- (1.) THESE are two applications by Sheria and Kaluram for a Writ of Habeas corpus under Article 226 of the Constitution of India. The petitioners are in central jail, Jodhpur in pursuance of the order of the District Magistrate. Nagaur, under sub-sec. (2) of sec. 3 of the Preventive Detention Act (No. IV) of 1950. We propose to dispose of these applications by one order as they raise common grounds and can be disposed of on one short ground only.
(2.) THE main grounds on which the peti-tioners have attacked the order of the District Magistrate, Nagaur are first, that they were not furnished with a copy of the order of the detention nor was it shown to them; secondly, that the grounds on which the detention was ordered were vague and indefinite with the result that the petitioners were prevented from making an effective representation to the authorities concerned against the detention; and lastly, that they had asked for an opportunity of being personally heard by the Advisory Board but that the latter did not afford them any such opportunity and rejected their representations and therefore their detention was illegal. We do not propose to go into the first two grounds referred to above as in our opinion the present applications can be disposed of on the last ground alone. The relevant portion of sec. 10. of the Preventive Detention (Second Amendment) Act (No. LXI) of 1952 reads as follows: - "the Advisory Board shall, after considering the materials placed before it and after calling for such information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if in any particular case it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within ten weeks from the date of detention. " The effect of this section clearly is that where the detenu desires to be heard in person, the Advisory Board is under a duty to given him such an opportunity and then submit its report to the Government within the time prescribed. It is conceded before us by the learned Government Advocate that the petitioners had applied for such an opportunity and that somehow no opportunity was granted to them as prayed. The next question that falls to be determined is what is the effect of such an omission. Sub-Art. (4) of Art. 22 of the Constitution furnishes the answer : - "no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an advisory Board. . . . . . has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. . . . . . . . . ". The petitioners were arrested on the 26th of July, 1954, and their detention at this date is obviously more than three months old. Such detention could not be permitted unless the State Advisory Board recommend that there is sufficient cause for such detention. The recommendation of the Advisory Board in the present case is of no avail because it was not made according to law. The result is that both these applications must succeed and we hearby allow them and direct that the petitioners shall be released forthwith. In the circumstances, we would leave both parties to bear their own costs.;