Patna High Court
Raj Kumar Gupta vs State Of Bihar And Ors. on 26 May, 1989
Equivalent citations: AIR1990PAT32, 1989(37)BLJR509, AIR 1990 PATNA 32
Author: Binodanand Singh
Bench: Binodanand Singh, B.N. Agrawal
JUDGMENT Binodanand Singh, J.
1. On 27-4-1989, I had joined in recording the operative part of the judgment, which is quoted here-in under:
"Argument concluded.
Order of detention of the petitioner was passed by the District Magistrate, Patna, on 26-5-1988 under Section 12(2) of the Bihar Crime Control Act, 1981 as per Annexure-1 to the writ petition. The aforesaid detention order has been confirmed by the State Government by order dated 15-7-1988, as per Annexure-B to the counter affidavit and the petitioner has been directed to be detained till 26-5-1989. Thus the petitioner has already remained in detention for more than eleven months out of a year. In view of this fact, we declare the result. We are of the view that this application is fit to be allowed.
This application is, therefore, allowed and the order of detention passed against the petitioner as contained in Annexure-1 to the writ petition and the order of confirmation of detention order passed by the State Government as contained in Annexure-B to the counter affidavit are hereby quashed. The petitioner Raj Kumar Gupta is directed to be set at liberty forthwith, if not wanted in any other case. Reasons will follow."
Now I deal with the case and state reasons. This is an application under Articles 226 and 227 of the Constitution of India for issuance of a writ of habeas corpus challenging the validity of detention of Raj Kumar Gupta, the detenu (hereinafter to be referred to as the petitioner) in Bankipur Central Jail, Patna, in pursuance of an order of detention passed by the District Magistrate, Patna, under Section 12(2) of the Bihar Control of Crimes Act, J 1981 (henceforth to be called as the Act).
2. The relevant facts are being stated on the basis of the averments made in this application, supplementary affidavit filed on behalf of the petitioner and the counter affidavit filed on behalf of the respondents, which are not in dispute. The petitioner was in jail from before in connection with Khaje-kalan P. S. case No. 144 dated 1-11-1987. Order of detention under Section 12(2) of the Act was passed by the District Magistrate, Patna under order No. 4915 dated 26-5-1988 directing that the petitioner be detained in Bankipur Central 'Jail, Patna, classified as Class-X, Division C, a copy whereof is annexed as Annexure-1 to the writ application.
3. The grounds on which the detention order was passed were communicated to the petitioner as provided under section 17( 1) of the Act vide order No. 4916, C Patna dated 26-5-1988, annexure as Annexure-2 to the writ application. It appears that the order of detention and grounds with connected papers were served on the petitioner in Bankipur Central jail on 27-5-1988. The order of detention passed against the petitioner by the District Magistrate, Patna, got approval of the State Government as required under section 12(3) of the Act on 3-6-1988 (copy of the order passed by the State Government in this regard is appended as Annexure-3).
4. On 16-6-1988 vide letter No. 5692 of the date, the Deputy Secretary to the Government of Bihar, Home (Police) Department forwarded the order of detention passed by the District Magistrate, Patna, grounds of detention along with relevant documents and the order of approval of detention of the petitioner passed by the State Government to the Advisory Board as required under section 19 of the Act (copy of letter is annexed as Annexure-A to the counter-affidavit of the State which has come in return). The papers were received by Shri S. N. Sinha, Assistant Registrar III of the High Court, Ex-officio Secretary to the Advisory Board on the same date and 20-6-1988 was fixed by the Board for production of the petitioner. On 18-6-1988 the petitioner sent his representation to the State Government through the jail Authority. The Advisory Board considered the materials placed before it and submitted its report along with opinion on the same day, i.e., on 20-6-1988 to the effect that there were sufficient grounds for the detention of the petitioner. On receipt of the report of the Advisory Board the State Government by order dated 16-7-1988 in exercise of its powers under section 21(1) and section 22 of the Act confirmed the order of detention of the petitioner passed by the District Magistrate, Patna under Section 12(2) of the Act and directed that the petitioner be detained till 26-5-1989. Copy of the aforesaid order has been filed along with counter-affidavit as Annexure-B. The representation of the petitioner was rejected by the State Government on 19-7-1988 and the confirmation order passed by the State Government as well as the result of the representation of the petitioner were communicated to the petitioner in Bankipur Central Jail, Patna, on 22-7-88.
5. It will be also appropriate to state the circumstances in which this case has been placed for hearing before the Full Bench. After admission, this application was placed before a single Judge on 14-10-1988 for hearing. In course of argument it appears that the learned counsel for the petitioner contended that the petitioner having been detained by order dated 26-5-1988 and the matter not having been placed before the Advisory Board on or before 16-6-1988 the detention of the petitioner stood vitiated as being in contravention of section 19 of the Act. For this proposition the learned counsel appearing for the petitioner placed reliance on a Division Bench decision of this Court in the case of Dinesh Yadav v. The State of Bihar (Cr. W.J.C. No. 220 of 1988, disposed of on 5-10-1988) in which the Bench laid down that placement before the Advisory Board meant that the Advisory Board must sit to consider within three weeks. The Hon'ble single Judge doubted the correctness of the aforesaid view taken by the Division Bench in the case of Dinesh Yadav v. The State of Bihar (Supra) and expressed his view that the moment the State Government referred the matter to the Secretary to the Advisory Board the matter must be deemed to have been placed before the Advisory Board.
6. The Hon'ble single Judge also expressed some doubt regarding the correctness of the ratio decidendi in the case of Dinesh Yadav (Supra) relating to the consideration of the case of the detenu by the Advisory Board. In the case of Dinesh Yadav (Supra) relying on certain decision which will be discussed at a later stage, (this Court) held that consideration of the case of the detenu by two members only of the Advisory Board will not mean that the Advisory Board considered the case of the detenu as envisaged under section 20 of the Act. Hence, the Hon'ble single Judge referred this case to a Division Bench for considering the correctness of the decision of this Court in Cr. W.J.C. No. 220 of 1988 (Supra).
