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PETITIONER: PANKAJ KUMAR CHAKRABARTY AND ORS.

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT: 01/05/1969

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. BHARGAVA, VISHISHTHA VAIDYIALINGAM, C.A. HEGDE, K.S. GROVER, A.N.

CITATION:  1970 AIR   97            1970 SCR  (1) 543  1969 SCC  (3) 400  CITATOR INFO :  R          1970 SC 675  (11,12)  F          1973 SC 824  (4)  R          1979 SC 420  (12)  F          1980 SC 798  (1)  R          1981 SC2069  (4)  RF         1987 SC1977  (7)  D          1988 SC2090  (25)  R          1989 SC1861  (16)  RF         1991 SC 574  (11)  RF         1991 SC1090  (5)

ACT: Constitution  of  India,  Art.  22(5)-Preventive  Detention- Representation if to be considered by  Government-Preventive Detention Act (4 of 1950), ss. 7 and 13.

HEADNOTE: The  petitioners  who were detained under ss.  3(1)(a)  (ii) (iii)  and 3(2) of the Preventive Detention Act, 1950,  made representations  to  the  State  Government  against   their detentions.  The representations were made after their cases were placed before the Advisory Board.  The State Government without  considering the representations, passed them on  to the  Advisory Board.  The Board considered the case  of  the petitioners   as  well  as  their  representations  to   the Government  and  confirmed  the  order  of  detention.   The petitioners  filed  a writ of  habeas,  corpus,  challenging their detentions on the ground that the State Government had failed to carry out its obligation. under Art. 22(5) of  the Constitution   to  consider  the  representation.   On   the questions (i) whether there is on the appropriate Government the  obligation  to  consider  the  representation  made  by detenue,  and  (ii)  if  there  is,  whether  it  makes  any difference  where  such a representation is made  after  the detenue’s case is referred to the Advisory Board. HELD : Setting aside the detenfion, (i)  Clause  (5)  of  the  Art. 22  not  only  contains  the obligation  of  the appropriate government  to  furnish  the

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grounds  and  to  give the earliest opportunity  to  make  a representation  but  also  by  necessary  implication.   the obligation to consider that representation.  The expressions "as  soon  may be" and "the earliest  opportunity"  in  that clause  clearly indicate that the grounds are to  be  served and  that  the  opportunity  to  make  a  representation  is provided  for  to  enable  the  detenue  to  show  that  hit detention  is unwarranted and since no other  authority  who should consider such representation is mentioned it can only be  the detaining authority to whom it is. to be made  which has to consider. [548 B, F] Sk.   Abdul Karim v. State of West Bengal, [1969]  3  S.C.R. 479, approved. (ii) The  Constitution  could  not  have  intended  that   a representation  under cl. (5) need not be considered by  the appropriate   Government   where  an   Advisory   Board   is constituted.   If that was the intention cl. (5)  would  not have directed the detaining authority to afford the earliest opportunity  to the detenue.  In imposing the obligation  to afford the opportunity to make a representation cl. (5) does not  make  any distinction between orders of  detention  for only  three months or less, where there is no  necessity  of having  the  opinion of an Advisory Board, and those  for  a longer   duration.   The  clause  does  not  say  that   the representation  is  to  be  considered  by  the  appropriate Government in the former class of cases and by the Board  in the latter class of cases.  The obligation of the Government to   consider  the  representation  is  distinct  from   the obligation  to, constitute an Advisory Board.   Whereas  the Government considers the representation to ascertain whether the order is in conformity with its 544 power  under  the  relevant law, the  Board  considers  such representation  from the point of view of also  arriving  at its opinion whether there is sufficient case for  detention. [549 B-C, E-H]. The  provisions  of the Act also strengthen  the  conclusion that the Government has to consider the representation.   If the   representation  was  for  consideration  not  by   the Government  but  by  the Board there  was  no  necessity  to provide  in  s.  7  that  it  should  be  addressed  to  the Government.   Further, it could not have been the  intention of Parliament that the Government could pass an order  under s.  13 revoking or modifying an order of  detention  without considering  the  representation which has under s.  7  been addressed to it. [550 C-F] Sk.   Abdul Karim v. State of West Bengal, [1969]  3  S.C.R. 479, -approved.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 377 of 1968- Petition under Art. 32 of the Constitution of India for  the enforcement of fundamental rights. S. N. Prasad, for the petitioners Nos. 15 and 36. Sukumar Basu, for the respondent. R. S. Garg and A. K. Gupta, for interveners Nos. 1 to 5. Niren  De, Attorney-General, R. H. Dhebar and S.  P.  Nayar, for intervener No. 6. The Judgment of the Court was delivered by Shelat,  J.  37 persons detained under  S.  3(1)(a)(ii)  and (iii) read with s. 3(2) of the Preventive Detention Act,  IV of  1950  filed this petition against  orders  of  detention passed  against them by the District Magistrates of  Howrah,

