JAYANARAYAN SUKUL versus STATE OF WEST BENGAL

JAYANARAYAN SUKUL-·-··· -·--~.

STATE OF WEST BENGAL

October 15 &·November 5, 1969

II [l\f. HIDAYATULLAH, C.J., J. M. SHELA;: C. A. VAIDIALINGAM, A. N. ·GROVER AND A. N; RAY, JJ.] .

Constitution of India, 1950, Art. 22(5)' Ond Preventive Detenti'a~ Act. 1950, s. 7-Right of detenu t10}1ave his representation considered by Stat~ Government-Government .must consider representation before nt.aking reference to"Advisory Board and independently of its-report-Inordinate delay in considering representation vio/.1tes consHtutional Culirantee. O~ June 5, 196J the District Magi!trate 24-Parganas; West Bengal . made an order under s. 3(2) of the Preventive Detention Act. 1950 for the detention of -the petitioner. On June 7,-- .1969 the. petitioner was. arrested and served with the grounds of detention. On .June 9, 1969 in-- formation was givcn_to the State GOvernment. On June_ 14, 1969 the GoVernor apptoved the order of detention and sent -the rf:pOrt -under s. 3 ( 4) of the Act along with the grounds of detention. to the Central Government.-On June 23, .1969 the petitioner-made representation te> ·the State Government. On July l, 1969 the State Government placed the case of the petitioner together with the said representation before the Advisory Board under s. 9 of the Act. The Board gave its opinion on ·August -i 3,'_ 1969 that· there. was sufficient cause for the detention of the petitioner. · On· August 19, 196') the State Government. -aUegedly reiected the petitioner's representation. On August 26, 1969 the Governor con_ firmed the order of detention. · The petitioner filed petition under Art. ; 32 of the Constitution challenging his detention on the ~round that the State Government did not consider his representation of June 23, 1969' v.·ith reasonable and proper expedition. On behalf of the ·State Govern-ment it was contend~d that the Government had discharged hs duty inas-much .as it_ rejected the reoresentation after considering the report of the Advisory Hoard and making its own enquiries through the Superintendent Raihi.'av Police- '\/hose reoort ·wa' little_ delayed. In resoect of the said' enquiry h&.\Jing hecn made an affidavit·was fil~d by_ the officer ~ho caused the enquiry to be· made~

HELD: (i) Broadly stated. four principles, ar~ to be followed in re-ga'rd to the representation of detenus ~.

First, the appropriate .. authority, is bound to give an opportuility to thc-Uetenu to make representation and· to consider the represe~ta_tion as early as possible. (232 BJ

Secondly, the consideration 0-f the representation of the 'c.etenu b}r th~ appronriate authOritv is entirelv independent of any action by_ the Advi-sory Board includinz the cop,Jde_ration of the representation of the dctenu by the Advisory Board. (232 CJ '

Thirdly. th~re should not be an-v delay in the matter of con"ider.ltiCJn. Though nO hard and f~st _rule can bC laid down as to. the measure of time taken h-V the app'ronriate aut'1ority for consideration. it has to be -remerri-bcred that the Government has to be viei1ant in the g-overnance Of thc-citizens; The fundimenta1 ri!-'it of the detenu to have. his ·representatiotl

.considered by the appropriate Government would be rendered meaningless jf the Government does nqt deal with the matter expeditiously but at its O\\'n sweet will and convenience. [232 C-D]

Fourthly the approp'riale Government is to exercise its opinion an<l _judgment on the representation before sending the case along with the tletenu's representation to the Advisory Board. If t~e appropriate Govern-ment will release the detenu the Government will not send the matter 10 the Advisory BoQ!'d. If however the Government will not release the <lctenu the Gqvemment will send the case along with the detenu's repre-sentation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Boa!rd will express any opinion against the release of the detenu the Government may still exercise the power to release the detcnu. [232 D-F]

Sk. Abdul Karim & Ors. v. State of West Bengal. [1969] 3 S.C.R.. 479; Pankaj Kumar Chakrabarty & Or.<. v. State of West Bengal, [1970] I S.C.R. 543 and Khairul Haque v. State of We>t Bengal, W.P. No. 246 / 69 dated 10-9-69, applied.

