Full Judgment Text
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PETITIONER:
KHAIDEM IBOCHA SINGH ETC.
Vs.
RESPONDENT:
STATE OF MANIPUR
DATE OF JUDGMENT08/10/1971
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
REDDY, P. JAGANMOHAN
MATHEW, KUTTYIL KURIEN
CITATION:
1972 AIR 438 1972 SCR (1)1022
1972 SCC (2) 576
CITATOR INFO :
R 1972 SC1198 (9)
R 1972 SC1623 (7)
R 1972 SC1753 (9)
D 1972 SC1858 (5)
R 1972 SC1915 (7)
R 1972 SC2215 (4)
RF 1972 SC2420 (5)
R 1972 SC2623 (6)
D 1973 SC1264 (6)
R 1974 SC 183 (34)
ACT:
Preventive detention under Orissa Preventive Detention Act,
1970 Delay in considering representations to State
Government-Effect on detention orders-Constitution of
India,, 1950, Art. 22(5)-If violated.
HEADNOTE:
The petitioners were detained by orders of detention under
the Orissa Preventive Detention Act, 1970, and the grounds
of detention were furnished to them on the same day. They
sent a representation to the State Government, and the State
Government rejected it 17 days later. The petitioners
challenged the validity of the order of detention under Art.
32 on the allegation that the delay constituted a violation
of their right under Art. 22(5).
Allowing the petitions.
HELD : There has been an unexplained delay of 17 days in
disposing of the representation of the detenus, and
consequently, there has been a violation of the
constitutional right guaranteed under Art. 22(5) to the
petitioners. [1030 A-B]
The question whether there is delay in disposing of the
representation made by a detenu and if so whether that
delay has been properly explained by the State will have to
be gathered from all the facts and circumstances of a
particular case. In the present case, the respondent did
not state what steps were, taken from the date of receiving
the representation to the date of rejecting it, excepting
making a very bald statement that inquiries were sought from
jail authorities through the sub-deputy collector, and that
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the jail authorities sent a letter two days before rejecting
the representation. There is no averment in the counter
affidavit that the inquiries were made (*ally, and in the,
absence of such an averment it is reasonable to presume that
being an official matter there would be some correspondence.
But neither the details of any enquiries made, nor the
correspondence, were referred to or disclosed. [1029 E-H]
Durga Show etc. v. State of West Bengal, W.P. Nos. 198,
205/69 etc. dated 2-9-1969, Khairul Haque v. State of West
Bengal, W.P. No. 246/ 69 dated 10-9-1969, Prabhakar Shankar
Dhuri v. Sh. S. G. Prashan & Ors.W.P. No. 514/70 dated 18-
12-1970 and Jayanarayan Sukul v. State ,of West, Bengal,
[1970] 3 S.C.R. 225, followed.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petitions Nos. 289 to 295 of
1971.’
Petitions under Art. 32 of the Constitution of India for
writs in the nature of habeas corpus.
S.C. Manchanda, 0. P. Verma and Petitioners were also
present, for the petitioners (in all the Petitions).
R. N. Sachthey, for the respondent (in all the Petitions).
1023
The Judgment of the Court was delivered by
Vaidialingam, J. The seven petitioners in these writ
petitions under Art. 32 of the Constitution, challenge the
validity of the orders of detention dated January 31, 1971
passed against each of them by the District Magistrate,
Manipur (Central) under subs. (2) of s. 3 read with sub-s.
(1) of the Orissa Preventive Detention Act, 1970
(hereinafter referred to as the Act) as extended to Manipur.
They seek relief for issue of a writ of Habeas Corpus and
for directions being issued to the respondent-the State of
Manipur to release them from custody.
The orders of detention state that they have been passed
with a view to preventing the petitioners from acting in any
manner prejudicial to the maintenance of public order. The
petitioners, in consequence of these orders, were taken into
custody and detained. Along with the petitioners another
person, Prof. Nandlal Sharma, was also detained. The
grounds of detention, as required by s. 7(1) of the Act were
furnished to the detenus on the same day. The order of
detention passed against Prof. Nandlal Sharma was later on
revoked by the Lt. Governor and he was released.
The petitioners, in Writ Petitions Nos. 289, 290, 291 and
295 of 1971 are either Masters of Arts (In Political
Science) or Master of Arts, Education and are all Professors
of Colleges of Moirang or Imphal. The petitioner in Writ
Petition No. 294 of 1971 holds M.Sc., B. Ed., degrees and is
an Assistant Head Master in a High School in Imphal. The
educational qualifications of the petitioner in Writ
petitions Nos. 292 and 293 are not clear from the records
but they claim to be social workers.
