# Sunil Chachuda v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 124
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-29
- **Case number:** Habeas Corpus Writ Petition No. 1046 of 2023
- **Bench:** Siddhartha Varma, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-chachuda-v-state-of-u-p-ors-51332
- **Pages:** 10

## Headnote

Civil Law - National Security Act, 1980 -
Sections 3(2), 3(3), 3(4), 10, 11, 12(1) &
13 - Petitioner challenged detention order dated
30.01.2023 under Section 3(2), confirmed on
13.03.2023 for three months, and extended on
27.10.2023 for 12 months. Court held: (1)
Confirmatory order under Section 12(1) is final;
St. Government cannot review or extend it
(Pesala Nookaraju Vs Govt. of Andhra Pradesh,
2023 SCC OnLine SC 1003; Ameena Begum Vs
St. of Telangana, (2023) 9 SCC 587). (2) If
confirmatory order specifies a period, detention
is valid only for that period; if unspecified,
detention may extend up to 12 months per
Section

## Text

124 INDIAN LAW REPORTS ALLAHABAD SERIES
reiterated in Manjita Devi and another
Vs. State of UP and others2 and Mohd.
Ahmad and another Vs. State of UP and
others3.

13. In the facts of the present case, the
petitioner no.1 having left her matrimonial
home, on her own volition, and there being
no material to establish the factum of illegal
detention, the petition seeking writ of
habeas corpus at the behest of the petitioner
no.2 (husband), would not be entertainable.

14. It would be open to the petitioner
no.2 to avail the appropriate legal remedies,
under the civil and criminal law, as he may
be advised.

15.

Subject
to
the
aforesaid
observations, the petition stands dismissed.
----------
(2024) 2 ILRA 124
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Habeas Corpus Writ Petition No. 1046 of 2023

Sunil Chachuda ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Sujan
Singh,
Sri
Anjani
Kumar
Raghuvanshi

Counsel for the Respondents:
G.A., A.S.G.I., Sri Om Prakash Mishra

Civil Law - National Security Act, 1980 -
Sections 3(2), 3(3), 3(4), 10, 11, 12(1) &
13 - Petitioner challenged detention order dated
30.01.2023 under Section 3(2), confirmed on
13.03.2023 for three months, and extended on
27.10.2023 for 12 months. Court held: (1)
Confirmatory order under Section 12(1) is final;
St. Government cannot review or extend it
(Pesala Nookaraju Vs Govt. of Andhra Pradesh,
2023 SCC OnLine SC 1003; Ameena Begum Vs
St. of Telangana, (2023) 9 SCC 587). (2) If
confirmatory order specifies a period, detention
is valid only for that period; if unspecified,
detention may extend up to 12 months per
Section
13.
(3)
Confirmatory
order
of
13.03.2023 specified three months; extension
order of 27.10.2023 was illegal. (4) Detention
beyond three months from 30.01.2023 was
unlawful. Extension orders quashed; petitioner
to be released forthwith unless required in
another case. (Paras 10-13)

Writ Petition Allowed.

Case Law Cited:

1. Pesala Nookaraju Vs Govt. of Andhra
Pradesh, 2023 SCC OnLine SC 1003 (Paras 5,
10, 11, 12)

2. Ameena Begum Vs St. of Telangana, (2023) 9
SCC 587 (Paras 5, 11, 12)

3. Cherukuri Mani Vs St. of A.P., (2015) 13 SCC
722 (Paras 6, 9, 10, 11)

4. Abdul Razak Vs St. of Karn., ILR 2017 Kar
4608 (FB) (Para 10)

(Delivered by Hon'ble Anish
Kumar Gupta, J.)

1. Counter affidavit filed on behalf of
respondent no.3 is taken on record.

2. Heard Sri Sujan Singh, learned
counsel for the petitioner, Sri Amit Sinha,
learned A.G.A. for the State and Sri Om
Prakash Mishra, learned counsel for the
respondent no.6- Union of India.

3. The instant application has been
filed seeking quashing of the impugned
2 All. Sunil Chachuda Vs. State of U.P. & Ors.
125
detention order dated 30.01.2023, passed
by the respondent no.3- District Magistrate-
Hapur, which was confirmed by the
respondent no.2- State Government, vide
order dated 13.03.2023, in terms of Section
12 (1) of the National Security Act, 1980
(hereinafter referred as 'the Act'), on
13.03.2023,
which
was
subsequently
extended vide order dated 27.10.2023.

