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CASE NO.: Special Leave Petition (crl.) 4528  of  2000

PETITIONER: THE DISTRICT COLLECTOR & ORS.

       Vs.

RESPONDENT: SMT. SHAIK HASMATH BEEBI

DATE OF JUDGMENT:       23/04/2001

BENCH: G.B. Pattanaik & U.C. Banerjee

JUDGMENT:

PATTANAIK,J.

Leave Granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   This  appeal  by  special leave is  directed  against  a Judgment  of  the Division Bench of the Andhra Pradesh  High Court.  By the impugned judgment, the High Court has quashed an  order of detention issued under Section 3 of the  Andhra Pradesh  Prevention of Dangerous Activities of Boot Leggers, Decoits,  Drug Offenders, Goondas, Immoral Traffic Offenders and  Land Grabbers Act, 1986, inter alia on the ground  that the representation of the detenu filed for temporary release under  Section  15 of the Act was not disposed of  within  a reasonable  period  and  thereby  the  constitutional  right guaranteed  to the detenu under Article 22(5) was infringed. The  question  for consideration, therefore, is whether  the request  of  the  detenu  for  being  temporarily  released, invoking the power of the Government under Section 15 of the Act, if not disposed of early, can it be said that there has been an infraction of Article 22(5) of the Constitution?

   The  Act in question is undoubtedly an Act providing for preventive   detention   of   Bootleggers,   Dacoits,   Drug Offenders,  Goondas,  Immoral  Traffic  Offenders  and  Land Grabbers,  for preventing their dangerous activities,  which are  prejudicial to the maintenance of Public Order.  It was enacted  to  deal  with  the situation arising  out  of  the activities  of  a  category  of  persons,  which   adversely affected  public order and it was difficult for the State to deal  with  such persons on account of their  resources  and influence.   Section  3  of  the   Act  enables  the   State Government  to  issue  an  order   of  detention,  on  being satisfied that the activities of the detenu are such that it is  necessary  to  prevent him from acting  in  any  manner, prejudicial  to  maintenance of public order.  Section  3(3) makes  it obligatory to report the fact of detention to  the State  Government  together  with the grounds on  which  the order  has been made, when an order of detention is made  by an   officer   other  than   the  State   Government   under sub-section(2)  of  Section  3.    Section  8  provides  for

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communication  of  the  grounds of detention to  the  detenu within  a  maximum  period  of five days from  the  date  of detention.   Section 9 is the provision for constituting  an Advisory  Board and Section 10 is the provision under  which the  Government  is duty bound to make the reference to  the Advisory  Board  within  three  weeks   from  the  date   of detention.   Section  11 is the procedure to be followed  by the  Advisory  Board  and  Section 12 is the  power  of  the Government  to  confirm an order of detention on receipt  of the  opinion of the Advisory Board that sufficient cause for detention  exists.   Under  Section 13,  maximum  period  of detention  that can be passed under the Act is twelve months from  the  date  of detention.  Section 14 is the  power  of revocation of an order of detention by the State Government. Section  15, which is relevant for our purpose, in the  case in  hand  is  the  power of the State  Government  to  grant temporary  release  of the person detained.  Therefore,  the said Section is quoted herein-below in extenso:

   Section  15:  Temporary release of persons detained  :- (1)  The Government may, at any time direct that any  person detained  in pursuance of a detention order may be  released for  any specified period, either without conditions or upon such  conditions  specified in the direction as that  person accepts, and may, at any time cancel his release.

   (2)  In  directing  the  release  of  any  person  under sub-section  (1),  the Government may require him  to  enter into  a  bond,  with  or   without  sureties,  for  the  due observance of the conditions specified in the direction.

   3)  Any  person  released under  sub-section  (1)  shall surrender  himself  at  the  time   and  place  and  to  the authority,  specified in the order directing his release  or cancelling his release, as the case may be.

   (4)  If  any  person fails without sufficient  cause  to surrender  himself  in the manner specified in sub-  section (3),  he shall, on conviction, be punished with imprisonment for  a  term which may extend to two years or with fine,  or with both.

   (5)  If any person released under sub-section (1)  fails to  fulfil any of the conditions imposed upon him under  the said  sub-section  or to the bond entered into by  him,  the bond  shall be declared to be forfeited and any person bound thereby shall be liable to pay the penalty thereof.

   In  the case in hand, the order of detention was  passed by  the  District  Collector,  East  Godavari  District,  in exercise  of  power  under sub-section(2) of  Section  3  on 3.2.2000 and the order was served on the detenu on 5.2.2000. The  grounds of detention were communicated to the detenu on 7.2.2000  and  the  order of detention was approved  by  the State Government on 11.2.2000.  A petition for habeas corpus was  filed on 16.2.2000.  The Advisory Board considered  the materials  and  by its report dated 10.3.2000,  opined  that there  is sufficient cause for the detention of the  detenu. The  order  of  detention, thereafter was confirmed  by  the State  Government  on 18.3.2000 in exercise of  power  under Section 12 of the Act.  The habeas corpus petition, filed in the  Andhra  Pradesh  High  Court  stood  dismissed  on  the conclusion  that the detaining authority exercised the power of  detention  for proper preservation of Forest wealth  and for  protecting  it  from illegal  activities.   The  detenu

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thereafter  made an application, seeking temporary  release, invoking the power of the Government under Section 15 of the Act on 27.4.2000, which was received by the State Government on  2.5.2000  and  rejected by the State  Government,  after getting reports from the District Collector on 19.6.2000.  A fresh  writ  petition was filed in the High Court,  alleging infraction  of the constitutional right under Article  22(5) for  delay in disposal of the prayer for temporary  release. The High Court by the impugned judgment dated 19.7.2000, was persuaded  to  accept  the said contention and  quashed  the order of detention and hence the present appeal.

