# BAL MU KAND v. DIST. MAGISTRATE, DELHI & ANOTIIER

- **Citation:** [1965] 1 S.C.R. 58
- **Court:** Supreme Court of India
- **Decided:** 1964-08-17
- **Bench:** Raghubar Dayal, J. R. Mudholkar, Ands. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bal-mu-kand-v-dist-magistrate-delhi-anotiier-3356
- **Pages:** 7

## Headnote

Defence of India Rules, 1962, r. 30A.:._Dctention-Review before
expiry of six months-Whether reckoned from detention order or from
confirmation of detmtion order.
·
The petitioner whcoe detention order was is.'1Jed by the respondent on
February 25, 1963 under r. 30(l)(b) of the Defence of India Rules,
A
B
filed a petition under Art. 32 of the Coootitution for a writ of habeas
corpus. The detention order was confirmed by the Administrator on
c
March 26, 1963.
The Administrator reviewed the order on September
25, 1963 and on March 11, 1962, each time decidina to continue the
detention order.
The petitioner contended that the detention order bad
to be reviewed by the Administrator before the expiry of six months
from the date of the detention order, while the respondents contention
was that the period of •ix months for the purpose of the review of the
detention order was to be reckoned from the date on which the Adm!·
niatrator confirmed the detention order.
D
HELD :. The review of a detention order made by an officer em·
powered by the State Government or the Administrator ..,., to be al
intervals o( not more than six months from the date of the detention
order in the first instan¢e aDd from the <bto of ucb 111booq- order of
the reviewing authority for the detention to ocntinue.
[630].
Biren Dutta v. Tiu Chief Commissioner of Tripura, (Cr. App. Nos.
37-91 of 1964 decided July 23, 1964), referred to.
E
ORIGINAL JURISDICTION : Habeas Corpus Petition No. 85 of
1964
Petition under Art. 32 of the Constitution for enforcement af
Fundamental Rights.
Bawa Gurcharan Singh and Harbans Singh, for the petitioner.
F
S. V. Gupte, Additional Solicitor-General and R. N. Sachthey, for the respondent.

## Text

BAL MU KAND
v.
DIST. MAGISTRATE, DELHI & ANOTIIER
August 17, 1964
(RAGHUBAR DAYAL, J. R. MUDHOLKAR, ANDS. M. SIKRI JJ.}
Defence of India Rules, 1962, r. 30A.:._Dctention-Review before
expiry of six months-Whether reckoned from detention order or from
confirmation of detmtion order.
·
The petitioner whcoe detention order was is.'1Jed by the respondent on
February 25, 1963 under r. 30(l)(b) of the Defence of India Rules,
A
B
filed a petition under Art. 32 of the Coootitution for a writ of habeas
corpus. The detention order was confirmed by the Administrator on
c
March 26, 1963.
The Administrator reviewed the order on September
25, 1963 and on March 11, 1962, each time decidina to continue the
detention order.
The petitioner contended that the detention order bad
to be reviewed by the Administrator before the expiry of six months
from the date of the detention order, while the respondents contention
was that the period of •ix months for the purpose of the review of the
detention order was to be reckoned from the date on which the Adm!·
niatrator confirmed the detention order.
D
HELD :. The review of a detention order made by an officer em·
powered by the State Government or the Administrator ..,., to be al
intervals o( not more than six months from the date of the detention
order in the first instan¢e aDd from the <bto of ucb 111booq- order of
the reviewing authority for the detention to ocntinue.
[630].
Biren Dutta v. Tiu Chief Commissioner of Tripura, (Cr. App. Nos.
37-91 of 1964 decided July 23, 1964), referred to.
E
ORIGINAL JURISDICTION : Habeas Corpus Petition No. 85 of
1964
Petition under Art. 32 of the Constitution for enforcement af
Fundamental Rights.
Bawa Gurcharan Singh and Harbans Singh, for the petitioner.
F
S. V. Gupte, Additional Solicitor-General and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
Raghubar Dayal J.