4. The facts in brief are that the
petitioner herein was detained vide order
dated 30.01.2023 passed by the District
Magistrate- Hapur, under Section 3(2) of
the Act, having been authorised under
Section 3(3) of the Act. The said order was
approved by the State Government under
Section 3(4) of the Act on 07.02.2023 and
the matter was referred to Advisory Board.
After receiving the report from the
Advisory Board, the said detention order
was confirmed in terms of Section 12 (1) of
the Act, by the State Government on
13.03.2023 whereby the petitioner was
detained for a period of three months from
the date of initial detention order. The said
order
dated
13.03.2023
was
further
extended time to time and lastly on
27.10.2023 for a period of 12 months from
the date of initial detention.

5. Learned counsel for the petitioner
contends that since the order dated
13.03.2023 passed under Section 12(1) of
the Act, is a final order and the State has no
right to review the said order in terms of
provisions of Section 12 of the Act,
therefore, the subsequent orders passed
extending detention of the petitioner, are
without any authority of law and could not
be sustained. Therefore, the detention of the
petitioner herein in terms of order dated
13.03.2023 after the expiry of three months
from the date of initial detention i.e.,
30.01.2023, is illegal and therefore, the
petitioner is liable to be released forthwith.
In support of his contentions, learned
counsel for the petitioner relied upon the
judgement of the Apex Court in Pesala
Nookaraju vs. The Government of Andhra
Pradesh & others reported in 2023 SCC
OnLine SC 1003 and Ameena Begum vs.
The State of Telangana and others
reported in (2023) 9 SCC 587.

6. Per contra, learned A.G.A. submits
that in view of the judgement of the Apex
Court in Cherukuri Mani v. State of A.P.,
reported in (2015) 13 SCC 722, the State
Government could not have passed an
order of detention at a time more than for a
period of three months. Therefore, initially
the order dated 13.03.2023 was passed
confirming the detention of the petitioner
herein for a period of three months and
subsequently, the same was extended from
time to time. Therefore, there is no
illegality either in the initial detention order
dated 30.01.2023 and the confirmatory
order dated 13.03.2023 and the subsequent
extension orders extending detention of the
petitioner herein for a period of three
months at a time.

7. To appreciate the submissions
made by learned counsel for the parties, it
will be relevant to go through the scheme
of the Act with regard to the detention of a
persons. It will be relevant to note the
Sections 3, 10, 11, 12, & 13 of the Act,
which reads as under:

"3. Power to make orders
detaining
certain
persons.-(1)
The
Central
Government
or
the
State
Government may,-

(a) if satisfied with respect to any
person that with a view to preventing him
from acting in any manner prejudicial to
the defence of India, the relations of India
126 INDIAN LAW REPORTS ALLAHABAD SERIES
with foreign powers, or the security of
India, or

(b) if satisfied with respect to any
foreigner that with a view to regulating his
continued presence in India or with a view
to making arrangements for his expulsion
from India, it is necessary so to do, make
an order directing that such person be
detained.

(2) The Central Government or
the State Government may, if satisfied with
respect to any person that with a view to
preventing him from acting in any manner
prejudicial to the security of the State or
from acting in any manner prejudicial to
the maintenance of Public order or from
acting in any manner prejudicial to the
maintenance of supplies and services
essential to the community it is necessary
so to do, make an order directing that such
person be detained.

Explanation.-For the purposes
of this sub-section, "acting in any manner
prejudicial to the maintenance of supplies
and services essential to the community"
does not include "acting in any manner
prejudicial to the maintenance of supplies
of commodities essential to the community"
as defined in the Explanation to sub-section
(1) of section 3 of the Prevention of
Blackmarketing
and
Maintenance
of
Supplies of Essential Commodities Act,
1980 (7 of 1980), and accordingly, no order
of detention shall be made under this Act
on any ground on which an order of
detention may be made under that Act.

