Holding

The Supreme Court held that none of the alleged procedural defects invalidated the detention, and the order of detention stands.

Summary

Shamshar Singh, a practising advocate, was detained under Section 3(2) of the National Security Act, 1980. He challenged the detention on four grounds: (1) a one‑day delay in placing his representation before the Advisory Board violated Section 10; (2) the Board failed to consider documentary evidence he produced, contrary to Section 11(2); (3) the Board did not forward the entire record to the State Government, affecting the confirmation under Section 12; and (4) copies of confidential intelligence reports relied upon in the grounds were not supplied, impairing his right to make an effective representation under Article 22. The Supreme Court held that the one‑day delay was not fatal, the Board duly considered the material, there is no statutory requirement to forward the whole record, and the detainee need not be given the source of confidential information. Consequently, none of the High Court’s grounds justified quashing the detention, and the appeal was allowed, setting aside the High Court’s order.

Issues considered

Whether a one‑day delay in placing the detainee's representation before the Advisory Board under Section 10 of the National Security Act vitiates the detention.
Whether the Advisory Board's failure to consider documentary evidence produced by the detainee violates Section 11(2) of the Act.
Whether the entire record of the Advisory Board proceedings must be forwarded to the State Government before it confirms the detention under Section 12.
Whether the non‑disclosure of confidential intelligence reports used in the grounds of detention infringes the detainee's right to make an effective representation under Article 22 of the Constitution.

Legislation cited

Constitution of Indias. Article 22
National Security Act, 1980s. 10, s. 11(2), s. 12, s. 3(2)

Subjects

preventive detentionNational Security Actadvisory boardrepresentationpersonal libertyArticle 22procedural complianceconfidential intelligence reportsdetention order

Judgment

83

STATE OF RAJASTHAN & ANR.
A
v.
SHAMSHER SINGH

-
May I, 1985

[S. MURTAZA FAZAL ALI AND RANGANATH MISRA, JJ.]
B

Constitution of/ndia 1956, Article 22-Personal freedom-An invaluable
treasure-Not to be curtailed beyond necessity.

National Security Act 1980 Sections JO and 11(2). Advisory Board-Delay
of one day in placing the representation of detenu before Board-Non·consideration C
of documentary evidence pruduced by detenu before Board-Entire record of
Board not forwarded to State Govern1nent-lntelligence reports relied upon by
State not supplied to detenu-Order of detention-Whether vitiated.

The respondent, an Advocate, was ordered to be detained by the State
Government under Section 3(2) of the National Security Act, 1950. He was • D
taken into custody and detained. The grounds of detention were supplied to
him when he was detained.

The respondent challenged his detention in the High Court.
The High Court foulld : (1) that the representation of the detenu-
respondent had not been placed before the Advisory Board within three weeks
as required by s. 10 of the Act and such violation vitiated the continued E
detention of the respondent, (2) that the Advisory Board had not considered
the documentary evidence produced by the detenu and therefore the opinion
formed by the Board that the respondent should be detained was not an appro..
priate one. (3) that the materials in the record which had been considered by
the Advisory Board in formulating its recom1nendation to the State Government
had not been transmitted to the Government, and the same was not available
before the State Government, when it made the order of confirmation, F
(4) that the contents of the intelligence reports referred to in the grounds of
d~tention had not been supplied to the detenu and he had, therefore, been
deprived of the opportunity of making an effective representation against his
detention. The High Court consequently held that the detention of the
respondent cannot be upheld, and directed the order of detention directing him
to be detained for one year be quashed. G
In the appeal to this Court, it was contended on behalf of the State-
appe!lant, that the four grounds accepted by the High Court in quashing the
detention was wrong and not sustainable as a ground for such quashing. It
was further contended that as a fact there had been compliance of s. 10 of
the Act within a week of commencement of the detention and as by then no H
representation from the respondent had been received, the same could not be
placed before the Boa;d along with the grounds of detention. The respondent
js a pra~tisjng advocate and must have therefore properly placed his points
84 SUPREME COURT REp0RTS (1958] SUPPL. s.c.R.

before the Advisory Board. As the Board had not been sent the entire records,
A all the records were not available for the consideration of the State Government
at the time of confirmation of the detention. The respondent had actually •
been given in the grounds all the material details necessary for makina an
effective representation.

