1. This is a petition filed for the issue of a writ of habeas corpus directing the respondents to release the detenus. Various grounds have been urged in this petition. The detenus are (1) C. Krishna Reddy and (2) P. Chennaiah. In support of the petition C. Bhanumathi, the wife of the 1st detenu C. Krishna Reddy filed an affidavit wherein it is stated that the detenus belonged to the lower cadre of the Andhra Pradesh State Police Force. The first detenu C. Krishna Reddy is a Sub-Inspector while the second detenu P. Chennaiah is a Head Constable. The lower cadre of the police department was very much exploited and the service conditions virtually deprived them of all human rights. The subordinate officers were asked to work round the clock without any allowance for their food and tiffin being paid. They had to work over-time as slaves under their superior gazetted officers. They were also asked to do all menial and odd jobs not connected with their official work. Their representation was snubbed under the colour of discipline. It was further stated that since individual representations to relieve them of their grievances were not heeded, the Constables. Head-constables and Sub-Inspectors of Police formed into Andhra Pradesh Police Non-Gazetted Officer, Association. The 1st detenu C. Krishna Reddy was elected as President while the 2nd detenu P. Chenniah was elected as its Secretary. They sought for recognition of their Association from the Government and also for redressal of their grievances. As a result of this representation, the Government in their G.O.Rt. 2576/GA (General-A Dept.) dt. 24-6-1981 constituted a Committee to resolve their problems. The second respondent promised to recognise the said Association and ventilate their grievances. It is unnecessary for us to refer to the other facts stated in the affidavit and it will suffice to note that the Association made representations to the Chief Minister and other higher authorities. Consequently, the Commissioner of Police, Hyderabad, the 1st respondent, got up a false case against the 2nd detenu (Crime No. 170/81 dt. 24-8-1981 of the Police Station, Meer Chowk) alleging that he and some others demonstrated before his office. The said case was registered under Section 3 of the Indian Police (Incitement of Disaffection) Act of 1922. The 1st detenu as the President of the Association brought to the notice of the Commissioner of Police on 5-10-81 that the problem required immediate solution, that all oppressive actions taken against the members should be withdrawn immediately and that the Association, which represents the substantial majority in the Department (N.G.Os) has to be recognised.

2. It is further stated that the detenus were contacting the members of the Association so that they might consider the matter. The 1st respondent (Commissioner of Police) swooped down upon the detenus with the aid of Central Reserve Police and arrested the detenus under Section 151 Cr.P.C. and Section 4 of the Police Force (Restriction of Rights) Act of 1966 and Section 3 of the Police (Incitement to Disaffection) Act of 1922. The detenus along with other office bearers were arrested on 8-10-81 and taken away and detained. According to the deponent, the detenus have been detained in the Rajahmundry Central Jail, and their detention is illegal, null and void.

3. The detenus were arrested and detained under the National Security Act, 1980. The arrest and detention of the detenus were not made by the 1st respondent during the subsistence of any period specified in S. 3(3) of the National Security Act. It was categorically cally stated that the 1st respondent did not serve on the detenus the grounds on which the order of detention has been made within 5 days from the date of detention; nor he recorded any reasons for exception. Hence the proceedings are null and void contrary to S. 8 of the Act. The 2nd respondent also failed to report the fact to the Central Government within 7 days from the date of the order of detention or approval thereof. The detention is beyond the scope of Section 3 of the National Security Act and has no nexus to the security of the State or for maintenance of public order and maintenance of essential supplies.

4. In the counter affidavit filed by the 1st respondent on behalf of all the respondents, the facts stated in the affidavit filed in support of the petition are denied. In paragraph 2 of the counter affidavit it is stated that pursuant to the order of detention dated 10-10-1981, the detenus C. Krishna Reddy and P. Chennaiah, were arrested on 10-10-1981. After serving the order of detention, the detenus were admitted into the Central Jail, Hyderabad and later transferred to Rajahmundry Jail. The grounds of detention in English and two first information reports in Cr. Nos. 170/81 of P.S. Mirchowk and Cr. No. 88/81 of CCS and a copy of notice dated 5-10-81, which were given by the non-recognised Andhra Pradesh Police N.G.Os. Association to the Government, were served on the detenus on 15-10-1981. It is also stated that a case has been registered as Cr. No. 170/81 under Sections 147, 342, 186, I.P.C. read with S. 3 of the Police (Incitement to Disaffection) Act, 1922 at Mirchowk Police Station and that the same is pending investigation. A case in Cr. No. 88/81 was registered at Central Crime Station under Sections 151 Cr.P.C., 153, 153-B I.P.C. read with S. 4 of the Police Force (Restriction of Rights) Act, 1966 and S. 3 of the Police (Incitement to Disaffection) Act, 1922 against the detenus.