Shyanu.'1 Chakraborty v. Co1111nissio11er of Police, Calcutta [1970) 1 S.C.R. 762 an.d Durga Show and Ors. case, W.P. Nos. 198., 205 i< 206/69 dated 2-9-69, referred to. (ii) Jn the present case the State of West Bengal was guilty of in· fraction of the coPstitutional provisions not only by inordinate delay of 1he consideration of the representation but also by putting off the consi-deration till after the receipt of the opinion of the Advisory Board. There was no explanation for this inordinate delay. The Superintendent v-.·ho made the enquiry did not affirm an affidavit. The State had given no information as to \Vhy this long delay occurred. Because the pe"rsonal liberty of the citizen was under consideration the State Government shoultl have given utmost information to the cou'rt. The inescapable conclusion in the present case was that the appropriate authority failed to discharge its constitutional obligation _by inactivity and lack of independent judg-ment. The petition must therefore be allowe<l. [232 F-G]

ORIGINAL JURISDICTION : Writ Petition No. 258 of 1969.

Petition under Art. 32 of the Constitution of India for writ in the nature of habeas corpus.

S. Chakravarty, for the petitioner.

S. P. Mitra, G. S. Chatterjee for Sukumar Basu, for the respondent.

ORDER

We have heard learned counsel for the pcti•ioner as well as counsel for the State of West Bengal. In our opinion, the deten-tion of the detenu suffers from great infirmity as pointed out by this Court in Sk. Abdul Karim and others v. The State of Wesr Bengal (Writ Petitio.n No. 327 of 1968 decided on January 31. 1969). The petitioner is ordered to be released forthwith. We shall give our reasons for the release later.

Ray, J. The petitioner made an application under Article 32 of the Constitution requiring the respondent. to show cause as to why the petitioner should not be released.

At the conclusion of the hearing of this petition on 15 Octo-ber, 1969 we directed the release of the petitioner and stated that the reasons would be given later -0n. We are stating our reasons for the order.

On 5 June, 1969 the District Magistrate, 24-Parganas, West Bengal made an order under section 3(2) of the Preventive De-tention Act, 1950 (hen;inafter called the Act) for the detention of the petitioner. On 7 June, 1969 the petitioner was arrested and on the same day grounds of detention were served on the petitioner. On 9 June, 1969 information was given to the State Government. On 14 June, 1969 the Governor was pleased to .1pprove the order of detention and on the same day the Gover-nor sent the report to the Central Government under section 3(4) of the Act together with the grounds of detention. On 23 June, 1969 the petitioner made representation to the State Govern-0 ment. On I J u!y, 1969 the State Gnvermnent placed the case of the petitioner before the Advisory Board . under section 9 of the Act together with the said representation. On 13 August, 1969, the Advisory Board after consideration elf the materials placed before it was of the opinion that there was sufficient cause for the detention of the petitioner. On I 9 August. 1969 the State Government is alleged to have rejeced the peti-tioner"s representation. By an order dated 26 August. 1969 the Governor was pleased to confirm the order of detention of the petitioner.

The only contention on behalf of the petitioner was that though the petitioner made the representation on 23 June, 1969 the Government did not consider the said representation with reasonable and proper expedition.

On behalf of the State of West Bengal it was contended f.r~t that the matter was referred to the Advisory Board along with the petitioner's representation and the State Government considered the report of the Advisory Board, and, secondly. the affidavit of Rathindra Nath Sen Gupta affirmesl on 19 September, 1969 will show that enquiries were made after the petitioner had made the representation and the Government therefore considered the re-presentation.

The affidavit of Rathindra Nath Sen Gupta is of little value. The deponent stated first that he caused further enquiries to be made through the Superintendent, Railway Police after he had received the representation of the petitioner from the State Gnvern-ment, secondly, that the Superintendent, Railway Police took little time to submit report, thirdly, th() deponent after being

satisfied about anti-social activities of the petitioner informed the State Government on 12 August, 1969 to. the effect thai he did !lot recommend the release of the petitioner, and, fourthly, that the State Government on 19 August, 1969 rejected the petitioner's representation. There is no affidav.t by the Superintendent of Police, Sealdah who is alleged to have made ,further enquiries. One will look in vain into the affidavit of the deponent to find out as to when the deponent entrusted the said enquiry to the Superintendent, Railway Police and fUrther as to what time was taken for enquiry and report. The Court is entitled to know the time and the steps taken along with the nature of the enquiry. The importance of the matter lies in the fact that it is case of preventive detention and the personal liberty of citizen is under consideration of the State Government. The State Government is, therefore, bound to give the utmost information to this Court.

The Preventive D~tention Act confers powers on· the Central Government or the State Government to make an order for deten-1 ion of person. The order of detention can be passed by the District Magistr:i_te or the Additional District Magistrate or the Commissioner of Police or the Collector. When an order is made hy any of these officers he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds and no such order shall remain in force for more than 12 days after the making of the order unless it is approved by ! he State Government. The State Government shall, as soon as may be, report the fact to the Central Government. Under sec-t ion 7 of the Act grounds of order of detention are to be disclosed to the persons affected by the order not later than 5 days from I he date of detention and the Act further requires to afford the person affected by the order the earliest opportunity of making representation against the order to the appropriate Government. In the present petition, we are concerned with the scope and intent of section 7 of the Act in regard to the representation made by the petitioner.