The District Magistrate made the necessary report to the
Administrator under sub-section (3) of s. 3. On February 10,
1971, the Administrator under s. 3(3) approved the orders of
detention passed by the District Magistrate on January 31,
1971 and the orders of approval were also communicated to
the detenus.
All the petitioners made a joint representation on March 1,
1971, which was received by the Government on March 3, 1971.
In the representation, the petitioners had raised various
grounds of attack against the order of detention. They had
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also very elaborately dealt with them and very strenuously
refuted the various allegations contained in the grounds
served on them, on the basis of which the orders of
detention had been passed. The Administrator considered the
representation received from the detenus and rejected the
same on March 20, 1971. The petitioners were informed about
the rejection of the representation by communication dated
March 22, 1971. The cases of the petitioners were referred
to the Advisory Board on February 16, 1971 as required under
1024
s.9 of the Act. The Advisory Board considered the matter
and sent its report on April 18, 1971 expressing its opinion
that the detention of the petitioners was justified. We may
mention at this stage that the various dates given above are
all taken from the counter-affidavit filed by the Secretary
to the Government of Manipur, on behalf of the respondent.
We are mentioning this aspect because there is a slight
discrepency in the dates given by the petitioners. That is
why we have chosen to adopt the dates given on behalf of the
State itself.
On behalf of the petitioners Mr. S. C. Manchanda, has raised
various grounds of attack against the orders of detention
passed by the State Government. The counsel very
strenuously urged that the matters mentioned in the grounds
furnished to the petitioners are absolutely false.
According to him the petitioners are all educated persons
and that they have been only writing articles pleading for
improving the lot of the people of Manipur and for giving
due recognition to the hopes and aspirations of the people
of Manipur. The counsel has also urged that the grounds of
detention are all vague and it was not possible for the
detenus to make any effective representation against such
vague allegations. The counsel further urged that in any
event, there has been an inordinate delay, of 17 days in the
Administrator disposing of the representation made by the
petitioners and as such there has been a violation of Art.
22 (5 ) of the Constitution. Therefore, the detention
orders will have to be struck down even on this short
ground.,
On the other hand, according to the affidavit filed on
behalf of the State, all the petitioners are active members
of the Pan Manipuri Youth League which is "an Over-ground
Organisation of the Under-ground insurgents in Manipur." The
petitioners have been publishing various matters in books
and pamphlets with a view to create an atmosphere of
distrust, hatred, disaffection and disloyalty in the minds
of the people of Manipur. It is further urged that the
petitioners, along with others were having secret meetings
and using their influence as Professors and Teachers to
incite the students to indulge in violent activities and
take up arms against tile Government. The respondent also
urged that full particulars regarding the date, time and
place, where the meetings were held or violent activities
took place have all been very clearly given in the grounds
of detention. As will be seen from the elaborate
representation made by them, the petitioners can have no
grievance that the grounds were vague. The representation
deals with every one of the matters mentioned in the
grounds. Even otherwise, if there was any vagueness in all
or any of the grounds. it was open to the petitioners to
have asked for further particulars, which they did not do.
All these circumstances, according to the respondent,
clearly show that the grievance that
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the grounds were vague is, absolutely unjustified. It is
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further pointed out by Mr. R. N. Sachthey, learned counsel
for the State, that there has been no delay on the part of
the Government in considering the representation made by the
petitioners and that there has been no violation of Art.
22(5) of the Constitution. In order to enable the
Administrator to properly dispose of the representation made
by the detenus, certain information had to be collected from
other officials and after the information was made
available, the representation was rejected. Even if there
has been any delay, it has been properly explained in the
counter-affidavit filed on behalf of the State. Mr.
Sachthey further contended that the respondent seeks to
justify the orders (A detention on the ground that they have
been made with a view to prevent the petitioners and others
from indulging in activities prejudicial to the maintenance
of public order.
We are of the opinion that the contention of Mr. Manchanda
that there has been a delay in the State in passing orders
on the: representation made by the petitioners and that the
said delay has not been properly explained by the State,
has, in the circumstances of this case, to be accepted.In
consequence, it follows that there has been a violation of
the constitutional right guaranteed under Art. 22(5) to the
petitioners. We are further of the view that the detention
orders will have, to be struck down on this short ground. In
the above view, we do not think it necessary to refer in
ail to the grounds of detention, which have no doubt been
very severely attacked on ’behalf of the petitioners.
