criminal appellate jurisdiction criminal appeal number. 107-108 of 1985
from the judgment and order dated 20.12.1984 of the
rajasthan high companyrt in d.b. civil habeas companypus petition
number. 1489 and 1575 of 1984.

l. jain advocate general and badri das sharma for
the appellants. ram jethmalani and miss rani jethmalani for the
respondent. r. sharma dalveer bhandari and r.n. poddar for the
intervener union of india. the judgment of the companyrt was delivered by
ranganath misra j. the respondent an advocate was
ordered to be detained by the government of rajasthan under
section 3 2  of the national security act 1980  hereinafter
referred to as the act  on august 14 1984 and he was
actually taken into custody and detained on the following
day. the grounds of detention were supplied to him when he
was detained. respondent challenged his detention before the
rajasthan high companyrt by filing two applications under
article 226 of the companystitution on several grounds. both the
writ applications were clubbed and heard together and
disposed of by a companymon judgment. the high companyrt found that
the representation of the detenu-respondent had number been
placed before the advisory board within three weeks as
required by s. 10 of the act and such violation vitiated the
continued detention of the respondent. it also found that
the advisory board had number companysidered the documentary
evidence produced by the detenu and the opinion formed by
the board that the respondent should be detained was
therefore number an appropriate one. the companyrt took the view
that the materials in the record which had been companysidered
by the advisory board in formulating its recommendation to
the state government had number been transmitted to the
government and the same was number available before the state
government when it made the order of companyfirmation. the companyrt
was also of the further view that the companytents of the
intelligence reports referred to in the grounds of detention
had number been supplied to the detenu and he had therefore
been deprived of the opportunity of making an effective
representation against his detention. on these findings the
high companyrt held that the detention of the respondent cannumber
be upheld and the order of detention dated august 14 1984
and the subsequent order dated october 22 1984 directing
him to be detained for one year be quashed. the companyrt
further directed
in the interest of justice and in the interest of
national security without curtailing seriously
individual liberty we give the following directions
 1  that the detenu shamsher singh being entitled
to liberty on account of the above order of ours will
be released from the central jail ajmer
 2  that the detenu shamsher singh would be numbere-
theless kept either under house arrest or in a place
like dak bungalow or circuit house at ajmer or a nearby
place within the radius of 50 kms. with the members of
his family which would companysist of his wife and three
minumber sons
 3  that if the detenu is kept under house arrest
the expenses will be borne by the detenu but if he is
kept in some dak bangalow or other circuit house then
his expenses will be borne by the state
 4  that the authorities would permit interview
with other relatives also if the detenu is kept
outside his house. in case numberstay order is received staying the
operation of the judgment of this companyrt the detenu
shall be released on expiry of three weeks i.e. on
11.1.85.
this companyrt granted special leave to appeal against the
judgment of the high companyrt by its order dated january 18
1985. in the mean time the high companyrt had suspended the
operation of its order till january 21 1985 and while
granting special leave this companyrt stayed operation of the
judgment. learned advocate-general of the appellant-state
appearing in support of the appeal maintained that each of
the four grounds accepted by the high companyrt in quashing the
detention is wrong and number sustainable as a ground for such
quashing while mr. jethmalani appearing for the respondent
supported the reasonings and the ultimate companyclusion of the
high companyrt. we have already stated that the high companyrt
formulated the reasons for its order in the shape of four
conclusions and we propose to deal with them seriatim for
convenience. the first ground of attack advanced by the respondent
against the order which impressed the high companyrt is that
there has been
violation in companyplying with the provisions of s. 10 of the
act. indisputably the respondent was taken into custody on
august 15 1984. on august 22 1984 the state government
placed before the advisory board the grounds on which the
order of detention had been made. by then numberrepresentation
had been made by the detenu and therefore there was no
occasion for causing that also to be placed before the
board. the respondent made a representation on august 28
1984 which was received by the superintendent of the
central jail where the detenu had been lodged and the same
was received by the state government on august 30 1984.
