Yoginder Mohan vs State of Punjab and another

M.M.S. Gujral, J.—The three petitioners in these petitions (Criminal Original Nos. 249-M, 15-M and 16-M of 1971) u/s 491 of the Criminal Procedure Code challenge the validity of the orders of detention passed in respect of each of them by the District Magistrate, Amritsar, under sub-section (2) of section 3 of the Maintenance of Internal Security Act, 1971 (Act No. 26 of 1971) hereinafter called the Act. In these petitions the petitioners seek relief for the issue of a writ of habeas corpus and for a direction that they be released from custody.

The detenue in Criminal Original No. 249-M of 1971 was detained on 12th September 1971. Whereas according to the petitioner the order and grounds u/s 8(1) of the Act were not served on him till 25th September 1971, according to the respondent the order was served on the date Shri Gokal Chand alias Ganja detenue was detained and that the grounds were served on him on 14th September 1971. The District Magistrate made the necessary report under sub-section (3) of section 3 of the Act to the State Government and the Government on a consideration of the grounds and other material received from the District Magistrate approved the detention of the detenue, Shri Gokal Chand alias Ganja. The approval of the order of detention was then communicated to the detenue vide Annexure 1 dated 23rd September 1971. The order of detention mentioned that it was passed with a view to preventing the detenue from acting in a manner prejudicial to the security of the State and maintenance of public order.

The detenue submitted a representation to the State Government through the Superintendent of Jail, Amritsar, on 29th September 1971 in which it was pleaded that the grounds supplied to the detenue were vague and indefinite and that there was no substance in the allegations contained in the grounds of detention supplied to him. Again on 7th October 1971 the detenue submitted another representation to the State Government in which it was pointed out that the previous inquiries which had been held by the Inspector-General of Prisons and the C.I.D. officials revealed that there was no substance in the allegations contained in Annexure 2 and that no ground had been made out for the detention of the detenue.

In Criminal Original Nos. 15M and 16M of 1972 the petitioners-Gurnam Singh and Ajit Singh were detained on 31st October 1971 by the order of the District Magistrate, Amritsar u/s 3(2) of the Act on the grounds mentioned in Annexure A in both the petitions. According to these grounds, the petitioners had been detained to ensure the security of the State and maintenance of public order. On receiving report from the District Magistrate the State Government approved the order of detention issued by the District Magistrate in the case of both these petitioners and by communication dated 28th December 1971, both the petitioners were informed that the Advisory Board had opined that there was sufficient ground for their detention and that in exercise of the powers conferred u/s 12(1) of the Act it was also ordered that both these petitioners would continue to be detained for a period of twelve months from the date of detention.

Gurnam Singh petitioner submitted a representation to the State Government on 17th November 1971 through the Superintendent of Jail, Amritsar, while Ajit Singh petitioner submitted his representation on 15th November, 1971 which was also forwarded through the Superintendent of Jail, Amritsar. In these representations the detention order was challenged on the ground that the grounds were vague and indefinite and that the allegations were false.

On behalf of the petitioner in Criminal Original No. 249M of 1971, Shri Krishna Menon raised various grounds challenging the order of detention passed by the State Government and urged that the matters mentioned in the grounds supplied to the detenue were absolutely vague and were also false. The vires of the Act were also challenged in the petition. Stress was, however, laid on the ground that there had been a violation of Article 22(5) of the Constitution of India inasmuch as there was no consideration of the representations made by the detenue to the Slate Government. On behalf of the other two petitioners Shri Bachittar Singh advanced the same arguments and mainly laid stress on the contention that representations of the petitioners were not considered by the State Government. As the questions involved are common this order will dispose of all the three petitions.

In the reply held on behalf of the State Government it was stated that the grounds of detention were not vague and were based on valid material which had been thoroughly examined by the State Government and the Advisory Board. As to the ground that the representations of the petitioners had not been considered, the reply of the State in Criminal Original No. 249-M of 1971 is contained in the affidavit of Miss Ravneet Kaur, I.A.S., Deputy Secretary to the Government, Punjab, Home Department and the relevant portion is as follows:-

......it is submitted that Government duly considered these representations of Gokal Chand Detenue, found the same to the unsatisfactory and forwarded them to the Advisory Board for their consideration. This was done in compliance with Section 10 of the Maintenance of Internal Security Act No. 26 of 1971 which, inter alia, requires that the appropriate Government shall place before the Advisory Board representation, if any, submitted by the detenue against his detention. Government is not required under the law to take any decision on the representation of the detenue and, therefore, the question of communicating the decision to him does not arise. Advisory Board heard the case on 8th November, 1971, gave a personal hearing to the Detenue and after taking into consideration all the material, the Advisory Board upheld the order of detention by their order dated 8th of November 1971.

In the other two petitions the reply on behalf of the State only stated that the representations submitted by the petitioners were duly considered by the State Government.

Before considering the question whether in these particular cases the representations of the detenus had been considered or not, it would be appropriate to examine the relevant provisions of the Act and of the Constitution and state the legal position in this respect. Section 3 of the Act is as under-

Power to make orders detaining certain persons. (1) The Central Government or the State Government, may-

(a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to-

(i) the defence of India the relations of India with foreign powers, or the security of India, or

(ii) the security of the State or the maintenance of public order, or

(iii) the maintenance of supplies and services essential to the community, or

(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India,

it is necessary so to do, make an order directing that such person be detained.

