tition CRL No 1218 of 1990
Under Article 32 of the Constitution of India
John Joseph and TGN Nair for the Petitioner
AD Giri Solicitor General Ashok Bhan Ms A Subhashini and TT 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 801190 PITNDPS dated 2511990 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 801190 PITNDPS dated 2441990 passed under Section 9f read with Section 102 of the PITNDPS Act by the Central Government directing detention of the detenu for a period of two yeare wef 3011990
The only argument advanced in support of this writ petition is infraction of Article 225 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 1910 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 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 2511990 was served on the detenu on 3011990
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 225 of the Constitution of India
The detenu s case was referred by the Central Government to the Central Advisory Board on 231990
During pendency of the reference before the Advisory Board the detenu made his representation on 2431990 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 2441990 confirming his detention and directed that the detenu Noor alias Babu be detained for a period of two years wef 3011990
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 2441990 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 AK 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 AK 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 225 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 225 was considered recently by a Constitution Bench in KM Abdulla Kunhi and BL Abdul Khader vs Union of India and Ors State of Karnataka and Ors JT  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 article 22 read with Section 8c of the Act
See Sk
Abdul Karim  Ors
vs State of West Bengal    Pankaj Kumar Chakrabarty  Ors
vs State of West Bengal 19701 SCR 543 Shayamal Chakraborty vs The Commissioner of Police Calcutta and Anr    B Sundar Rao and Ors
vs State of Orissa  1 John Martin vs State of West Bengal 1 1 section K Sekawat vs Stale of West Bengal  and Haradhan Saha  Anr
vs State of IVest Bengal and Ors
  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 225 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 225 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 225 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 225 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 225 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 225 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 225 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 225 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 225 in support of the contention of the learned Solicitor General
The contents of Article 225 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 225 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 225 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 225 of the Constitution of India to consider and decide the representation independently of the Advisory Board s opinion
The order of detention dated 2511990 as well as the order dated 2441990 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
GN Petition allowed


Summary:
The appellant has been convicted under Section 30234 Indian Penal Code by the high Court for the murder of one Nagji with whom he had strained relations
According to the prosecution there was bad blood between the family of the appellant and the deceased and there have incidents in the past the last being the murder of two sons of the appellant and inflicting of grievous injuries on the third son by the deceased in which case the deceased and his companions were acquitted
The appellant was keen to avenge the deaths of his sons and with that end in view on 25th Septemeber 1970 he along with three others duly armed with guns and sticks attacked the deceased Negji while he along with his son PW4 was working in his field
The deceased Negji raised an alarm which attacted the attention of PW 1 and PW 3 who were working in the adjacent field
They reached the spot and withnessed the incdent
On thier raising hue and cry the appellant and his companions fled away PW 4 had run away frightened when a shot was fired at him
The deceased Nagaji received serious injuries on the head and his leg was cut into two peices
PWs 1 and 3 went in search of PW 4 and on the way met two police constables PW 8 and PW 10 to whom they narrated the whole incident and disclosed the names of the assailants
The deceased passed away when his body was being taken to the police station
The postmortem examination was performed on the 27th at 7 am
The appellant was put up for trial as others were abscondng
The learned trial Judge n appreciation of the prosecution evidence held that having regard to the long standing enmity between the two families it was hazardous to place implict reliance on the interested testimony of PWs 13 and 4 more so because their testimony was not corroborated in material particulars by independent evidence
The Trial Judge applying the rule of prudence did not convict the appellant on uncorroborated evidence of interest withnesses and accordigly acquitted the appellant
The State preferred an appeal to the 456 High Court
The High Court held that although the three prosecution witnesses were closely related to the deceased their evidence could not be discards solely on the ground they were interested and partisan witnesses
The High Court found their evidence duly corroborated and therefore reversed and order of acquittal and convicted the appellant under Section 30234 IPC
In this appeal the appellant had challenged his conviction
Apart from the question of appraisal of evidencethe appellants has placed strong reliance on the testimony of PW 2 Dr Sharma and argued for the first time in the Court that his testimony shws that the death must have taken place long before 25the September 1970 there being blisters containing reddish fluid all over the body
Dismissing the appeal this Court HELD Death had occurred on 25th September 1970 and the dead body law in the police station with the wounds exposed till it was brought to the hospital at 520 pm on the next day
The body remained in the same condition in the hospital till 700 am on the next day when the post mortem examination was undertaken
The body thus remained fully exposed to the heat and humidity of the month of September for over thirty hours and hence it is not surprising that the rigor mortis had passed off
Ordinarily after rigor mortis has passed off the process of putrefaction sets in but it may set in even earlier during summer depending on the heat and humidity462A C The evidence establishes the chain of events showing the movement of the dead body and rules out the theory that death had taken place many days before 25th September 1970 a theory not put to the witnesses in corss examination462H 463 Blisters appear after the process of decomposition sets in within eighteen to forty eight hours
It shows that the existence of blisters does not mean that death had taken 14 to 20 days ago464B