Allowing the Appeal,

B HELD: !(a) While making of the reference under s. 10 with the
grounds of detention is a must, furnishing of the representation is conditional
upon it having been made and receipt thereof by the appropriate Government.
Though under tbe general scheme of the Act definite and different periods
have been prescribed for compliance with the step to step treatment of the
matter, there is no obligation cast on the detenu to make a representation
c within any definite time. [91 H; 92 A]

(b) The procedure or the Advisory Board contained in S, 11 Of the
Act indicates that the Board is to consider the materials placed before it and
is entitled to call for such info1rnation as it may deem necessary from the
appropriate Government or from any other person concerned and after hearing
the dcteou, if be wants to be heard in person, has to report to the appropriate
D- Government within seven weeks from the date of detention. [92 D-E]

(c) The legislative scheme in fixing the limit of three weeks ins. 10 and
the further limit of seven weeks ins. 11, allows at least four weeks' time to the
Board to deal with the matter. [92 E]

E
(d) It is obligatory for the appropriate Government to forward the
representation, when received, to the Board without delay because unless on
the basis of the representation the appropriate Government rescinds the order
of detention, the representation is a document intended for the Board. Where
the representation has been received the same should, as expeditiously as
F possible, reach tho Board. [92 H; 93 A]

In the instant case the Board on receipt of the reference on August 22,
1984, directed its sitting to be convened for September 10, 1984 for considering
the justifiability of the respondents detention. The State Government received
the representation on August 30, 1984, and placed the same before the Board c
on September 6, 1984. Six clear days had intervened between the receipt of '
G the representation by Government and the placing thereof before the Board.
Admittedly, if the representation had reached the Board by September 5, 1984,
the respondent would not be entitled to raise any objection. Keeping the
attendant circumstances in view, it is difficult to hold that the time taken by
the State Governemnt can amount to withholding of the representation which
resulted in non~compliance of s. 10 of the Act so as to vitiate the detention.
H It cannot also be said that there has been any negligence or remissness on the
part of the State Government in dealing with the representation of the detenu
or in the matter of causing the same to be placed before the Advisory Board.
.
No prejudice bas been caused
. '
to the detenu
. on
.
account
. of the delay of a day'
RAJASTHAN '· SHAMSHER SINGH

beyond the statutory period in placing the representation before the Advisory

-
Board inasmuch as the Advisory Board had caused the matter to be heard on A
the 10th September, 1984 and before the appointed date the representation was
...,,.. before the Board. [92 F; 93 B; D; 95 D-E]

A.K. Roy, etc. v. Union of India & Anr., [1982] 2 S.C.R. 272; lchhu Devi
Choraria v. Union of India & Ors., [1981] l S.C.R 640; Khudi Ram Das v. State
of West Bengai & Ors., [1975] 2 S.C.R. 832; Frances Coralie Mullin v. W.C.
B

-
Khambra & Ors., (!980J 2 S.C.R. 1095 and Raisuddin alias Babu Tamchi v.
State of Uttar Pradesh & Anr., A.l.R. 1984 SC 46; referred to.

2(a) Unders. 11(2) of the Act the report of the Advisory Board has to
specify in a separate part thereof the opinion of the Board as to whether or
not there is sufficient cause for the detention of the person concerned and
sub-s. (4) provides, the proceedings of the Board and its report, except that
part of the report in which the opinion of the Advisory Board is specified
c
shall be confidential. [95 G-H]

(b) The Board is not required to write out a judgment. What is
the unbiased and impartial conclusion on the materials available with reference
to the grounds of detention as to whether the detention order when made and
the continued detention of the· person concerned are justified. (96 BJ
D

In the instant case, the Advisory Board was constituted by three Judges
of the High Court, one of them being the Chairman. That justifif'S the assump.
tion that the members of the Board by their professional ability and acumen
were capable to assess the matter in a proper way and form an objective
opinjon on the basis of matedals produced. The d~tailed conclusions with E
reasons given by the Board show that the detenu made before the Board very
lengthy arguments and cited a number of authorities in supp port of his sub·
missions. The High Court had therefore no justification to accept the sub·
mission of the detenu that the documentary evidence produced by the detenu
had not been considered by the Board. [96 B-C; 96 FJ
F
3. (a) Unders. 11(2) of the Act, the Board is required to submit its
report and there is no obligation cast by the Act that the entire record of
Board should be placed before the State Government. Section 12 in it:s two sub·
sections indicates two alternative courses open to the State Govern111ent on the
basis of the report. If the Board is of the view that there is no sufficient cause
for detention of the person, the appropriate Government is obliged io revoke
the detention and release the detenu. On the other hand, where the Board G
is of the view that there is sufficient cause for the detention of the person, the
appropriate Government may confirm the detention order and continue
the detention. The two provisions have been expressed in different
language. [96 G-H; 97 A-BJ

B
Nani Lal Bajaj v. Stats of Punjab & Anr. 1981 Cr. L.J. 1501, referred
to.
86 SUPREME COURT REPORTS [198SJ SUPPL s.c.R..