7. Consequently this case was placed before a Division Bench for hearing. So far as the first point raised by the Hon'ble single Judge is concerned, the Division Bench after considering the case of Raisuddin alias Babu Tamchi v. The State of Uttar Pradesh AIR 1984 SC 46 cited by the learned counsel for the State, felt difficulty in agreeing with the principle laid down by Division Bench of this Court in the case of Dinesh Yadav (Supra) and, therefore, the Division Bench directed by its order dated 15-2-1989 that this case be placed before a Full Bench with liberty to the petitioner's counsel to canvass other points as well before the Full Bench.
8. The first point which requires consideration although not pressed by the learned counsel for the petitioner in view of the decision of the Supreme Court in the case of Raisuddin alias Babu Tamchi v. The State of Uttar Pradesh AIR 1984 SC 46 is that what should be the meaning of the words 'place before' the Advisory Board as used under section 19 of the Act. It has become necessary to give a decision on this point since a view contrary to the view taken by the Supreme Court in the case of Raisuddin alias Babu Tamchi (Supra) has been expressed by the Division Bench of this Court in the case of Dinesh Yadav (Supra). It was contended on behalf of the petitioner before the Hon'ble single Judge as well as the Division Bench that the case of the petitioner has not been placed before the Advisory Board within three weeks within the meaning of section 19 of the Act since the order of detention was passed on 26-5-1988. Reference was made by the State Government on 16-6-1988 but the Advisory Board considered the case of the petitioner on 20-6-1988. Hence, according to the learned counsel for the petitioner, it was placed before the Advisory Board after the expiry of three weeks. According to his submission, the reference made by the State Government of the case of the petitioner on 16-6-1988 on which date the ex-officio Secretary to the Advisory Board received the materials along with the grounds will not be deemed to be placement before the Advisory Board. According to the learned counsel for the petitioner as argued before the Hon'ble single Judge and the Division Bench relying on the case of Dinesh Yadav (Supra) the case of the petitioner should have been considered by the Advisory Board on or before 16-6-1988 and thus there had been infraction of section 19 of the Act, In the case of Dinesh Yadav (Supra) it has been held that placement before the Advisory Board means that the Advisory Board must sit to consider within three weeks otherwise the detention of the detenu shall stand vitiated as being in contravention of section 19 of the Act. But, in my view, this does not appear to be a sound proposition. In view of the fact that the heading of section 19 itself is "reference to Advisory Board" from which it can be inferred that the intention of the legislature was that within the stipulated period the State Government must refer the order of detention with grounds and other materials within three weeks to the Advisory Board. This time limit obviously appears to bind down the State Government to discharge its own duty within the period as specified in section 19 of the Act. Ex-officio Secretary is the functionary of the Advisory Board. As soon as it is received by the functionary of the Advisory Board it will be deemed that the case has been placed before the Advisory Board. Therefore, mere despatch of the detention order along with grounds and other materials by the State Government for being placed before the Advisory Board will mean placing of the matters before the Advisory Board. This view finds support from the decision of the Supreme Court in the case of Raisuddin alias Babu Tamchi (AIR 1984 SC 46) (Supra). Although this case arose out of an order passed under the National Security Act but the principle laid down on the point in question is fully applicable in the circumstances of this case since the procedural provisions in both the laws are quite similar. In the aforesaid case it has been laid down that Section 10 of the National Security Act does not enjoin the State Government to take steps to see that the case of the detenu is considered by the Advisory Board within three weeks from the date of detention. It only casts a duty on the appropriate Government to 'place before' the Advisory Board constituted under section 9 of the Act within three weeks from the date of detention, the grounds on which the order of detention has been made and the representation, if any, made by the person affected by the order. It has further been clarified that the words "place before" cannot be interpreted to mean anything more than forward to or to submit before the Advisory Board the relevant papers relating to the detention of the detenu. It has further been observed that the Advisory Board is not an entity subordinate to the Government. It is a wholly independent body consisting of persons who are or have been or are qualified to be appointed as the Judges of the High Court and it is entirely for the advisory Board to regulate its schedule of holding meetings and conducting its business in accordance with the procedure laid down under the law. The provisions as contained in section 19 of the. Act are quite similar to Section 10 of the National Security Act. Hence, the same meaning has to be attached to the words "place before" occurring in section 19 of the Act as has been expressed by the Supreme Court in the case of Raisuddin alias Babu Tamchi (Supra). It can, therefore, be safely concluded that the ratio decidendi of the decision of Division Bench of this Court in the case of Dinesh Yadav (Supra) to this extent is not correct and is, therefore, overruled in order to set the above principle at naught.
9. The learned counsel for the petitioner has further urged that the order of detention passed by the District Magistrate, Patna, is bad and the detention of the petitioner is unauthorised on account of the fact that the order of detention has been passed by the District Magistrate as contained in Anne-xure-1 to the writ application on the grounds as mentioned in annexure-2 to the writ application and one of the grounds, namely, ground No. 3 is vague as well as non est so far as this petitioner is concerned. Ground No. 3 as contained in Annexure-2 reads as follows:
"Chowk P. S. Case No. 175 dt. 3-12-87 under Sections 307, 34 I.P.C. and 27 Arms Act, Going through the FIR supervision note and recommendation of City S.P., Patna, regarding this case, it is transpired that on 3-12-1987 at about 3,50 P.M. in the broad day light, this incident took place in Lallu Babu Ka Kucha within Ghowk (sic) P. S. Patna. The said accused Raj Kumar Gupta is an active member of the gang led by notorious criminal K.R. Narayan and Roshan Lohar. The City S.P. Patna and A. S. P., Patna City has also supported the name of criminals in all the three cases above. This case is also under investigation and the aforesaid criminal Raj Kumar Gupta hoped to be charge sheeted."
