NARAYAN SAHA Vs. THE STATE

JUDGEMENT

(1.) THIS petition is under Article 226 of the Constitution of India. The petitioner has questioned the validity of his detention and has prayed for his release.

(2.) HIS case is that he has been in detention since 28th August 1951 in Nowgong Jail. The order of detention in his case was confirmed on the recommendation of the Advisory Board on 25th September 1951. The Advisory Board, it is alleged, was constituted by a Notification of the Government dated 11th April 1950 which was under Section 8, Preventive Detention Act, 1950. He contends that the Board, which examined his case, was not validly constituted, since the Act of 1950 was amended subsequently, and the Board constituted under the Act of 1950 could not function after the Act was amended.

(3.) THERE is, however, another point which has to be noticed in this case. The order of detention dated 8 -8 -1951 was confirmed by the Government acting on the recommendation of the Advisory Board in the exercise of the powers conferred by Section 11, Sub -section (1), Preventive Detention Act of 1950 as amended. In the order of the confirmation no period of detention is mentioned. The learned C. J. and my learned brother Deka J. both, sitting singly, have come to the conclusion that any order of the appropriate Government which confirms the detention of a person without fixing a definite period for which the detention is to continue does not comply with the provisions contained in Section 11 of the Amended Act and the failure to comply with the provisions contained therein entitles the person detained to his release. My learned brother Deka J. regarded such order as bad in law and able to be set aside as being not in keeping with the provisions of the law and also on the ground of its being opposed to the principles of natural justice.' The learned Chief Justice in his order in criminal Misc. case No. 5 of 1952 has relied on certain observations of Patanjali Sastri C. J. made in Makhan Singh v. State of Punjab in support of the view that found favour with him.