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Judgment
Arunachalam, J.—Petitioner Palani has been detained as a bootlegger under Tamil Nadu Act 14 of 1982, in pursuance of an order of
detention dated 26-2-1995, passed by the first respondent, District Magistrate and Collector, Dharmapuri, with a view to preventing him from
acting in any manner prejudicial to the maintenance of public order and health.
Though several contentions were urged by Mr.A.K.S.Thahir, Learned Counsel appearing on behalf of the petitioner, we do not deem it
necessary ''to list them out and consider them for, on a solitary and vital ground, this Habeas Corpus Petition will have to be allowed.
It was brought to our notice by Mr.Thahir that within seven weeks of the date of detention off the petitioner, the Advisory Board had not
submitted its report to the State Government, as mandated under S.11 of Tamil Nadu Act 14 of 1982. He pointed out that the order of detention
is dated 26-2-1995 and the petitioner was detained on and from 27-2-1995. The period of seven weeks from the date of detention, will expire on
16-4-1995. He also brought to out notice that the Advisory Board had held its deliberations on 30-3-1995.
Mr.I.Subramaniam, learned Additional Public Prosecutor, fairly stated that the Advisory Board had not submitted its report to the State
Government within seven weeks and the report was received only on 18-4-1995 after the expiry of the mandated period. Initially, the learned
Additional Public Prosecutor attempted to contend that on the mandate under Art.22(4) of the Constitution, all that is required, would be
confirmation of the order of detention within the three month''s period contemplated therein for, otherwise the order of detention would become
automatically invalid. The crux of his submission was that so long as the time-schedule was concerned, the Constitutional provision may have to be
looked into.
To accept this submission, we found it a bit difficult, since, on the basis of Constitutional mandate under Art.22(4), certain Constitutional
guarantees flow in favour of the detenu, and the time- schedule prescribed in several sections of Tamil Nadu Act 14 of 1982 take care of such
guarantees. We tested this proposition in the following manner. Suppose, the Advisory Board chooses to hold, that there was no sufficient material
to detain any particular detenu and such communication is not submitted within seven weeks, what would be the result? There is no doubt that the
State Government has no option, but to revoke the order of detention on the basis of the opinion tendered by the Advisory Board, but, yet, they
may have to pass the necessary Government Order on the basis of the opinion tendered by the Advisory Board. Suppose its opinion is delayed
and not submitted within seven weeks, obviously the detenu concerned must be deemed to be incarcerated illegally, Further, S.1Q of the Act
mandates that the State Government, shall, within three weeks of the date of detention of a person under the order, place before the Advisory
Board the grounds etc. Can it be stated by the State Government that three months time is the mandate under the Constitution and even if the
provisions of S.10 of the Act do not stand complied with within three weeks, no harm can flow, so long as the order of detention stands confirmed
on the opinion of the Advisory Board, before the expiry of three months? It will not be possible to draw a line of demarcation, that in cases where
the Advisory Board holds in favour of the detenu, a communication will have to Be submitted within seven weeks and in other cases, even if such a
report is submitted after seven weeks, it cannot make any difference. The object underlying the preventive law is that the detenu are kept in prison
without trial and therefore the legal mandates will have to be strictly complied with. On the basis of the time prescribed under Art.22(4), it was
deemed necessary, mat Preventive Acts must contain specific time-frame for performance of duties contemplated therein, so that ultimately the
State Government will still have some little time left to act on the orders passed by the Advisory Board within the time-frame contemplated under
the Constitution. Anyhow, no further discussion will be needed, since we have two decisions of the Supreme Court on this point.
In Shri Mritunjoy Pramanik Vs. The State of W.B., the Supreme Court stated as hereunder:
Counsel for the petitioner raised several grounds challenging the validity of the detention order and supporting the prayer of the petitioner for
release from custody. I think it necessary only to deal with me arguments of counsel in respect of the failure of the Advisory Board to submit its
report to the Government within the time prescribed by Section 11 of the Act and the delay in the consideration and disposal of the representation
of the petitioner by the State Government
S.11 of the Act enjoins mat the Advisory Board shall, after considering the materials placed before it, submit its report to the appropriate
Government within ten weeks from the date of detention. In this case the date of detention was November 10, 1971, the Advisory Board
submitted its report only on January 20, 1972. The report was not submitted to the Government within the 10 weeks as enjoined by the Section.
There is no dispute in the instant case that the report of the Advisory Board was not submitted within seven weeks from the date of detention. The
law laid down, by the Supreme Court in the aforestated case, will squarely stand attracted.
In Ashok Kumar Binny Vs. State of Jammu and Kashmir and Others, , in a similar situation arising out of detention under Jammu and Kashmir
Public Safety Act (6 of 1978), the Supreme Court stated as hereunder:
Thereafter, sub-Section (1) of Section 16 provides that the Advisory Board, after considering the material before it and such further material as it
may deem necessary and after hearing the person concerned, shall ''submit its report to the Government within eight weeks from the date of
detention''. The obligation placed on the Advisory Board to submit its report within the prescribed period must be construed strictly inasmuch as
the personal liberty of a person is involved and having regard to the emphasis which the Constitution has placed, and which emphasis is reflected in
the Act, on the necessity of expeditiously determining whether the detention of the person concerned should be continued.
We are satisfied that on the solitary ground, urged, it must be held that further detention of the petitioner is invalid.
Impugned order of detention shall stand set aside. The petitioner is directed to be set at liberty forthwith unless his detention is otherwise
required. This Habeas Corpus Petition is allowed.