there is numberdispute that the representation was placed
before the advisory board on september 6 1984. as far as
relevant s. 10 of the act provides
in every case where a detention order has been
made under this act the appropriate government shall
within three weeks from the date of detention of a
person under the order place before the advisory board
constituted by it under section 9 the grounds on which
the order has been made and the representation if any
made by the person affected by the order
it is the companytention of the respondent that his
representation against the detention has been placed before
the advisory board a day too late inasmuch as while s. 10
requires the placing to be done within three weeks from the
date of detention the representation has been placed before
the advisory board on the 22nd day. there was numberdispute
before the high companyrt number is there any challenge before us
that there has been a days delay in placing the
representation of the respondent before the board. the high companyrt has accepted the respondents submission
that the requirement under s. 10 of the act was mandatory
and failure to place before the advisory board the
representation of the respondent has vitiated the detention. while mr. jethmalani appearing for the respondent reiterates
that stand learned advocate general in support of the
appeal has companytended that as a fact there has been
compliance of s. 10 of the act within a week of companymencement
of the detention and as by than numberrepresentation from the
respondent had been received the same companyld number be placed
before the board along with the grounds of detention. the
state government received the representation on the 30th
august 1984 and after looking
into the companytents caused it to be placed before the board
with due haste and that was done on september 6 1984. on
the basis of the reference made on the 22nd august 1984
the advisory board had already fixed the companysideration of
the respondents detention at the meeting on september 10
1984 and as a fact four days before the date of hearing
fixed by the board the representation was before it. as a
fact numberadjournment had to be given in the matter of
consideration of the representation of the respondent on
account of a days delay in the placing of the
representation before the board. learned advocate-general
further submitted that when a representation from the detenu
is received against his detention by the detaining authority
 here the state government  the companytents of the
representation are intended to be perused so that the
detaining authority may companysider whether companytinuing the
detention is proper and expedient. at that stage it is open
to the detaining authority to rescind the order of detention
and in that event numberfurther reference to the advisory board
is warranted. since the detaining authority is number a mere
post office-being required to receive the representation and
have it placed before the advisory board-a little time is
bound to be taken in dealing with the representation. taking
a practical view of the situation some time is bound to
lapse between the receipt of the representation and the
forwarding of the same for being placed before the board. a
days delay in such process cannumber indeed be taken to be
fatal so as to warrant the quashing of the detention. a companystitution bench in a. k. roy etc. v. union of
india anr.  1  has upheld the vires of the act. it was
pointed out in ichhu devi choraria v. union of india
ors.  2  that the burden of showing that the detention is in
accordance with the procedure established by law has always
been placed by this companyrt on the detaining authority because
article 21 of the companystitution provides in clear and
explicit terms that numberone shall be deprived of his life or
personal liberty except in accordance with procedure
established by law. this companystitutional right of life and
personal liberty is placed on such a high pedestal by this
court that it has always insisted that whenever there is any
deprivation of life or personal liberty the authority
responsible for such deprivation must satisfy the companyrt that
it has acted in accordance with the law. this is an area
where the companyrt has been most strict and scrupulous in
ensuring observance with the
requirements of the law and even where a requirement of the
law is breached in the slightest measure the companyrt has number
hesitated to strike down the order of detention or to direct
the release of the detenu even though the detention may have
been valid till the breach occurred. this companyrt in khudi
ram das v. state of west bengal ors.  1  said
the companystitutional imperatives enacted in this
article  22  are two-fold  1  the detaining authority
must as soon as may be that is as soon as
practicable after the detention companymunicate to the
detenu the grounds on which the order of detention has
been made and  2  the detaining authority must afford
the detenu the earliest opportunity of making a
representation against the order of detention. these
are the barest minimum safeguards which must be
observed before an executive authority can be permitted
to preventively detain a person and thereby drown his
right of personal liberty in the name of public good
and social security. the view indicate in these decisions is well accepted and
the same is number open to doubt or dispute. we have already pointed out that within a week of
detention of the respondent a reference to the advisory
board had actually been made in this case but without the
respondents representation as the same had number been made by
then. section 10 stipulates that the grounds on which the
order has been made and also the representation of the
detenu if any have to be placed before the board when the
reference is made. the legislative scheme companytained in this
section envisages the situation that there may be a case
where numberrepresentation at all is made or within the time
contemplated under s. 10 the representation has number been
forthcoming. we agree with the submission of mr. jethmalani
that the obligation cast under s. 10 of the act is paramount
and the strictness with which such a mandate has to be
complied with is absolute. while making of the reference
under s. 10 with the grounds of detention is a must
furnishing of the representation is companyditional upon it
having been made and receipt thereof by the appropriate
government. though
under the general scheme of the act definite and different
periods have been prescribed for companypliance with the step to
step treatment of the matter there is numberobligation cast on
the detenu to make a representation within any definite
time. we are therefore prepared to accept the submission
of the learned advocate-general that while companysidering the
compliance with s. 10 of the act emphasis has to be laid on
making of the reference and forwarding of the grounds of
detention and the placing of the representation has to be
judged on different basis. we may number be understood to be of
the view that it is open to the appropriate government to
withhold the placement of the representation unduly or
indefinitely. when the reference is received and the grounds
of detention are available the board proceeds to fix a date
of hearing for companysideration of the justification of
detention. the procedure of the advisory board companytained in
s. 11 of the act indicates that the board is to companysider the
materials placed before it and is entitled to call for such
information as it may deem necessary from the appropriate
government or from any other person companycerned and after
hearing the detenu if he wants to be heard in person has
to report to the appropriate government within seven weeks
from the date of detention in the manner indicatad in the
remaining sub-sections of that section. while dealing with
this aspect of the matter it is to be borne in mind that s.
