Abdul Latif
Abdul Wahab Sheikh Vs. B.K. Jha & Anr [1987] INSC 37 (9 February 1987)
Reddy,
O. Chinnappa (J) Reddy, O. Chinnappa (J) Khalid, V. (J)
CITATION:
1987 AIR 725 1987 SCR (2) 203 1987 SCC (2) 22 JT 1987 (1) 397 1987 SCALE (1)275
CITATOR
INFO : F 1989 SC1234 (14) R 1989 SC1812 (5)
ACT:
Gujarat
Prevention of Anti Social Activities Act, 1985, section 15-Preventive Detention
providing for successive detentions-Validity of--Whether the section be read
down so that it does not offend the mandate of Article 22(4) of the
Constitution--Procedural requirements stricts compliance of, reiterated.
HEAD NOTE:
Section
11 of the Gujarat Prevention of Anti Social Activities Act, 1985 stipulates
that in every case where a detention order has been made under the Act, the
State Government shall, within three weeks from the date of detention of a
person under the order, place before the Advisory Board constituted under s. 10
the grounds on which the order has been made the representation if any made by
the detenu and the report if any of the authorised officer. Under s. 15(2), the
expiry or revocation of an earlier detention order shall not bar the making of
a subsequent detention order under the Act against the same person, subject to
the proviso that if there were no fresh facts, the maximum period for which a
person may be detained shall not extend beyond the expiry of a period of 12
months from the date of detention under the earlier detention order.
While
the appellant was in Jail from November 12, 1985
onwards awaiting trial on a charge of murder he was acquitted on May 26, 1986. He was due for release from prison
on June 23, 1986. On that day, however, an order for
his detention was made under the provisions of the Gujarat Prevention of Anti
Social Activities Act, 1985. The period of three weeks stipulated by s. 11 of
the Act expired on July
14, 1986. Since there
was no Advisory Board in existence, the appellant was entitled to be released
on July 14, 1986 itself. But he was not so released.
However, during the pendency of the writ petition challenging the said
detention order in the High Court, the order of detention dated 23rd June, 1986
was revoked on 7th August, 1986 and a fresh order of detention was made on the
same facts on the same day with the result the earlier writ petition was
withdrawn and a fresh write petition came be filed. An Advisory Board was,
however constituted on August
18, 1986.
A
reference under s. 11 was made to the Advisory Board on 204 August 20, 1986 and the Advisory Board made its report
on September 6, 1986. The report of the Advisory Board
was more than three weeks after the detention which commenced on the making of
the order of detention though it was within three months from the second order
of the detention. The appellant contended, in the writ petition, that there has
been a contravention of the constitutional protection afforded to him by
Article 22(4). The writ petition having been dismissed, the Appellant has come
in appeal by Special Leave.
Allowing
the appeal, the Court,
HELD:
1. No law can be made providing for successive orders for detention in a manner
so as to render the protection of Article 22(4) of the Constitution
ineffective.
Section
15 of the Gujarat Prevention of Anti Social Activities Act, 1985 which provides
for the making of successive orders of detention must be read down so as to
bring it in conformity with Article 22(4) of the Constitution. If there is to
be a collision between Article 22(4) of the Constitution and s. 15 of the Act,
s. 15 has to yield. But by reading down the provision, the collision may be
avoided and s.
15 may
be sustained. So, avoiding the collision course, It must be held that if the
report of the Advisory Board is not made within three months of the date of
detention, the detention becomes illegal notwithstanding that it is within
three months from the date of he second order of detention.
[207C-F]
Shibapada Mukherjee v. State of West Bengal, [1974] 3 SCC 50; A.K. Roy v. Union of India, [1982] 1 SCC
271 and Talib Hussain v. State of Jammu & Kashmir, [1971] 3 SCC 118,
distinguished.
2. In
a Habeas Corpus proceeding, it is not a sufficient answer to say that the
procedural requirements of the Constitution and the Statute have been complied
with before the date of hearing and therefore, the detention should be upheld.
The procedural requirements are the only safeguards available to a detenu since
the court is not ,expected to go behind the subjective satisfaction of the
detaining authority. The procedural requirements are, therefore, to be strictly
complied with if any value is to be attached to the liberty of the subject and
the constitutional rights guaranteed to him in that regard. If a reference to
an Advisory Board is to be made within three weeks, it is no answer to say that
the reference, though not made within three weeks, was made before the hearing
of the case. If the report of the Advisory Board is to be obtained within three
months, it is no answer to say that the report, though not obtained within
three months, was obtained before the hearing of the .
205 case.
If the representation made by the detenu is required to be disposed of within a
stipulated period, it is no answer to say that the representation, though not
disposed of within three months, was disposed of before the hearing of the
case. [209B-F] OBSERVATION An order of detention should not have been made,
knowing full well that there was no Advisory Board in existence to whom a
reference could be made under the Act, and whose report could be obtained as
required by the Constitution.