However, we should say that prima facie we are satisfied
that the grounds are neither vague nor devoid of
particulars, nor can it be said that in this case there were
no materials on the basis of which the detaining authority
could not have passed the orders of detention under s. 3(2)
read with s. 3(1) of the Act for the purpose mentioned
therein on the basis of the grounds furnished to the
petitioners. However. as we are striking down the order
for the reason men tioned earlier, it is unnecessary to
pursue this aspect further.
In dealing with the. question whether there has been
any delay in disposing of the representation made by the
petitioners, and if so, whether that delay has been properly
explained by the State, it may be relevant to note only one
of the ground,, for detention. In ground No. 4, it has been
alleged that the petitioners and other leaders of the Pan
Manpuri Youth League held a secret meeting on December 13,
1970 between 7 P.M. and 9 P.M. wherein it was decided to
boycott the Republic Day functions to be held on January 26
1971 at Manipur and to disrupt the celebrations by violent
means. There is a further allegation that the petitioners
along with other leaders of the league held another secret
meeting on December 16, 1970 between 6 P.M. and 10.30 P.M.
wherein
1026
the decision taken at the meeting of December 13, 1970 was
confirmed and it was further decided to, incite the students
and the members of the public to boycott the Republic Day
celebrations. It is further alleged that it was also
decided at the said meeting to create an atmosphere of
panic, confusion and public disorder by doing various acts
referred to therein. As a consequence of these decisions
taken at the two meetings, it is alleged, that the various
violent acts, referred to in the said ground No. 4 were
committed.
We have already referred to the fact that along with the
petitioner, one Prof. Nandlal Sharma, was; also detained
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under the Act. The allegations in ground No. 4 related not
only to the petitioners but also, to the participation of
the said Prof. Nandlal Sharma in the secret meetings held
on the night of December 13, 1970 as well as of December 16,
1970. It is pertinent to note that in the counter-affidavit
filed on behalf of the State, it has been admitted that
Prof. Nandlal Sharma was arrested on December 4, 1970 in
case No. 427 (9) of 1970, Imphal Police Station under ss.
124A/153A of the Indian Penal Code and that he was released
on bail by the Court on December 18, 1970. Therefore, it is
clear even from the admission of the respondent that P. of.
Nandlal Sharma was in jail custody from December 4, 1970
till December 18, 1970 and as such he could not have
attended the secret meetings held on December 13, 1970 and
December 16, 1970, referred to in ground No. 4.
There is no controversy that the joint representation made
by the petitioners, was sent to the State Government on
March 1, 1971. The said representation was received by the
State Government on March 3, 1971, as admitted in the
counter affidavit. Even according to the State, the
representation was rejected only on March 20, 1971, though
communicated to the detenus on March 22, 1,971. According
to the petitioners the representation dated March 1, 1971
had reached the State on the same day, and that it was
rejected only on March 22, 1971 and that there has been a
delay of about 20 days. But, even according to the dates
given by the State, which we are accepting, there has been a
gap of at least 17 days in disposing of the representation.
In the writ petitions, the petitioners apart from
challenging the orders of detention on merits, have
specifically pleaded that there has been a long delay of
nearly 46 days in disposing of their representation. But
specifically they have pleaded that there has been a delay
of 17 days in the disposal by the State of their
representation and hence there has been a violation of Art.
22(5) of the constitution. The petitioners have further
pleaded that any time that may have been taken to collect
information about Prof. Nandlal Sharma cannot ,operate to
the prejudice of the petitioners. They have also pleaded
that even assuming that any information had to be collected
by the
1027
Government, the period of 17 days, as stated by the
Government, was not at all necessary and any information
could have been got easily from the Jailor, Manipur Central
Jail, Imphal, within a few minutes, as the Jail was located
within a very short distance from the Secretariat.
From what is stated above, it is clear that the State was
fully aware of the fact that the petitioners were also
attacking the orders of detention as illegal on the ground
of the above de-ay, which has resulted in violation of Art.
22(5) of the Constitution. Under those circumstances, there
was a duty on the part of the State to give proper reasons
explaining satisfactorily the circumstances why the order,
on the representation made by the petitioners, could not be
passed earlier. The State and its Legal Advisers must have
been well aware of the decisions rendered by this Court, to
which we will immediately refer, wherein it has been held
that an unexplained delay in disposing of the representation
made by a detenu makes the order of detention illegal as
being violative of the constitutional right guaranteed to
such a person under Art. 22(5) of the Constitution.
