The constitution of an Advisory Board as per the provisions of the law providing for preventive detention is a pre-requisite for the constitutional validity of any detention law. Failure of the State to constitute Advisory Board according to the provisions of the law providing for preventive detention infracts the basic fundamental right of the detenu to have the order of detention reviewed by an independent body as contemplated under the said law.

JUDGMENT

(Per Hon’ble Sri Justice Joymalya Bagchi)

All these matters give rise to a common question of law, namely, whether the representation of the detenues considered by the Advisory Board comprising of a Chairman and a Single Member would amount to valid consideration of their representation by an Advisory Board constituted under Section 9 of the Andhra Pradesh Prevention of Dangerous Activities of Boot- Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986 (hereinafter referred to as ‘the Act 1 of 1986).

2. Shorn of details, factual matrix giving rise to the aforesaid issue is as follows:

In W.P.No.9945 of 2021, the 2nd respondent detaining authority passed a detention order on 08.03.2021 under Section 3(1) read with 3(2) of the Act 1 of 1986. The order was placed before the Advisory Board comprising of Chairman (Retired) Justice Neelam Sanjeeva Reddy, and one Member for submitting its report under Section 11(1) of the Act 1 of 1986. The Advisory Board reviewed the case through video conference on 22.04.2021 and submitted its report that there was of the unanimous opinion there is sufficient cause of detention.

Upon consideration of the report of the Advisory Board and the materials available, the Government in exercise of powers under Section 12(1) of the Act 1 of 1986 confirmed the detention order passed by the 2nd respondent.

In W.P.No.10979 of 2021, the detenue had been detained pursuant to a detention order dated 08.03.2021 under Section 3(1) read with 3(2) of the Act 1 of 1986. Such detention order was also confirmed by the Government under Section 12(1) of the Act 1 of 1986 upon consideration of the report of the Advisory Board comprising of the Chairman and one Member only, as aforesaid.

Similarly, in W.P.No.10984 of 2021 the detenu had been detained pursuant to detention order dated 15.03.2021 which came to be confirmed on 07.05.2021 upon consideration of report by the Advisory Board comprising of Chairman and Member.

3. Although the aforesaid detention orders have been challenged on various grounds, at the time of hearing, Sri S.Dilip Jaya Ram, learned counsel for the petitioners, essentially based his challenge to the detention orders on the following ground:

“It is submitted that the Detention Order is confirmed by the State Government basing on the opinion of the Advisory Board. It is submitted that the constitution of advisory board is dealt under Section 9 of the Act 1 of 1986 1 of 1986, where Section 9(2) specifically mandates the constitution of board with specific strength i.e., a Chairman and two other members, who are, or have been Judges or are qualified to be appointed as Judges of a High Court. But in the case on hand the constituted advisory board consists of only one member, which clearly violates provisions of statue and as such the opinion rendered by the body constituted in contra to the section 9 is invalid, there by the order of detention deemed to be invalid.”

In the counter filed on behalf of the State, the aforesaid ground has been dealt with as follows:

“15. In reply to para-5 ground No.(xii) & (xiii), the detenue was produced before the Advisory Board on 22.4.2021 by way of Zoom App by the Jail authorities and given opportunity to the detenue as well as the father of detenue who attended in office of the Circle Inspector of Police, Vontimitta to represent the case before the Advisory Board. The Advisory Board after perusing the record and hearing the contentions of the detenue through video conference, formed an opinion that the order of detention is to be confirmed basing on the available material on record. Therefore, the order of detention was confirmed by the Advisory Board.”

4. Hence, there is no rebuttal on behalf of the State to the plea raised by the detenu that the Advisory Board comprised of the Chairman and one Member only and therefore, could not be treated as having been validly constituted under Section 9 of the Act 1 of 1986.

5. Sri Jaya