The above argument of the learned counsel appearing for the petitioner does not appear to be baseless. I have quoted above ground No. 3 from which it would appear that the statement of facts contained in ground No. 3 does not disclose any kind of involvement of this petitioner in the crime. It has simply been stated that the said accused Raj Kumar Gupta is an active member of the gang led by notorious criminals K.R. Narayan and Roshan Lohar. This does not mean that this petitioner participated in any manner in commission of offence under section 307/34 I,P.C. and Section 27 of the Arms Act of Chowk P. S. Case No. 175 dt. 3-12-1987.1 have perused the FIR and the supervision note of the S. P., Patna, copies whereof were supplied to the! petitioner along with the grounds. These papers do not disclose any kind of activity on the part of the petitioner to connect him with the crime in question. The return from the respondents is also silent on this point. In these circumstances, it has to be concluded that the ground No. 3 as mentioned in the ground for detention which is also the basis for passing the detention order is non est so far as this petitioner is concerned. The legal consequence has naturally to follow.
10. The learned Advocate appearing for the petitioner has rightly contended that under the Act even if one of the grounds is found to be vague or non est the order of detention will be vitiated. I quite agree with the above submission. Like National Security Act and other preventive laws where special provisions have been made to the effect that the grounds are severable there is no such provision in the Act. So if even one of the grounds is found to be vague or non est it will be deemed that the subjective satisfaction arrived at by the detaining authority was not based on grounds which were valid and could be used against the detenu. Under this Act it has to be presumed that it is the cumulative effect of all the grounds which impels the detaining authority to pass an order of detention. The learned counsel for the petitioner has cited the decision in the case of Keshav Talpade v. Emperor AIR 1943 FC 1 wherein at page '8' in Col. 3 (right hand side) it has been observed that where the detaining authority gives four reasons for detaining a man without distinguishing between them and any two or three of the reasons are held to be bad it can never be certain to what extent bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good grounds had been before them. This principle has been found to be sound by the Supreme Court in the case of Shibbanlal Saksena v. State of Uttar Pradesh AIR 1954 SC 179. In the case in hand also it is difficult to distinguish as to which ground out of three influenced the detaining authority more while passing the order of detention. If the third ground would not have been there before the detaining authority at the time of passing of order of detention, the possibility that he would have taken different view cannot be ruled out. In the case of Gulab Mehra v. State of Uttar Pradesh AIR 1987 SC 2332 the order of detention of detenu under section 3 of the National Security Act was held to be illegal on the ground that the grounds of detention did not contain the full particulars and were vague depriving the detenu to give an effective representation against the aforesaid grounds, which in my view is a step ahead the point raised by the petitioner in this case. In this case as already stated, in one of the grounds of detention the petitioner is not at all involved. The importance of placement of correct materials before the detaining authority in passing the detention order against the detenu has been emphasised in the case of State of Uttar Pradesh v. Kamal Kishore Saini AIR 1988 SC 208. Therefore, in view of the fact that one of 'the grounds as mentioned in Annexure-2 does not relate to the petitioner directly and that has also been made basis for the order of detention as contained in Annexure-1, thereby polluting the subjective satisfaction arrived at by the detaining authority, the detention of the petitioner must be held to be illegal.
11. The learned counsel appearing for the petitioner has further argued that the detention of the petitioner is further vitiated on account of the fact that the representation of the petitioner submitted to the State Government against his detention has not been considered expeditiously and the result of the same has not been communicated to the petitioner up till now. The petitioner made representation through the jail authority on 18-6-1988. On this point this much return has come from the respondents side that the representation of the petitioner was rejected on 19-7-1988 and was served on the writ petitioner on 22-7-1988 in Central jail, Banki-pur, Patna. So far as the communication of the result of the representation of the petitioner is concerned, after seeing the endorsement of the petitioner on the office copy of the communication made to the petitioner with respect to the result of his representation, maintained in the office of the authority concerned, the petitioner's counsel has withdrawn his argument relating to the non communication of the result of the representation of the petitioner to the petitioner, but still the contention of the learned counsel appearing for the petitioner that there has not been prompt consideration of the representation of the petitioner, which rendered the detention of the petitioner illegal requires consideration. I agree with the above contention of the learned counsel appearing for the petitioner. From the records it does not appear that the representation of the petitioner was considered by the State Government with greatest promptitude. The counter-affidavit which has come in return from the respondent's side does not explain as to why such a long time was taken by the State Government in disposing of the representation of the petitioner, which clearly violates the provisions contained in section 17 of the Act and under Article 22(5) of the Constitution of India. Affording earliest opportunity to the petitioner for making representation against the order of his detention to the appropriate authority has been interpreted in several decisions of the Supreme Court and it is well settled that it envisages that the representation of the petitioner must be dealt with greatest expedition. If any delay is caused in disposal of the representation, the respondent concerned has to explain each day's delay reasonably. As a matter of fact, from the records it appears that the result of the representation as well as the copy of confirmation order passed by the State Government confirming the detention of the petitioner for maximum period provided under the Act were served on the petitioner on the same date in Bankipur Central Jail, Patna, i.e., on 22-7-1988. From the dates noted above, it would be clear that the time taken in disposal of the representation of the petitioner is more than a month. In return, no explanation of delay has been given by the respondents even for a single day and the counter-affidavit is quite silent on this point. Broad guidelines have been laid down by the Supreme Court regarding the manner in which the representation of the detenu has to be dealt with. In the case of Jayanarayan Sukul v. The State of West Bengal AIR 1970 SC 675, it has been held that no definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. In this case while considering it was found that the Government of West Bengal was guilty of infraction of the constitutional provision by making inordinate delay in consideration of the representation and there having been no explanation for this inordinate delay as also on account of the fact that the representation was put off for consideration till after the receipt of the opinion of the Advisory Board, the petition of the detenu, who had been detained under Preventive Detention Act, 1950, was allowed.
