KARAMVIR Vs. STATE

JUDGEMENT

(1.) THIS is an application by one Karamvir Singh for a writ of habeas corpus against his detention in the Hazaribagh Central Jail under an order of the Governor dated 20-9-1952. He was arrested on 22-9-1952, and the grounds for his detention were served on him on 26-9-1952. The only contention urged before us on his behalf is that his detention is illegal, inasmuch as on account of the omission of the State Government to appoint one of the members of the Advisory Board as a Chairman, there was no proper Advisory Board constituted for considering his representation till 7-11-1952. In order to appreciate the substance behind, this contention, it is necessary to point out that the provision in the Preventive Detention Act (Act No. 4 of 1950) for the constitution of the Advisory Board was that the Board shall consist of two persons who are, or have been, or are qualified to be appointed as, Judges of a High Court. There was an amendment of Sub-section, (2) of Section 8 of the Act of 1950, which provided for the constitution of the Advisory Board, by Act No. 4 of 1951, and the result of this amendment was that the Board was to constitute of three persons, instead of two, no alteration having been made with regard to the qualification provided in the old Act for the appointment of the members of the Board. By Act 61 of 1951 another sub-section was added to Section 8 which runs as follows :

(2.) THE next question which arises is whether the detention can be regarded as valid in law because the reference was disposed of by the new Board with the Hon'ble Mr. Justice Ramaswami as its Chairman on 14-11-1952. THE learned Advocate General, though he made a passing reference to Article 22 of the Constitution of India, did not contend with any seriousness that the detention of this applicant should be held to be legal and valid, because the reference was disposed of by a validly constituted Board on 14-11-1952. What is required is that the appropriate Government has within thirty days from the date of detention to 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. This provision of law cannot be deemed to have been complied with in this case, inasmuch as the reference could be made only up till 22-10-1952 or 23-10-1952. It was not open to the Government to make the reference after the expiry of thirty days from the date of the detention, and because there was no valid Board constituted before 6-11-1952 there was no reference to a Board within thirty days from the date of the detention. THE reference was no doubt disposed of within ten weeks from the date of detention as required by Section 10, but the reference was not made within, thirty days from the date of detention as required by Section 9. It would not be sound to contend, and fortunately it has not been contended before us, that the detention would be valid for a period of three months irrespective of what was done in connection with the reference and that the detention should be held to be valid because the Advisory Board disposed of the reference on 14-11-1952 and reported that the detention was justified. THE reference being a reference to a Board which had not been validly constituted was no reference in the eye of law, and there can be no such argument in this case that the reference made on 13-10-1952 could be disposed of after 6-11-1952 when the Board had been constituted according to law, inasmuch as there was no compliance with Section 9, according to which the reference has to be made within thirty days from the date of detention. On account of non-compliance with Section 9 the detention has to be regarded as illegal and invalid. I do not think I should cite authorities to support the view that the detention cannot be regarded as proper and legal if the executive Government have not "cared to follow with extreme precision every step in the process which is to procure" that detention. Brett L. J. in the well known case of -- 'Dale's Case; and Enraght's Case' (1881) "6 QBD 376 (C) observed as follows :