{"id":189676,"date":"1971-12-07T00:00:00","date_gmt":"1971-12-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/deb-sadhan-roy-vs-state-of-west-bengal-on-7-december-1971"},"modified":"2018-04-07T16:45:13","modified_gmt":"2018-04-07T11:15:13","slug":"deb-sadhan-roy-vs-state-of-west-bengal-on-7-december-1971","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/deb-sadhan-roy-vs-state-of-west-bengal-on-7-december-1971","title":{"rendered":"Deb Sadhan Roy vs State Of West Bengal on 7 December, 1971"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Deb Sadhan Roy vs State Of West Bengal on 7 December, 1971<\/div>\n
Equivalent citations: 1973 AIR 1331, \t\t 1973 SCR (3) 691<\/div>\n
Author: P J Reddy<\/div>\n
Bench: Reddy, P. Jaganmohan<\/div>\n
           PETITIONER:\nDEB SADHAN ROY\n\n\tVs.\n\nRESPONDENT:\nSTATE OF WEST BENGAL\n\nDATE OF JUDGMENT07\/12\/1971\n\nBENCH:\nREDDY, P. JAGANMOHAN\nBENCH:\nREDDY, P. JAGANMOHAN\nPALEKAR, D.G.\n\nCITATION:\n 1973 AIR 1331\t\t  1973 SCR  (3) 691\n CITATOR INFO :\n D\t    1974 SC2337\t (15)\n\n\nACT:\nWest   Bengal  (Prevention  of\tUnlawful   Activities)\t Act\n1970--confirmation  of Advisory Board's\t recommendation\t for\ndetention   beyond  three  months  under  s.  12  by   State\nGovernment--Confirmation  must\tbe within  three  months  of\ndetention--Must\t be  in\t writing--Must\tbe  communicated  to\ndetenu within reasonable time--Grounds of detention  whether\nvague  because they did not mention names of  associates  of\npetitioner  in the acts alleged against him--Disturbance  of\npublic order in s. 3(2)(c)---What amounts to.\n\n\n\nHEADNOTE:\nThe   petitioner  was  arrested\t on  January  29,  1971\t  in\npursuance--of a detention order dated January 16, 1971 under\nthe West Bengal (Prevention of Violent Activities) Act 1970.\nThe  State  Government's  order\t under\ts.  12\tof  the\t Act\nconfirming  the\t report of the Advisory\t Board\trecommending\ndetention of the petitioner for more than three months\t'was\npassed\ton  April  4, 1971 The order  of  configuration\t was\ncommunicate  to the petitioner on August 26. 1971.   In\t his\npetition  under Art. 32 of the Constitution the\t petitioner\nurged; (i) that the order of confirmation under s. 12 should\nnot only have been passed within three months of the  deten-\ntion  but  also communicated to the petitioner\twithin\tthat\nperiod; (ii) the grounds of detention were vague; (iii) that\nthe  facts alleged did not amount to disturbance  of  public\norder.\nHELD  :\t (i)(a)\t The confirmation. of  the  opinion  of\t the\nAdvisor Board to continue the detention beyond three  months\nmust  be within threes months from the date of detention  in\nconformity  with  the mandate in el. (4) of Art. 22  of\t the\nConstitution (Reasons discussed. [794 D]\nDattatraya  Moreshwar Pangarkar v. The State of\t Bombay,.  &\nOrs.,<\/a> [1952] S.C.R. 612, distinguished.\nKaur  Singh  v. The State, A.I.R. 1952, Pepsu  134,  Dhadhal\nKanthad\t Valeg\tv. Saurashtra State A.I.R.  1953  Sau.\t Umd\nSingh  Narubho\tv.  Stale, A.I.R. 1953,\t San.  51,  Sangapua\nMallappa  Kodi & Ors. v. The State of Mysore & Ors.,  A.I.R.\n1959, Mysore 7, Aswini Kumar Banerjee, v. The State &  Ors.,\n1970-71 (Col.  LXXV) Calcutta Weekly Notes-866, approved and\napplied.\n(b)The\tconfirmation  cannot  purely be a  mental  act.\t a\nsubjective  one\t but  must result in  an  objective  action,\nnamely, that it should be recorded in writing [795 C-D]\nFurther, though there is no provision in the Act an order of\nconfirmation,  which has the effect of extending the  period\nof  detention beyond the mandatory period of  three  months,\nmust  be made known to the detenu.  There is no\t warrant  or\njustification  for such an order remaining in the  files  of\nthe  executive\twithout the same being communicated  to\t the\nperson\tmost  concerned-the detenu-whose freedom.  has\tbeen\nobjected to jeopardy.  