No 85 of 1972
Under Article 32 of the Constitution of India for a writ in the nature of habeas corpus
section L Chhibber for the peitioner
G section Chatterjee for the respondent
The Judgment of the Court was delivered by Khanna J
An order was made by the District Magistrate Burdwan on February 10 1971 under section 3 of the West Bengal Prevention of Violent Activities Act 1970 President s Act No 19 of 1970 for the detention of Abdus Sukkur with 681 a view to preventing him from acting in any manner prejudicial to the maintenance of public order
In pursuance of that order Abdus Sukkur was arrested on September 24 1971
Abdus Sukkur thereupon filed the present petition through jail under article 32 of the Constitution to challenge his detention
Mr Chibber argued the case amicus curiae on behalf of the petitioner while the State of West Bengal was represented by Mr Chatterjee
After hearing the learned counsel on May 24 1972 1 ordered that for reasons to be given later the petitioner be set at liberty
I now proceed to set out those reasons
The order for the detention of the petitioner as mentioned earlier was made by the District Magistrate on February 10 1971
The petitioner it is stated was found to be absconding after the making of that order and he was arrested on September 24 1971
He was then served with the order of detention along with the ground of detention together with vernacular translation thereof
In the meanwhile on February 10 1971 the District Magistrate sent report to the State Government about the making of the detention order along with necessary particulars
The State Government approved the detention order on February 18 1971
The case of the petitioner was placed on October 23 1971 by the State Government before the Advisory Board
On October 28 1971 the State Government received a representation from the petitioner against his detention
The said representation was considered by the State Government and was rejected on November 24 197 1
The representation was thereafter sent to the Advisory Board
The Advisory Board after considering the material placed before it and after hearing the petitioner in person sent its report to the State Government on November 26 1971
Opinion was expressed by the Advisory Board that there was sufficient cause for the detention of the petioner
The State Government confirmed the order for the detention of the petitioner on December 1 1971
It would appear from the above that though the representation made by the petitioner against his detention was received by the  State Government on October 28 1971 the said Government considered the representation and rejected it on November 24 197 1
There thus elapsed a period of 27 days between the receipt of the representation and its consideration and rejection by the State Government
As the above delay in considering and rejecting the representation had not been explained in the affidavit which was initially filed in
opposition to the petition on behalf of the State Government this Court adjourned the matter on May 5 1972 to enable the State Government to file an additional affidavit
When the case was taken up thereafter on May 24 1972 Mr Chatterjee
152SupCI73 682 learned counsel for the State stated that no additional affidavit was to be filed on behalf of the State
It would thus follow that The delay on the part of the State Government in considering the representation of the petitioner has remained unexplained
This unexplained delay in my opinion is sufficient to invalidate the detention of the petitioner
According to clause 5 of article 22 of the Constitution 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
The fact that earliest opportunity has to be afforded to the detents for making a representation against the detention order necessarily implies that as and when the representation is made it should be dealt with promptly
Undue delay on the part of the detaining authority in disposing of the said representation would run counter to the underlying object of clause 5 of article 22
The requirement about the giving of earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if tie authority concerned after giving such an opportunity pays no prompt attention to the representation which is submitted by the detenu as a result of that opportunity
It is therefore essential that there should be no undue or unexplained delay on the part of the detaining authority in disposing of the representation made by the detenu against the detention order
In case the authority concerned is guilty of such delay the detention would be  liable to be assailed on the ground of infraction of article 225 of the Constitution
This is as it should be because the matter relates to the liberty of a subject who has been ordered to be detained without recourse to a regular trial in a court of law
The authority concerned has therefore to proceed strictly in accordance with law and any deviation from compliance with legal requirement cannot be countenanced
It has accordingly been laid down in a string of authorities that undue or unexplained delay in the disposal of the representation of the detenu against the detention order would introduce a serious infirmity in the detention
In the case of Javanaravan Sukul vs State of West Bengal1 the Constitution Bench of this Court
laid stress on the imperative necessity of the consideration of the representation made by a detenu by the Government as early as possible
It was observed It is established beyond any measure of doubt that the appropriate authority is bound to consider the repre 1  683 sensation of the detenu as early as possible
The appropriate
Government itself is bound to consider the representation as expeditiously as possible
 The reason for im mediate consideration of the representation is too obvious to be stressed
The personal liberty of a person is at stake
Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities
No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of adetenu to have his representation considered as expeditiously as possible
 The detenu in that case made a representation to the State Government on June 23 1969 and the same was rejected by the State Government on August 9 1969
It was held that the Government was guilty of the infraction of the constitutional provision because of inordinate delay in considering the representation
The petitioner was accordingly set at liberty
Reliance in the case of Jayanarayan Sukul vs State of West Bengal supra was placed upon an earlier decision of this Court in the case of Khairul Haque vs State of West Bengal W P No 246 of 1969 decided on September 10 1969
In that case this Court held that article 225 of the Constitution envisaged a dual obligation of the Government and a corresponding dual right in favour of a detenu namely 1 to have his representation independently considered by the Government and 2 to have that representation in the light of the facts and circumstances of the case considered by an Advisory Board
It was observed that the said provision enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation
This fact in the opinion of the Court necessarily implied that such a representation must when made be considered and disposed of as expeditiously as possible for otherwise the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning In Prof K L Singh vs State of Manipur1 this Court held that an unexplained delay of 17 days was enough to render the detention illegal
In Baidya Nath Chunkar vs State of West Bengal WP No 377 of 1971 decided on March 14 1972 unexplained delay of 29 days in considering the representation was held to have vitiated the detention of the 1  684 detenu
The different cases mentioned above were referred to by this Court in the case of Kant Lai Bose vs State of West Bengal WP No 8 of 1972 decided on May 5 1972 and it was held that unexplained delay of 28 days in considering the detenu s representation would invalidate his detention
I therefore accept the petition and make the rule absolute
VPS Petition allowed


Summary:
In pursuance of detention order under section 3 of the West Bengal Prevevenion of Violent Activities Act 1970 the petitioner was arrested
The State Government received a representation from the petitioner against his detention which was rejected by the St ate Government 27 days after the receipt of the representation
The delay in considering the representation of the petitioner was not explained
Allowing the petition under article 32 HELD  According to article 225 of the Constitution 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 earlier opportunity if making a representation against the order
The fact that the earliest opportunity has to be afforded to the detenu for making a representation necessarily implies that as and when the representation is made it should be dealt with promptly
Otherwise the requirement would be reduced to a farce and empty formality
In case the authority concerned is guilty of unexplained delay in dealing with the representation the detention
would be liable to be assailed and declared unvalid on the ground of interaction of article 225 of the Constitution
This is as it should be because the matter relates to the liberty of a subject who has been ordered to be detained without recourse to a regular trial in a court of law
682B F Jayanarayan Suku vs State of West Bengal 1970 3 SCR 225 Xhairul Haque vs State of West Bengal WP No 246 of 1969 decided on September 10 1969 Prof K L Singh vs State of Manipur   Baidya Nath Chunkar vs State of West Bengal WP No 377 of 1971 decided on March 14 1972 Kanti Lal Bros vs State of West Bengal
WP No 8 of 1972 decided on May 5 1972 followed