Balmukand alias
Balu has presented this writ petition under Art. 32 of the Constitution for the G
issue of a writ of habeas corpus. He is detained under a detention
order issued by the District Magistrate, Delhi, on February 25,
1963 under r. 30(l)(b) of the Defence of India Rules,
1962,
hereinafter called_the rules.
The District Magistrate was
empowered to issue such orders, by the Administrator. The petitioner
was arrested on February 27, 1963. The order of the Magistrate H
was· confirmed by the Administrator of the Union Territory of
Delhi on March 26. 1963.
The Administrator reviewed
the
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.BALMUKAND v. OT. MAGISTRATE (Raghu/Jar Dayal/.)
59"
A order on September 25, 1963 and on March 11, 1964, and each
time decided that the detention order should be continued. The
orders passed on review·were communicated to the petitioner, each
time.
The validity of the detention order is not questioned for the
petitioner. The facts noted above are also not disputed. It is
B contended for the petitioner that the detention order had to be·
reviewed by the Administrator before the expiry of six months
from the date .of the detention order i.e., February 25, 1963. On
behalf of the respondents it has been urged by the learned. Additional Solicitor General that the period of six months for the pure pose of the review of the detention order is to be reckoned from
the date· on which the Administrator confinned the detention
order i.e., the 26th of March 1963 and not from the date of the
detention order. It is also urged that the order of confirmation
itself should be taken as the first order of review as such an order
is mad.e under the provisions of r. 30A of the rules which deals
D with review of detention orders. We are of opinion that the contention for the petitioner is sound.
Sub-rule (I) of r. 30A provides that in that rule 'detention
order' means an order made under cl. (b) of sub-r. (I) of r. 30.
$\lb-1'\lle ( 4) mentions the authorities which have to review the
detention order made by an officer empowered by the State GovE ernment or the Administrator. The Administrator is the authority to review the order when-made by an officer empowered by
him to make a detention order under r. 30(l)(b). Sub-rule (5)
eqjoins that the officer empowered by the State Government or the
Administrator to make the detention order spa!! forthwith report
the fact of his making tlie detention order to the reviewing authoF ·rity or, as the case may be, to the Administrator. Sub-rule 6(a)
111-JS down what the reviewing authority has to do on receipt of a
·~rt under sub-r. (5). The reviewing authority for the review
of an order made by an officer empowered by the State Governll!ent has, after taking into account all the circumstances of the
case, to recommend to the State Government whether the detenG tion order is to be confirmed or cancelled and the State Government, on receipt of the recommendation, has either to confirm or
cancel the order as it may deem fit. Under sub-r. (b) of r. 6, the
Administrator too in regard to orders made by an officer empowered by him to make" such detention orders, has to take into account
all the circumstances of the case and thereafter either confirm the
H detention order or cancel it.. Sub-rules (7) and (8)' provide for·
the reviewing authority or .the Administrator to review the detention order made by the officers empowered by the State Govern-
60
SUPREME COURT REPORTS·
[ 1965] I S.C.R.
ment or the Administrator respectively at intervals of not more
A
than 6 months. The reviewing authority has to send its recommendation to the Government which ha1 to decide whether the
detention order be continued or cancelled. . The Administrator
has himself to decide whether that detention order be continued
or cancelled.
Sub-rule ( 9) deals with the review of detention
orders made by the Central and the State Governments respectiveB
ly. Such orders are to be reviewed at intervals of not more than
6 months by the Government making the detention order.
The contention that the order of confumation be treated as the
order of review is based on what is stated in sub-r. ( 2) which
directs that every detention order shall be reviewed in accordance
C
with the provisions thereinafter contained.
It is urged that the
provisions about the review of the detention orders are contained
in the provisions following sub-r. (2) and that therefore the act of
confirming the order should be considered to be equivalent to the
act of reviewing the order as contemplated by the various provisions of r. 30A. We do not consider this to be the corr~! view
D
about the order of confirmation.