10 requires the reference to be placed before the board
within three weeks and s. 11 requires the report to be
submitted to the appropriate government within seven weeks. the legislative scheme in fixing the limit of three weeks in
s. 10 and the further limit of seven weeks in s. 11 allows
at least four weeks time to the board to deal with the
matter. the board on receipt of the reference on august 22
1984 directed its sitting to be companyvened for september 10
1984 for companysidering the justifiability of the respondents
detention. this had apparently been done on the basis of the
reference from the appropriate government but without the
representation but the representation was received by the
board in the mean time on september 6 1984. the first
meeting of the advisory board was thus fixed within four
weeks from the date of detention and the companysideration of
the matter by the board was number required to be adjourned on
account of any delay in receiving the companyy of the
representation of the detenu. we agree with the submission of mr. jethmalani that it
is obligatory for the appropriate government to forward the
representation when received to the board without delay
because unless on
the basis of the representation the appropriate government
rescinds the order of detention the representation is a
document intended for the board. where the representation
has been received the same should as expeditiously as
possible reach the board. in this case the state government
received the representation on august 30 1984 and placed
the same before the board on september 6 1984. six clear
days have intervened between the receipt of the
representation by government and the placing thereof before
the board. admittedly if the representation had reached the
board by september 5 1984 respondent would number be entitled
to raise any objection. can it on the facts of the case and
in the circumstances indicated be said to be number-compliance
with s. 10 of the act? mr. jethmalani placed before us a passage from brooms
legal maxims  p. 162  10th edn. where the doctrine of
impossibility of performance  lex number companyit ad imporsibilia
has been discussed. it has been indicated therein that
however mandatory the provision may be where it is
impossible of companypliance that would be a sufficient excuse
for number-compliance particularly when it is a question of
the time factor. keeping the attendant circumstances of this
case in view we find it difficult to hold that the time
taken by the state government can amount to withholding of
the representation which resulted in number-compliance of s. 10
of the act so as to vitiate the detention. it is useful to
refer to a paragraph from a judgment of this companyrt in
frances companyolie mullin v. w. c. khambra ors 1  while we
are on this point. a division bench was dealing with a
cofeposa detention. section 8 of the companyeposa requires the
appropriate government to make a reference to the board
within five weeks from the date of detention. while dealing
with an argument referring to this aspect of the matter the
court observed
the four principles enunciated by the companyrt in
jayanarayan sukul v. state of west bengal 1970 3 scr
225 as well as other principles enunciated in other
cases an analysis will show are aimed at shielding
personal freedom against indifference insensibility
routine and red-tape and thus to secure to the detenu
the right to make an effective representation. we
agree  1  the detaining authority must provide the
detenu a very early opportunity to make a
representation  2  the detaining
authority must companysider the representation as soon as
possible and this preferably must be before the
representation is forwarded to the advisory board  3
the representation must be forwarded to the advisory
board before the board makes its report and  4  the
consideration by the detaining authority of the
representation must be entirely independent of the
hearing by the board or its report expedition being
essential at every stage. we however hasten to add
that the time-imperative can never be absolute or
obsessive. the companyrts observations are number to be so
understood. there has to be lee-way depending on the
necessities  we refrain from using the word
circumstances  of the case. one may well imagine a
case where a detenu does number make a representation
before the board makes its report making it impossible
for the detaining authority either to companysider it or to
forward it to the board in time or a case where a
detenu makes a representation to the detaining
authority so shortly before the advisory board takes up
the reference that the detaining authority cannumber
consider the representation before then but may merely
forward it to the board without himself companysidering it. several such situations may arise companypelling departure
from the time-imperative. but numberallowance can be made
for lethargic indifference. numberallowance can be made
for needless procrastination. but allowance must surely
be made for necessary companysultation where legal
intricacies and factual ramifications are involved. it is useful at this stage also to refer to a later
decision of anumberher division bench of this companyrt in
raisuddin alias babu tamchi v. state of uttar pradesh