Such a
casual and indifferent approach betrays a disregard for the rights of
citizens.]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 72 of 1987.
From
the Judgment and order dated 21.10.1986 of the Gujarat High Court in Spl. Crl.
Appeal No. 889 of 1986.
Ram Jethmalani,
Ms. Rani Jethmalani and A.K. Sharma for the Appellant.
T.U.
Mehta, M.N. Shroff and K.M.M. Khan for the Respondents.
The
Judgment of the Court was delivered by CHINNAPPA REDDY, J. We grant special
leave and proced to hear the apeal.
The
appellant, Abdul Latif Wahab Sheikh, was in jail from November 12, 1985 onwards awaiting trial on a charge
of murder. He was acquitted on May 26, 1986.
Though acquitted, he was not straightaway released from prison. The reasons are
not clear to us from the record. Presumably he was required in connection with
some other case. He was due for release from prison on June 23, 1986. On that day, however, an order for
his detention was made under the provisions of the Gujarat Prevention of Anti
Social Activities Act, 1985.
The
mandate of Art. 22(4) of the Constitution is that no law providing for
preventive detention shall authorise the detention of a person for a longer
period than three months unless an Advisory Board consisting of persons who
are, or have been, or are qualified to be appointed as, Judges of a High Court,
has reported before the expiration of the said 206 period of three months that
there is in its opinion sufficient cause for such detention. Section 10 of the
Gujarat Prevention of Anti Social Activities Act, 1985 provides for the
constitution of an Advisory Board, sec. 11 provides for reference to the
Advisory Board and sec. 12 prescribes the procedure to be followed by the
Advisory Board. What is important for the purposes of this case is that sec. 11
stipulates that in every case where a detention order has been made under the
Act, the State Government shall, within three weeks from the date of detention
of a person under the order, place before the Advisory Board the grounds on
which the order has been made, the representation, if any, made by the detenu
and the report, if any, of the authorised officer. What is intriguing in the
case is that on the date when the detention order was made, there was no
Advisory Board in existence to which a reference could be made under sec. 11 of
the Act and whose report of its opinion regarding sufficient cause for the
detention was required to be obtained within three months of the detention
under Art. 22(4) of the Constitution. The period of three weeks stipulated by
sec. 11 of the Act expired on July 14, 1986. The petitioner was entitled to be
released on July 14,
1986 as no reference
had been made to the Advisory Board within the period contemplated by sec. 11
of the Act. But he was not so released.
This
state of affairs continued till August 7, 1986 when the order of detention dated June 23, 1986 was revoked and a fresh order of
detention was made on the same facts on the same day. In the meanwhile, the
order of detention dated June
23, 1986 had been
challenged by filing a writ petition in the High Court. Consequent on the
revocation of that order that writ petition was withdrawn as having become infructuous
and another writ petition, out of which the present appeal arises, was filed
questioning the second order of detention dated August 7, 1986. The Advisory Board was constituted on August 18, 1986. Reference to the Advisory Board
was made on August 20,
1986. The Advisory
Board made its report on September
26, 1986. It will be
seen that the report of the Advisory Board was more than three weeks after the
detention which commenced on the making of the order of detention, though it
was within three months from the date of the second order of detention. The
learned counsel for the appellant contends that there has been a contravention
of the constitutional protection afforded by Art. 22(4) and therefore, the
appellant is entitled to be set at liberty. He does not dispute that under sec.
15(2) of the Gujarat Prevention of Anti Social Activities Act the expiry or
revocation of an earlier detention order shall not bar the making of a
subsequent detention order under the Act against the same person, subject to
the proviso that if there were no fresh facts, the maximum period for which a
person may be detained shall not extend beyond the expiry of 207 a period of 12
months from the date of detention under the earlier detention order. He submits
that this provision, if to be sustained, as constitutionally valid, must be
read down so that it does not offend the mandate of Art. 22(4) of the
Constitution that no law providing for preventive detention shall authorise the
detention of a person for a longer period than three months unless the Advisory
Board has reported within the period of three months that there is in its
opinion sufficient cause for such detention. On the other hand, the learned
counsel for the State of Gujarat submits that it is enough if the
report of the Advisory Board is obtained within three months of the subsequent
order of detention, where the earlier order is revoked and a subsequent order
is made.
The
real question for consideration is whether a law may be made providing for
successive orders for detention in a manner as to render the protection of Art.
22(4) of the Constitution ineffective? For example, can a fresh order of
detention be made every 89th day making it unnecessary to obtain the report of
the Advisory Board within three months of the detention? That is what it will
amount to if the submission of he learned counsel for the State is accepted.
