Balmukand Vs. Dist. Magistrate, Delhi & ANR [1964] INSC 176 (17 August 1964)

17/08/1964 DAYAL, RAGHUBAR DAYAL, RAGHUBAR MUDHOLKAR, J.R.

SIKRI, S.M.

CITATION: 1965 AIR 877 1965 SCR (1) 58

ACT:

Defence of India Rules, 1962, r. 30A-Detention-Review before expiry of six months-Whether reckoned from detention order or from confirmation of detention order.

HEADNOTE:

The petitioner whose detention order was issued by the respondent on February 25, 1963 under r. 30(1)(b) of the Defence of India Rules, filed a petition under Art. 32 of the Constitution for a writ of habeas corpus. The detention order was confirmed by the Administrator on March 26, 1963.

The Administrator reviewed the order on September 25, 1963 and on March 11, 1962, each time deciding to continue the detention order. The petitioner contended that the detention order had to be reviewed by the Administrator before the expiry of six months from the date of the detention order, while the respondents contention was that the period of six months for the purpose of the review of the detention order was to be reckoned from the date on which the Administrator confirmed the detention order.

HELD : The review of a detention order made by an officer empowered by the State' Government or the Administrator was to be at intervals of not more than six months from the date of the detention order in the first instance and from the date of each subsequent order of the reviewing authority for the detention to continue. [63D].

Biren Dutta v. The Chief Commissioner of Tripura, (Cr. App.

Nos. 37-91 of 1964 decided July 23, 1964), referred to.

ORIGINAL JURISDICTION : Habeas Corpus Petition No. 85 of 1964 Petition under Art. 32 of the Constitution for enforcement of Fundamental Rights.

Bawa Gurcharan Singh and Harbans Singh, for the petitioner.

S. V. Gupte, Additional Solicitor-General and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by Raghubar Dayal J. Balmukand alias Balu has presented this writ petition under Art. 32 of the Constitution for the issue of a writ of habeas corpus. He is detained under a detention order issued by the District Magistrate, Delhi, on February 25, 1963 under r. 30(1) (b) of the Defence of India Rules, 1962, hereinafter called the rules. The District Magistrate was empowered to issue such orders, by the Administrator. The petitioner was arrested on February 27, 1963. The order of the Magistrate was confirmed by the Administrator of the Union Territory of Delhi on March 26.

1963. The Administrator reviewed the 59 order on September 2,5, 1963 and on March 11, 1964, and each time decided that the detention order should be continued.

The orders passed on review were communicated to the petitioner, each time.

The validity of the detention order is not questioned for the petitioner. The facts noted above are also not disputed. It is contended for the petitioner that the detention order had to be reviewed by the Administrator before the expiry of six months from the date of the detention order i.e., February 25, 1963. On behalf of the respondents it has been urged by the learned Additional Solicitor General that the period of six months for the purpose of the review of the detention order is to be reckoned from the date on which the Administrator confirmed the detention order i.e., the 26th of March 1963 and not from the date of the detention order. It is also urged that the order of confirmation itself should be taken as the first order of review as such an order is made under the provisions of r. 30A of the rules which deals with review of detention orders. We are of opinion that the contention for the petitioner is sound.

Sub-rule (1) of r. 30A provides that in that rule 'detention order' means an order made under cl. (b) of sub-r. (1) of r.

30. Sub-rule (4) mentions the authorities which have to review the detention order made by an officer empowered by the State Government or the Administrator. The Administrator is the authority to review the order when made by an officer empowered by him to make a detention order under r. 30 (1 ) (b). Sub-rule (5) enjoins that the officer empowered by the State Government or the Administrator to make the detention order shall forthwith report the fact of his making the detention order to the reviewing authority or, as the case may be, to the Administrator. Sub-rule 6(a) lays down what the reviewing authority has to do on receipt of a report under sub-r. (5). The reviewing authority for the review of an order made by an officer empowered by the State Government has, after taking into account all the circumstances of the case, to recommend to the State Government whether the detention order is to be confirmed or cancelled and the State Government, on receipt of the recommendation, has either to confirm or cancel the order as it may deem fit. Under sub-r. (b) of r. 6, the Administrator too in regard to orders made by an officer empowered by him to make such detention orders, has to take into account all the circumstances of the case and thereafter either confirm the detention order or cancel it.

