Holding

A prayer for temporary release under Section 15 is not a representation under Article 22(5); hence, delay in its disposal does not violate the constitutional safeguard, and the High Court erred in quashing the detention order.

Summary

The State Government detained Smt. Shaik Hasmath Beebi under Section 3 of the Andhra Pradesh Prevention of Dangerous Activities Act, 1986, and the detention was confirmed by an advisory board. The detenu applied for temporary release under Section 15 of the same Act on 27 April 2000; the application was received on 2 May 2000 and rejected on 19 June 2000. The detenu filed a writ petition alleging that the delay in disposing of the temporary release application violated the constitutional right under Article 22(5) of the Constitution, leading the Andhra Pradesh High Court to quash the detention order. On appeal, the Supreme Court examined whether a request for temporary release under Section 15 constitutes a "representation" under Article 22(5) and whether any delay in its disposal infringes that right. The Court held that a prayer for temporary release is not a representation against the detention order, and therefore a delay does not breach Article 22(5). Consequently, the High Court’s decision was set aside and the detention order upheld, though the period of detention had already expired.

Issues considered

Whether a delay in disposing of an application for temporary release under Section 15 of the Andhra Pradesh Prevention of Dangerous Activities Act, 1986, infringes the detenu's right under Article 22(5) of the Constitution.
Whether a request for temporary release under Section 15 amounts to a "representation" as contemplated by Article 22(5).

Legislation cited

Subjects

preventive detentionArticle 22(5)temporary releaserepresentationdelayconstitutional lawdetention order

Judgment

A THE DISTRICT COLLECTOR AND ORS.
v.
SMT. SHAIK HASMATH BEEBI

APRIL 23, 2001

B [G.B. PATTANAIK AND U.C. BANERJEE, JJ.]

Andhra Pradesh prevention of Dangerous Activities of Bootleggers,
Dacoits, Drug offenders, Goondas, Immoral Traffic Offenders and Land
Grabbers Act, 1986: Sections 3 & 15.
c
Detenu-Application for temporary release-Delay in disposal of-
Ejfect of

Constitution of India, 1950: Article 22(5)

D Preventive Detention-Detention order-Detenu-Application for
temporary release-Delay in disposal of -Held not violative of Article 22
(5).

An order of detention 11assed under section 3 of the Andhra pradesh
E prevention of Dangerous Activities of Bootleggers, Decoits, Drug om~~ders,
Goondas, Iinmoral Traffic offenders and Land Grabbers Act, 1986 was
unsuccessfully challenged before the Andhra pradesh High court. On
27.4.2000, the detenu made an application seeking temporary release under
section 15 of the Act. The said application was received by the state
Government on 2.5.2000 and rejected by it, after getting reports from the
F District collector, on 19.6.2000. Another writ petition was filed in the High
com1 contending that delay in disposal of the application for temporary release
tantamounts to violation of Article 22 (5) of the Constitution. The High court
quashed the order of detention on the' ground that as the representation of
the detenu was not disposed of within a reasonable period the constitutional
right guaranteed to the detenu under Article 22 (5) was infringed.
G
Allowing, the Court appeal

HELD : 1. The High Court committed serious error in setting aside the
order of detention, merely because there had been delay in disposing of the
H application for temporary release, filed by the detenu under section 15 of the
142
DISTT. COLLECTOR v. SHAIK HASMATH BEEB! 143
Act [148-F] A
2. 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
1>reventive detention was to prevent anti-social and subversive elements from B
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 A11icle 22 is one such
safeguard, available to a detenu, who has been detained under a preventive
law. [147-B-D)
c
3. 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. 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 con!.idered and disposed of by the Government
as soon as it is received. The power under section 15 is the power of the D
Government to release a detenu for any specified period with !.11ch 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, que!.1ion of infraction of Article 22(5) does not arise if the prayer of E
the detenu for being temporarily released, is not disposed of immediately and
there is some delay in the dis1rnsal 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 F
22(5). [147-F-G; 147-C-F]

4. 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. (148-G]
G
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
537 of 2001.
From the Judgment and Order dated 19.7.2000 of the Andhra Pradesh
High Court in W.P. No. 9512 of2000.

Guntur Prabhakar for the Appellants. H
144 SUPREME COURT REPORTS [2001] 3 S.C.R.

A M.N. Rao and D. Mahesh Babu for the Respondent.

The Judgment of the court was delivered by

PATTANAIK, J. Leave Granted.

B 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 Bootleggers,
Decoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land
Grabbers Act, 1986, inter alia on the ground that the representation of the
C detenu filed for temporary release under Section 15 of the Act was not
disposed of within a reas~nable 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
D 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
E 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 a·ctivities of the detenu are such that it is necessary to
F 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
G communication of the grounds cf 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
H Government to confirm an order of detention on receipt of the opinion of the
DISTT. COLLECTOR v. SHAIK HASMATH BEEBI [PATTANAIK, I.] 145

Advisory Board that sufficient cause for detention exists. Under Section 13, A
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 B
is quoted herein-below in extenso:

"'Section 15: Temporary release of persons detained :-(I) 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 C
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 D
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 E
in the manner specified in sub- section (3), he shall, on conviction, be
punished with imprisonment for a tem1 which may extend to two years
or with fine, or with both.

(5) If any person released under sub-section (I) fails to fulfil any of
the conditions imposed upon him under the said sub-section or to the F
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 G
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 H
146 SUPREME COURT REPORTS (2001] 3 S.C.R.

A is sufficient cause for the detention of the detenu. The order· of detention, r
thereafter was confirmed by the State Government on lS.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
B 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
C constitutional right under Article 22(5) for delay in disposal of the prayer for
temporary release. The High Court by the impugnedjudgr\ient dated 19.7.2000,
was persuaded to accept the said contention and qlJ~shed the order of
detention and hence the present appeal. ·'
•,.

Mr. Guntur Prabhakar, appearing for the State _bf Andhra Pradesh
D 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
E circumstances of the case, in fact there has been no delay inasmuch as before
considering the application for temporary release, the· ~tate 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· n1atter.

Mr. M.N. Rao, the learned senior counsel appearing for the detenu did
F 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,
G 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. Clauses (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
H issued by a Court, on the allegation or accusation that'tlle arrested person
DISTT. COLLECTOR v. SHAIK HASMATH BEEBI [PATTANAIK, J.] 147
has or is suspected to have committed an act of criminal or quasi-criminal A
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 B
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 ,C
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 has been detained under a preventive law. Article 22(5) of the
Constitution is extracted herein-below in exienso: D
"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 pers.on the E
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 F
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
G'
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 H
148 SUPREME COURT REPORTS (2001] 3 S.C.R.

A bad. In other word,s, 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
-
I

detention or when the detenu approaches the authority for revoking an order
B 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
C 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
D 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
E released, should be disposed of within a reasonable time but delay on the part
o_f 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 come to the conclusion that the High Court committed
serious error in setting aside the order of detention, merely because there had
F . 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
G order.
T.N.A. Appeal allowed.