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TMI Blog1969 (5) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 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 s. 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 S. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the cases of the two Petitioners were referred to the board and the Government felt that it should not interfere with the decision of the Board by expressing its own views one way or the other on those representations. The Stand taken before us by counsel for the State was that neither Art. 22, cls. 4 and 5, nor 'any of the provisions of the Act made it mandatory either expressly or by necessary implication for the State Government to consider the representations and that it was sufficient for the Government to pass them on to the Board for its consideration while viewing the case of the two detenues. Counsel argued that the decision in Sk. Abdul Karim & Ors. v. State of West Bengal ([1969] 3 S.C.R. 49) which has held that there was a legal obligation on the appropriate Government to consider the representation of a detenue besides constituting an advisory board and referring to such board the case of such a detenue for its opinion was not warranted by the provisions of Art. 22 or the provisions of the Act and that in any event according to that decision consideration of such a representation by the appropriate Government was obligatory only where it was made before and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should make provisions relating to preventive detention immediately next after Art. 21. That appears to have been done because the Constitution recognizes the necessity of preventive detention on extraordinary occasions when control over public order, security of the country etc. are in danger of a breakdown. But while recognizing the need of preventive, detention without recourse to the normal procedure according to. law, it provides at the same time certain restrictions on the, power of detention both legislative and executive which it considers as minimum safeguards to ensure that the power of such detention is not illegitimately or arbitrarily used. The power of preventive detention is thus acquiesced in by the Constitution as a necessary evil and is, therefore, hedged in by diverse procedural safeguards to minimise as much as possible the danger of its misuse. It is for this reason that Art. 22 has been given a place in the Chapter on guaranteed rights. Clause 1 of Art. 22 guarantees to a detenue the right to be informed as soon as possible of the grounds for his detention and the right to consult and of being defended by a legal practitioner of his choice. Clause 2 imposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, to the safeguards and restrictions provided in these clauses. The grounds for detention are to be served on the detenue as soon as may be and the earliest opportunity to make a representation against the order is to be given to him to enable him to protest against the order that he is either wrongly or illegally detained. It is true that cl. 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 detenue 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 detenue the earliest opportunity to make a representation and to consider it when so made whether its order is wrongful or contrary to the law e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate Government and (2) to have once again that 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 detenue. 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 detenue the opportunity to make a representation and to consider that representation is distinct from the Government's 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 cls. 4 and 5 of Art. 22, S. 7 of the Act enjoins upon the detaining authority to furnish to the detenue .grounds of detent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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