Ram Sarup vs Pepsu Union and another

Teja Singh, C.J.—This is a petition u/s 491, Criminal P.C., for the release of one Ram Sarup. The learned counsel for the petitioner submits that the order for Ram Sarup''s detention which was made under the Preventive Detention Act, 1950 was illegal. It appears from the written statement put in by S. Chetan Dass counsel for the State, that Ram Sarup was arrested on the 7th of September 1951, in pursuance of an order made by the District Magistrate, Sangrur on the 28th of August 1951. An order for his detention for three months was made by the District Magistrate on the 9th of September 1951. After the case was referred to the Advisory Board and the report of the Advisory Board had been obtained, on 14th November 1951, Government confirmed the order of detention and extended it till 31-3-1952.

Though a number of points were taken in the petition the only point urged before me by the petitioner''s counsel is that since no fresh grounds of detention were supplied to the detenu after the order of detention had been confirmed and extended by the Government on 14th November, 1951, his detention is illegal. In support of his contention the learned counsel relied upon a Bench decision of the East Punjab High Court in Madan Lal Vs. The District Magistrate and Others, .

In that case it was held by the learned Judges that Section 11 merely empowers the appropriate Government to ''confirm'' the order of detention and to extend the period of detention; it does not empower the Government expressly or by implication to override the provisions of S. 7 and consequently where no fresh grounds are supplied to the detenu on the confirmation of extension of his original order of detention his further detention after the period of detention originally fixed cannot be regarded valid in the eye of law. The section of the Preventive Detention Act which authorises passing of an order of detention is Section 3. Section 7 relates to the supply of grounds of detention, and reads as follows:

Where a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.

There is now consensus of opinion that the provisions of this section are mandatory and if no grounds of detention are supplied to the detenu or they are not supplied within a reasonable time, the detention becomes illegal. According to the section the grounds have to be supplied when a person is ordered to be detained and the authority who is to supply it is the one making the order of detention. Section 9 deals with reference of detention cases to Advisory Boards and lays down that in every case where a detention order has been made under this Act, the appropriate Government shall, within six weeks from the date specified in Sub-section 2, place before an Advisory Board constituted by it u/s 8, the grounds on which the order has been made and the representation, if any made by the person affected by the order.

Section 10 refers to the procedure of Advisory Board and Section 11 to the action that is to be taken on the Advisory Board''s report, sub-section (1) of which says that in any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. Sub-section (2) says that in any case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned the appropriate Government shall revoke the detention order and cause the person to be released forthwith.

As I read Section 11 it appears to me that it does not contemplate a fresh order of detention, and all that is laid down therein is that if the Advisory Board reports that there is no sufficient cause for the detention of the person concerned the order of detention should be revoked by the Government and if, on the other hand, the opinion of the Advisory Board is that there exists a sufficient cause for detention of the person concerned it is open to the Government to confirm the previous order of detention, and extend the period of detention originally fixed to such period as it might think fit. In the view that I take I have no hesitation in holding that Section 11 does not govern the order made by a Government to confirm the original order of detention or to confirm the period of detention originally fixed.

I agree that Section 7 gives a very valuable right to the detenu and should the Government fail to conform with the provisions of that Section the detenu can claim to be released, but this fact does not extend its provisions to the orders to which it does not relate. As I have already mentioned it merely comes into play when an order of detention is made and it has no applicability whatsoever to the order confirming the order of detention or extending the period fixed by that order. S. Chetan Das has referred me to certain observations appearing in Pralhad Krishna Kurane Vs. The State of Bombay, . In that case the question was whether the Government were bound to communicate to the detenu the order made by it u/s 11 whereby the original order of detention was confirmed, and if so, what was the consequence of the Government''s failure to do so. The learned Judges held that the communication of the order confirming the original order of detention was not necessary.

It is true that the point which arises in the present case is not exactly that arose in the above-mentioned case, but the observations made by the learned Judges while discussing the point are, no doubt, of some help in deciding whether the contention of the petitioner in the present case has any force. This is what they said:

Mr. Sule has made a further point that, in so far as the amending Act continued the detention which had already been ordered by the detaining authority, the detention from the commencement of the Act or from the expiry of the period of one year from the date of detention was a new detention, and he has got a right to make a representation against that detention to Government if not to the Advisory Committee and he must be given a new opportunity to make it... The detention, is continued by the new Act pending the examination of the question by an Advisory Committee; but we do not think that it can be regarded as a new detention in the sense that the detenu is to be given another opportunity to make a representation. The representation which he has already made in this case is placed before the Advisory Committee, and that is all that matters.

Later on they said:

Now I do not intend to suggest that it would not be proper for the State Government to in from the detenu after the report of the Advisory Committee is received that the State Government has confirmed the order. But we cannot find in S. 11, any words which would compel the State Government to communicate to the detenu its decision.

I wish also to add that the object of making an order of detention is to prevent the person concerned from doing any act prejudicial to public order, etc., and the law lays down that when such an order is made, the grounds of detention should be supplied to the detenu, so that he may know why he is being detained and if he wishes to challenge the correctness of the order he should be able to make a representation against his detention. This representation is forwarded to the Advisory Board for their consideration and opinion. After the report of the Advisory Committee the Government is to decide whether the order of detention is to be confirmed and if so, whether it is desirable to extend the period of detention by the original order. Now when the Government decides to confirm the order and/or to extend the period of detention it cannot by itself give the detenu a right of making a further representation, because no fresh ground for his detention has arisen in the meanwhile and ordinarily there can be no fresh material which might be taken into consideration by the Advisory Board should the detenu make another representation.

For all these reasons and with great respect I differ from the view taken in the East Punjab Case and hold that there is no force in the ground urged by the petitioner''s counsel. The result thus is that the petition fails and is dismissed.