TMI Blog1985 (5) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... of the detenu-respondent had not been placed before the Advisory Board within three weeks as required by s. 10 of the Act and such violation vitiated the continued detention of the respondent. It also found that the Advisory Board had not considered the documentary evidence produced by the detenu and the opinion formed by the Board that the respondent should be detained was, therefore, not an appropriate one. The Court took the view that the materials in the record which had been considered by the Advisory Board in formulating its recommendation to the State Government had not been transmitted to the Government and the same was not available before the State Government when it made the order of confirmation. The Court was also of the further view that the contents of the intelligence reports referred to in the grounds of detention had not been supplied to the detenu and he had, therefore, been deprived of the opportunity of making an effective representation against his detention. On these findings the High Court held that the detention of the respondent cannot be upheld and the order of detention dated August 14, 1984, and the subsequent order dated October 22, 1984, directing him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation had been made by the detenu and, therefore, there was no occasion for causing that also to be placed before the Board. The respondent made a representation on August 28, 1984, which was received by the Superintendent of the Central Jail where the detenu had been lodged and the same was received by the State Government on August 30, 1984. There is no dispute that the representation was placed before the Advisory Board on September 6, 1984. As far as relevant, s. 10 of the Act provides: ...in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order .. It is the contention of the respondent that his representation against the detention has been placed before the Advisory Board a day too late inasmuch as while s. 10 requires the placing to be done within three weeks from the date of detention, the representation has been placed before the Advisory Board on the 22nd day. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Board. A day's delay in such process cannot indeed be taken to be fatal so as to warrant the quashing of the detention. A Constitution Bench in A. K. Roy etc. v. Union of India Anr.,(1) has upheld the vires of the Act. It was pointed out in Ichhu Devi Choraria v. Union of India Ors. that the burden of showing that the detention is in accordance with the procedure established by law has always been placed by this Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law. This constitutional right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the Court that it has acted in accordance with the law. This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 of the Act emphasis has to be laid on making of the reference and forwarding of the grounds of detention, and the placing of the representation has to be judged on different basis. We may not be understood to be of the view that it is open to the appropriate Government to withhold the placement of the representation unduly or indefinitely. When the reference is received and the grounds of detention are available, the Board proceeds to fix a date of hearing for consideration of the justification of detention. The procedure of the Advisory Board contained in s. 11 of the Act indicates that the Board is to consider the materials placed before it and is entitled to call for such information as it may deem necessary from the appropriate Government or from any other person concerned and after hearing the detenu, if he wants to be heard in person, has to report to the appropriate Government within seven weeks from the date of detention in the manner indicatad in the remaining sub-sections of that section. While dealing with this aspect of the matter it is to be borne in mind that s. 10 requires the reference to be placed before the Board within three weeks and s. 11 requires the report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that the time taken by the State Government can amount to withholding of the representation which resulted in non-compliance of s. 10 of the Act so as to vitiate the detention. It is useful to refer to a paragraph from a judgment of this Court in Frances Corolie Mullin v. W. C. Khambra Ors,(1) while we are on this point. A Division Bench was dealing with a COFEPOSA detention. Section 8 of the COFEPOSA requires the appropriate Government to make a reference to the Board within five weeks from the date of detention. While dealing with an argument referring to this aspect of the matter, the Court observed: The four principles enunciated by the Court in Jayanarayan Sukul v. State of West Bengal [1970] 3 SCR 225, as well as other principles enunciated in other cases, an analysis will show, are aimed at shielding personal freedom against indifference, insensibility, routine and red-tape and thus to secure to the detenu the right to make an effective representation. We agree: (1) the detaining authority must provide the detenu a very early opportunity to make a representation, (2) the detaining authority must consider the representation as soon as possible, and this, preferably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of each case; if on such examination it is found that there was any remissness, indifference or avoidable delay on the part of the detaining authority/State Government in dealing with the representation, the Court will undoubtedly treat it as a factor vitiating the continued detention of the detenu; on the other hand, if the Court is satisfied that the delay was occasioned not by any lack of diligence or promptness of attention on the part of the party concerned, but due to unavoidable circumstances or reasons entirely beyond his control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention... We agree with the principle indicated above and in our opinion, in the facts of the present case, it cannot be said that there has been any negligence or remissness on the part of the State Government in dealing with the representation of the detenu or in the matter of causing the same to be placed before the Advisory Board. We are impressed by the fact that no prejudice has been caused to the detenu on account of the delay of a day beyond the statutory period in placing the representation before the Advisory Board in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds of detention as to whether the detention order when made and the continued detention of the person concerned are justified. The High Court, in our view, had no justification to accept the submission of the detenu that the documentary evidence produced by the detenu had not been considered by the Board. The second ground accepted by the High Court has, therefore, to be repelled as not sustainable. We proceed to examine the next ground, viz., that all the records had not been sent to the State Government by the Board and, therefore, such records were not available for consideration of the State Government at the time of confirmation of the detention. There is no dispute that the Board had not sent the entire record to the State Government. Under s. 11(2) of the Act, the Board is required to submit its report and there is no obligation cast by the Act that the entire record of the Board should be placed before the State Government. It is, however, not disputed by learned Advocate General that the report of the Board is only a recommendation and the ultimate decision on the basis of the report as to what further action has to be taken is for the State Government to make. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were available with the State Government. Materials referred to in the grounds of detention were also available in the file. The only materials which the State Government did not have before it are the documents which the detenu claims to have produced before the Board. With a view to forming a prima facie impression that there was any material document which would have a bearing on the question at issue, we sent for the record and the same has been produced before us. On looking into the documents produced by the detenu before the Board, we have come to the conclusion that this did not contain any material which could persuade the State Government to act in a different way. We are cognizant of the position that it is for the State Government and not for this Court to act as the confirming authority and non-compliance with the procedure laid down by law makes the order of detention liable to be quashed. But we have also already said that non-placing of the record of the Board before the appropriate Government is not a failure of compliance with the prescribed procedure. It is, therefore, that we looked at the record to find out if it can be said to be a defect having material bear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nu and even hearing him, if he so desired, by an independent Board with adequate judicial bias. While that is so, the detenu is not entitled to a disclosure of the confidential source of information used in the grounds or utilised for the making of the order. What is necessary for the making of an effective representation is the disclosure of the material and not the source thereof. By indicating that the facts have been gathered from confidential reports, a suggestive disclosure of the source has also been made. The Constitution Bench in the case of State of Punjab Ors. v. Jagdev Singh Talwandi, dealt with this aspect of the matter. The learned Chief Justice, speaking for the Court, observed: It was further argued by the learned counsel that the detaining authority should have disclosed the evidence on the basis of which the order of detention was passed because, in the absence of knowledge of such evidence, the respondent could not have made an effective representation against the order of detention. There is no substance in this contention. It is not the law that the evidence gathered by the detaining authority against the detenu must also be furnished to him . Refere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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