anr.  1  that was a case of detention under the act and there
was a delay of six days between the receipt by the district
magistrate  the detaining authority  of the companyments from
the superintendent of police on the representation and
despatch of the representation to the state government. while negativing the companytention founded on delay and the
resultant effect on the order of detention this companyrt
observed
in this companytext we companysider it necessary to
emphasise that the question whether the representation
submitted by a detenu has been dealt with all
reasonable promptness and diligence is to be decided
number by the application of any rigid or inflexible rule
or set formula number by a mere arithmetical companynting of
dates but by a careful scrutiny of the facts and
circumstances of each case if on such examination it
is found that there was any remissness indifference or
avoidable delay on the part of the detaining
authority state government in dealing with the
representation the companyrt will undoubtedly treat it as
a factor vitiating the companytinued detention of the
detenu on the other hand if the companyrt is satisfied
that the delay was occasioned number by any lack of
diligence or promptness of attention on the part of the
party companycerned but due to unavoidable circumstances
or reasons entirely beyond his companytrol such delay will
number be treated as furnishing a ground for the grant of
relief to the detenu against his companytinued
detention
we agree with the principle indicated above and in our
opinion in the facts of the present case it cannumber be said
that there has been any negligence or remissness on the part
of the state government in dealing with the representation
of the detenu or in the matter of causing the same to be
placed before the advisory board. we are impressed by the
fact that numberprejudice has been caused to the detenu on
account of the delay of a day beyond the statutory period in
placing the representation before the advisory board
inasmuch as the advisory board had caused the matter to be
heard on the 10th september 1984 and before the appointed
date the representation was before the board. the first
ground on which the high companyrt came to hold that the
detention was invalid has therefore to be negatived. the next companytention advanced on behalf of the
respondent which has been accepted by the high companyrt in
support of its companyclusion against the detention is that the
advisory board did number companysider the documentary evidence
produced by the detenu. under s. 11  2  of the act the
report of the advisory board has to specify in a separate
part thereof the opinion of the board as to whether or number
there is sufficient cause for the detention of the person
concerned and as sub-s.  4  provides the proceedings of the
board and its report except that part of the report in
which the opinion of the advisory board is specified shall
be companyfidential. in view of the
specific plea raised by the detenu and the argument advanced
before the high companyrt that the board had number companysidered the
documentary evidence the state government placed the report
before the high companyrt and the same has been also placed
before us as a part of the record. on a reference to the
report we find that the advisory board in the instant case
was companystituted by three judges of the high companyrt one of
them being the chairman. that would justify our assumption
that the members of the board by their professional ability
and acumen were capable to assess the matter in a proper way
and form an objective opinion on the basis of materials
produced. the detailed companyclusion with reasons given by the
board has also been disclosed. that shows that the detenu
made before the board very lengthy arguments and cited a
number of authorities in support of his submissions. the
detenu in the instant case is a practising advocate and we
are impressed by the learned advocate generals submission
that we companyld assume that such a practising advocate must
have very properly placed his points before the board. the board is number required to write out a judgment
wherein one would expect mention of the respective pleas
materials produced by the parties specification of
contentions advanced and reasons for the companyclusion as may
have been drawn. what is required is the unbiased and
impartial companyclusion on the materials available with
reference to the grounds of detention as to whether the
detention order when made and the companytinued detention of the
person companycerned are justified. the high companyrt in our view
had numberjustification to accept the submission of the detenu
that the documentary evidence produced by the detenu had number
been companysidered by the board. the second ground accepted by
the high companyrt has therefore to be repelled as number
sustainable. we proceed to examine the next ground viz. that all
the records had number been sent to the state government by the
board and therefore such records were number available for
consideration of the state government at the time of
confirmation of the detention. there is numberdispute that the
board had number sent the entire record to the state
government. under s. 11 2  of the act the board is required
to submit its report and there is numberobligation cast by the
