TMI Blog1969 (1) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner No. 2 Sk. Abdul Karim, the order of detention was made on 17th February, 1968 by the District Magistrate of Hooghly and reads as follows: No. 230-C Dated 17-2-1968 Whereas I am satisfied with respect to the person known as Sk. Abdul Karim, son of late Sk. Nasiruddin of Mathurdangi, Police-station Chanditala District Hooghly, that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it is necessary. so to do, I therefore in exercise of the powers conferred by section 3(2) of the Preventive\Detention Act, 1950 make this order directing that the said Sk. Abdul Karim be detained. Given under my hand and seal of office. Sd/- Illegible 17-2-68 District Magistrate, Hoogly . On the same date the following grounds of detention were communicated to the detenu : 1. You are being detained in pursuance of a detention order made under sub-section (2) of section 3 of the Preventive Detention Act, 1950 (Act IV of 1950), on the following grounds 2.That on 2-2-68, at 19.05, hours you were arrested while carrying 60 kgs. of rice without authority from Dankuni Bazar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs Act, 1946 (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained. (4)When any order is made or approved by the State Government under this section, the State Government shall, as soon as may be, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the state Government having bearing on the necessity for the order . Sub-sections (2) and (3) of this section empower the District Magistrate, Sub-Divisional Magistrate or the Commissioner of Police in a Presidency Town to exercise the power conferred by and make the order contemplated in subsection (1), but with the ,,qualification that any order made thereunder must be reported ,forthwith to the Government of the State to which the officer in question is subordinate with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessity for the order. Sub-section (3) further provides that no such order made after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the order, continue to remain in force until the 1st day of April, 1953, or until the expiration of twelve months from the date, of detention, whichever period of detention expires later. (3)The provisions of sub-section (2) shaft have effect notwithstanding anything to the contrary contained in, section 3 of the Preventive Detention (Amendment) Act, 1952 (XXXIV of 1952), but nothing contained in this section shall affect the power of the appro priate Government to revoke or modify the detention order at any earlier time. Section 13 provides for revocation of a detention order and reads as follows :- 13. (1 ) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 (X of 1897) a detention order may at any time be revoked or modified- (a)notwithstanding that the order has been made by an officer mentioned in the subhttp:// JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10 section (2 ) of section 3, by the State Government to which that officer is subordinate or by the Central Government; and (b) notwithstanding that the order has been made by a State Government or by the Central Government. (2)The revocation or expiry of a detention order sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c)the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4) . It was argued by Mr. Garg that the representations of the petitioners were not considered by the respondent Government of West Bengal, but were merely forwarded by the respondent to the Advisory Board without any consideration. It was contended that the detention of the petitioners was bad in law, because there,was a failure on the part of the Government to consider the representations submitted by the petitioners before forwarding them to the Advisory Board. In the first counter-affidavit of the respondent it was asserted by Mr. Monoranjan Dey that there was no requirement of law which compelled the consideration by the State Government of the detenu s representation before being forwarded to the Advisory Board for consideration . In the second counteraffidavit Mr. Monoranjan Dey said that for securing an unprejudiced and impartial consideration of the representation of the petitioner by an independent Statutory Authority, the State Government refrained at that stage from expressing its views on-the representations to the Advisory Board . The counteraffidavits of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentation protesting against an order of preventive detention. Article 22(5) does not expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation. But,it is necessarily implicit in the language of Art.22(5) that the State Government to whom there presentation is made should properly consider the representation as expeditiously as possible. The constitution of an Advisory Board under section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. On behalf of the respondent it was said that there was no express language in Art. 21(5) requiring the State Government to consider the representation of the 1 detenu. But it is a necessary implication of the language of Art. 22(5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate ,action. In our opinion, the constitutional right to make a representation guaranteed by Art. 22(5) must be taken to include by necessary implication the constitutional right to a proper consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months under any law providing for preventive detention without obtaining the opinion of an Advisory Board. It cannot possibly be argued that if Parliament makes a law contemplated by Art. 22(7) of the Constitution, the detaining authority is under no legal obligation to consider the representation made by the detenu under Art. 22(5). Faced with this difficulty counsel on behalf of the respondent conceded that in a case where the detention is for a period of less than three months or in a case contemplated by Art 22(7), the State Government will be legally obliged to consider the representation of the detenu. But it was suggested that in a case where a reference has to be made to the Advisory Board it was not necessary for the State Government to consider the representation. We are unable to accept this argument as correct. There is no such dichotomy in the scheme of Art. 22(5) of the Constitution and there is no reason why it must be interpreted in a different manner for the two classes of detenus. It is manifest that the right under Art. 22(5) to make a representation has been guaranteed independent of the duration of the period of detention and irrespective of the existence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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