Case: Pankaj Kumar Chakrabarty And Ors Vs. State Of West Bengal

1. 37 Persons detained under Section 3 (1) (a) (ii) and (iii) read with Section 3 (2) of the Preventive Detention Act, IV of 1950 filed this petition against orders of detention passed against them by the District Magistrates of Howrah, Midnapore and Purulia, West Bengal. We are, however, concerned only with Subodh Chandra Barik and Guhiram Gope, petitioners 15 and 36, as the rest of them have since then been released. The petition came up for hearing on April 11, 1969 before Sikri and Bachawat JJ. who referred it to a larger Bench as the question involved in this petition was of substantial importance. That is how this petition has come up before us for disposal.2. Petitioners in W. P. 448 of 1969, pending in this Court and who are detained under the Jammu and Kashmir Preventive Detention Act, applied for intervention as the point involved in this petition also arises in their petition and that having been allowed, Mr. Garg representing them appeared before us supporting the contentions raised on behalf of petitioners 15 and 36.3. The order of detention against petitioner Barik was passed on March 23, 1968 by the District Magistrate, Midnapore, as he was satisfied that with a view to preventing the petitioner from acting in a manner prejudicial to the maintenance of supplies and services essential to the community it was necessary to detain him. The District Magistrate reported to the State Government his said order on March 27, and the Governor approved the same on April 1, 1968. As required by Section 3 (4) of the Act the Governor reported the case to the Central Government. The petitioner was taken into custody on September 16, 1968 when he was served with the said order and the grounds therefor. His case was placed before the Advisory Board on September 21, 1968 under Section 9 of the Act. On October 21, 1968 the petitioner made his representation against the said order to the State Government. On November 6, 1968 the Advisory Board, after considering his case as also his said representation, gave its opinion that there was sufficient cause for his detention and thereupon the Governor, by his order dated November 11, 1968, confirmed the said order. The petitioner filed a petition in the High Court at Calcutta against the said order but that was dismissed.

Reasoning: 10. It is true that Clause (5) does not in positive language provide as to whom the representation is to be made and by whom, when made, it is to be considered. But the expressions "as soon as may be" and "the earliest opportunity" in that clause clearly indicate that the grounds are to be served and the opportunity to make a representation are provided for to enable the detenu to show that his detention is unwarranted and since no other authority who should consider such representation is mentioned it can only be the detaining authority to whom it is to be made which has to consider it. Though Cl. (5) does not in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make a representation and to consider it when so made whether its order is wrongly or contrary to the law enabling it is detain him. The illustrations given in Sk. Abdul Karims case, W. P. No. 327 of 1968, D/= (AIR 1969 C 1028) (supra) show that Cl. (5) of Article 22 not only contains the obligation of the appropriate Government to furnish the grounds and to give the earliest opportunity to make a representation but also by necessary implication the obligation to consider that representation. Such an obligation is evidently provided for to give an opportunity to the detenu to show and a corresponding opportunity to the appropriate Government to consider any objections against the order which the detenu may raise so that no person is, though error or otherwise, wrongly arrested and detained. If it was intended that such a representation need not be considered by the Government where an Advisory Board is constituted and that representation in such cases is to be considered by the Board and not by the appropriate Government, Clause (5) would not have directed the detaining authority to afford the earliest opportunity to the detenu. In that case the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to make a representation and communicate the same to the Board.But what would happen in cases where the detention is for less than 3 months and there is no necessity of having the opinion of the Board? If counsels contention were to be right the representation in such case would not have to be considered either by the appropriate Government or by the appropriate Government or by the Board and the right of representation and the corresponding obligation of the appropriate Government to give the earliest opportunity to make such representation would be rendered nugatory. In imposing the obligation to afford the opportunity to make a representation Clause (5) does not make any distinction between orders of detention for only 3 months or less and those for a longer duration. The obligation applies to both kinds of orders. The clause does not say that the representation is to be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases.In our view it is clear from Cls. (4) and (5) of Article 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (1) to have his representation irrespective of the length of detention considered by the appropriate Government and (2) to have once again the representation in the light of the circumstances of the case considered by the Board before it gives its opinion.If in the light of that representation the board finds that there is no sufficient cause for detention the Government has to revoke the order of detention and set at liberty the detenu. Thus, whereas the Government considers the representation to ascertain whether the order is in conformity with its power under the relevant law, the Board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention.The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Governments obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain such opinion.This conclusion is strengthened by the other provisions of the Act. In conformity with clause (4) and (5) of Art. 22, Section 7 of the Act enjoins upon the detaining authority to furnish to the detenu grounds of detention within five days from the date of his detention and to afford to the detenu the earliest opportunity to make his representation to the appropriate Government. Section 8 and 9 enjoin upon the appropriate Government to constitute an Advisory Board and to place within 30 days from the date of the detention the grounds for detention, the detenus representation and also the report of the officer where the order of detention is made by an officer and not by the Government. The obligation under Section 7 is quite distinct from that under Section 8 and 9.If the representation was for the consideration not by the Government but by the Board only as contended, there was no necessity to provide that it should be addressed to the Government and not directly to the Board. The Government could not have been intended to be only a transmitting authority nor could it have been contemplated that it should sit tight on that representation and remit it to the Board after it is constituted. The peremptory language in Clause (5) of Article 22 and Section 7 of the Act would not have been necessary if the Board and not the Government had to consider the representation. Section 13 also furnishes an answer to the argument of counsel for the State.Under that section the State Government and the Central Government are empowered to revoke or modify an order of detention. That power is evidently provided for to enable the Government to take appropriate action where on a representation made to it finds that the order in question should be modified or even revoked. Obviously, the intention of Parliament could not have been that the appropriate Government should pass an order under Section 13 without considering the representation which has under Section 7 been addressed to it.For the reasons aforesaid we are in agreement, with the decision in Sk. Abdul Karims case, W. P. No. 327 of 1968, D/= (AIR 1969 SC 1028  ) (supra).Consequently, the petitioner had a constitutional right and there was on the State Government a corresponding constitutional obligation to consider their representation irrespective of whether they were made before or after their cases were referred to the Advisory Board and that not having been done the order of detention against them cannot be sustained.