NIRMAL KUMAR KHANDELWAL v. UNION OF INDIA & Ors.

JXtssed by the Secretary to the Government of Maharashtra under Section 3(1) of COFEPOSA. The Advisory Board reported on 23-12-77 that there was sufficent cause for the detention but the Government did not pass any order confirming the detention within three months from the date of detention. The petitioner assailed it as violative of Art. 22(4) of the Constitution. Allowing the petition the Court. IIELD : 1. Sjuce no order of confirmation of the detention was made under clause (f) of Section 8 within three months of the date of detention by the appropriate Government, further detention of the petitioner after the expiry of that periud is without the authority of law. [822 C]

#2. The Ja\v does not lend its authority to the continuance of the detention even for a day more than the initial period of three months if the Government does not take a decision for that purpose on the report of the Advisory Board within three months of the commencement of the detention. (822 A-B]

#3. The expression "may confirm" in clause (f) of Section 8 of COFEPOSA, is significant. It imports a discretion. Even where the Advisory Board makes a report that in its opinion, there is sufficient cause for the detention of detenu concerned, the Government may not confirm the detention order. Read in the light of Article 22(4) of the Constitufion and the context of the words "continue the detention", the expression definitely leads to the conclusion that the sine qua non for continuing the detention made· beyond the period of three months. is the confirmation of the detention order by the appropriate Govern ment. Conversely, non-confirmation of the initial order by th~ a·pproprfate Government before the expiry of the- period of three. months detention, shall automaticaliy result in revocation and termination of the legal authority for its continuance. This position is further clear from the language· of Section 10, which provides : "The n1aximum period for \vhich any person may be detained in pursuance of any detention order ...... which has been confirmed under clause (f) of Section 8, shall be one year from the date of detention." 11le crucial words in the Section are : "which has been confirmed under clause ( f) of Section 8." They underscore the S3'11e policy which underlies the constitu tional n1andate in Article 22(4). These words put it beyond doubt that if the initial order of detention is not confifmed by the appropriate Government with in three montils of the date of the detention, the detention after the expiry of that period ipso facto becomes unauthorised and illegal. [821 C-FJ Ujjal Manda! v. State of West Bengal, AIR 1972 SC 1446 The key words in clause (f) are those which have been underlined. These very words were also, employed in Section 12(1) of West Bengal Prevention of Violent Activities Act, 1970, the interpre tation of which had come up for consideration in the context of Article 22( 4) of the Constitution iu Ujjal Mondal's case. These words also occurred in Sections 10 and 11 of the Preventive Detention Act, 1950, which were in pari materia with Sections 11 and 12 of Maintenance of Internal Security Act, 1971. The expression "may a co'nfirm" in clause (f) of Section 8 is significant. Even where the Advisory Board makes a report that discretion. in its opinion there is sufficient cause for the detention of the detcnu concerned, the Government may not confirm the detention order. Read in the light of Article 22 ( 4) of the Constitution and the context of the words "continue the detention", they definitely lead to the conclusion that the sine qua non for continuing the detention made beyond the period of three months, is the confirmation '°~ the detention by the appropriate Government. Conversely, the non-confirmation of the initial iorder by the appropriate Government before the expiry of the period of three months detention, shall automatically result in revocation and termination of the legal authority for its continuance. This position is further clear from the language of Section 10, which prpvides : "The maximum period for which any person may detained in pursuance of any detention order ...... which has been confirmed under clause (f) of Section 8, shall be one year from the date of detention." The crucial words in the Section are : "which bas been confirmed under clause (f) of Section 8.". They under score the same policy which underlies the constitutional mandate in Article 22( 4). These words put it beyond doubt that if the initial order of detention is not confirmed by the appropriate Government within three months of the date of the detention, the detention after the expiry of that period ipso facto becomes unauthorised and illegal. We do not find any merit in the contention that since the period prescribed for the Advisory Board to make its report has been in creased from 10 weeks (as prescribed under MISA) to 11 weeks in COFEPOSA, leaving only a short period for the Government take a decision under Section 8(f), the legislative intent was tliat the order of confirmation of the detention and its continuance could be made after the expiry of three months from the date of the deten It is true that in certain situation when the Advisory Board tion. makes its report in favour of the detention just before the expiry of 11 weeks from the date of the detentidn, the time left to the Govern- E F G H 822 SUPREME COURT REPORTS [1978] 3 s.c.R. A B c That only shows ment for taking a decision as to the confirmation of the detention and its continuance would be hardly two weeks. anxiety on the part of the legislature to ensure that the Government continues the preventive detention of a person beyond three months after due application of mind and for that purpose acts with uttl).ost promptitude. The law does not lend its authority to the continu ance of the detention even for a day more than the initial period of three months if the Government does not take a decision for that pur pose on the report of the Advisory Board within three months of the commencement of the detention. There is no reason to doubt the law enunciated by this Court in the ratio of those the aforesaid decisions. Respectfully following decisions, we hold that since no order of confirmation of the detention was made under clause (f) of Section 8 within three months of date of detention by the appropriate Government, further detention of the petitioner after the expiry of that period is without the authority of law. In the· result, we allow this petition, quash the detention of the Rule made petitioner and direct that he be set at liberty forthwith. absolute. D S.R. Petition allowed. • l •