Rajasthan High Court - Jaipur
Tej Singh vs State Of Rajasthan And Ors. on 20 April, 2001
Equivalent citations: 2001CRILJ4516, 2001(4)WLN500
Author: K.S. Rathore
Bench: K.S. Rathore
JUDGMENT Arun Madan, J.
1. Tej Singh through his wife has filed this habeas corpus petition challenging his detentiion ordered by the District Magistrate, Karauli on 28-8-2000 under Section 3(2) of the National Security Act, 1980 (for short 'the Act') with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, for a period of one year fixed in the order.
2. Admitted facts are that on 30-8-2000 Harpati w/o detenu Tejsingh received letter of District Magistrate, Karauli (respondent 2) informing that her husband has been detained under the Act by detentioin order dated 28-8-2000 (Ann. 1), and on 31-8-2000 grounds of detention with a forwarding letter (Ann. 2) of the responent 2 was also served, which was followed by approval of the State Government (respondent 1) under order dated 5-9-2000 (Ann. 3) so also confirmation of the detention order upon having received opinion of the Advisory Board through order dated 17-10-2000 (Ann. 4).
3. It is not In dispute that earlier also the detenu had remained in detention from 16-4-1994 to 15-4-1995 under the detention order dated 16-4-1994 passed by the District Magistrate, Sawaimadhopur under Section 3(2) read with Section 3(3) of the Act. Along with present petition, Schedule A has also been annexed showing therein details of criminal cases pending admittedly agairjst the detenu and the stage of progress therein.
4. It is the case of detenu that he is well known social worker in Karauli especially in Mahavirji. He claims to be an elected President, District Unit of Yuva Gurjar Mahasabha so also of Frontier Cricket Club, Mahavirji. He has also produced some news paper cuttings to show that he collected fund for benefit of defence services and he participated in social activities. As per the detenu, being social worker he used to demonstrate against administration especially police atrocities and which has been the cause of local administration having got annoyed with him resulting in registration of false and fabricated criminal cases at the behest of his opponents having animus, with their vested interests qua him. In para 9 of his petition, the detenu stated that a case was falsely registered against him on 4-6-2000 at PS Gumanpura Kota under Sections 399 & 402, IPC and 3/25 of Arms Act alleging that he hatched a conspiracy of looting gold and silver in a hotel room.
5. As admitted in para 11 of the petition, the detenu was arrested on 28-8-2000 and was served with detention order dated 28-8-2000 so also grounds of detention dated 31-8-2000. The detenu sent representation (Ann. 10) on 20-11-2000 against his detention endorsing to the Governor, Home Minister, Home Secretary of the State Government, and the President of India, Home Minister & Home Secretary of the Government of India, so also to the District Collector, Karauli through Superintendent Central Jail Jaipur. Postal receipts have been produced as Annexures 11 to 15. Hence this petition.
6. Shri A.K. Bhandari learned counsel appearing on behalf of the detenu argued that the District Magistrate has mentioned the detention period in the impugned order, itself, prescribing and determining it as one year from the date of detention, but such pre-determination of the detention period by the District Magistrate has caused prejudice to the case of the detenu before the Advisory Board Inasmuch as the District Magistrate has no authority of law to fix and prescribe the detention period Initially and in this view of the matter, the detention is illegal irrespective of the fact that subsequently the detention order has been approved or confirmed by the appropriate Government (respondent 1) even after having obtained opinion of the advisory Board. He cited the decisions of this Court (DB) in (1) Rajesh Koli v. State of Rajasthan, 2000 WLC (Raj) 649, (2) Dilip v. State of Rajasthan 2000 (1) RCC 703, (3) Kuldeep Singh v. State of Rajasthan, 1999 (3) WLC (Raj) 36 : 1999 Cri LJ 2557 and (4) Rajulal Meena v. State of Rajasthan 2000 WLC (Raj) (UC) 697.
7. Next contention urged by Shri Bhandari is that at the time of passing and communicating the detention order, not only the detaining authority but also the State Government before approving the detention, has not informed the petitioner as to his right to make representation nor has disclosed the authority to whom he could submit his representation against the detention, inasmuch as no such disclosure of his such right has been made in the order confirming the impugned detention, and it has resulted in violation of his right under Article 22 of the Constitution so also the Act.
8. Further contention raised by Shri Bhandari is that there has been infraction of procedure established by law in the impugned detention as the detaining authority has not exercised for preparation and framing of the grounds of detention of the detenu so also its formation prior to issuing of the detention In question, which shows that there was no subjective satisfaction of the detaining authority, for which the Impugned detention is liable to be quashed.
