Abdussukkur Vs. The State of West
Bengal  INSC 148 (30 May 1972)
KHANNA, HANS RAJ KHANNA, HANS RAJ
CITATION: 1972 AIR 1915 1973 SCR (1) 650 1972
SCC (1) 547
R 1972 SC2529 (5) F 1972 SC2605 (6) D 1988
Preventive Detention-West Bengal (Prevention
of Voilent Activities) Act (19 of 1970)-Unexplained delay in considering
detenu's representation-Effect. of.
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,  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,.
W.P. No. 8 of 1972 decided on May 5, 1972,
ORIGINAL JURISDICTION: Writ Petition No. 85
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 No19 of 1970) for the detention of Abdus Sukkur
"with 681 a view to preventinghim 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
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
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 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 ofthe 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 representation (1)
 3 S.C.R. 225.
683 of the detenu as early aspossible.
The appropriate. Government itself is bound
to consider the representation as expeditiously as possible., The reason for immediate
consideration of the representation is too obvious to be stressed. The personal
liberty of a person is at stake. Any delay 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
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
I therefore, accept the petition and make the
V.P.S. Petition allowed.