(3) If, having regard to the
circumstances prevailing or likely to
prevail in any area within the local limits of
the jurisdiction of a District Magistrate or
a Commissioner of Police, the State
Government is satisfied that it is necessary
so to do, it may, by order in writing, direct,
that during such period as may be specified
in the order, such District Magistrate or
Commissioner of Police may also, if
satisfied as provided in sub-section (2),
exercise the powers conferred by the said
sub-section:

Provided that the period specified
in an order made by the State Government
under this sub-section shall not, in the first
instance, exceed three months, but the State
Government may, if satisfied as 3 aforesaid
that it is necessary so to do, amend such
order to extend such period from time to
time by any period not exceeding three
months at any one time.

(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
1[fifteen days] from the date of detention,
this sub-section shall apply subject to the
modification that, for the words "twelve
days", the words "2[twenty days]" shall be
substituted.

(5) When any order is made or
approved by the State Government under
this 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.
2 All. Sunil Chachuda Vs. State of U.P. & Ors.
127

10.
Reference
to
Advisory
Boards.-Save
as otherwise expressly
provided in this Act, 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 constituted by it
under section 9, the grounds on which the
order
has
been
made
and
the
representation, if any, made by the person
affected by the order, and in case where the
order has been made by an officer
mentioned in sub-section (3) of section 3,
also the report by such officer under subsection (4) of that section.

11.
Procedure
of
Advisory
Boards.-(1) 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 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 seven weeks from the date of
detention of the person concerned.

(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 detention of the person
concerned.

(3) When there is a difference of
opinion among the members forming the
Advisory Board, the opinion of the majority
of such members shall be deemed to be the
opinion of the Board.

(4) Nothing in this section shall
entitle any person against whom a
detention order has been made to appear
by any legal practitioner in any matter
connected with the reference to the
Advisory Board; andthe proceedings of the
Advisory Board and its report, excepting
that part of the report in which the opinion
of the Advisory Board is specified, shall be
confidential.

12. Action upon the report of the
Advisory Board.-(1) In any case where
the Advisory Board has reported that there
is, in its opinion, sufficient cause for the
detention of a person, the appropriate
Government may confirm the detention
order and continue the detention of the
person concerned for such period as it
thinks fit.

(2) In any case where the
Advisory Board has reported that there is,
in its opinion, no sufficient cause for the
detention of a person, the appropriate
Government shall revoke the detention
order and cause the person concerned to be
released forthwith.

13.
Maximum
period
of
detention.-The maximum period for which
any person may be detained in pursuance
of any detention order which has been
confirmed under section 12 shall be twelve
months from the date of detention:

Provided that nothing contained
in this section shall affect the power of the
appropriate Government to revoke or
modify the detention order at any earlier
time."

8. As per the provisions of Section
3(2) of the Act, if the Central Government
or the State Government, as the case may
be, if satisfied in respect of any person with
a view to prevent him from acting in any
manner prejudicial to the maintenance of
public order and record its satisfaction that
it is necessary so to make an order, then,
pass an order directing that such a person to
be detained. As per Section 3(3) of the Act,
128 INDIAN LAW REPORTS ALLAHABAD SERIES
the State Government may delegate such
powers of detention to the District
Magistrate or the Commissioner of Police.
In view of such delegation of the powers,
the
District
Magistrate
or
the
Commissioner of Police, as the case may
be, is empowered to pass the order under
Section 3(2) of the Act. Such delegation of
powers to the District Magistrate or the
Commissioner of Police shall not be made
at a time for a period exceeding three
months. As per Section 3(4) of the Act, the
officer who is delegated power of detention
under Section 3(3) of the Act is directed to
forthwith report the fact of such detention
to
the
State
Government
concerned
alongwith grounds of such detentions and
no such order shall remain in force for
more than 12 days, unless it is approved by
the concerned State Government. When
any order is made or approved by the State
Government within the aforesaid period of
12 days, the State Government shall report
the fact of such detention within 7 days
from the date of approval of detention to
the Central Government together with the
grounds of detention and other relevant
particulars. As per Section 10 of the Act,
the concerned Government is mandated to
place the matter within a period of three
weeks
before
the
Advisory
Board
constituted by it in terms of Section 9
alongwith grounds of detention and other
relevant documents. As per Section 11 of
the Act,
the Advisory
Board,
after
considering the material placed before it
and after calling for such other information
as it may deem necessary and if the
Advisory Board so consider it essential or
the person concerned desirous to be heard,
after hearing the detenue shall submit its
report to the concerned Government within
7 weeks from the date of detention of the
persons concerned. The Advisory Board
shall also record its satisfaction whether
there are or not the sufficient cause for
detention of the concerned persons. After
receipt of the report of the Advisory Board
the concerned Government may pass an
order confirming the detention order and
may continue the detention of the persons
concerned for such period as it thinks fit. In
terms of Section 13, maximum period of
detention under the provisions of the Act
shall be 12 months from the date of
detention.