5. Mr. P. M. Gopalarao, learned counsel for the petitioner, raised several points in this writ petition.

6. The first point urged by him is that the grounds of detention were not served on the detenus within five days from the date of their arrest and therefore their detention is bad and invalid and that consequently the detenus are liable to be released. He also urged that the Police (Incitement to Disaffection) Act 1922 is not applicable to the city of Hyderabad. He further urged that the question involved in this petition is concerned with law and order but not with public order. The learned counsel also raised some other grounds which we do not think it necessary to deal with them as we find sufficient force in the first contention of the learned counsel.

7. According to the learned counsel, the detenus were arrested at 2 a.m. on 9-10-1981 and when they were in Jail, the order of detention was served on them on 10-10-1981. Therefore, it must be deemed that they were detained from 9-10-1981. But according to the 1st respondent the order of detention was served on the detenus on 10-10-1981 at about 9.30. a.m. Therefore, time has to be calculated from 10-10-1981. In view of these rival contentions, we have to find out whether the grounds of detention were served before the expiry of five days, even if the order of detention was served on 10-10-1981.

8. The learned counsel further submitted that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, Communicate to him the grounds on which the order has been made. According to the learned counsel, the date on which the detenus were arrested has also to be reckoned and before the expiry of 5 days the grounds of detention have to be served, otherwise the detention becomes invalid.

9. In the instant case, even assuming that the date of detention is 10-10-1981 and if five days have to be calculated, 10th also has to be taken into consideration for that purpose and if 10th is taken into consideration by the midnight of 14th October, 5 days' time expired. Even according to the counter affidavit, the grounds, of detention were served on the detenus on 15th October 1981. Therefore, the grounds were served after the expiry of 5 days only.

10. In support of the above contention, the learned counsel placed reliance upon a decision of this Court in W.P. No. 615 of 1973 dated 9th February, 1973; (reported in 1974 Cri LJ 158). In the above case also the question was whether the date of arrest or detention shall be included or excluded in computing the period of 5 days under Section 8(1) of the Maintenance of Internal Security Act. Speaking for the Bench, Sambasiva Rao, J. (as he then was) held :

"In our view, the answer to this question is manifest from the language of Section 8(1) itself. What it lays down is that the grounds shall be communicated ordinarily not later than 5 days from the date of detention. The words 'from the date the detention' are very important. The intention of the legislature that the date of detention should also be taken into account is indicated by the use of these words. The words 'ordinarily not later than five days' are also significant and meaningful, since they demonstrate the anxiety of the Parliament to insist on an early supply of the grounds of detention to the detenu. The emphasis is that the communication of the grounds should not be later than 5 days. Thus, the language of sub-section (1) of Section 8 is itself explicit and makes it clear that the date of detention also should be taken into account while reckoning the period of 5 days."

It was further observed :

"It must also be noted that service of the grounds even on the date of detention is permissible and is even desirable and that is shown by the words 'as soon as may be' which are extracted from Art. 22. All this is only to prevent undue delay, if any, in giving an opportunity to the detenu to put forward his representation against his detention to the appropriate Government. Once it is recognised that preventive detention without trial is an exception power given to the concerned authority, it should logically follow that the grounds for such action should be furnished to the detained person at the earliest possible moment. That is why the Act has taken care to prescribe a period of not later than 5 days, in order to give a concrete shape to the words 'as soon as may be' used in Art. 22 of the constitution as well as in Section 8 of the Act. The date of detention means the preceding midnight to the succeeding midnight of the time of detention."

The language used in Section 8(1) of the Maintenance of Internal Security Act is similar to the language used in Section 8(1) of the National Security Act, 1980. Therefore, similar construction has to be placed on the language used in Section 8(1) of the National Security Act, 1980. We are in entire agreement with the view taken by a Division Bench in the above case and following the said decision were not served on the detenus within five days from the date of their detention and therefore the detention is bad and is liable to be struck down on this ground itself. In this connection it can also be noted that no special reasons were given for not serving the grounds of detention within five days on the detenus.

11. In the result, the orders of detention of both the detenus are set aside and the detenus are directed to be released forthwith.

12. Since both the detenus are produced before the Court, we set them at liberty in the Court itself.

13. The writ petition is allowed accordingly. Advocates fees Rs. 250/-.

14. Petition allowed.