An Advisory Board constituted under Section 9(1) of the National Security Ordinance II of 1980 must consist of a Chairman and not less than two other members. A determination made by the Chairman and only one member is violative of Articles 21, 22 (4) and 22 (5) of the Constitution read with Section 9 (3) of the Ordinance.

On 13. 1. 81, we allowed the Habeas Corpus application of Shri Tarun kumar Das, a detenu in misc. Case No. 8(HC) of 1981, ordered his release and observed that a reasoned judgment would follow. We were told at the Bar, during the course of hearing, that another application having "the common question of law" was pending for disposal. So, we deferred delivery of the judgment. The case namely, Civil Rule No. 54(HC) of 1981 (Criminal Misc. case No. 28(HC) of 1981) has come up today. We have heard the parties and find that the case involved the same question of law. Ergo, our reasoned judgment. In the process, we propose to dispose of Civil Rule No. 54 of 198].

2. A thumb-nail facts of Tarun's case-Tarun was arrested and detained on the strength of an order issued by the State Government under Section 3(1)(a) of ''the National Security Ordinance II of 1980"-for short "the Ordinance". The Ordinance was promulgated by the President on the 22nd September, 1980, to provide for preventive detention in certain cases and for matters connected therewith. It came into force on the 23rd day of September, 1980. In exercise of its power u/s 9 of the Ordinance, the State Government, by Notification No. PLA. 1219/80 dated the 14th October, 1980, constituted "an Advisory Board" consisting of the Hon'ble Mr. Justice K.N. Saikia, Judge, Gauhati High Court as Chairman and two other members; (1) Mr. Justice Shambhu Prasad Singh, Retired Judge, Patna High court and (2) Mr. Justice B.N. Sarma, Retired Judge, Gauhati High Court. The petitioner was deta­ined on 15. 10. 80 and was served with the ground of the order of detention. As required under Section 10 of "the Ordinance'' the Mate Government placed the case of the detenu before the Advisory Board. Eventually, on 2. 12. 80, the case of the petitioner came up for consideration before the Advisory Board. His case was considered by the Hon'ble Chairman and Mr. Justice B.N. Sarma. The third Member was absent and did not at all take part in the proceedings. The order of detention was confirmed by the Hon'ble Chairman and Mr. Justice B.N. Sarma. The petitioner questions the validity of the order of confirmation by the Chairman and only one member. The petitioner Submits that his detention was violative of Ss. 9, 10 and 11 of the Ordinance and his funda­mental rights by Articles 21 and 22 of the Constitution were violated. The State in its return admits that the third member was absent and the decision was rendered by the Chairman and only one member. It contends that the order was legal and appropriate as Section 11(3) of the Ordinance provides that "on 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." The respondents contened that there was lawful consideration of the case and a valid confirmation of the order of detention. The detenu petitioned for a Writ of Habeas Corpus and took up various points. The State conceded that the case of the detenu was not considered by all the three members of the Board. We were fully satisfied that the detention was violative of Articles 21 and 22 of the Constitution read with Sections 9, 10 and 11 of the Ordinance and allowed the petition and directed the respondents to release the petitioner. We did not feel it necessary to go into the other points sought to be urged by the learned Counsel for the detenu.

3. Preventive detention was imported to India officially with the Bengal State Prisoners Regulation III, 1818. The oldest Statute dealing with preventive detention was later extended to Madras and Bombay Presidencies. The Regulations were permanent in nature. Besides "the Regulations", preventive detention was also authorised in other manners when the Pro­vincial assemblies passed such Acts. Later, detention was authorised by the Defence of India Acts of 1915 and 1939, by the Government of India Act, 1919, the Infamous Rowlatt Act and by other mea