TMI Blog1972 (8) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at Burdwan University. By such act in broad day light you created panic and terror and the peaceful citizens of the area felt insecure to come out on the road and their even tempo of life was adversely affected. 2. On 8-11-71 at about 08.45 firs. you with your associates Sudhir Dey and others at the point of dagger snatched away Rs. 2100/- on the road in front of Municipal Office from Tapan Kundu of Borhat. This created a panic in the locality and the peaceful citizens were terrorized and felt hesitant to come on the road. This adversely affected the even tempo of life of the people of the locality. On the same day i.e., December 10, 1972 the District Magistrate reported this fact to the State Government as required by Sub-section (3) of Section 3. Pursuant to this order of detention the petitioner was arrested on December 15, 1971 and on the same day the grounds of detention were served on him. The detention order was approved by the State Government on December 16, 1971 and on the same day this fact was reported to the Central Government as required by Sub-section(4) of Section 3. On January 4, 1972 the petitioner's representation was received by the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplanation and deserves to be accepted by this Court. Reliance was placed on behalf of the respondent on a recent decision of this Court in Nagendra Nath Mondal v. The State of West Bengal 1972 CriLJ 482, in which delay of about 34 days on the part of the State Government in considering the detenus representation was held not to vitiate the detention. This is what the Court said in this connection: The time gap between the receipt by Government of the petitioner's representation and the date of its decision was of 34 days. The question is whether that gap can be treated as inordinate delay going to the root of the validity of the detention or its continuation thereafter. The counter-affidavit filed on behalf of the Government, no doubt, did not contain any explanation. But that was because it answered only the allegations in the petition filed by the petitioner from jail, which had in it only general allegations such as the vagueness of the grounds of detention, mala fides, etc., and did not raise specifically any point on this aspect at all. The point as to delay was for the first time taken in the course of arguments when the petition first came up for hearing before anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime which Government can or should take in deciding the representation and that each case must be decided on its own facts. In the reported case the detenus representation had been received by the State Government on May 27, 1971 but it was considered and rejected on July 1, 1971. It, however, appeared to this Court from notings on the records of that case, produced by the State, that those records had been sent by the Government to the Advisory Board on June 7, 1971. Between May 27 and June 7, 1971. during which period the Government could have considered the representation was only a duration of ten days which, according to the submission of the State, accepted by this Court, did not constitute undue delay. Before us it was urged on behalf of the State that the Government, in the reported case, may legitimately be assumed to have been aware of the fact that the Advisory Board had at its disposal ten weeks from the date of detention for discharging its statutory obligation to consider the reference and report (vide Section 11) and also that the appropriate Government had a period of 30 days for placing the matter before the Board (vide Section 10) and, therefore, bearing in mind p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Sections 3 to 10 were undoubtedly given effect to within time. The only complaint which is now raised though not made in the petition is that the representation was considered by the Government as also by the Advisory Board only on 17th November, 1971, i.e., one month and ten days after the date of the receipt of the representation. As the Advisory Board has to consider the case within ten weeks from the date of detention which in this case was 9th September, 1971, there has been no violation of the provisions of section. The question is, can the order of detention be upheld on the facts of this case in the background of the Constitutional provisions. It will be noticed that the Act does not make it obligatory on the State Government itself to consider the representation of the detenu but makes it obligatory on the part of the State Government to place case before the Advisory Board along with the representation if any, made by the person affected by the order and where the order has been made by an officer also the report of such officer under Sub-section (3) of Section 3. The Advisory Board must consider the materials placed before it and may call for further information a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f West Bengal W.P. No. 377 of 1971, D/- 14-3-1972 : reported in AIR 1972 SC 1198. Nagendra Nath Mondal v. State of West Bengal 1972 CriLJ 482 (supra). The point of delay was dealt with thus: When the matter came up for hearing before us on April 26, 1972 Mr. Vohra sought permission to take up additional' grounds in support of the petition. He thereafter filed a written, application setting forth the additional grounds. Looking to the facts of the case we allowed Mr. Vohra to take the additional grounds. It was argued on behalf of the petitioner, that his representation was' received by the State Government on August 11, 1971. The State Government considered the representation and rejected it on September 8, 1071. There thus elapsed a period of 28 days between the receipt of the petitioner's representation and the consideration and rejection of the same by the State Government Learned Counsel for the respondent, who had the Governments file relating to the detention of the petitioner, could not furnish any explanation as to why the Government took a long period of 28 days to consider and reject the petitioner's representation. In the absence of any cogent groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a representation. This fact, in the opinion of the Court, necessarily implied that such a representation must, when made, be considered and disposed of as expeditiously as possible, for otherwise the obligation to furnish the earliest opportunity to make a representation loses both Its purpose and meaning. In [1972] 1 SCR 1022 (supra), this Court held that an unexplained delay of 17 days was enough to render the detention illegal In W. P. No. 377 of 1971 D/- 14-3-1972 reported in AIR 1972 SC 1198 (supra) unexplained delay of 29 days in considering the representation was held to have vitiated the detention of the detenu. In the case of 1972 CriLJ 482 (supra) on the other hand, although 34 days had elapsed between the receipt of the representation and its disposal by the Government, the delay was held by this Court to have been satisfactorily explained. The cases mentioned above were referred to by this Court In Ranjit Das v. State of West Bengal W.P. No. 14 of 1972, D/- 3-5-1972 reported in AIR 1972 SC 1753 and it was held that unexplained delay of 19 days in considering the detenus representation would invalidate the detention. In the present case, as stated earlier, the delay of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to what would be the question of period within which the State Government could dispose of the representation of the detenu because it was felt that there was an apparent conflict between Shyamal Chakraborty v. Commissioner of Police, Calcutta [1970] 1 SCR 762 and W.P. No. 246 of 1969, D/- 10-9-1969 (SC) (supra). After considering the various decisions on the point this Court expressly concluded thus: No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a Constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in words of Shelat J., who spoke for this Court in the case of Khairul Haque W. P. No. 246 of 1969 D/- 10-9-1969 (SC) (supra) 'it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning.' 7. The scheme underlying Article 22 of the Constitution highlights the importance attached in our Constitutional set up to the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Home Department (Special Section) from September 12 to the end of November 1971. This Court did not consider that to be a satisfactory explanation for the delay because the dislocation of work was only upto the end of November, 1971 whereas the representation was received by the Government on December 3, 1971. It was observed that in the circumstances of the case the State Government had not disposed of the representation as early as practicable. Reference in support of this view was made to Jayanarain 1970 CriLJ 743 (supra) . 8. We are not unmindful of the fact that the Act was brought on the statute book in July, 1971 because, as the objects and reasons show, in the prevailing situation in the country and the developments across the border need for effective preventive action in the interest of national security was considered to be urgent Because of such a situation it may well be that there were a large number of detention cases in the State of West Bengal. This circumstance of course is not wholly irrelevant. But in our opinion the State could and should have made ample arrangements for coping with this situation keeping in view the limitations contained in the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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