JITENDRA MOHAN SAHA Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) THE detenu Sricharan Saha was put to preventive detention by the District Magistrate, West Dinajpur in exercise of his powers under Section 3 (1) (2) of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the said Act) under an order dated July 6, 1975. He was so detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. Detention rests on a ground which, in our opinion, is quite germane to the object of detention but it will not be necessary for us to refer to the said ground as the impugned detention fails on the failure of the detaining authority to comply with the mandatory provisions of Section 8 of the Act which invalidates the detention. It is the validity of such detention which is the subject -matter of challenge in this Rule obtained by the detenu/petitioner on a writ petition.

(2.) THE Rule is being contested by the respondents and Mr. Basu, the learned Counsel for the State has produced before us the original records from the Home file. On the records so produced, there is no dispute as to certain facts. Although the order of detention was passed on July 6, 1975, the grounds for the detention was not drawn up contemporaneously. The order was executed and the detenu was taken into custody on July 7, 1975. The grounds for detention were drawn up and signed by the detaining authority on July 10, 1975, that is, well within 5 days from the date of the order and date of detention. Unfortunately, however, the admitted position is that such grounds were not communicated to the detenu prior to July 16, 1975, on which date for the first time, the grounds were served on the detenu in jail. Therefore, on these facts it is well established that the grounds were not served on the detenu within 5 days from the date of detention as enjoined by Section 8 (1) of the said Act.

(3.) ON the provisions of Section 8 (1) as above it is obligatory on the part of the detaining authority to communicate the grounds on which the detention rests within 5 days from the date of detention except in exceptional cases where due to exceptional circumstances the time schedule cannot be maintained and such circumstances are brought on record by recording of reasons for non -fulfilment of the time schedule. Except for the exceptional cases, therefore, communication of the grounds to the detenu within 5 days is a mandatory obligation which has got to be fulfilled and the infringement thereof would invalidate the detention. Provision for such communication of grounds is one of the statutory safeguards available to persons who have been deprived of their liberty without trial and as such strict compliance thereof would always be enforced. Maintenance of time schedule so prescribed is, therefore, obligatory and admits of no relaxation except to the extent and subject to such conditions as prescribed by Section 10 itself (See Sk. Salim v. State : [1975]3SCR394 .)