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TMI Blog1969 (11) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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 the materials placed before- it was of the opinion that there was sufficient cause for the detention of the petitioner.. On 19 August, 1969 the State Government is alleged to have rejected the petitioner's representation. By an order dated 26 August, 1969 the Governor was pleased to confirm the order of detention of the petitioner. The only contention on behalf of the petitioner was that though the petitioner made the representation on 23 June, 1969 the Government did not consider the said representation with reasonable and proper expedition. On behalf of the State of West Bengal it was contended first that the matter was referred to the Advisory Board along with the petitioner's representation and the State Government considered the report of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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 of Advisory Boards. Section 9 requires the appropriate Government within 30 days from the date of detention to place the grounds and the representation, if any, before the Advisory Board. The Advisory Board under section 10 is to consider the materials and if the Board considers it essential to hear the person concerned who desires to be heard, the Board will hear the person and make the report. Section I I of the Act states that the Government may confirm the detention order if the Advisory Board gives an opinion to that effect. Under section 13 of the Act the State Government may revoke an order passed by its officers and the Central Government may revoke an order made by the State Government. Counsel on behalf of the State of West Bengal contended that the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 observed that "it is' implicit in the language of Article 22 that the appropriate Government, while discharging its duty to consider the representation cannot depend upon the views of the Board on such representation". The logic behind this proposition is 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. In the case of Shyamal Chakraborty v. The Commissioner of Police, Calcutta & Anr. ([1970] 1 S.C.R. 762) one of the contentions was that the detenu's representation was not considered by the Government. There, the facts were these. The detenu was arrested on 13 November, 1968. On 6 January, 1969 the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (W.Ps. Nos. 198, 205 and 206 of 1969 decided on 2-9- 1969) three petitioners were set at liberty. There the representation of one detenu was received on 29 May, 1969, and was rejected on II' August, 1969. In another case the representation of the detenu was receiver on 18 June. 1969 and was rejected by the Government on 16 August, 1969. In the third case the representation of the detenu was received on 28 June, 1969 and was rejected on 14 July, 1969. In the case of Durga Show and Ors.( W.Ps. Nos. 198, 205 and 206 of 1969 decided on 2-9- 1969) the opinion of this Court in the case of Sk. Abdul karim((1969] 3 S. C. R. 479) was re-stated by emphasising the legal obligation of the appropriate Government to consider the representation of the detenu "as soon as it is received by it". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu. In the present case, the State of West Bengal is guilty of infraction of the constitutional provision not only by inordinate delay of the consideration of the representation but also by putting off the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no explanation for this inordinate delay. The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional, obligation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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