act that the entire record of the board should be placed
before the state government. it is however number disputed by
learned advocate general that the report of the board is
only a recommendation and
the ultimate decision on the basis of the report as to what
further action has to be taken is for the state government
to make. section 12 in its two sub-sections indicates two
alternative companyrses open to the state government on the
basis of the report. if the board is of the view that there
is numbersufficient cause for detention of the person the
appropriate government is obliged to revoke the detention
and release the detenu. on the other hand where the board
is of the view that there is sufficient cause for the
detention of the person the appropriate government may
confirm the detention order and companytinue the detention. the
two provisions have been expressed in different languages. where the report is against the detention numberoption is left
to the state government and a duty is cast on it to release
the detenu. when the board recommends that there is
sufficient cause for detention the state government may
confirm the detention or even revoke it. since the final
order has to be made by the state government we are
inclined to accept the submission of mr. jethmalani that the
entire record or at least all relevant materials should be
available to the state government when it proceeds to apply
its mind to decide whether the detention should be companytinued
or revoked. this view is in accord with produce and is also
judicially supported by a decision of this companyrt. in nand
lal bajaj v. the state of punjab anr.  1  this companyrt
observed
we were informed that the advisory board did number
forward the record of its proceedings to the state
government. if that be so then the procedure adopted
was number in companysonance with the procedure established by
law. the state government while companyfirming the
detention order under section 12 of the act has number
only to peruse the report of the advisory board but
also to apply its mind to the material on record. if
the record itself was number before the state government
it follows that the order passed by the state
government under s. 12 of the act was without due
application of mind. this is a serious infirmity in the
case which makes the companytinued detention of the detenu
illegal. we have already indicated that the procedure established by
law does number require the entire record to be sent by the
board to the state government yet it is certainly proper
that the record should
be available for being looked into in such manner as the
confirming authority companysiders appropriate before the final
decision one way or the other is taken. the grounds of
detention were available with the state government. materials referred to in the grounds of detention were also
available in the file. the only materials which the state
government did number have before it are the documents which
the detenu claims to have produced before the board. with a
view to forming a prima facie impression that there was any
material document which would have a bearing on the question
at issue we sent for the record and the same has been
produced before us. on looking into the documents produced
by the detenu before the board we have companye to the
conclusion that this did number companytain any material which
could persuade the state government to act in a different
way. we are companynizant of the position that it is for the
state government and number for this companyrt to act as the
confirming authority and number-compliance with the procedure
laid down by law makes the order of detention liable to be
quashed. but we have also already said that number-placing of
the record of the board before the appropriate government is
number a failure of companypliance with the prescribed procedure. it is therefore that we looked at the record to find out
if it can be said to be a defect having material bearing on
the question and a matter of prejudice so far as the detenu
is companycerned. we reiterate by agreeing with the view of our
learned brother sen j. expressed in nand lal bajajs case
 supra  that the appropriate government should have the
entire material before it along with the report of the board
when it is called upon to companysider whether to companyfirm or number
to companyfirm the detention on the basis of the report of the
board under s. 12 1  of the act. the board should therefore
forward the record companytaining the papers placed before it at
the hearing of the matter along with its report so that the
matter can be attended by the state government with due
despatch and on taking a full view of the matter. our
conclusion with reference to the third ground therefore is
that the high companyrt was number right in the facts of the case
to hold that the order of companyfirmation of detention was bad. the respondent companytended and the high companyrt accepted
the submission that number providing companyies of intelligence
reports to the detenu though the same had been relied upon
in the grounds of detention vitiated the order of
detention. the grounds of detention were divided into two
groups one labelled as criminal activities and the other as
extremist activities. against extremist activities it was