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Midnapore  and  Purulia,  West  Bengal.   We  are,  however, concerned  only with Subodh Chandra Barik and Guhiram  Gope, petitioners  15 and 36, as the rest of them have since  then been  released.  The petition came up for hearing  on  April 11, 1969 before Sikri and Bachawat, JJ. who referred it to a larger  Bench as the question involved in this petition  was of  substantial importance.  That is how this  petition  has come up before us for disposal. Petitioners in W. P. 448 of 1969, pending in this Court  and who are detained under the Jammu & Kashmir Preventive Deten- tion Act, applied for intervention as the point involved  in this petition also arises in their petition and that  having been allowed, Mr. Garg representing them appeared before  us supporting  the contentions raised on behalf of  petitioners 15 and 36. The  order of detention against petitioner Barik was  passed on March 23, 1968 by the District Magistrate, Midnapore,  as he  was  satisfied  that  with  a  view  to  preventing  the petitioner  from  acting  in a  manner  prejudicial  to  the maintenance  of  supplies  and  services  essential  to  the community it was necessary to detain him. 545 The District Magistrate reported to the State Government his said  order on March 27, and the Governor approved the  same on  April 1, 1968.  As required by s. 3(4) of the  Act,  the Governor  reported the case to the Central Government.   The petitioner was taken into custody on September 16, 1968 when he was served with the said order and the grounds  therefor. His  case was placed before the Advisory Board on  September 21,  1968  under S. 9 of the Act.  On October 21,  1968  the petitioner made his representation against the said order to the  State  Government.  On November 6,  1968  the  Advisory Board,   after  considering  his  case  as  also  his   said representation,  gave its opinion that there was  sufficient cause  for his detention and thereupon the Governor, by  his order  dated  November 11, 1968, confirmed the  said  order. The  petitioner  filed  a  petition in  the  High  Court  at Calcutta against the said order but that was dismissed. As  regards petitioner Guhiram Gope, the order of  detention was passed against him by the District Magistrate of Purulia on August 29, 1968 on the ground that he was satisfied  that he was acting in a manner prejudicial to the maintenance  of supplies and services essential to the community and also to the  maintenance of public order, i.e., under cls. (ii)  and (iii) of s. 3 (1) (a).  The   order  was  reported  to   the State  Government on the sameday. The Governor approved  the order on September 6, 1968and  made  his report  to  the Central Government on the sameday.  The petitioner  was taken into detention on August 29, 1968after he was  served with  the  order  and the grounds therefor.   His  case  was placed before the Advisory Board on September 29, 1968.  The petitioner  made his representation to the State  Government on October 5, 1968.  On November 6, 1968 the Board consider- ed  his  case  as also his said representation  and  on  its finding  that there was sufficient cause for  his  detention the Governor confirmed the said order on November 12,  1968. It is not necessary to go into the various grounds furnished to the petitioners.  It, is sufficient to notice that in the affidavit  in reply filed on behalf of the State  Government the  detention  of  the two petitioners  was  sought  to  be defended   on  the  ground  that  the  petitioners,   taking advantage  of  the  scarcity conditions  prevailing  in  the State, were indulging in illegitimate procuring, holding and disposing of food grains thereby defeating the policy of and the  various  control orders passed in that  behalf  by  the

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State  Government.   We  may also notice  that  the  grounds supplied to the petitioners also stated that the petitioners may  make a representation to the State Government as  early as possible and that such representation should be addressed to the officer specified therein. It is an admitted fact that though the grounds furnished  to the.  detenues stated that they might, if they  so  desired, make  a  representation to the State Government,  the  State Government 546 did not consider the representations and merely passed  them on to, the Advisory Board for its consideration.  Presumably that  was  done as the representations were made  after  the cases of the two Petitioners were referred to the board  and the  Government felt that it should not interfere  with  the decision of the Board by expressing its own views one way or the other on those representations.  The Stand taken  before us by counsel for the State was that neither Art. 22, cls. 4 and  5,  nor  ’any  of the provisions of  the  Act  made  it mandatory  either expressly or by necessary implication  for the  State  Government to consider the  representations  and that it was sufficient for the Government to pass them on to the  Board for its consideration while viewing the  case  of the  two detenues.  Counsel argued that the decision in  Sk. Abdul Karim & Ors. v. State of West Bengal(1) which has held that  there  was  a  legal  obligation  on  the  appropriate Government  to  consider  the representation  of  a  detenue besides constituting an advisory board and referring to such board  the  case of such a detenue for its opinion  was  not warranted by the provisions of Art. 22 or the provisions  of the  Act  and that in any event according to  that  decision consideration  of such a representation by  the  appropriate Government was obligatory only where it was made before  and not  after  the detenue’s case was referred  to  the  Board. That  decision, therefore, said counsel, cannot  help  these petitioners  as  they had made their  representations  after their  cases were referred to the Advisory Board.   Besides, there  was  no  practical  utility,  said  counsel,  in  the Government  considering  their  representations  when  their cases including the representations were being considered by the Board. On these contentions two questions arise : (1) whether there is on the appropriate Government the obligation to  consider the  representation made by a detenue, and (2) if there  is, whether it makes any difference where such a  representation is made after the detenue’s case is referred to the Advisory Board. In Sk. Abdul Karim’s case(1), this Court, examining Art.. 22 and  the  several  provisions of the Act, held  that  (i)  a person  detained under the Act has a right to  be  furnished with the grounds for his detention, (ii) that he has a right to   make  a  representation  against  the  order  for   his detention,  (iii) that though cl. 5 of Art. 22 does  not  in express language provide as to whom such a representation is to  be made and how the detaining authority is to deal  with it,  there is by necessary implication an obligation on  the part of the appropriate Government to consider it, and  (iv) the  setting up of an advisory board under s. 8 of  the  Act does  not  relieve  the  appropriate  Government  from   its obligation  to consider the representation as soon as it  is received (1)  [1969] 3 S.C.R. 4 9. 547 by it.  The Court held that the constitutional right to make a  representation  guaranteed  by  Art.  22(5)  includes  by

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necessary   implication  the  constitutional  right   to   a consideration   of  the  representation  by  the   detaining authority  to  whom it is made and repelled  the  contention that  once  an  advisory  board  was  constituted  for   the consideration  of  the detenue’s case it was enough  if  the State  Government  were to send the representation  -to  the board for consideration without itself considering it.   ’Me learned Judges there gave several illustrations to show that such  a contention was not only incorrect but  would  defeat the provisions of Art. 22(4) and (5) and those of the Act. Article 21 guarantees protection against deprivation of per- sonal  liberty  save that in accordance with  the  procedure established by law.  At first sight it would appear somewhat strange   that  the  Constitution  should  make   provisions relating to preventive detention immediately next after Art. 21.  That appears to have been done because the Constitution recognizes   the  necessity  of  preventive   detention   on extraordinary  occasions  when control  over  public  order, security  of the country etc. are in danger of a  breakdown. But  while  recognizing the need  of  preventive,  detention without recourse to the normal procedure according to.  law, it  provides at the same time certain restrictions  on  the, power  of detention both legislative and executive which  it considers as minimum safeguards to ensure that the power  of such  detention is not illegitimately or  arbitrarily  used. The  power of preventive detention is thus acquiesced in  by the  Constitution  as a necessary evil  and  is,  therefore, hedged  in by diverse procedural safeguards to  minimise  as much  as possible the danger of its misuse.  It is for  this reason that Art. 22 has been given a place in the Chapter on guaranteed rights. Clause 1 of Art. 22 guarantees to a detenue the right to  be informed  as  soon  as  possible  of  the  grounds  for  his detention and the right to consult and of being defended  by a  legal practitioner of his choice.  Clause 2  imposes  the obligation of his having to be produced before a  magistrate within  24 hours of his detention and of not being  detained beyond that period without the authority of such magistrate. Clause 3, however, withdraws these safeguards in the case of two  categories  of  persons, namely,  an  enemy  alien  and persons detained under a law providing for preventive deten- tion.  But the next two clauses impose certain  restrictions on and safeguards against the power of detention.  Clause  4 thus lays down that no law providing for such detention  can authorise  the  detention for more than 3 months  unless  an advisory  board  composed as therein stated  certifies  that there  is  sufficient  cause for  such  detention  and  such detention  is  in consonance with and is not  for  a  period longer than the one provided by a Parliament Act made  under cl.  7.  Clause  7  authorises  Parliament  to  make  a  law prescribing the circums- 548 tances  under  which and the class or classes  of  cases  in which  a  person  can be detained for  more  than  3  months without obtaining the opinion of the advisory board and  the maximum  period for which a person may in any such class  or classes  of  cases  be  detained and  the  procedure  to  be followed  by  the advisory board in the  enquiry  under  cl. 4(a).   Clause  5  imposes on obligation  on  the  detaining authority  to furnish to the person detained by  it  grounds for  his  detention "as soon as may be" and  give  him  "the earliest opportunity" of making a representation against the order  of detention passed against him.  These clauses  thus clearly impose on the detaining authority the obligation  to furnish to the detenue as soon as may be the grounds for his

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detention,  the,  obligation  to  afford  him  the  earliest opportunity of making a representation against the order and the-  obligation to constitute an advisory board and not  to keep  the  detenue in detention for a period longer  than  3 months  unless  before  the expiry of  that  period  it  has obtained  the opinion of the board that there is  sufficient cause  for  such detention except in cases prescribed  in  a Parliament  Act  passed under and by virtue of  cl.  7.  The reason  for  the  expressions  "as  soon  as  may  be"   for furnishing  the grounds and "the earliest  opportunity"  for making  a  representation in these clauses  is  the  extreme anxiety  of  the  Constitution  to see  that  no  person  is detained  contrary to the law enabling preventive  detention or  in  breach  of  or  countrary,  to  the  safeguards  and restrictions  provided  in these clauses.  The  grounds  for detention are to be served on the detenue as soon as may  be and  the  earliest  opportunity  to  make  a  representation against  the  order is to be given to him to enable  him  to protest  against  the  order that he is  either  wrongly  or illegally detained. It is true that cl. 5 does not in positive language  provide as  to whom the representation is to be made and  by  whom,, when made, it is to be considered.  But the expressions  "as soon  as  may  be" and "the earliest  opportunity"  in  that clause  clearly indicate that the grounds are to  be  served and  the opportunity to make a representation  are  provided for  to  enable the detenue to show that  his  detention  is unwarranted and since no other authority who should consider such  representation  is  mentioned  it  can  ,only  be  the detaining  authority to whom it is to be made which  has  to consider it.  Though cl. 5 does not in express terms say  so it  follows  from its provisions that it  is  the  detaining authority  which  has to give to the  detenue  the  earliest opportunity to make a representation and to consider it when so made whether its order is wrongful or contrary to the law enabling  it to detain him.  The illustrations given in  Sk. Abdul  Karim’s case(1) show that cl. 5 of Art. 22  not  only contains  the  obligation of the appropriate  Government  to furnish the grounds and to give the (1)  [1969] 3 S.C.R. 479. 549 earliest  opportunity to make a representation but  also  by necessary  implication  the  obligation  to  consider   that representation.   Such an obligation is  evidently  provided for  to  given an opportunity to the detenue to show  and  a corresponding  opportunity to the appropriate Government  to consider any objections against the order which the  detenue may raise so that no person is, through error or  otherwise, wrongly arrested and detained.  If it was intended that such a  representation need not be considered by  the  Government where   an   advisory   board  is   constituted   and   that representation  in  such cases is to be  considered  by  the board and not by the appropriate Government, cl. 5 would not have directed the detaining authority to afford the earliest opportunity  to the detenue.  In that case the  words  would more  appropriately  have  been that  the  authority  should obtain the opinion of the board after giving an  opportunity to the detenue to make a representation and communicate  the same to the board.  But what would happen in cases where the detention  is  for  less  than 3  months  and  there  is  no necessity of having the opinion of the board ? If  counsel’s contention were to be right the representation in such cases would  not have to be considered either by  the  appropriate Government  or by the board and the right of  representation and   the  corresponding  obligation  of   the   appropriate

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Government  to  give the earliest opportunity to  make  such representation would be rendered nugatory.  In imposing  the obligation   to   afford   the   opportunity   to   make   a representation  cl. 5 does not make any distinction  between orders of detention for only 3 months or less and those  for a longer duration.  The obligation applies to both kinds  of orders.  The clause does not say that the representation  is to be considered by the appropriate Government in the former class of cases and by the board in the later class of cases. In  our view it is clear from cls. 4 and 5 of Art.  22  that there is a dual obligation on the appropriate Government and a ,dual right in favour of the detenue, 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 board before  it gives  its opinion.  If in the light of that  representation the  board  finds  that there is  no  sufficient  cause  for detention  the  Government  has  to  revoke  the  order   of detention and set at liberty the detenue.  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  detenue   the opportunity  to make a representation and to  consider  that representation is distinct from the Government’s  obligation to constitute a board and to communicate the  representation amongst other 550 materials to the board to enable it to form its opinion  and to ,obtain such opinion. This  conclusion is strengthened by the other provisions  of the  Act.  In conformity with cls. 4 and 5 of Art. 22, S.  7 of  the Act enjoins upon the detaining authority to  furnish to  the detenue .grounds of detention within five days  from the  date of his detention and to afford to the detenue  the earliest  opportunity  to  make his  representation  to  the -appropriate  Government.  Sections 8 and 9 enjoin upon  the appropriate  Government to constitute an advisory board  and to place within .30 days from the date of the .detention the grounds  for  detention, the detenue’s  representation  -and also the report of the officer where the order of  detention is  -made  by  an officer and not by  the  Government.   The obligation under S. 7 is quite distinct from that under  as. 8  and 9. If the -representation was for  the  consideration not  by the Government but by the board only  as  contended, there  was  no  necessity  to  provide  that  it  should  be addressed  to the Government and not directly to the  board. The  Government  could not have been intended to be  only  a transmitting authority nor could it have been  -contemplated that it should sit tight on that representation remit it  to the board after it is constituted.  The peremptory language- in cl. 5 of Art. 22 and S. 7 of the Act would not have  been necessary  if  the  board  and not  the  Government  had  to ,consider the representation.  Section 13 also furnishes  an answer to the argument of counsel for the State.  Under that section the ’State Government and the Central Government are empowered to -revoke or modify an order of detention.   That power is evidently provided for to enable the Government  to take  appropriate action -where on a representation made  to it  finds that the order in question should be  modified  or even revoked.  Obviously, the intention of Parliament  could not have been that the appropriate Government should pass an

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order  under S. 13 without considering  the  ,representation which has under S. 7 been addressed to it. For  the  reasons  aforesaid we are in  agreement  with  the decision  in Sk.  Abdul Karim’s case(1).  Consequently,  the petitioners had a constitutional right and there was on  the State  Government a corresponding constitutional  obligation to  consider their representations irrespective  of  whether they were made before or after their cases were referred  to the  Advisory Board and that not having been done the  order of detention against them cannot be sustained.  In this view it  is not necessary for us to examine the other  objections raised  against  these orders.  The  petition  is  therefore allowed, the orders of detention against petitioners 15  and 36  are set aside and we direct that they should be  set  at liberty forthwith.                                       Petition allowed. Y.P. (1)[1969] 3 S.C. R.479. 551