Sher Mohammad @ Seru Vs. The State Of
West Bengal  INSC 1 (8 January 1975)
SARKARIA, RANJIT SINGH
CITATION: 1975 AIR 2049 1975 SCR (3) 154 1975
SCC (2) 2
Maintenance of Internal Security Act (26 of
1971), s. 3(4)- Communication of District Magistrate's order by State
Government to Central Government before approval by State Government-If
sufficient compliance with statutory requirement.
Section 3 of the Maintenance of Internal
Security Act, 1971, indicates that the State Government may directly issue an
order of detention or, if it is done by a lesser authority, approve of such
detention order as provided. Section 3(4) obligates the State Government to
communicate, within 7 days of the order of detention it makes or approves that
fact to the Central Government, together with the grounds and other relevant
particulars. The procedural mandate is inviolable except on peril of the order
In the present case, the order of detention
was made by the Dt. Magistrate on November 21, 1972 and the order was approved
by the State Government on December 2, 1972. The order was however communicated
to the Central Government on December 1, 1972.
HELD : There was no strict compliance with
statutory formalities and since there has been ail infringement of the
procedural safeguard, the order of detention is invalid.
[155H-156A] (a) The communication to the
Central Government by the State Government of its approval was not within 7
days after its approval, as required by s. 3(4), because, the approval by the
State Government was only a day after the communication to the Central
Government. [155G] (b)If what is communicated is only the order of the District
Magistrate, this was not sufficient compliance with the statutory requirement,
and it further was also beyond the 7 days' period [155 G-H]
ORIGINAL JURISDICTION: Writ Petition No. 522
Petition under Article 32 of the Constitution.
H. S. Marwah for the petitioner.
S. C. Majumdar, G. S. Chatterjee and Sukumar
Basu for the respondent.
KRISHNA IYER, J. The detenu petitioner,
challenges his detention on various rounds but Shri H. S. Marwah, appearing as
amicus curiae, has raised big contentions and small, some of which do not merit
consideration and others need not be dealt with since, on a short point, the
petition must succeed.
The scheme of the Maintenance of Internal
Security Act, 1971 (Act No. 26 of 1971) (hereinafter called the MISA, for
short) is in keeping with Art. 27 of the Constitution and emphasizes the
various stages at which there will be consideration of the need for the
detention by different authorities, such as the District Magistrate, the State
Government and, ultimately, the Central Government. For the effective exercise
of this power a scheme has been built into the statute.
15 5 We are concerned at present with the
power to direct release of the detenu. We may extract the provision here :
14(1) Without prejudice to the provisions of
section 21 of the General Clauses Act, 1897, a detention order may, at any
time, he revoked or modified= (b)notwithstanding that the order has been made by
a State Government, by the Central Government.", With a view to posting
the Central Government with the detention and the grounds t here fore, s. 3(4)
provides thus :
"3. Power to make orders detaining
(4)When any order is made or approved by the
State Government Under this section, 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."
(emphasis, ours) A fair reading of s. 3 indicates that the State Government may
directly issue an order of detention or, if it is done by a lesser authority,
approve of such detention order as provided in the statute. Sub-s. (4) of s. 3,
which we have extracted, obligates the State Government to communicate, within
seven days of the order of detention it makes or it approves, that fact to the
Central Government, together with the grounds on which the order has been made
and other relevant particulars. Even assuming that the order is made by the
District Magistrate and is approved by the State Government, the communication
has to be made to the Central Government within the time specified. This procedural
mandate is inviolable except on peril of the order being voided.
In the present case it is obvious that the
detention order was made on November 21, 1972 by the District Magistrate and
approved by the State Government on December 2, 1972. It is curious that on the
State's own showing the communication to the Central Government in compliance
with s. 3(4) of the MISA has been made on December 1, 1972. This date is beyond
seven days of the District Magistrate's order and it could not have been in
compliance with the seven days' spell after the approval by the State
Government, that having been done only a day after the alleged communication to
the Central Government. It is thus plain that the State Government before the
approval itself was made. Secondly, if what it communicated was the order of
the District Magistrate, it, was not sufficient compliance with the statutory
requirement. Moreover, it was beyond the seven, days' period.
156 In short, there has been an infringement
of the procedural safeguard. This has, in several rulings, held that the
liberty of the citien is a priceless freedom, sedulously secured by the
Constitution. Even so, during times of emergency, in compliance with the
provisions of the Constitution, the said freedom may be curtailed, but only in
strict compliance with statutory formalities which are the vigilant concern of
the Courts to enforce.
We have pointed out how in the present case
there has been a failure on the part of the State Government to comply with
s.3(4). Judicial engineering prevents breaches of constitutional dykes
protecting fundamental freedoms.
The order of detention is invalid and the
detenu is liable to be ,released. The rule is made absolute.
V. P. S. .....