Sub-rules (7) and (8) provide for the reviewing authority or the Administrator to review the detention order made by the officers empowered by the State Government or the Administrator respectively at intervals of not more than 6 months. The reviewing authority has to send its recommendation to the Government which has to decide whether the detention order be continued or cancelled. The Administrator hits himself to decide whether that detention order be continued or cancelled. Sub-rule (9) deals with the review of detention orders made by the Central and the State Governments respectively. Such orders are to be reviewed at intervals of not more than 6 months by the Government making the detention order.

The contention that the order of confirmation be treated as the order of review is based on what -is stated in sub-r.

(2) Which directs that every detention order shall be reviewed in accordance with the provisions thereinafter contained. It is urged that the provisions about the review of the detention orders are contained in the provisions following sub-r. (2) and that therefore the act of confining the order should be considered to be equivalent to the act of reviewing the order as contemplated by the various provisions of r. 30A. We do not consider this to be the correct view about the order of confirmation.

Sub-rule (1) of r. 30 empowers the Central Government or State Government to make an order directing that the person be detained in certain circumstances. The expression 'State-Government' used therein means, in relation -to the Union Territory, the Administrator thereof. The State Government and the Administrator confer on officers power to make such orders. The' power so delegated to them is in a way subject to the supervision of the State Government and the Administrator, and for the exercise of supervision by these authorities, sub-rr. (5) and (6) provide the procedure to be followed for the confirmation of the detention order made by the officer empowered to make it. It may be said that the orders of such officers, though valid from the time they are made, are subject to the approval of the State Government or the Administrator by way of those authorities confirming them.

Sub-rule 6(a) gives the power of confirming or cancelling the detention order made by an officer empowered by the State Government to the State Government and not to the reviewing authority mentioned in sub-r. (4) of r. 30A. This indicates that the order of confirmation is not really an order of review. The review is done by the reviewing authority. The order of confirmation or cancellation is passed by the authority primarily empowered to make the detention order in sub-r. (1 ) of r. 30.

61 It may further be noted that the matters which the authority affirming the order has to take into 'Consideration would necessarily include the circumstances prevailing at the time and the nature of the activities of the person ordered to be detained on the basis of which the original order of detention was made under r. 30. The confirming authority has thus to decide for itself whether those matters justify the detention order or not. When a review is made after an interval of not more than six months and therefore mostly in the sixth month of making of the detention order, the reviewing authority has no more to consider the nature of the activities of the detenu as subsequent to his detention there could be no such activity of his which would be helpful in forming an opinion whether he should be detained further or not. Mostly, the reviewing authority will have to take into consideration the change, if any, in the other circumstances which had led to the detention of that person.

The matters to be considered on the occasion of review appear to be different from those to be considered at the time of confirming the order and therefore an order of confirmation cannot be treated to be an order of review contemplated by r. 30A.

The provision about confirming or cancelling the order is not in the nature of a review of the order of the officer empowered to make it, but is for the purpose of seeing that the order made by the officer empowered was justified in the circumstances of the case and on the materials taken into consideration before 'passing that order and is thus wider in its ambit than that for review.

The order of confirmation is contemplated to be made by the authority mentioned in sub-r. (6), very soon after the making of the detention order. This is apparent from the fact that the officers empowered by the State Government or by the Administrator are required to make a report forthwith to the reviewing authority or to the Administrator whenever they make a detention order. This direction to report forthwith the action taken by the officer empowered by the State Government or the Administrator, emphasises the desirability and necessity for the State Government or the Administrator knowing of the order soon after it is made and being in a position to consider it and to pass the order of confirmation or cancellation as it may consider fit after taking into consideration all the circumstances of the case.

