ABDUL LATIF ABDUL WAHAB SHEIKH versus B.K. JHA & ANR.

Citation: [1987] 2 S.C.R. 203 · Decided: 09-02-1987 · Supreme Court of India · Bench: O. CHINNAPPA REDDY · Disposal: Appeal(s) allowed

Judgment (excerpt)

j 
ABOUL LATIF ABDUL WAHAB SHEIKH 
v. 
B.K. JHA & ANR. 
FEBRUARY 9, 1987 
A 
[O. CHINNAPPA REDDY AND V. KHALID, JJ.] 
B 
Gujarat Prevention of Anti Social Activities Act, 1985, section 
15-Preventive Detention providing for successive detention:<-Validity 
of-Whether the section be read down so that it does not offend the 
mandate of Article 22(4) of the Constitution-Procedural requirements 
stricts complianu of, reiterated. 
Section 11 of the Gujarat Prevention of Anti Social Activities Act, 
1985 stipulates that in every case where a detention order has been 
made under the Act, the State Government shall, within three weeks 
from the date of detention of a person under the oder, place before the 
Advisory Board constituted under s. 10 the grounds on which the order 
has been made the representation if any made by the detenu and the 
report if any of the authorised officer. Under s. 15(2), the expiry or 
revocation of an earlier detention order shall not bar the making of a 
susequent detention order under the Act against the same person, sub· 
ject to the proviso that if there were no fresh facts, the maximum 
period for which a person may be detained shall not extend beyond the 
expiry of a period of 12 months from the date of detention under the 
earlier detention order. 
While the appellant was in Jail from November 12, 1985 onwards 
awaiting trial on a charge of murder he was acquitted on May 26, 1986. 
He was due for release from prison on June 23, 1986. On that day, 
however, an order for his detention was made under the provisions of 
the Gujarat Prevention of Anti Social Activities Act, 1985. The period 
of three weeks stipulated by s. 11 of the Act expired on July 14, 1986. 
Since there was no Advisory Board in existence, the appellant was 
entitled to be released on July 14, 1986 itself. But he was not so re· 
leased. However, during the pendency of the writ petition challenging 
the said detention order in the High Court, the order of detention dated 
23rd June, 1986 was revoked on 7th August, 1986 and a fresh order of 
detention was made on the same facts on the same day with the result 
the earlier writ petition was withdrawn and a fresh write peition came 
be filed. An Advisory Board was, however constituted on August 18, 
1986. A reference under s. 11 was made to the Advisory Board on 
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204 
SUPREME COURT REPORTS 
[1987] 2 S.C.R. 
August 20, 1986 and the Advisory Board made its report on September 
A 26, 1986. The report of tlite Advisory Board was more than three weeks 
after the detention which commenced on the making of the order of 
detention though it was within three months from the second order of 
the detention. The appellant contended, in the writ petition, that there 
has been a contravention of the constitutional protection afforded to 
B him by Article 22(4). The writ petition having been dismissed, the 
appellant has come in appeal by Special Leave. 
Allowing the appeall, the Court, 
HELD: 1. No law can be made providing for successive orders 
for detention in a manner so as to render the protection of Article 22(4) 
C 
of the Constitution ineffEdive. Section 15 of the Gujarat Prevention of 
Anti Social Activities Act, 1985 which provides for the making of suc-
cessive orders of detention must be read down so as to bring it in 
conformity with Article 22(4) of the Constitution. If there is to be a 
collision between Article 22(4) of the Constitution and s.15 of the Act, 
D s.15 has to yield. But by reading down the provision, the collision may 
be avoided ands. 15 may be sustained. So, avoiding the collision course, 
it must be held that if !Ille report of the Advisory Board is not made 
within three months of the date of detention, the detention becomes 
illegal notwithstanding tlitat it is within three months from the date of 
E 
the se,cond order of detention. [207C-F] 
· 
Shibapada Mukherjee v. State of West Bengal, [1974J 3 SCC 50; 
A.K. Roy v. Union of India, [ 1982] I SCC 271 and Talib Hussain v. 
State of Jammu & Kashmir, [ 1971] 3 SCC 118, distinguished. 
2. In a Habeas Corpus proceeding, it is not a sufficient answer to 
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say tbat the procedural requirements of the Constitution and the Statute 
have been complied with before the date of hearing and therefore, the 
detention should be upheld. The procedural requirements are the only 
safeguards available to a detenu since the court is not expected to go 
behind the subjective satisfaction of the detainin

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