Full Judgment Text
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PETITIONER:
CHOUDHURY DHARAM SINGH RATHI
Vs.
RESPONDENT:
THE STATE OF PUNJAB AND OTHERS
DATE OF JUDGMENT:
25/11/1957
BENCH:
DAS, SUDHI RANJAN (CJ)
BENCH:
DAS, SUDHI RANJAN (CJ)
AIYYAR, T.L. VENKATARAMA
DAS, S.K.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
CITATION:
1958 AIR 152 1958 SCR 998
ACT:
Preventive Detention--Failure of the Advisory Board to
submit its report within time--Effect-Detenu, if must be set
at liberty--Preventive Detention Act (No. IV of 1950), ss.
10, 11.
HEADNOTE:
Submission of its report by the Advisory Board under s. 10
of the Preventive Detention Act within the time prescribed
by that section is of the utmost importance to the detenu
and if the Board fails to do so any further detention beyond
that period becomes unlawful.
Consequently, where the case of the detenu was that the
Advisory Board had not submitted its report within ten weeks
of his detention and his detention thereafter had,
therefore, become illegal and no attempt was made on behalf
of the Government to controvert that case in the counter-
affidavits filed on its behalf, the detenu must be set at
liberty.
JUDGMENT:
ORIGINAL JURRISDICTION: Petition No. 135 of 1957. (Under
Article 32 of the Constitution for a writ in the nature of
habeas corpus)
N. C. Chatterjee and Naunit Lal, for the petitioner.
N. S. Bindra and T. M. Sen, for the respondents.
1957. November 25. The following Judgment of the Court was
delivered by
DAS, C. J.-This is an application for a writ in the nature
of habeas corputs filed by the petitioner who was detained
by an order made by the District Magistrate, Karnal under s.
3 of the Preventive Detention
997
Act on the August 18, 1957, and which was approved by the
State Government on August 29, 1957.
In para 10(xii) of his petition the petitioner stated’ that
he made representations before the Advisory Board and
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personally appeared twice before it, but the Board had not
yet passed any order and he Contends that his detention has
become illegal and bad. Under s. 10 of the Preventive
Detention Act, the Advisory Board is enjoined, after going
through the procedure therein laid down, to make its report
to the State Government within ten weeks from the date of
the detention. On the report being made the State
Government has to take steps under s. II of the Act. If the
report is against the detention the Government has no option
but must release the detenu forthwith. In such a case the
delay in the submission of the report may result in
prolonging the detention beyond the period signified by the
expression " forthwith " occurring in s. 11 read with s. 10.
On the other hand if the report approves of the detention
the Government may but is not bound to continue the
detention and if it does decide to continue the detention,
it has to fix the period of such detention. In this case
also the delay in the submission of the report deprives the
detenu of the advantage of a fresh decision by the State
Government about the continuation of his detention. It,
therefore, follows that in either case the making of the
report within the time prescribed by law is of the utmost
importance to the detenu and the failure to make the report
in time may quite conceivably have the effect of unlawfully
prolonging the detention and, therefore, after the expiry of
the ten weeks the detenu may well complain that he has been
deprived of his personal liberty otherwise than in
accordance with procedure established by law. The ten
weeks’ time within which the report of the Advisory Board
was to be filed in this case expired on October 27, 1957.
This Petition was filed on November 8, 1957. The detenu may
well complain that on and from October 28, 1957, his
detention has become illegal and bad and that, in substance,
is what he has said in para. 10(xii) of his petition.
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Learned counsel appearing on behalf of the State has
submitted that there is no allegation in the petition that
the Board has not submitted its report and that all that has
been said is that the Board has not made any order. Says
learned counsel that if the petitioner had stated that the
Board had not submitted its report the State Government
could then be expected to deal with that allegation. Under
s. 10 of the Act the Board has no power to make any order to
continue or discontinue the detention, but is only under a
duty to submit its report to the State Government. In ;this
context, therefore, a plain reading of para. 10(xii)
indicates that the grievance of the petitioner, in subtance,
is that the Board has -not submitted its report within the
prescribed period and that, therefore, his detention has
become illegal. Learned counsel appearing for the State
wanted time to ascertain whether the report had been
submitted within the time. We do not think in the
circumstances of this case any adjournment should be given.
The allegation was definitely made in the petition that the
Board had not done its-duty and the detention was on that
account characterised as illegal and bad but this paragraph
has not at all been dealt with in either of the two
affidavits in opposition that have been filed. There was no
scope for any misunderstanding about the petitioner’s case.
In these circumstances, we are of opinion that no good
reason has been shown why any adjournment should be granted.
In the view we have taken on the effect of the noncompliance
with the procedure laid down in s. 10 of the Act. it is not
necessary for us to go into the other points raised in the
petition. We, therefore, direct that a writ be issued as
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prayed for and the petitioner be set at liberty forthwith.
Writ issued.
Petitioner set at liberty.
999