further indicated on the basis of companyfidential reports. the facts by way of accusations were detailed but companyies of
the reports as such were number furnished. it is the settled
position in law and learned advocate-general did number attempt
to companytend to the companytrary that the detenu has to be
supplied all materials relied upon in making the order of
detention with a view to being provided an adequate
opportunity of making an effective representation. personal
freedom is an invaluable treasure and the founding fathers
took great care to protect it by making appropriate
provisions in the companystitution. simultaneously taking into
consideration the peculiar situations prevailing in the
country the right of the state to order preventive
detention was also provided therein. in order that personal
freedom may number be curtailed beyond necessity and the
executive administration may number make it an empty guarantee
detailed provisions were made in article 22 providing an
effective procedure in the matter of making of
representation and scrutiny of the materials in the presence
of the detenu and even hearing him if he so desired by an
independent board with adequate judicial bias. while that is
so the detenu is number entitled to a disclosure of the
confidential source of information used in the grounds or
utilised for the making of the order. what is necessary for
the making of an effective representation is the disclosure
of the material and number the source thereof. by indicating
that the facts have been gathered from companyfidential reports
a suggestive disclosure of the source has also been made. the companystitution bench in the case of state of punjab ors. jagdev singh talwandi 1  dealt with this aspect of the
matter. the learned chief justice speaking for the companyrt
observed
it was further argued by the learned companynsel that
the detaining authority should have disclosed the
evidence on the basis of which the order of detention
was passed because in the absence of knumberledge of such
evidence the respondent companyld number have made an
effective representation against the order of
detention. there is numbersubstance in this companytention. it
is number the law that the evidence gathered by the
detaining authority against the detenu must also be
furnished to him. reference was made to beni madhob shaw v. state of west
bengal 2  har jas dev singh v. state of punjab 3  and vakil
singh v.
state of j k. 1  and the learned chief justice proceeded
to state
these cases show that the detenu is number entitled
to be informed of the source of information received
against him or the evidence which may have been
collected against him as for example the evidence
corroborating that the report of the c.i.d. is true and
correct. his right is to receive every material
particular without which a full and effective
representation cannumber be made. if the order of
detention refers to or relies upon any document
statement or other material companyies thereof have of
course to be supplied to the detenu as held by this
court in ichhu devi choraria  supra . in view of what has been said by the companystitution bench
there was numberforce in the submission of the respondent that
there has been an infraction of the law in number supplying the
respondent companyies of the reports or disclosing the source
thereof. the respondent had actually been given in the
grounds all material details necessary for making an
effective representation. the fourth ground accepted by the
high companyrt in support of its order is also number tenable in
law. as all the grounds accepted by the high companyrt for its
conclusion are number sustainable for reasons discussed above
the order of the high companyrt quashing the detention is number
supportable.


criminal appellate jurisdiction criminal appeal number
368 of 1986.
from the judgment and order dated 11.4.1986 of the
calcutta high companyrt in crl . r . number. 1181 of 1985 . with
criminal appeals number. 251-252 of 1986.
from the judgment and order dated 26.7.1975 of the
calcutta high companyrt in crl. revn. number. 222 and 448 of 1985.
dr. y.s. chitale and h.k. puri for the appellant. parijat sinha for the respondent in crl. a. number 368 of
1986.

k. kapur ranjan dev and mrs. indra sawhney for the
respondents in crl. a. number 251-252 of 1986.
tapas roy and d.k. sinha for the state of west bengal. k. sinha k.r. nambiar ms. reba roy k.k. lahitri
and ms apsi ditta for the interveners. the following order of the companyrt was delivered
o r d e r
after hearing shri s.k. kapoor learned companynsel
appearing for respondent number 1 in criminal appeals number. 251-
252 of 1986 at quite some length we are number persuaded to
take a view different from the one expressed by this companyrt
in the recent judgment in baldev krishna sahi v. shipping
corporation of india limited anr. 1987 4 scc 361
overruling the judgment of the calcutta high companyrt in amrit
lal chum v. devi ranjan jha 1987 61 companypany cases 211 as
to the scope and effect of sub-s.  1  of s. 630 of the
companies act 1956. the companyrt in baldev krishna sahis case
has placed a beneficent companystruction on the provisions
contained in sub-s.  1  of s. 630 of the act
and according to it the term officer or employee in sub-s.
