TMI Blog2019 (3) TMI 1997X X X X Extracts X X X X X X X X Extracts X X X X ..... on 17/11/2018 and it was kept pending till the receipt of the report of the Advisory Board which was received only on 04/12/2018. The representation, thereafter, was rejected on 04/12/2018 as on the same day, the order of detention was also confirmed - One of the major requirements of Article 22(5) is that the detenu must be afforded the earliest opportunity of making a representation against the order. This requirement will not be effective if such a representation is not decided at the earliest. Affording the detenu the earliest opportunity of making a representation is meaningless unless such representation is considered and decided at the earliest. In the instant case, admittedly, the representation was received by the State Government on 17/11/2018 and was decided only on 04/12/2018. It was kept pending for receipt of report of the Advisory Board. This course of inaction was directly contrary to the letter and spirit of Article 22(5) of the Constitution of India. In the instant case, there is clear violation of the constitutional rights of the Petitioner - the detention order is liable to be set aside. The detention order passed by the Respondent No.1 and confirmed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph 4.5, there is a reference to C.R.No. 548 of 2018 registered as Chaithanyapuri Police Station, Rachakonda, Telangana State. However, ground 4.6 categorically mentions that the present detention order was not based on all these offences and preventive actions. 4. Paragraph 5 of the grounds of detention mentions the activities on which the detention order was passed. Ground 5.1 gives details of C.R.No.256 of 2018 registered at Jail Road Police Station, Solapur, under Sections 306, 384 and 386 read with 34 of the Indian Penal Code and under Sections 39, 41 and 45 of The Maharashtra Money Lending (Regulation) Act, 2014. The said offence was registered on 21/05/2018. Paragraph 5.3, 5.4 and 5.5 refer to the statements of witnesses 'A', 'B' and 'C' recorded in camera in respect of the incidents which had allegedly taken place in the second week of May 2018, second week of June 2018 and last week of June 2018 respectively. 5. Paragraph 6 of the grounds of detention categorically mentions that the Respondent No.1 had gone through the C.R.No.256 of 2018 registered at Jail Road Police Station, Solapur, as well as the 3 in camera statements and was sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.Tripathi mainly relied on the ground that the Petitioner's representation was not considered by the State Government expeditiously thereby infringing his fundamental right guaranteed under Article 22(5) of the Constitution of India. Therefore, according to Ms. Tripathi, the detention order was vitiated and was liable to be set aside. Since we find sufficient force in this argument for setting aside the detention order, we are dealing only with this ground for arriving at a decision in this Petition. 9. In connection with the afore mentioned ground, a few dates are relevant. These dates are mentioned in the Petition and the Affidavit in Reply, which is filed on behalf of the Respondent No.2 State of Maharashtra. The detention order was passed on 30/10/2018. The Petitioner was detained on 30/10/2018. The order was approved by the Government on 02/11/2018. Reference was made to the Advisory Board on 02/11/2018. The Advisory Board held its meeting on 29/11/2018. The report of the Advisory Board was received on 04/12/2018. The order of detention was confirmed by the Government on 04/12/2018. In the meantime, the Petitioner made a representation to the Government. The repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appropriate authority. The obligation of the appropriate authority to consider the representation was entirely independent of any action of the Advisory Board or any consideration of the representation by the Advisory Board. It was also observed that since the representation was addressed to the Government and not directly to the Advisory Board, the appropriate authority was required to exercise its judgment in an independent and honest manner. After considering all these principles, the Constitution Bench, in paragraph 20 of the said Judgment, summarized its views as follows : 20. Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judgment also, the Hon'ble Supreme Court has held that there was no reason for the detaining authority to have deferred its decision on the representation till the receipt of the opinion of the Advisory Board. 13. Nafisa's case (supra) was followed by a Division Bench of this Court in the case of Chanda Birju Garunge Vs. State of Maharashtra and Ors. reported in 2015 (4) Bom. C. R. (Cri.) 219. It was observed by this Court that the constitutional rights of the detenu were violated as the representation made by him was kept pending till confirmation of the order of the preventive detention by the State Government. 