Section 8 _<lf the Act_ contemplates c<?nstitution of Advisory Boards. Seclion 9 reqmres the appropnate Government within 30 days from the date of detention to place the grounds and the repre,entation. if any. before the Advisory Board. The Advisorv Board under section I 0 is to consider the materials and if th~ Board considers it essential to. hear the person concerned who desires to be _heard, the Board will hear the person and make the report. Section I 1 of the Act states that the Government ma\· confirm the detention orde'. if the Advisory Board gives an opiniol1 to that effect. Under section 13 of the Act the State Government may revoke an order passed by its officers and the Central Gov-ernment may revoke an order made by. the State Government.

Counsel on behalf of the State of West Bengal contended that the matter was referred to the Advisory Board along with the re-presentation of the detenu dated 23 June, 1969 and the State Government on 19 August, 1969 rejected the representation of the petitioner and thus discharged its duty. This contention has to be examined in the light of Article 22 of the Constitution and the provisions of the Act.

There have been five recent decisions of this Court on the provisions of this Act particularly in regard to the right of the detenu to have his representation considered by the appropriate Government and the obligation of the appropriate Government in that behalf. In Sk. Abdul Karim & Ors. v. The State of West Bengal(') this Court held that the appropriate Government could not be said to discharge the obligation merely by forwarding the representation of the detenu to the Advisory Board. Article 22 of the Constitution guarantees the right of detenu to have proper consideration of the representation by the appropriate authorit}.

0 In the case of Pankaj Kumar Chakravarty & Ors. v. The State of West Bengal(') this Court put in the forefront the distinction between the twin obligations of the appropriate authority under sections 7 and 8 of the Act. The appropriate Government ·is to consider the representation of the detenu inasmuch as section 7 of the Act speaks of affording the detenu the earliest oppqrtunity of making representation against the order of detention. Th~ obligation of the appropriate authority to consider the represen-tation of the detenu under section 7 of the Act is entirely indepen-dent of any action of the Advisory Board or any consideration by the said Board of the representation of the detenu. In the cas~ of Pankaj Kumar Chakrabarty([2 ]) this Court observed: "The peremptory language in clause 5 of Article 22 of the Cmhti-F tution and section 7 of the Act would not have been necessa n if the Board and not the Government had to consider the repres~n­tation".There is. another reason why the appropriate Government is required to consider on its own the representation of the detenu. If the consideration· of the representation of· the detenu by the Board sufficed the consititutional guarantee section 7 of the Act would be robbed of its content. ln Pankaj Kumar· Chakra-barty's case([2]) this Court emphasised the aspect that the repre-sentation was addressed to the Government and not directly to the Advisory Board and it was frr the reason that the appropriat~ authority was to .;xercise its opinion and judgment in an indepen-H dent and honest manner.

It, therefore, follows that the appropriate authority is to consi-tier the representation of the detenu uninfluenced by any opinion or consideration of the Advisory Board. In the case of Khairul Haque v. State of West Bengal (') this Court observed that "it is implicit in the language of Article 22 that the appropriate Gov-ernment. while discharging its duty to consider the representation cannot depend upon the views of the Board on such representa-tion''. The logic behind this proposition is that the Go,·ernment should immediately consider the representation of the delctrn be-fore sending the matter to the Advisorv Board and further that such action- will thflD- have the real "flavour· of independent judgment. In the case of Shyamal Clwkrabortv v. The Commissioner of Police, Calcutta & Anr.(') one cf the contentions was that the· detenu's representation was not considered by the Government. There the facts were these. The detenu was arrested on 13 '\ovember. 1968. On 6 January. 1969 the Governor was pleased tn confirm the order of detention after the Advisorv Board had given opiniOJ) that there was sufficient cause for detention of th~ petitioner. The detenu thereafter on 13 or 16 January. 1969 made representation. On 1 April. l 969 the Commissioner of Police informed the Home Department that he did not recom-mend ·the release of the petitioner. On 28 March, 1969 notice 'was issued under Article 32 of the Constitution to the Commis-sioner of Police and to the State Government to show cause why the petitioner should not be set at liberty. It is curious that even when Shyamal's case(') was heard in this Court on 4 August 1969 the representation of the netitioner could not be traced. This Court did not accept the contention of the petitioner that there was any breach of section 7 of the Act on consideration of the facts thnt the detenu did not choose to make representation till after the Advisory Board had dealt with the matter and further that the State Government was in the process of dealing with the representation and the detenu did not state that the. grounds nf detention were false. This Court concluded in the case of Shyamal Chakrahorty(') by stating that the State Government would deal with the representation and pass suitable order. When the present Writ Petition canie up for hearin2 on 30 September. 1969 before the Bench consisting of Sikri. Mitter and Reddy. JJ.. the matter was referred for decision by larger Rench to consider as to what would be the question of period within whi.ch the Government could dispose of the representation of the detenu becmise it wa< felt that there was an apparent conijict between the cases of Shyama/ Chakraborty(') o.nd Khairul Haque(').