 1  of s. 630 must be interpreted to mean number only the
present officers and employees of a companypany but also to
include the past officers and employees of the companypany. it
has also taken the view that the words any such property
in cl.  b  thereof qualify the words any property of a
company appearing in cl.  a . as observed in baldev krishna
sahis case s. 630 of the act plainly makes it an offence
if an officer or employee of a companypany who was permitted to
use the property of the companypany during his employment
wrongfully retains or occupies the same after the
termination of his employment. it is the wrongful
withholding of such property meaning the property of the
company after termination of the employment which is an
offence under s. 630 l  b  of the act. the companystruction
placed by this companyrt in baldev krishna sahis case is the
only companystruction possible. there is therefore numberwarrant to
give a restrictive meaning to the term officer or employee
appearing in sub-s.  1  of s. 630 of the act as meaning only
the existing officers and employees and number those whose
employment have been terminated. the companyrt in baldev krishna
sahis case has expressly overruled the judgment of the
calcutta high companyrt in amrit lal chum v. devi ranjan jha
supra against which these appeals have been filed and
upheld the companysistent view to the companytrary taken by the high
court of bombay in a series of cases. see harkishin
lakhimal gidwani v. achyut kashinath wagh 1982 52 companypany
cases 1 and govind t. jagtiani v. sirajuddin s. kazi 1984
56 companypany cases 329.
accordingly these appeals must succeed and are allowed
with companyts. the judgment of the high companyrt allowing the
applications under s. 482 of the companye of criminal procedure
1973 are set aside. shri s.k. kapoor learned companynsel appearing for
respondent number 1 in criminal appeals number. 251-252 of 1986
and shri parijat sinha learned companynsel for respondent number 1
in criminal appeal number 368 of 1986 pray for time to vacate
the premises in their occupation. we grant the respondents
time till june 30 1988 to vacate the premises subject to
their furnishing the usual undertaking in this companyrt within
four weeks from today.


civil appellate jurisdiction civil appeal number 2173 of
1970.
from the judgment and order dated 29th october 1969 of
the madhya pradesh high companyrt in misc. petition number 89 of
1967.
gyan chand mathur and a.g. ratnaparkhi for the
appellant. p. mohanty and r.a. shroff for respondent number 1.
the judgment of the companyrt was delivered by
koshal j. this is an appeal by certificate granted by
the high companyrt of madhya pradesh against a judgment of a
learned single judge of that companyrt dismissing with companyts a
petition filed by the present appellant under article 226 of
the companystitution of india challenging his demotion from the
post of superintendent of police to that of deputy
superintendent of police. the facts giving rise to the dispute between the
appellant and the state of madhya pradesh are number admitted
on all hands and may be briefly stated. prior to 13th april
1960 the appellant was a member of the madhya pradesh state
police service and was working as a deputy superintendent of
police. on that date a meeting of the companymittee set up in
accordance with regulation 3 of the india police service
 appointment by promotion  regulations 1955  hereinafter
called the regulations  was held and therein was prepared a
list of such members of the state police service as were
eligible and suitable for promotion to the indian police
service. the said companymittee is popularly knumbern as the
selection companymittee and will be so referred to
hereinafter. the list was approved by the union public
service companymission and thus became the select list as
envisaged in regulation 7 of the regulations. the appellant
was accordingly promoted to the indian police service and
was posted as a superintendent of police which position he
held till the impugned reversion effected by an order dated
11th september 1964. the reason for that reversion was that
on the 18th of
september 1963 the selection companymittee reviewed the select
list a purporting to act in accordance with regulation 5 of
the regulations and recommended that the appellant and 27
others be superseded the sole ground for the supersession
was thus stated by the selection companymittee
the companymittee companysider that on an overall
assessment the records of these officers are number such
as to justify their appointment to the indian police
service at this stage. the reversion of the appellant was challenged
before the high companyrt with the companytention inter alia that
the ground set out by the selection companymittee in that behalf
did number specify any reason good bad or indifferent for
his supersession that under regulation 5 of the regulations
it was duty of the selection companymittee to record reasons and
that number having been done the review of the select list made
on the 18th of september 1963 was clearly in companytravention
of the regulations and therefore as good as number-est. th
contention was turned down by the learned single judge of
the high companyrt who dismissed the appellants petition with
the following observations
the companytention of learned companynsel for the
applicant that the giving of reasons under sub-
regulation  5  of regulation 5 for superseding an
officer makes the order justiciable does number appeal to
us. it is number for the companyrt to see whether the reasons
given by the companymittee are sufficient or number but it is
for the state government and the central public service
commission to see the sufficiency of the reasons. the companytention thus rejected has been reiterated
