Nizam Babamiya Bhatti Vs. A.S. Samra and Others - Court Judgment

Excerpt:
criminal - interpretation - section 3 (5) of national security act, 1980 - whether section 3 (5) demands that report of state government must reach the central government within seven days - expressions 'communicate' 'report' 'forward' are merely different words to express object that state shall intimate to center within seven days - expression does not mean that intimation should also reach center within seven days - expression 'report' used in section 3 (5) must be construed as requirement of state to forward report not as receipt of report by center. - - it was claimed on behalf of the detenu that the requirement of sub-section (5) of section 3 is not satisfied by the state government forwarding the report to the central government within 7 days from the date of issuance of the order of detention, or approval of such order as the case may be, but it is also essential that the report must reach the central government within a period of 7 days from the date of the order or approval as the case may be. the requirement that the order passed by the officer shall be reported forthwith to the state government is crucial because failure to do so would bad to the consequences of the order coming to an end. the failure to do so would also automatically make the order ineffective thereafter. the provisions of sub-section (4) of section 3, section 11 and section 12 read together makes it clear that the time schedule fixed by the parliament is required to be strictly observed as the failure to do to leads to the consequences of the efficacy of the order coming to an end. the words used are 'rajya sarkar ushtatth ki report kendriya sarkar ko sat din ke bhitar bhejengi'.the use of expression 'bhejengi' clearly indicates that the state government shall forward the report to the central government.pendse, j.1. the division bench hearing petition, by order dated october 29, 1993, framed the following question and directed that the papers should be put up before the learned chief justice to consider whether the question should be examined by larger bench : 'whether sub-section (5) of section 3 of national security act, 1980 demands that report of the state government must reach the central government within seven days ?' the learned chief justice by order dated november 1, 1993 constituted this larger bench and, accordingly, the proceedings are placed for determination of the question. it is not necessary to set out the facts which gave rise to passing of order of detention of the petitioner, save and except the fact that the order of detention was passed by the commissioner of police, greater bombay on september 10, 1993 and was approved by the state government on september 21, 1993. the report contemplated under sub-section (5) of section 3 of the act was forwarded on september 21, 1993 itself but reached the central government on september 29, 1993. on these facts contention is raised that the provisions of sub-section (5) of section 3 of the act are breached and, therefore, continuation of order of detention is illegal. 2. before adverting to the decision of the division bench on which reliance is placed to advance the contention, it would be appropriate to set out the relevant provisions of the act. the parliament passed by the act to provide for preventive detention in certain cases and for matters connected therewith. sub-section (1) of section 3 confers power upon the central or the state government to make an order directing detention of the person, inter alia, on the ground that such a person is likely to act in any manner prejudicial to the maintenance of public order. sub-section (3) of section 3 of the act provides for exercise of powers by district magistrate or commissioner of police. sub-sections (4) and (5) of section 3 of the act read as follows : '(4) when any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the state government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the state government : provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that, for the words 'twelve days', the words 'fifteen days' shall be substituted. (5) when any order is made or approved by the state government under the section, the state government shall, within seven days, report the fact to the central government together with the grounds on which the order has been made and such other particulars as, in the opinion of the state government, have a bearing on the necessity for the order.' section 10 of the act provides for reference to advisory boards and section 11 sets out the procedure of advisory boards. the section, inter alia, provides that the advisory board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate government, submit its report to the appropriate government within 7 weeks from the date of detention of the person concerned. section 12 provides that where the advisory board has reported that no sufficient cause for the detention is communicated, then government shall be moved to revoke the detention order and release the detenu forthwith. 