Sub-rule (I) of r. 30 empowers the Central Governm1111t or
the State Government to make an order directing that the person
be detained in certain circumstances.
The expression 'StateGovemment' used· therein means, in relation to the Union TerriE
tory, the Administrator there<'f.
The State Government and the
Administrator confer on officers power· to make such orders. The
power so delegated to them is in a way >ubject to the supervision
of the State Government and the Administrator, and for the exercise of supervision by these authorities, sub-rr. (5) and (6) provide the procedure to be followed for the confirmation of the deten
F
tion order made by the officer empowered to make it. It may be
said that the orders of such officers, though valid from the time
they are made, are subject to the approvai of the State Government or the Administrator by way of those authorities confirming
them.
·
G
Sub-rule 6(a) gives the power of confirming or cancelling the
detention order made by an officer empowered by the State Government to the State Government and not to the reviewing authority mentioned in sub-r. ( 4) of r. 30A. This indicates that the
order of confirmation is not really an order of review. The review
is done by the reviewing authority. The order of confirmation or H
cancellation is passed by the authority primarily empowered
to
make the detention order in sub-r. (I ) of r 30.
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160
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{1965] l S.C.R.
other; for sub-section (3 )(b) of section 9 provides in the
A
latter case both for publication in the Gazette and presentation to the Legislative Assembly."
Based on this passage, it was urged that the notification of the
.Reserve Banlc, dated November 8, 1962 could not be deemed
to be in force, at least not on November 28,.1962 when the responB
dent landed in Bombay and that consequently he could not be
held guilty of the contravention of s. 8(1). This arglUilent cannot,
in our opinion; be accepted. In the first place, the order of the
Minister dealt with by the Privy Council was never "published"
since admittedly it was transmitted only to the Immigration official
who kept it ~vith himself.· But in the case on hand, the notification c.
by the Reserve Banlc varying the. scope of the exemption, was
admittedly "published" in the Official Gazette--ihe usual mode
of publication in India, and it was so publisned long before the
respondent landed in Bombay.
The question, therefore, is not
whether it was published or not, for in truth it was published, but
. whether it is necessary that the publication should be proved to n
have. been brought to the· ·knowledge of the· accused.
Jn the
second place, it was the contravention of the order of the Minister
that was made criminal by s. 6 (2) of the· Immigration 'Qrdinance.
Tiiat ·is not the position here, because ·the contravention contemplated by s. 23 ( 1-A) of the Act is, in the present context, of an
order of the Central Government issued under s. · 8 ( 1) of the Act E
and. published in the Official Gazette on November 25, 1948 and
this order.·was in force during aII this period. No doubt, fo~ the
period, up tp the 8th November, the bringing of gold by through
passengers would not be a contravention because of the permission
of the. Reserve Bank exempting such bringing from the operation
. of 'the Central Government's notification. It was reaIIy the withF
drawal of this exemption by the Reserve Bank that rendered the
act of the respondent criminal. It might well be that there is a
distinction between the withdrawal of an exemption which saves
an act otherwise criminal from being one and the passing of an
order whose contravention constitutes the crime.
Lastly, the
_order made by the Minister in the Singapore case, was one with
Grespect to a single individual, ii.of a general order, whereas what
we have before us is a general rule applicable. to every person
who passes through India. In the first case, it would be rear.onable to expect that the. proper. method of acquainting a person
with an order which he is directed to obey is to serve it on him,
or so publish it that he would certainly know of i(, but there would
H
be no question of individual service of a. general notification on
every member of the public, and all that the subordinate law-
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62
SUPREME COURT REPORTS
[1965] I S.C.R.
considering the circumstances of the case including the nature of
A
activities of the detenu on which the order is founded, for the
purpose of confirming or cancelling the order till
about six
months after the making of the order and thus defeat the purpose
behind the provisions for confirmation of the orders. The authority empowered to confirm or cancel such orders will fail in its
duty to consider the proprjety of the order made by an officer
B
empowered by it within a reasonable time of the making of the
order, an order which affects the fundamental right of a citizen
with respect to his personal liberty.