It,
therefore, becomes imperative to read down sec. 15 of the Gujarat Prevention of
Anti Social Activities Act, 1985 which provides for the making of successive of
order of detention so as to bring it in conformity with Art. 22(4) of the
Constitution. If there is to be a collision between Art.
22(4)
of the Constitution and sec. 15 of the Act, sec. 15 has to yield. But by
reading down the provision, the collision may be avoided and sec. 15 may be
sustained. So, avoiding the collision course, we held that if the report of the
Advisory Board is not made within three months of the date of detention, the
detention becomes illegal notwithstanding that it is within three months from
the date of the second order of detention.
The
learned counsel for the petitioner invited our attention to the decision of the
court in Shibapada Mukherjee v. State of West Bengal, [1974] 3 SCC 50, where the court referring to clauses 4
and 7 of Art. 22 observed.
"It
is clear from clauses (4) and (7) of Article 22 that the policy of Article 22
is, except where there is a Central Act to the contrary passed under clause (7)
(a), to permit detention for a period of three months only, and detention in
excess of that period is permissible only in those cases where an Advisory
Board set up under the relevant statute, 208 has reported as to the sufficiency
of the cause for such detention. Obviously, the Constitution looks upon
preventive detention with disfavour and has permitted it only for a limited
period of three months without the intervention of an independent body with
persons on it of judicial qualifications of a high order. The facts that the
report of such an Advisory Board has to be obtained before the expiry of three
months from the date of detention shows that the maximum period within which
the detaining authority can on its own satisfaction detain a person is three
months The observation of the court to the extent that they go to support the
contention of the learned counsel for the appellant, but we must say that in
that case, the court was not confronted with the present situation at all. The
learned counsel for the State referred us to A.K. Roy v. Union of India, [1982]
1 SCC 271, where the court referring to an argument based on sec. 11(2) of the
National Security Act said:
"Section
11(2) of the Act provides specifically that the report of the Advisory Board
shall specify its opinion "as to whether or not there is sufficient cause
for the detention of the person concerned". This implies that the question
to which the Advisory Board has to apply its mind is whether on the date of its
report there is sufficient cause for the detention of the person. That inquiry
necessary involves the consideration of the question as to whether there was
sufficient cause for the detention of the person when the order of the
detention was passed, but we see no justification for extending the
jurisdiction of the Advisory Board to the consideration of the question as to
whether it is necessary to continue the detention of the person beyond the date
on which its report or beyond the period of three months after the date of
detention." The learned counsel for the State also invited our attention
to the decision of a learned single Judge of this Court, rendered during the vacation,
in Talib Hussain v. State of Jummu & Kashmir, [1971] 3 SCC 118, where he
observed:
"In
regard to the submission that the petitioner was arrested and deprived of his
person liberty long before the order of his arrest and this invalidated his
detention, it is 209 sufficient to point out that in habeas corpus proceeding
the Court has to consider the legality of the detention on the date of hearing.
'If on the date of hearing it cannot be said that the aggrieved party has been
wrongfully deprived of his personal liberty and his detention is contrary to
law a writ of habeas corpus cannot issue." Neither of the cases cited by
the learned counsel for the State deal with the question now at issue even in a
remote way. They do not have any application. We only desire to add that in a
habeas corpus proceeding, it is not a sufficient answer to say that the
procedural requirements of the Constitution and the statute have been complied
with before the date of hearing and therefore, the detention should be upheld.
The procedural requirements are the only safeguards available to a detenu since
the court is not expected to go behind the subjective satisfaction of the
detaining authority. The procedural requirements are, therefore, to be strictly
complied with if any value is to be attached to the liberty of the subject and
the constitutional rights guaranteed to him in that regard. If a reference to
an Advisory Board is to be made within three weeks, it is no answer to say that
the reference, though not made within three weeks, was made before the hearing
of the case. If the report of the advisory Board is to be obtained within three
months, it is no answer to say that the report though not obtained within three
months, was obtained before the hearing of the case. If the representation made
by the detenu is required to be disposed of within a stipulated period, it is
not answer to say that the representation, though not disposed of within three
months, was disposed of before the hearing of the case. We mentioned that we
were intrigued that an order of detention should have been made, knowing full
well that there was no Advisory Board in existence to whom a reference could be
made under the Act and whose report could be obtained as required by the
Constitution.
Such a
casual and indifferent approach betrays a disregard for the rights of citizens
and this has to be deprecated. We have no option but to allow the appeal and
quash the order of detention dated August 7, 1986. The petitioner is now on
parole. He need not surrender to his parole. In the view that we have taken, we
have refrained from referring to the other submissions of the learned counsel
for the appellant.
S.R.
Appeal allowed.
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