12. In the case of Pabitra Narain Rana v. Union of India, AIR 1980 SC 798 the detention of the detenu has been held by the Supreme Court to be void on the ground of unreasonable delay in deciding the representation filed by the detenu. In the case of Youssuf Abbas v. Union of India AIR 1982 SC 1170 the detention of the detenu was held by the Supreme Court to be illegal which was under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (1974) on the ground that the representation of detenu was rejected by the Government after 29 days of unexplained delay. On the ground of unexplained delay in disposing of the representation of the detenu under the National Security Act, the detention of the detenu was held to be vitiated in the case of Piara Singh v. State of Punjab AIR 1987 SC 2377.
13. From the facts stated above, it would be clear that there has been inordinate delay in disposal of the representation of the petitioner by the State Government for which no explanation at all has come in the return of the respondents. Thus there has been clear violation of Section 17 of the Act as well as Article 22(5) of the Constitution of India.
14. It has next been urged on behalf of the petitioner that the order of detention passed by the District Magistrate, Patna, vide Anne-xure-1, is illegal since the Act does not contemplate that a person who is already in jail can also be detained by the District Magistrate under Section 12(2) of the Act. The order of detention can only be passed with respect to a person who is at liberty. In the alternative it has also been argued that if the above submission is not accepted, in that case also the order of detention passed against the petitioner is bad since on the date on which the order of detention was passed by the District Magistrate, Patna, the petitioner was in Bankipur Central Jail from before and this aspect was not considered by the District Magistrate, Patna while passing the order of detention.
15. In order to substantiate the first part of his argument, the learned counsel appearing for the petitioner has referred to section 12(1) of the Act. which reads as follows;
"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 maintenance of public order and there is reason to fear that the activities of anti-social elements cannot be prevented otherwise than by the immediate arrest of such person, make an order directing that such anti-social element be detained."
Stress has been laid down on the words "immediate arrest of such person" occurring in Sub-section (1) of Section 12 of the Act and on this basis it has been argued that question of arrest can arise only when a person is at liberty and so far arriving at the subjective satisfaction that the activities of anti-social elements cannot be prevented otherwise than by immediate arrest of such person cannot be arrived at unless the anti-social element is a free citizen and then only an order directing such anti-social element to be detained can be massed. So far as the power of the District Magistrate in this regard is concerned, he derives it under the authority of the State Government under Sub-section (2) of Section 12 of the Act and therefore it has been contended that Sub-section (2) lays down that f the District Magistrate be satisfied as provided in Sub-section (1) may exercise the powers conferred upon him by the State Government. Hence the District Magistrate, Patna, also could not have legally passed the order of detention of the petitioner when he was already in jail. The above contention of the learned counsel appearing for the petitioner is neither impressive nor based on sound reasonings. The admitted position in this case is that the petitioner was in Bankipur Central jail, Patna, from before in connection with Khajekalan P.S. Case No. 144 dated 1-11-87. The dictionary meanings of the words 'arrest' and 'detain' which have been used in Sub-section (1) of Section 12 of the Act are synonymons. Purpose of the Act is the prevention of commission of further activities prejudicial to the maintenance of public order ay the anti-social element. So even in case of anti-social element being in detention further commission of such activities by him when he comes out of the jail can be prevented by passing an order under Sub-sections (1) & (2) of Section 12 of the Act as the case may be. The section invisages that when the authority is satisfied that an order of detention in respect of a particular person is required, it takes the necessary steps for this purpose. The 'immediate arrest' is part of the process of putting the person in detention. If immediate arrest is not effected then obviously the alleged activities which are prejudicial to the maintenance of public order cannot be prevented. In cases where the person is already in custody on some other account, the 'immediate arrest1 is under the situation not required because condition already stands fulfilled and the other steps (framing the grounds of detention, its service on the person to be detained etc.) will follow. Thereafter, the act of 'immediate arrest' has to be regarded as part of the process of putting the person concerned under detention. If the interpretation to the words 'immediate arrest' as put forward on behalf of the petitioner is to be accepted, then taking it to its logical conclusion it may lead to an absurdity. If a person who is already in custody on some account cannot be placed under detention under Section 12 of the Act until he becomes free, it will mean that the authorities have to be on close watch to see as to when exactly he is released from his earlier custody and the moment he is so released the next moment they will arrest him for detention under Section 12; in other words the gap between he being released from earlier custody his arrest under Section 12 of the Act may even be a minute or so. 1 n my opinion, therefore, it will not be correct to put an interpretation to the words 'immediate arrest' in Section 12 of the Act as contended by the petitioner. Therefore, the first part of the submission of the learned counsel appearing for the petitioner has to be repelled.
