TMI Blog1991 (2) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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. - 1218 of 1990 - - - Dated:- 15-2-1991 - B.C. Ray, L.M. Sharma J.S. Verma, J.J. REPRESENTED BY : Mr. John Joseph and Mr. T.G.N. Nair, Advs., for the Petitioner. Mr. A.D. Giri, Solicitor General, Mr. Ashok Bhan, Ms. A. Subhashini and Mr. T.T. Kunhikannan, Advs. with him, for the Respondents. [Order per : J.S. Verma, J.]. This writ petition under Article 32 of the Constitution of India is by the mother of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugs (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 22(5) of the Constitution of India. The detenu s case was referred by the Central Government to the Central Advisory Board on 2-3-1990. During pendency of the reference before the Advisory Board, the detenu made his representation on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ..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. 4. On the above facts, the question is : Whether there has been any infraction of the guarantee under Article 22(5) 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 represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 22(5) of the Constitution? 8. It is undisputed that if there be only one representation by the detenu addressed to the detaining authority, the obligation arises under Article 22(5) 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 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional requirement implied by reading together Clauses (4) and (5) of Article 22, even though express mention in Article 22(5) is only of the detaining 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 ind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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