He is entitled to know that the Board\nhave considered his representation, as well as his  personal\nsubmissions  if he has chosen to appear before it. and\tthat\nit  had been found that there was sufficient cause  for\t his\ndetention and that the State Government had agreed with\t it.\nThe cow-\n788\nwithin a reasonable time.  The effect of  non-communication,\nhowever,  may  be an irregularity which does  not  make\t the\ndetention otherwise legal, illegal [795 D-796 C]\nMohammad  Afzal\t Khan v. State of Jammu\t &  Kashmir,<\/a>  [1957]\nS.C.R.\t63, Achhar Singh v. State of Punjab, Petn.  No.\t 359\nof  1951-decided on 22-11-1951, Biren Dutta & Ois. v.  Chief\nCommissioner  of  Tripura & Another,<\/a> [1964]  8\tS.C.R.\t295,\nreferred to.\nIn  the present case the order of confirmation by the  State\nGovernment  was\t made within three months of  the  order  of\ndetention.   Although  the communication to the\t detenu\t was\nafter three months he was not shown to have been  prejudiced\nby it. [796 D]\n(ii)  There was no validity in the  petitioner's  contention\nthat the  grounds of detention were vague because  the names\nof  his associates were not supplied.  It was not  necessary\nfor  the petitioner to make an effective  representation  to\nspecify his associates because they may not have been  known\n[797 E]\n(iii) In this case what is said to have been defiled by\t the\npetitioner and his associates is the statute of Rabindranath\nTagore, a poet and sage Venerated by all in this country and\naffords sufficient ground for detention.  The other  grounds\nalso  directly\tconnected the act with\tthe  disturbance  of\npublic\torder within the meaning of s. 3(2)(c) of  the\tAct.\n[798 F]\nState\tof  West  Bengal v. Ashok Dey and  Ors.<\/a>\t etc.,\tCrl.\nAppeal\tNos. 217 to 233 of 1971-decided\t    on\t 19-11-1971,\nMadhu Limaye v. Sub Divisional Magistrate Monghyr and others<\/a>\n[1970] 3 S.C.R. 764  Dr. Ram Manohar Lohia v. State of Bihar\nand Ors,. [1966] 1 S.C.R 709, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION : Writ Petition No. 218 of 1971..
\nUnder Art. 32 of the Constitution of India for a writ in the
\nnature of habeas corpus)
\nS. K. Mehta, for the petitioner.\n<\/p>\n
D.N.  Mukherjee, G. S. Chatterjee and Sukumar  Basu,  for
\nthe respondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nP.Jaganmhan  Reddy  J.\tThis petition  under  Article  32
\nchallenges  the detention under the West Bengal\t (Prevention
\nof  Violent Activities) Act, 1970 (hereinafter\tcalled\t‘the
\nAct’)’.\t  It  may  be mentioned that  this  and\t other\tWrit
\nPetitions were adjourned till the decision of this Court  on
\nthe validity and vires of the Act which has now been decided
\nin the State of West Betir gal v Ashok Dey & Ors. etc.etc(1)
\nIn  that case it, has been held that the provisions  of\t the
\nAct   do  not  contravene  any\tof  the\t mandates   of\t the
\nConstitution, as such this Petition and the others which had
\nstood over till that decision have come up for consideration
\nas to whether the detention ire legal.\n<\/p>\n
789<\/span><\/p>\n
In this and other petitions three main contentions have been
\nurged on behalf of the respective petitioners by Shri S.  K.
\nMehta who is assisting us as Amicus Curiae.  They are :\t (i)
\nWhether\t the  mandatory\t provisions of the,  Act  have\tbeen
\ncomplied  with; (ii) whether the grounds are  irrelevant  or
\nvague  and (iii) whether the State Government has  confirmed
\nthe opinion of the Advisory Board that there was  sufficient
\ncause  for detaining them within three months from the\tdate
\nof  the\t detention  and whether\t the  communication  to\t the
\ndetenue has been made within that period.\n<\/p>\n
We  shall give the dates of relevant steps taken in  respect
\nof  each  of  the detenues but before we do so\tit  will  be
\nconvenient  to deal with the legal submissions in the  light
\nof which the facts of each case can be better appreciated.
