TMI Blog1969 (5) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... ained under S. 3(1)(a)(ii) and (iii) read with s. 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. Petitioners in W. P. 448 of 1969, pending in this Court and who are detained under the Jammu 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of the scarcity conditions prevailing in the State, were indulging in illegitimate procuring, holding and disposing of food grains thereby defeating the policy of and the various control orders passed in that behalf by the State Government. We may also notice that the grounds supplied to the petitioners also stated that the petitioners may make a representation to the State Government as early as possible and that such representation should be addressed to the officer specified therein. It is an admitted fact that though the grounds furnished to the. detenues stated that they might, if they so desired, make a representation to the State Government, the State Government did not consider the representations and merely passed them on to, the Advisory Board for its consideration. Presumably that was done as the representations were made after 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional right to make a representation guaranteed by Art. 22(5) includes by necessary implication the constitutional right to a consideration of the representation by the detaining authority to whom it is made and repelled the contention that once an advisory board was constituted for the consideration of the detenue's case it was enough if the State Government were to send the representation -to the board for consideration without itself considering it. 'Me learned Judges there gave several illustrations to show that such a contention was not only incorrect but would defeat the provisions of Art. 22(4) and (5) and those of the Act. Article 21 guarantees protection against deprivation of personal liberty save that in accordance with the procedure established by law. At first sight it would appear somewhat strange that the Constitution 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detaining authority the obligation to furnish to the detenue as soon as may be the grounds for his detention, the, obligation to afford him the earliest opportunity of making a representation against the order and the- obligation to constitute an advisory board and not to keep the detenue in detention for a period longer than 3 months unless before the expiry of that period it has obtained the opinion of the board that there is sufficient cause for such detention except in cases prescribed in a Parliament Act passed under and by virtue of cl. 7. The reason for the expressions as soon as may be for furnishing the grounds and the earliest opportunity for making a representation in these clauses is the extreme anxiety of the Constitution to see that no person is detained contrary to the law enabling preventive detention or in breach of or countrary, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 cl. 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 later class of cases. In our view it is clear from cls. 4 and 5 of Art. 22 that there is a dual obligation on the appropriate Government and a ,dual right in favour of the detenue, namely, (1) to have his representation irrespective of the length of detention considered by the appropriate 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 liber ..... X X X X Extracts X X X X X X X X Extracts X X X X
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