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PETITIONER: SK. SEKAWAT

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT24/09/1974

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. REDDY, P. JAGANMOHAN GOSWAMI, P.K. SARKARIA, RANJIT SINGH

CITATION:  1975 AIR   64            1975 SCR  (2) 161  1975 SCC  (3) 249  CITATOR INFO :  R          1979 SC1953  (6)  RF         1991 SC 574  (11)  RF         1991 SC1090  (5)

ACT: Maintenance   of   internal  Security   Act;   1971-S.   3,- representation  received  after the receipt  of  opinion  of Advisory   Board  but  before  confirmation  of   order   by Government-Whether   Government   bound  to   consider   the representation.

HEADNOTE: The   petitioner  who  was  detained  under  s.  3  of   the Maintenance  of  Internal  Security Act,  1971  submitted  a representation  against  the order of  detention  after  the Advisory Board had submitted its report but before the State Government  confirmed  the order.  Without  considering  The representation. however, the State Government confirmed  the order  of detention and thereafter considered  and  rejected the representation. In  a petition under Article 32 of the Constitution  it  was contended  that  the order confirming the  detention  having been  passed  without the representation the  detention  was unlawful. Allowing the petition, HELD : The contention has great force and it must result  in the detention of the petitioner being set aside.  So long as the  representation  is received with. in 30 days  from  the date  of detention the, State Government would be  bound  to forward  it to the Advisory Board.  Even where the  Advisory Board  reports  that  there  is  sufficient  cause  for  the detention  of the detenu, the state Government is not  bound to confirm the order of detention.  The State Government has to  apply its mind and come to Its own decision  Whether  or not  to  confirm  the  order of  detention.   If  $be  State Government has before it at that time the representation  of the detenu it must consider it and take it into account  for the purpose of deciding whether to confirm and continue  the detention. [162 F; 163 H; 164 D] In  the instant case the representation was received  before

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the  order of detention was confirmed.  By  not  considering the  representation  the  Government failed in  one  of  Its obligatory  duties  with regard to detention  of  the  peti- tioner. Jayanarayan  Sukul v. State of West Bengal [1970]  3  S.C.R. 225 and’ B. Sunder Rao & Ors.  V. State of Orissa, [1972]  3 S.C.C. 11 followed.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 164 of 1974. Petition Under Article 32 of the Constitution of India. Hira Lal Jain, for the petitioner. Laila Seth   and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by- BHAGWATI  J.-This petition is directed against the  validity of  an order of detention dated 26th July, 1972 made by  the District  Magistrate,  Midnapur  under  section  3  of   the Maintenance of Internal Security Act, 1971.  The  petitioner has  urged  several  grounds  before  us,-  but  it  is  not necessary  to refer to them since there is one ground  which is, in our opinion, sufficient to dispose of the petition in favour 2-L251 Sup.CI/75 162 of the petitioner. To appreciate this ground it is necessary to notice a few facts. The  order of detention was made by the District  Magistrate on  26th July, 1972and on the same day he made a  report  to the  State  Government.  The State Government  approved  the order of detention on 5th August,  1972  and  a  report  was made by it to the Central Government on the  same  day.   It appears that the petitioner was absconding and he could not, therefore,  be arrested pursuant to the order  of  detention until 24th October, 1972.  When the petitioner was  arrested on 24th October, 1972, the order of detention; was served on him  along  with  the  grounds  of  detention.   The   State Government  thereafter  placed the, case of  the  petitioner before  the Advisory Board for its opinion and the  Advisory Board  submitted a report dated 23rd November, 1972  stating that  in  its  opinion there was sufficient  cause  for  the detention of the petitioner.  Now, right up to this time  no representation  against the order of detention was  received from  the  petitioner.  It was only on 27th  November,  1972 that the State Government received the representation of the petitioner  against  the  order  of  detention.   The  State Government had not yet confirmed the order of detention when the  representation  was  received but  even  so  the  State Government  proceeded  to  confirm the  order  of  detention without  considering  the’  representation.   The  order  of confirmation  was  passed by the State  Government  on  29th November, 1972.  The State Government thereafter  considered the  representation of the petitioner and rejected the  same on 2nd December, 1972. The  petitioner,  on these facts, contended that  the  order confirming  the  detention  of the  petitioner  having  been passed  by  the  State Government  without  considering  the representation  of  the  petitioner, the  detention  of  the petitioner was unlawful as being in violation of Art.  22(5) of  the  Constitution and section 7 of  the  Maintenance  of Internal  Security  Act, 1971.  This  contention  has  great force and it must result in the detention of the  petitioner being  set  aside. it is now well settled by a  decision  of five judges of this Court in Jayanarayan Sukula v. State  of West Bengal(1) that the peremptory language of Art. 22(5) of

