad''s case, cited supra,

it would not be possible for us to follow the decision in Gora''s case, cited supra, which is on the totally different subject. We have already shown

that in Sher Mohammad''s case, there is nothing in the whole judgment to suggest that according to the Apex Court, it is the date of despatch of the

report which is relevant. On the other hand, we have shown that there is clear indication in Sher Mohammad''s case 1975 Cri LJ 1751 that the

Apex Court considered only the date on which the communication was made to the Central Government. Therefore, once a clear-cut and direct

view is available to us in Sher Mohammad''s case, it would not be permissible to digress and to follow a decision on an entirely different subject

and provision. As we have already pointed out, even at the cost of repetition, we say that in Gora Vs. State of West Bengal, , the Apex Court was

called upon to interpret the true impact of the term ""forthwith"" and while interpreting that term, the Apex Court found that there was some scope

for ""play"" which is not the position in case of Section 3(4) of MISA and Section 3(5) of the National Security Act, as would be clear from the view

expressed in Sher Mohammad''s case.

Though the situation contemplated in Section 3(3) of the MISA is akin to Section 3(4) of the National Security Act and the situation

contemplated u/s 3(4) of the MISA is akin to Section 3(5) of the National Security Act, there is vast difference between the two situations. u/s

3(4) of the National Security Act, an Officer of the State Government who is especially empowered to exercise powers u/s 3(2) of the Act has to

report to his own State Government about the detention order passed by him along with the grounds on which the said order is passed. Such order

passed by an Officer, who has been empowered u/s 3(3), has the life of twelve days, unless the said order is approved by the State Government.

In short, Section 3(4) of the Act operates in between the State Government and the especially empowered officer. The object of the Section

appears to be that in case where the especially empowered officer passes an order, the State Government should get its intimation immediately and

if the State Government does not approve of such action taken by the especially empowered Officer, the action of detention would come to an end

automatically, thereby minimising the period of preventive detention into twelve days. Section 3(5) of the National Security Act, however, has a

direct relevance with Section 14. u/s 3(5), it is imperative for the State Government to apprise the Central Government of the fact of the order and

the grounds on which the order is passed. The State Government, under that provision, has to supply other particulars which, in its opinion, have a

bearing on the necessity for passing of the order. In short, it has to justify the order. This is because u/s 14, the Central Government has a plenary

control in case of both firstly where the order is passed by the empowered Officer of the State Government or where the order is passed by the

State Government itself. Thus, u/s 3(5) of the National Security Act, it would be for the Central Government to pass the necessity of the order. It is

for this reason that a time limit is fixed so that the Central Government can effectively exercise its control. Perhaps, it is because of this entitlement

of the Central Government and the duty to act that time limit becomes more important. Unless the Central Government is aware of the fact of the

order and the grounds on which the order is passed, it would be impossible for the Central Government to consider the order. The duty to make

the Central Government aware of the order and the grounds therefore is not and can never be viewed as an empty formality. There is also a

corresponding duty in the Central Government to actively consider the report effectively so that the preventive detention of a person is not

perpetuated without any cause. It is for this reason that there is time limit fixed so that the Central Government becomes aware of the detention

order and the grounds therefor. If all that the State Government has to do is to only despatch the order within seven days of the passing of the

order of the approval, it may be that the Central Government would not become aware of the order for considerable time owing to various reasons

and that would certainly cause prejudice to a detenu who has been ordered to be detained without any justification. It is, therefore, that the State

Government is duty bound to make the Central Government aware of the fact of the passing of the order and the grounds on which the order is

passed within the particular time limit envisaged by Section 3(5). The question of individual liberty cannot be left to rely on the factors like postal

delay or insufficient address by giving the limited interpretation of the provision and restricting a duty on the part of the State Government merely to

despatch the order within seven days. It is too precious for such treatment. Taking an overall view of the matter, we are of the considered opinion

that the State Government cannot be allowed the complacency of merely despatching the order within seven days, but it will be for the State

Government to ensure that the Central Government is made aware of the order and the Grounds therefore within seven days. Sher Mohammad''s

case, cited supra, sings this tune. Considering the present case, it is clear that the Central Government has not been made aware of the fact of the

detention order and the grounds therefore within seven days of the passing of the order or even the grant of approval thereof by the State

Government. There is, thus, a clear infraction of Section 3(5) of the National Security Act which will result in invalidating the detention of the

detenu. The Habeas Corpus Petition is, therefore, allowed. The order passed by the Detaining Authority is set aside and it is directed that the

detenu shall be released forthwith unless he is required in any other case by any other authority.