9. In Cherukuri Mani(supra), the
Apex Court in para 10, 11, 12, 13 and 14
has held as under:

"10. To answer the above issue, it
is necessary to examine the relevant
provisions of the Act. Section 3 of the Act
empowers the detention of certain category
of persons, as defined under the Act. Apart
from conferring of power, the section
regulates the manner of passing the orders
of detention as well as their duration. It
reads thus:

"3.Power
to
make
orders
detaining
certain
persons.-(1)
The
Government may, if satisfied with respect to
any bootlegger, dacoit, drug offender,
goonda, immoral traffic offender or land
grabber that with a view to preventing him
from acting in any manner prejudicial to
the maintenance of public order, it is
necessary so to do, make an order directing
that such person be detained.

(2) If, having regard to the
circumstances prevailing or likely to
prevail in any area within the local limits of
the jurisdiction of a District Magistrate or
a Commissioner of Police, the Government
are satisfied that it is necessary so to do,
they may, by order in writing, direct that
during such period as may be specified in
the order, such District Magistrate or
Commissioner of Police may also, if
2 All. Sunil Chachuda Vs. State of U.P. & Ors.
129
satisfied as provided in sub-section (1),
exercise the powers conferred by the said
sub-section:

Provided that the period specified
in the order made by the Government under
this sub-section shall not in the first
instance, exceed three months, but the
Government may, if satisfied as aforesaid
that it is necessary so to do, amend such
order to extend such period from time to
time by any period not exceeding three
months at any one time.

(3) When any order is made
under the section by an officer mentioned
in sub-section (2), he shall forthwith report
the fact to the Government 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 Government."

11. A reading of the above
provisions makes it clear that the State
Government,
District
Magistrate
or
Commissioner of Police are the authorities,
conferred with the power to pass orders of
detention. The only difference is that the
order
of
detention
passed
by
the
Government would remain in force for a
period of three months in the first instance,
whereas similar orders passed by the
District Magistrate or the Commissioner of
Police shall remain in force for an initial
period of 12 days. The continuance of
detention beyond 12 days would depend
upon the approval to be accorded by the
Government in this regard. Sub-section (3)
makes this aspect very clear. Section 13 of
the Act mandates that the maximum period
of detention under the Act is 12 months.

12 [Ed. : Para 12 corrected vide
Official
Corrigendum
No.
F.3/Ed.B.J./48/2014 dated 29-8-2014.] .
Proviso to sub-section (2) of Section 3 is
very clear in its purport, as to the operation
of the order of detention from time to time.
An order of detention would in the first
instance be in force for a period of three
months. The Government alone is conferred
with the power to extend the period, beyond
three months. Such extension, however,
cannot be for a period, exceeding three
months, at a time. It means that, if the
Government intends to detain an individual
under the Act for the maximum period of 12
months, there must be an initial order of
detention for a period of three months, and
at least, three orders of extension for a
period not exceeding three months each.
The expression "extend such period from
time to time by any period not exceeding
three months at any one time" assumes
significance in this regard.

13. The requirement to pass order
of detention from time to time in the
manner referred to above, has got its own
significance. It must be remembered that
restriction of initial period of detention to
three months is nothing but implementation
of the mandate contained in clause (4)(a) of
Article 22 of the Constitution of India. It
reads as under:

"22. (4) No law providing for
preventive detention shall authorise the
detention of a person for a longer period
than three months unless-

(a) an Advisory Board consisting
of persons who are, or have been, or are
qualified to be appointed as, Judges of a
High Court has reported before the
expiration of the said period of three
months that there is in its opinion sufficient
cause for such detention:

Provided that nothing in this subclause shall authorise the detention of any
person
beyond
the
maximum
period
prescribed by any law made by Parliament
under sub-clause (b) of clause (7); or
130 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) such person is detained in
accordance with the provisions of any law
made by Parliament under sub-clauses (a)
and (b) of clause (7)."

