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PETITIONER: DR. RAHAMATULLAH

       Vs.

RESPONDENT: STATE OF BlHAR AND ANR.

DATE OF JUDGMENT28/09/1981

BENCH: ISLAM, BAHARUL (J) BENCH: ISLAM, BAHARUL (J) SEN, A.P. (J)

CITATION:  1981 AIR 2069            1982 SCR  (1) 836  1981 SCC  (4) 559        1981 SCALE  (3)1510

ACT:      Constitution of  India 1950,  Art. 22(5)  and  National Security   Act    1980,   S.    3(2)-Preventive   Detention- Representation  of   detenu-Consideration   by   Government- Necessity of.

HEADNOTE:      The petitioner  was detained  under section 3(2) of the National Security  Act 1980.  The  order  of  detention  was passed by the District Magistrate on April 30, 1981, and the grounds of detention were served on The petitioner on May 1, 1981. The  State Government  approved the order of detention on May  7, 1981,  and referred  the matter  to the  Advisory Board  on   May  19,  1981.  The  petitioner  submitted  his representation against  the detention  on May 31, 1981 and a copy of  the same  was  sent  to  the  Advisory  Board.  The Advisory Board  by its  report dated  June 29, 1981 gave its opinion that  there was  sufficient ground for detention. On receipt of  the report,  the State  Government confirmed the detention and  directed detention  of the  petitioner for  a period of one year.      In the  writ petition to this Court it was contended on behalf of  the petitioner  that the State Government did not consider the  representation submitted by the petitioner and thereby violated Article 22 (S) of the Constitution.      Allowing the writ petition. ^      HELD: 1.  The law  is  well-settled  that  in  case  of preventive detention  of a  citizen, the  obligation of  the appropriate Government is two-fold: (i) to afford the detenu the opportunity to make a representation and to consider the representation which  may  result  in  the  release  of  the detenu, and  (ii) to  constitute a  Board and to communicate the representation  of the  detenu alongwith other materials to the  Board lo enable it to form its opinion and to obtain such opinion.  The former  is distinct  from the  latter. As there  is   a  two-fold   obligation  of   the   appropriate government, so  there is  a two-fold  right in favour of the detenu  to   have  his   representation  considered  by  the appropriate government  and to  have the representation once again considered  by the  Government in  the  light  of  the circumstances of  the case  considered by  the Board for the

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purpose of giving its opinion. [840 B-D]      In the  instant case,  the  State  Government  did  not discharge the  first of  the two-fold  obligation and waited till the  receipt of the Advisory Board’s opinion. There was an  unexplained   period  of   twenty-four  days   of   non- consideration of the 837 representation.  This   shows  there   was  no   independent consideration of  the representation by the State Government on the  contrary they  deferred its  consideration till they received the  report of  the Advisory  Board. This  is clear non-compliance of  Art. 22  (S). The  order of  detention is therefore, liable to be quashed. [840E-F]      2. The normal rule of law is that when a person commits an offence  or a number of offences, he should be prosecuted and punished  in  accordance  with  the  normal  appropriate criminal law;  but if  he is sought to be detained under any of the  preventive detention  laws as may often be necessary to prevent  further commission  of such  offences, then  the provisions of  Article 22  (5) must  be complied  with. This sub-article provides  that the  detaining authority shall as soon as maybe communicate the grounds of detention and shall afford  him   the   earliest   opportunity   of   making   a representation against the order The opportunity of making a representation is  not for  nothing. The  representation, if any, submitted  by the  detenu is meant for consideration by the Appropriate  Authority with-  out any unreasonable delay as it  involves the  liberty  of  a  citizen  guaranteed  by Article 19 of the Constitution [839 E-840 A]      Narendra Purushotam  Umrao etc.  v. B.  B.  Gujral  and ors., [1979] 2 SCR 315 and Pankaj Kumar Chakraborty and ors. v. State of West Bengal, [1970] 1 SCR 543, referred to.

JUDGMENT:      ORlGINAL JURISDICTION: Writ Petition (Crl.) No. 5124 of 1981      (Under Article 32 of the Constitution of India)      R. K.  Garg, V. J. Francis and Sunil Kumar Jain for the Petitioner.      K.G. Bhagat and D. Goburdhan for the Respondents.      The Judgment of the Court was delivered by      BAHARUL ISLAM, J. This is a writ petition under Article 32 of  the Constitution  by  the  petitioner  who  has  been detained under  Section 3(2)  of the  National Security Act, 1980 (hereinafter  "the Act").  The facts  material for  the purpose of disposal of this petition and not disputed before us may be stated thus:      The order  of detention  was  passed  by  the  District Magistrate, Dhanbad,  Bihar, on  April 30, 1981. The grounds of detention  which were  three in number were served on the petitioner on  May 1, 1981 and the State Government approved the order  of detention  on May  7, 1981.  In  pursuance  of Section 10  of the  Act, the  State Government  referred the matter to  the Advisory  Board constituted  under the Act on May 19. The petitioner submitted his represen- 838 tation against this detention on May 31, 1981. A copy of the representation was  sent to the Advisory Board. The Advisory Board by  its report  dated June  29, 1981  gave its opinion that there  was sufficient  ground for  the detention of the petitioner  and   on  receipt   of  the  report,  the  State Government, in  pursuance of  the provisions  of sub-section (l) of  Section 12 of the Act confirmed the detention of the

