DHANVEL Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) In this petition under Article 226 of the Constitution, the petitioner has prayed for direction to the respondent to release his wife, one Rani, detained in the Central Prison, Madras, pursuant to detention order No.171 of 1981 dated 14.8.1984 under section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bottleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act (Tamil Nadu Act 14 of 1982) (hereinafter referred to as the Act). By that order, the Commissioner of Police directed the said Rani (hereinafter referred to as the detenu) to be detained and kept in the Central Prison, Madras, on the ground that she is a bootlegger and it was necessary to detain her under the Act with a view to prevent her from acting in any manner prejudicial to the maintenance of public Order.

(2.) The main contention of the learned Counsel for the petitioner relates to the constitutional validity of the detention for a period longer than three months. Tamil Nadu Act 14 of 1982 received the assent of the President on the 12th March, 1982 and was published in the Tamil Nadu Gazette on 13th March, 1982. Under section 3, the State Government may, if satisfied with respect to any bootlegger that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. Section 8 requires that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government. Section 9 deals with the Constitution of Advisory Board and section 10 requires that the State Government shall, within three weeks from the date of detention, place before the Advisory Board the grounds on which the order has been made and the representation, if any, made by the person affected by the order. Section 11 deals with the procedure to be followed by the Advisory Board and, section 12 deals with the action to be taken on the report of the Advisory Board. It states that in any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the State Government may confirm the detention order and continue the detention of the person concerned for such period not exceeding the maximum period specified in section 13, as they think fit. Section 13 prescribes the maximum period for which any person may be detained as twelve months from the date of detention.

(3.) The contention of the learned Counsel for the petitioner is that the Parliament is bound to prescribe the maximum period of detention under Article 22(7) of the Constitution and the. procedure to be followed by the Advisory Board and until such a law has been made by the Parliament, no person can be detained under any law providing for preventive detention for a period longer than three months and such detention beyond that period would be violative of Article 22(4) of the Constitution. In this connection, the learned Counsel for the petitioner relied on some of the observations in the dissenting Judgment in Fagu Shaw v. State of West Bengal, (1974) Crl.L.J. 486: (1974) S.C.C. (Crl.) 316: (1974) 4 S.C.C. 152: A.I.R. 1974 S.C. 613. The question for consideration in that case was, whether it is obligatory on the Parliament to prescribe the maximum period of detention under Clause 7(b) of Article 22 if the detention is to be made for a longer period than 3 months under sub-clause (a) of clause (4). In the dissenting judgments, the learned Judges held: the making of a law by Parliament under sub-clause (b) of clause 7 is obligatory if the detention period is for a period longer than three months. It was stated that apparently the power to prescribe a maximum period given to the Parliament is to prevent the State Legislatures from making laws with regard to preventive detention without any maximum limit. However, the majority decision in that case itself was contrary to this contention of the petitioner. In that case, the legality of an order made under section 12(2) of the Maintenance of Internal Security Act, 1971 by the Government of West Bengal was questioned on almost all identical grounds raised in this writ petition. After referring to the earlier Judgments and the provisions of Articles 22 (4) and (7) and Entry 3 of List III and Entry 9 of List I, the majority held: "Under Entry 3 of List III of the Seventh Schedule, both Parliament and State Legislatures have plenary power to pass laws for preventive detention as respects the subjects sanctioned therein. As ancillary to that power, or, as an inseparable part of it, Parliament and State Legislatures have power to fix the period of detention also. One cannot imagine a power to pass a law for detention unless that power carries with it the incidental power to provide for the period of such detention. Therefore, both Parliament and State Legislature have power under the entry to provide for detention of a person for a specified period. The purpose of Article 22(4)(a) is to put a curb on that power by providing that no law shall authorise the detention of a person for a period exceeding three months unless an Advisory Board has reported within the period of three months that there is sufficient cause for detention. And, what the proviso means is that even if the Advisory Board has reported before the expiration of three months that there is sufficient cause for detention, the period of detention beyond three months shall not exceed the maximum period that might be fixed by any Jaw made by Parliament under Article 22(7)(b). The proviso cannot mean that even if Parliament does not pass a law fixing the maximum period under Article 22(7)(b), the State Legislatures, for example, cannot pass a law which provides for detention of a person beyond three months. The period of such detention, viz., detention beyond the period of three months, would then be a matter within the plenary power of Parliament or State Legislatures, as the case may be, as such a power is incidental to the power to pass a law with respect to the topics covered by Entry 3 of List III." They further observed that the proviso in effect says that if Parliament fixes the maximum period under Article 22(7)(b), the power of Parliament and State Legislatures to fix the period of detention in a law passed under the entry would be curtailed to that extent. The Supreme Court further observed: