Holding

A detention order confirmed without independent consideration of the detainee's representation violates Article 22(5) and must be quashed.

Summary

The petitioner was detained under Section 3(2) of the National Security Act, 1980 and the State Government confirmed the detention after an Advisory Board reported sufficient grounds. The petitioner submitted a representation against the detention, but the State Government waited for the Board's opinion before considering it, resulting in a 24‑day delay. The Supreme Court held that the State Government has a two‑fold duty under Article 22(5) of the Constitution: to consider the detainee's representation independently and to forward it to the Advisory Board. By deferring consideration until after the Board’s report, the State Government violated Article 22(5). Consequently, the order of detention was quashed and the petitioner was ordered to be released. The Court did not examine the other contentions regarding stale grounds or document production.

Issues considered

Whether the State Government's failure to independently consider the detainee's representation before confirming detention violates Article 22(5) of the Constitution.
Whether such a violation renders the order of detention under the National Security Act, 1980 liable to be quashed.

Legislation cited

Constitution of Indias. Art. 22(5)
National Security Act, 1980s. Sec. 10, s. Sec. 12(1), s. Sec. 13, s. Sec. 3(2)

Subjects

preventive detentionArticle 22(5)National Security Actrepresentationadvisory boarddue processlibertyquashing of detention

Judgment

A 836

DR. RAHAMATULLAH

v.

8 STATE OF BlHAR AND ANR.

Septemher 28, 1981

[A.P. SEN AND BAHARUL !SLAM, JJ.J

(' Constitution of India 1950, Art. 22(5) and National Security Act 1980,
S. 3(2)-Preventive Detention-Jlepresenfotion of detenu-Consideration by
Government-Necessity of

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 I, 1981.
D 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 Advi'iiory Board. The Advisory Board by its report
dated June 29, 1981 gave its opinion that there was sufficient ground for deten-
tion. On receipt of the report, the State Government confirmed 1he dete-ntion
ar.d directed detention of lhe petitioner for a period of one year.
E
In the \1/rit petition to this Court it \\'as contended on behalf of the petitioner
that the State Government did not consider the representation submitted by the
petitioner and thereby violated Article 22 (5) of the Constitution.

AII owing the writ petition,

F HELD : l. 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 represen-
taNon which may result in the release of the detenu, and (ii) to constitute a
Board and to communicate the representation of the detenu alongwith other
materials 10 the Board to enable it to form its opinion and to obtain such opi-
nioo. The former is distinct from the latter. As there is a two-fold obligation
G 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]

H Jn the instant case, the State Government did not discharge the first of the
two-fold obligation and waited tiJI 1he receipt of the Advisory Board's opinion.
There v.. as an unexplained period of twenty-four days of non-consideration of the
RAHAMATULLAH 1', BIHAR (Baharul ls/am, J.) 837

representation. This shows there was no independent consideration of the repre. A
sentation 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 (5). The order of detention is therefore, liable to be qua<hed. [84GE-FJ

2. The normal rule of law is tbat whi:n a person con1mits an offence or a
number of offences, he should be prosecuted and punished in ac.:ordance with
the normal appropriate criminal law; but if he is sought to be detained under any B
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 comp.
lied with. This sub-article provides 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, submit-
ted by the detenu is meant for cono;ideration by the Appropriate Authority with-
out any unreasonable delay as it involves the liberty of a citizen guaranteed by
c
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.
D
ORIGINAL JURISDICTION Writ Petition (Crl.) No. 5124 of
1981

(Under Article 32 of the Constitution of India)

R. K. Garg, V. J. Francis and Su nil Kum u Jain for the E
Petitioner.

K.G. Bhagat and D. Goburdhan for the Respondents.

The Judgment of the Court was delivered by
F
BAHARUL ISLAM, J. This is a writ petition under Article 32
of the Constitution by the petitioner who ha> been detained under
Section 3(2) of the National Security Act, 1980 (hereinafter "the
Act"). The facts material for the purp~se of disposal of this
petition and not disputed before us may be stated thus :

The order of detention was passed by the District Magistrate,
G
Dhanbad, Bihar, on April 30, 1981. The grounds of d~te,1ti~n
which were three in number were served on the petitioner on May I,
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
e
under the Act on May 19. The petitioner submitted his represen-
838 SUPREME COURT REPORTS [1982] I S.C.R.

A 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 (I) of Section 12 of the Act confirmed the
B 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
•
c thereby violated Article 22(5) 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 Govern-
ment after office hours on June 29, 1981. The next morning i.e. '
D 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
H 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-affidavit;
F 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 Suprintendent, District Jail, sent it by registered post
G 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 con-
tained certain points which needed a report" from the District
Magistrate. A copy of the representation was sent on June IO, to
H the District Magistrate, Dhanbad, through a Special messenger,
RAHAMATULLAH v. BIHAR (Baharul Islam, J.) 839

for comments, which were received on June 24. The respondents A
explained that since the Advisory Board was going to sit for consi-
deration of the Petitioner's case on June 29, they sent the represen-
tation 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 represen-
8
tation as well as the opinion of the Advisory Board on June 30,
and endorsed the file on July l to the Chief Minister who approved
the detention. But the respondents have not explained their inaction
during (i) the period of five 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
c
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- D
. 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 deten-
. tion 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 (5) of Article 22 reads :

"When any person is detained in pursuance of an
order made under any law providing for preventive deten- F
tion, 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."

G
This Sub-Article provides, inter alia, that the detaining autho-
rity shall as soon as may be communicate the grounds of detention
and shall afford him the earliest opportunity of making a represen-
tation against the order. The opportunity of making a represen-
tation is not for nothing. The representation, if any, submitted by H
the detenu is meant for consideration by the Appropriate Authority
840 SUPREME COURT REPORTS (1982] I s.c.R

A without any unreasonable delay, as it involves the liberty of a citizen
guaranteed by Article 19 of the Constitution. The non-considera- I
tion or an unreasonably belated consideration of the representation
tantamounts to non-compliance of Sub-Article (5) of Article 22 of
the Constitution.

B
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
c 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 \

D again considered by the Government in the light of the circum-
stances of the case considered by the Board for the purpose of
g1vrng its opinion [see 1979(2) SCR 315(1 )] and [ 1970 (I)
SCR 543(') ]

5. In the instant case, the State Government did not dis-
charge the fir st 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 considera-
tion of the representation by the State Government: on the contrary
they deferred its consideration till they received the report of the
F Advisory Board. This is clear non-compliance of Article 22(5) as
interpretted 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
G 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. Jn view

H (1) Narendra Purushotan1 Umrao etc. v. B.B. Gujral and Ors.
(2) Pankaj Kumar Chakraborty and Ors. v. State of West Bengal
RAHAMATULLAH v. BIHAR ( Baharul Islam, J.) 841

of the fact that we are quashing the order of detention on the first A
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.

B
N.V.K. Petition al/owed.