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TMI Blog1974 (8) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... (5). Fourth, it is said that the Act violates Article 14 because it permits discrimination. The Act confers power on the Central Government or the State Government to make orders directing detention of persons. Section 3 of the Act provides that when the Central Government or the State Government is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, District Magistrates, Additional District Magistrates or Commissioners of Police can pass orders of detention. The Act provides in sub-sections (3) and (4) of section 3 that when any order is made for detention the officer shall forthwith report the fact to the State Government with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter. Further no order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a High Court. The appropriate Government shall appoint one of the members of the Advisory Board who is, or has been, a Judge of the High Court to be its Chairman. A detention order is to be placed before the Advisory Board within 30 days from the date of detention under the order. The grounds: of detention, the representation made by the person concerned and the report of the officer making the order shall be placed before, the Advisory Board. These are the provisions of section 10 of the Act. The Advisory Board under section 11 of the Act shall, after considering the materials placed before it and, after calling for such further 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 10 weeks from the date of detention. The report of the Advisory Beard shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance of public order, or the maintenance of supplies and services essential to the community does not enable the person detained to attack the grounds for detention and to prove by material in rebutal his innocence by consideration of the representation. The petitioners contend that the Act permits detention for two years and even until the expiry of the period of proclamation of emergency and therefore it is an unreasonable restriction in violation of Article 19 without a six monthly review with a judicial approach. With regard to the report of the Advisory Board it is said that the reasons for rejecting representation must be available to the person detained. This is said to be necessary to enable the person detained to come up, before the Court for judicial review and in aid of his right to liberty, The petitioners, therefore, contend that the law of preventive detention is unreasonable, in violation of Article 19 inasmuch as the, order of detention can be passed on acts sought to be prevented which acts are not defined. It is said that the power is so unguided that acts forbidden and acts not forbidden by law are treated, alike to be the foundation for detention. The petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive detention to prevent the greater evil of elements imperiling the security, the safety of a State and the welfare of the Nation. It is not possible to think that a person, who is detained will yet be free to move or assemble or form association or unions or have the right to reside in any part of India or have the freedom of speech or expression. Suppose a person is convicted of an offence of cheating and prosecuted after trial, it is not open to say that the imprisonment should be tested with reference to Article 19 for its reasonableness. A law which attracts Article 19 therefore must be such as is capable of being tested to be reasonable under clauses (2) to (5) of Article 19. This Court in A. K. Gopalan v. The State of Madras [1950] S. C. R 88 held that Article 22 is a complete code and Article 19 is not invoked in those cases. It is now said that the view in Gopalan's case (supra) no longer holds the field after the decision in the Bank Nationalisation case [1970] 3 S.C.R. 530. In the Bank Nationalisation case (supra) this Court held that Article 31(2) is not a complete protection for acquisition of property by the two tests of authority of law and compensation. This C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 22 where it is not necessary to disclose facts which may be considered to be against the public interest to disclose. The representation of a detenu is to be considered. There is an obligation on the State to consider the representation. The Advisory Board has adequate power to examine the entire materials. The Board can also call for more materials. The Board may call the detenu at his request. The constitution of the Board shows that it is to consist of Judges or persons qualified to be Judges of the High Court. The constitution of the Board observes the fundamental of fair play and principles of, natural justice. It is not the requirement of principles of natural justice that there must be an oral hearing. Section 8 of the Act which casts an obligation on the State to consider the representation affords the detenu all the rights which are guaranteed by Article 22(5). The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considered whether in the light of the representation there is sufficient cause for detention. The representation is to be considered by the Advisory B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and a long as a representation is to be considered by the Advisory Board there is no unreasonableness in regard to the procedure. The duty to consider the representation does not mean a personal hearing or the disclosure of reasons. Procedural reasonableness which is invoked by the petitioners cannot have any abstract standard or general pattern of reasonableness. The nature of the right infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied there by, the disproportion of the imposition, the prevailing conditions at the time, all provide the basis for considering the reasonableness of a particular provision. The procedure embodied in the Act has to be judged in the context of the urgency and the magnitude of the problem, the underlying purpose of the restrictions and the prevailing conditions. Principles of natural justice are an element in considering the reasonableness of a restrictions where Article 19 is applicable. At the stage of consideration of representation by the State Government, the obligation of the State Government is such as Article 22(5) implies. Section 8 of the Act is in complete conformity with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. The State of West Bengal reported in A.I.R. 1972 S.C. 2256, Ashim Kumar Ray v. State of West Bengal reported in A.I.R. 1972 S.C. 2561., Abdul Aziz v. The Distt. Magistrate, Burdwan & Ors. reported in A.I.R. 1973 S.C. 770 and Debu Mahto v. The State of West Bengal reported in A.I.R. 1974 S C. 816 correctly lay down t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further that he had no licence as required by section 4 of the West Bengal Essential Foodstuffs Anti- Hoarding Order, 1966. The detaining authority said in the ground: "It is apparent in the aforesaid facts that you in collusion with your father are likely to withhold or impede supply of foodstuffs or rationed articles essential to the community." The future behaviour of Madan Lal Agarwala based on his past conduct in the light of surrounding circumstances is the real ground of detention. It is need- less to stress the obvious that Madan Lal Agarwala's acts are gravely 'prejudicial to the maintenance of supplies essential to the community. It was said in the case of Haradhan Saha that he was released on 25 July, 1973 and he was arrested on 7 August, 1973, pursuant to, a detention order dated 31 July, 1973, It is, therefore,, said that the detention order was passed for collateral purposes. The grounds in the detention order are that on 19 June, 1973 Haradhan Saba with his associates was smuggling 115 bags of rice weighing 93 quintals 80 kgs. to Calcutta covered by coal by engaging lorry without any valid permit or authority. Haradhan Saha violated the provisions of West B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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