(b) The procedure established by law does not require the entire record
A to be sent by the Board to the State Government; yet it is certainly proper
that the record should be available for being looked into in such manner as
the confirming authority considers appropriate before the final decision one
way or the other is taken. The grounds of detention were divided into two
groups, one labelled as criminai activities and the other as extremist
activities. [97 H; 98 A]

B In the instant case, the documents produced by the detenu before the
Board did not contain any material which could persuade the State Government
to act in a different way. The High Court was therefore not right to hold that
the order of confirmation of detention was bad. [98 F·GJ

4. (a) Personal freedom is an invaluable treasure and the founding
c fathers took great care to protect it by making appropriate provisions in the
Constiution. Simultaneously taking into consideration the peculiar situations
prevailing in the country, the right of the State to order preventive detention
was also provided therein. In order that personal freedom may not be cur-
tailed beyond necessity and the executive administration may not make it an
empty guarantee, detailed provisions were made in Article 22 providing an
effective procedure in the matter of making of representation and scrutiny of
D the n1aterials in the presence of the detenu and even hearing him, if he so
desired, by an independent Board with adequate judicial bias. [99 B·CJ

(b) The detenu is not entitled to a disclosure of the confidential source
of information used in the grounds or utilised for the making of the order
What is necessary for the making of an effective representation is the disclosure
of the material and not the source thereof By indicating that the facts have
E been gathered from confidential reports, a suggestive disclosure of the source
has also been made. [99 D·E]

State of Punjab & Ors .. v. Jagdev Singh Talwandi, AIR 1984 SC 444; Beni
Madhob Shaw v. State of West Bengal, AIR 1973 SC 2455; Har Jas Dev Singh v.
State of Punjab, (1974] I S.C.R. 281 and Vakil Singh v. State of J & K, AIR
F 1974 SC 2337, referred to.

In the instant case, the grounds of detention were divided into two
groups, one labelled as criminal activities and the other as extremist activities.
Against extremist activities it was further indicated, 'on the basis of confidential
reports'. The facts by way of accusations were detailed, but copies of the
reports as such were not furnished. The respondent had actually been
G given in the grounds all material details necessary for making an effective
representation. [98 H; 99 A]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
107-108 of 1985
H
From the Judgment and Order dated 20.12.1984 of the
Rajasthan High Court in D.B. Civil Habeas Corpus Petition Nos.
1489 and 1575 of 1984.
llAiASTHAN v. SHAMSHER SINGH (k.anganath Mimi, J.) 87

N.L. Jain, Advocate General and Badri Das Sharma for the
Appellants. A
Ram Jethma/ani and Miss Rani Jethma/ani for the Respondent.

M.R. Sharma, Dalveer Bhandari and R.N. Poddar for the Inter•
venor, Union of India.
B
The Judgment of the Court was delivered by

RANGANATH MISRA, J. The respondent, an Advocate, was
ordered to be detained by the Government of Rajastban under
section 3(2) of the National Security Act, 1980 (hereinafter referred
to as the Act), on August 14, 1984, and he was actually taken into c
custody and detained on the following day. The grounds of
detention were suplied to him when he was detained. Respondent
challenged his detention before the Rajasthan High Court by filing
two applications under Article 226 of the Constitution on several
grounds. Both the writ applications were clubbed and heard together
and disposed of by a common judgment. The High Court found D
that the representation of the detenn·respondent bad not been placed
before the Advisory Board within three "eeks as required by s. IO
of the Act and such violation vitiated the continued detention of the
respondent. It also found that the Advisory Board had not consi·
dered the documentary evidence produced by the detenu and the E
opinion formed by the Board that the respondent should be detained
was, therefore, not an appropriate one. The Court took the view
that the materials in the record which had been considered by the
Advisory Board in formulating its recommendation to the State
Government had not been transmitted to the Government and the
same was not available before the State Government when it made F
the order of confirmation. The Court was also of the further view
that the contents of the intelligence reports referred to in the grounds
of detention had not been supplied to the detenu and he had,
therefore, been deprived of the opportunity of making an
effective representation against bis detention. On these findings the
High Court held that the detention of the respondent cannot be
G
upheld and the order of detention dated August 14, 1984, and the
subsequent order dated October 22, 1984, directing him to be
detained for one year be quashed. The Court further directed :
H
"In the interest of justice and in the interest of
National Security, without curtailing seriously indi vi dual
liberty, we give the following directions :
88 SUPREME COURT REPORTS [i984) SUPPL. s.c.Jl..

(I) that the detenu Shamsher Singh being entitled to
A liberty on account of the above order of ours will be
released from the Central Jail, Ajmer; '
(2) that the detenu Shamsher Singh would be none-
theless kept either under house arrest or in a place like
B Dak Bungalow or Circuit House at Ajmer or a nearby
place within the radius of 50 kms. with the members of
his family, which would consist of his wife and three
minor sons;

(3) that if the detenu is kept under house arrest,
c the expenses will be borne by the detenu, but if he is
kept in some Dak Bangalow or other Circuit House, then
his expenses will be borne by the State ;

(4) that the authorities would permit interview
D with other relatives also, if the detenu is kept outside
his house.

In case no stay order is received staying the operation
of the judgment of this Court, the detenu shall be released
on expiry of three weeks, i.e. on 11.1.85."
E
This Court granted special leave to appeal against the judgment
of the High Court by its order dated January 18, 1985. In the mean
time, the High Court had suspended the operation of its order till
January 21, 1985, and while granting special leave, this Court stayed
F operation of the judgment.