(ll W.P. No. 246 of 1969 decid'd on 10-9-1969.

(1) [t970] I S.C.R. 762.

In view of the fact that there is fundamental right o(j'he deten\r to have the representation consicjered by the appropnat~ Government such right will be rendered meaningless if the Gov-ernment will not deal with the matter expeditiously but at its own \\'i!I .and convenienc,e. · In the case of Khairul l;laque(') the peticioner made representation on 23 June, 1969. The Advisory Board made its report ~m 11 August,,1969. On 12 August, 1969 the Governor confirmed the order of detention. On 29 August. 1969 Che Governor rejected the petitioner's representation. The delay was not explained in the case. The· disposal of the repre-sentotion by the Gov'ernment after the receipt of the Report of ( the Advisory Board was found by this Court to raise doubt there "hether the Government considered the representation in an independent manner. This independent consideration by the ap-pr,1priate Government is implicit in Article 22 of the Constitution. In ,the case of Durga Show and Ors.(") three petitioners were set at liberty. There the representation of one delenu was re-cci·;ed on 29 May, 1969, and wa,; rejected OI) 11 August, 1969. In another case the representatioo o( the detenu _was recE_ived on I 8 June. I 969 and was' r.ejected by the Governm·enT on I 6 August, I 969. Jn the third case the representation of the detentt was received on 28 June •. 1969 and was rejected, on 14 July, 1969. In the case of Durga Show and Ors.(') the opinion of this Court in the case of Sk. Abdut Karim(") was re-stated by emphasising-the legal obligation of the appropriate Govern111ent to consider the representation cf the detenu "as soon as it is received by it".

It is established beyond any measure of doubt that the appro-priate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representatio9 as expeditiously as possible. The reason for immediate consideration of the representation i' too obvious to be stressed. The personal liberty of person is m stake. Any delay would not only be an irresponsible act on the part of lhe apprqpriate authority but also unconstitutional be-cause•the Constitution enshrines the fundamental right of detenu to have his representation considered and it is imperative that' when the liberty of person is in peril immediate action shoukf be taken by the relevant authorities.

No definite time can be laid, down within. which representa-tion of detenu should be dealt .with save and except that it constitutional right of deJenu to have his representation consi-dered as expeditiously as possible. It will depend upon the facts

(I) W.ij, No. 246 or t969 ~<eided on 10-9-1969.

(2) W,f'-. N'"1. 198, 205 and.206or1969 dccidcdoo 2-9-1969 •

. (3) '[1~69l l S. C. R. 479

<tnd circumstances of each case whether the appropriate Govern-ment 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(') "it is obvious that the obligation to furnish the earliest opportunity to make representation loses both its purpose and meaning-":

Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make representa-tion and to consider the representation of the detenu as early a:; possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Aavisory Board including the consideration Of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. ·It in true that no hard and fast rule can be laid down as· to the measure of time taken by the appropriate authority for con.sidera-tion but it has to be remembered that the Government has to be vigilant in the gov11rnance of the citizens. citizen's right raises . correlative duty of the State. Fourthly, the approprjate Govern-ment is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Adbisory Board. If the appropriate Government will release the detenu the Government will not send the m:itter to the ad-visory Board. If however the Government will not release the detenu the Government will send the case along with the detemt's representa!ion to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu th-: Government may still exercise the power to release the detenu.

In the present case, the State of West Bengal is guilty of in-.fraction of the constitutional provision not only by inordinatc-delay of the consideration of the representation but also by puttin~ off the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no ex-planation for this inordinate delay. The Superintendent who made the enquiry. did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescap-able conclusion in the. present case is that the al)propriate autho- · ritv failed to discharge its constitutional obligation by inactivity «nd lack of independent judgment.

The petition is, therefore, allowed. liberty. G.C.

The petitioner is set at

Petition allowed.