If the order of confirmation be considered to amount to an order of review, as contemplated by the various sub-rules dealing with the review of the detention order at intervals of not more than six months, it may lead to the confirming authority not Ip./64-5 62 considering the circumstances of the case including the nature of activities of the detenu on which the order is founded, for the purpose of confirming or cancelling the order till about six months after the making of the order and thus defeat the purpose behind the provisions for confirmation of the orders. The authority empowered to confirm or cancel such orders will fail in its duty to consider the propriety of the order made by an officer empowered by it within a reasonable time of the making of the order, an order which affects the fundamental right of a citizen with respect to his personal liberty.

It is also urged that sub-rr. (7) and (8) speak of the review of every detention order made by an officer empowered by a State Government or the Administrator and confirmed by it or him as the case may be and that therefore the further expression in these sub-rules referring to the intervals after which a reviewing authority is to review should be taken from the date of confirmation of the detention order and not from the date of the detention order. We do not agree. The use of the expression 'and confirmed' with respect to the detention order to be reviewed is merely descriptive of the order which is to be reviewed and has nothing to do with the further provision about the interval within which the detention order is to be reviewed. No question of reviewing an order which is not confirmed arises as, in that case, the order of the appropriate authority would be to cancel the detention order. It is only in cases where the detention order is confirmed by that authority that the question of a subsequent review at intervals of not more than six months arises.

The review is of the detention order and therefore the interval mentioned in sub-rr. (7) and (8) must relate to the interval between the making of the detention order and its review. It is to be noticed that the provisions of sub-rr.

(7), (8) and (9) provide for the review of detention orders at intervals of not more than six months. The Central or the State Government has not to confirm an order made by itself. Sub-rule (9) therefore does not use the expression 'and confirmed' which is used in connection with the detention order in sub-rr. (7) and (8). The provisions of sub-r. (9) therefore enjoin upon the Central or the State Government to review the detention order at intervals of not more than six months. The interval has to commence necessarily from the date of the detention order. It follows therefore that this common interval of 'not more than six months' for the review of the detention order should, in each case, be taken to refer to the interval between the making of the detention order and the 63 first review and, subsequently, to the intervals between dates of consecutive reviews. It is to be noted that there is no provision in the Defence of India Act or the rules framed there under which provides for the detention order to specify the period of detention. The detention order should not therefore be deemed to be for a period of six months in the first instance. When a reviewing authority reviews a detention order, it orders that the detention be continued and as there is no specific date when the original detention is to come to an end, the order of the reviewing authority justifies the further detention from the date of the order made by it for the continued detention of the detenu. The further orders on review for the continuation of the detention order would therefore be effective from the date of the orders and not after the expiry of the sixth month from the date of the detention order or from that of any subsequent review order.

We therefore hold that the review of a detention order madeby an officer empowered by the State Government or the Administrator is to be at intervals of not more than six months from the date of the detention order in the first instance and from the date of each subsequent order of the reviewing authority for the detention to continue.

Reference may now be made to the following observations in Biren Dutta v. The Chief Commissioner of Tripura,(1) where this Court had to consider whether a certain detention order had been reviewed in accordance with the provisions of r.

30A:

"It is necessary to emphasize that the decision recorded under r. 30A(8) is in the nature of an independent decision which authorises the further detention of the detenu for a period of six months. In other words, the initial order of detention is valid for six months and the detention of the detenu thereafter can be justified only if a decision is recorded under r. 30A(8)." These observations clearly indicate that the review order under r. 3OA(8) is to be within six months from the date of the initial order of detention which will not be valid after six months if no, order for the continued detention is made in accordance with 3OA(8).

We therefore hold that the detention of the petitioner under the detention order made by the District Magistrate, Delhi, on (1) Crl. Appeals. Nos. 87-91 of 1964 etc. decided on July 23, 1964 64 February 25, 1963, became illegal after the expiry of six months from that date as it had not been reviewed by the Administrator within that period as required by sub-r. (8) of r. 30A and, accordingly, direct that the petitioner be set at liberty at once.

Petition granted.

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