Learned Advocate-General of the appellant-State appearing
in support of the appeal maintained that each of the four· grounds
accepted by the High Court in quashing the detention is wrong and
not sustainable as a ground for such quashing while Mr. Jethmalani
G appearing for the respondent supported the reasonings and the ulti~
mate conclnsion of the High Court. We have already stated that
the High Court formulated the reasons for its order in the shape
of four conclusions and we propose to deal with them seriatim for
convenience.
H
The first ground of attack advanced by the respondent against
the order which impressed the High Court is that there has been
li.AiASTliAN v. SHAMSliER SINGH (Ranganath Misra, J.) 89

violation in complying with the provisions of s. l 0 of the Act.
Indisputably the respondent was taken into custody on August 15,
A
1984. On August 22, 1984, the State Government placed before the
Advisory Board the grounds on which the order of detention had
been made. By then no representation had been made by the detenu
and, therefore, there was no occasion for causing that also to be
placed before the Board. The respondent made a representation B
on August 28, 1984, which was received by the Superintendent of
the Central Jail where the detenu had been lodged and the same was
received by the State Government on August 30, 1984. There is no
dispute that the representation was placed before the Advisory Board
on Septmber 6, 1984. As far as relevant, s. 10 of the Act
provides: c
" ... in every case where a detention order has been
made under this Act, the appropriate Government shall,
within three weeks from the date of detention of a person
under the order, place before the Advisory Board consti· D
tuted by it under section 9, the grounds on wh[ch the
order has been made and the reprsentation, if any, made
by the person affected by the order .. "

It is the contention of the respondent that his representation against
the detention has been placed before the Advisory· Board a day too
E
late inasmuch as while s. 10 requires the placing to be done within
three weeks from the date of detention, the representation has been
placed before the Advisory Board on the 22nd day. There was no
dispute before the High Court nor is there any challenge before us
that there has been a day's delay in placing the representation of the F
respondent before the Board.

The High Court has accepted the respondent's submission that
the requirement under s. 10 of the Act was mandotary and failure to
place before the Advisory Board the representation of the respondent
has vitiated the detention. While Mr. Jethmalani appearing for the G
respondent reiterates that stand, learned Advocate General in support
of the appeal has contended that as a fact there bas been compliance
of s. 10 of the Act within a week of commencement of the detention
and as by than no representation from the respondent had
been received, the same could not be placed before the Board
H
along with the grounds of detention. The state Government received
the representation on the 30th August, 1984, and after looking
90 SUPREME COURT REPORTS (1985) SUPPL. S.C.R.

into the contents, caused it to be placed before the Board wtih due
A haste and that was done on September 6, 1984. On the basis
of the reference made on the 22nd August, 1984, the Advisory
Board had already fixed the consideration of the respondent's
detention at the meeting on September JO, 1984, and as a fact, four
days before the date of hearing fixed by the Board the representation
B was before it. As a fact, ntl adjurnment had to be given in the matter
of consideration of the representation of the respondent on account
of a day's delay in the placing of the representation before the Board.
Learned Advocate-General further submitted that when a representa-
tion from the detenu is received against his detention by the detaining
authority (here the State Government), the contents of the representa-
c tion 8re intended to be perused so that the detaining authority may
consider whether continuing the detention is proper and expedient.
At that stage it is open to the detaining authority to rescind the order
of detention and in that event no further reference to the Advisory
Board is warranted. Since the detaining authority is not a mere post
D office-being required to receive the representation and have it placed
befor the Advisory Board-a little time is bound to be taken in dealing
with the representation. Taking a practical view of the situation some
time is bound to lapse between the receipt of the representation and
the forwarding of the same for being placed before the Board. A day's
delay in such process cannot indeed be taken to be fatal so as to
E warrant the quashing of the detention.

A Constitution Bench in A. K. Roy etc. v. Union of India &
Anr.,(1) has upheld the vires of the Act. It was pointed out in Ichhu
Devi Choraria v. Union of India & Ors.(') that "the burden of showing
F that the detention is in accordance with the procedure established
by Jaw has always been placed by this Court on the detaining
authority because Article 21 of the Constitution provides in clear and
explicit terms that no one shall be deprived of his life or personal
liberty except in accordance with procedure established by law. This
constitutional right of life and personal liberty is placed on such a
G high pedestal by this Court that it has always insisted that whenever
there is any deprivation of life or personal liberty, the authority
responsible for such deprivation must satisfy the Court that it has
acted in accordance with the Jaw. This is an area where the Court
has been most strict and scrupulous in ensuring observance with the
H
(I) [1982] 2 S.C.R. 272.
(2) [198l] l S.C.R. 640.
RAiASTHAN v. SHAM!HER SINGH (Ranganath Misra, J.) 91
requirements of the law, and even where a requirement of the law
is breached in the slightest measure, the Court has not hesitated to A
strike down the order of detention or to direct the release of the
detenu even though the detention may have been valid till the breach
occurred." This Court in Khudi Ram Das v. State of West Beggal
& Ors.,(') said:
B
"The constitutional imperatives enacted in this article
(22) are two-fold: (I) the detaining authority must, as
soon as may be, that is, as soon as practicable after the
detention, communicate to the detenu the grounds on
which the order of detention has been made, and (2) the
detaining authority must afford the detenu the earliest c
opportunity of making a representation against the order
of detention. These are the barest minium safeguards
which must be observed before an executive authority can
be permitted to preventively detain a person and thereby
drown his right of personal liberty in the name of public D
good and social security."