9. Shri Bhandarl also contended that the detenu has been detained on extraneous consideration inasmuch as preventive detention was not necessary because he had never Indulged in any activities prejudicial to the maintenance of the public order on the material on which the detention is based, which itself was Insufficient to pass the detention. In this regard Shri Bhandari urged that out of 22 Incidents, 11 incidents relate back to prior period of earlier detention of the detenu (16-4-94 to 15-4-1995), which could not have been considered by the detaining authority for the Impugned detention, and that apart, the impuned detention stands vitiated due to consideration of Incidents having taken place In other districts like, Bharatpur, Jaipur & Kota, over which the detaining authority ('District Magistrate Karaull) has no jurisdiction, as the Incidents mentioned at No. 6 (PS Bayana, 15 PS Gandhinagar, Jaipur), 17 (PS Nadbal), & 22 (PS Gumanpura Kota) and others at No. 16 (PS Hindaun), 21 (PS Nadoti), had taken palce outside Mahavirji after his release from earlier preventive detention of the year 1995 and thus out of 11 cases registered after release from second detention, six cases were registered outside Mahavirji. That being so, even if it is assumed that the detaining authority was empowered to exercise the power of detention under the Act, he could not have exercised such powers for the incidents which had taken place out of his jurisdiction of Karauli district.
10. Lastly Shri Bhandari contended that the detention is based on the report of the S.P., Karauli as is evident from the grounds of detention on the basis of which it has been mentioned that from the memo (Pratlvedan), factual information & documents produced by the SP, Karauli it is clear that the detenu has Indulged in criminal activities for last many years which are prejudicial in maintaining the public orders, but the detaining authority has not furnished to the detenu aforesaid Prativedan, factual Information along with other documents produced by the SP to the District Magistrate and thereby it has resulted in infraction of his right to make representation against his detention.
11. Mr. Mohd. Rafiq learned Additional Advocate General opposing the petition by filing a detailed parawlse reply thereto, vociferously contended that kinds of criminal activities In which the detenu has indulged, do not by any stretch of imagination make him (detenu) a social worker and that so called paper cuttings etc. had got no evidentiary value so as to adjudge sufficiency of the cause of detention qua" subjective satisfaction. Shri Rafiq also urged that all the offences for which criminal cases were registered against the detenu, were based on the actual incidents of crime having been committed by him (detenu) time and again with continuity thereto which reflected his criminal nature rather his such activities in totality had a very adverse effect on the even tempo of society and prejudicial to the maintenance of the public order necessitating Invocation of powers for preventive detention of the detenu under the Act.
12. In reply it has been averred by the respondents that wife of the petitioner (detenu) had also represented against the detention order to the Central Government which has been rejected on 1-12-2000 by forwarding it to the Superintendent Central Jail, Jaipur who served upon the detenu a copy of the rejection order on 4-12-2000. Similarly the detenu's representation (Ann. 10) was rejected by the Central Government by order dated 15-12-2000 and this rejection was got served upon the detenu through Superintendent, Central Jail on 16-12-2000 inasmuch as such rejection was confirmed and communicated by order dated 3-1 -2001 by getting it served on 6-1-2001. Even yet another representation allegedly made by detenu's wife was also rejected by the Central Govenrment by order dated 19-1-2001 by getting it served upon detenu on 20-1-2001. In support of such averments, the respondents have produced attested xerox copy of relevant aforesaid rejection orders communicated through wireless messages and followed by confirmation orders, as Ann. R1 to R4, besides Ann. R5 containing receipt of the detenu. That apart representation made by the detenu to the State Govt. was also considered and rejected by its order dated 2-2-2001 which was also communicated to him by Ann. R6.
13. According to the responents, the impugned detention was ordered on 28-8-2000, approved by the State Government on 5-9-2000 and the Advisory Board has given its opinion on 21-9-2000 whereupon the State Government confirmed the detention of the detenu by its order dated 16-10-2000 and continued the detention by indicating detention period for full one year from 30-8-2000 to 29-8-2001, and further that approval of the detention in question with report was sent by the State Govenment to the Central Government on 6-9-2000.
14. Shri Rafiq vehemently contended that mere fixation of one year in the detention order has not at all prejudiced the detenu in any manner nor has invalidated the detention, itself, inasmuch as a lacuna, if any stood cured and overruled upon approval of the detention order by the State Government followed by its subsequent confirmation order after having received the opinion of the Advisory Board which was given after having considered the representation of the detenu besides all material on which the detaining authority based the impugned detention.
15. Besides affidavit of Atul Sliarma who in the capacity of District Magistrate Karauli had passed the impugned order of detention of the detenu in exercise of powers conferred upon him under Section 3(2) of the Act, an affidavit of Ramesh Chandra Gupta, Additional Collector Karauli and Officer Incharge has also been filed in support of the reply to the habeas corpus petition, so also the documents annexed to it (Ann. R/1 to R/10). In the affidavit of Atul Sharma it has been stated that upon being satisfied with respect to Taj Singh (petitioner) in his capacity as District Magistrate, Karauli, that with a view to preveting him from acting in any manner prejudicial to the maintenance of public order and as to the necessity to make an order directing petitioner's detention, had passed order of his detention dated 28-8-2000. It has also been stated that he passed the detention order after having carefully scrutinized the grounds of detention besides all documents referred to therein as mentioned in Annexure-2 and upon examining all these documents he was fully satisfied as to the necessity of the detention of the petitioner to prevent him from acting in any manner prejudicial to the maintenance of public order. The District Magistrate also stated that copy of the detention order along with grounds of detention and accompanying documents thereof containing 141 pages were delivered to the detenu through Superintendent, Central Jail, Jaipur on 1-9-2000 as is evident from receipt (Ann. R/9).