16. Regarding the alternative argument of the learned counsel appearing for the petitioner that even if the detention of the petitioner in jail from before will not stand as a bar in passing the order of detention by the District Magistrate but there must be awareness on the part of the detaining authority that the anti-social element is detained in jail from before, so that the detaining authority may apply his mind to this aspect of the matter as well while reaching to a subjective satisfaction. Hence at-the time of passing of the order of detention by the detaining authority the fact that the subject is in detention from before must be placed before him so that he may subjectively satisfy himself that the order of detention is necessary in case of such person. There may be cases in which the detaining authority may take a different view if it is made known to him that the anti-social element is already in detention. The above submission has no doubt great force and must prevail. It is needless to state that all the materials and circumstances must be placed before the authority before passing the detention order so that he may come to a correct conclusion. Besides in catena of decisions this point has been settled by the Supreme Court as well. Even if the anti-social element to be detained may be in jail and there being no likelihood of his being released on bail, the authority passing an order of detention may take a different view. Therefore, non-placement of this fact before the detaining authority that the anti-social element to be detained was in jail from before will certainly materially affect the subjective satisfaction of the detaining authority. In the present case it has been alleged by the petitioner that the District Magistrate, Patna, namely, the detaining authority, while passing the order of detention as contained in Annexure-1, and the grounds for detention as contained in Annexure-2, did not apply his mind to the fact that the petitioner was in jail from before and this has vitiated the order of detention. On perusal of annexure-1, the order of detention, as well as annexure-2, the grounds, it is not found that this fact has been mentioned anywhere in these documents. On this basis alone it can be concluded that this aspect of the matter was not before the District Magistrate, Patna, while passing the detention order. In the return it has been averred on behalf of the respondents that the respondent No. 2, i.e. the District Magistrate, Patna, was aware that the petitioner was in jail and knowing the aforesaid fact the order of detention was passed which is apparent from the fact that the detention order was served in jail and as such the allegation that the order has been passed without applying the mind is not correct. I am unable to agree with this averment in the counter-affidavit, which is contrary to the records. As already stated there is nothing in Annexure-1 or the grounds (annexure-2) to indicate that it was known to the District Magistrate, Patna, that the petitioner was in jail from before. The file relating to the case of this petitioner was produced in court by Mr. Ramnandan Prasad, S.C. IV, on perusal of which it was found that even in the notings of the file of the District Magistrate, Patna, nowhere it has been pointed out that the petitioner was in jail from before. The submission of the learned counsel appearing for the respondents and the averments in the return that since the order of detention along with the ground was served on the petitioner in jail, it may be deemed that the District Magistrate was aware of the fact that this petitioner was in jail on the date of passing of the order appear to be palpably incorrect. From perusal of annexure-1, which is copy of the order of detention passed by the District Magistrate, Patna, it would appear that in the body portion of the order there is absolutely no mention of the fact that the petitioner was in jail. Forwarding part of the annexure-1, i.e., the order of detention also does not help the respondents since the order has been forwarded in quadruplicate to the Senior Superintendent of Police, Patna, for service of the same on the detenu and to return. It is further mentioned in the forwarding part that one copy should be served on the detenu and the second copy should be kept in jail as custody warrant and rest two copies should be returned with the signature or thumb impression duly attested in token of the service to the office of the District Magistrate, Patna. Thus the forwarding memo of annexure-1 clearly goes to show that the District Magistrate, Patna, was under the impression that the petitioner was at liberty and he, therefore, forwarded four copies of the order to the Senior Superintendent of Police, Patna, for the "purpose as already stated above, otherwise he would have directly sent the order to the Superintendent, Central Jail, Patna for service on the petitioner.
17. So far as the grounds of detention, as contained in Annexure-2, the same in usual course are to be forwarded to the jail authority where the anti-social element is directed to be detained by the detaining authority and that is why the copies of the grounds were forwarded to the Superintendent of Bankipur Central Jail, Patna, along with other papers because this was the place of detention as mentioned in the order of detention (annexure-1). In view of the fact that the petitioner was in jail from before in connection with a criminal case, the impugned order of detention and the grounds of detention, as contained in annexures 1 & 2, had to be served on the petitioner in Bankipur Central Jail, Patna. From this it cannot be inferred that the District Magistrate, Patna, was aware of the fact that the petitioner was in jail from before at the time of passing of the detention order and has applied his mind to this aspect of the matter. In the cases of Anant Sakharam Raut v. State of Maharashtra and Leena Anant Raut v. State of Maharashtra, AIR 1987 SC 137, which were under the National Security Act, it has been found that there was absolutely no mention in the order about the fact that the petitioner was under-trial prisoner, that he was arrested in connection with three cases, that applications for bail were pending and that he was released on three successive days in three cases which indicated a total absence of application of mind on the part of the detaining authority while passing the orders of detention. On this ground alone the Supreme Court allowed the appeal and the petition. Observations made by the Supreme Court in the case of Merugu Satyanarayana v. State of Andhra Pradesh AIR 1982 SC 1543 has been reiterated in the cae of Gulab Mehra v. State of U.P. AIR 1987 SC 2332 in the following terms (at p. 2339 of AIR):
"Before making an order of detention in respect of a person already confined to jail it must be present to the mind of the detaining .authority that keeping in view the fact the person is already in detention a preventive detention order is still necessary. The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is compelling necessity. If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated. But it will depend on the facts and circumstances of each case."
In the instant case the return on this point has been found to be incorrect and therefore the principle inunciated by the Supreme Court will apply with full force.