The view indicate in these deeisions is well accepted and the same is
not open to doubt or dispute.

E
We have already pointed out that within a week of detention
of the respondent a reference to the Advisory Board had actually
been made in this case but without the respondent's representation as
the same had not been made by then. Section I 0 stipulates that the
grounds on which the order has been made and also the representa-
tion of the detenu, if any, have to be placed before the Board when F
the reference is made. The legislative scheme contained in this section
envisages the situation that there may be a case where no representa-
tion at all is made or within the time contemplated under s. IO, the
representation has not been forthcomming. We agree with the
submisson of Mr. Jethmalani that the obligation cast under s. 10 G
of the Act is paramount and the strictness with which such a
mandate has to be complied with is absolute. While making of the
reference under s. 10 with the grounds of detention is a must,
furnishing of the representation is conditional upon it having been
made and receipt thereof by the appropriate Government. Though H

(I) [1975] 2 S.C.R. 832.
SUPl\BME COURT REPORTS (1985] SUPPL. s.c.ii.

under the general scheme of the Act definite and different periods
A have been prescribed for compliance with the step to step treatment
of the matter, there is no obligation cast on the detenu to make a
representation within any definite time. We are, therefore, prepared
to accept the submission of the learned Advocate-General that while
considering the compliance with s. 10 of the Act emphasis has to be
B laid on making of the reference and forwarding of the grounds of
detention, and the placing of the representation has to be judged on
different basis. We may not be understood to be of the view that it
is open to the appropriate Government to withhold the placement of
the representation unduly or indefinitely. When the reference is
received and the grounds of detention are available, the Board
c proceeds to fix a date of hearing for consideration of the justification
of detention. The procedure of the Advisory Board contained in
s. 11 of the Act indicates that the Board is to consider the materials
placed before it and is entitled to caJI for such information as it may
deem necessary from the appropriate Government or from any other
D person concerned and after hearing the detenu, if he wants to be
heard in person, has to report to the appropriate Government within
seven weeks from the date of detention in the manner indicatad in
the remaining sub·sections of that section. While dealing with this
aspect of the matter it is to be borne in mind that s. I 0 requires the
reference to be placed before the Board within three weeks and s. 11
E requires the report to be submitted to the appropriate Government
within seven weeks. The legislative scheme in fixing the limit of
three weeks in s. 10 and the further limit of seven weeks in s. 11
aJlows at least four weeks' time to the Board to deal with the matter.

The Board on receipt of the reference on August 22, 1984,
F directed its sitting to be convened for September 10, 1984, for consi·
dering the justifiability of the respondent's detention. This bad
apparently been done on the basis of the reference from the
appropriate Government but without the representation but the
representation was received by the Board in the mean time on
G September 6, 1984. The first meeting of the Advisory Board was
thus fixed within four weeks from the date of detention and the
consideration of the matter by the Board was not required to be
adjourned on account of any delay in receiving the copy of the
representation of the detenu.
H
We agree with the submission of Mr. Jetbmalani that it is
obligatory for the appropriate Government to forward the representa·
tion, when received, to the Board without delay because unless on
RAJASTHAN v. SHAMSHER SINGH (Ronganath Misra, J.) 93

,
I
the basis of the representation the appropriate Government rescinds
the order of detention, the representation is a document intended for
the Board. Where the representation has been received the same
should, as expenditiously as possible, reach the Board. In this case
A

the State Government received the representation on August 30, 1984,
and placed the same before the Board on September 6, 1984. Six
clear days have intervened between the receipt of the representation
B
by Government and the placing thereof before the Board. Admit-
tedly, if the representation had reached the Board by September 5,
1984, respondent would not he entitled to raise any objection. Can
it, on the facts of the case and in the circumstances indicated, be
said to he non-compliance with s. 10 of the Act ?
c
Mr. Jethmalani placed before us a passage from Broom's Legal
Maxims (p. 162), 10th Edn., where the doctrine of impossibility of
performance (lex non cogit ad imporsibilia) has been discussed. It
has been indicated therein that however mandatory the provision
may be, where it is impossible of compliance that would be a suffi•
cient excuse for non-compliance, particularly when it is a question
D
of the time factor. Keeping the attendant circumstances of this case
in view, we find it difficult to hold that the time taken by the State
Government can amount to withholding of the representation which
resulted in non-compliance of s. 10 of the Act so as to vitiate the
detention. It is useful to refer to a paragraph from a judgment of E
this Court in Frances Coro/ie Mullin v. W. C. Khambra & Ors ,(1)
while we are on this point. A Division Bench was dealing with a
COFEPOSA detention. Section 8 of the COFEPOSA requires the
appropriate Government to make a reference to the Board within
five weeks from the date of detention. While dealing with an argu-
ment referring to this aspect of the matter, the Court abserved : F