\nThe mandatory requirements under the Act are that the  order
\nof detention must be passed by the detaining authority, that
\nit  should be forthwith communicated under sub-sec.  (4)  of
\nSection 1 to the State Government together with the  grounds
\nof detention.  It is provided by Section 8 that the  grounds
\nof  detention  must be served on the detenue within  5\tdays
\nfrom  the date of detention, that these must be approved  by
\nthe  State  Government\twithin 12 days from  that  date\t and
\nthereafter as soon as may be a report of this fact  together
\nwith  grounds and other particulars on which the  order\t has
\nbeen  made  should be made to the Central  Government  under
\nclause (5) of Section 3 and that under Section 10 the  State
\nGovernment is required to place within 30 days from the date
\nof  detention before the Advisory Board (hereinafter  called
\n‘the  Board’)  constituted under Section 9, the\t grounds  of
\ndetention, the representation of the detenue, if any,  along
\nwith  the report made in case of a detention by\t an  officer
\nspecified  in  sub-sec. (3) of Section 3. Thereafter  it  is
\nincumbent on the Advisory Board after hearing the detenue in
\nperson,\t if  he so desires, to report the  State  Government
\nunder Section 11 its opinion within ten weeks from the\tdate
\nof detention, as to whether or not there is sufficient cause
\nfor the detention of the person concerned.  Under Section 12
\nwhere the Board is of opinion that there is sufficient cause
\nfor detention of a person, the State Government may  confirm
\nthe detention order and continue the detention of the person
\nconcerned  for\tsuch period as it thinks fit.  In  case\t the
\nopinion\t of the Board is that there is no  sufficient  cause
\nfor   detention\t the  State  Government\t shall\trevoke\t the
\ndetention  order  and  cause  the  person  to  be   released
\nforthwith.   The maximum period for which any person may  be
\ndetained- in pursuance of any detention order which has been
\nconfirmed shall under Section 13, be twelve months from\t the
\ndate of detention, but the State Government can within\tthat
\nperiod\tnotwithstanding that the order has been made  by  an
\nofficer specified in sub-section (3) of
\n790<\/span>
\nSection\t 3  revoke or modify the order of  detention,  which
\nhowever,  does\tnot preclude it from making  a\tfresh  order
\nunder  Section\t3 against the same person in  a\t case  where
\nfresh facts come into existence after the date of revocation
\nor  expiry  provided  either the  State\t Government  or\t the
\nofficer specified in subSection (3) of Section 3 as the case
\nmay be considers that such an order should be made.
\nThe  learned Advocate for the Petitioner contends  that\t the
\nState Government must confirm the opinion of the Board\tthat
\nthere  is  sufficient cause for the detention  within  three
\nmonths\tfrom  the  date of detention  and  the\tconfirmation
\nshould\talso  be  communicated to  the\tdetenu\twithin\tthat
\nperiod.\t  This\tsubmission is based on the  analogy  of\t the
\nrequirement  of sub. sec. (2) of Section 12 where the  State
\nGovernment  on\treceipt of the opinion from the\t Board\tthat
\nthere is no sufficient cause for the detention has to revoke
\nthe  order and direct the release of the detenue  forthwith,
\nwhich  implies\tthat the State Government should  apply\t its
\nmind  immediately as soon as a report is received  from\t the
\nBoard  irrespective  of\t whether in  its  opinion  there  is
\nsufficient  cause  or  not for\tthe  detention.\t  The  State
\nGovernment  he\tsays has therefore to make up  its  mind  to
\nconfirm\t the  opinion  and extend the  period  of  detention
\nimmediately  after the receipt of the report from the  Board
\nwhich  under the provisions of the Act has to be  within  10
\nweeks  from the date of detention and in any case not  later
\nthan  three  months.  On behalf of the State however  it  is
\nstrenuously  contended\tthat there is no  warrant  for\tthis
\nsubmission  as neither the Act nor clause (4) of Article  22
\nof the Constitution enjoins on the State Government the duty
\nto confirm the Board’s report within three months much\tless
\nthe  duty to communicate such confirmation to  the  detenue.
\nRelying\t on  the  decision  of\tthis  Court  in\t  Dattatraya
\nMoreshwar  Pangarkar  v. The State of Bombay  &\t Ors.<\/a>(1)  he
\nsubmits that all that is required is for the Board to submit
\nits  report  within three months and  thereafter  the  State
\nGovernment  may\t confirm the opinion and extend\t the  period
\nwithin a reasonable time.\n<\/p>\n
It may be pertinent to refer to clause (4) of Article 22  of
\nthe Constitution under which no law providing for Preventive
\nDetention  shall authorise the detention of a person  for  a
\nlonger period than three months unless a Board consisting of
\npersons\t who  have  or\thave been or  are  qualified  to  be
\nappointed as Judges of the High Court, as referred to above,
\nhas  reported  within  three months that  there\t is  in\t its
\nopinion sufficient cause for such detention.  It is  evident
\nfrom this provision that a law for Preventive Detention upto
\nthree  months  can be made under clause (4) subject  to\t the