14. Mrs. Mhatre, learned APP, on the other hand, submitted that once the detenu's case was referred to the Advisory Board, the State Government could not have considered any representation made by the detenu, which was received by the State Government after such reference to the Advisory Board. She submitted that such representation could only be considered after the receipt of the opinion of the Advisory Board. In support of her contention, she relied on the Judgment of the Constitution Bench of the Hon'ble Supreme Court in the case of K. M. Ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as early as possible. Mrs. Mhatre particularly invited our attention to the observation that the representation could be received after the case of the detenu was referred to the Board. In this situation, the representation should be forwarded to the Advisory Board provided the Board had not concluded the proceedings. In this situation, there was no question of consideration of the representation before the receipt of the report of the Advisory Board. It was further observed that it could not be said that the Government had delayed consideration of the representation unnecessarily, awaiting report of the board and that it was proper for the Government in such situation to await the report of the board. 15. To counter this argument Ms. Tripathi relied on the Judgment of another Constitution Bench of the Hon ble Supreme Court in the case of Hardhan Saha Vs. The State of West Bengal and Others as reported in (1975) 3 Supreme Court Cases 198 as well as on other judgments of the Hon'ble Supreme Court in the cases of (i) Smt. Gracy Vs. State of Karnataka and Another, as reported in (1991) 2 Supreme Court Cases 1 and (ii) Moosa Husein Sanghar Vs. State of Gujarat and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration of the representation by the Government. The right to have the representation considered by the Government, is safeguarded by Clause (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under Clause (4) of Article 22 read with Section 8(c) of the Act. (See: Sk. Abdul Karim Vs. State of W.B. [(1969) 1 SCC 433] , Pankaj Kumar Chakrabarty Vs. State of W.B. [(1969) 3 SCC 400 : (1970) 1 SCR 543] , Shayamal Chakraborty Vs. Commissioner of Police, Calcutta [(1969) 2 SCC 426] , B. Sundar Rao v. State of Orissa [(1972) 3 SCC 11] , John Matrin v. State of W.B. [(1975) 3 SCC 836 : 1975 SCC (Cri) 255 : (1975) 3 SCR 211] , S. K. Sekawat v. State of W.B. [(1975) 3 SCC 249 : 1974 SCC (Cri) 867 : (975) 2 SCR 161] and Haradhan Saha Vs. State of W.B. [(1975) 3 SCC 198 : 1974 SCC (Cri) 816 : (1975) 1 SCR 778] 12. The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution. Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible. It is a constitutional mandate com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such representation . The logic behind this propositions that the Government should immediately consider the representation of the detenu before sending the matter to the Advisory Board and further that such action will then have the real flavour of independent judgment. Hence, paragraph 16 of K.M. Abdulla's case (supra) cannot be read in isolation without making reference to the paragraphs 11, 12 and 13 of the said Judgment. 18. In Hardhan Saha's case (supra), an earlier Constitution Bench of the Hon ble Supreme Court considered the provisions of Maintenance of Internal Security Act, 1971 and its constitutional validity. While considering other aspects, the Constitution Bench made observations in respect of different nature of consideration of the detenu's representation by the Government and the Advisory Board. In paragraph 24 of the said Judgment, it was observed that the Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law and the Board, on the other hand, considers whether in the light of the representation there is sufficient cause for detention. Paragraph 29 of Hardha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the detenu pending till such time, as was done in the instant case before us. 21. In Moosa case (supra), reference was made to the Judgments in the cases of Gracy (supra), Jaynarayan Sukul (supra), K. M. Abdulla Kunhi's case (supra) as well as Hardhan Saha's case (supra). In paragraph No.8 of Moosa s (supra) case Hon ble Supreme Court observed thus : 8. Having regard to the importance of the safeguard of a representation under Article 22(5) for protection of the right to personal liberty guaranteed under Article 21 of the Constitution, this Court has repeatedly emphasised the need for expeditious consideration of the representation submitted by a detenu and has insisted that the representation must be disposed of with a sense or urgency without avoidable delay. The appropriate Government would not be justified in postponing the consideration of the representation while the matter is pending consideration before the Advisory Board because the obligation of the Government to consider the representation is different from that of the Advisory Board. This Judgment, in our view, settles the issue and answers the questions raised by Mrs. Mhatre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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