Case: Janendra Nath Roy Vs. State of W.B

the detenu to make a representation protesting against his detention and a corresponding obligation on the Government to consider it and that it was inherent in the language of Art. 22 (5) that facility to make such a representation as early as possible should be furnished to such a detenu and to have that representation considered by the Government and not to shelve it until his case was referred to an Advisory Board. It was in this connection and to emphasise that the obligation of the Government to consider such a representation was independent of and distinct from the duty and function of the Advisory Board to once again consider it and not to shelve it till his case was referred to the Board that the learned Judge made the aforesaid observations. In Jayanarayans case, Ray, J., reviewing the constitutional obligations, both express and inherent, in Art. 22 (5), laid down four propositions. He once again emphasised the consideration of the representation made by a detenu by the State Government and the Advisory Board as two distinct obligations, and brought our clearly the point that a reference to the Board and consideration by it of the detenus representation did not dispense with the obligation of the State Government to consider it independently of its consideration by the Board. It was with a view to emphasis that obligation of the detaining authority and its satisfaction independently of the view on it of the Advisory Board and not to delay its consideration till the case was referred to the Board that observations were made in both the decisions that the Government had to consider the representation before reference was made by it to the Board. In a recent decision in Nagendra Nath Mondal v. State of West Bengal, . Writ Petn. No. 308 of 1971, D/- 13-1-1972 = (reported in AIR 1972 SC 665 ) we explained that it was with reference to such an obligation of the detaining authority as distinct and independent of a similar obligation of the Board that Ray, J., laid down his fourth proposition, and not to prescribe a rule that it must always be considered before the date of the reference to the Board, for if that was so, he would not have also said, as he did at page 231 of the report, that no. time limit can be laid down within which a representation should be dealt with except that it was a constitutional right of a detenu to have his representation considered as expeditiously as possible. If the two decisions were to be understood, as counsel urged us to do, it would be impossible in cases, where a detenu sends his representation late, for the State Government to discharge its function. Such a construction could not have been intended either by Ramaswami, J., or by Ray, J., in the two decisions referred to above. 7. As stated earlier, the petitioner was arrested on April 21, 1971. The State Government received his representation on May 19, 1971, that is to say, one day before the expiry of 30 days from the date of his detention within which the Government had to refer his case to the Advisory Board under Sec. 10 of the Act together with his representation. It is manifest that it was practically impossible for the State Government to properly and bona fide consider that representation and arrive at its decision thereon before it referred the case to the Board. Supposing that instead of the State Government receiving the said representation on May 19, 1971, it had received it a day or two later, the time for referring the case to the Board would have expired and the State Government would have been placed in a quandary, if it were intended that it should consider and come to its decision on the representation before it could refer the petitioners case to the Board. There can be no. doubt, therefore, that the obligation of the Government under Art. 22 (5) spelt out in the decisions of this Court, is that consideration by the State Government of a detenus representation is an obligation distinct from and independent of its consideration by the Board. It need not as a rule be done before the Government refers the detenus case to the Board. Such consideration, however, must be done without any inordinate delay. But each case must depend upon its own facts. And the question whether the obligation by the Government was discharged properly or not and without any inordinate delay has to be decided upon a consideration of such facts. The first contention of counsel cannot, therefore, prevail. 8. The second contention has no. merit. The allegation in the petition that the grounds of detention were motivated is only a bare allegation without its being supported by any facts or particulars. Such an allegation, obviously, could be met only by an equally bare denial which has been done in the counter-affidavit. But counsel contended that the counter-affidavit ought to have been sworn by the District Magistrate himself upon whose satisfaction the impugned order was founded. While there is some force in it, it appears from this petition as well as from other similar petitions which we had recently to deal that the West Bengal Government has given the entire work relating to detention orders to one of its officers, who naturally has to get acquainted with the facts of cases coming to him. The Government, therefore, seems to consider it convenient that that officer, and not the District Magistrate, makes the counter-affidavit. By the time such an affidavit has to be made, the record would have come to the secretariat, and therefore, it has been found more convenient that such an officer, rather than the relevant District Magistrate, should make the affidavit. In these circumstances, it is not possible to say that the objections raised by a detenu in his petition cannot be satisfactorily explained or replied to by the officer entrusted with detention cases.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. In support of his first contention, counsel relied on two decisions of this Court, viz. Abdul Karim v. State of West Bengal, (1969) 3 SCR 479  = (AIR 1969 SC 1028 ) and Jayanarayan Sukul v. State of West Bengal, (1970) 3 SCR 225  = (AIR 1970 SC 675 ).Both these decisions were under the Preventive Detention Act IV of 1950, but the provisions of the present Act being almost similar to those of that Act, the principles laid down in the decisions under the latter Act would undoubtedly applyIf the two decisions were to be understood, as counsel urged us to do, it would be impossible in cases, where a detenu sends his representation late, for the State Government to discharge its function. Such a construction could not have been intended either by Ramaswami, J., or by Ray, J., in the two decisions referred to above7. As stated earlier, the petitioner was arrested on April 21, 1971. The State Government received his representation on May 19, 1971, that is to say, one day before the expiry of 30 days from the date of his detention within which the Government had to refer his case to the Advisory Board under Sec. 10 of the Act together with his representation. It is manifest that it was practically impossible for the State Government to properly and bona fide consider that representation and arrive at its decision thereon before it referred the case to the Board. Supposing that instead of the State Government receiving the said representation on May 19, 1971, it had received it a day or two later, the time for referring the case to the Board would have expired and the State Government would have been placed in a quandary, if it were intended that it should consider and come to its decision on the representation before it could refer the petitioners case to the Board. There can be no. doubt, therefore, that the obligation of the Government under Art. 22 (5) spelt out in the decisions of this Court, is that consideration by the State Government of a detenus representation is an obligation distinct from and independent of its consideration by the Board. It need not as a rule be done before the Government refers the detenus case to the Board. Such consideration, however, must be done without any inordinate delay. But each case must depend upon its own facts. And the question whether the obligation by the Government was discharged properly or not and without any inordinate delay has to be decided upon a consideration of such facts. The first contention of counsel cannot, therefore, prevail8. The second contention has no. merit. The allegation in the petition that the grounds of detention were motivated is only a bare allegation without its being supported by any facts or particulars. Such an allegation, obviously, could be met only by an equally bare denial which has been done in the. But counsel contended that thet ought to have been sworn by the District Magistrate himself upon whose satisfaction the impugned order was founded. While there is some force in it, it appears from this petition as well as from other similar petitions which we had recently to deal that the West Bengal Government has given the entire work relating to detention orders to one of its officers, who naturally has to get acquainted with the facts of cases coming to him. The Government, therefore, seems to consider it convenient that that officer, and not the District Magistrate, makes the. By the time such an affidavit has to be made, the record would have come to the secretariat, and therefore, it has been found more convenient that such an officer, rather than the relevant District Magistrate, should make the affidavit. In these circumstances, it is not possible to say that the objections raised by a detenu in his petition cannot be satisfactorily explained or replied to by the officer entrusted with detention cases.