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PETITIONER: ABDUSSUKKUR

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT30/05/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ

CITATION:  1972 AIR 1915            1973 SCR  (1) 650  1972 SCC  (1) 547  CITATOR INFO :  R          1972 SC2529  (5)  F          1972 SC2605  (6)  D          1988 SC2090  (25)

ACT: Preventive  Detention-West  Bengal  (Prevention  of  Voilent Activities)   Act   (19  of   1970)-Unexplained   delay   in considering detenu’s representation-Effect. of.

HEADNOTE: In  pursuance  of  detention order under s. 3  of  the  West Bengal  Prevevenion  of Violent Activities) Act,  1970,  the petitioner  was arrested.  The State Government  received  a representation  from the petitioner against  his  detention, which  was rejected by the St-ate Government 27  days  after the receipt of the representation.  The delay in considering the representation of the petitioner was not explained. Allowing the petition under Art. 32, HELD : According to Art. 22(5) of the Constitution 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  earlier  opportunity  if  making  a representation  against  the  order.   The  fact  that   the earliest  opportunity has to be afforded to the  detenu  for making  a  representation necessarily implies that,  as  and when  the  representation is made, it should be  dealt  with promptly.  Otherwise, the requirement would be reduced to  a farce and empty formality.  In case the authority  concerned is   guilty  of  unexplained  delay  in  dealing  with   the representation,  the  detention.  would  be  liable  to   be assailed  and declared unvalid on the ground of  interaction of Art. 22(5) of the Constitution.  This is as it should  be because  the matter relates to the liberty of a subject  who has  been  ordered  to be detained  without  recourse  to  a regular trial in a court of law.  [682B-F] Jayanarayan  Suku v. State of West Bengal, [1970]  3  S.C.R. 225; Xhairul Haque v. State of West Bengal, W.P. No. 246  of 1969  decided on September 10, 1969; Prof.  K. L.  Singh  v. State of Manipur, A.I.R. 1972 S.C. 438; Baidya Nath  Chunkar v.  State  of West Bengal, W.P. No. 377 of 1971  decided  on March  14,  1972; Kanti Lal Bros v. State of  West  Bengal,.

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W.P. No. 8 of 1972 decided on May 5, 1972, followed.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 85 of 1972. Under Article 32 of the Constitution of India for a writ  in the nature of habeas corpus. S.   L. Chhibber, for the peitioner. G.   S. Chatterjee, for the respondent. The Judgment of the Court was delivered by Khanna,  J.  An order was made by  the  District  Magistrate Burdwan  on  February 10, 1971 under section 3 of  the  West Bengal   (Prevention  of  Violent  Activities)   Act,   1970 (President’s ,Act No- 19 of 1970) for the detention of Abdus Sukkur "with 681 a  view  to  preventing-  him  from  acting  in  any  manner prejudicial  to  the  maintenance  of  public  order".    In pursuance  of  that  order, Abdus  Sukkur  was  arrested  on September  24,  1971.   Abdus  Sukkur  thereupon  filed  the present  petition  through   jail under article  32  of  the Constitution to challenge his detention. Mr.  Chibber argued the case amicus curiae on behalf of  the petitioner,  while the State of West Bengal was  represented by Mr. Chatterjee.  After hearing the learned counsel on May 24, 1972 1 ordered that, for reasons to be given later,  the petitioner  be  set at liberty.  I now proceed  to  set  out those reasons. The order for the detention of the petitioner, as  mentioned earlier,  was made by the District Magistrate,  on  February 10,  1971.   The petitioner, it is stated, was found  to  be absconding  after  the,  making of that  order  and  he  was arrested on September 24, 1971.  He was then served with the order  of  detention  along with  the  ground  of  detention together  with  vernacular  translation  thereof.   In   the meanwhile, on February 10, 1971 the District Magistrate sent report  to  the  State Government about the  making  of  the detention order along with necessary particulars.  The State Government  approved  the detention order  on  February  18, 1971.  The case of the petitioner was placed on October  23, 1971 by the State Government before the Advisory Board.   On October   28,   1971  the  State   Government   received   a representation  from the petitioner against  his  detention. The   said  representation  was  considered  by  the   State Government  and  was rejected on November, 24,  197  1.  The representation  was, thereafter sent to the Advisory  Board. The  Advisory Board, after considering the  material  placed before  it and after hearing the petitioner in person,  sent its  report  to the State Government on November  26,  1971. Opinion  was expressed by the Advisory Board that there  was sufficient  cause  for the detention of the  petioner.   The State  Government confirmed the order for the  detention  of the petitioner on December 1, 1971. It   would   appear   from  the  above   that   though   the representation made by the petitioner against his  detention was  received by the’ State Government on October 28,  1971, the  said  Government  considered  the  representation   and rejected  it  on November 24, 197 1. There  thus  elapsed  a period of 27 days between the receipt of the  representation and its consideration and rejection by the State Government. As  the  above  delay  in  considering  and  rejecting   the representation had not been explained in the affidavit which was initially filed in. opposition to the petition on behalf of the State Government, this Court adjourned the matter  on