\nlimitation contained in clauses (5) to (7) of the
\n(1)  [1952] S.C.R. 612.\n<\/p>\n
791<\/span><\/p>\n
Article.  If a longer period of detention is to be  provided
\nfor  the  law  must  subject to\t clauses  (5)  to  (7)\tmake
\nprovision  for a reference to a Board as provided in  clause
\n(4) and for it to report on the sufficiency or otherwise  of
\nthe  detention which should be within three months from\t the
\ndate  of  determined.\tThis  requirement  however  is\t not
\ninsisted upon in cases where a law is made under  sub-clause\n<\/p>\n
(a)  of clause (7) of the said Article.\t In cases where\t the
\nlaw provides for a reference to the Board or the receipt  of
\nits  affirmative opinion the initial detention is only\tten-
\ntative for three months and only when the Board reports that
\nthere  is  sufficient  cause  for  the\tdetention  that\t the
\nquestion of confinnation and extension of the period  beyond
\nthree  months will arise. The mere fact that the  provision
\nof a law under Article 22(4) requires a reference to be made
\nto the Board within a particular period or for the Board  to
\nmake  its  report by a specified time is  not  enough.\t The
\nState  Government has to take action only after a report  is
\nreceived  from\tthe Board expressing its opinion as  to\t the
\nsufficiency  or otherwise of the detention.  If the  opinion
\nof  the\t Board that there is sufficient\t cause\tis  received
\nafter three months from the detention the detention will  be
\nillegal as it is a contravention of the mandatory  provision
\nof clause (4).\tIn cases where the report is received within
\nthree months that there is no sufficient cause for detention
\nbut  no action is taken thereon by the State  Government  to
\nrelease\t the detenue or where its opinion is that  there  is
\nsufficient  cause,  the\t detenue  is  neither  automatically
\nreleased nor is the period of his detention extended.  It is
\ntherefore  a  crucial  requirement  of\tthe   Constitutional
\nprovision that the appropriate Government has to take action
\non  the\t report\t of the Board, because as we  said  on\tthat
\naction\twould  depend the revocation of the  order  and\t his
\nrelease\t or  the continuance of the detention  beyond  three
\nmonths.\t  In other words even where the Board is of  opinion
\nthat  there is sufficient cause the State Government is\t not
\nbound to confirm that opinion.\tIt can notwithstanding\tthat
\nopinion\t revoke\t the order.  No doubt such a  power  can  be
\nexercised even after the confirmation of the order but\tthat
\nis not to deny the State Government the power to revoke\t the
\norder  even before confirming it.  Viewed from any angle  it
\nis  essential  that the appropriate Government\tshould\ttake
\npositive-  action  on the report of the Board  which  action
\nalone  determines whether the detention is to be  terminated
\nor  continued.\tIt would therefore prima facie\tappear\tthat
\naction should be taken immediately after the receipt of\t the
\nopinion of the Board or at any rate within three months from
\nthe date a person is detained.\tIt is for this reason  after
\nthe  Constitution every legislation dealing with  Preventive
\nDetention  has made specific provision for confirmation\t and
\ncontinuance  of\t detention  in view  of\t the  Constitutional
\nmandate contained in Article 22(4).  A period
\n792<\/span>
\nwithin\twhich  the  appropriate Government  has\t to  make  a
\nreference  to the Board, the period within which  the  Board
\nhas  to make a report on the sufficiency of the\t ground\t for
\ndetention  is  provided for, which has\tbeen  uniformly\t one
\nmonth and ten weeks respectively-.  The period of ten  weeks
\nfor the submission of the report by the Board where  Article
\n22(4) provides for twelve weeks is designedly fixed  because
\nthat  would  give the appropriate Governments two  weeks  to
\nconfirm and extend the period or not to confirm.  of  course
\nthe  opinion of the Board need not necessarily be  given  on
\nthe  last day of the expiry of the ten weeks.  It  is  quite
\npossible  that\tthis  information may be  submitted  to\t the
\nappropriate Government well within ten weeks.  In such cases
\na question whether the confirmation and extension has to be
\nmade  by  the  appropriate Government  within  a  reasonable
\nperiod may arise for consideration, but in any case  failure
\nto  confirm and extend the period within three\tmonths\twill
\nresult\tin  the detention becoming illegal  the\t moment\t the
\nthree  months period has elapsed without such  confirmation.
\nAny  subsequent action by the appropriate  Government  after
\nthe  three  months cannot have the effect of  extending\t the
\nperiod of detention.  This view of ours is further fortified
\nby Section 13 of the Act where the maximum period for  which
\nany  person  may be detained in pursuance of  any  detention
\norder which has been confirmed under Section 12 shall be  12
\nmonths\tfrom the date of detention.  This requirement  would
\nsuggest that the extension of the period of detention beyond
\nthree months upto a maximum of 12 months is from the date of
\nconfirmation   of  the\topinion\t of  the  Board\t  which\t  if
\nunconfirmed would not extend the period beyond three months.
