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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 ..... 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 considered by the same Board on 8-5-85, on which date, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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. Sharma and Choudhary appeared before the Board only to submit necessary information . He also relied on the decision in Phillippa Anne Duke and a decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure 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 constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22. Permitting the detaining authority or the Govt. to appear before the Advisory Board with the aid of a legal practitioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;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 would not only satisfy the requirement of 'reasonable procedure' but insulate the Board against possible breach of Article 14. The Board is bound to refuse the detaining authority or the Government to be represented before it by a legal practitioner unless it allowed the detenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 detention order without being required to furnish any information and without furnishing the information called from him. In the instant case, there is no doubt that aid of Section 11(1) cannot be invoked by the State or the detaining authority to counter the breach of the Constitutional provisions. Because, the A.P. Ps. (M/s. Sharma and Choudhary) did not appear before the Board in relation to any information called from the Government. This fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. There remains now to be considered only the question whether the observations appearing at para 94 in A. K. Roy's case (supra) should be considered Law within the meaning of Article 141. This question has a long as well as a short answer. It would suffice to say that in A. K. Roy (supra), the vires of the various provisions of the Act 'including Section 11 was challenged and the provisions were interpreted by their Lordships and tested on Constitutional anvil. The Act as a whole was held valid, but the scope and ambit as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 formulated as an injunction operative against the subordinate courts, the language of the Article betrayed vesting of legislative power in Supreme Court. 16. In support of the above proposition, reference may be made to judicial authority. In M/s. Shenoy Co. their Lordships held that declaration of the law as to validity of an enactment pronounced by the Supreme Court was binding on everyone and the contention that it was not binding against persons who were not parties to the proceedings in which such pronouncement was made was held repugnant to Article 141. In S. P. Gupta's case their Lordships held it to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 recourse to the law only in cases f genuine necessity . It was also observed that the provisions of the Act are to be construed in a manner as will ensure that the detention does not acquire at any time a punitive character. This deduction followed the ratio of the decision in A. K. Roy 1982 Cri LJ 340 (SC) (supra) and the expression at any time found in Section 14 of the Act. Indeed, this Court's duty to test the continuing validity of detention of any person ordered under the Act was related to the condition precedent ( necessity ) projected in the core provisions of different sub-sections of sections of Section 3 of the Act. Reliance, to say so, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 developments and consequent event in deciding whether to keep the detenu in detention for the maximum period or to release him earlier. (Emphasis added) (Per Curiam, in Suna Ullah The discretionto fix the duration within the maximum period has been given to the Govt. after considering all the relevant circumstances... the discretion to fix the period of detention in a particular case has to be exercised after taking into accounta number of imponderable circumstances.... (Emphasis added). (Per Mathew, J. speaking for the majority in Fagu Shaw . 19. From the extracted observations of the apex court, it clearly follows that the power of confirmation inheres the necessity of considering relevant circumstances obtaining on the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 own setting as also indeed against the background of the scheme of the Act. The absence in the Act of any provision for compulsory periodic review, for which the power of revocation under Section 14 cannot be regarded as an adequate substitute, also requires that the provision should be so read as to inhere a safeguard in the nature of areal substiute for periodic review. It is necessary to do to ensure that the provision does not operate prejudicially against the detenu. That infraction of a procedural safeguard renders invalid a detention order and indeed, also, the continued detention of a detenu, is by now well-established. (See Sher Mohammad , Sk. Salim . However, what Chandrachud, C. J., speaking for the Court in Ratan Singh AIR 1982 SC1 : 1982 Cri LJ 146 observed deserves to be extracted: the laws of preventive detention afford o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case. R.C. Shrivastava, J. 25. I have had the advantage of going through the draft-order prepared by my learned brother Dr. T. N. Singh, J. with due respect, for reasons that follow, I find myself unable to subscribe to the view, expressed by him in paragraph No. 10, that '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....' 26. Section 8(1) enjoins upon the detaining authority the duty of affording to the detenu earliest opportunity of making a representation against the detention order to the appropriate Government. Under Section 10, the detenue's representation, if any has to be placed by the appropriate Government before the Advisory Board, constituted under Section 9, along with other papers w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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