Ranganath Misra, J. - (1.) This appeal is by special leave. The State of Uttar Pradesh has challenged the judgment of the Allahabad High Court quashing the order of detention made by the District Magistrate of Gorakhpur on August 7, 1981, in exercise of powers under S. 3(2) of the National Security Act, 1980 ('Act' for short).
(2.) The respondent moved an application under Art. 226 of the Constitution for a writ of habeas corpus and challenged his continued detention on the ground that the provisions of S. 10 of the Act had not been complied with and his representation had not been placed before the Advisory Board within three weeks from the date of detention. The High Court found that the petitioner had made a representation on August 16, 1981, which the authorities of the Jail had forwarded to the District Magistrate and he in his turn sent the same to the State Government on August 24, 1981. The State Government received the representation on August 25, 1981, and caused it to be placed before the Advisory Board on August 29,1981. According to the High Court, "the representation of the petitioner was placed before the Advisory Board twenty two days after the date of detention of the petitioner. There was thus a breach of section 10 of the Act. The detention of the petitioner is thus illegal." On this conclusion, by order dated May 11, 1982, the High Court quashed the detention. It added at the end of its order: "As the question whether S. 10 of the Act so far as it relates to the placing of the representation before the Advisory Board within three weeks of the date of detention of the petitioner is directory or mandatory is one of general importance we grant the oral prayer of the learned Additional Government Advocate and certify this case as a fit one for appeal to the Supreme Court." Notwithstanding this order of the. High Court, the State of Uttar Pradesh instead of lodging an appeal in this Court, applied for grant of special leave under Article 136 of the Constitution. That application was registered as Special Leave Petition. (Criminal No. 1987 of 1982 and special leave was granted on October 7, 1983). In spite of service of notice, the respondent has not appeared to be heard in this Court. Section 10 of the Act provides: "10. Reference to Advisory Boards - Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under S. 9, the grounds on which the order has been made and the representation, if any, made. by the person affected by the order, and in case where the order has been made by an officer mentioned in sub-section (3) of section 3, also the report by such officer under sub-sec. (4) of that section."
(3.) There can be no doubt that the provisions in S. 10 of the Act are mandatory. This Court has on more than one occasion indicated in unmistakable terms that the safeguard available to a detenu without trial is what is guaranteed to him under Art. 22(5) of the Constitution. The time schedule indicated in the Act and the screening by the Advisory Board are in answer to this requirement. This Court in Khudi Ram Das v. State of West Bengal, (1975) 2 SCR 832 said: "The constitutional imperatives enacted in this article 22 are two-fold:(1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security.";