HARI PROSAD AGARWALLA AND ANR. Vs. THE STATE OF ASSAM
HIGH COURT OF GAUHATI
Hari Prosad Agarwalla And Anr.
The State Of Assam
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Deka, J. -
(1.) THESE are two criminal miscellaneous cases filed on behalf of Hari Prosad Agarwalla alias Hari Prosad Dhanuka alias Hariya and Kiahenlal Dhanuka numbered respectively criminal Misc. cases Nos. 71/51 and 72/51. The petitions have been filed in both these cases tinder Article 226 of the Constitution of India for a writ of habeas corpus or appropriate writs with regard to the detention order passed by the Assam Government on the petitioners.
(2.) THE facts are identical in both these cases and the same point of law arises for decision of this Court, namely, whether the orders of detention passed in both these matters are in contravention of Section 11, Preventive Detention Act of 1950, as amended by amending Act IV  of 1951. The orders of detention were passed under Sub -section (2) of Section 3, Preventive Detention Act of 1950 as amended by Act IV  of 1951, no period being specified, however, for which the detention was intended. Both these matters came up before the Advisory Board for consideration under Section 9, Preventive Detention Act and the Board unanimously reported that there was sufficient cause for the detention of the persons concerned, under Section 10(2) of the Act whereupon the Government confirmed its original order as passed on 5.9.1951 in both the cases without naming any period for which this order of detention will be in force or how long the detention will continue. Mr. Lahiri appearing for the petitioners submits that an order of detention is invalid unless the period of detention is specified by the appropriate Government when the order of detention is confirmed by the Central or State Government under Section 11 of Act IV  of 1951.
(3.) SECTION 11(1), Preventive Detention Act (Act IV  of 1951) runs as follows: In any ease where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.
This provision definitely lays down that the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and Sub -section (2) of Section 11 says that where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.
The point, therefore, for consideration is whether an order of detention for an indefinite or unspecified period is good in view of the wordings of Section 11(1) or the scheme of the Preventive Detention Act itself. For the sake of brevity, I shall denote 'Preventive Detention Act of 1950' by the word 'Act' in my judgment. It has been contended on behalf of the petitioners that the Act lays down the procedure by which the detention order has to be passed and how it has to be confirmed or revoked when thought necessary. This procedure has to be strictly followed. And once the Government confirms an order of detention, - it should decide for what period the detention is meant to continue, though it does not disentitle the Government to free the detente earlier when they consider it fit, but it is necessary that the appropriate Government should apply its mind at the time of confirmation of the order of detention foe what period the order of detention will stand. In those cases where the term of detention is specified in the preliminary order passed under Section 3 of the Act, mere confirmation under Section 11(1) of the Act is enough to show for what period the detention is meant but whore the preliminary order is silent as to the period of detention it is obligatory for the Government to state for what period the order of detention will be in force and if there is no mention of such a period it only implies that the Government did not apply its mind as to the period for which the detention should continue and as such the order of detention is bad and is in contravention of the provisions of the Act.;
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