BISWANATH AGARWALLA Vs. STATE

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution of India by Biswanath Agarwalla for issue of appropriate writ against the Government quashing an order of detention passed against him Under Section 3 of the Preventive Detention Act (Act IV of 1950) as amended by the Preventive Detention (Amendment) Act of 1951.

(2.) THE petitioner was detained mainly for smuggling rice and paddy from the cordoned, area in the district of Nowgong, The order of detention was passed and served on the petitioner on 8th August 1951 and his case was placed before the Advisory Board constituted under the Preventive Detention Act as amended. After the report from the Advisory Board -was received the Provincial Government acting Under Section 11 of the Preventive Detention Act (as amended) passed an order confirming the detention of the petitioner for an indeterminate period. His main ground for challenging the order of detention was that the Advisory Board was not properly constituted but subsequently he has added another ground by a fresh petition viz.: that the order of detention, for an indefinite period purporting to act under Section 11, Preventive Detention Act is bad in law.

(3.) I find no substance in the first plea of. the petitioner that the Advisory Board was not legally constituted. But with regard to the second point my view has been that the order of detention for an indefinite period at the time of confirmation as contemplated Under Section 11 of Act IV of 1951 is bad for the reasons I have stated fully in a previous decision of mine - -in - -'Hari Prosad Agarwalla v. The State: of Assam', Cri. Misc. Case No. 71 of 1951 (Assam), analogous to Criminal Misc Case No. 72 of 1951 - -'Kishenlal Dhanuka v. The State. I find support to my view from the decision of the Supreme Court in - -'Makhan Singh Tarsikka v. State of Punjab', Petn. No. 308 of 1951 (SC) the judgment of the Supreme Court being dated 10th December 1951. It has been held by their Lordships of the Supreme Court that the period' of detention should be determined by the appropriate Government after the report of the Advisory Board constituted Under Section 9 of the Preventive Detention Act approving the detention, is: received. In the words of His Lordship, Patanjali Sastri C. J. -