16. Shri Rafiq placing reliance upon the decisions of the Apex Court in (1) Ahamed Nassar v. State of Tamilnadu 1999 (8) SCC 473 : 2000 Cri LJ 33 and (2) Meena Jayendra Thakur v. Union of India, 1999 (8) SCC 177 : 1999 Cri LJ 4534 and of this Court in (3) Phalkoo v. State of Rajasthan, 2000 (1) RLR 135, contended that the detention cannot be held to be void merely because of subsequent infraction of the detenu's right or of non-compliance with the procedure prescribed under the law, inasmuch as propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based, cannot be entered into by the Court by substituting its own satisfaction by appreciating or reappreciating the material on record.
17. We have heard the learned counsel for the parties and considered their rival contention with reference to the impugned detention order and relevant materials placed for perusal of this Court. As propounded by the Apex Court in Ahmed Nassar v. State of Tamilnadu (supra) a man is to be detained in the prison based on the subjective satisfaction of the detaining authority. Every conceivable material relevant and vital bearing on the issue should be placed before the detaining authority and the sponsoring authority should not keep it back, based on its interpretation that it would not be of any help to a prospective detenu. The decision is not to be made by the sponsiring authority. The law on this subject it well settled a detention order will stand vitiated if any relevant document is not placed before the detaining authority which reasonably could affect his decision, for which, the issuance of formal order of detention is the relevant date upon which if any relevant material comes in possession of the authority concerned it has to be placed before the detaining authority. Hence, it is settled law that there should be consideration of all relevant materials in case such materials were within the reach of the detaining authority till a formal detention order is issued and that being so, failure to palce the relevant material before the detaining authority and non-consideration thereof vitiates the detention order. Similarly, subjective satisfaction of detaining authority regarding detention can be arrived at on the basis of relevant material including contents of bail application even if bail application is rejected by the Court. Therefore, in order to test the legality of the subjective satisfaction the constitutional scheme, the preamble as also statements of objects and reasons of the Act should be kept in mind. In case of two possible interpretations one that subserves the objective of the statute should be accepted. That apart, preventive detention law should be construed strictly but it should also be seen that no person who acts against national interest should escape and that being so, in order to test the credibility of the statutory acts performed by statutory functionaries the principle that where two interpretations are possible, one which subserves the objective of the preventive detention statute should be preferred. When one's liberty is to be curtailed on the subjective satisfaction of the detaining authority with the limited interference by the Court then within this limitation, the Court must see in this authorities provileged area that the detaining authority does not stretch itself illegitimately in the exercise of its jurisdiction. So the Apex Court held as under :--
Courts must first find the extent of the individual right deciphering with the degree of trespass it makes on the public right, on which there is embargo. Where an individual acts clandestinely for his personal gain against the national interest deleteriously afecting the national economy or security the drastic curtailment of his right should be kept in mind to see that no such person escapes from the clutches of law. On the one hand, as it takes away one's liberty its should be strictly construed, on the other hand to subserve the objective of this Act, in the national interest it should be seen that no such person escapes.
18. As regards delay in consideration and disposal of representation of the detenu against his detention by the authorities under the preventive detention law. i.e. the Act, in our considered view also, expeditious disposal of any representation only means which could be expeditiously disposed of by the authority concerned but should not be with any unexplained delay or delay through carelessness, which would depend on the facts and circumstances of each case. Explanation of each day's delay is not magical formula, which only means it should be done with utmost expectation, as the time imperative can never be absolute or obsessive, and the slightest breach of which must not result in the release of the detenu. See LMS Ummu Saleema v. B.B. Gujaral, 1981 (3) SCC 317 : 1981 Cri LJ 889. However, the words 'as soon as may be' occurring in Clause (5) of Article 22 reflect the concern of the framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay and such a requirement is that there should not be supine indifference, slackness or callous attitude in considering the representation. See K.M. Abdula v. Union of India, 1991 (1) SCC 476 : 1991 Cri LJ 790. Emphasis is laid that delay if any caused due to any indifference or lapse in considering representation such delay will adversely affect further detention only and even longer delay can as well be explained and so the test is not the duration or range of delay but how it is explained by the authority. See Rajammal v. State of Tamilnadu, 1999 (1) SCC 417 : 1999 Cri LJ 826. However, it should not be forgotten that Article 22(5) of the Constitution guarantees earliest opportunity to make a representation and its disposal but a detenu has no pre-existing right for expeditious consideration of his representation by the detaining authority prior even to his detention order.
19. The respondents have denied that the detenu was not informed of the fact as to his having right to make representation to the authorities against his detention and during the course of arguments, our attention was drawn to the grounds of detention conveyed to him on 31-8-2000 according to which it is clear that the detenu was informed by stating therein that he could make representations to the Central Government/ State Government/Advisory Board, High Court or to the District Magistrate through Superintendent, Central Jail, Jaipur where he has been detained. That being so, the detenu and his wife both have exercised right in fact by making representations (Ann. 10) to the authority concerned. Thus, submission so far made are misconceived and hence we have no hesitation to reject the same.