3. sub-section (5) of section 3 demands that when any order is made by the state government or when any order is made by the district magistrate or the commissioner of police is approved, then the state government should within 7 days, report the fact of the central government. the state government is also required to forward the grounds on which the order was made and certain particulars as, in the opinion of the state government, have a bearing on the necessity for the order. it was claimed on behalf of the detenu that the requirement of sub-section (5) of section 3 is not satisfied by the state government forwarding the report to the central government within 7 days from the date of issuance of the order of detention, or approval of such order as the case may be, but it is also essential that the report must reach the central government within a period of 7 days from the date of the order or approval as the case may be. the plain reading of sub-section (5) does not support the contention. it is necessary to bear in mind the object of enacting sub-section (5) of section 3 of the act. the powers under section 3 are conferred both on the central government and the state government to direct detention. section 14(1)(b) of the act provides that a detention order may, at any time, be revoked or modified by central government notwithstanding that the order has been made by the state government. the object of enactment of sub-section (5) of section 3 is that the central government must be kept informed of the powers exercised by the state government and the grounds and the particulars relied upon for exercise of such power. the information received from the state government will enable the central government to consider revocation or modification of the detention order in accordance with the powers conferred under section 14(1)(b) of the act. the central government is entitled to revoke or modify the order of detention under section 14 of the act not merely in pursuance of the report sent by the state government but even from the representation from the detenu or the information gathered otherwise. the supreme court in the decision reported in : [1980]3scr738 sabir ahmed v. union of india observed while examining the ambit of provisions section 11 of cofeposa that power under this section may be exercised on information received by the central government from its own sources including that supplied under section 3 by the state government, or, from the detenu in the form of a petition or representation. it is, therefore, obvious that making of the report by the state government under sub-section (5) of section 3 is not only source from which the central government can gather the fact of detention for the purpose of exercising powers under section 14(1)(b) of the act. the object of sub-section (5) is that the state government shall within reasonable period and i.e. within 7 days from the date of passing of order or approval of the order shall forward report to the central government so as to inform the central government of the exercise of powers. it is necessary to bear in mind the difference between the provisions of sub-section (4) of section 11 on one hand and sub-section (5) of section 3 on the other. sub-section (4) of section 3 of the act provides that when any order is made by an officer of the state government, then the officer shall forthwith report the fact to the state government and order passed by the officer shall not remain in force for more than 12 days after the date of making unless, in the meantime, the state government approves of the same. the requirement that the order passed by the officer shall be reported forthwith to the state government is crucial because failure to do so would bad to the consequences of the order coming to an end. the provisions of sub-section (4) of section 3 of the act makes it clear that in case the order passed by the officer is not approved within stipulated period, then automatically the order will cease to have effect. section 11(1) demands that the advisory board shall submit its report to the appropriate government within 7 weeks from the date of detention. the failure to do so would also automatically make the order ineffective thereafter. section 12 provides that in case the advisory board reports that there was no sufficient cause for detention, then the state government is bound to revoke and release the detenu forthwith. the provisions of sub-section (4) of section 3, section 11 and section 12 read together makes it clear that the time schedule fixed by the parliament is required to be strictly observed as the failure to do to leads to the consequences of the efficacy of the order coming to an end. the period fixed under sub-section (5) of section 3 stands on entirely different footing. the sub-section demands that the state government shall within 7 days from the date of the order of approval report the fact of the central government. the sub-section nowhere provides that in case the report does not reach the central government within 7 days, then the order will automatically come to an end. it is necessary to bear in mind the distinction between the two sets of provisions because the power of revocation of detention conferred on the central government in respect of order passed by the state government is not based only on the report to be forwarded under sub-section (5) of section 3 of the act and can be exercised independently or dehors thereto. in our judgment, sub-section (5) of section 3 does not require that the report of the state government shall reach the central government within 7 days of the date of passing of the order or the approval thereof, as the case may be. it also cannot be overlooked that sub-section demands not merely reporting the fact of detention but also the grounds on which the order was passed and all particulars thereof having a bearing on the necessary for the order are to be forwarded to the central government. normally, large number of documents on which the detaining authority relies are in local language and it is incumbent upon the state government to forward the report with english translation of those documents and the parliament never contemplated that all these requirements which are mandatory should not only be complied with within 7 days but the report along with the documents should reach the central government within 7 days. 4. the reference to larger bench was required in view of the decision of division bench of this court reported in : (1985)87bomlr211 vinayak ramchandra sakhalkar