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TMI Blog1985 (7) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... blic order. The order was bottomed on two grounds and the "Grounds' bore the date 22-9-84. Petitioner Daulat Singh suffers detention on the strength of a similar order passed by the same detaining authority on 29-3-84 (Annexure R/l) and indeed, for achieving the same objective, namely, maintenance of public order. The order, in this case, was also passed on two grounds. But, in neither case, it is necessary to refer to the contents of the 'Grounds' inasmuch as the challenge, as alluded, is founded on the breach of the Constitutional mandate of Article 22(5). Suffice it to say that in either case, the grounds narrated certain antisocial and criminal activities of the detenus, such as intimidation, extortion and also terrorising people by throwing hand-bomb. 3. The cases of the two detenus were referred separately for the opinion of the Advisory Board and the detenus were also produced before the Board. The case of petitioner Bharat was considered by the Board on 20-10-84, on which date, the Board submitted its 'Report' and 'opinion', holding that there was sufficient cause for detention of Bharat under the Act. Petitioner Daulat Singh's case was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endeavoured strenuously to persuade us to take a different view in these two cases contending that the decision in A. K. Roy's case . relied on by this Court in Anoop Kumar (Supra), requires further scrutiny. Stale counsel submitted that what was laid down by the Supreme Court in A. K. Roy's case (supra) at para 94 of the report was not "law" and ought to be read as mere" "observations" or obiter dicta. Counsel also submitted that "A.P.P." (Assistant Public Prosecutor)" being a Police Officer in the employment of the Slate, could not be considered either as a ''legal advisor" or "legal practitioner". In any case, Shri Jain submitted, appearance before the Board by M/s. Sharma and Choudhary was not unauthorised in that Section 11(1) of the Act contemplated calling for such "information" from the Government as the Board deemed necessary and also contemplated such information being made available by the Government to the Board. Therefore, Shri Jain submitted, the presence of any representative of the Government before the Board was not a taboo and in the instant case, we should lake the view that M/s. Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, capable of expansion in a cavalier fashion. "To allow personal liberty of the people to be taken away by the application of that clause would be a flagrant violation of the fairness and justness of the procedure which is implicit in the provisions of Article 21", so it was held and remedy for the 'mischief was also suggested; the defect could be removed by specifying by means of "law, order or notification", the essential supplies and services, so it was indicated. 8. In Anoop Kumar (supra), in granting relief to the petitioner, this Bench extracted and relied on the following observations, appearing at para 94 of the report in A. K. Roy's case 1982 Cri LJ 340 (supra): The reasons behind the provisions contained in Article 22(3)(b) of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party. The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu. In any case, that is not what the constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentation". More so in a case where a detenu, for any reason, failed to make a 'written representation'. Because, as held in A. K. Roy 1982 Cri LJ 340 (SC) (supra), law does not deny the detenu the right to consult a "legal practitioner" in preparing his 'written representation' though he cannot claim, as of right, to be aided or assisted in the hearing before the Board, obviously in view of the embargo envisaged under Section 11(4). Indeed, in such a case, there would be duty on the Board to question the detenu why a written representation was not filed by him and if he would like to file such a representation for the consideration of the Board as he was evidently suffering the constraint of detention while Section 10 gives him the right to make a 'written representation' for the consideration of the Board. Indeed, the requirement of 'reasonable procedure' envisaged in Maneka Gandhi (supra) mandated such a course. According to us, the Board is also obligated to ask him, in a case where the detaining authority is represented by a legally qualified person, if he would also like to avail the same or similar facility. Such a course wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h as detention beyond the period of three months is constitutionally barred under Clause (4) in the absence of Board's affirmative opinion accepting the position that there existed "sufficient cause" for the detention. In terms of Section 11(1), the Board is, however, authorised merely to call for "any information" for its own use and satisfaction for a proper disposal of the matter before it. It is true that the Board is also authorised to hear "any person" from whom any "information" is called. But, it is also very clear that such a person cannot be one who represents the detaining authority or the Government if such person does not appear in relation to any "information" called by the Board. Indeed, even if such a person "desires to be heard", he can be heard by the Board only in a case where he has furnished "any information" to the Board on the same being called from him. We do not read anything in the language of Section 11(1) to suggest any right being conferred on the detaining authority or the Government to appear before the Board through "any person" for the purpose merely to support the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 being breached by treating State preferentially (by allowing it 'legal representation1) did not crop up. We also do not read anything in the Delhi decision, Deepak Kumar 1985 Cri LJ NOC 96 (supra), from which any support can be derived by the State. The Court held that "ministerial assistance" which the representative of the appropriate Government gives to the Board cannot be held violative of procedural safeguard provided in the Constitution. However, in so far as the observation of the Court that it will not be wrong even if the Board called a representative of the Government "to explain the material already before the Board" is concerned, we would regard the same as an obiter dictum. Because, although Section 11(1) authorises "further information" being called, it does not confer right on the Government or the detaining authority to appear before the Board. Indeed, this may tantamount to the representative being allowed to assume the role of a person appearing to justify or support the detention order by explaining the materials, which exercise is held by A.K. Roy 1982 Cri LJ 340 (SC) (supra) to be offensive to the constitutional mandates. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a") shall act "in aid of the Supreme Court". We have no doubt that joint mandate of Articles 141 and 144 makes enforceable decisions of the Supreme Court, including its interpretation of statutory provisions throughout the territory of India. 15. This occasion is opportune, we feel, to state the unstated premises. As the process of interpretation is sui generis, different techniques are evolved and applied from time to time. Sometimes, the court may be inclined to read down the provision rather than striking it down, according primacy to the principle of presumption of constitutionality. This is what appears to have been done in A.K. Roy 1982 Cri LJ 340(SC) (supra) following perhaps the lead of Maneka Gandhi (supra), the impress whereof is writ large unmistakably on the decision in Roy's case (supra). Reading into a statute "justice of Common Law" (principles of natural justice) was held legitimate in Maneka Gandhi. Indeed, in recent decision in Liberty Oil Mills this view was buttressed. According to us, because the Supreme Court cannot enact, the phraseology of Article 141 was so devised : the binding effect of its 'declaration of law was formula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security of the State/Society and individual liberty in the backdrop of growing global concern for 'Human Rights' and international norms of protection thereof was required to be properly secured and maintained. 17. We address ourselves now to the third question or the second contention raised on behalf of the petitioners in this case. We immediately extract the relevant provision : 12. Action upon the report of the Advisory Board.-- (1) In any case where the Advisory Board has reported that there is in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirmthe detention order and continuethe detention of the person concerned for such period as it thinks fit. (Underlining is ours) It may be pertinent in this connection to recall what one of us (Dr. Singh, J.) observed in the Five Judge decision of Gauhati High Court in Hitendra Nath 1984 Cri LJ 1558 (FB) to reiterate that the scheme of the Act which is cast in the constitutional mould of Articles 21 and 22 must and does manifest the legislative intent to regulate the power of preventive detention in a manner as will agree with minimum curtailment of liberty and permitting reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detenu. In this connection, a reference may be made to significant observations in a few decisions of the apex Court:- In my opinion that words "for such period as it thinks fit" presuppose and imply that after receipt of the report of the Advisory Board the detaining authority has to make upits mind as to whether the original order of detention should be confirmed and if so, for what further periodthe detention is to continue. (Emphasis added). Per Mukherjee, J. in Dattatraya The language employed in Section 11 of the Act is different from the language of Section 3 and to my mind this difference indicates a contrary intention. The words "such period as it thinks fit" have the meaning that Govt. has to specify and fix the period of such detention. If these words were construed in the manner suggested by the learned Attorney General it will lead to the result that...the Govt. would not be obliged to apply its mind to the question of duration at all. Such a conclusion to my mind has to be avoided unless the language employed conclusively points to it. (Emphasis added) ... the State Govt. would have to take into accountall the circumstances including fresh deve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted". Reference may also be made to the observations of Lord Hodson and Lord Upjohn in Padfields case (1968) AC 997, who held that although no reasons in the order impugned in that case were given by the Minister for a decision and the statute conferred "full and unfettered discretion" on him, the court was still entitled to see if he had left relevant matters out of consideration in taking the decision. Lord Wilberforce in Tameside case (1977) AC 1014, speaking on a statutory provision couched in 'subjective form' observed that even in such a case the exercise of the power must manifest "proper self-direction" to relevant facts. Indeed, our own apex court in Sabir Ahmed's case , (which was also a case of preventive detention under COFEPOSA held that where statutory discretion was coupled with a duty the discretion must be exercised in a reasonable manner and failure to do so will render the decision void. 21. We are also inclined to take the view that Section 12(1) in terms provides a procedural safeguard against unauthorised encroachment on the liberty of a person which is evident from the object and scope of the provision considered in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention. There is no escape from the conclusion that merely because the Act prescribed the maximum period of twelve months for which the detention under the Act could be continued, further detention of the detenu in each case for the maximum period of twelve months was, therefore, confirmed or continued. 23. We did not find in the records consideration of relevant circumstances that obtained on the date when the confirmation was made in each case. No reasons are given as to why the authority concerned considered it necessary to continue detention in each case for maximum period of twelve months. Whether the objective sought to be fulfilled in each case could be subserved by fixing the period of continued detention for a lesser period was not at all considered. Whether the 'mischief sought to be prevented had in the meantime vanished was also not considered. 24. For all these foregoing reasons, we have no hesitation to hold that the petitions must succeed. We hold the continued detention of the petitioner in each case to be unconstitutional and void and direct that the petitioners, Bharat and Daulat Singh, be set at liberty forthwith if not required in connection with any other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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