18. In the case of Smt. Shashi Aggarwal v. State of Uttar Pradesh, AIR 1988 SC 596 it has been observed by the Supreme Court that every citizen in this country has the right to have recourse, to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the Court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu if enlarged on bail would act prejudicially to the interest of public order. In the instant case as already pointed out the District Magistrate, Patna, was not at all aware of the fact that the petitioner was in jail and so the question of application of his mind to this aspect as well as to the aspect that he may commit activities prejudicial to the maintenance of public order, if he is granted bail and come out of custody does not arise. Therefore, in view of the legal position and total absence of the application of mind of the detaining authority to the aspect that the petitioner was injail and there was likelihood of his being released on bail while passing the order of detention (annexure-1), the detention has to be held to be bad in the eye of law and unauthorised. '
19. The last point which has been vehemently canvassed by the learned counsel appearing for the petitioner and is an important question to be decided is that the detention of the petitioner is illegal since there has not been proper compliance of sections 19,20 and 21, read with section 18 of the Act, since within the meaning of the provisions of the Act, the order of confirmation (annexure-B to the counter-affidavit) has not been passed by the State Government in accordance with the requirements of these provisions, as the case of the petitioner was considered by only two members of the Advisory Board. According to the learned counsel appearing for the petitioner the case of the petitioner was not considered by the Advisory Board as envisaged under Section 18 of the Act, but only by two members of the Advisory Board and therefore the opinion which also formed the basis of the order of confirmation, was legally not the opinion of the Advisory Board but the opinion of two members only. On this ground also it has been contended that the detention of the petitioner is illegal. For the proposition that the case of the detenu must be considered by all the three members, including the Chairman, which constitute Advisory Board, the learned counsel appearing for the petitioner has relied upon a Bench decision of this Court in the case of Dinesh Yadav v. State of Bihar (Cr. W.J.C. No. 220/88 disposed of on 5th October, 1988). In the case of Dinesh Yadav (Supra) relying on the case of Tarun Kumar Das v. State of Assam 1982 Cri LJ 1054 (Gauh) it has been held that Section 18 of the Act provides for the constitution of the Advisory Board which says that it shall consist of three persons, one of whom shall be the Chairman, who is or has been a Judge of the High Court. The Advisory Board, therefore, consists of three persons. In the case of Dinesh Yadav (Supra) only two persons considered the matter regarding the detention of the detenu, which did not mean that the Advisory Board considered the case of the petitioner as envisaged under section 20 of the Act. While hearing the writ application in hand, the learned single Judge expressed doubt regarding the correctness of this proposition on the ground that the constitution of the Advisory Board is entirely different from the functioning thereof. The moment a notification has been issued in terms of Section 18 of the Act, the Advisory Board must be held to have been constituted. Even if there are only two members sitting to deliberate, the constitution is not affected. The fact that only two members sat to deliberate did not render the constitution of the Board illegal. The learned single Judge further went on to say that there is no provision and/or statute which lays down that in any deliberation every member of the Advisory Board must take part. Since there are only three members and two sat and agreed to uphold the detention, the advice of the Advisory Board must be held to be perfectly legal.
20. This point therefore also required full and thorough scrutiny as to whether the opinion of the 'Advisory Board' will mean the opinion of all the three members including the Chairman which constitute Advisory Board or even the opinion of two members can be deemed to be the opinion of the Advisory Board within the meaning of Section 21 of the Act. Sub-section (1) of Section 21 of the Act lays down 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 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 a person, the Government shall revoke the detention order and cause the person concerned to be released forthwith.
21. From the above mentioned provisions it would be clear that the opinion of the Advisory Board plays an important role in the matter of passing of the order of confirmation of the detention order and continuance of the detention of the person concerned. Section 18 of the Act reads as follows:
"Constitution of Advisory Board --(l)The State Government shall, whenever necessary, constitute advisory Board for the purpose of this Act.
(2) The Board shall consist of three persons who are, or have been, or are qualified to be appointed as Judges of High Court, and such person shall be appointed by the Government.
(3) The Government shall appoint one of the members of the Advisory Board, who is or has been, a Judge of a High Court to be its Chairman."
Constitution of the Advisory Board under se9tion 18 of the Act cannot be treated as an empty formality and it will not be appropriate to say that mere issue of a notification constituting Advisory Board under Section 18 of the Act by the State Government will be enough. In view of the importance of the opinion of the Advisory Board in the matter of continuance of the detention of the detenu, the purpose of constitution, the number of members included in the Advisory Board and their qualification as occurring in Section 18 of the Act are significant. Sub-section (2) of Section 18 of the Act clearly says that the Advisory Board shall consists of three persons. Thereafter their qualifications have been given in this provision. The constitution of the Advisory Board cannot be truncated to mean that less than three persons will be deemed to constitute the Advisory Board within the meaning of Section 18 of the Act. The purpose for which the Act requires that the Advisory Board should be constituted is further found in Sections 19,'20 and 21 of the Act. Under Section 19 of the Act, a reference of the case of the detenu is to be made to the Advisory Board and the case of the detenu including the ground of detention and representation, if any, made by the detenu are to be placed before the Advisory Board constituted under Section 18 of the Act within three weeks from the date of detention of £he person under the order. Section 20 of the Act lays down the procedure of Advisory Board and Section 21 of the Act relates to the action upon the report of the Advisory Board. Thus it is clear that wherever the words 'Advisory Board' occur in the Act it means the Advisory Board constituted under Section 18 of the Act, which cannot be lost sight of. The whole purpose behind these legal requirements of opinion by the Advisory Board appears to be that before taking any action with respect to the detention of a detenu the Government should have before it the opinion of a Body of experts who are highly qualified persons and consist of personalities independent in their opinion. Therefore, it can be said that the Advisory Board has to play an important rolei in the matter of detention of a detenu. The| legislature in its wisdom appears to have taken a view that application of three minds to a particular aspect will be better than the application of mind by a lesser number of persons. If the legislature would