14. Where the law prescribes a
thing to be done in a particular manner
following a particular procedure, it shall be
done in the same manner following the
provisions of law, without deviating from
the
prescribed
procedure.
When
the
provisions of Section 3 of the Act clearly
mandated the authorities to pass an order
of detention at one time for a period not
exceeding
three
months
only,
the
government order in the present case,
directing detention of the husband of the
appellant for a period of twelve months at a
stretch is clear violation of the prescribed
manner and contrary to the provisions of
law. The Government cannot direct or
extend the period of detention up to the
maximum period of twelve months in one
stroke, ignoring the cautious legislative
intention that even the order of extension of
detention must not exceed three months at
any one time. One should not ignore the
underlying principles while passing orders
of detention or extending the detention
period from time to time."

(Emphasize Supplied)

10. In the recent judgement of the
Apex Court in Pesala Nookaraju (supra),
the
Apex
Court
has
overruled
the
judgement in Cherukuri Mani (supra) and
has held as under :

"42. Hence, Article 22(4)(a) in
substance deals with the order of detention
and has nothing to do with the delegation
of the power of detention by the State
Government to an Officer as stipulated
under Section 3(2) of the Act. In fact, under
Section 9 of the Act, the State Government
has to refer the matter to the Advisory
Board within three weeks from the date of
detention, irrespective of whether the
detention order is passed under Section
3(1) or Section 3(2) of the Act and the
Advisory Board has to give its opinion
within seven weeks from the date of
detention. That would totally make it ten
weeks. As stipulated in Article 22(4)(a) of
the Constitution, if in a given case, once the
Advisory Board gives its opinion within the
stipulated period of three months, then in
our view, Article 22(4)(a) would no longer
be applicable. Thus, Article 22(4)(a)
applies at the initial stage of passing of the
order of detention by the State Government
or by an officer who has been delegated by
the State Government and whose order has
been approved by the State Government
within a period of twelve days from the date
of detention and not at the stage subsequent
to the report of the Advisory Board.
Depending upon the opinion of the
Advisory Board, under Section 12 of the
Act, the State Government can revoke the
order of detention and release the detenu
forthwith or may confirm the detention
order and continue the detention of the
person concerned for any period not
exceeding the maximum period of twelve
months, which is stipulated in Section 13 of
the Act. Therefore, when the State
Government passes a confirmatory order
under Section 12 of the Act after receipt of
the report from the Advisory Board then,
such a confirmatory order need not be
restricted to a period of three months only.
It can be beyond a period of three months
from the date of initial order of detention,
but up to a maximum period of twelve
months from the date of detention.

43. We reiterate that the period of
three months stipulated in Article 22(4)(a)
of the Constitution is relatable to the initial
period of detention up to the stage of
2 All. Sunil Chachuda Vs. State of U.P. & Ors.
131
receipt of report of the Advisory Board and
does not have any bearing on the period of
detention, which is continued subsequent to
the confirmatory order being passed by the
State Government on receipt of the report
of the Advisory Board. The continuation of
the detention pursuant to the confirmatory
order passed by the State Government
need not also specify the period of
detention; neither is it restricted to a
period of three months only. If any period
is specified in the confirmatory order, then
the period of detention would be upto such
period, if no period is specified, then it
would be for a maximum period of twelve
months from the date of detention. The
State Government, in our view, need not
review the orders of detention every three
months
after
it
has
passed
the
confirmatory order.
44. Thus, in our view, the period of three
months specified in Article 22(4)(a) of
Constitution of India is relatable to the
period of detention prior to the report of
the Advisory Board and not to the period
of detention subsequent thereto. Further,
the period of detention in terms of Article
22(4)(a) cannot be in force for a period
beyond three months, if by then, the
Advisory Board has not given its opinion
holding that there is sufficient cause for
such detention. Therefore, under Article
22(4)(a), the Advisory Board would have to
give its opinion within a period of three
months from the date of detention and
depending upon the opinion expressed by
the Advisory Board, the State Government
can under Section 12 of the Act, either
confirm the order of detention or continue
the detention of the person concerned for a
maximum period of twelve months as
specified in Section 13 of the Act or release
the detenu forthwith, as the case may be. If
the order of detention is confirmed, then the
period of detention can be extended up to
the maximum period of twelve months from
the date of detention. With respect, we
observe that it is not necessary that before
the expiration of three months, it is
necessary for the State Government to
review the order of detention as has been
expressed by this Court in Cherukuri
Mani
(supra).
The
Act
does
not
contemplate a review of the detention
order once the Advisory Board has opined
that there is sufficient cause for detention
of the person concerned and on that basis,
a confirmatory order is passed by the State
Government to detain a person for the
maximum period of twelve months from
the date of detention. On the other hand,
when under Section 3(3) of the Act, the
State Government delegates its power to
the District Magistrate or a Commissioner
of Police to exercise its power and pass an
order of detention, the delegation in the
first instance cannot exceed three months
and the extension of the period of
delegation cannot also be for a period
exceeding three months at any one time.
[See: Abdul Razak v. State of Karnataka,
ILR 2017 Kar 4608 (FB)]"
(Emphasis Supplied)