20. Even otherwise in case of an infraction of the right of detenu under Article 22 merely because the detaining authority or the authority approving or confirming the detention had not informed the detenu as to his right of representation against his detention, but in our considered view it will not by itself vitiate the initial order of detention. Thus as expounded in Meena Jayendra Thakur v. Union of India (supra) the infraction of the constitutional right to make a representation on account of non-intimating the detenu about his right to make a representation or the opinion of the Advisory Board and the order of detention not being made within the period prescribed under law does not get into the satisfaction of the detaining authority while making an order of detention under Section 3(1) of the Act. If the detaining authority on the basis of the materials before it did arrive at its satisfaction with regard to the necessity for passing an order of detention and the order is passed thereafter the same cannot be held to be void because of a subsequent infraction of the detenu's right or of non-compliance with the procedure porescrtbed under law. But it does not affect the validity of the order of detention Itself issued under Section 3(1) of the Act by the detaining authority. In this view of the matter, the question of setting aside the order of detention impugned herein does not arise.
21. As already stated and admittedly 22 criminal cases were registered and after usual investigation charge sheets were produced before the criminal Courts against the detenu for various offences punishable under different sections of the Indian Penal Code, Arms Act, and Excise Act including Sections 147, 148, 149, 295A, 298, 307, 323, 324, 332, 336, 341, 342, 353, 354, 365, 379, 380, 394, 399, 402, 427, 442, 447, 452, 457, IPC. As per Schedule A annexed by the detenu to this petition, criminal cases mentioned at item Nos. 16, 17, 20, 21 & 22 relate to the offences also punishable under Section 3/25 of the Arms Act besides other sections of IPC, and out of 22 cases, item No. 13 to 22 admittedly relates to the period from March, 1996 to June, 2000 which could not have been considered while passing earlier detention of period 16-4-94 to 15-4-95. It is not the case of the detenu that in the FIRs on the basis of which criminal cases detailed out in the order and grounds of detention were registered, and after usual investigation charge sheets have been produced against him in the Court after furnishing its complete set of documents accompany- ing the charge sheet, and in which the detenue was not only named but also his complicity was disclosed in the commission of the offences mentioned therein. It is also not the case of the detenu that only extract of the charge sheet was furnished. Contra-rily, from the material placed on record, it stands established that the detenu was furnished with complete charge sheet under all grounds of detention except in some of criminal cases where investigation stood pending. All the documents considered by the detaining authority to reach its subjective satisfaction and referred to in the grounds of detention have been furnished to the detenu and therefore it is not necessary to furnish copies of those documents which are not material & relevant for reaching the subjective satisfaction of the detaining authority merely because they were mentioned in the "Prativedan" of the SP whereas whatever the Prativedan contained documents on which the detaining authority has made its subjective satisfaction, are part and parcel of the grounds of detention which have been furnished to the detenu and moreover, no application had been made before the detaining authority for giving copy of such Prativedan of SP, if any, relevant for making an effective representation against his detention. We lent support from the decision in Haridas v. K.L. Verma, AIR 1989 SC 497 : 1989 Cri LJ 983.
22. As we have been reiterating in the decisions on the habeas'corpus petition, it is trite law that the High Court in its writ jurisdiction under Article 226 of the Constitution can only examine as to whether the detention order has been passed on the materials before it and if it is so found, then the Court cannot go further and examine whether the material was adequate or not as it is the function of the appellate authority. Even the detentioin order will not become invalid merely because some material was not placed before the detaining authority for its consideration or that was not furnished to the detenu who is required to demand for it for effectively making representation, if any.
23. In the present case, the satisfaction was not based on a single or stray incident. The assertions made in the detention order have not been assailed by the detenu as untrue nor can they be said to be irrelevant for passing the detention order. We are of the considered opinion that for exercise of the power of the detaining authority it is not necessary to prove to the hilt that the detenue had committed any of the offences as stated in the Act and detailed out in the detention order. It is sufficient that from material on record the detaining authority could reasonably feel satisfied as to the necessity for the detention of the detenu in order to prevent him from indulging in activities prejudicial to the maintenance of public order. Hence the Apex Court in Phulwari Jagdamba v. RH Mendonca 2000 (3) Crimes 112 : 2000 Cri LJ 3944 (SC) held that in the absence of any provision specifying the type of material which may or may not be considered by the detaining authority and keeping in view the purpose with which the statute is intended to achieve, the power of the detaining authority should not be unduly restricted inasmuch as It is neither possible nor advisable to catalogue the types of materials which can form the basis of a detention order under the Act. and that will, therefore, depend on the facts and situation of each case.
24. As regards sufficiency or adequacy of the material considered by the detaining authority and mentioned in the grounds of detention, we may hasten to add that the subjective satisfaction of the detaining au-thority on consideration of the activities of the detenu after having from an opinion not only by the detaining authority but also by the approving authority, Advisory Board and the confirming authority to the detention that the activities are and have been affecting the maintenance of public order, therefore, it is essential to put the detenu under detention cannot be interfered with by the Court of law merely on the assertion of the detenu and, therefore, in our view also, it is not required to be stated in the grounds of detention as to why the detaining authority or the authority under the Act formed such opinion as to the activities of the detenu. That being so, this Court would not enter into propriety or sufficiency of the ground on which the satisfaction of the detaining authority is based nor it will substitute its own satisfaction for that of subjective satisfaction of the detaining authority. Our view is fortified from the observations made by one of us in Phalkoo v. State of Rajasthan (supra).
