Decided on December 19,1952

KARAMVIR Appellant
STATE Respondents


Narayan, J - (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 : "(3) The appropriate Government shall appoint one of the members of the Advisory Board who is or has been a Judge of a High Court to be its Chairman, and in the case of a Part C State the appointment to the Advisory Board, of any person who is a Judge of the High Court of a Part A State or a Part B State shall be with the previous approval of the State Government concerned : Provided that nothing in this sub-section shall affect the power of any Advisory Board constituted before the commencement of the Preventive Detention (Second Amendment) Act, 1952, to dispose of any reference under Section 9 pending before it at such commencement." We thus find that after this amendment one of the three members constituting the Board must be a person who is or has been a Judge of a High Court and it is this member of the Board who has to be appointed its Chairman. THIS amending Act came into force on 30-9-1952 by virtue of a notification issued on 15-9-1952, and it cannot be disputed that any Board constituted after 30-9-1952 of less than three members or without a chairman of the qualification mentioned in the added sub-section, namely Sub-section (3), will not be a Board validly constituted. But, there is a proviso attached to Sub-section 3 which empowers the old Advisory Board, that is the Advisory Board constituted before the commencement of the amending Act of 1952, to dispose of any reference under Section 9 pending before it at the time of the commencement of the amending Act of 1952. The representation in this case was submitted by the detenu on 9-10-1952, and the reference to the Advisory Board was made on 13-10-1952. According to Section 9 of the Preventive Detention Act, the Government has to place before the Advisory Board constituted by it under Section 8 the grounds on which the order has been made and the representation, if any, made by the person affected by the order within thirty days from the date of detention. The Government could, therefore, make a reference to the Advisory Board in this case up till 22-10-1952 or 23-10-1952. The reference, as already pointed out, having been made on 13-10-1952 must be deemed to be a reference made within the prescribed time. But the unfortunate omission is that though Act 61 of 1952 by which Sub-section (3) was inserted in the old Act came into force on 10-9-1952, no Chairman of the Board was appointed before 6-11-1952. By notification No. 11142 dated 6-11-1952 the Governor of Bihar appointed the Hon'ble Mr. Justice V. Ramaswami, one of the members of the Board, as its Chairman. The learned Advocate General could not but concede that there was no proper Board constituted in accordance with the provisions of Act 61 of 1952, until 6-11-1952 when the notification appointing the Hon'ble Mr. Justice Ramaswami as the Chairman was issued by the Government of Bihar. But he relied on the proviso to Sub-section (3) according to which the old Board could dispose of any reference pending before it at the time when the second amendment by Act 61 of 1952 came into force. The learned Advocate General had, however, to concede further that the old Board could not dispose of this reference. There was no pending reference on 30-9-52 and the Board which was without a chairman until 6-11-1952 could not dispose of this reference made on 13-10-52, that is about a fortnight after Act 61 of 1952 had come into force. But the submission of the learned Advocate General was that there was no bar to the old Board receiving the reference and the representation on 13-10-1952 and 9-10-1952 respectively. In my opinion, the contention of the learned Advocate General to the effect that though the Board could not, dispose of this reference before 6-11-1952 it could receive the reference is a contention which must be repelled without the least hesitation. The words used in the proviso are "to dispose of" and not to receive, and Section 9 provides for reference to a Board constituted by the Government under the entire Section 8 and not only under Sub-section (2) of Section 8. The Advisory Board had to be constituted under Section 8 as it stands after the amendment which had come into force on 30-9-1952 and not only under Sub-section (2) of Section 8. The import of the words "under Section 8" in Section 9 is unmistakable, and it would offend against all well recognised canons of construction to read in Section 9 the words "sub-section (2) of Section 8" in place of "Section 8". We cannot import anything in Section 9 which it does not contain, and according to Section 9 the Advisory Board must be a Board constituted under Section 8 which includes Sub-sections (1), (2) and (3), the last of which provides for the appointment of a Chairman who is, or has been a Judge of a High Court. The tribunal whose duty it is to interpret a statute must endeavour to find out what, according to the well-recognised rules and principles of construction, the statute means, and if the meaning of the statute is made clear, it has to be applied in its strictest possible sense. And if a particular statute is found to be ambiguous, that is susceptible of two meanings, one leading to the invasion of the liberty of the subject and the other not, the latter has to be preferred on the ground that there is always the presumption that it is not the ordinary intention of a legislature to interfere with the liberty of the subject. There is, however, in this case no question of ambiguity, the words of the statute being clear and unmistakable. The effect of the amendment is as if the words therein have been inserted in the original Act, and the original Act must now be read as it reads at the present time. THIS is the view which was taken by their Lordships of the Judicial Committee in -- 'Keshoram Poddar v. Nundo Lal', AIR 1927 PC 97 (A). The Supreme Court in -- ' Shamrao V. Parulekar v. Pist. Magistrate, Thana, Bombay', AIR 1952 SC 324 (B) observed as follows : "The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. THIS is the rule in England : See Craies on. Statute Law, 5th Edition, page 207 it is the law in America; see Crawford on Statutory Construction, page 110." It is therefore manifest that the. Board which could dispose of this reference on 13-10-1952 is the Board constituted under the Act as it stands after the amendment which has been incorporated in it as a result of Act No. 61 of 1952. We have now to look to the clauses in the later Act and not to the clauses in the former Act. The position, therefore, is that on 13-10-1952 the reference could be made only to a Board which had a Chairman and if no Chairman had been appointed before 6-11-1952, then there was no valid Board constituted under the Act until 6-11-1952. I have already said that the provisions of Sections 8 and 9 (as they stand after the amendment) completely militate against the view put forward by the learned Advocate General.
