VISHNU PRASAD SHUKIA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The District Magistrate, Indore vide his order dated 17-1-1989 directed the detention of petitioner Vishnu Prasad Shukla, aged 45 years, r/o Benganga locality, Indore under subsection (2) of Section 3 read with sub-section (3) of the said Section of the National Security Act, 1980 on the ground that it was necessary to do so with a view to preventing him from acting in any manner prejudicial to the maintenance of pubic order. Pursuant to the said order, the petitioner was arrested on the same day i.e. 17-1-1989 and kept under detention in the District Jail at Indore. It is being aggrieved by his said detention under the provisions of the National Security Act that the petitioner has filed the present writ petition in this Court on various grounds.

(2.) In our opinion, as the petition deserves to be allowed to a preliminary ground it is not necessary to examine other grounds raised in it relating to the merits of the case. It is settled law that personal libertyT guaranteed under Article 21 of the Constitution being the greatest of human freedoms preventive detention provided in Article 22 of the Constitution has to be regarded as some thing of a necessary evil and has to survive strictly in accordance with the safeguarded whether substantive or procedural, prescribed by Clause (4) of the said Article and the relevant law like the National Security Act, 1980 made by the parliament under Clause (7) of the said Article. See. Kishori Mohan Bera v. The State of West Bengal. A.I.R.1972 S.C.1749, Shaik Hanif & ors. v. State of West Bengal. A.I.R. 1974 S.C. 679, Ichhudevi v. Union of India. A.I.R. 1980 S.C. 1983, Vijay Narain Singh v. State of Bihar. A.I.R.1981 S.C. 1334 and Ayya Alias Ayub v. State of UP., A.I.R. 1989 S.C.364. In the present case, as we shall presently see there has been a flagrant violation of one of the crucial constitutional and statutory safeguards as mentioned above and as such the continued detention of the petitioner under the detention order dated 17-1-89 passed by the District Magistrate cannot be sustained and he has to be set a liberty forthwith.

(3.) The scope of the crucial safeguards with which we are concerned in the present case can be best understood by reading the relevant provisions of Article 22 of the Constitution in Conjunction with Sections 10 to 12 of the National Security Act, 1980 i.e. the law enacted by the parliament under Clause (7) of the said Article. It is laid down in Sub-Clause (a) of Clause (4) of Article 22 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 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 period of three months that there is in its opinion sufficient cause for such detention. Clause (7) of Article 22 lays down that the parliament may by law Prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of Clause (4), (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under subclause (a) of Clause (4).