In paragraph 13 of the counter-affidavit filed by the
Secretary to the Government, it is admitted that the
representation dated March 1, 1971 made by the petitioners
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was reecived by the Government on March 3, 1971 and rejected
by the Administrator on March 20, 1971. The actual reasons
given by the Secretary as to why it took 17 days for
rejecting the representation can very well be set out as
stated in the counter-affidavit, which is as follows
"It took 17 days for the representation to be
considered and decided because enquiries were
sought from the Jail authorities through S. D.
C. Headquarters regarding certain facts
brought out as regards Nandlal Sharma. The
Jailor Manipur Central Jail by his letter
dated 18th March, 1971 wrote to District
Magistrate giving the requisite information.
It was thereupon forwarded to the Chief
Secretary who in his turn brought it to the
notice of the Administrator. The Lt.
Governor revoked the order of detention of
Nandlal Sharma who was thereupon released. A
true copy of the letter dated 18-3-1971
addressed by the Jailor to the District Magis-
trate, Manipur Central Jail is annexed to this
affidavit and marked as a Annexure II. The
detenus were informed accordingly on 22-3-
1971."
From the above it will be seen that the respondent seeks to
offer an explanation for passing the order only on March 20,
1971 though the representation was received on March 3.
1971. The reason given is that enquiries were made from the
Jail authorities through the Sub-Deputy Collector,
Headquarters about certain
1028
facts relating to Prof. Nandlal Sharma and in respect of
the same a letter of the Jailor, Manipur Central Jail dated
March 18, 1971 has been referred to and filed along with the
counter-affidavit. The letter of the Jailor dated March 18,
1971 referred to in the counter-affidavit is as follows:
"Government of Manipur
Manipur Central Jail, Imphal
No. 145/J/71/Orissa/P.D. Act/275
Imphal the 18th March, 1971
TO
The District Magistrate,
Manipur Central Jail, Imphal.
Subject : Query on the stay of Shri Nandlal
Sharma in Jail in December, 1970.
Sir,
I have the honour to state that
It is learnt that it was enquired by the
S.D.C. Head Quarter whether Shri Nandlal
Sharma was in jail on 13th and 6th of
December, 1970 in reply the assistant dealing
prisoners’ section reported negative on the
interpretation that the query was not meant if
Sharma was in jail on 13th and 16th December,
1970 and that the query was meant if Sharma
was admitted in this jail particularly on 13
or 16 December, 1970.
Having received this information I beg your
pardonance to correct as follows that Shri
Nandlal Sharma was in this jail for the period
from 4-12-70 in connection with F.I.R. No.
427(9) 70 of I.P S. u/s 124-A/153-A I.P.C.
under the orders of the A.D.M. and released on
18-12-70 on bail.
Submitted for favour of necessary correction.
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Yours faithfully,
Sd. Nadiya Chand Singh,
Jailor, Manipur Central Jail, Imphal."
The language of this letter is very unhappy. We do not know
whether the above letter was in English or whether it is a
translation. Anyhow we have given the full extract of the
letter as it is in the record. At this stage we may also
mention that there is no affidavit filed by the Jailor as to
when enquiries were made by the Sub-Deputy Collector and
whether the enquiry was in writing or oral. There is also
no affidavit by him as to how be learnt that enquiries were
made by the Sub-Deputy Collector regarding Prof. Nandlal
Sharma.
1029
From the extract quoted above from the counter-affidavit, it
is clear that the respondent does not state what all steps
were taken from March 3, 19 71 till March 20, 197 1,
excepting making a very bald statement that enquiries were
sought from jail authorities through Sub-Deputy Collector,
Headquarters and that the jail authority sent a letter on
March 18, 1971. There is no averment in the counter-
affidavit that the enquiries, referred to therein, were made
orally. In the absence of such averment, it is reasonable
to presume that being an official matter, the Sub-Deputy
Collector would have been desired by letter to collect
information from the jail authorities and the Sub-Deputy
Collector should have also addressed a communication to the
Jailor asking for the necessary information. No details as
to when or how the Sub-Deputy Collector was asked to make
the enquiries nor any details as to how the latter made
enquiries from the Jailor are given. There is no reference
to any correspondence that may have passed between the
Secretary and the Sub-Deputy Collector on the one hand and
the Sub-Deputy Collector, the District Magistrate and the
Jailor on the other. Even assuming there has been some
correspondence, particulars are not given.
