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Allahabad High Court · body

1963 DIGILAW 281 (ALL)

B. P. Shukla v. State of Uttar Pradesh

1963-11-06

C.B.KAPOOR, D.P.UNIYAL

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JUDGMENT D.P. Uniyal, J. - These are petitions under Section 491, Criminal Procedure Code preferred on behalf of four persons detained under the Defence of India Rules, 1962. The facts relating to the detention of the petitioners in all these cases are almost similar and they may therefore be disposed of together. 2. On the 6th of February, 1963, the District Magistrate of Agra passed an order of detention under Rule 30(a) (b) of the Defence of India Rules. In pursuance of the said order the four detenus were arrested on the 8th of February, 1963. It appears that on the 2nd of February, 1963 the State Government had issued a Notification No. 810-XXV/CXA dated Lucknow February 2, 1963. By this Notification, the Governor of Uttar Pradesh constituted a reviewing authority for the purposes of sub-rule (4) (a) of Rule 30-A of the Defence of India Rules. The Secretary to Government, U.P. and the Commissioner, Lucknow Division were appointed as the reviewing authority for the purpose of the Defence of India Rules in cases of detention ordered, inter alia, by District Magistrates. 3. In pursuance of the Notification aforesaid a letter was addressed by the Home Secretary to U.P. Government on the 4th of February, 1963 to the District Magistrates investing their attention to the said Notification and asking them to submit forthwith to the Chief Secretary to Government, in the Confidential (A) Department, a report of the facts of detention along-with with the facts of the case and the material against person detained as required under sub-R. (5) of Rule 30-A, Defence of India Rules. This communication was received by the District Magistrate of Agra on the 9th of Feb. 1963. After the receipt of this communication, he sent a wireless message to the Home Secretary informing the latter about the detention of twelve persons including the four petitioners. It was said that a detailed report in respect of each of them would follow. Prior to this, the District Magistrate had addressed a communication to the Home Secretary on the 7th of February, 1963 informing him about the detention of the petitioners. The Home Secretary sent a copy of the said letter of the District Magistrate on the Chief Secretary in these terms:- "This is submitted for information. These cases of detention w ill be examined on the relevant files after the grounds of detention have been received. The Home Secretary sent a copy of the said letter of the District Magistrate on the Chief Secretary in these terms:- "This is submitted for information. These cases of detention w ill be examined on the relevant files after the grounds of detention have been received. The cases will have to be referred to the reviewing authority." Thereafter on the 17th of February, 1963 the District Magistrate sent a report containing information about the detention and on the 25th of February, 1963 he sent another communication to the Chief Secretary containing not only information about the detention of the aforesaid persons but all the material and documents concerning each person detained. 4. The detention was challenged before us on the following two grounds: 1. That the fact of detention having not been reported to the reviewing authority forthwith there was no compliance of Rule 30-A (5) of the Defence of India Rules, 1962. 2. That the order of detention having not been reviewed by the reviewing authority in terms of Rule 30-A (7) of the Defence of India Rules, 1962, the detention of the applicants is illegal. 5. The 2nd ground of detention was not pressed before us. Learned counsel appearing for the detenus, however, strenuously contended that the District Magistrate had not complied with the mandatory provisions of Rule 30-A (5) of the Defence of India Rules. Clause (2) of Rule 30-A of the said Rule provides that:- "Every detention order shall be reviewed in accordance with the provisions hereinafter contained". Clause (5) of Rule 30-A reads thus:- "Where a detention order is made by an officer empowered by the State Government or the Administrator, that officer shall forthwith report the fact to the reviewing authority referred to in Clause (a) of sub-Rule (4), or, as the case may be, to the Administrator." We have already mentioned above that in pursuance of Clause (4) of Rule 30-A, the State Government had by means of a Notification dated the 2nd of February, 1963 constituted a reviewing authority consisting of the Chief Secretary and the commissioner of the Lucknow Division. What was contended for was that the District Magistrate who had passed the order of detention in these cases had not reported the fact of detention to the reviewing authority "forthwith" as required by Clause (5) of Rule 30-A. 6. What was contended for was that the District Magistrate who had passed the order of detention in these cases had not reported the fact of detention to the reviewing authority "forthwith" as required by Clause (5) of Rule 30-A. 6. The learned Advocate General contended, on behalf of the State, that the District Magistrate had complied with the provisions of Clause (5) inasmuch as he had informed the Home Secretary about the detention on the 7th of February, 1963 and that the Home Secretary, in his turn, had sent an intimation to the Chief Secretary by means of a letter dated the 8th of February, 1963. On this ground it was urged that the provisions of Clause (5) had been substantially observed. It is sufficient to point out that the communication sent by the District Magistrate to the Home Secretary on the 7th of February, 1963 was not a report of the detention for being transmitted to the Chief Secretary as the reviewing authority, nor did the Home Secretary in his communication dated 8th February, 1963 intimate the Chief Secretary that the report of the District Magistrate was being sent to him for purposes of review as contemplated by Clause (5) of R. 30-A of the Defence of India Rules. 