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the  Constitution  and  section  7  of  the  Act  makes   it obligatory  that  the State Government should  consider  the representation  of the detenu "as soon as it is received  by it".  The requirement of Art. 22(5) of the Constitution that the  authority making the order of detention  should  afford the  detenu  the  earliest opportunity of  making  a  repre- sentation  against  the  order  of  detention  would  become illusory  if there were no corresponding obligation  on  the State  Government  to  consider the  representation  of  the detenu as early as possible.  It is not enough for the State Government  to  forward the representation to  the  Advisory Board  while  seeking  its opinion as to  whether  there  is sufficient cause for the detention of the detenu.  The State Government  must itself consider the representation  of  the detenu  and  come  to  its  own  conclusion  whether  it  is necessary to detain the detenu. (1) [1970] 3 S.C.R 225 163 If  the State Government takes the view, on considering  the representation  of the detenu, that it is not  necessary  to detain  him, it would be wholly unnecessary for it to  place the  case  of  the detenu before the  Advisory  Board.   The requirement  of obtaining the opinion of the Advisory  Board is an additional safeguard for the detenu over and above the safeguard afforded to him of making a representation against the order of detention.  The opinion of the Advisory  Board, on  a consideration of the representation, is no  substitute for  the  consideration of the representation by  the  State Government.   This  Court, speaking through Ray, J.,  as  he then  was,  in Jayanarayan Sukul v. State  of  West  Bengal, (supra)  enunciated  the  following four  principles  to  be followed in regard to the representation of a detenu               "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 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

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             of   the  detenu  the  Government  may   still               exercise the power to release the detenu." It  is  possible that sometimes the  representation  of  the detenu  may  be received by the State Government  after  the case of the detenu has been referred to the Advisory  Board. In  such a case, so long as the representation  is  received within thirty days from the date of the detentions the State Government  would  be bound to forward it  to  the  Advisory Board.   But  a question may arise as to what would  be  the duty  of  the State Government where the  representation  is received  after the expiration of thirty days from the  date of detention.  It was contended on behalf of the State  that in  such  a case there would be no obligation of  the  State Government to send the representation to the Advisory Board, because the State Government being bound to 164 place  the  case  of the detenu before  the  Advisory  Board within  thirty  (lays  from the date of  detention,  if  the representation  is not received within the period of  thirty days, there can be no obligation of the State Government  to forward it to the Advisory Board, We do not wish to  express any  opinion  on this contention as it does  not  arise  for consideration  on the facts of the present case.   Here  the representation  of the petitioner was received by the  State Government after the Advisory Board had made its report  and there   could   then   be  no  question   of   sending   the representation  to  the  Advisory  Board.   But  the   State Government had not yet confirmed the order of detention  and it  was, therefore, bound to consider the representation  of the petitioner.  It is obvious that even where the  Advisory Board reports that there is in its opinion sufficient  cause for the detention of the detenu, the State Government is not bound  to  confirm  the  order  of  detention.   The   State Government  has to apply its mind, keeping in view  all  the facts  and circumstances relating to the case of the  detenu including the opinion of the Advisory Board and come to  its own  decision  whether  or  not  to  confirm  the  order  of detention.   If, therefore, the State Government has  before it at that time the representation of the detenu, the  State Government must consider it and take it into account for the purpose  of  deciding whether to confirm  and  continue  the detention.   This  view  finds support  from  the  following observations of Palekar, J. speaking on behalf of the  Court in B.     Sunder Rao and Ors. v. State of Orissa(1) :               "Secondly   having   regard  to   the   second               principle  referred to above’  the  Government               cannot  absolve  itself from  considering  the               representation even at a later stage.  We have               seen  that after the Advisory Board’s  opinion               is  received  the State  Government  is  bound               under section 11 to consider whether it should               confirm  the detention order and continue  the               detention of the person concerned.  Since  the               Government    had    not    considered     the               representation as soon as it was received  nor               even  at  the  time of  the  confirmation  and               continuation of the detention, the  Government               had  failed  in one of its  obligatory  duties               With regard to the detention of the  prisoners               and,  therefore,  for  that  reason  also  the               detention becomes illegal." Here   in  the  present  case  the  representation  of   the Petitioner  was received by the State Government  before  it confirmed  the order of detention, but it did  not  consider the representation and thus "failed

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(1)  [1972] 3 S. C.R. 1.  165 in  one  of  its  obligatory  duties  with  regard  to   the detention" of the petitioner.  The subsequent  consideration and rejection of the representation of the petitioner  could not  cure the invalidity of the order of confirmation.   The detention  of the petitioner must, therefore, be held to  be illegal and void. We accordingly set aside the order of detention and  declare the  detention of the petitioner to be illegal and void  and direct that the petitioner be set at liberty forthwith. P.B.R. Petition allowed. 166