ANIL KUMAR SEN, J. - (1.) THE subject matter of challenge in this Rule is the detention of the detenu Dilip Kumar Mazumdar, alias, Mona under an order dated October 19, 1971, passed by the Commissioner of Police, Calcutta in the exercise of his powers under Section 3(1) read with Section 3(2) of the Maintenance of Internal Security Act, 1971. The impugned order recites that the Commissioner was satisfied that such detention was necessary with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order. The detention rests on two grounds which are set out hereunder: (1) On 28.6.71 at about 11.45 hrs. you along with your associates Rathindra Kumar Sinha of 17/A. Simla St. and others, all being armed with bombs created a great disturbance on Tarak Pramanick Road in between premises Nos. 146 and 158A with a view to terrorise the locality. The incident led to the closure of shops, suspension of vehicular traffic and a widespread panic shrouded the area thereby affecting public order. (2) On 29.9.71 at about 13.30 hrs. you along with your associates Durga Singh of 8. Simla Street Bimal Kumar Sinha of 46. Shib Narayan Das lane and others all being armed with bombs created a great disturbance of public order at the King of Tarak Pramanick Rd. and Simla St. and hurled bombs indiscriminately with a view to terrorize the locality. The incident led to the closure of shops suspension of vehicular traffic and a widespread panic shrouded the area thereby affecting public order.
(2.) THE detenu was put to detention on October 19, 1971. The order of detention was duly approved by the State Government on October 28, 1971. The detenu made a representation on November 10, 1971. and the said representation was actually received by the Home Department on November 13, 1971. Under Section 10 the State Government made a reference to the Advisory Board on November 16, 1970. In making the said reference the State Government, however, proceeded on the basis that no representation had been received from the detenu and the relevant part of the pro from a order indicating forwarding of the representation to the Advisory Board was penned. through. The representation itself was taken up for consideration by the appropriate authority on behalf of the State Government on December 3, 1971. on which date it was rejected as a general denial and on the same date a copy of the representation was forwarded to the Advisory Board, The Advisory Board submitted its report oh December 7, 1971 expressing its views that there is sufficient cause for detention. Thereafter, by an order dated December 17, 1971 the order of detention was confirmed and the detention was directed to continue for a period of twelve months. An important question has been raised by Mr. Acharya on the facts set out hereinbefore. According to him, when the detenu was put to detention on October 19, 1971 and when the detenu had made a representation on 21st day of his detention, it was incumbent on the State Government to place a copy of the representation before the Advisory Board within thirty days from the date of detention as enjoined by Section 10 of the said Act. When that was not done, there has not only been an infringement of the mandatory provision of Section 10, but also an infringement of the constitutional safeguard so far as the detenu is concerned which must be held to have vitiated the continued detention of the detenu. On the facts set out hereinbefore, there is no dispute that the thirtieth day from the date of detention would have been November 18, 1971 and long prior there to the representation was not only made by the detenu but was also received by the Home Department. But notwithstanding such receipts, it was not forwarded to the Advisory Board prior to the expiry of thirty days from the date of his detention and was actually forwarded to the Board on December 3, 1971.
(3.) A question thus arises for consideration as to what would be the effect of such delay in the matter of placing the representation before the Advisory Board. This question would involve consideration as to whether the obligation cast upon the State Government by Section 10 of the Act in the matter of placing the representation before the Advisory Board within thirty days is mandatory or not. It would be necessary to refer to Section 10 itself which reads as follows: 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 thirty days from the date of detention under the order, place before the Advisory Board constituted by it under Section 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, and also the report by such officer under Sub -section (3) of Section 3.;