"The four principles enunciated by the Court in
Jayanarayan Sukul v. State of West Bengal [1970] 3 SCR
225, as well as other principles enunciated in other cases,
an analysis will show, are aimed at shielding personal G
freedom against indifference, insensibility, routine and
red-tape and thus to secure to the detenu the right to
make an effective representation. We agree : (!) the
detaining authority must provide the detenu a very early
opportunity to make a representation, (2) th~ d~taininll ll

(I) [1980) ~ ~.<;.R, m,
94 SUPREME COURT REPORTS (1985) SUPPL, S.C.R.

authority must consider the representation as soon as
A possible, and this, preferably must be before the re-
presentation is forwarded to the Advisory Board, (3) the
representation must be forwarded to the Advisory Board
before the Board makes its report, and (4) the considera-
tion by the detaining authority of the representation must
be entirely independent of the hearing by the Board or
B
its report, expedition being essential at every stage. We,
however, hasten to add that the time-imperative can never
be absolute or obsessive. The Court's observations are
not to be so understood. There has to be lee-way,
depending on the necessities (we refrain from using the
c word 'circumstances') of the case. One may well
imagine, a case where a detenu does not make a represen-
tation before the Board makes its report making it
impossible for the detaining authority either to consider
it or to forward it to the Board in time or a case where a
detenu makes a representation to the detaining authority
D so shortly before the Advisory Board takes up the
reference that the detaining authority cannot consider
the representation before then but may merely forward
it to the Board without himself considering it. Several
such situations may arise compelling departure from the
E time-imperative. But no allowance can be made for
lethargic indifference. No allowance can be made for
needless procrastination. But allowance must surely be
made for necessary consultation where legal intricacies
and factual ramifications are involved."
F It is useful at this stage also to refer to a later decision of an-
other Division Bench of this Court in Raisuddin alias Babu Tamchi v.
State of Uttar Pradesh & Anr.(') That was a case of detention
under the Act and there was a delay of six days between the receipt
by the District Magistrate (the detaining authority) of the comments
G from the Superintendent of Police on the representation and des-
patch of the representation to the State Government. While
negativing the contention founded on delay and the resultant effect
on the order of detention, this Court observed :

H "In this context we consider it necc~sary to empha-
sise that the question whether the representation

(I) A.I.R. 1984 S.C. 4~.
RAJRSTHAN v. SHAMSHER SINGH (Roflganath Misla, J.) 95

submited by a detenu has been dealt with all reasonable
promptness and diligence is to be decided not by the A
application of any rigid or inflexible rule or set formula
nor by a mere arithmetical counting of dates, but by a
careful scrutiny of the facts and circumstances of each
case; if on such examination it is found that there was
any remissness, indifference or avoidable delay on the B
part of the detaining authority /State Government in
dealing with the representation, the Court will un-
doubtedly treat it as a factor vitiating the continued
detention of the detenu; on the other hand, if the Court
is satisfied that the delay was occasioned not by any lack
of diligence or promptness of attention on the part of c
the party concerned, but due to unavoidable circumstan-
ces or reasons entirely beyond his control, such delay will
not he treated as furnishing a ground for the grant of
relief to the detenu against his continued detention .... "
D
We agree with the principle indicated above and in our opinion, in
the facts of the present case, it cannot be said that there bas been
any negligence or remissness on the part of the State Government in
dealing with the representation of the detenu or in the matter of
causing the same to be placed before the Advisory Board. We are
impressed by the fact that no prejudice has been caused to the E
detenu on account of the delay of a day beyond the statutory
period in placing the representation before the Advisory Board inas-
much as the Advisory Board had ca used the matter to be heard on
the !0th September 1984 and before ihe appointed date the re-
presentation was before the Board. The first ground on which the F
High Court came to hold that the detention was invalid has, there-
fore, to be negatived.

