P L D 1954 Sind 25 (PLP)

LARI, J.‑These are three applications one by Chatrumal Kirpaldas, the other by Kirpaldas Khushaldas and the third by Morardas Narsinghdas under section 491 Cr. P. C. alleging that their detention is illegal and praying that they be set at liberty. All the three applicants were arrested on 6th January 1953, in pursuance of an order passed against them on 20th December 1952, by the Government of Sind under section 3 (b) of the Sind Public Order and Detention Act No. (XV of 1952). The ground of detention furnished to Kirpaldas Khushaldas under section 6 of the Act was "You are a notorious smuggler of food-grains and thus you have acted in a manner prejudicial to the maintenance of supplies and services essential to the Community." The ground supplied to Chatrumal Kirpaldas was: "That you indulge in smuggling of food-grains in Taluka Chachro and thus you have acted in a manner prejudicial to the maintenance of supplies and services essential to the community." The ground supplied to the applicant Morardas Narsinghdas was exactly the same as that which was furnished to Kirpaldas Khushaldas. The first contention urged on behalf of the applicants was that the Provincial Government did not review the orders of detention after the expiry of six months as provided by section 8 of the Act and consequently, further detention of the applicants is illegal. It was admitted on behalf of the Crown in the affidavit filed on their behalf on 7th August 1953, that the Government had not reviewed the case of any of the detenue applicants, but explained that the first review had to be made only after the receipt of the report of the Advisory Board and as no such report had been received no review could take place. It will be relevant to quote here the necessary provisions of the Act: "

6. In every case where a detention order had been made under clause (b) of subsection (1) of section 3, the authority making the order shall, within one month of the date of deten tion, communicate to the person affected thereby the grounds on which the order has been made to enable him to make if he wishes a representation in writing against the order, and it shall be the duty of such authority to inform such person of his right of making such representation and to afford him the earliest opportunity of doing so: " Provided that nothing in this section shall require the authority to disclose facts which it considers to be against the public interest to disclose.

7. In every case where a detention order has been made under clause (b) of subsection (1) of section 3, or where an order has been passed under section 9, the authority making the order shall, within three months of the issue of the order, place before the Advisory Board constituted by the Provincial Government under section 5 the grounds on which the order has been made and the representation, if any, made by the person or persons affected by the order. 8. (1) The Advisory Board shall, after considering the materials placed before it and, if necessary, after calling for such further information from the Government or from any person concerned or affected, as it may deem necessary, submit its report to the Provincial Government. (2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the passing of the order, and except for that part of the report in which such opinion of the Advisory Board is specified the report shall be confidential. (3) A person against whom an order under clause (b) of sub-section 1 of section 3 or under section 9 has been made or who is affected by such an order, shall not be required or permitted to attend in person or to appear by any legal representative before the Advisory Board, or to produce any witness before the Advisory Board. (4) On receipt of the report of the Advisory Board, the Provincial Government shall consider the same and shall pass such order thereon as appears to it to be just and proper: Provided that the Provincial Government shall review all such orders every six months from the date of the order, unless revoked earlier, and shall, in the case of an order under clause (b) of subsection (1) of section 3. inform the person affected by the order of the result of the review". The question for consideration is whether review contemplated by the proviso has to be made every six months from the original order of detention or from the order passed by the Government on receipt of the report of the Advisory Board. It will be noted that reference has to be made to Advisory Board in case of two orders, one order under clause (b) of subsection (1) of section 3 and the other order passed under section 9 of the Act. Now the proviso says that Provincial Government shall review all such orders every six months. The word "orders" in our opinion necessarily refers to orders which have to be referred to Advisory Board under section 7 of the Act i.e. order under clause (b) of subsection (1) of section 3 and order under section

9. This finds further support from the latter portion which says: ''In the case of an order under clause (b) of subsection (1) of section 3 inform the person affected by the order of the result of the review". Necessarily the words "such orders" meant either the order under clause (b) subsection (1) of section 3 or section