(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 : "I desire to state that, although in this case I consider that irregularity a matter of substance, I should be of the same opinion if it were only a matter of form, because, as I said before, I take it to be a general rule that the courts at Westminster will not allow any individual in this kingdom to procure the imprisonment of another, unless he takes care to follow with extreme precision every form and every step in the process which is to procure that imprisonment. I consider this to be a wholesome and good rule, and to be in accordance with the great desire which English Courts have always had to protect the liberty of every one of Her Majesty's subjects." Cotton L. J. agreed with Brett L. J. and made the following observation : "I quite agree with Brett L. J, that when persons take upon themselves to cause another to be imprisoned, they must strictly follow the powers under which they are assuming to act, and if they do not, the person imprisoned may be discharged, although the particulars in which they have failed to follow those powers may be mat- ters of mere form. Here, however, the departure from the correct procedure is not, in my opinion, a mere matter of form, but is a matter of substance." THE observation of Brett L. J. was quoted by a Full Bench of this Court in -- 'Muratpatwa v. Province of Bihar', AIR 1948 Pat 135 (FB) (D), and their Lordships pointed out that there is no general rule of law that in a statute a condition subsequent to the doing authorised thereby is always to be construed as directory only. THEir Lordships quoted Lord Campbell's observation, in -- 'Liverpool Borough Bank v. Turner', (1361) 30 LJ Ch 379 (E) to the effect that it is the duty of a Court of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. I need not repeat that there was no submission before us on behalf of the State to the effect that the provisions with regard to the making of the reference and the disposal of the reference in the Act are merely directory. THEse provisions having been made in an Act which is justified under the Constitution should be deemed to be included within the Constitution itself, and evety bit of procedure prescribed in the Act has to be strictly followed. As was pointed out by the Privy Council in -- 'Eshugbayi (Eleko) v. Officer Administering the Govt. of Nigeria', AIR 1931 PC 248 (F), the executive can only act in pursuance of the powers given to them by the law, and in accordance with the British jurisprudence no member of the executive can interfere with the liberty or the property of a British subject except on the condition that he can support the legality of his action before a Court of justice. THEre are several authorities to the effect that while disposing of applications for writs, such as, mandamus and habeas corpus, the Court has to be on guard that the proper procedure has been maintained and that the liberty of; the subject has not been arbitrarily interfered with. If on account of a callous indifference, inefficiency or slackness on the part of the officers of the executive Government there is found to be an illegal detention, an interference by the judicial tribunal will be justified. If the officers of the executive Government did not care to issue the notification before 6-11-1952, that is certainly very bad mistake. His Lordship the Chief Justice of the Supreme Court in the case of -- 'A.K. Gopalan v. State of Madras', AIR 1950 SC 27 (G) said that Articles 22(1) and 22(2) prescribe limitations on the right given by Article 21 and that if the procedure mentioned in those Articles is followed the arrest and detention contemplated by Articles 22(1) and 22(2), although they infringe the personal liberty of the individual, will be legal. Article 22 has been styled as a complete code by itself and the procedural safeguards as laid down in the Article or in laws promulgated on the strength of the Constitution cannot be whittled down. If the legislature, therefore, has prescribed a procedure by a validly enacted law, such procedure in the case of Preventive Detention has to be strictly followed. THE Parliament has been expressly given power under the Constitution to lay down the procedure with regard to the reference to an Advisory Board, and the provisions of the Act laying down the procedure cannot be disregarded. We have to give effect to the language used, and, as has been pointed out in several cases, in construing enacted words, it is no part of our business to consider the policy involved or the results which would follow by giving effect to the language used. THE detention of a person, in any event, is tantamount to an imprisonment and neither a detention nor an imprisonment can be justified unless it is strictly in accordance with law. As was pointed out by Fazl Ali J. in -- 'AIR 1950 SC 27' (G) the provision being in the nature of a safeguard, the Court must naturally lean towards the interpretation which is favourable to the subject and which is also in accord with the object in view. I should like to reproduce here certain passages from Cooley's Constitutional Limitations : "Sir William Blackstone says, personal liberty consists in the power of locomotion of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law. It appears, therefore, that this power of locomotion is not entirely unrestricted, but that by due course of law certain qualifications and limitations may be imposed upon it without infringing upon constitutional liberty. Indeed in organized society, liberty is the creature of law, and every man will possess it in proportion as the laws, while imposing no unnecessary restraints, surround him and every other citizen with protections against the lawless acts of others..... THE working of our complex system full of checks and restraints on legislative, executive, and judicial power, is favourable to liberty and justice. Those checks and restraints are to so many safeguards set around individual rights and interests. That man is free who is protected from injury." THEre are checks and restraints in this Act as well, which cannot be disregarded. THE relief contemplated by the statute cannot be denied to the persons intended to be relied, and for non-compliance with the provisions of Section 9, the detention must be regarded as illegal. A Bench of this Court in -- ' Sunirmal Dutta v. Province of Bihar', AIR 1950 Pat 259 (H) held that on account of the failure to comply with the provisions of Sub-sections (4) and (5) of Section 4, Public Ordinance 1949, the detention of the petitioner before their Lordships was illegal. Sub-section (4) of Section 4 was in these terms : "Advisory Council shall, after considering the materials placed before it and, if necessary, after calling for such further information from the Provincial Government or from the person concerned, as it may deem necessary, submit, within three weeks of its receiving the materials and further information, a report to the Provincial Government." Likewise, the detention of this present petitioner is illegal, because the stringent provisions of Sections 8 and 9, which are in the nature of statutory safeguards provided by the Act have not been complied with. In the result, therefore, I would allow this application and direct that the detenu Karamvir Singh be released forthwith.;

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