Didar Sin Gh alias Dari vs The District Magistrate and Others

Gopal Singh, J.—This is habeas corpus petition filed by Didar Singh. He is a detenu. On December 11, 1971, order of detention of the detenu was passed by the District Magistrate, Amritsar u/s 3(2) of Maintenance of Internal Security Act, 1971, hereinafter called the Act. The detenu was detained on that date. Grounds of detention were supplied to the detenu on December 15, 1971. The detenu forwarded a representation to the State of Punjab on December 30, 1971. The representation was received by the Secretary, Home Department on January 3, 1972. It was sent for comments of the District Magistrate on January 5, 1972. Comments were made by him on January 19, 1972. It was received back from the District Magistrate by the Secretary on January 20, 1972. It was forwarded or February 16, 1972 to the Advisory Board. The Board met on February 17, 1972. It took the view that the grounds justified the detention. On March 14, 1972, the State of Punjab passed order of confirmation of detention u/s 12(1) of the Act.

Shri Tirath Singh Munjral appearing on behalf of the detenu has raised the following points:

(1) That the detention of the detenne is illegal inasmuch as more than three months have passed from the date of detention when the order of confirmation was made by the State of Punjab.

(2) That delay of 27 days in forwarding the representation by the State of Punjab to the Advisory Board renders the detention illegal.

I take up point No. 1. The order of detention was served on the detenu on December 11, 1971, while the order of confirmation was made on March 14, 1972. Thus, confirmation was made more than three months after the date of detention. Under Clause (4) of Article 22 of the Constitution, an order of confirmation of detention has to be passed by the State Government within three months of the date of detention. The question whether it could be so on the basis of the language of Clause (4) of Article 22 of the Constitution came up for consideration in the Supreme Court in Shri Ujjal Mandal v. The State of West Bengal Writ Petition No. 420 of 1971 decided by Supreme Court on 21st January, 1972. It was held that if order of confirmation is not passed by the State Government within three months from the date of detention of a detenu, the detention becomes illegal. Bound as I am by the decision of the highest Court in India, I declare the detention of the detenu in the instant case to be illegal.

Even on point No. 2, I find that the detention of the detenu is illegal. As is clear from the facts given above, the representation made on behalf of the detenu was received back, from the District Magistrate after he appended his comments to it in the office of the Home Secretary on January 20, 1972. It was forwarded by the Secretary to the Advisory Board on February 16, 1972. There is no explanation whatsoever forthcoming on behalf of the Respondents as to why no attention was paid for as long a period of time as 27 days to deal with the representation and why utter callousness was shown in not caring to forward promptly the representation soon after it was received. Under Clause (5) of Article 22 of the Constitution, a detenu has to be afforded the earliest opportunity in making a representation against his order of detention. The affording of the earliest opportunity loses its purpose and significance, if after the representation is made, the same without any justifiable cause is retained in the office of the'' Home Secretary of a State Government and no heed, for its being promptly forwarded to the Advisory Board, for whose consideration it is meant, is paid to it. The expression, ''afford him earliest opportunity'' in making a representation in Article 22(5) cannotes that the representation should be dealt with by the Home Secretary soon after its receipt, no time should be lost in forwarding it to the Advisory Board and the Advisory Board should hear a detenu on the earliest date to be fixed after a period of time just sufficient to enable the detenu to appear and be heard in support of representation. The words, ''the earliest'' in that expression mean the minimum time just sufficient for the said three purposes and nothing more. The words ''in making the representation'' in relation to the affording of the earliest opportunity not only mean filing, presenting or forwarding the representation but also and more so effectively enabling him to place at the earliest his case before the Board. This implies that a detenu should be heard by the Board within minimum period of time indispensably necessary to forward the representation and to enable him to appear for being satisfactorily heard in its support by the Board. The safeguard provided for a detenu in Clause (5) of Article 22 of the Constitution to protect him against invasion upon his civil liberty guaranteed to the citizens of the country becomes illusory, if the representation made on behalf of a detenu detained under the law pertaining to preventive detention is not forwarded by the State Government to the Advisory Board soon after it is received. This unexplained delay, inordinate and culpable as it is, vitiates the detention and renders it illegal.

For the foregoing reasons, I allow the writ petition and direct that the detenu be forthwith set at liberty.