v. d. ramchandran, commissioner of police, thane. the division bench took the view that mere sending of the report by the state government within seven days is not enough and sub-section (5) of section 3 of the act demands that it is necessary that the report should be received by the central government within seven days period. the division bench referred to the decision of the supreme court in the case of sher mohammed v. the state of west bengal reported in : [1975]3scr154 and especially on following observation : 'a fair reading of section 3 indicates that the state government may directly issue an order of detention or, if it is done by a lesser authority, approve of such detention order as provided in the statute. sub-section (4) of section 3, which we have extracted, obligates the state government to communicate, within seven days of the order of detention it makes or it approves, that fact to the central government, together with the grounds on which the order has been made and other relevant particulars. even assuming that the order is made by the district magistrate and is approved by the state government, the communication has to be made to central government within the time specified. this procedural mandate is inviolable except on peril of the order being voided.' the division bench felt that the use of expression 'communicate' suggests that not only the report should be forwarded by the state government but must reach the central government within seven days. with respect to the division bench, it is not possible to read the decision of the supreme court to draw such an inference. the expression 'communicate' referred in the order of the supreme court connotes transmitting the information by the state government to the central government. the expression 'communicate' as defined under oxford english dictionary means to import, confer or transmit information and, therefore, the expression cannot lead to the conclusion that the report must reach the central government within a period of seven days. the division bench referred to similar provision under section 3(2) of cofeposa and observed that sub-section provides that the state government shall within 10 days forward to the central government report in respect of the order. the division bench felt that the absence of expression 'forward' in sub-section (5) of section 3 of the act is indicative of the fact that mere forwarding of the report is not suffice but the report must reach the central government. we are afraid that the view expressed by the division bench in not accurate. the expressions 'communicate', 'report' 'forward' are merely different words to express the object that the state government shall intimate to the central government within a period of seven days and these expressions cannot be considered to mean that the intimation should also reach the central government within seven days. it would be proper in this connection to refer to hindi version of sub-section (3) of section 3 of the act. the words used are 'rajya sarkar ushtatth ki report kendriya sarkar ko sat din ke bhitar bhejengi'. the use of expression 'bhejengi' clearly indicates that the state government shall forward the report to the central government. the expression 'report' used in sub-section (5) of section 3 of the act, therefore, must be construed as the requirement of the state government to forward the report and not as receipt of the report by the central government. with respect, we are unable to agree with the decision of the division bench and we overrule the same. 5. reference was made to the decision in the case of jivrajbhai vrajlal patel v. state of gujarat reported in 1988 (1) guj lr 17 : : (1988)1glr17 . the division bench of the gujarat high court followed the judgment delivered by the division bench of this court and additional reasons are not furnished for conclusion that sub-section (5) of section 3 of the act requires that the report must reach the central government within duration of seven days. the division bench of allahabad high court in the judgment reported in 1986 (1) crimes 124 guru charan singh v. superintendent, central jail also followed the decision of the division bench of this court. reference was made to the full bench decision of assam high court reported in hitendra nath goswami v. state of assam. the assam high court has not examined the question posed for consideration in the present proceedings. 6. the division bench of patna high court in judgment reported in yogendra singh v. state of bihar held that the requirement of sub-section (5) of section 3 of the act is that the state government should send a report within seven days from the date of passing of the order or approval thereof and it is not necessary that such report should reach the central government within that stipulated period. the division bench of orissa high court in the judgment reported in ullas sahu and etc. v. district magistrate, cuttack took an identical view. the orissa high court specifically differed with the decision of the division bench of this court. the orissa high court felt that the construction report should reach the central government within a period or seven days from the date of making the order will frustrate the object and purpose of the statute and, therefore, it would not be proper to adopt the construction which would render the provision unworkable. we are in respectful agreement with the decisions of the division bench of patna and orissa high courts and differ from the view taken by the gujarat and allahabad high court, which have drawn support from the decision of the division bench of this court. 7. for the reasons recorded, the question is answered in the negative. the paper and proceedings to be placed before the division bench for disposal of the petition on merits. 8. order accordingly.