9. The learned Advocate‑General argues that the word "such orders" referred to order passed on the report of the Advisory Board, but there is no warrant for this. The relevant portion of section 8 relating to order on the report of the Advisory Board runs thus: "On receipt of the report of the Advisory Board, the Provincial Government shall consider the same and shall pass such order thereon as appears to it to be just and proper". Reference is made only once to the Advisory Board and therefore only one order is to be passed on the report of the Advisory Board. If the words "such orders" referred to order passed by the Government on the Advisory Board the word "orders" could not be used and only order would have used. Secondly, the whole proviso has to be read as a whole and the only reasonable meaning is that such orders referred to both the original orders which could be passed under clause (b) of sub section (1) of section 3 or under section 9 Even if both the inter pretations were possible we would lean towards the interpretation which is favourable to the subject and is in accord with the object in view as the provision is in the nature of protection and safeguard. In this view of the matter it is obligatory on the part of the Provincial Government to review order of detention every six months from the date of the original order of detention. It having been admitted that no review took place on expiry of six months, the question is whether further detention becomes illegal. The proviso is mandatory and to our mind has been inserted with a view to ensure that case of every detenue who is detained for indefinite period or for over six months receives the considera tion of the Provincial Government every six months. Under clause (b) of subsection (1) of section 3 no period need be specified and if a proviso for order of review is not there, the detaining authority is not likely to apply its mind to the case of a detenue even though a change would have taken place warranting release. It was observed by Brett, L. J. in Dates case: Enraughts case, (1881) ‑6 Q B D 376 at p. 461, "It is a general rule which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular and that if he fails to follow every step in the process with extreme regularity the Court will not allow the imprisonment to continue." With great respect we agree with this observation. It has been held in various cases decided in the neighbouring country Bharat that where mandatory statutory provisions have not been complied with, the mere non‑compliance makes further deten tion illegal. Reference may be made to case Dr. Rain Krishan Bhardwaj v. The State of Delhi and others) reported in A I R 1953 Supreme Court at p. 318 and to decisions of Allahabad High Court reported in A I R 1949 All. at p. 37 Inder Prakash and others v. Emperor) and p. 395 S. G. Sardesai v. The Provincial Government. We, are therefore, of opinion that it was obligatory on the par of the Provincial Government to review the order of detention after the expiry of six months, and that not having been done further detention of the detenu applicants is illegal. It was pointed out to us by the learned Advocate‑General that several representations had been made to the Government and they had been considered and rejected. We may quote para 10 of the affidavit on behalf of the Crown to which reference has been made. It runs thus That the applicant and his advocate on his behalf have made representations to Government and the Government have duly considered and rejected the petitions. After the matter was placed before His Excellency, a reply to that effect was sent to Seth Sukhdeo, Member of the Constituent Assembly in reply to his two letters." We are not aware of the nature of representations and the replies sent to Mr. Seth Sukhdeo. This para. has no reference to review contemplated by section 8 and that review has been men tioned by the same affidavit in para. 9 which runs thus: "That the Government has not reviewed the case of the detenue applicant on the reports of the Advisory Board as required by the proviso of section 8 of the Act, as no such report has been received." The above para shows that the Government is of opinion that review has to take place only after receipt of the report of Advisory Board and in cases Advisory Board does not choose to send its report for indefinite period no question of review would arise. This interpretation is based on a misreading of the section as observed above. The law requires that the Government shall review the case of detenue every six months irrespective of the report 'of the Advisory Board. The in‑action of the Advisory Board cannot nullify a statutory safeguard provided for the benefit of a detenue who has been arrested under emergency legislation without any trial. It was further contended that the grounds applied are not legal and in any way are indefinite and vauge, but it is not necessary to go into this aspect of the case as we are of opinion that failure .on the part of the Government to review the cases of the detenue applicants on the expiry of six months has made their further detention illegal. We, accordingly, accept these applications and order that all the three applicants be released forthwith unless required in some other cases. A. M. A. Petition Accepted.