TMI Blog1982 (9) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... revented from acting in any manner prejudicial to the maintenance of public order. This order was served upon the detenu on September 25, 1981, and he was taken into custody and was detained in Muzaffarpur Central Jail. The detaining authority simultaneously served upon him the grounds of detention The order of detention was approved by the State Government on October 2, 1981, as required by Sub-section (4) of Section 3 of the Act. He made a representation inviting the detaining authority to quash the order of detention. In the mean time, however, the case of the detenu was referred to the Advisory Board on October 5, 1981. The representation made by the detenu was rejected by the Chief Minister on November 16, 1981. The Advisory Board havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order would be vitiated. 4. An additional ground was urged before this Court that even though the representation was addressed to the detaining authority, viz., the District Magistrate, Gopalganj, he never applied his mind to the representation and never took any decision with regard to the representation of the detenu but he forwarded the same with his remarks to the Chief Minister who rejected the same and thus the failure of the detaining authority to examine the representation would vitiate the order. We would first examine the contention raised before this Court. 5. Section 3 confers power to make orders for detention of certain persons. Sub-section (2) provides as under : 3. Power to make orders detaining certain persons- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Police. Sub-section (3) of Section 3 reads as under : 3(3). If, having to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing direct, that during such period as may be specified in the order' such District Magistrate or Commissioner of Police may also, if satisfied as provided in Sub-section (2), exercise the powers conferred by the said sub-section : Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Gopalganj, made the detention order against the detenu. Therefore, the detaining authority is the District Magistrate, Gopalganj. Article 22(5) enjoins a duty on the detaining authority to communicate the grounds of detention to the person detained and also to afford him earliest opportunity of making a representation against the order of detention. This constitutional obligation has been statutorily recognised in Section 8 of the Act with a specific provision. Section 8 prescribes a time schedule within which a copy of the grounds has to be furnished to the detenu and further enjoins a duty to afford the detenu the earliest opportunity of making a representation against the order, not to the detaining authority but to the appropriate Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appropriate Government on the exercise of power by subordinate officers like the District Magistrate or the Commissioner of Police. Therefore, if the appropriate Government has considered the representation of the detenu it cannot be said that there is contravention of Article 22(5) or there is failure to consider the representation by the detaining authority. And be it noticed that the Chief Minister rejected the representation after calling for the remarks of the District Magistrate who made the detention order. In this background the decision of this Court in Smt. Santosh Anand v. Union of India and Ors. would not be of help. In that case this Court invalidated the order on the ground that even though the order of detention was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was made on October 19, 1981, and it was rejected on November 16, 1981, the very date on which the report of the Advisory Board was also received. There was thus a delay of 28 days in considering the representation. It is therefore, necessary to examine the explanation preferred by the respondents as to how the representation was dealt with. It is admitted that the representation was received in the office of respondent 1, the State of Bihar, on October 20, 1981. On October 20, 1981, a copy of the representation was sent to the District Magist rate, Gopalganj, the detaining authority. The District Magistrate returned the representation with his comments on October 31, 1981, and it was received in the Department of Home (Special) on No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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