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1986 DIGILAW 264 (ORI)

NALLA GOVINDA RAO v. DIST. MAGISTRATE, KORAPUT

1986-07-22

D.P.MOHAPATRA, HARI LAL AGRAWAL

body1986
H. L. AGRAWAL, C. J. ( 1 ) THE petitioner, who has been detained under the provisions of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter called 'the Act'), has filed this writ application seeking relief in the nature of habeas corpus and for quashing the order of his detention. ( 2 ) THE main thrust of the argument of the learned counsel for the petitioner is that on account of non-compliance of the procedural safeguards prescribed for the detenu in reporting the fact of his detention to the Central Government within the prescribed time limit, the order of detention cannot be maintained. ( 3 ) THE relevant facts which are undisputed are as follows : the District Magistrate, Koraput, passed the order of detention of the petitioner under S. 3 (2) (a) of the Act on 21-12-1985 and reported the matter to the State Government on the next day. The necessary order of approval of the Minister was made on 28-12-1985 and the same was signed and authenticated by the Secretary of the concerned Department of the State Government on 30-12-1985. It can, therefore, be safely said that the order of detention was approved by the State Government on that day, i. e. 30-12-1985. As provided under sub-s. (3) of S. 3 of the Act, where the order of detention of the detaining authority is to remain in force only for a period of 12 days from the making thereof unless in the meantime it is approved by the State Government. The relevant provision on which the argument is based is contained in subs. (4) of S. 3 of the Act and is quoted hereunder : "when any order is made or approved by the State Government under this section or when any order is made under this section by an officer of the State Government not below the rank of Secretary to that Government specially empowered under sub-s. (1), the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. " from the above provision it is manifest that the State Government has a legal obligation to report the fact of detention of any person to the Central Government together with the grounds of detention, etc. , within seven days. Although there was some dispute as to whether the period of 7 days prescribed in sub-s. (4) for reporting the matter to the Central Government was to commence from 21-12-1985 or 30-12-1985, in my opinion it was rightly contended by the learned Additional Government Advocate that in view of the Rules of Business of the State Government, it was signed by the Secretary concerned as provided under R. 12 of the Rules of Business. ( 4 ) LET us now proceed with the matter further. The matter was reported to the Central Government only on 7-1-1986. Thus, the report was not sent to the Central Government within the prescribed time limit of 7 days and was late by one day. It is on account of this one day's delay that the order of detention has been challenged. The stand of the petitioner is that the said provision was mandatory in nature and did not admit of any exception. The submission of the learned Additional Government Advocate, on the other hand, is that the aforesaid statutory limitation of 7 days was "not invariable and absolute". In other words, the delays can be explained in appropriate cases. In support of this contention, reliance was placed by him on several decisions of the Supreme Court, namely, (1) AIR 1981 SC 1191 , (Mst. L. M. S. Ummu Saleema v. B. B. Gujaral); (2) AIR 1984 SC 46 , (Raisuddin v. State of U. P.); (3) AIR 1985 SC 1082 , (State of Rajasthan v. Shamsher Singh) and (4) AIR 1986 SC 207 , (State of U. P. v. Mahant Singh ). Before proceeding to discuss these cases individually, the contention of the learned counsel must be rejected for the simple reason that in all those cases the question was about the delayed consideration of the representations filed by the detenu, and the Court proceeded to examine the circumstances leading to the delays and as to whether the representations had been considered by the concerned State Governments with dispatch, or any laches had occurred in that regard thus violating the protection guaranteed under Art. 22 of the Constitution. I must say that in some of the cases, the explanations offered for the delayed consideration of the representations were accepted. It is on this account that it was submitted with great vehemence that the analogy of consideration of the delay in disposal of the representations should be applied with equal force also to the cases where the statute has fixed prescribed time limits for discharging certain statutory obligations. ( 5 ) THE approach of the learned Additional Government Advocate to the problem is entirely misconceived and must be rejected for the simple reason that in none of the statutes for passing the orders of the preventive detentions, any time limit has been prescribed for filing of representation by the detenu, though under the general scheme of the Act, definite and different periods have been prescribed for compliance with the "step-to-step treatment of the matter". Rather, there is no obligation cast on the detenu to make any representation at all. He may choose to file a representation or may not file. Section 10 of the Act is in pari materia with that of the National Security Act which question came to be considered by the Supreme Court in some of the cases referred to above. Section 10 provides that the State Government has the obligation to cause the papers relating to detention to be placed along with the representation, if made within three weeks from the date of detention, before the Advisory Board. Therefore, obviously where