\nIf  so at what point of time should that be confirmed  ?  It
\nwould be meaningless to suggest that the confirmation of the
\nBoard’s opinion can take place beyond three months when\t the
\nperiod\tof  detention has come to an end and  has  not\tbeen
\nextended  by the want of it.  Looking at it in\ta  different
\nway what these provisions amount to is that no person can be
\ndetained  for  any  period beyond three months\tor  for\t any
\nperiod thereafter upto 12 months unless the Board’s  opinion
\nis confirmed within three months.\n<\/p>\n
A similar view has been taken by the several Courts in\tthis
\ncountry right from 1952 onwards on Section 11 and 11 (A)  of
\nthe  Preventive Detention Act which is analogous to  Section
\n12  and\t Section  13  of the Act.  See\tKaur  Singh  v.\t The
\nState(1), Dhadhal Kanthad Valeg v. Saurashtra State(2), Umed
\nSingh Narubha v. State(3).  A Bench of the Mysore High Court
\nin  Sangappa Mallappa Kodli & Ors. v. The State of Mysore  &
\nOrs. (4). referred to these decisions.\tThe learned Advocate
\nGeneral in
\n(1)  AIR 1952 Pepsu 134.\n<\/p>\n
(2)  AIR 1953 Sau. 138.\n<\/p>\n
(3)  AIR 1953 San. 51.\n<\/p>\n
(4)  AIR 1959 Mysore 7.\n<\/p>\n
793<\/span><\/p>\n
that  case  had\t contended on behalf of\t the  State  as\t was
\ncontended  in the case before us on behalf of the  State  of
\nWest Bengal that the confirmation mentioned in Section 11 of
\nthe Preventive Detention Act was a mere formality and became
\nredundant  in  view  of the fact  that\tthe  Government\t had
\nalready approved of the order of detention, because the word
\n‘may’  in Section 11 does not make the confirmation  of\t the
\ndetention  mandatory.  It was further argued that there\t was
\nnothing illegal in confirming the order of detention  beyond
\nthe period of three months from the date of detention either
\nunder the Constitution or under the Act itself, because what
\nthe Constitution lays down is that unless the Board has made
\na  report to the effect that there is sufficient  cause\t for
\nsuch  detention within three months from the date of  deten-
\ntion,  there can be no detention of a person under  any\t law
\nfor a longer period than three months and nothing more,\t but
\nit  does not however say that the order of confirmation\t has
\nto be within three months from the date of detention.  S. R.
\nDas, C.J. rejecting this contention observed at page 9 :\n<\/p>\n
\t      “In my opinion having regard to the  different
\n\t      provisions  of the Preventive  Detention\tAct,
\n\t      the order of confirmation which the Government
\n\t      is  required to make under Section 11  of\t the
\n\t      Act  has to be made within a period  of  three
\n\t      months  from  the date of\t detention.   In  my
\n\t      opinion  the contention of the petitioners  on
\n\t      this part of their case finds support from the
\n\t      very sections of the Preventive Detention\t Act
\n\t      and  particularly\t from the  wording  of\tsub-
\n\t      section  (1) of Section 11 itself.  That\tsub-
\n\t      section,\tto my mind, makes it clear that\t the
\n\t      confirmation order in question has to be\tmade
\n\t      if the Government after receipt of the  report
\n\t      from  the Advisory Board decides\tto  continue
\n\t      the detention and in view of the provisions of
\n\t      clause  (4) of Article 22 of the\tConstitution
\n\t      such confirmation has to, be made within three
\n\t      months from the date of detention”.\n<\/p><\/blockquote>\n
The  Calcutta High Court has recently construed\t the  provi-
\nsions of the Act Ashvini Kumar Banerjee v. The State &\tOrs.
\n(1)  1, which we are now construing on the question  whether
\nthe  confirmation under Section 12(1) should be made  within
\nthree months from the date of detention.  It considered\t the
\nseveral\t cases\tto which we have earlier referred  and\theld
\nthat where there is a specified time provided for in  clause
\n(4)  of Article 22 of the Constitution of India the  concept
\nof reasonable time cannot be introduced in interpreting\t the
\nprovisions  of\tsub-sec. (1) to Sec. 12 of  the\t Act. ‘The
\nabsence\t of  a time limit in express terms in  the  body  of
\nSection 12(1) of the Act does not render it to be
\n(1)  1970-71 (Col.  LXXV) Calcutta Weekly Notes-866.\n<\/p>\n
794<\/span><\/p>\n
ambiguous  and\tthat the Board cannot be  equated  with\t the
\nState  Government because it can only advise and not act  by
\nway  of\t passing  an order of  detention  or  continuing  it
\nthereafter.   This is left to the over-riding discretion  of
\nthe State Government.\n<\/p>\n
We agree with the views expressed in these cases.
\nThe case of Dattatreya Moreshwar Pangarkar(1) does not\tdeal
\nwith  this aspect.  There the two questions which were\tcon-
\nsidered were (1) whether the order of confirmation was to be
\nin  writing and should be expressed in the form required  by
\nArticle\t  166(1)   of  the  Constitution,  and\t(2)   if   a
\nconfirmation  order is made by the,  appropriate  Government
\nwhat  is  the  period  for which the  detention\t has  to  be
\nextended,  that is does it have the effect of extending\t the
\nperiod\tand  if so for what period.  That was a\t case  under
\nSection\t 11  (\t1 ) of the Preventive  Detention  Act.\t The
\nmajority Mahajan J, dissenting, decided that the omission to
\nstate  the period of further detention while confirming\t the
\ndetention  order  under\t Section 11 (1)\t of  the  Preventive
\nDetention  Act could not render the detention  illegal.\t  In
\nour  view therefore the confirmation of the opinion  of\t the
\nAdvisory Board to continue the detention beyond three months
\nmust  be within three months from the date of  detention  in
\nconformity with the mandate in clause (4) of Article 22.