Then turning to the letter of the Jailor, which has been
quoted above, it is rather significant that there is
absolutely no reference to any communication having been
received by him from the Sub-Deputy Collector, excepting a
bald statement that "it is learnt that it was enquired by
the S.D.C. Headquarters. . . .. . " Normally, in an official
correspondence when a reply is sent to a communication,
there will be a reference to that letter in the reply
itself. Even the letter of the Jailor does not indicate
whether the enquiry made by the Sub-Deputy Collector was
oral or by a letter. Admittedly the Sub-Deputy Collector
has not filed any supporting affidavit to the effect that he
was asked by the Administrator or any other officer to make
enquiries from the jail authorities and that he collected
the necessary information from the latter. We are fully
aware that the question whether there is a delay in
disposing of the representation made by a detenu and if so,
whether that delay has been properly explained by the State
will have to be gathered from all the facts and
circumstances of a particular case. In the absence of the
various particulars, referred to earlier, explaining the
circumstances under which the order came to be passed only
on March 20, 1971, it must be held that there has been an
unexplained delay of 17 days in this case in the Government
disposing of the representation of the detenus. Mr.
Sachthey, learned counsel for the State, tried his very best
to convince us. that delay, if any, of 17 days, has been
properly explained, but this contention cannot be accepted.
1030
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Then the question is what is the effect of this ’unexplained
delay of 17 days regarding the validity of the orders of
detention passed against the petitioners. According to the
petitioners the constitutional right given to them under
Art. 22(5) that the detenus shall be afforded the earliest
opportunity of making a representation against the order,
has been violated by this inordinate delay and as such the
orders of detention have to be set aside on this sole
ground.
If, as a matter of fact, there has been an unexplained delay
of 17 days, Mr. Sachthey, also could not controvert the
legal position that Art. 22(5) is violated under such
circumstances. In fact, he cannot argue to the contrary in
view of the decision of this Court. In Durga Show etc. v.
The State of West Bengal(1), this Court had to consider the
effect, on the order of detention of a delay between the
receipt of the representation from the detenu and its
consideration and rejection by the Government. In
particular, in one of the writ petitions therein, namely,
Writ Petition No. 206 of 1969, the representation was
received on June 28, 1969 and was considered and rejected on
July 14, 1969, which means there was a delay of 16 days. In
the other two petitions, the delay was very much more. This
Court held that the unexplained delay of 16 days, which is
the minimum, out of the three cases, is a long delay where a
person is being detained without trial under special law
relating to Preventive Detention. After referring to the
previous decisions of this Court, it was emphasised that it
was necessarily implicit in the language of Art. 22(5) the
State Government, to whom the representation is made, should
properly consider the representation as expeditiously as
possible. It was also stressed that the constitution of an
Advisory Board does ,not relieve the State Government from
the legal obligation to consider the representation of the
detenu as soon as it is received by it. On this basis, this
Court ultimately held that the requirement of Art. 22(5) has
not been satisfied as the State Government had failed to
consider and dispose of the representations made by the
detenus as expeditiously as possible and, in consequence,
the detention of the petitioners therein was held to be
illegal.
In Khairul Haque v. The State of West Bengal (2), this Court
had to consider the effect of a delay in the Government
considering the representations with regard to the orders of
detention. This Court again reiterated that under Art.
22(5) of the Constitution, there was 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
(1) Writ Petition Nos. 198, 205, and 206 of 1969 decided on
Sept. 2,1969.
(2) Writ Petition No, 246 of 1969 decided on Sept. 10,
1969.
1031
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.
It was emphasised that 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 the detenu to make a representation and
consider the representation on the other, are two distinct
obligations, independent of each other. It was. further
observed as follows :
"The fact that Art. 22(5) enjoins upon the
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detaining authority to afford to the detenu
the earliest opportunity to make a
representation must implicitly mean that such
representation must, when made, be c
onsidered
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."
In Prabhakar Shankar Dhuri v. Sh. S. G. Pradhan and
others(1) unexplained and unaccounted for delay in the
consideration of the representation by the Government,
results in holding that there has been a violation of Art.
22(5) which, in consequence, entitles the detenu to be set
at liberty.
