Chinnappa Reddy, J. - (1.) We grant special leave and proceed to hear the appeal.
(2.) The petitioner, Abdul Latif Wahab Sheikh, was in jail from November 12, 1985 onwards awaiting trial on a charge of murder. He was acquitted on May 26, 1986. Though acquitted, he was not straightway released from prison. The reasons are not clear to us from the record. Presumably he was required in connection with some other case. He was due for release from prison on June 23, 1986. On that day, however, an order for his detention was made under the provisions of the Gujarat Prevention of Anti-social Activities Act, 1985. The mandate of Art. 22(4) of the Constitution is that no law providing for preventing detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. Section 10 of the Gujarat Prevention of Antisocial Activities Act, 1985 provides for the constitution of an Advisory Board, Sec. 11 provides for reference to the Advisory Board and Sec. 12 prescribes the procedure to be followed by the Advisory Board. What is important for the purposes of this case is that Sec. 11 stipulates that in every case where a detention order has been made under the Act, the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board the grounds on which the order has been made, the representation, if any, made by the detenu and the report, if any, of the authorised officer. What is intriguing in the case is that on the date when the detention order was made, there was no Advisory Board in existence to which a reference could be made under Sec. 11 of the Act and whose report of its opinion regarding sufficient cause for the detention was required to be obtained within three months of the detention under Art. 22(4) of the Constitution. The period of three weeks stipulated by Sec. 11 of the Act expired on July 14, 1986. The petitioner was entitled to be released on July 14, 1986 as no reference had been made to the Advisory Board within the period contemplated by Sec. 11 of the Act. But he was not so released. This state of affairs continued till August 7, 1986 when the order of detention dated June 23, 1986 was revoked and a fresh order of detention was made on the same facts, on the same day. In the meanwhile, the order of detention dated June 23, 1986 had been challenged by filing a writ petition in the High Court. Consequent on the revocation of that order that writ petition was withdrawn as having become infructuous and another writ petition, out of which the present appeal arises, was filed questioning the second order of detention dated August 7, 1986. The Advisory Board was constituted on August 18, 1986. A reference to the Advisory Board was made on August 20,1986. The Advisory Board made its report on September 26, 1986. It will be seen that the report of the Advisory Board was more than three months after the detention which commenced on the making of the order of detention, though it was within three months from the date of the second order of detention. The learned counsel for the petitioner contends that there has been a contravention of the constitutional protection afforded by Art. 22(4) and therefore, the petitioner is entitled to be set at liberty. He does not dispute that under See. 15(2) of the Gujarat Prevention of Anti-Social Activities Act the expiry or revocation of an earlier detention order shall not bar the making of a subsequent detention order under the Act against the same person, subject to the proviso that if there were no fresh facts, the maximum period for which a person may be detained shall not extend beyond the expiry of a period of 12 months from the date of detention under the earlier detention order. He submits that this provision, if to be sustained, as constitutionally valid, must be read down so that it does not offend the mandate of Art. 22(4) of the Constitution that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless the Advisory Board has reported within the period of three months that there is in its opinion sufficient cause for such detention. On the other hand, the learned counsel for the State of Gujarat submits that it is enough if the report of the Advisory Board is obtained within three months of the subsequent order of detention, where the earlier order is revoked and a subsequent order is made.
(3.) The real question for consideration is whether a law may be made providing for successive orders for detention in a manner as to render the protection of Art. 22(4) of the Constitution ineffective For example, can a fresh order of detention be made every 89th day making it unnecessary to obtain the report of the Advisory Board within three months of the detention That is what it will amount to if the submission of the learned counsel for the State is accepted. It, therefore, becomes imperative to read down Sec. 15 of the Gujarat Prevention of Anti-social Activities Act, 1985 which provides for the making of successive orders of detention so as to bring it in conformity with Art. 22(4) of the Constitution. If there is to be a collision between Art. 22(4) of the Constitution and Sec. 15 of the Act, S. 15 has to yield. But by reading down the provision, the collision may be avoided and Sec. 15 may be sustained. So, avoiding the collision course, we hold that if the report of the Advisory Board is not made within three months of the date of detention, the detention becomes illegal notwithstanding that it is within three months from the date of the second order of detention.;