It is also urged that sub-rr. (7) and (8) speak of the review
of every detention order made by an ofiicer empowered by a State
C
Government or the Administrator and confirmed by it or him as
the case may be and that therefore the further expression in these
sub-rules referring to the intervals after which a reviewing authority is to review should be taken from the date of confirmation of
the detention order and not from the date of the detention order.
We do not agree. The use of the expression 'and confirmed' with
D
respect to the detention order to be reviewed is merely descriptive"of the order which is to be reviewed and has nothing to do
with the further provision about the interval within which the
detention order is to be reviewed.
No question of reviewing an
order which is not confirmed arises as, in that case, the order of
the appropriate authority would be to -:ancel the detention order.
E
It is only in cases where the detention order is confirmed by that
authority that the question of a subsequent review at intervals
of not more than six months arises:
The review is of the detention order aad therefore the interval
mentioned in sub-rr. (7) and (8) must relate to the interval
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between the making of the detention order and ils review. It is
to be noticed that the provisions of sul>-rr. (7). (8) and
(9)
provide for the review of detention orders at intervals ·or not more
than six months.
The Central or the State Government has not
to confirm an ·order made by itself. Sub-rule (9) therefore does
not use the expr~ion 'and confirmed' which is used in connecG
tion with the detention order in sub-rr. (7) and (8). 'l'he provisions Of sub-r. (9) therefore enjoin upon the Central or the State
Government to review the detention order at intervals of
not
more than six months. The interval has to commence necessarily
from the date of the detention order. It follows therefore that
this common interval of 'not more than six months' for the review H
of the detention order should; in each case, be taken to refer to
the interval beween the making of the detention order and the
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BALMUKAND v. DT. MAGISTRATE (Raghubar Dayal /.)
63
A first review and, subsequently, to the intervals between dates of
consecutive reviews. It is to be noted that there is no provision
in the Defence of India Act or the rules framed thereunder which
provides for the detention order to specify .the period of detention.
The ~ntion order should not therefore be deemed tO be for a
period ol six months in the first instance. ' When a
reViewing
B
authority reviews a detention order, it orders that the <letention
be continued and as there is no specific date when the original
detention is to come to an end, the order of the reviewing authority justifies the further detention from the date of the order made
by it for the continued detention of the detenu.
The further
orders on review for the continuation of the detention order woilld
C
therefore be effective from the date of the orders and not after the
expiry of the sixth month from the date of the detention order
Qr from that of any subsequent review order
We therefore hold that the review of a detention order made
by an officer empoweted by the State Government or the_ AdrniD nistrator is to be at intervals of not more than six montlis from
the date of the detention order in the first instance and from the
date of each subsequent order of the reviewing authority for the
1
detention to continue.
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Reference may now be made to the following obsmations in
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Biren Dutta v. The Chief Commissioner of Tripura,( 1) whert
this Court had to consider whether a certain detention order bad
beea reviewed in accordance with the provisions of r. 30A:
F
"It is necessary to emphasize that the decision recorded
under r. 30A(8) is in the nature of an independent
decision which authorises the further detention of the
detenu for a period of six months. In other words,
the initial order of detention is valid for six months
and the detention of the detenu thereafter can be
justified only if a ·decision is recorded under
r. 30A(8)."
G Tliese observations clearly indicate that the review order under
r. 30A(8) is to be within six months from the date of the initial
order of detention which will not be valid after six months if no·
order for the continued detention is made in. accordance with
r. 30A(8}.
H
We therefore hold that the detention of the petitioner under
the detention order made by the District Magistrate, Delhi, on
(I} Cr!. Appeals. Nos. 87-91 of 1964 etc. decided on July 23, 1964
64
SUPREME COURT REPORTS
[1965] 1 s.c.R.
February 25, 1963, became illegal afte.r the expiry of six months
A
from that date as it had not been reviewed by the Administrator
within that period as required by sub-r. (8) of r. 30A and, accordingly, direct that the petitioner be set at liberty at once.
Petition granted.
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