7. On the other hand, in paragraph 3 of the counter-affidavit filed by the Deputy Home Secretary, it was averred that: "The fact regarding the detention of the petitioner was reported by the District Magistrate, Agra to the reviewing authority on 25.2.1963 and the said authority reviewed his case on 22-3-1963." This averment was based on personal, knowledge. It is not therefore open to the State Government to contend that the report as contemplated by Clause (5) of Rule 30-A had been communicated "forthwith" to the reviewing authority earlier than the 25th of February, 1963. 8. It is not therefore open to the State Government to contend that the report as contemplated by Clause (5) of Rule 30-A had been communicated "forthwith" to the reviewing authority earlier than the 25th of February, 1963. 8. In para 7 of the supplementary counter-affidavit filed by Sri S. S. Gupta, District Magistrate of Agra, it is stated that :- "A copy of the circular letter (sent by the Home Secretary to him) along with the Gazette Notification, having been received on the 9th of February, 1963 the District Magistrate sent two communications to the Chief Secretary one on the 17th of February, 1963 containing certain information about the detenue and the other on 25th February, 1963 which contained not only information but all the necessary documents in respect of each person detained." This averment makes it clear that it was not until the 17th February, 1963 that the matter of detection was reported by the District Magistrate to the reviewing authority. Even assuming that there was justification for the District Magistrate not to have sent a report about the detention to the reviewing authority before the 9th of February, 1963, having regard to the fact that he was not aware of the Government Notification dated 2nd of February, 1963 till that date, we are of opinion that there was no reasonable excuse for him to have deferred the sending of the report until the 17th of February, 1963. No explanation had been offered by the then District Magistrate, or the Home Secretary for the delay in sending the report as contemplated by Clause (5) of Rule 30-A of the Defence of India Rules. 9. In Keshav Nilkant Joglekar v. The Commissioner of Police, AIR 1957 SC 28 the question that arose for consideration was whether the report of detention had been sent "forthwith" by the Commissioner of Police, Bombay to the reviewing authority within the meaning of Section 3(3) of the Preventive Detention Act, 1950. 9. In Keshav Nilkant Joglekar v. The Commissioner of Police, AIR 1957 SC 28 the question that arose for consideration was whether the report of detention had been sent "forthwith" by the Commissioner of Police, Bombay to the reviewing authority within the meaning of Section 3(3) of the Preventive Detention Act, 1950. Sub-Section (3) of Section 3 of the said Preventive Detention Act was as follows:- "When any order is made under this section by an officer mentioned in sub-Section (2), he shall "forthwith" report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessity for the order." In that case, the order of detention had been passed by the Commissioner of Police, Bombay on 13th January, 1956 and the detenus had been arrested on the 16th of January, 1956. The said Commissioner of Police reported the fact of the order on the 21st of January, 1956. The question arose whether the report sent to the State Government on the 21st of January, 1956 had been made "forthwith" as contemplated by sub-Section (3) of Section 3 of the Preventive Detention Act. The Supreme Court after reviewing a number of authorities came to the conclusion that what was meant by the word "forthwith" was that the act should be performed with reasonable speed and expedition and that any delay in the matter should be satisfactorily explained. On the facts of that case, it was held that the Police Commissioner had given adequate reason for the delay in sending the report of detention. It was observed that the delay in that case was "due to causes not of the making of the Police Commissioner's report but to causes to which the activities of the petitioners very largely contributed." It was accordingly held that the Police Commissioner had adequately explained the delay in reporting the order of detention to the State Government. 10. In the present case, there were no reasons whatsoever for the delay in reporting the fact of detention to the reviewing authority. 10. In the present case, there were no reasons whatsoever for the delay in reporting the fact of detention to the reviewing authority. In fact, on the affidavits filed by the District Magistrate, it appears that there could have been no justification for his lying by and not sending a report forthwith to the reviewing authority as required by Clause (5) of Rule 30-A of the Defence of India Rules. We are clearly of opinion that the District Magistrate in this case had committed a breach of Clause (5) of Rule 30-A of the Defence of India Rules and that this fact had vitiated the detention of the petitioner. 11. We, accordingly, allow these petitions and direct that the petitioners shall be set at liberty forthwith. A copy of our order on the order-sheet may be supplied to learned counsel for the petitioners today on payment of necessary charges.