SK. SEKAWAT versus THE STATE OF WEST BENGAL

,m, J.-This petition is directed against the validity of an order of detention dated 26th July, 1972 made by the District Magistrate, Midnapur under section 3 of the .Maintenance of Internal Security Act, 1971. The petitioner has urged several grounds before us, but it is not ,necessary to refer to them since there is one ground Which is, in our opinion, sufficient to dispose of the petition in favour 2-L2St Sup.Cl/7S. of the petitioner. To appreciate this ground it is necessary to notice a tew facts.

pp. 161–162, margin G

The order of detention was made by the District Magistrate on :26th July, 1972 and on the same day he made a report to the St~te Government. The State Government approved the order of detention on -5th August, 1972 and a report was mad,e by it to ~~e Central Government on the same day. It appears that the pettt10ner was absconding and he could not, therefore, be arrested pursuant !~ the order of detention until 24th October, 1972. When the petit10p.er was arrested on 24th October, 1972, the order of detention was served on him along with the grounds of detention. The State Government· thereafter placed the case of the petitioner bef~re the Advisory Board for its opinion and the Advisory Board submitted. a report dated 23rd November, 1972 stating that in its opinion there was sufficie~ cause for the detention of the petitioner. Now, right up to this time no representation against the order of detention was received from the petitioner .. It was only on 27th November, 1972 that the State Government received the representation of the· petitioner against the order of detention. The State Goverll'21ent had not yet confirmed the order of detention when the representation was received but even so the State Government proceeded to confirm the order of detention without consideri,ng the r_epresentation. The order of confirmation was passed by the State Government on 29th November, 1972. The State Government thereafter considered the representation of the petitioner and rejected the same on 2nd December, 1972.

p. 162, margin A

The petitioner, on these facts, contended that the order confirming the detention of the petitioner having been passed by the State Government without considering the representatiqn of the petitioner, the detention of the petitioner was unlawful as being in violation of Art. 22 ( 5) of the Constitution and sectio,n 7 of the Maintenance of Inter• nal Security Act, 1971. This contention has great force and it must result in the detention of the petitioner being set aside. It is now well settled by a decision of five judges of this Court in J ayanarayan · Sukul v. State of West Bengal(1:) that the ,J?Cremptory language of Art. 22(5) of the Constitution and section 7 of the Act makes it obligatory that the State Government should consider the representation of the detenu "as soon as it is received by it". The requirement of Art. 22 ( 5) of the Constitution that the authority making the order of detention shoul~ affor~ the detenu the earlie~t opportunity of making a representation agamst the order of detention would become illusory if there were no corresponding obligation on the State Government to consid_er the representation of the detenu as early as possible. It is not enough for the State Government to forward the representation to the ~dvisory Board while seeking its opinion as to whether there is sufficient cause for the detention of the detenu. The State Government must itself consider the representation of the detenu and come to its own conclusion whether it is necessary to detain the detenu. [I] [1970] 3 S.C.R 225 If the State Government takes the view, on considering the tation of the detenu, that it is .not necessary to detain bi,m, it wholly uooecessary for it to place the case of the det~nu Advisory Board. The requirement of obtaining the opinion Advisory. Board is an additional safeguard for the detenu above the safeguard afforded to him of making a representation ag$st the order of detention. The opinion of the Advisory on a consideration of the representation, is no substitute for sideration of the representation by the State Goveriiment. This speaking through Ray, J., as he then ·was, in Jayanarayan State of West Bengal, (supra) enunciated the following four to be followed in regard to the representation of a detenu :

pp. 162–163, margin B

"First, the appropriate authority is bound to give opportunity to the detenu to" make a representation and consider the representation of the detenu as early as possible. Secondly, the consideration of the representation. the detenu by the appropriate authority is entirely independent of any action by ·the Advisory Board inchlding consideration of the representation of the . dete~u by Advisory Board. Thirdly, there should not be a,ny in the matter of consideration. It. is true that no hard fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has be remembered that the Government has to be vigilant the governance of the citize~. A citizen's. right raises correlative duty. of the State. Fourthly, the appropriate Government is to exercise its opinion and .judgment on representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Gover.nment will release the detenu the Government will send the matt~r to the Advisory Board. If however Government will not release the detenu the Government !ij:nd the case along with the detenu's representation to Advisory Board. If thereafter the Advisory Board will press an opinion in favour of release of the detenu the Gover,nment will release the detenu. If the Advisory Board wfil express any opiqion against the release of the detenu the- Government may still exercise the power to relea8e

p. 163, margin C

detenu." · It is possible that sometimes the- representation of the detenu received by the State. Government after the case of the detenu been referred to the Advisory Board. In such a case, s9 long represe,ntation is received within thirty days from the date of the ·detention~ the State Government would be bound· to forward the Advisory Board. But a question may arise as to what would the duty of the State Government where the representation is after the expiration of thirty days from the date of detention. contended on behalf of the State that in such a case there would no obligation of the State Government to send the representation to the Advisory Board, because the State Gov_emment being bound place the case of the detenu, before the Advisory ~oar~ within t~irty aays from the date of detention, if the representation is not received within the period of thirty days, there can be no obligation of the State Government to forward it to the Advisory Board. We do p.ot wish to express any opinion on this contention as it does not arise for consideration on the facts of the present case. Here the repre· se11,tation of the petitioner was received by the State Gover,nment after the Advisory Board had made its report and there could then be question of sending the representation to the Advisory Board. But the State Government had not yet confirmed the order of detention and it was, therefore, bound to consider the represen.tation of the petitioner. It is obvious that even where the Advisory Board reports that there is in its opinion sufficient cause for the detention of th~ detenu, the State Government is not bound to con;firm the order of detention. The State Government has to apply its mind, keeping in view all the facts and circumstances relating to the case of the detenu includin,g the opinion of the Advisory BoJ!rd and come to its own decision whether or not to confirm the order, of detention. D Ii, therefore, the State Government has before it at that time the representation of the detenu, the State Government must consider it and take it into account for the purpose of dedding whether to confirm and continue the detention. 'I'his view finds support from the follow~ ing observa ions of Palekar, J. speaking on behalf of the Court in B. Sunder Rao and Ors. v. State of Orissa(') :

pp. 163–164, margin A

"Secondly having regard to the second principle referred to above the Government cannot absolve itself from considering the represe,ntation even at a later stage. We have seen that after the Advisory Board's opinion is received the· State Government is bound under section 11 to consider whether it should confirm the detention order and continue the detention of the person concerned: Since the Government had not considered the representation as soon as it was received nor even at the time of the confirmation and continuation of the detention, the Gover,nment had failed in ~one of. its obligatory duties with regard to the detention of the pnsoners and, therefore, for that reason also the detention

p. 164

becomes illegal." Her~ in th.e present .case the representation of the petitioner was rece1v~d by t,h~ S~ate Govern.ment before it confirmed the order of . detention, but it did not consider. the representation and thus "failed H (I) 3 .s. C. C.

p. 164

(Bhagwali, /.) iii one of its obligatory duties with regard to the detention" of the petitioner. The subsequent consideration and rejection of the re• presentation of the petitioner could not cure the invalidity of the order of confirmation. The detention of the petitioner must, therefore, be held to be illegal and void.

p. 165

We accordingly set aside the order of detention and declare the detention of the petitioner to be illegal and void and direct that the petitioner be set at liberty forthwith. P.B.R. Petition allowed.

p. 165