the representation is not made, the papers (without the representation) have to be placed before the Board within the time prescribed. Where a representation is made within a reasonable time, the same has also to be promptly attended to and has to be placed before the Board. The placing of the representation, therefore, has to be judged from a different angle. The procedure to be followed by the Advisory Board is contained in S. 11 of the Act which indicates that the Board is to consider the materials placed before it and is entitled to call for such information, as it may deem necessary, either from the appropriate Government or from any other person, and after hearing the detenu, if he wants to be heard, it has to submit a report to the appropriate Government within 7 weeks from the date of detention. The legislative scheme in fixing the time limit of 3 weeks in S. 10 and the further time limit of 7 weeks in S. 11 thus allows 4 weeks further time to the Board to deal with the matter. In the decision reported in AIR 1981 SC 1191 (supra), the Court examined the explanation and found the same to be satisfactory and held that there had not been any unaccountable or unreasonable delay in the disposal of the representation by the detaining authority. Similar was the position in Raisuddin's case (1983 Cri LJ 1785) (SC) (supra ). The main question that was mooted in this case was as to whether it was the duty of the State Government to get the reference also considered by the Advisory Board within three weeks from the date of detention itself an argument which was obviously contrary to S. 11 of the Act and it was held that the only duty cast on the appropriate Government was to place before the Advisory Board the case of the detenu within three weeks from the date of detention. The six days' delay by the District Magistrate in forwarding the representation of the detenu to the State Government was examined by the Court, and it was held that it was not due to any lack of diligence on its part. In Shamsher Singh's case (1985 Cri LJ 1348) (SC) (supra), the question was the delay of one day in forwarding the representation, and it was held that no prejudice was caused to the detenu on that account. Similar was the position in the case of Mahant Singh, (1986 Cri LJ 22) (SC) (supra ). As already indicated, I have no doubt in my mind that the ratio of none of the decisions can be of any avail to the State for salvaging the impugned order of detention. ( 6 ) A Constitution Bench of the Supreme Court in the case of A. K. Roy v. Union of India, AIR 1982 SC 710 , in no uncertain terms have emphasised on compliance with the procedural requirements. In Mahant Singh's case (supra), there is an observation with regard to the mandatory nature of the provision contained in S. 10 of the Act which is quoted below : -"the requirements of S. 10 are mandatory and non-compliance with or infraction thereof would certainly be fatal. In Mahant Singh's case (supra), there is an observation with regard to the mandatory nature of the provision contained in S. 10 of the Act which is quoted below : -"the requirements of S. 10 are mandatory and non-compliance with or infraction thereof would certainly be fatal. " ( 7 ) THE safeguards available to a detenu without trial is what is guaranteed to him. under Art. 22 (5) of the Constitution. The time schedules indicated in the Act and the screening by the Advisory Board are in answer to these requirements. These are the barest minimum safeguards which must be observed before the executive authority can be permitted to detain a person preventively and thereby drown his fight of personal liberty in the name of public good and social security. See Khudiram Das v. State of West Bengal, AIR 1975 SC 550 . ] ( 8 ) THE cases relied upon by the learned counsel for the petitioner are directly on the point and fully support his submission. Reliance was first placed by him on the case of Sher Mohammad v. State of West Bengal, AIR 1975 SC 2049 , where the question was directly of non-compliance of the provision of sub-sec. (4) of S. 3. There also a delay of only one day was committed in the communication to theCentral Government, and it was held that the State Government could not have communicated its approval to the Central Government beyond the time limit of seven days. A Bench of this Court also took the same view in the case of Ram Bhagat Agarwala v. State of Orissa, (1984) 1 Crimes 972 . ( 9 ) FOR the foregoing reasons, the inevitable conclusion on the facts of this case is that in the matter of sending a report to the Central Government as provided under sub-sec. (4) of S. 3 of the Act there can be no scope for any delay and no explanation, howsoever justifiable it may be, can be pressed into service. In other words, the limitation prescribed in the said provision is invariable and absolute. Once there is any delay, the detenu will be relieved from the pains of detention. As the petitioner must succeed on this point itself, we did not think it necessary to consider the other points which he had raised in the writ petition. In other words, the limitation prescribed in the said provision is invariable and absolute. Once there is any delay, the detenu will be relieved from the pains of detention. As the petitioner must succeed on this point itself, we did not think it necessary to consider the other points which he had raised in the writ petition. I would accordingly allow the same and quash the impugned order of detention contained in Annexure-1 and direct that the petitioner-detenu be released forthwith. I however do not propose to make any order as to costs. Let an appropriate writ issue accordingly. D. P. MOHAPATRA, J. : - I agree. Petition allowed. .