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May  5,  1972  to enable the State  Government  to  file  an additional affidavit.  When the case was taken up thereafter on May 24, 1972 Mr. Chatterjee. 152SupCI/73 682 learned  counsel  for the State, stated that  no  additional affidavit was to be filed on behalf of the State.  It  would thus  follow  that  The  delay on  the  part  of  the  State Government   in  considering  the  representation   of   the petitioner  has  remained  unexplained.   This   unexplained delay,  in  my  opinion, is  sufficient  to  invalidate  the detention of the petitioner. According  to clause (5) of article 22 of the  Constitution, 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.  The fact that earliest  opportunity has to be afforded to the detents  for making   a  representation  against  the   detention   order necessarily implies that, as and when the representation  is made,     it should be dealt with promptly.  Undue delay  on the part of the     detaining authority in disposing of  the said representation would     run counter to the  underlying object of clause (5) of article    22. The requirement about the  giving  of earliest opportunity to a detenu to  make  a representation against the detention order would plainly  be reduced  to  a farce and empty formality  if  tie  authority concerned  after giving such an opportunity pays  no  prompt attention  to the representation which is submitted  by  the detenu  as a result of that opportunity.  It is,  therefore, essential that there should be no undue or unexplained delay on  the part of the detaining authority in disposing of  the representation  made  by the detenu  against  the  detention order.   In case the authority concerned is guilty  of  such delay, the detention would be’ liable to be assailed on  the ground  of infraction of article 22(5) of the  Constitution. This  is as it should be, because the matter relates to  the liberty  of  a subject who has been ordered to  be  detained without recourse to a regular trial in a court of law.   The authority  concerned has, therefore, to proceed strictly  in accordance  with law and any deviation from compliance  with legal   requirement   cannot  be   countenanced.    It   has accordingly  been laid down in a string of authorities  that undue   or  unexplained  delay  in  the  disposal   of   the representation  of  the detenu against the  detention  order would introduce a serious infirmity in the detention. In the case of Javanaravan Sukul v. State of West  Bengal(1) the  Constitution  Bench of this Court. laid stress  on  the imperative   necessity   of-  the   consideration   of   the representation  made by a detenu by the Government as  early as possible.  It was observed:               "It is established beyond any measure of doubt               that  the  appropriate authority is  bound  to               consider the repre-               (1)   [1970] 3 S.C.R. 225.               683               sensation of the detenu as early as- possible.               The  appropriate.  Government itself is  bound               to    consider    the    representation     as               expeditiously as possible., The reason for im-               mediate consideration of the representation is               too  obvious  to be  stressed.   The  personal               liberty  of a person is at stake.   Any  delay

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             would not only be an irresponsible act on  the               part  of  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 adetenu to have,  his               representation considered as expeditiously  as               possible." The  detenu in that case made a representation to the  State Government on June 23, 1969 and the same was rejected by the State  Government on August 9, 1969.  It was held  that  the Government   was   guilty   of   the   infraction   of   the constitutional  provision  because of  inordinate  delay  in considering   the   representation.   The   petitioner   was accordingly set at liberty. Reliance  in the case of Jayanarayan Sukul v. State of  West Bengal  (supra) was placed upon an earlier decision of  this Court in the, case of Khairul Haque v. State of West Bengal, (W.  P. No. 246 of 1969 decided on September 10, 1969).   In that  case  this  Court  held  that  article  22(5)  of  the Constitution  envisaged a dual obligation of the  Government and  a  corresponding  dual right in  favour  of  a  detenu, namely,   (1)  to  have  his  representation   independently considered   by  the  Government,  and  (2)  to  have   that representation, in the light of the facts and  circumstances of  the  case,  considered by an  Advisory  Board.   It  was observed that the said provision enjoined upon the detaining authority  to afford to the detenu the earliest  opportunity to make a representation.  This fact, in the opinion of  the Court, necessarily implied that such a representation  must, when made, be considered and disposed of as expeditiously as possible,  for  otherwise  "the obligation  to  furnish  the earliest opportunity to make a representation loses both its purpose  and  meaning." In Prof.  K. L. Singh  v.  State  of Manipur(1)  this Court held that an unexplained delay of  17 days was enough to render the detention illegal.  In  Baidya Nath  Chunkar v. State of West Bengal (W.P. No. 377 of  1971 decided  on March 14, 1972) unexplained delay of 29 days  in considering  the representation was, held to  have  vitiated the detention of the (1)  A.I.R. 1972 S.C. 438. 684 detenu.  The different cases mentioned above were,  referred to  by this Court in the case of Kant  Lai Bose v. State  of West Bengal (W.P. No. 8 of 1972 decided on May 5, 1972)  and it was held that unexplained delay of 28 days in considering the detenu’s representation would invalidate his detention. I therefore, accept the petition and make the rule absolute. V.P.S.                                  Petition allowed. 685