Dr. Rahamatullah Vs. State of Blhar
& ANR [1981] INSC 172 (28 September 1981)
ISLAM, BAHARUL (J) 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 along with 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 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.
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 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 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.
N.V.K. Petition allowed.
Back
