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1995 DIGILAW 684 (MAD)

PALANI v. DIST. MAGISTRATE

1995-08-23

ARUNACHALAM, THANGAMANI

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Judgment : ARUNACHALAM, J. ( 1 ) PETITION Palani has detained as a bootlegger under Tamil Nadu Act 14 of 1982, in pursuance of an order of detention dated 26-2-1995, passed by the first respondent, District Magistrate and Collector, Dharamapuri, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and health. ( 2 ) THOUGH several contentions were urged by Mr. A. K. S. Thahir, learned counsel appearing on behalf of the petitioner, we do not deem it necessary to list them out and consider them, for on a solitary and vital ground, this Hebeas Corpus Petition will have to be allowed. ( 3 ) IT was brought to our notice by Mr. Thahir that within seven weeks of the date of detention of the petitioner, the Advisory Board had not submitted its report to the State Government, as mandated under Section 11 of Tamil Nadu Act 14 of 1982. He pointed out that the order of detention is dated 26-2-1995 and the petitioner was detained on and from 27-2-1995. The period of seven weeks from the date of detention will expire on 18-4-1995. He also brought to our notice that the Advisory Board had held its deliberations on 30-3-1995. ( 4 ) MR. I Subramaniarn, learned Additional Public Prosecutor, fairly stated that the Advisory Board had not submitted its report to the State Government within seven weeks and the report was received only on 18-4-1995 after the expiry of the mandated period. Initially, the learned Additional Public Prosecutor attempted to contend that on the mandate under Article 22 (4) of the Constitution, all that is required, would be confirmation of the order of detention within the three months period contemplated therein, for, otherwise the order of detention would become automatically invalid. The crux of his submission was that so-long as the time-schedule was concerned, the Constitutional provision may have to be looked into. ( 5 ) TO accept this submission, we found it a bit difficult, since on the basis of Constitution mandate under Article 22 (4) certain constitutional guarantees flow in favour of the detenu and the time-schedule prescribed in several sections of Tamil Nadu Act 14 of 1982 take cared such guarantees. We tested this proposition in the following manner. ( 5 ) TO accept this submission, we found it a bit difficult, since on the basis of Constitution mandate under Article 22 (4) certain constitutional guarantees flow in favour of the detenu and the time-schedule prescribed in several sections of Tamil Nadu Act 14 of 1982 take cared such guarantees. We tested this proposition in the following manner. Suppose, the Advisory Board chooses to hold, that there was no sufficient material to detain any particular detenu and such communication is not submitted within seven week, what would be the result? There is no doubt that the State Government has no option, but to revoke the order of detention on the basis of the opinion tendered by the Advisory Board, but, yet, they may have to pass the necessary Government Order on the basis of the opinion tendered by the Advisory Board. Suppose its opinion is delayed and not submitted within seven weeks, obviously the detenu concerned must be deemed to be incorporated illegally. Further, Section 10 of the Act mandates that the State Government, shall, within three weeks of the date of detention of a person under the order, place before the Advisory Board the grounds etc. Can it be stated by the State Government that three months time is the mandate under the Constitution and even if the provisions of Section 10 of the Act do not stand complied with within three weeks, no harm can flow so long as the order of detention stands confirmed on the opinion of the Advisory Board, before the expiry of three months. It will not be possible to draw a line of demarcation that in cases where the Advisory Board held in favour of the detenu, a communication. I will have to be submitted within seven weeks and in other cases, even if such a report is submitted after seven weeks, it cannot make any difference The object underlying the preventive law is that the detenus are kept in prison without trial and therefore the legal mandates will have to be strictly complied with. I will have to be submitted within seven weeks and in other cases, even if such a report is submitted after seven weeks, it cannot make any difference The object underlying the preventive law is that the detenus are kept in prison without trial and therefore the legal mandates will have to be strictly complied with. On the basis of the time prescribed under Article 22 (4), it was deemed necessary that Preventive Acts must contain specific time frames for performance of duties contemplated therein, so that ultimately the State Government will still have some little time left to act on the orders passed by the Advisory Board within the time-frames contemplated under the Constitution. Anyhow, no further discussion will be needed, since we have two decisions of the Supreme Court on this point. ( 6 ) IN Mritunjoy v. State of West Bengal, the Supreme Court stated as hereunder: Counsel for the petitioner raised several grounds challenging the validity of the detention order and supporting the prayer of the petitioner for release from custody. I think it necessary only to deal with the arguments of counsel in respect of the failure of the Advisory Board to submit its report to the Government within the time prescribed by section 11 of me Act and the delay in the consideration and disposal of the representation of the petitioner by the State Government. Section 11 of the Act enjoins that the Advisory Board shall, after considering the materials placed before it, submit its report to the appropriate Government Vvlthin ten weeks from the date of detention. In this case the date of detention was November 10, 1971, the Advisory Board submitted its report only on January 20, 1972. The report was not submitted to the Government within the 10 weeks as enjoined by the section. There is no dispute in the instant case that the report of the Advisory Board was not submitted within seven weeks from the date of detention. The law laid down, by the Supreme Court in the aforesaid case will squarely stand attracted. The report was not submitted to the Government within the 10 weeks as enjoined by the section. There is no dispute in the instant case that the report of the Advisory Board was not submitted within seven weeks from the date of detention. The law laid down, by the Supreme Court in the aforesaid case will squarely stand attracted. ( 7 ) IN Ashok Kumar v. State of Jammu and Kashmir, in a similar situation arising out of detention under Jammu and Kashmir Public Safety Act (6 of 1978) the Supreme Court stated as hereunder: There, sub-section (1) of Section 16 provides that the Advisory Board, after considering the material before it and such further material as it may deem necessary and after hearing the person concerned shall submit its report to the Government within eight weeks from the date of detention. The obligation placed on the Advisory Board to submit its report within the prescribed must be construed strictly in as much as the personal liberty of a person is involved and having regard to the emphasis which the Constitution has placed, and which emphasis is reflected in the Act, on the necessity of expeditiously determining whether the detention of the person concerned should be continued. T We are satisfied that on the solitary ground urged, it must be held that further detention of the petitioner is invalid. ( 8 ) IMPUGNED order of detention shall stated set aside. The petitioner is directed to be set at liberty forthwith unless his detention is otherwise required. This Habeas Corpus Petition is allowed. Petition allowed.