have intended that opinion of some of the members of the Advisory Board will have the same value as that of the three members constituting the Advisory Board a provision of formation of quorum would have been there in the Act, which I do not find in the Act. If the legislature would have intended that the consideration of the case of a detenu by only two persons would have sufficed under sections 20 and 21 of the Act besides the words 'Advisory Board', the words 'or its members' also would have been embodied in the provisions wherever the word relating to the Advisory Board has been used. The words 'Advisory Board' are to be found in the different provisions of the Act. So either in loose sense or in strict sense of law, the words 'Advisory Board* are always to mean the Advisory Board constituted under Section 18 of the Act, which consists of three members, including the Chairman. So in these circumstances it will not be proper interpretation of the Statute that mere issue of notification under Section 18 of the Act constituting Advisory Board consisting of three persons will be enough compliance and thereafter the functioning of the Advisory Board will be dissociated with the constitution thereof. The intention of the legislature can be gathered if this aspect of the legal point is analysed from another angle. The wordings of different provisions of the Act, which I will deal hereinafter, will make it abundantly clear that the words 'Advisory Board' mean the Advisory Board constituted under Section 18 of the Act. The words 'Advisory Board' wherever used in different provisions will mean the Advisory Board constituted under Section 18 of the Act consisting of three persons and wherever any function is to be discharged by the Advisory Board, that must be discharged by all the three members of the Advisory Board. In absence of any one of the members the Advisory Board will cease to exist. In Section 19 of the Act which has already been pointed out, the words 'Advisory Board1 have further been clarified by adding words 'constituted under Section 18'. Section 18 of the Act says that the Advisory Board will consist of three persons. An argument may be advanced on the basis of Sub-section (3) of Section 20 of the Act, which lays down that where there is difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board. Therefore, in any case opinion of the two members, which will form the majority, has to prevail and therefore consideration of the case of the detenu by two members will amount to proper compliance of the requirement of the Act. In my view the above argument will be fallacious. Subsection (3) of Section 20 of the Act speaks about the opinion of the majority of the members of the Advisory Board. Question of opinion of majority will only arise when there is any opinion of minority, i.e., dissenting opinion. If consideration of the case of a detenu by two members only is made, in that case question of majority opinion will never arise. One may be misled by the reasoning that as soon as both the members concurred in their opinion will it be the opinion of the majority of the members hence it will be the opinion of the Advisory Board. In case of only two members being present during the consideration of the case of the detenu, there can be only two situations, either the opinion of the two members will be unanimous or equally divided. The question of opinion of the majority of members will arise only when there is a dissenting opinion of the third member. So in my view Sub-section (3) of Section 20 of the Act sets the legal position at rest that the case of the detenu must be considered by all the three persons constituting the Advisory Board under Section 18 of the Act and the Advisory Board will mean all the three members of the Advisory Board, not any particular number of members.
22. Another aspect of this point is that the absence of third member of the Advisory Board may vitally affect the opinion of the two members because if the third member also takes part in the deliberation and expresses his own view, any of the other two members who form certain opinion can change his own opinion on the reasonings advanced by the third member. So the consideration of the case of the detenu by all the members of the Advisory Board appears to be desirable in the interest of justice to achieve the purpose of the provisions of the Act relating to the Advisory Board. In case only two members sit together and consider the case of detenu, the detenu will be deprived of the consideration of his case by the third member whose presence and views could have turned the table and the Advisory Board could have come to a different conclusion. In this way also the meaning of the words 'Advisory Board' has to be strictly construed within the meaning of Section 18 of the Act.
23. There is yet another indication in Section 18 of the Act itself, which makes it clear that the Advisory Board means all the three members. Under Section 18 of the Act distinction has been made between the Chairman and the two other members of the Advisory Board. The qualification of the Chairman appears to be higher than the qualification of other members, as provided in Section 18 of the Act. Sub-section (3) of Section 18 of the Act lays down that the Government shall appoint one of the members of the Advisory Board, who is or has been a Judge of a High Court to be its Chairman. So far being Chairman the necessary qualification is that either he should be a sitting Judge or an ex-Judge of a High Court but for being appointed as the Members only qualification is that they should be qualified to be appointed as Judges of High Court. If the purpose of the enactment would have been that the opinion of the two members only will also be the opinion of the Board, persons having different qualifications would not have been included in Section 18 of the Act. There may be a contingency when the Chairman himself may be absent. Can it be said that the consideration by only other two members who are not so qualified as the Chairman will be deemed to be the opinion of the Board? It has to be answered in negative, since the detenu in that case will be deprived of the consideration of his case by a person having better qualification than the other two persons and the very purpose of these provisions under the Act will be defeated.
24. From what has been stated above, it has to be concluded that the opinion of only two members of the Advisory Board cannot be held to be the opinion of the Advisory Board in strict sense of the Act and consideration of the case of a detenu by all the three members is the legal requirement under the Act which must be adhered to.
25. In the case of Tarun Kumar Das v. State of Assam 1982 Cri LJ 1054 (Gauh), while dealing with the case under the National Security Ordinance it has been held that the language of section 9(3) was explicit that the Advisory Board shall consist of a Chairman and not less than two members. It is a determination of quorum for a legally valid Advisory Board. Likewise it is also explicit in Section 18(2) of the Act that the Board shall consist of three persons and their qualifications have been given in this section. Relying on the case of Tarun Kumar Das (Supra) in the case of Dinesh Yadav v. State of Bihar (Supra) it has been laid down that the consideration of the case of the detenu by two members will not mean that the Advisory Board considered the case of the detenu as envisaged under Section 20 of the Act. In the case of Kishorilal Bahati v. The State AIR 1951 Assam 169(SB)while dealing with a case under the Preventive Act, 1950 (as amended in 1951) it has been held that the reference made in respect of orders of detention passed on or after 22-5-1951, i.e., after the amendment, must be considered by all the three members of the Advisory Board.
