TMI Blog1972 (7) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... iew to preventing him from acting in any manner prejudicial to the maintenance of public order. The, grounds on which the detention was sought to be justified were dated the same day and appear to have been served on the detenu, though it is not apparent on what date those grounds were served on him. As he was informed by the Government that he has a right to make a representation within a period of 30 days, the petitioner says that he submitted his representation to the State Government on June 19, 1971 but here again there is nothing to show from the counter affidavit of the respondent as to when that representation was received or on that date it was considered and rejected. The petitioner, however, alleges that his representation was di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inability of this petition because according to him the dismissal of the petition of the detenu by the High Court under Art. 226 operates as yes judicata. This contention is opposed to the view taken by this Court. In Ghulam Sarvar v. Union of India and others([1967] 2. S.C.R. 271.) a Constitution Bench held that the order of the High Court does not operate as res judicata. We are not here concerned with the different reasons given, one by Subbarao, C.J. Hidayatullah, Sikri, and Shelat, JJ. and the other by Bachawat, J. for arriving at this conclusion except to state that the majority was of the view that it does not operate as res judicata as it is not a judgment and also because the principle is inapplicable to a fundamentally lawless ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restrict that right to any extent greater than is necessary to effectuate the object of that provision. Clause (5) of Art. 22 prescribes that 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 representation against the order. The words afford him the earlier opportunity in this clause have been interpreted by this Court in Abdul Karim and others v. State of West Bengal([1969] 3 S.C.R. 479.) to imply that the State Government to whom the representation is made should properly consider it as exped ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sory Board. Thirdly, there should not be any delay in the matter of consideration. Though no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration, it has to be remembered that the Government has to be vigilant in the governance of the citizens. The fundamental right of the detenu to have his representation considered by the appropriate Government would be rendered meaningless if the Government does not deal with the matter expeditiously but at its own sweet will and convenience. 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 appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsufficiency of return would entitle this Court to declare the detention as illegal. In view of this implication, a duty is imposed upon the State to justify the detention where it is challenged before a court empowered to determine the legality or otherwise of that detention. The learned advocate on behalf of the State, however, by a reference to a decision of this Court in Arun Kumar Roy Katu v. State of West Bengal (Writ Petition No. 52/1972 to which both of us were parties) contends that Mitter, J. speaking for the Court had observed that where a detenu has not alleged that the representation has not been considered or has been considered but not expeditiously dealt with, it is not incumbent upon the Government to explain the reasons fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reason or the basis on which that representation was rejected. Merely to say that it is rejected does not indicate what is it that weighed with the State Government and what materials were taken into consideration in arriving at that conclusion. This objection suggests that the order rejecting the representation should be a speaking order. In our view it is not necessary in this case to refer to or deal with any of these aspects because the petitioner has specifically given the date of his representation and the date on which he said it was considered and rejected, which on the face of it shows that there has been an inordinate delay which makes it incumbent on the State to explain it and satisfy the Court that there was justificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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