In Prabhakar Shankar Dhuri v. Sh. S. G. Pradhan and
others(1) it was again emphasised that when a representation
has been made by a detenu, it was the duty of the Government
to dispose of that representation without undue delay. The
decision in Durga Show etc. v. The State of West Bengal(2)
was quoted with approval and it was held that when there is
an unexplained delay in considering and disposing of a
representation made by a person who is detained without
trial under a special law relating to preventive detention,
that by itself would be a sufficient ground for releasing a
detenu. No doubt, it is also observed that if there is a
delay, there must be a satisfactory explanation forthcoming
from the Government explaining the delay.
In its recent decision in Jayanarayan Sukul v. State of West
Bengal(3), after a review of the earlier decisions Ray, J.,
speaking for the Court, has observed as follows :
"It is established beyond any measure of
doubt that the appropriate authority is bound
to consider the representation of the detenu
as early as possible. The appropriate
Government itself is bound to consider the
representation as expeditiously as possible.
The reason
(1) Writ Petition No. 514 of 1970 decided on
December 18, 1970.
(2) W. P. Nos. 198, 205 and 206 of 1969
decided on Sept. 2, 1969-
(3) [1970] 3 S.C.R. 225.
1032
for immediate consideration of the
representation is too obvious to be stressed.
The personal liberty of a person is at stake.
Any delay would not only be an irresponsible
act on the part (A the appropriate authority
but also Unconstitutional because the
Constitution enshrines the fundamental right
of a detenu to have his representation
considered and it is imperative that
when the
liberty of a person is in peril immediate
action should be taken by the relevant
authorities.
No definite time can be laid down within which
a representation of a detenu should be dealt
with save and except that it is a
constitutional right of a detenu to have his
representation considered as expeditiously as
possible. It will depend upon the facts and
circumstances of each case whether the
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appropriate Government has disposed ’of the
case as expeditiously as possible for
otherwise in words of Shelat, J., who spoke
for this Court in the case of Khairul Haque(1)
"it is obvious that the obligation to furnish
the earliest opportunity to make a
representation loses both its purpose and
meaning."
Broadly stated, four principles are to be
followed in regard to representation of
detenus. First, the appropriate authority is
bound to give an opportunity to the detenu to
make a representation and to consider the
representation of the detenu as early as
possible. Secondly, the consideration of the
representation of the detenu by the
appropriate authority is entirely independent
of any action by the Advisory Board including
the ,consideration of the representation of
the detenu by the Advisory Board. Thirdly,
there should not be any delay in the matter of
consideration. It is true that no hard and
fast rule can be laid down as to the measure
of time taken by the appropriate authority
for consideration but it has to be remembered
that the Government has to be vigilant in the
governance of the citizens. A citizen’s right
raises a correlative duty of the State.
Fourthly, the appropriate Government is to
exercise its opinion and judgment on the
representation before sending the case along
with the detenu’s representation to the
Advisory Board. If the appropriate Government
will release the detenu the Government will
not send the matter to the Advisory Board. If
however the Government will not release the
detenu the Government will send the case along
with the detenu’s representation to the
Advisory Board. If thereafter the Advisory
Board will express an
(1) W. P. No. 246 of 1969 decided on 10-9-
1969.
1033
opinion in favour of release of the detenu the
Government will release the detenu. If the
Advisory Board will express any opinion against
the release of the detenu, the Government may
still exercise the power to release the
detenu."
Finally, it was held that the Government was. guilty of
infraaction of the constitutional provisions by an
inordinate delay in the consideration of the representation and
that there was no explanation offered for the
inordinate delay. Ultimately, the detenu was directed to be
set at liberty.
The various decisions, referred to above, no doubt deal with
detention under the Preventive Detention Act, 1950, but the
provisions of the Act, with which we are dealing, in all
material respects, are substantially similar to the
Preventive Detention Act, 1950. Hence the principles laid
down by this Court in the above decisions apply on all fours
to the matter on hand. We have already held that there is
an unexplained delay of 17 days between the date when the
representation was received by the Administrator, namely,
March 3, 1971 and when the latter considered the
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representation and passed the order rejecting the same on
March; 20, 1971. If that is so, without anything more, that
circumstance by itself is a sufficient ground for holding
that the orders of detention of the petitioners are illegal
and they are entitled to, be, released.
We accordingly hold that the detention of the petitioners
is illegal and make the rule issued in all these writ
petitions absolute and direct the release of the petitioners
forthwith unless they are required in connection with any
other case.
V.P.S.
Petitions allowed.
14-LI19SupCI/72
1034