11. Following the judgement in
Pesala Nookaraju (supra), in Ameena
Begum (supra), the Apex Court in para 71,
72, 73, 76 and 78 has held as under:

"71. Both Mr. Luthra and Mr.
Dave have referred us the recent decision
of a 3-Judges Bench of this Court in the
case
of
Pesala
Nookaraju
vs.
The
Government of Andhra Pradesh [Crl.
Appeal No. 2304 of 2023, decided on 16th
August, 2023 where an order of detention
passed in exercise of power conferred by
the Andhra Pradesh Prevention of Dangero
Activities of Boot-leggers, Dacoits, Drug
Offenders,
Goondas,
Immoral
Traffic
132 INDIAN LAW REPORTS ALLAHABAD SERIES
Offenders and Land Grabbers Act, 1986
("1986 Act" hereafter) was upheld despite
the detenu having obtained orders of bail
upon
arrest
in
connection
with
investigation of 4 (four) F.I.R. under
sections 7B and 8B of the Andhra Pradesh
Prohibition Act, 1995.

72. Mr. Luthra intended to rely on
the decision in Cherukari Mani vs. Chief
Secretary, Government of Andhra Pradesh,
(2015) 13 SCC 722. According to the
appellant, the detention could only be in
force for a period of three months in the fir
instance and that such order on a periodic
assessment was required to be reviewed for
continuous detention till the maximum
period permissible. The contention was
accepted by this Court.

73. While hearing of the appeal
was in progress, came the decision in
Pesala
Nookaraju
(supra)
overruling
Cherukari Mani (supra). It was held that
the "State Government need not review the
orders of detention every three months after
it ha passed the confirmatory order."
Fairly, Mr. Luthra did not seek to rely on
Cherukari Mani (supra) further.

.................................

..................................

76. Mr. Dave next relied on the
reasons assigned in Pesala Nookaraju
(supra) to contend that the impugned
Detention Order should be held legal and
unexceptionable.

.................................

78. It is indeed true that the
appellant had raised a contention before
the Court that the Government of Andhra
Pradesh had directed detention of the
appellant for the maximum period of 12
(twelve) months without any application of
mind providing reasons as to why this is
necessary."

12. From the scheme of the Act as
noted above and as per the judgement of
the Apex Court in Pesala Nookaraju
(supra), once the confirmatory order of
detention is passed under Section 12 (1) of
the Act i.e., a final order and the State
Government has no authority to review its
order. If in the confirmatory order any
particular period of detention is prescribed
by the State Government such detention
order is valid only for that period. If no
period of detention is prescribed in an order
and passed under Section 12 (1) of the Act,
then, such detention will be for a maximum
period of 12 months as prescribed under
Section 13 of the Act. However, once the
order under Section 12 (1) is passed by the
State Government prescribed a period of
detention, the said order cannot be
reviewed or extended
by the
State
Government. Such detention will be over
after the expiry of the period prescribed in
the confirmatory order passed under
Section 12(1) of the Act. The said order
cannot be reviewed or extended any further.
However, the Detaining authority i.e., the
State
Government
or
the
District
Magistrate, may pass a fresh order in terms
of Section 3(2) of the Act, if the
circumstances so demand. Such concerned
detention order has to be confirmed again
following the procedure prescribed under
Sections 3, 10, 11 and 12 of the Act.

