A.Q. Parray, J.
1. By way of this petition one Ghulam Hassan Mir son of Mohd. Sarwar Mir r/o Lolab, Kupwara who happens to be the cousin of detenu Mohd. Yosuf Mir son of Late Jamal Mir r/o Kulgam, Lalpora, Kupwara has assailed the detention of the detenu. The petitioner has taken all the legal, constitutional and factual pleas while assailing the order of detention.
2. The petition stands admitted as far back as on 26-9-1991. Respondent-State has been served and in response they appeared and filed the counter which is on the file. The petition came up for arguments.
3. I have heard learned Counsel for the parties and perused the records.
4. The petitioner has raised many legal and constitutional points in assailing the detention order, but it can be disposed of on a solitary point viz. Whether the detention order has been confirmed after the opinion of the Advisory Board has been received by the Government within the stipulated period of three months or not from the date of detention. Learned Counsel for the respondent-State has made reliance on AIR 1972 SC 1356 : (1972 Cri LJ 845) and learned Counsel for the petitioner has made reliance on AIR 1972 SC 1446 : 1972 Cri LJ 916.
5. I had the occasion to go through these judgments and to say that both these judgments support the contention of learned Counsel for the petitioner. It has been laid down in these authorities that the detention order must be confirmed by the Government within three months from the date of detention, as the law existing at that time, when these judgments were delivered. Subsequently, the constitution has been amended for 44th Amendment Act, whereunder only two months period has been specified. Under clause (4) of Article 22 of the Constitution of India, for which period, the person/citizen could be deprived of his personal liberty or could be detained under the preventive detention. Though these provisions are not applicable to the State of Jammu and Kashmir, but the principle laid down in the law is applicable even today.
6. I do find that the law has been enacted by the state, the source of which is clause (4) of Article 22 of the Constitution as applicable to the State of J. and K. and the law is known as Jammu and Kashmir Public Safety Act of 1978. The law lays down as amended up to date that after the order of detention has been executed, the case of the detenu is to be placed before the statutory Advisory Board constituted in accordance with Section 14 of the Act and the Board has to return its opinion regarding existence of sufficient grounds or otherwise, justifying the continued detention of the detenu within 56 days and the Government has to confirm the order of continued detention, if they intend to continue the detention of the detenu on the opinion of the Board justifying the continued detention, even then the Government is within its powers. They may not confirm the detention, though opined by the Advisory Board for continued detention. The Government has the discretion. They may not continue any more with the detention of the detenu or in case they intend to continue with the detention, then the maximum period for which the detenu can be detained is spelt out in Section 18 of the Act. For purposes of the security of the State, the detenu can be detained for a maximum period of two years, but the fact remains that all this process is to be completed within a specified period. Though specifically the period of confirmation has not been given in Section 17 of the PSA, but the fact remains that such a time limit is implicit in section itself. Section 12 of West Bengal Prevention of Violent Activities Act corresponds to Section 17 of the State Act. To support my contention, I can safely quote from the judgment which has been relied upon and referred to by Mr. S. Mansotra i.e., AIR 1972 SC 1356 : (1972 Cri LJ 845) at paras 6, 7 and 8:
6. Section 10 of the Present Act requires the State Government to refer the case to the Board within 30 days from the date of detention and Section 11 requires the Board to submit its report within ten weeks from such date. The reason for prescribing these periods is obvious, that is to enable the State Government to decide, in the event of the Board reporting that there is sufficient cause for detention to confirm the detention order and to continue the detention thereunder "for such period as it thinks fit." (Section 21(1),). The significant words in Section 12 are the words 'confirm' the detention order and 'continue' the detention thereunder, 'for such period' as the State Government thinks fit. The order passed or the decision made under Section 12(1) by the State Govt. thus falls into two parts, (a) confirming the detention order upon the report of the Board as to the sufficiency of the cause for detention and (b) deciding to continue the detention under that order. It is clear that without such a report or in the event of the report that there is no sufficient cause for detention, the detaining authority can detain a person for three months only from the date