26. The effect of absence of a member of the Disciplinary Committee constituted under the Advocates Act, 1961 in the disciplinary proceeding has been considered by the Supreme Court in the case of Ram Bharosey Agrawal v. Har Swarup Mahesh-wari, reported in (1976) 3 SCC 435 : (AIR 1976 SC 1739). The contention of the learned counsel appearing for the appellant has been found to be justified that the proceeding under the Advocates Act conducted by only two out of three members of the Disciplinary Committee was improper. A Bench decision of this Court in the case of Haji Taiyab Ali v. The State of Bihar AIR 1978 Pat 251 in dealing with a case under the Bihar Tenancy Act and examining the scope of section 48E, came to the conclusion that it was the scheme of section 48E that there must be representation of all the three members of the Board and the Board cannot proceed to deliberate in absence of any of its members. In the case of Pandurang v. State of Maha-rashtra AIR 1987 SC 535 the question arose before the Supreme Court, as to whether if under the Rules of Bombay High Court on the appellate side an appeal against an order of acquittal of accused in respect of commission of a particular offence which is to be heard by a Division Bench can it be disposed of by a single Judge and when there is the decision of the single Judge, what then will be the consequence? The Supreme Court held that when a matter required to be decided by a Division Bench of the High Court is decided by a learned single Judge, the judgment would be a nullity, the matter having been heard by a Court which had no competence to hear the matter, it being a matter of total lack of jurisdiction. The accused was entitled to be heard by at least two learned Judges constituting a Division Bench and had a right to claim verdict as regards his guilt or innocence at the hands of the two learned Judges. This fight cannot be taken away except by amending the rules. In this connection it has further been held that even if the decision is right on merits, it is by a forum which is lacking in competence with regard to the subject matter. Even a 'right' decision by a 'wrong' forum is no decision. It is nonexistent in the eye of law and hence a nullity.
27. Similar view has been expressed by Lord Parker, C. J. in R. v. Inner London Quarter Sessions, ex parte D' Souza reported in (1970) 1 All ER 481. In Re Liverpool Household Stores Association (1890) 62 LT 873 it has been observed as follows :
"But it is to be observed that they did not purport to appoint a quorum, and they must, therefore, I think, be taken to have intended that whatever the committee did should be done in the presence of all three members. I do not intend to say that unanimity would be required to make their acts valid, but that a meeting from which anyone was absent would not in point of law be a meeting of the Committee."
"My conclusion from them is that, although the committee (sic) might have appointed a Managing Director, and it is even possible, notwithstanding the general rule against a Director taking part in a matter in which he is personally interested, might have appointed one of their own body Managing Director and fixed his remuneration, yet two members out of the three could not do it, and that when the Committee was reduced to two the authority was gone."
In United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230, while dealing with a case under the Industrial Disputes Act, 1947, the apex Court has laid down law as follows (at p. 234 of AIR):
"If in the case of a Board or court of inquiry, neither of which is adjudicating any disputes, such a provision was considered necessary to enable the remaining members to act as a body, we think that the absence of such provision in respect of the Tribunal, which adjudicates on the disputes and whose quasi-judicial work is admittedly of a joint characher and responsibility leads to the irresistible conclusion that in the absence of one or more members the rest are not competent to act as a Tribunal at all."
28. The opinion of the Advisory Board has been assigned decisive role under the Act in the matter of continuance of the order of detention against the detenu. Provisions relating to opinion of the Advisory Board have been purposely (sic) incorporated in the Act by way of safeguard against arbitrary action of the Executive. It is well recognised principle of interpretation of statutes that the interpretation of a particular provision should be made by the Court in conformity with the spirit of the Act.
29. In the instant case it can be said that Section 18 of the Act requires that the Advisory Board shall consist of three members but the case of the petitioner was considered by only two members of the Advisory Board. Thus in view of the explicit provision in Section 18 of the Act, which deals with the constitution of a Board that the Advisory Board shall consist of three persons and other provisions relating thereto which have been analysed above and on the basis of citations quoted above the ratio decidendi of the case of Dinesh Yadav (supra) to the extent that the consideration of the case of the detenu requires consideration by all the members of the Advisory Board has to be approved. It is, therefore, held that the requirements of the Act are that the case of the detenu must be considered by all the three; members of the Board and then only it will be; deemed that his case has been considered by the Advisory Board. Consideration of the case of detenu by two members only and their opinion cannot be said to be the opinion of the Advisory Board under the Act. In the instant case admittedly the Advisory Board was constituted by the State Government through a notification dated 30th March, 1987, consisting of three persons, namely, Mr. Justice N.P. Singh as the Chairman, Mr. Justice (retired) B.S. Sinha, Member and Mr. Justice (retired) S. Narain, Member. Only two members, namely, Mr. Justice N.P. Singh (Chairman) and Mr. Justice (retired) S. Narain, Member, assembled together and considered the case of the petitioner along with the grounds of detention and Mr. Justice N.P. Singh, Chairman, gave his opinion that there are sufficient grounds for the detention of the petitioner with which the other member, namely, Mr. Justice (retired) S. Narain agreed and the report of the two members of the Advisory Board along with their opinion was forwarded to the State Government and thereafter the State Government passed the order of confirmation under Section 21 of the Act. Clearly, therefore, the State Government took into consideration the opinion of only two members of the Advisory Board and not of the Advisory Board as envisaged under the Act. Thus there has been clear infraction of! Section 21(1) of the Act.
30. In the case of Abdul Latif Abdul Wahab Sheikh v. B.K. Jha, AIR 1987 SC 725, it has been pointed out by the Supreme Court that the procedural requirements of the Constitution are the only safeguards available to a detenu, since the Court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. No doubt, the above observations have been made by the Supreme Court in a different context but the principle will be well applicable in the instant case as well. It is, therefore, clear that in the case of petitioner, there has been clear infraction of express provisions of the Act at several stages and detention of the petitioner was therefore, held to be illegal, Before parting with this judgment, 1 must thank Mr. G. C. Bharuka for his valuable assistance which, he has rendered at the request of the Court.
31. For the foregoing reasons, the order dated 27-4-1989' was recorded, this application was allowed and the petitioner was directed to be set at liberty forthwith. The circumstances in which the aforesaid order dated 27-4-1989 was passed have been indicated in the order itself.
B.N. Agrawal, J.
32. I agree.
Ram Nandan Prasad, J.
33. I agree.