Choudhury Dharam Singh Rathi Vs. The
State of Punjab & Ors  INSC 105 (25 November 1957)
DAS, SUDHI RANJAN (CJ) AIYYAR, T.L.
VENKATARAMA DAS, S.K.
CITATION: 1958 AIR 152 1958 SCR 998
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.
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.
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
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 corpus 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
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.
998 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 prayed for and the petitioner be set
at liberty forthwith.
Petitioner set at liberty.