(J.M. Shelat, V. Bhargava, C.A. Vaidialingam and I.D. Dua, JJ.)
Khairul Haque _____________________________________ Petitioner;
v.
State of West Bengal ______________________________ Respondent.
Writ Petition No. 246 of 1969, decided on September 10, 1969
The Judgment of the Court was delivered by
J.M. Shelat, J.:—
1. This writ petition challenges the validity of the detention of the petitioner made under an order dated 5-6-1969 of the District Magistrate, 24 Parganas, West Bengal, under Section 3(2) of the Preventive Detention Act, 1950. In pursuance of the said order, the petitioner was arrested and detained in Dum Dum Central Jail on 6-6-1969. The District Magistrate informed the State Government of his said order on 9-6-1969.
2. On 14-6-1969, the Governor gave his approval and reported the case to the Central Government. On or about 23-6-1969, the Government received the representation of the petitioner. On 30-6-1969, the Governor referred the case of the petitioner to the Advisory Board.
3. The Advisory Board made its report on 11-8-1969 to the effect that there was sufficient cause for the detention of the petitioner. Thereafter, on 12-8-1969, the Governor confirmed the order of detention. On 29-8-1969, the Governor rejected the petitioner’s said representation.
4. On these facts, it is quite clear that the State Government considered and disposed of the representation of the petitioner after a lapse of more than two months. The question raised in this petition is whether in view of such an inordinate delay, for which no explanation is forthcoming, the continuance of the petitioner in detention can be said to be in conformity with the provisions of Article 22(5) of the Constitution.
5. Article 22(5) provides that:
“22.(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”
6. In Sk. Abdul Karim v. State of W.B.1 this Court interpreted the language of Article 22(5) and observed that though clause (5) did not expressly state to whom the representation is to be made and how the detaining authority is to deal with such representation, it was necessarily implicit in the language of that clause that “the State Government to whom the representation is made should properly consider the representation as expeditiously as possible”.
7. In Durga Show, In re2 these observations in Sk. Abdul Karim1 were followed and it was held that inordinate delay between the receipt of the representation by the Government and its consideration by it, which delay remained unexplained, rendered the continuance of the detention of the detenu illegal and in that view allowed the petitions and set the petitioners at liberty.
8. There were three petitioners in these petitions before the Court Durga Show2. The representation of one of them was received on 29-5-1969 and considered and rejected on 11-8-1969, that of the second was received on 18-6-1969 and was rejected on 16-8-1969 and that of the third was received on 28-6-1969 and rejected on 14-7-1969. There was thus delay in all the three cases between the date of the receipt and the date of disposal of the representation and that delay not having been satisfactorily explained, the Court held that the continuance of the petitioners in detention was illegal as being in violation of Article 22(5).
9. In the instant case also, there is the delay of a little more than two months and no explanation for it has been given by the State Government in the counter-affidavit filed on its behalf. Indeed, the only explanation suggested by the counsel for the Government was that the Government must have waited for the report of the Advisory Board and on receipt of such a report it rejected the petitioner’s representation and continued his detention.
10. In Pankaj Kumar Chakrabarty v. State of W.B.3 this Court again construed clause 5 of Article 22 and held that that clause created a dual obligation on the appropriate Government and a dual right in favour of a detenu, namely,
(1) to have his representation, irrespective of the length of detention, considered by the appropriate Government, and
(2) to have once again that representation in the light of the circumstances of the case considered by the Advisory Board before it gave its opinion.
11. If in the light of that representation the Board were to find that there was no sufficient cause for detention, the Government has to revoke the order of detention and set at liberty the detenu. Thus, whereas the Government considers the representation to ascertain whether the order is in conformity with its power under the relevant law, the Board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention. The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider such representation is distinct from the Government’s obligation to constitute the Board, to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain its opinion. The two obligations of the Government, to refer the case of the detenu to the Advisory Board and to obtain its report on the one hand and to give an earliest opportunity to him to make a representation and consider the representation on the other, are two distinct obligations independent of each other. It is implicit in the language of Article 22 that the appropriate Government, while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. There was, therefore, no reason for the Government to wait for considering the petitioner’s representation until it had received the report of the Advisory Board.
12. As laid down in Sk. Abdul Karim v. State of W.B.1, the obligation of the appropriate Government under Article 22(5) is to consider the representation made by the detenu as expeditiously as possible. The consideration by the Government of such representation has to be, as aforesaid, independent of any opinion which may be expressed by the Advisory Board.
13. The fact that Article 22(5) enjoins upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such representation must, when made, be considered and disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning.
14. In the present case, not only the delay in the consideration of the representation has remained unaccounted for but the fact was that it was considered and disposed of after the Government had confirmed the order of the District Magistrate on the basis of the report of the Advisory Board that there was sufficient cause for the detention. In these circumstances, it is doubtful whether the Government’s consideration of the representation was independent as is implicit in the language of Article 22(5).
15. If the confirmation by the Government of the order of the District Magistrate is made first and the Government rejects the representation thereafter, such rejection is not on an independent consideration but as the result of its decision to confirm the order of detention. The process of decision making has to be the other way about, that is to say, Government must first consider the representation and only later decide whether it should confirm the order of the District Magistrate on the basis of the report of the Advisory Board.
16. In these circumstances the disposal of the representation cannot be held to be in consonance with the provisions of Article 22(5) and the delay in doing so having remained unexplained, it must be held that the continuance of the petitioner’s detention was illegal.
17. In the result, the petition is allowed and it is directed that the petitioner must be set at liberty forthwith.
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1 (1969) 1 SCC 433 : 1969 Cri LJ 1446
2 (1970) 3 SCC 696
3 (1969) 3 SCC 400