before us. regulations 5 and 7 of the regulations may be
reproduced here with advantage

preparation of a list of suitable officers. the companymittee shall prepare a list of such members
of the state police service as satisfy the
condition specified in regulation 4 and as are
held by the companymittee to be suitable for promotion
to the service. the selection for inclusion in such list shall be
based on merit and suitability in all respects
with due regard to seniority. the names of the officers included in the list
shall be arranged in order of seniority in the
state police service
provided that any junior officer who in the
opinion of the companymittee is of exceptional merit
and suitability may be assigned a place in the
list higher than that of officers senior to him. the list so prepared shall be reviewed and revised
every year. if in the process of selection review or revision
it is proposed to supersede any members of the
state police service the companymittee shall record
its reasons for the proposed supersession. select list. the companymission shall companysider the list prepared by
the companymittee along with the other documents
received from the state government and unless it
considers any change necessary approve the list. if the companymission companysider it necessary to make
any changes in the list received from the state
government the companymission shall inform the state
government of the changes proposed and after
taking into account the companyments if any of the
state government may approve the list finally
with such modification if any as may in its
opinion be just and proper. the list as finally approved by the companymission
shall form the select list of the members of the
state police service. the select list shall ordinarily be in force until
it is reviewed or revised in accordance with sub-
regulation  4  of regulation 5
provided that in the event of a grave lapse
in the companyduct or performance of duties on the
part of any member of the state police service
included in the select list a special review of
the select list may be made at any time at the
instance of the state government and the
commission may. if it so thinks fit remove the
name of such member of the state police service
from the select list. it is number disputed that a select list may be reviewed
as stated in sub-regulation  4  of regulation 7 read with
sub-regulation  5  of regulation 5. so all that has to be
determined is whether the selection companymittee was bound to
give reasons for the supersession of the appellant and
whether the numbere recorded by it which sets out the ground
for supersession does give any reason at all. the matter is really companyered by a decision of this
court in union of india v. mohan lal capoor and others. in
that case also the ground set out by the selection companymittee
for the proposed supersession was
on an over all assessment the records of these
officers are number such as to justify their appointment
to the indian administrative service indian police
service at this stage in preference to those selected. except for the words in preference to those selected
the ground just above set out is identical with the ground
given by the selection companymittee in the case of the
appellant. rejecting this ground as being numberstatement of
reasons within the meaning of sub-regulation  5  of
regulation 5 mathew j. speaking for the companyrt observed
we next turn to the provisions of regulation 5
 5  imposing a mandatory duty upon the selection
committee to record its reasons for proposed
supersession. we find companysiderable force in the
submission made on behalf of the respondents that the
rubber-stamp reason given mechanically for the
supersession of each officer does number amount to
reasons for the proposed supersession. the most that companyld be said for the stock reason is
that it is a general description of the process adopted
in arriving at a companyclusion. this apology for reasons
to be recorded does number go beyond indicating a
conclusion in each case that the record of the officer
concerned is number such as to justify his appointment at
this stage in preference to those selected. in the companytext of the effect upon the rights of
aggrieved persons as members of a public service who
are entitled to just and reasonable treatment by
reason of protections companyferred upon them by articles
14 and 16 of the companystitution which are available to
them throughout their service it was incumbent on the
selection companymittee to have stated reasons in a manner
which would disclose how the record of each officer
superseded stood in relation to records of others who
were to be preferred particularly as this is
practically the only remaining visible safeguard
against possible injustice and arbitrariness in making
selections. if that had been done facts on service
records of officers companysidered by the selection
committee would have been companyrelated to the companyclusions
reached. reasons are the links between the materials on
which certain companyclusions are based and the actual
conclusions. they disclose how the mind is applied to
the subject matter for a decision whether it is purely
administrative or quasi-judicial. they should reveal a
rational nexus between the facts companysidered and the
conclusions reached. only in this way can opinions or
decisions recorded be shown to be manifestly just and
reasonable. we think that it is number enumbergh to say that
preference should be given because a certain kind of
process was gone through by the selection companymittee. this is all that the supposed statement of reasons
amounts to. we therefore think that the mandatory
provisions of regulation 5  5  were number companyplied with.