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petitioner and  under Section  13 of  the Act  directed  the detention of the petitioner for a period of one year.      2. The  first contention  of  Mr.  R.K.  Garg,  learned counsel appearing  for the  petitioner, is  that  the  State Government did  not consider the representation submitted by the petitioner  and thereby  violated Article  22(S) of  the Constitution. In the counter affidavit, the respondents have stated, "since the Advisory Board was going to consider this case  on  June  29,  1981,  the  comments  of  the  District Magistrate were kept handy for use during the sitting of the Board.  The   report  of  the  Board  was  received  by  the Government after  office hours  on June  29, 1981.  The next morning i.e.  on June  30, 1981,  the report of the Advisory Board as  well as  the representation  of the petitioner was examined by  the office  and the  file was  endorsed to  the Chief Minister  on July  1, 1981 by the Special Secretary of the Home  (Special) Department  suggesting that  ’in view of the report  of the  Advisory Board,  the detention  of  Shri Rahamatullah may be confirmed and be directed to be detained for a period of twelve months’"      3. Before  we consider  the first submission of learned counsel, a  few more  facts need  be  stated.  In  the  writ petition, the  petitioner alleged  that he had submitted the representation on  May 13, 1981 which fact was denied by the respondents in  their counter-aftidavit;  they asserted that the representation was submitted not on May 13, but May, 31. This has not been controverted before us by Mr. Garg. It has further been  stated in the counter-affidavit-and not denied by  the   petitioner  that   the  petitioner  submitted  the representation to  the Superintendent  of the District Jail, Dhanbad, where he was detained; the Superintendent, District Jail, sent  it by  registered post  on  the  following  day, namely, June  1, and  the Home  (Special) Department  of the Government received it on June 5. It has been stated further in the  counter-affidavit that "the representation contained certain points  which needed  a report"  from  the  District Magistrate. A  copy of  the representation  was sent on June 10, to  the District  Magistrate, Dhanbad, through a Special messenger, 839 for  comments,   which  were   received  on   June  24.  The respondents explained  that since  the  Advisory  Board  was going to  sit for  consideration of the Petitioner’s case on June 29,  they sent  the representation of the petitioner to the Advisory Board for consideration and placed the comments of  the  District  Magistrate  before  Advisory  Board.  The Advisory Board’s  report was  received on  June 29  and  the following  day,   the   Home   Department   ’examined’   the representation as  well as the opinion of the Advisory Board on June  30, and  endorsed the  file on  July 1 to the Chief Minister who  approved the  detention. But  the  respondents have not  explained their  inaction during (i) the period of file days  from  June  5  to  June  10  taken  by  the  Home Department  to  send  the  representation  to  the  District Magistrate for  his comments;  (ii) the  period of  fourteen days  from  June  10  to  June  24  taken  by  the  District Magistrate to send his comments and (iii) the period of five days from June 24 to June 29 taken by the Home Department in placing  the   District  Magistrate’s  comments  before  the Advisory Board  and placing  the  matter  before  the  Chief Minister. Thus  the total  period of inaction of the respon- dents is twenty-four days.      4. The normal rule of law is that when a person commits an offence  or a number of offences, he should be prosecuted and punished  in  accordance  with  the  normal  appropriate

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criminal law;  but if  he is sought to be detained under any of the  preventive detention  laws as may often be necessary to prevent  further commission  of such  offences, then  the provisions of  Article 22(5)  must be  complied  with.  Sub- Article (S) of Article 22 reads:           "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."      This  Sub-Article   provides,  inter   alia,  that  the detaining authority  shall as soon as may be communicate the grounds of  detention and  shall  afford  him  the  earliest opportunity of  making a  representation against  the order. The opportunity  of  making  a  representation  is  not  for nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority 840 without any  unreasonable delay,  as it involves the liberty of a  citizen guaranteed  by Article 19 of the Constitution. The   non-consideration    or   an    unreasonably   belated consideration of  the  representation  tantamounts  to  non- compliance  of   Sub-Article  (5)   of  Article  22  of  the Constitution.      The law  is well-settled  that in  case  of  preventive detention of  a citizen,  the obligation  of the appropriate government  is  two-fold:  (i)  to  afford  the  detenu  the opportunity to  make a  representation and  to consider  the representation which  may  result  in  the  release  of  the detenu, and  (ii) to  constitute a  Board and to communicate the representation  of the detenu along with other materials to the  Board to enable it to form its opinion and to obtain such opinion.  The former  is distinct  from the  latter. As there  is   a  two-fold   obligation  of   the   appropriate government, so  there is  a two-fold  right in favour of the detenu  to   have  his   representation  considered  by  the appropriate government  and to  have the representation once again considered  by the  Government in  the  light  of  the circumstances of  the case  considered by  the Board for the purpose of  giving its  opinion [see 1979(2) SCR 315(1)] and [1970 (1) SCR 543(2)]      5. In  the instant  case, the  State Government did not discharge the  first of  the two-fold  obligation and waited till the receipt of the Advisory Board’s opinion. There was, as pointed  out above,  an unexplained period of twenty-four days of  non-consideration of the representation. This shows there was no independent consideration of the representation by the  State Government.  On the contrary they deferred its consideration till  they received the report of the Advisory Board. This  is clear  non-compliance of  Article  22(S)  as interpreted by  this  Court.  The  order  of  detention  is, therefore liable to be quashed on this ground alone.      6. Mr.  Garg raised  two other  contentions before  us, namely (i)  that the  first two  of  the  three  grounds  of detention were stale and the grounds showed no continuity of the alleged  activities of  the detenu;  and (ii)  that  the documents relied  on  by  the  detaining  authority  in  the grounds were not furnished to the detenu. In view 841 of the  fact that  we are quashing the order of detention on the first ground, we need not examine these two contentions.      7. The  petition is  allowed. The order of detention is quashed. The detenu shall be set at liberty forthwith.

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N.V.K.                                     Petition allowed. 842