Smt. Gracy
Vs. State of Kerala & Anr [1991] INSC 48 (15 February 1991)
Verma,
Jagdish Saran (J) Verma, Jagdish Saran (J) Ray, B.C. (J) Sharma, L.M. (J)
CITATION:
1991 AIR 1090 1991 SCR (1) 421 1991 SCC (2) 1 JT 1991 (1) 371 1991 SCALE (1)211
ACT:
Constitution
of India, 1950: Article 22(5)-Preventive detention -Safeguards-Representation
of detents under the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act-Addressed to the Advisory Board-Consideration by
Government independent of Board's consideration-Dual obligation of both the
authorities-mode of address only a matter of form-constitutional guarantee-Mandatory.
Prevention
of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988:
Section 3-Preventive detention-Represenation of detents addressed to Advisory
Board-Consideration by Government independent of Board's consideration-Dual
obligation of both the authorities-Mode of address only a matter of form Constitutional
mandate under article 22(5)-Can't be whittled down.
HEAD NOTE:
The
petitioner's son was arrested on 19.10-1989 on the accusation that he and his
brothers were involved in extensive illicit cultivation of ganja plants in
violation of the provisions of Narcotic Drugs and Psychotropic Substances Act,
1985 (NDPS Act). The Magistrate before whom he was Produced, rejected the bail
application. The Sessions Court granted conditional bail. The detention order
dated 25.1.1990 was served on the detenu on 30.1.1990. The order stated that
though prosecution was likely to be initiated under the NDPS Act, there was every
likelihood of his continuing the cultivation of ganja plants and thus there was
a compelling reason to detain him under the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988. The detenu was informed
of his right to make a representation to the detaining authority, Central
Government and the Central Advisory Board against the detention order. The mode
of representation was also indicated along with the grounds of detention, in
accordance with Article 22(5) of the Constitution of India.
In
accordance with the procedure, the Central Government referred the case to the
Central Advisory Board.
During
the pendency of the reference, the detenu made a representation to the Advisory
Board. The Advisory Board considered the reference along with the detenu's 422
representation and came to the conclusion that there was sufficient cause to
justify his preventive detention.
Thereafter,
the Central Government made an order dated 24.4.1990 confirming its earlier
order and directing his detention for a period of two years.
In the
present Writ Petition, the mother of the detenu prayed for quashing of the
detention order contending that there has been infraction of the guarantee
under Article 22(5) of the Constitution as a result of the Central Government's
omission to consider the representation of the detenu, independent of its
consideration by the Advisory Board. Petitioner also challenged the stand of
the Central Government that there was no obligation on it to consider the
representation of the detenu independently since the same was addressed to the
Advisory Board and not to the Central Government.
Allowing
the Writ Petition, this Court,
HELD:
1. The obligation of the Government to consider the representation is different
and in addition to the obligation of the Advisory Board to consider it at the
time of hearing the reference before giving its opinion to the Government.
Consideration of the representation by the Government has to be uninfluenced by
the view of the Advisory Board. The detenu's right to have the representation
considered by the Government under Article 22(5) of the Constitution is
independent of the consideration of the detenu's case and his representation by
the Advisory Board. [426G-H] K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union
of India and Ors., State of Karnataka and
Ors., JT 1991 (1) SC 216; relied on.
2. Any
representation of the detenu against the order of his detention has to be
considered and decided by the detaining authority, the requirement of its
separate consideration by the Advisory Board being an additional requirement
implied by reading together clauses (4) and (5) of Article 22, even though
express mention in Article 22(5) is only of the detaining authority. The order
of detention is by the detaining authority and so also the order of its
revocation of the representation is accepted, the Advisory Board's role being
merely advisory in nature without the power to make any order itself. It is not
as if there are two separate and distinct provisions for representation to two
different authorities viz., the detaining authority and the Advisory Board,
both having independent power to act on its own. (427G-H; 428A-B] 423
3. It
being settled that this dual obligation flows from Art. 22(5) when only one
representation is made and addressed to the detaining authority, there is no
reason to hold that the detaining authority is relieved of this obligation
merely because the representation is addressed to the Advisory Board instead of
the detaining authority and submitted to the Advisory Board during pendency of
the reference before it. So long as there is a representation made by the detenu
against the order of detention, the dual obligation under Article 22(5) arises
irrespective of the fact whether the representation is addressed to the
detaining authority or to the Advisory Board or to both. The mode of address is
only a matter of form which cannot whittle down the requirement of the Constitutional
mandate in Article 22(5) enacted as one of the safeguards provided to the detenu
in case of preventive detention. [428B-El
4. In
the instant case, there has been a breach by the Central Government of its duty
under Article 22(5) of the Constitution to consider and decide the
representation independently of the Advisory Board's opinion. The order of
detention dated 25.1.1990 as well as the order dated 24.4.1990 of its
confirmation passed by the Central Government are quashed. [428F-G]
ORIGINAL
JURISDICTION: Writ Petition (CRL.) No. 1218 of 1990.
(Under
Article 32 of the Constitution of India).
John
Joseph and T.G.N. Nair for the Petitioner.
A.D. Giri,
Solicitor General, Ashok Bhan, Ms. A. Subhashini and T.T. Kunhikannan for the
Respondents.
The
Judgment of the Court was delivered by VERMA J. This writ petition under
Article 32 of the Constitution of India is by the mother of the detenu Noor
alias Babu to quash the detention order F. No. 801/1/90 PITNDPS dated 25.1.1990
passed under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs
and Psychotropic Substances Act, 1988 (in short 'PIT'NDPS Act') and the order
of confirmation F. No. 801/1/90 PITNDPS dated 24.4.1990 'passed under Section
9(f) read with Section 10(2) of the PITNDPS Act, by the Central Government
directing detention of the detenu for a period of two yeare w.e.f. 30.1.1990.
The only argument advanced in support of this writ petition is infraction of
Article 22(5) of the Con- 424 stitution of India. The facts material for the point raised are stated hereafter.
The detenu
was arrested from his family estate at Kochuveetil House, Kuthugal, Udumpanchola
Taluk, Idikki District, Kerala on 19.10-1989 on the accusation that he and his
brothers were involved in extensive illicit cultivation of ganja plants
(Cannabis Sativa) in violation of the provisions of Narcotic Drugs and
Psychotropic Substances Act, 1985 (in short 'NDPS Act'), He was produced before
the Judicial Magistrate who rejected his bail application. The Sessions Judge
also rejected the bail application once but late, granted conditional bail.
Thereafter, the detention order dated 25.1.1990 was served on the detenu on
30.1.1990. It was stated therein that even though prosecution of the detenu was
likely to be initiated under the NDPS Act, there was likelihood of the detenu
indulging in cultivation and production of narcotic drugs (ganja) on the detenu
being released on bail on account of which there was compelling necessity to
detain him under the PITNDPS Act. The detenu was informed that he had a right
to make representation to the detaining authority, Central Government and the
Central Advisory Board against the detention order. The mode of address of the
representation to the Central Government and the Central Advisory Board was
also indicated in the detention order along with the grounds of detention in
accordance with Article 22(5) of the Constitution of India. The detenu's case
was referred by the Central Government to the Central Advisory Board on
2.3.1990. During pendency of the reference before the Advisory Board, the detenu
made his representation on 24.3.1990 and addressed it to the Advisory Board.
The Advisory Board considered the reference relating to the detenu made by the
Central Government and also the detenu's representation submitted to it. The
Advisory Board, gave the opinion that there was sufficient cause to justify his
preventive detention. The Central Government then made the order dated
24.4.1990 confirming his detention and directed that the detenu Noor alias Babu
be detained for a period of two years w.e.f. 30.1.1990.
It is
admitted that the Advisory Board considered the detenu's representation before
sending its opinion to the Central Government along with the entire record
including the representation submitted by the detenu. It is also admitted that
the Central Government made the order of confirmation dated 24.4.1990 on
receipt of the opinion of the Advisory Board, but there was no independent
consideration of the detenu's representation by the Central Government at any
time. In the counter-affidavit filed initially by Shri A.K. Roy, Under
Secretary to 425 the Government of India, this fact was not clearly stated and,
therefore, we directed an additional affidavit to be filed. In the additional
affidavit filed by Shri A.K. Roy, it has not been disputed that the Central
Government did not at any time consider independently the detenu's
representation addressed to and given to the Advisory Board.
In the
additional affidavit, the stand of the Central Government in this behalf has
been stated thus:
"......
Since the detenu in the present case has not made any representation to the
Central Government, the assertion in para 2 of the grounds of petition that no
opportunity was afforded by the Central Government to the said detenu is
vehemently denied. The question of consideration of a representation and
providing of an opportunity would only arise when a representation is duly made
to the Central Government." On the above facts, the question is: Whether
there has been any infraction of the guarantee under Article 22(5) of the
Constitution as a result of Central Government's omission to consider the detenu's
representation independent of its consideration by the Advisory Board? The
Central Government's stand is that the detenu's representation being addressed
to the Advisory Board to which it was submitted during pendency of the
reference before the Advisory Board, there was no obligation on the Central
Government also to consider the same independently since the representation was
not addressed to the Central Government.
The
Constitutional mandate in Article 22(5) was considered recently by a
Constitution Bench in K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of
India and Ors., State of Karnataka and Ors., JT 1991 (1) SC 216, in view of
some conflict in earlier decisions of this Court regarding the detaining
authority's obligation to consider the detenu's representation independently of
the Advisory Board's duty in this behalf. The Constitution Bench held as follows:
"It
is now beyond the pale of controversy that the constitutional right to make
representation under clause (5) of Article 22 by necessary implication
guarantees the constitutional right to a proper consideration of the
representation.
Secondly,
the obligation of the Government to afford to the detenu an opportunity to make
representation is distinct from the Government's obligation to refer the 426
case of detenu along with the representation to the Advisory Board to enable it
to form its opinion and send a report to the Government. It is implicit in
clauses (4) and (5) of Article 22 that the Government while discharging its
duty to consider the representation, cannot depend upon the views of the Board
on such representation. It has to consider the representation on its own
without being influenced by any such view of the Board. The obligation of the
Government to consider the representation is different from the obligation of
the Board to consider the representation at the time of hearing the references.
The Government considers the representation to ascertain essentially whether
the order is in conformity with the power under the law. The Board, on the
other hand, considers the representation and the case of the detenu to examine
whether there is sufficient case (sic) for detention. The consideration by the
Board is an additional safeguard and not a substitute for consideration of the
representation by the Government. The right to have the representation
considered by the Government, is safeguarded by cl. (5) of Article 22 and it is
independent of the consideration of the detenu's case and his representation by
the Advisory Board under cl. (4) of Art. 22 read with Section 8(c) of the Act.
(See: Sk.
Abdul Karim & Ors. v. State of West Bengal, [ 1969] 1 SCC 433; Pankaj Kumar Chakrabarty & Ors. v. State of West Bengal, [1970]1 SCR 543; Shayamal Chakraborty
v. The Commissioner of Police Calcutta and Anr.,
[ 1969] 2 SCC 426; B. Sundar Rao and Ors. v. State of Orissa, [ 1972] 3 SCC 1 1; John Martin v.
State of West Bengal, [1975] 3 SCR 2 1 1; S. K. Sekawat
v. Stale of West Bengal, [1975] 2 SCR 161 and Haradhan Saha & Anr. v. State
of IVest Bengal and Ors., [1975] 1 SCR 778)."
(emphasis supplied) It is thus clear that the obligation of the Government to
consider the representation is different and in addition to the obligation of
the Board to consider it at the time of hearing the reference before giving its
opinion to the Government. Consideration of the representation by the
Government has to be uninfluenced by the view of the Advisory Board. In short,
the detenu's right to have the representation considered by the Government
under Article 22(5) is independent of the consideration of the detenu's case
and his representation by the Advi- 427 sory Board. This position in law is
also not disputed before us.
