TMI Blog1969 (11) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent to -show cause as to why the petitioner should not be released. At the conclusion of the hearing of this petition on 15 October, 1969 we directed the release of the petitioner -and stated that the reasons would be given later on. We are stating our reasons for the order. 'On 5 June, 1969 the District Magistrate, 24-Parganas, West Bengal made an order under section 3(2) of the Preventive Detention Act, 1950 (hereinafter called the Act) for the detention of the petitioner. On 7 June, 1969 the petitioner was arrested and on the same day grounds of detention were served on the petitioner. On 9 June, 1969 information was given to the State Government. On 14 June, 1969 the Governor was pleased to approve the order of detention and on the same day the Governor sent the report to the Central Government under section 3(4) of the Act together with the grounds of detention. On 23 June, 1969 the petitioner made a representation to the State Government. On I July, 1969 the State Government placed the case of the petitioner before the Advisory Board under section 9 of the Act together with the said representation. On 13 August, 1969, the Advisory Board after consideration of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Detention Act confers powers on the Central Government or the State Government to make an order for detention of a person. The order of detention can be passed by the District Magistrate or the Additional District Magistrate or the Commissioner of Police or the Collector. When an order is made by any 'of these officers he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds and no such order shall remain in force for more than 12 days after the making of the order unless it is approved by the State Government. The State Government shall, as soon as may be, report the fact to the Central Government. Under section 7 of the Act grounds of order of detention are to be disclosed to the persons affected by the order not later than 5 days from the date of detention and the Act further requires to afford the person affected by the order the earliest opportunity of making a representation against the order to the appropriate Government. In the present petition, we are concerned with the scope and intent of section 7 of the Act in regard to the representation made by the petitioner. Section 8 of the Act contemplates constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Board of the representation of the detenu. In the case of Pankaj Kumar Chakrabarty ([1970] 1 S.C.R.543) this Court observed : The peremptory language in clause 5 of Article 22 of the Constitution and section 7 of the Act would not have been necessary if the Board and not the Government had to consider the representation . There is another reason why the appropriate Government is required to consider on its own the representation of the detenu. If the consideration of the representation of the detenu by the Board sufficed the constitutional guarantee section 7 of the Act would be robbed of its content. In Pankai Kumar Chakrabarty's case this Court emphasised the -aspect that the representation was addressed to the Government and not directly to the Advisory Board and it was for the reason that the appropriate authority was to exercise its opinion and judgment in an independent and honest manner. It, therefore, follows that the appropriate authority is to consider the representation of the detenu uninfluenced by any opinion or consideration of the Advisory Board. In the case of Khairul Haque v. State of West Bengal (W.P. No. 246 of 1969 decided on 10-9-1969) this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representation -of the detenu because -it was felt that there was an apparent conflict between the cases , of Shyamal Chakraborty ([1970] 1 S.C.R. 762 ) and Khairul Haque. In view of the fact that there is a fundamental right of the detenu to have the representation considered by the, appropriate Government such right will be rendered meaningless if the Government will not deal with the matter expeditiously but at its own will and convenience. In the case of Khairul Haque(W.Ps. Nos. 246 f 1969 decided on 10-9-1969) the petitioner made a representation on 23 June, 1969. The Advisory Board made its report on 11 August, 1969. On 12 August, 1969, the Governor confirmed the order of detention. - On 29 August, 1969 the Governor rejected the petitioner's representation. The delay was not explained in the case. The disposal of the representation by the Government after the receipt of the Report of the Advisory Board was found by this Court to raise a doubt there whether the Government considered the representation in an independent manner. This independent consideration by the appropriate Government is implicit in Article 22 of the Constitution. In the case of Durga Show and Ors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, 'the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu'S representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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