25. Let us advert to the crucial point raised at the bar as regards the determination or mention or specification of the period of detention, itself, in the impugned detention order and before we deal with merits of the case we will like to have careful analysis of the decision cited by Suri Bhandari.
26. In Dilip v. State (supra) this Court while relying upon the decisions of the Apex Court in Makhan Singh v. Punjab State, AIR 1952 SC 27 : 1952 Cri LJ 321 and Dattatraya Moreshwar v. State of Bombay, AIR 1952 SC 181 : 1952 Cri LJ 955 which were followed by this Court in Kuldeep Singh v. State (supra) and Rajulal v. State (supra) observed as under :--
6. This Court in the aforesaid two cases has clearly held that if in the detention order a period is fixed for detention, it renders the detention order illegal and detention stands vitiated. In taking that view this Court had relied on the cases of Makhan Singh Tarsikka v. State of Punjab, AIR 1952 SC 27 : 1952 Cri LJ 321 and Dattatraya Moreshwar v. State of Bombay, AIR 1952 SC 181 : 1952 Cri LJ 955 and other cases wherein it has been held that if period of detention is already fixed in the detention order by the District Magistrate, the detention is vitiated.
7. We see no reason to take a view different than the one taken by the two Division Benches of this Court on the point. Admittedly, in the detention order the District Magistrate had fixed the period of one year. The order is liable to be quashed on this ground alone.
27. In Kuldeep Singh v. State (supra), after having analysed the scheme of the Act for proper adjudication of the question as to whether the District Magistrate under Section 3 of the Act has jurisdiction to determine the period for which the detenu shall be detained, this Court observed as under at page 2561 of CriLJ :--
Thus only after confirmation of the order of the detention by the State in the manner prescribed that the proceedings before the Advisory Board commence and the Advisory Board then opines on the sufficiency of the cause of detention order by the order under Section 3. It is only after the Advisory Board has opined that the detention is for sufficient cause that the appropriate Government may confirm the order of detention and pre-scribe the period for which it is to be continued, the maximum being provided by Section 13 of the Act. It is, therefore obvious that the Act confers the power of continuing the period of detention only on the appropriate Government. The only words in Section 12 are therefore made "the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit". The determination of the period of detention is, therefore, duty of the appropriate Govt. only....
...and it is for this reason that since the inception of law on preventive detention, it has been held by the Courts in India including the Hon'ble Supreme Court of India that the designated authority was having no jurisdiction to determine the period of limitation. We arrive to this conclusion on examination of several decisions of the Supreme Court of India in this regard, some of which has already been quoted above.
28. Let us advert to have a resume of facts in which the Apex Court in Makhan Singh v. State of Punjab (supra) held that the fixing of the period of detention in the initial order itself is therefore contrary to the scheme of the Prevention Detention Act, 1950. Makhan Singh was arrested and detained under order dated 1-3-1950 made by the District Magistrate, Amritsar under Section 3(1) of the Preventive Detention Act and the grounds of detention were communicated to him on 15-3-1950, which was challenged by him under Article 32 of the Constitution but while the petition was pending after the Apex Court issued a rule nisi to the respondent the petitioner was also served on 6th August with another detention order dated 30-7-1951 purporting to be made by the Governor of Punjab under Sub-section (1) of Sections 3 and 4 of the Act, 1950 as amended by the Preventive Detention (Amendment) Act, 1951 with fresh grounds of detention on 16-8-1951 and thereupon Makhan Singh filed a supplementary petition impugning the validity of the said order on the ground that it directed the detention of the petitioner upto 31-3-1952 the date on which the Act itself was to expire and this was contrary to the provisions of the Act as amended. The Apex Court observed that the terms of the order make it clear that it was intended to operate as a fresh order for the detention of the petitioner and this view is strengthened by the fact that the order was followed by the service of a fresh set of grounds on the petitioner as required by Section 7 of the Act, a proceeding which would be wholly unnecessary if no fresh order of detention was intended. However, in the facts and circumstances of the case, the Apex Court opined that the order dated 30-7-1951 must be regarded as a fresh order made for the petitioner's detention in suppression of the earlier order and the question is whether it was illegal as it directed straightway that the petitioner be detained till 31-3-1952 which was the date of expiry of the Act, 1951. Thereupon the Apex Court held as under:--
Whatever might be the position under the Act before its amendment in Fabruary, 1951, it is clear that the Act as amended requires that every case of detention should be placed before an Advisory Board constituted under the Act (Section 9) and provides that if the Board reports there is sufficient cause for the detention "the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit" (Section 11). It is, therefore, plain that it is only after the Advisory Board to which the case has been referred, reports that the detention is justified, the Government should determine what the period of detention should be an not before. The fixing of the period of detention in the initial order itself in the present case was therefore, contrary to the scheme of the Act and cannot be supported.