of detention and the detention for a period longer than that would clearly be illegal. Thus, detention on the strength of the detention order only can validly continue up to three months. If on receipt of the Advisory Board's report, Government wants to continue the detention for a further period, it has got to make an order or a decision to confirm that order and continue the detention, for, without such an order or decision, the detention would not validly subsist beyond the period of three months. Though, therefore, Section 12 does not in express terms lay down that the decision to confirm the detention order and to continue thereunder the detention is to be made before the expiry of three months, such a time limit is implicit in the section The reason is plain. As aforesaid, Govt. cannot keep a person under detention for a day longer than three months, if the report of the Board does not justify the detention. The continuation of detention beyond three months can only be made upon the Government obtaining a report showing sufficiency of cause before the expiry of the period of three months. It is to enable the detaining authority to continue detention beyond three months when the detention must end that the Act provides 30 days within which period reference has to be made and ten weeks within which report has to be obtained. The two weeks left thereafter give time to the Govt. to decide whether or not the detention order should be confirmed and detention thereunder should be continued. If there is no such detention to confirm the order and to continue the detention thereunder, the detention has to come to an end on the expiry of three months from the date of detention. Such an order or decision has, therefore, to be made before the period of three months, for without such an order, the detention would otherwise cease to be valid.
7. This was the view taken by Reddy and Palekar, JJ., in Deb Sadhan Roy v. West Bengal, Writ Petition No. 218 of 1971, D/-7-12-1971 : (1973 Cri LJ 446) (SC). The same question arose before us also in Ujjal Mandal v. West Bengal Writ Petition No. 420 of 1971, D/- 21-1-1972 : (1972 Cri LJ 916) (SC), wherein the decision in writ petition No. 218 of 1971, D/- 7-12-1971 (SC) and the earlier decision of certain High Courts on similar provisions of the Preventive Detention Act, IV of 1950 were construed as containing the time limit of three months within which detention has to be confirmed and continued, were considered and followed.
8. It is not disputed that in the present case the order of decision confirming the detention order and the continuation of the Petitioner's detention thereunder was made or taken three days after expiration of the period of three months. That being so, there was, in view of the decisions preferred to earlier, no valid confirmation and continuation. With the result that the petitioner's detention after the expiry of the period of three months became illegal since it was not in compliance with Section 12(1). In this view, it is not necessary to consider the other two contentions urged by counsel."
9. The judgment of AIR 1972 SC 1446 : (1972 Cri LJ 916) has also been quoted by the above judgment and relied upon.
10. In the present case, I find that the order of confirmation has been passed by the Government per order No: Home-ISD-216-A of 1991 dated 14-4-1991, but the fact remains that the order of detention was passed by the Govt. per order No: Home-ISD-715-GR of 1990, Dt. 9-10-1990 and the order has been executed and served on the detenu on 23-10-1991 and the grounds of detention have been served on 24-10-90. The case of the detenu has been placed before the Advisory Board and the Board has returned its opinion on 6-2-1990, but the order has been confirmed as referred to above on 14-4-1991 i.e., after more than 172 days, that means more than three months period. So on this count alone, the order of detention which has been passed by the Government and confirmed as referred to above beyond the period of three months is ab initio void and unconstitutional beyond three months, which is the time limit provided by the Constitution, though I have in number of cases laid down that the order of confirmation as per the provisions of the Act applicable to the State are only sixty days. Even if for arguments sake I suppose that the order of confirmation is to be done within three months from the date of execution and on this score also, I find that it has not been done in the present case. So on the ratio of the decisions laid down by their Lordships of the apex Court as referred to above, the order of detention is held to be bad, illegal and unconstitutional.
11. For the foregoing reasons, the writ petition is allowed and the order of detention bearing No: Home-ISD-715-GR of 1990 dt. 9-10-90 and confirmed per order No: Home-ISD-216-A of 91 dt. 14-4-91 is quashed and it is directed that the detenu be released forthwith from custody wherever he is lodged. The records be returned to Govt. Advocate. The petition is disposed of accordingly.