The
learned Solicitor General, however, contended that in the present case there
being no representation addressed to the Central Government, the only
representation made by the detenu being addressed to the Advisory Board during pendency
of the reference, there was in fact no representation of the detenu giving rise
to the Central Government's obligation to consider the same. The question is:
Whether this contention can be accepted in the face of the clear mandate in
Article 22(5) of the Constitution? It is undisputed that if there be only one
representation by the detenu addressed to the detaining authority, the
obligation arises under Article 22(5) of its consideration by the detaining
authority independent of the opinion of the Advisory Board in addition to its
consideration by the Advisory Board while giving its opinion. In other words,
one representation of the detenu addressed only to the Central Government and
not also to the Advisory Board does not dispense with the requirement of its
consideration also by the Advisory Board. The question, therefore, is: Whether
one of the requirement of consideration by Government is dispensed with when
the detenu's representation instead of being addressed to the Government or
also to the Government is addressed only to the Advisory Board and submitted to
the Advisory Board instead of the Government? On principle, we find it
difficult to uphold the teamed Solicitor General's contention which would
reduce the duty of the detaining authority from one of substance to mere form.
The nature of duty imposed on the detaining authority under Article 22(5) in
the context of the extraordinary power of preventive detention is sufficient to
indicate that strict compliance is necessary to justify interference with
personal liberty.
It is
more so since the liberty involved is of a person in detention and not of a
free agent. Article 22(5) casts an important duty on the detaining authority to
communicate the grounds of detention to the detenu at the earliest to afford
him the earliest opportunity of making a representation against the detention
order which implies the duty to consider and decide the representation when
made, as soon as possible. Article 22(5) speaks of the detenu's 'representation
against the order', and imposes the obligation on the detaining authority.
Thus, any representation of the detenu against the order of his detention has
to be considered and decided by the detaining authority, the requirement of its
separate consideration by the Advisory Board being an additional requirement
implied by reading together clauses (4) and (5) of Article 22, even though
express mention in Article 22(5) is only of the detain 428 ing authority.
Moreover, the order of detention is by the detaining authority and so also the
order of its revocation if the representation is accepted, the Advisory Board's
role being merely advisory in nature without the power to make any order
itself. It is not as if there are two separate and distinct provisions for
representation to two different authorities viz. the detaining authority and
the Advisory Board, both having independent power to act on its own.
It
being settled that the aforesaid dual obligation of consideration of the detenu's
representation by the Advisory Board and independently by the detaining
authority flows from Article 22(5) when only one representation is made
addressed to the detaining authority, there is no reason to hold that the
detaining authority is relieved of this obligation merely because the
representation is addressed to the Advisory Board instead of the detaining
authority and submitted to the Advisory Board during pendency of the reference
before it. It is difficult to spell out such an inference from the contents of
Article 22(5) in support of the contention of the learned Solicitor General.
The contents of Article 22(5) as well as the nature of duty imposed thereby on
the detaining authority support the view that so long as there is a
representation made by the detenu against the order of detention, the aforesaid
dual obligation under Article 22(5) arises irrespective of the fact whether the
representation is addressed to the detaining authority or to the Advisory Board
or to both. The mode of address is only a matter of form which cannot whittle
down the requirement of the Constitutional mandate in Article 22(5) enacted as
one of the safeguards provided to the detenu in case of preventive detention.
We
are, therefore, unable to accept the only argument advanced by the learned
Solicitor General to support the detention. On this conclusion, it is not
disputed that there has been a breach by the Central Government of its duty
under Article 22(5) of the Constitution of India to consider and decide the
representation independently of the Advisory Board's opinion. The order of
detention dated 25.1.1990 as well as the order dated 24.4.1990 of its
confirmation passed by the Central Government are, therefore, quashed. This
shall not, however, affect the detenu's prosecution for the alleged offence and
it shall also not be construed as a direction to release him in case he is in
custody as a result of refusal of bail. The writ petition is allowed,
accordingly.
G.N.
Petition allowed.
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