\nThe next submission is that the confirmation should not only
\nbe in writing but it should be communicated to the determine
\nwithin\tthe  period  of\t three\tmonths\tfrom  the  date\t  of
\ndetention.   While we consider the former submission  to  be
\nvalid the latter has no justification.\tNo doubt in Mohammed
\nAfzal Khan v. State of Jammu & Kashmir<\/a>(1), this Court had on
\nthe  construction  of  Section 14 of  the  Jammu  &  Kashmir
\nPreventive Detention Act had held that the Section does\t not
\nin  terms provide for the making of a formal order but\tthat
\nwas  on\t the  construction of a provision which\t is  not  in
\nparimutuel of the provisions of the Act.  Section 14 of\t the
\nJammu  & Kashmir Preventive Detention Act does\tnot  provide
\nfor the confirmation of the Board’s opinion because that was
\na provision made under clause 7 of Article 22 where it\tpro-
\nvide  for  the detention or continuation in detention  of  a
\nperson\twithout obtinig the opinion of a Board for a  period
\nlonger\tthan three months but not exceeding any\t years\tfrom
\nthe date of detention, where such a person is detained\twith
\na   view  to  preventing  hint\tfrom  acting  in  a   manner
\nprejudicial  to\t (i) the security of tile  State,  (ii)\t the
\nmaintenance  of\t public\t order.\t on  the  question  of\t the
\ncommunication  to detenue  of the decision to  continue\t his
\ndetention beyond three months, Das, C. j. said that there is
\nno   warrant  for the proposition that the decision  of\t the
\nGovernment
\n(1)  [1952] S.C.R. 612.\n<\/p>\n
(2) (1957) S.C.R. 63.\n<\/p>\n
795<\/span><\/p>\n
must  be communicated to the detenue nor has it\t been  shown
\nhow  the  communication\t of this decision  would  have\tbeen
\nbeneficial  to\tthe  detenue.  He referred to  the  case  of
\nAchhar\tSingh  v. State of Punjab(1), where this  Court\t had
\nsaid that ‘the omission to convey the order under Section  1
\n1  of the Indian Preventive Detention Act does not make\t the
\ndetention   illegal  or\t result\t in  infringement   of\t the
\npetitioner’s  fundamental rights’.  After referring to\tthis
\ndecision  this\tCourt however, pointed out, if that  be\t the
\nposition under Section 11 of the Indian Preventive Detention
\nAct which provides for the making of a formal order all\t the
\nmore  must the position be the same under Section 14 of\t the
\nJammu  & Kashmir Preventive Detention Act which does not  in
\nterms require any formal order to be made.  Whatever may  be
\nthe  position  under the Jammu & Kashmir Act under  the\t Act
\nwhich  we are considering as pointed out earlier  the  State
\nGovernment  has\t to confirm the opinion of  the\t Board\tthat
\nthere  is  cause for the detention of the  person  concerned
\nwhich  confirmation  cannot  purely  be\t a  mental  act,   a
\nsubjective one but must result in an objective action namely
\nthat  it should be recorded in writing.\t Though there is  no
\nprovision in the Act an order of confirmation which has\t the
\neffect\tof  extending  the period of  detention\t beyond\t the
\nmandatory  period of three months must be made known to\t the
\ndetenue,  in our view there is no warrant  or  justification
\nfor an order confirming the detention on the opinion of\t the
\nBoard  which  has  the effect of  extending  the  period  of
\ndetention  remaining in the files of the  executive  without
\nthe same being communicated to the person most concerned-the
\ndetenue-whose freedom has been subjected to jeopardy, He  is
\nentitled   to  know  that  the\tBoard  had  considered\t his
\nrepresentation as well as his personal submissions if he has
\nchosen\tto appear before it and that it had been found\tthat
\nthere  was sufficient cause for his detention and  that\t the
\nState Government had agreed with it.  In Biren Dutta &\tOrs.
\nv.  Chief  Commissioner of Tripura &  Another<\/a>  (2),  another
\nConstitution  Bench  of this Court had\tto  consider  this
\nmatter\ton the provisions of Rule 30(1) (b) and Rule  30A(8)
\n:of  the  Defence of India Rules 1962.\t Gajendragadkar,  J.