13.

In
the
instant
case,
the
confirmatory order has been passed on
13.03.2023, whereby the petitioner herein
was directed to be found for a period of
three months from the initial detention
order i.e., 30.01.2023. Therefore, after the
expiry of three months from 30.01.2023,
the petitioner's detention becomes illegal
and he is liable to be released forthwith.
For the reasons stated above, the writ
petition is allowed. It is declared that the
2 All. The Commissioner, Commercial Tax, U.P. Lucknow Vs. S/s D.I.C. India Ltd.
133
detention
of
the
petitioner
herein
subsequent to the expiry of three months
from
30.01.2023
is
illegal
and
all
subsequent orders extending the detention
of the petitioner herein are illegal and not
in accordance with law. Therefore, all
further orders extending period of detention
of the petitioner herein are hereby quashed
and set-aside.

14.

We,
therefore,
direct
the
petitioner, Sri Sunil Chachuda (the detenue)
to be set at liberty forthwith unless he is
required in any other case.
----------
(2024) 2 ILRA 133
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Commercial Tax Revision No. 36 of 2021
With
Sales/Trade Tax Revision No. 54 of 2021

The Commissioner, Commercial Tax, U.P.
Lucknow ...Revisionist
Versus
S/s D.I.C. India Ltd. ...Opposite Party

Counsel for the Revisionist:
Sri Bipin Kumar Pandey (Addl. C.S.C.)

Counsel for the Opposite Party:
Sri Atul Gupta

Civil Law - U.P. Value Added Tax Act, 2008
- Definition of Capital Goods - The
revisionist challenged the Tribunal's order dated
27.11.2019, which classified "Cello" (a container
used for storing ink) as capital goods under
Section 2(f) of the Act for assessment years
2011-12 and 2012-13 - Held, the Tribunal's
finding that the Cello is an integral part of the
manufacturing process, as it is fitted to the
machinery
for
storing
manufactured
ink,
qualifies it as a storage tank under Section
2(f)(iii), and its movable nature or use in supply
does not exclude it from being capital goods.
(Paras 4, 5, 7, 13)

Scope of Revisional Jurisdiction Under
Section 58 - The revisionist argued that the
Cello is merely a transport container, not part of
plant and machinery - Held, the High Court's
revisional jurisdiction under Section 58 of the
Act is Ltd. to questions of law, jurisdictional
errors, or procedural irregularities, and it cannot
reappreciate factual findings unless they are
perverse or lack evidence, as per Hindustan
Petroleum Corporation Ltd. Vs Dilbahar Singh -
The Tribunal's factual determination that the
Cello is integral to manufacturing was not
perverse, precluding interference. (Paras 8, 9,
10, 11, 12)

Interpretation of "Capital Goods" Under
Section 2(f) - The revisionist contended that
the Cello, being a movable apparatus used for
supply, does not fall within the definition of
capital goods - Held, Section 2(f) includes
storage tanks used in manufacturing, and the
Tribunal's finding that the Cello is fitted to
machinery for storing ink during production
aligns
with
this
definition,
supported
by
Commissioner of Commercial Tax Vs Ambuja
Cement Ltd. and J.K. Cotton SPG & WVG Mills
Co. Ltd. Vs Sales Tax Officer, which emphasize
apparatus integral to manufacturing. (Paras 4,
5, 6, 13)

Factual Findings of Tribunal - Binding
Nature - The Tribunal found that the Cello is
automatically fitted to the machinery, collects
ink during production, and is reused after being
returned by customers - Held, as the last factfinding authority, the Tribunal's findings are
binding unless perverse or unsupported by
evidence, and the evidence supported the
conclusion that the Cello is a storage device
integral to the manufacturing process, not
merely a transport container. (Paras 7, 8, 12,
13)

Dismissal of Revision - No Error of Law -
The revisionist failed to demonstrate any legal
error, perversity, or jurisdictional excess in the
Tribunal's
order
-
Held,
the
Tribunal's
classification of the Cello as capital goods under