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Issues: (i) Whether a writ petition under Article 226 challenging an already made preventive detention order was maintainable before the detenu surrendered or was finally detained. (ii) Whether the detention order ceased to be in force for want of approval by the Government within the prescribed time and for failure to place the case before the Advisory Board within the statutory period.
Issue (i): Whether a writ petition under Article 226 challenging an already made preventive detention order was maintainable before the detenu surrendered or was finally detained.
Analysis: The Court held that the High Court's practice of refusing to examine such a challenge unless the detenu first surrendered was too restrictive where the order of detention had already been made, served, and had resulted in an immediate threat to personal liberty. Article 226 is wide enough to protect a person against unlawful invasion of liberty even before full detention, and the remedy is not confined to post-detention habeas corpus. Where the challenge is to an existing detention order that poses an imminent threat to Article 21 rights, the court may intervene to prevent violation rather than wait for the violation to occur.
Conclusion: The writ petition was maintainable and the High Court ought to have examined the detention order on merits.
Issue (ii): Whether the detention order ceased to be in force for want of approval by the Government within the prescribed time and for failure to place the case before the Advisory Board within the statutory period.
Analysis: The detention order had been made by a District Magistrate under the preventive detention statute, and the statute required the officer to report forthwith to the Government and provided that such an order would not remain in force beyond twelve days unless approved by the Government. The record disclosed no proof of such approval. The statute further required the Government to place the grounds, the detenu's representation, and the officer's report before the Advisory Board within three weeks. That mandatory reference was also not made. Since these requirements were conditions for the continued force of the detention order, non-compliance rendered the order ineffective after the statutory period.
Conclusion: The detention order had ceased to be in force and was liable to be quashed.
Final Conclusion: The judgment affirms that preventive detention orders affecting personal liberty can be judicially tested before surrender when an imminent infringement is shown, and that strict compliance with statutory approval and advisory-board safeguards is essential for the order's continued validity.
Ratio Decidendi: A preventive detention order already made and threatening personal liberty may be challenged under Article 226 before surrender, and its continuance depends on strict compliance with mandatory approval and advisory-board requirements prescribed by the detention statute.
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