TMI Blog1996 (2) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... rately, though on the same date, and they are contained in Annexure 'B'. 3. Petitioner in Writ Petition (Crl.) No. 491/95 is the owner of a godown where 4 barrels containing 800 litres of kerosene meant for distribution to the public under the Public Distribution Scheme were found loaded on an auto-rickshaw. On enquiry made by the staff of the supply Department, it was revealed that those barrels brought. from Shreeji Petroleum Agency, Sarkhej, at the instance of Shri Ishamilbhai who was in possession of the godown and that petitioner was the owner of the auto-rickshaw, Ishamilbhai, on being questioned, have out that kerosene in 4 barrels was loaded at his instance and that he was the tenant of the godown. The grounds contain various other details. Which need not be mentioned here as those details are not relevant to the question on which we intend to dispose of this petition, 4. Petitioner in Writ Petition (Crl.) No. 492/95 carries on business in government foodgrains in a fair price shop. He was to sell the wheat at the concessional rate of Rs. per kg. but when his shop as also the registers and documents contained therein were inspected by the staff of the supply D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfinned the detention order. The file was received back by the Special branch from the concerned Minister and by a letter dated 14.9.1995 detenu was informed about the decision taken on the said file of representation. It is, therefore, submitted from, the above facts that there is no delay whatsoever in disposing the representation made by the wife of the detenu so far as the State Government is concerned, 7. The Central Government, in its first counter affidavit, admitted that the representation dated 2.9.1995 of the petitioner against the order of detention was still pending, though it was received on 4.10.1995 along with the State Government's covering letter dated 27.9.1995. It was indicated that the State Government did not sent its parawise comments in spite of the telegram dated 12.10,95 and the reminder dated 19.10.95. However, in the Additional Affidavit dated 20.11.1995, the Central Government says (through V.K. Jacob, Under Secretary in the Ministry of Civil supplies) that comments from the State Government were received on 6,11.95 and, after due consideration, the representation of the petitioner was rejected on 8.11,95. 8. The reply of the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... telegram date 22.9,95. However in spite of our reminders dated 29.9.95 and 5.10.95 the same were received on 18.10.95. The Central Government therefore, examined the representation on the basis of the facts available with them which are sent by the State Government through Reports/grounds of detention through their letter dated 25.8.95. The representation was rejected on 19.10.95 as there was no specific reasons furnished by the detenu that may warrant the revocation of detention order. The decision of the Central Government was conveyed to Supdt. Central Prison, Sabarmati, Ahmedabad on 19.10.95 by telegram with direction to convey to detenu. The State Government was also informed simultaneously on the same day. 10. Article 22(5) of the Constitution of India provides as under : When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. 11. Sub-section (1) of Section 8 of the Act, inter alia, provides as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of this court in John Martin v. The State of West Bengal, AIR 1975 SC 775. 16. It will be seen that right to represent has been given not only by Article 22(5) of the Constitution but also by Section 8 of the Act, the right provided under the Act has, therefore, to be treated as an extension of the constitutional right already available to a detenu under Article 22(5). The legislature has, in fact, given effect to the constitutional right by providing in Section 8 of the Act that the delenu shall have the right of making a representation to the appropriate government In Amir Shad Khan v. L. Hmingtiana Ors., [199l] 4 SCC 39, this Court, while considering the provisions of the conservation of foreign Exchange and Prevention of Smmoolina Activities act. 1974 abserved as under. This clause casts a dual obligation on the Detaining Authority, namely (i) to communicate to the detenu the grounds on which the detention order has been made; and (ii) to afford to the detenu the earliest opportunity of making a representation against the detention order. Consequently the failure to communicate the grounds promptly or to afford the detenu an opportunity of making a representatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l along from its decision in Sk, Abdul Karim Ors. v. State of West Bengal, [1969] 1 SCC 433; In re : Durga show On., [1970] 3 SCC 696 : Jayanarayan Sukul v. State of West Bengal, [1970] 1 SCC 219; Shait Hanif v. State of West Bengal, [1974] 1 SCC 637; Raisuddin @ Babu Tamchi v. State of U.P. Anr. [1983] 4 SCC 537; Frances Coralie Mullin v. W.C. Khambra Ors., [1980] 2 SCC 275; Mohinuddin Alias Main Master v. District Magistrate, Bead Ors., [1987] 4 SCC 58; Rama Dhondu Board v. V.K. Saraf. Commissioner of Police Ors., [1989] 3. SCC 173; Aslam Ahmed Zahire Ahmed Saik v. Union of India Ors., [1989] 3 SCC 277; Mahesh Kumar Chauhan alias Banti v. Union of India Ors., [1990] 3 SCC 148, right upto its reiteration in Gazi Khan alias Chotia v. Slate of Rajasthan and Anr., [1990]3SCC 459. 19. Almost all these decisions were against considered in State of Tamil Nadu Anr. v. A. Vaidivel Alias Sundaravadivel, JT (1992) 5 SC 318 and above view was reiterated, which was repeated against in K.M. Abdulla Kunhi B.L. Abdul Khader v. Union of India Ors., [1991] 1 SCC 476 and julia Jose Mavli v. Union of India Ors., (1992) Crl. LJ. 109 (SC). 20. In. Mohitiuddin and Ram Dhon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to relate to detention orders. Even if they related to preventive detention, then such of those which were ready for disposal and in respect of which comments from various departments had been gathered and other formalities completed should have been disposed of immediately and should not have been kept pending on the ground of chronological disposal by saying that representations filed earlier by other detenus were still to be disposed of. The chronology must be broken as soon as a representation is ready for disposal. 23. Apart from the above, the representation dated 2.9.95, which was made to the Central Government could not be disposed of for want of comments from the State Government. It will be noticed that this representation was lying with the State Government from 2.9,95 to 27.9.95 and it was on that date that it was sent to the Central Government which received it on 4.10.95. The Central Government, in spite of its telegrams and reminders, was not furnished the comments by the State Government for over a month. The comments of the State Government were received by the Central Government on 6.11.95 and the representation was disposed of on 8.11.95. This again is a gl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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