   Mr.  Guntur Prabhakar, appearing for the State of Andhra Pradesh  contended  before us that delay in disposal  of  an application  for temporary release, invoking the power under Section  15 of the Act would not tantamount to  infringement of  the constitutional right guaranteed under Article  22(5) and,  therefore,  the High Court committed serious error  in setting  aside  the order of detention on that  ground.   He further  urged  that in the facts and circumstances  of  the case,  in  fact there has been no delay inasmuch  as  before considering the application for temporary release, the State was  duty  bound to call for the report from  the  detaining authority,  and, therefore, it cannot be said that there has been an unexplainable delay in the matter.

   Mr.  M.N.  Rao, the learned senior counsel appearing for the detenu did not seriously contest the legal position, but submitted  that the Court may lay down the law and it is not necessary  to direct further detention of the detenu as  the period  of detention is already over since 5th of  February, 2001, the detention order having been passed on 5.2.2000 and the  order confirming the same for a period of one year, the period  of detention is over by 5th February, 2001.  But  in view  of the impugned judgment of the High Court, which  has taken   an  incorrect  view  of  the  constitutional   right guaranteed  to  a detenu under Article 22(5), we are  called upon  to examine the legality of the said order of the  High Court.  Clause (1) and (2) of Article 22 of the Constitution lay  down  the  procedure to be followed when  a  person  is arrested.   It confers a protection against arrest which are effected  otherwise than under a warrant issued by a  Court, on the allegation or accusation that the arrested person has or  is  suspected  to have committed an act of  criminal  or quasi    criminal nature.  But clause (3)(b) of Article  22 carves  out  an exception when a person is arrested under  a law  of preventive detention and such a detenu has no  right to  be produced before a Magistrate within 24 hours or to be defended  by  a  lawyer.  Preventive Detention  means  the detention  of  a person without trial in such  circumstances that  the  evidence  in possession of the authority  is  not sufficient  to  make  a  legal   charge  or  to  secure  the conviction  of  the detenu by legal proof, but may still  be sufficient   to  justify  his   detention.   The  object  of preventive  detention  is to prevent the detenu  from  doing something  or  to prevent an individual from  achieving  the particular  object.   The  satisfaction   of  the  concerned authority  is a subjective satisfaction.  The object of  the framers  of  the  Constitution in  giving  a  constitutional status  to  preventive detention was to prevent  anti-social and  subversive elements from imperilling the welfare of the republic.   Having  recognised  the necessity  of  laws  for preventive  detention,  the constitution also  has  provided some  safeguards to mitigate the hardships and clause (5) of Article 22 is one such safeguard, available to a detenu, who

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has  been detained under a preventive law.  Article 22(5) of the Constitution is extracted herein-below in extenso:

     Article  22(5):   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.

   Article  22(5)  gives  the detenu the right  to  make  a representation  against an order of detention and such right must  be  afforded as expeditiously as possible.   In  other words,  the detenu must be afforded the earliest opportunity of  making a representation against the order of  detention. Article   22(5)   in  itself  does   not  say,  to  whom   a representation  could  be  made  or who  will  consider  the representation  but  a representation filed by a  detenu  is required  to be considered and disposed of by the Government as  soon  as  it is received.  Because of  the  language  of Article  22(5)  and  because of the fact that  an  order  of detention  affects the liberty of a citizen, without  laying down  any hard and fast rule as to the measure of time taken by   the   appropriate  authority   for  considering  of   a representation,  it  has  been held by the  Courts  that  it should  be considered as soon as it is received and it is in this   connection,  it  has  been   further  held  that   an unexplainable  delay  in  disposing of  the  representation, infringes  the  right of the detenu under Article 22(5)  and makes  the  detention bad.  In other words, the Courts  have held that the right of the detenu to have his representation to   be  considered  at  the   earliest  opportunity  is   a constitutional right and that constitutional right cannot be infringed  by  the  executive  Government  by  delaying  the consideration  of  a representation.  But all that has  been said  is in relation to a representation against an order of detention  or  when the detenu approaches the authority  for revoking  an  order of detention.  The Constitutional  right emanating  from Article 22(5) is in relation to an order  of detention  and an opportunity required to be afforded to the detenu is to enable him to make a representation against the order  of  detention.   But invocation of the power  of  the Government under Section 15 of the Act praying for temporary release  of the person detained cannot be construed to be  a representation  against  the order of detention or a  prayer for  revocation of the order of detention within the meaning of  the  constitutional right guaranteed to a  detenu  under Article  22(5) of the Constitution.  The power under Section 15  is  the power of the Government to release a detenu  for any specified period with such conditions to be specified in the  order  of  release and such a prayer by no  stretch  of imagination  can  be held to be representation  against  the order  of  detention within the meaning of Article 22(5)  of the  Constitution.   That  being the position,  question  of infraction  of Article 22(5) does not arise if the prayer of the  detenu for being temporarily released, is not  disposed of  immediately  and there is some delay in the disposal  of the  said  prayer.   Of  course  such  a  prayer  for  being temporarily  released,  should  be   disposed  of  within  a reasonable  time  but delay on the part of the authority  in considering  the prayer for temporary release under  Section 15  of  the  Act cannot be held to be an infraction  of  the constitutional  right  guaranteed to a detenu under  Article 22(5).  In this view of the matter, we have no hesitation to

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come to the conclusion that the High Court committed serious error  in  setting  aside  the order  of  detention,  merely because there had been delay in disposing of the application for  temporary release, filed by the detenu under Section 15 of  the Act.  We, therefore, set aside the impugned Judgment of  the High Court and allow the appeal accordingly.  It  is placed  on  record that the period of detention  being  over since 5th February, 2001, the detenu will not be required to be detained again under the self-same detention order.