The next contention advanced on behalf of the respondent
which has been accepted by the High Court in support of its con-
G
clusion against the detention is that the Advisory Board did not
consider the documentary evidence produced by the detenu. Under
s. 11 (2) of the Act the report of the Advisory Board has to specify
in a separate part thereof the opinion of the Board as to whether or
not there is sufficient cause for the detention of the person concerned H
and as sub-s. (4) provides, the proceedings of the Board and its
report, except that part of the report in which the opinion of the
_, Advisory Board is specified, 'hall be confidential. lu view of the
96 SU~EME COURT REPORTS (1984) SUPPL. ~C.R.

specific plea raised by the detenu and the argument advanced before
A the High Court that the Board bad not considered the documentary
evidence, the State Government placed the report before the High •
Court and the same has been also placed before usas a part of the
record. On a reference to the report we find that the Advisory
Board in the instant case was constituted by three Judges of the
B High Court, one of them being the Chairman. That would justify
our assumption that the members of the Board by their professional
ability and acumen were capable to assess the matter in a proper
way and form an objective opinion on the basis of materials pro-
duced. The detailed conclusion with reasons given by the Board
has also been disclosed. That shows that the detenu made before
c the Board very lengthy arguments and cited a number of authorities
in support of bis submissions. The detenu in the instant case is a
practising advocate and we are impressed by the learned Advocate-
General's submission that we could assume that such a practising
advocate must have very properly placed bis points before the
D Board.

The Board is not required to write out a judgment wherein one
would expect mention of the respective pleas, materials produced by
the parties, specification of contentions advanced and reasons for the
conclusion as may have been drawn. What is required is the un-
E biased and impartial conclusion on the materials available with
reference to the grounds of detention as to whether the detention
order when made and the continued detention of the person con-
cerned are justified. The High Court, in our view, bad no justifica-
tion to accept the submission of the detenu that the documentary
evidence produced by the detenu bad not been considered by the
F Board. The second ground accepted by the High Court has, there-
fore, to be repelled as not sustainable.

We p1 oceed to examine the next ground, viz., that all the
records had not been sent to the State Government by the Board
G and, therefore, such records were not available for consideration of
the State Government at the time of confirmation of the detention.
There is no dispute that the Board had not sent the entire record to
the State Government. Under s. II (2) of the Act, the Board is
,
required to submit its report and there1is no obligation cast by the
H Act that the entire record of the Board should be placed before the
State Government. It is, however, not disputed by learned Advocate-
General that the report of the Board is only a recomendation and
RAJASTHAN P. SHAMSHER SINGH (Ranganath Misra, J.) 97

the ultimate decision on the basis of the report as to what further
action has to be taken is for the State Government to make. Section A
12 in its two sub-sections indicates two alternative courses open to
the State Government on the basis of the report. If the Board is of
the view that there is no sufficient cause for detention of the person,
the appropriate Government is obliged to revoke the detention and
release the detenu. On the other hand, where the Board is of the B
view that there is sufficient cause for the detention of the person, the
appropriate Government may confirm the detention order and
continue the detention. The two provisions have been expressed in
different languages. Where the report is against the detention no
option is left to the State Govenment and a duty is cast on it to
release the detenu. When the Board recommends that there is C
sufficient cause for detention, the State Government may confirm the
detention or even revoke it. Since the final order has to be made
by the State Government, we are inclined to accept the submission
of Mr. Jethmalani that the entire record or at least all relevant
materials should be available to the State Government when it D
proceeds to apply its mind to decide whether the detention should be
continued or revoked. This view is in accord with produce and
is also judicially supported by a decision of this Court. In Nand Lal
Bajaj v. The State of Punjab & Anr.( 1), this Court observed :

"We were informed that the Advisory Board did not E
forward the record of its proceedings to the State Govern·
ment. If that be so, then the procedure adopted was
not in consonance with the procedure established by law.
The State Government while confirming the detention
order under section 12 of the Act has not only to peruse F
the report of the Advisory Board; but also to apply its
mind to the material on record. If the record itself was
not before the State Government, it follows that the
order passed by the State Government under s. 12 of the
Act was without due application of mind. This is a
serious infirmity in the case which makes the continued G
detention of t~e detenu illegal."

We have already indicated that the procedure established by law
does not require the entire record to be sent by the Board to the H
State Government; yet it is certainly proper that the record should

(1) 1981 Cr.L.J. 150).
98 SUPREME COURT R!PORTS (1985] SUPPL. S.C.ll,

be available for being looked into in such manner as the confirming
A authority considers appropriate before the final decision one way or
the other is taken. The grounds of detention were available with the
State Government. Materials referred to in the grounds of detention
were also available in the file. The only materials which the State
Government did not have before it are the documents which the
B detenu claims to have produced before the Board. With a view to
forming a prima fade impression that there was any material docu·
men! which would have a bearing on the question at issue, we sent
for the record and the same has been produced before us. On looking
into tlie documents produced by the detenu before the Board, we
have come to the conclusion that this did not contain any material
a which could persuade the State Government to act in a different
way. We are cognizant of the position that it is for the State
Government and not for this Court to act as the confirming authority
and non-compliance with the procedure laid down by law makes
the order of detention liable to be quashed. But we have also
D already said that non-placing of the record of the Board before the
appropriate Government is not a failure of compliance with the
prescribed procedure. It is, therefore, that we looked at the record
to find out if it can be said to be a defect having material bearing
on the question and a matter of prejudice so far as the detenu is
concerned. We reiterate by agreeing with the view of our learned
E Brother Sen, J. expressed in Nand Lal Bajaj's case (supra) that the
appropriate Government should have the entire material before it
along with the report of the B,1ard when it is called upon to consider
whether to confirm or not to confirm the detention on the basis of
the report of the Board under s. 12(1) of the Act. The Board should
F therefore, forward the record containing the papers placed before
it at the hearing of the matter along with its report so that the matter
can be attended by the State Government with due despatch and on
taking a full view of the matter. Our conclusion with reference to
the third ground, therefore, is that the High Court was not right in
the facts of the case to bold that the order of confirmation of
G detention was bad.