\nspeaking  for  the  Court held that  even  those  rules\t the
\nauthority  exercising  the power under\trule  30A(8)  should
\nregard its decision clearly and unambiguously extending\t the
\nPeriod\tof detention beyond six months which was  the  limit
\nunder those rules, for he observed, “After all, the  liberty
\nof  the citizen is in question and if the detention  of\t the
\ndetenue is intended to IV continued as a result of the deci-
\nsion  reached by the appropriate authority it should say  so
\nin clear and unambiguous terms”.  While the decision of\t the
\nGovernment  to\tconfirm\t the  opinion  of  the\tBoard  which
\naccording to
\n(1)  Petn.   No.  359 of 1951-decided  on  22-11-1951.\t (2)
\n[1964] 8 S.C.R. 295.\n<\/p>\n
796<\/span><\/p>\n
the  decision in Dattatraya Moreshwar Pangarkar(1), has\t the
\neffect\tof  extending the period of detention  beyond  three
\nmonths is in consonance with the tenor of the Act as well as
\nthe  provisions\t of the Constitution, there  is\t nothing  to
\nwarrant\t the submission that the order of  confirmation\t and
\nextension  of  the period of his detention  should  also  be
\nwithin three months from the date of detention.\t Nonetheless
\nthe communication must be within a reasonable time.  What is
\na   reasonable\ttime  must  necessarily\t depend\t  upon\t the
\ncircumstances of each case.  The effect of noncommunication,
\nhowever,  may  be an irregularity which does  not  make\t the
\ndetention  otherwise  legal,  illegal.\t In  Biren   Dutta’s
\ncase(1)\t the  Court was of the view that though\t under\tRule
\n30A(8)\tthere  is nothing to indicate that  the\t appropriate
\nauthority should communicate to the detenue the decision  to
\nextend the period beyond three months, “it is desirable\t and
\nit  would  be fair and just that such a decision  should  in
\nevery  case be communicated to the detenue”.  In  this\tcase
\nthere  is  no  allegation  that\t the  detenue  suffered\t any
\nprejudice  by  the  delay  and in the  absence\tof  such  an
\nallegation  the\t State is justified in its  submission\tthat
\nthere  may  be\tsufficient  grounds for\t the  delay  in\t not
\ncommunicating  it  within  a  reasonable  time\tshould\t the
\ncommunication  itself  be  considered by this  Court  to  be
\nunduly delayed.\n<\/p>\n
We  will  now examine the merits of the\t case  to  determine
\nwhether\t the confirmation was made within three months\tfrom
\nthe  date  of  the  detention and  whether  the\t grounds  of
\ndetention  are irrelevant or vague.  The order of  detention
\nwas made by the District Magistrate, Bankura on 16-1-71\t and
\npetitioner was arrested on 20-1-71.  On the same day he\t was
\nserved\twith  the order and the grounds of  detention.\t The
\nDistrict Magistrate made a report to the Government also  on
\nthe  same day which was approved by the State Government  on
\n27-1-71 so that the mandatory provisions of the Act both  in
\nrespect\t of  the report to be made to the  State  Government
\nwithin 5 days from the date of the order and the approval of
\nthe detention within 12 days from the date of detention were
\nsatisfied.   On\t the 27th itself a report was  made  to\t the
\nCentral Government as required under section 13.  The  State
\nGovernment  placed the detention order, the grounds and\t the
\nreport\tetc. before the Advisory Board on the 18th  February
\n1971 which is also within 30 days from the date of detention
\nas required under section 10.  The State Government rejected
\nthe   representation  made  by\tthe  detenue  on  the\t15th
\nMarch’1971 and the Advisory Board submitted its report\tthat
\nthere  was  sufficient cause.for his detention on  the\t23rd
\nMarch 1971 which was confirmed on 8-4-71.  In the note\tfile
\nof the Government which we
\n(1) [1952] S.C.R. 612.\n<\/p>\n
(2) [1964] S.C.R.205.\n<\/p>\n
797<\/span><\/p>\n
perused,  though  confirmation\twas  recorded  within  three
\nmonths, the communication was made later on the 26th  August
\n1971.\tThe  mandatory\tprovisions,  therefore,\t are   fully
\ncomplied with.\n<\/p>\n
The  next  question  is whether the grounds  are  vague\t and
\nirrelevant. These are as follows:-\n<\/p>\n
\t      (i)   that  on  7-1-71  night  you  and\tyour
\n\t      associates   including  Somesh   Chandra\t Deb
\n\t      mutilated\t the  statue of the  eminent  Indian
\n\t      Poet  Rabindra  Nath  Tagore  installed  in  a
\n\t      public  place at Boilapara in  Bishnupur\ttown
\n\t      and  thereby  caused insult to  an  object  of
\n\t      public veneration.\n<\/p><\/blockquote>\n
\t      (ii)That on 11-1-71 at about 01.45 hrs.  you
\n\t      and your associates broke into the Post Office
\n\t      situated\tat Rashikguni in Bishnupur town\t and
\n\t      caused  mischief to it by fire  by  destroying
\n\t      its official records by burning.\n<\/p><\/blockquote>\n
It was contended that the associates of the petitioner\thave
\nnot  been specified and therefore it will be  difficult\t for
\nthe  petitioner to make effective representation in  respect
\nthereof.  We think there is no validity in this\t submission.
\nNot only the dates and the time in each of the grounds\thave
\nbeen  mentioned\t but the acts of the  petitioner  have\tbeen
\nspecified  in  detail  to enable him to\t make  an  effective
\nrepresentation.\t  In  our view it is not necessary  for\t the
\npetitioner  to make an effective representation\t to  specify
\nall  his  associates because they may not have\tbeen  known.
