TMI Blog1979 (5) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... ming the detention of the detenu after obtaining the opinion of the Advisory Board is invalid as the same has been confirmed beyond the prescribed period of three months, the delay being of three days. 3. The Constitutional right of the detenu to make a representation was seriously undermined because of the inordinate delay in complying with the request of the detenu for copies of the documents from 9th February to 9th March, 1979. 4. Rejection of the representation dated 23rd February 1979 after an unreasonable delay is violative of Article 22 of the Constitution and, therefore, the order of detention is vitiated. 5. Presumably the second representation dated 27th March, 1979 made by the detenu was not placed before the Advisory Board with the comments of the State Government and any action taken pursuant to the opinion of the Advisory Board would, therefore, be bad in law. 6. An incorrect belief entertained by the detaining authority that the detenu was a Pakistani national, unwarranted in the facts and circumstances of the case, has resulted in the detaining authority's decision being influenced by an extraneous irrelevant and incorrect consideration which would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of detenu on 23rd February, 1979 and 27th March, 1979 were rejected by the Chief Secretary who had passed the detention order though he was not competent to reject the representations, that power having been vested in the appropriate Government. Clause (5) of Article 22 of the Constitution makes it obligatory for the authority making an order of preventive detention to communicate to the detenu, as soon as may be, the grounds on which the order has been made and should afford him the earliest opportunity of making a representation against the order. This right to make a representation imposes a corresponding duty on the detaining authority to consider the representation because the representation may furnish such information as may necessitate revocation of the detention order as contemplated by Section 11 of the COFEPOSA. Section 11 confers power for revocation of detention orders. The obligation to furnish grounds for preventive detention and the constitutional rights conferred on the detenu to make a representation on receipt of the grounds of detention when read in the context of Section 11 would spell out a scheme that the representation, if and when made, may furnish such in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a twofold reply on behalf of the respondents to this contention of the detenu: (1) in fact the representations were addressed to the third respondent and, therefore, he was competent to deal with the same; and (2) no representation was made by the detenu to the appropriate Government. This approach was countered on behalf of the detenu by saying that the detenu was misled by the detaining authority when in the last paragraph of the grounds of detention it was stated that if the detenu wished to make a representation against the order of detention, he should make the representation addressed to him and, there-fore, the detenu was denied an opportunity to make a representation to the appropriate Government and its consideration by the appropriate Government. 8. Section 2(a) of COFEPOSA defines appropriate Government to mean as under: 2. In this Act unless the context otherwise requires. (a) appropriate Government means, as respects a detention order made by the Central Government or by an officer of the Central Government or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer of a State G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the State Government or the Central Government, as the case may be, to revoke the order of detention. But the initial representation that a detenu has a right to make on receipt of the grounds of detention would ordinarily be addressed to the detaining authority because it is that authority which has taken a decision adverse to the detenu and which has to be persuaded to reconsider the same. Therefore, if the detenu made the representation to the third respondent who had passed the detention order it was open to him to consider the same and after applying his mind to accept or reject the same. The failure to submit the representation addressed to the detaining authority and considered by him to the State Government would not vitiate the detention order. 9. In the facts of this case the first representation was made on behalf of the detenu by no less a person than his learned advocate Shri Harjinder Singh. It was addressed to the third respondent. It was signed by learned advocate Shri Harjinder Singh on behalf of the detenu. Earlier an application for copies was also made by the same learned advocate on behalf of the detenu addressed to the third respondent. Therefore, the th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advice preferred by the detaining authority. Re. Ground 2: 13. The second contention is that there was delay of three days in confirming the order of detention and, therefore, the order is vitiated. Reliance was placed on Nirmal Kumar Khandelwal v. The Union of India 1978CriLJ1094 , where in it was held that if the order of detention is not confirmed within three months from the date of detention, further detention of the detenu would be without the authority of law. The impugned order of detention was made on 27th January 1979. An order dated 30th April 1979 signed by the Under Secretary (Home), Delhi Administration, Delhi and in the appropriate form, viz., by order and in the name of the Administrator, reciting therein the confirmation of the order of detention of the detenu after the receipt of opinion of the Advisory Board is placed on record. The order reads: The Administrator hereby confirms the aforesaid detention order. Relying on the date mentioned, in the order, namely, 30th April 1979, and the aforequoted expression, it was contended that if the detenu was detained on 27th January 1979 and if the order of detention was confirmed on 30th April, 1979 it was bey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the second representation on 27th March 1979. It may be noticed here that the first representation made on 23rd February 1979 was rejected by the third respondent on 21st March 1979. It was said that there was delay of nearly one month in applying mind to the representation of the detenu and that delay on two occasions would vitiate the order. A portion from the observation extracted hereinabove from Sukul's case was relied upon to show that when the detenu makes a representation it must be considered as early as possible. Where there are specified time limits which could not be transgressed, an action beyond the prescribed time may be either incompetent or without jurisdiction or without the authority of law. Where a citizen is deprived of his liberty and grounds of detention are furnished to him, his representation must be examined as expeditiously as possible, but as has been said in Sukul's case, there is no hard and fast rule as to the measure of time taken by the authority for consideration of the representation. However, a caution was administered that the Government should be vigilant in the governance of the citizens. Can it be said on the facts of this case tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of detention is vitiated cannot be entertained. Re. Ground 5: 15. The next contention is that the second representation dated 27-3-1979 was not placed before the Advisory Board and, therefore, the Advisory Board had not the benefit of the point of view of the detenu and personal appearance of the detenu before the Advisory Board is not an adequate substitute for a written detailed representation. This contention was based on the assumption that the second representation was not placed before the Advisory Board. The learned Counsel for the respondents brought the original file, a perusal of which shows that the second representation was forwarded to the Advisory Board on the very day it was received and it was in the file which was submitted to the Advisory Board. Indisputably, therefore the second representation was before the Advisory Board when it met on 30th March 1979, In this fact situation it is not necessary to examine the second limb of the contention that personal appearance of the detenu to explain his case before the Advisory Board is not an adequate substitute for a detailed written representation. Re. Ground 6: 16. The last contention is that an incor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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