The respondent contended and the High Court accepted the
submission that not providing copies of intelligence reports to tho
detenu, though the same had been relied upon in the grounds of
H detention, vitiated the order of detention. The grounds of detention
were divided into two groups, one labelled as criminal activities and
the otl!er as extremist activities. A(lainst extremist ~ct\vities it was
RAJASTHAN v. SHAMSHER SINGH (Ranganath Misra, J.) 99

further indicated,' on the basis of confidential reports'. The facts
by way of accusations were detailed but copies of the reports as such A
were not furnished. It is the settled position in law and learned
Advocate-General did not attempt to contend to the contrary that
the detenu has to be supplied all materials relied upon in making
the order of detention with a view to being provided an adequate
opportunity of making ait effective representation. Personal freedom B
is an· invaluable treasure and the founding fathers took great care
to protect it by making appropriate provisions in the Constitution.
Simultaneously taking into consideration the peculiar situations
prevailing in the country, the right of the State to order preventive
detention was also provided therein. Jn order that personal freedom
may not be curtailed beyond necessity and the executive adminis• c
tration may not make it an empty guarantee, detailed provisions
were made in Article 22 providing an effective procedure in the
matter of making of representation and scrutiny of the materials in
the presence of the detenu and even hearing him, if he so desired, by
an independent Board with adequate judicial bias. Wbile that is so,
the detenu is not entitled to a disclosure of the confidential source
D
of information used in the grounds or utilised for the making of the
order.. What is necessary for the making of an effective representa-
tion is the disclosure of the material and not the source thereof.
By indicating that the facts have been gathered from confidential
reports, a suggestive disclosure of the source has also been made. E
The Constitution Bench in the case of State of Punjab & Ors. v.
Jagdev Singh Talwandi,( 1 ) dealt with this aspect of the matter. The
learned Chief Justice, speaking for the Court, observed :
"It was further argued by the learned counsel that
the detaining authority should have disclosed the evidence F
on the basis of which the order of detention was passed
because, in the absence of knowledge of such evidence,
the respondent could not have made an effective re-
presentation against the order of detention. There is no

- substance in this contention. It is not the law that the
evidence gathered by the detaining authority against the
detenu must also be furnished to him".
G

Reference was made to Beni Madhob Shaw v. State of West
Bengal(') Har Jas Dev Singh v. State of Punjab('), and Vakil Singh v.
H
(l) A.I.R. 1984 S.C. 444.
(2) A.I. R. 1973 S.C. 2455.
(3) [1974] 1 S.C.R. 281,
100 SUPREME COURT REPORTS (198S] SUPPL, s.c.R.

State of J & K.('), and the learned Chief Justice proceeded to
A state:

''These cases show that the detenu is not entitled
to be informed of the source of information received
against him or the evidence which may have been collec-
B ted against him as, for example, the evidence corro-
borating that the report of the C.I.D. is true and correct.
His right is to receive every material particular without
which a full and effective representation cannot be made.
If the order of detention refers to or relies upon any
document, statement or other material, copies thereof
c have, of course, to be supplied to the detenu as held by
this Court in lchhu Devi Choraria (supra)."

In view of what has been said by the Constitution Bench, there was
no force in the submission of the respondent that there has been
an infraction of the law in not supplying the respondent copies of
D
the reports or disclosing the source thereof. The respondent had
actually been given in the grounds all material details necessary for
making an effective representation. The fourth ground accepted by
the High Court in support of its order is also not tenable in law.
As all the grounds accepted by the High Court for its conclusion are
E not sustainable for reasons discussed above, the order of the High
Court quashing the. detention is not supportable. The appeal is
allowed and the order of the High Court is set aside.

Jn course of the hearing, Mr. Jethmalani had drawn onr
attention to the fact that many detenus like the respondent have been
F
and are being released, and the respondent who has already under-
gone more than two-thirds of the period should be released. That
is a matter entirely for the detaining authority to decide and we hope
and trust that notwithstanding the reversal of the decision of the
High Court, the State Government will proceed to review the matter
G expeditiously and make such appropriate directions as it consider fit.

N.V.K. Appeal allowed.

\1) A.J.R. 1974 2337,