\nThe petitioner is being detained in respect of his acts\t and
\nif  in\tassociation  with others he has acted  in  a  manner
\nprejudicial  to\t the maintenance of the\t public\t order,\t his
\ndetention cannot be said to be illegal.\n<\/p>\n
It  is again contended relying on Madhu Limaye v.  Sub-Divi-<\/a>
\nsional Magistrate, Monghyr and others(1) and Dr. Ram Manohar
\nLohia v. State of Bihar and Ors.(2) that the acts  specified
\nin  each  of  the grounds do not amount\t to  disturbance  of
\npublic\torder  though they may affect law and  order.\tThis
\ncontention is equally untenable because section 3(2) of\t the
\nAct defines the expression “acting in any manner prejudicial
\nto  the security of the State or the maintenance  of  public
\norder”\tas given in sub-clauses (a) to (e) of the said\tsub-
\nsection.   We  are  here in this  case\tconcerned  with\t the
\ndefinition  given in section 3 (2) (c) which makes  any\t act
\n‘causing insult to the Indian National Flag or to any  other
\nobject of public veneration whether by mutilating, damaging,
\nburning,  defiling, destroying or otherwise, or\t instigating
\nany  person  to do so.\tThe explanation to  this  sub-clause
\nincludes in the
\n(1) [1970] 3 S.C.R. 746.\n<\/p>\n
(2) [1966] 1 S.C.R. 709.\n<\/p>\n
798<\/span><\/p>\n
causing\t of insult to any object of public  veneration,\t any
\nportrait  or  statue of an eminent Indian,  installed  in  a
\npublic\tplace as a mark of respect to him or to his  memory.
\nThe  validity of subsection (2) of section 3 of the Act\t was
\nchallenged  recently in the case of State of West Bengal  v.
\nAshok  Dey  and others<\/a>(3), but this Court held that  it\t was
\nvalid.\t The  challenge\t to clauses (a), (b),  (d)  and\t (e)
\ndealing with disturbance of a public order in the State with
\nrespect\t to which it was said there can be no  two  opinions
\nabout  the  acts covered by these being likely\tto  be\tpre-
\njudicial  to the maintenance of public order.  In regard  to
\nclause (c) the argument that insulting the object of  public
\nveneration  in privacy without the act causing insult  being
\nnoticed by anyone who holds them in veneration could have no
\nrational  nexus\t with  the disturbance of  public  order  or
\nsecurity  of  State,  was  in  the  abstract  described\t  as
\nattractive.  In the light of the circumstances in which\t the
\nAct  was passed the mischief intended to be removed by\tthis
\nenactment  and the object and purpose of enacting  it,\tthis
\nCourt  held that clause (c) of subsection (2) considered  in
\nthe  background\t of  sub-section (1) of section\t 3  can\t “be
\nconstrued  to  mean, causing insult to the  Indian  National
\nFlag  or  any other object of public veneration\t in  such  a
\nsituation as reasonably exposes the act, causing such insult
\nto the view of those who hold these objects in veneration or
\nto  the public view and it would not cover cases  where\t the
\nIndian National Flag or other object of public veneration is
\nmutilated, damaged, burned, defiled or destroyed  completely
\nunseen\tor  when  incapable of being seen  by  anyone  whose
\nfeelings  are  likely to be hurt thereby.  The\tact  causing
\ninsult\treferred to in clause (c) must be such as  would  be
\ncapable\t of arousing the feelings of indignation in  someone
\nand that can only be the case when in cult is caused in\t the
\ncircumstances\tjust   explained”,   and   was\t accordingly
\nrestricted  to\tsuch  situation.  The  challenge  there\t was
\nnegatived.   In this case what is said to have been  defiled
\nby  the\t petitioner  and his associates\t is  the  statue  of
\nRabindra  Nath Tagore, a Poet and sage venerated by  all  in
\nthis country and affords a sufficient ground for  detention.
\nThe  other  grounds also directly connect the act  with\t the
\ndisturbance of public order.\n<\/p>\n
Having regard to the various references the detention of the
\npetitioner  in\tour view is not illegal and  accordingly  we
\ndismiss this petition.\n<\/p>\n
G.C.\t\t\t      Petition dismissed.\n<\/p>\n
(1)  Cr.  App.\tNos. 217 to 233 of 1971 decided on 19-11-71.\n<\/p>\n
799<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Deb Sadhan Roy vs State Of West Bengal on 7 December, 1971 Equivalent citations: 1973 AIR 1331, 1973 SCR (3) 691 Author: P J Reddy Bench: Reddy, P. Jaganmohan PETITIONER: DEB SADHAN ROY Vs. RESPONDENT: STATE OF WEST BENGAL DATE OF JUDGMENT07\/12\/1971 BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN PALEKAR, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-189676","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDeb Sadhan Roy vs State Of West Bengal on 7 December, 1971 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/deb-sadhan-roy-vs-state-of-west-bengal-on-7-december-1971\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Deb Sadhan Roy vs State Of West Bengal on 7 December, 1971 - 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