29. From a careful analysis of the facts and circumstances (which could not have been made by other DBs of this Court while relying upon the decision in Makhan Singh's case) (supra) it is explicitly clear that in Makhan Singh's case the Government while issuing second detention order in supersession of earlier detention order issued by the District Magistrate, did not call for report of the Advisory Board by placing his detention case prior to confirmation of detention order, and in nut shell the case of detention of Makhan Singh was not placed before the Advisory Board by the Government which straightway directed that he be detained till 31-3-1951 which was the date of the expiry of the Act, 1950 as amended, itself, whereas, in the instant case though the District Magistrate fixed the term of de-tention as six mouths but after complying,with essential requirements as envisaged under Section 3 of the Act the District Magistrate reported the matter and case of the present petitioner's detention was placed before the Advisory Board which reported that there is sufficient cause for the detention whereupon the State Government confirmed the detention and ordered to continue the detention of the petitioner for one year from the date of his detention for which it thought fit. Hence, we do not think that the decision rendered by the Apex Court in Makhan Singh v. State with due respect helps in any manner to the petitioner in advancing his case so as to call for any interference in his impugned detention on this count for holding that specification of period of detention issued by the District Magistrate would make the detention, itself, a nullity so as to release the detenu.
30. In Dattatraya v. State of Bombay AIR 1952 SC 181 : 1952 Cri LJ 955 their Lordships of the Apex Court then had an occasion to consider the controversy as to non specification of period in detention and examine construction of 'such period as it thinks fit' in Section 11(1) of the Preventive Detention Act, 1950, wherein the Apex Court specifically observed that the notion that non specification of the period will continue the detention for an indefinite period, need not oppress unduly because the Act itself being of a limited duration such detention must certainly come to an end on the expiry of the Act.
31. In Dattatraya v. State of Bombay, validity of detention of Dattatraya (petitioner) was challenged on two fold grounds including one that the State Government has failed to comply with the requirements of Section 11(1) of the amended Act as at the time of confirming the detention order it omitted to specify the period during which the detention would continue.
32. The Apex Court then observed as under:--
On a proper construction of Section 11(1) a specification of the period of continuation of the detention is not necessary, however, desirable one may consider it to be. Non specification of such period at the time of confirming the detention order will not therefore make detention a nullity. (paras 6, 14)
33. Here we deem it appropriate to alsoquote following, observations of the Court :-
It follows therefore that the specification of the period of detention does not destroy or abridge the wide over all power of the appropriate Government to direct the continuation of the detention as long as it thinks fit.
I am not much impressed by the argument that the non-mentioning of the period in the order of confirmation is likely to cause serious prejudice to the interests of the detenu. It may be that if a period is mentioned the attention of the Government is likely to be drawn to the case near about the time when the period is due to expire and the facts of the case may be reviewed by the appropriate authority at that time before it decides to extend the detention any further but it seems to me to be clear from the provision of Section 13 that the Act contemplates review of individual cases by the appropriate Government from time to time the order of detention. It can legitimately be expected that the detaining authority would discharge the duties which are imposed upon it but even if it does not, there is nothing in the law which prevents it from fixing the period of detention upto the date of expiry of the Act itself which is by no means a long one and in that case the Court would obviously be powerless to give any relief to the detenu.
...In my opinion, Section 11(1) of the Preventive Detention Act does contemplate that a period should be mentioned during which the further detention of the detenu is to continue and the Government should see that no omission occurs in this respect but I am unable to hold that this omission alone would make the order a nullity which will justify us in releasing the detenu.
34. In Puranlal Lakhanpal v. Union of India, AIR 1958 SC 163 : 1958 Cri LJ 283, the Apex Court held that Clause (4) of Article 22 of the Constitution of India does not state that the Advisory Board has to determine wherther the person detained should be detained for more than three months. What it has to determine is whether the detention is at all justified. The setting up of an Advisory Board to determine whether such detention is justified is considered as a sufflcient safeguard against arbitrary detention under any law of preventive detention which authorises detention for more than three months. The matter before the Advisory Board is the subject of detention of the person concerned and not for how long he should be detained. The Apex Court held as under :--
In the very nature of things the decision as to the period of detention must be of the detaining authority, because it is the authority upon which responsibility for detention has been placed.
35. In Kamleshkumar Ishwardas Patel v. Union of India, 1995 (4) SCO 51 the Apex Court observed that the provisions in the COFEPOSA Act and PIT NDPS Act differ from those contained in the National Security Act. 1980 as well as earlier preventive detention laws namely, the Preventive Detention Act. 1950 and the Maintenance of Internnal Security Act, 1971 in some respects. The Scheme of the National Security Act has been analysed in the aforesaid case. According to it, there is an express provision (Section 3(4)) in respect of orders made by the District Magistrate or the Commissioner of Police under Section 3(3) and the District Magistrate or the Commissioner of Police who has made the order is required to forthwith report the fact to the State Government to which he is subordinate. The said provision further prescribes that no such order shall remain In force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government. This would show that it Is the approval of the State Government which gives further life to the order which would otherwise die its natural death on the expiry of twelve days after its making. It is also the requirement of Section 3(4) that the report should be accompanied by the grounds on which the order has been made and such other particulars as, in the opinion of the said officer, having a bearing on the matter which means that the State Government has to take into consideration the grounds and the said material while giving its approval to the order of detention. The effect of the approval by the State Government is that from the date of such approval the detention is authorised by the order of the State Government approving the order of detention and the State Government is the detaining authority from the date of the order of approval. That appears to be the reason and that is why Section 8(1) envisages that the representation against the order of detention is to be made to the State Government. According to the Apex Court, an order made by the officer specially empowered by the State Government is placed on the same footing as an order made by the State Government. Since the detention of the person detained draws its legal sanction from the order passed by such officer, the officer is the detaining authority In respect of the said person. He continues to be the detaining authority so long as the order of detention remains operative. He ceases to be the detaining authority only when the order of detention ceases to operate. This would be on the expiry of the period of detention as prescribed by law or on the order being revoked by the authority competent under the Act.
36. The Apex Court further observed, "moreover reference is required to be made to the Advisory Board only in cases where the period of detention is going to be longer than three months and It is not obligatory to make a reference to the Advisory Board If the period of detention is less than three months. In such a case the right to make a representation under Clause (5) of Article 22 would be rendered nugatory."
37. Article 22(4) of the Constitution, itself, provides for preventive detention law authorising detention upto a period of three months. From the provisions of Section 3 of the Act, it stands clear that preventive detention can be ordered either (a) by the Central Government or (b) by the State Government (Sub-sections (1) & (2) of Section 3), or (c) by District Magistrate or a Police Commissioner (Sub-section (4) of Section 3) in whose favours the State Government (under Sub-section (3) of Section 3) has delegated its powers to issue detention order (under Sub-section (4) of Section 3). However, when detention is ordered by the State Govt. or Its delegated officer, the detention and its grounds are required to be communicated to the Central Govt. within seven days. And when detention is ordered by State Govt.'s delegated officer In exercise of its powers under Sub-section (4) of Section 3, then such delegated officer has to report the fact of detention together with the grounds of detention ordered to the State Government forthwith. No doubt as envisaged under Sub-section (4) of Section 3 of the Act, the detention order remains in force for more than twelve days after making thereof unless in the meantime it stands approved by the State Government. In this view of specific provision under Sub-section (4) of Section 3, life of detention if ordered by District Mag-'istrate or Police Commissioner (delegated officers of the State Govt.) is only twelve days if in the meantime it is not approved by the State Government. Suppose a detention is ordered by delegated officers in exercise of powers u/S. 3(4) and the same is reported forthwith to the State Govt. specifying even any period of detention in the order, itself, but such detention is not approved by the State Govt. within 12 days, then certainly despite specifying any period in the detention order, as per the scheme of the Act and Constitution of India, such detention order issued by the delegated officer shall loose its legal sanctity obviously for want of its approval by the State Govt. But if detention ordered under Section 3(4) by delegated officer with or without specifying any period thereof is approved by the State Govt. then there is no specific provision as to the life of such detention ordered by delegated officer under Section 3(4), obviously because of the provisions under Article 22(4) which provides for preventive detention authorising detention upto three months. It is settled law that under the constitutional scheme engrafted in Article 22, no law providing for preventive detention can authorise the detention of a person for a period longer than three months unless the Advisory Board reports before the expiration of the said period of three months that there is, in its opinion, sufficient cause for such detention.
38. On the strength of the decisions of other DBs of this Court which are based on decisions of the Apex Court in the cases referred to and discussed above, much stress has been laid down that specification and prescription of the period of detention in the order issued by the delegated officer (District Magistrate) has resulted in causing prejudice to the case of detenu in the mind of the Advisory Board. In our considered view such a contention canvassed on behalf of the detenu is totally fallacious, bizarre and barren of force because neither Clause (4) of Article 22 of the Constitution nor any of relevant provisions conferring powers on the Advisory Board to consider the detention under the Act contemplates that the Advisory Board has to determine as to whether the person (detenu) should be detained for more than three months. What has to be determined by the Advisory Board is as to whether the detention ordered either by the Govt. or its delegated officer under Section 3 of the Act is at all justified? Thus the subject before the Advisory Board is of detention of the detenu and not for how long he should be detained. Hence the decision as to the detention period is of the detaining authority upon which responsibility for detention of a person whose activities have been found prejudicial to the maintenance of public order within the parameters under Section 3(2) of the Act, has been placed, obviously because reference to the Advisory Board is a safeguard to the detenu against high handed action on the part of the Executive and such is a device contemplated by the Constitution with a view to review the decision of the Executive upon a representation of the detenu, the grounds of detention and where the order is by an officer (District Magistrate or delegated officer under the Act), his report under Section 3(4) of the Act. Thus in view of the settled poisition that the Advisory Board has only to determine as to the justification of the detention of the detenu referred to it by the authority under Section 3 of the Act and not for how long the detenu should be detained, in our considered view it cannot be inferred that specification of the detention period in the order passed by the delegated officer under Section 3 of the Act would prejudice to his case, muchless such a fixation or mention of the detention period would render the detention itself nullity, nugatory or vitiated warranting interference by this Court for quashing the detention itself.
39. Further, as expounded by the Apex Court in Kamlesh Patel v. Union of India (supra), reference is to be made to the Advisory Board only in cases where the period of detention is going to the longer than three months obviously because in case the detention period is less than three months, then it is not obligatory to make a reference to the Advisory Board. Thus unless the detaining authority did arrive at its satisfaction as to the period of detention, how can it be possible either for the detaining authority or the appropriate Govt. to determine as to whether it is a case for being referred to the Advisory Board for its opinion and report, only on the point as to whether there is sufficient cause for detention of the detenu. It is neither called upon nor is it competent to say anything as to the period for which such person should be detained. Hence, it follows therefrom that specification of the period of detention does not destory or abridge the wide over all power of either the Advisory Board to examine justifiability or sufficiency of the cause for detention ordered by the delegated officer and/or approved by the State Govt. or the appropriate Government to direct the continuation of such detention as long as it thinks fit under the Act. There is no specific bar either under the Constitution or the Act as to the specification of the period of de-" tention in the initial order either ordered by the delegated officer or the State Govt. or the Central Govt.nor there is any procedure. No doubt, once the Advisory Board expresses its view that there is sufficient cause for detention at the date when it makes its report, what action is to be taken subsequently is left entirely to the appropriate Government and it can under Section 12(1) of the Act 'confirm the detention order and continue the detention of the person concerned for such period as it thinks fit'.
40. Be that as it may, irrespective of the provision made under Section of the Act as to the maximum period of detention in pursuance of any detention order duly confirmed under Section 12 i.e. twelve months, the legislature has also made the law by providing under proviso to Section 13 of the Act that nothing contained in Secion 13 shall affect the power of the appropriate Government to revoke or modify the detention order at any earlier time. Similarly powers of revocation of detention order are contemplated in Section 14 of the Act and its Sub-section (1) specifically provides that without prejudice to the provisions of Section 21 of the General Clauses Act. 1897 (10 of 1897). a detention order may, at any time, be revoked or modified, (a) notwithstanding that the order has been made by an officer mentioned in Sub-section (3) of Section 3 by the State Government to which that officer is subordinate or by the Central Government; (b) notwithstanding that the order has been made by a State Government. by the Central Government. In this view of specific provisions having been made under the Act, (supra) containing non obstante clauses, in our considered view, the powers of the appropriate Government either as to the confirmation or the continuation or the revocation of the detention are not only independent to each others but also the wide overall. It follows that specification of the period in the detention order, by itself, will not in any case prejudice the case of the detenu when it goes up for consideration either before the Advisory Board or before the appropriate Government for approval, confirmation, continuation and/or revocation or modification of the detention order, in the light of the scheme of preventive detention law engrafted either under the Constitution or the Act. Rather, it may be that if a period is mentioned the attention of the Government is likely to be drawn to the case near about the time when the period is due to expire and the facts of the case may be reviewed by the appropriate authority at that time before it decides to extend the detention any further. There is nothing in the law which prevents it from fixing the period of detention upto the maximum period as provided in Section 13 of the Act.
41. In the instant case, once the detaining authority on the basis of the material placed before it did arrive at its satisfaction as to the necessity of having ordered the detention of the present detenu (petitioner) and the order has been passed inasmuch as the appropriate Government has approved such a detention besides having confirmed it after receipt of the opinion of the Advisory Board as to the justifiability of the detention or sufficient cause for having ordered such a detention by the detaining authority, in our considered opinion duly fortified by a comprehensive analysis of the relevant law in concomitant with dictum of law laid down in the facts of each case (supra) by the Apex Court, the present detention cannot be held to be void because of infraction either of the detenu's right or of non-compliance with the procedure prescribed under the Act on the contentions urged by the learned counsel for the detenu because it does not affect the validity of the order of detention itself issued under Section 3 of the act by the detaining authority in exercise of its powers. Therefore, the question of setting aside the order of detention issued on 28-8-2000 does not arise.
42. That apart, even if the District Magistrate had fixed the period of detention by mentioning it in the order itself, but as a consequent upon approval thereof and confirmation of the detention after having obtained the opinion of the Advisory Board, which has not been disputed by the detenu, in the present case, the detention order itself in our view does not suffer from any illegality.
43. Having considered the entire circumstances appearing on the material collected by the sponsoring and detaining authority and in the grounds of detention of the present detenu and the papers annexed thereto, in our opinion it is clear that the detaining authority had based its subjective satisfaction on series of contemporaneous incidents in which the detenu was involved. On such materials on record it cannot be said that there was no basis for detaining authority to feel satisfied that the detenu was engaged in anti-national activities prejudicial to the maintenance of public order and his activities were such which in their totality had the effect of disturbing even the tempo of public life and therefore, the impugned order of detention was perfectly justified warranting no interference by this Court.
44. Resultantly, we find no merit in this habeas corpus petition and hereby dismiss the same and uphold the detention of the present petitioner under the impugned, order referred to above.