(2) Any of the following officers, namely:-

(a) district magistrates.

(b) additional district magistrates specially empowered in this behalf by the State Government.

(c) Commissioners of Police, wherever they have been appointed, may, if satisfied as provided in sub-clauses (ii) and (iii) of clause (a) of sub-section (1), exercise the power conferred by said sub-section.

(3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government.

Provided that where u/s 8 the grounds of detention are communicated by the authority making the order after five days but not later than fifteen days from the date of detention, this subsection shall apply subject to the modification that for the words "twelve days" the words "twenty-two days" shall be substituted.

(4) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order.

Under section 8 when a person is detained in pursuance of a detention order, the authority making the order is to communicate the grounds on which the order has been made as soon as may be but ordinarily not later than five days. In exceptional cases, however, and for reasons to be recorded in writing, this could be done within fifteen days from the date of detention. It is further provided in section 8 that the authority making the order shall afford the earliest opportunity to the detenue of making a representation against the order to the appropriate Government. Section 9 then provides for the constitution of one or more Advisory Boards for the purpose of this Act and section 10 provides that within thirty days from the date of detention the appropriate Government shall place before the Advisory Board the grounds on which the order has been made and the representation, if any, made by the person affected by the order. If the order has been made by an officer then the report of such officer submitted under sub-section (3) of section 3 is also to be placed before the Board. In section 11 of the Act the procedure to be followed by the Advisory Board is detailed. Section 12 of the Act provides:-

Action upon the report of Advisory Board.-(1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.

(2) In any case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.

Under section 13 the maximum period for which any person could be detained in pursuance of any detention order which had been confirmed u/s 12 is to be twelve months from the date of detention: Section 14 provides for the revocation of detention order and reads as under:-

(1) Without prejudice to the provisions of section 21 of General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified-

(a) notwithstanding that the order has been made by an officer mentioned in sub-section (2) of section 3, by the State Government to which that officer is subordinate or by the Central Government.

(b) notwithstanding that the order has been made by a State Government, by the Central Government.

(2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order u/s 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be, is satisfied that such an order should be made.

The power of preventive detention contained in the Act is derived from Article 22 of the Constitution and Clause (1) of this provision guarantees to the detenue the right to be informed as soon as possible of the grounds of his detention. Clauses (4) to (7) deal with preventive detention. Clause (5) with which we are primarily concerned is in the following terms:-

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

While interpreting the above clause of Article 22 in Sk. Abdul Karim and Others Vs. State of West Bengal, , Ramaswami, J., while speaking for the Court, made the following observations-

Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by Clause (5) of Article 22. A person detained under a law of preventive detention has a right to obtain information as to the grounds of detention and has also the right to make a representation protesting against an order of preventive detention. Article 22(5) does not expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation. But it is necessarily implicit in the language of Article 22(5) that the State Government to whom the representation is made should properly consider the representation as expeditiously as possible. The constitution of an Advisory Board u/s 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. It is a necessary implication of the language of Article 22(5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action. The constitutional right to make a representation guaranteed by Article 22(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Article 22(5) is a valuable constitutional right and it is not a mere formality. It is obvious that apart from the procedure of reference to the Advisory Board, the State Government has ample power u/s 13 of the Act to revoke any order of detention at any time. If the right of representation in such a case is to be real and not illusory, there is a legal obligation imposed upon the State Government to consider the representation and to take appropriate action thereon. Otherwise the right of representation conferred by Article 22(5) of the Constitution would be rendered nugatory.

It was further observed as follows-

It is also manifest that the right under Article 22(5) to make a representation has been guaranteed independent of the duration of the period of detention and irrespective of the existence or nonexistence of an Advisory Board. The constitution of an Advisory Board for the purpose of reporting whether a person should or should not be detained for a period of more than three months is a very different thing from a right of consideration by the State Government whether a person should be detained even for a single day. The obligation of the detaining authority to consider the representation is different from the obligation of the Advisory Board to consider the representation later on at the time of hearing the reference. It follows, therefore, that even if reference is to be made to the Advisory Board u/s 9 of the Act, the appropriate Government is under legal obligation to consider the representation of the detenu before such a reference is made.

The above view was again reiterated in Pankaj Kumar Chakrabarty and Others Vs. The State of West Bengal, Again, in Jayanarayan Sukul Vs. State of West Bengal, the principles to be followed in regard to the representations of detenus were stated as under-

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 a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by, the Advisory 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 is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the the Government has to be vigilant in the governance of the citizens. A citizen''s right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu''s representation to the Advisory Board. If the appropriate Government will release the detenue the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenue''s representation 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 the Government may still exercise the power to release detenu.

Though in the above cases the Supreme Court was not considering the provisions of the Act, but the provisions of the Act are materially similar to those of the Preventive Detention Act, 1950, which were considered by the Supreme Court in those cases. The observations made above are, therefore, fully attracted to the facts of the present cases. Moreover, the provision in section 8 of the Act relating to the affording of the earliest opportunity to the detenu of making a representation against the order to the appropriate Government, is derived from clause (5) of Article 22 of the Constitution. The duty impugned on the State Government is, therefore, to be exercised in the light of the interpretation put on this clause by the Supreme Court in the case of Abdul Karim and the other two cases to which reference has already been made.

Examining the facts of each case separately, I find that so far as the facts relating to the case of Gokal Chand alias Ganja are concerned it is accepted that both the representations of the detenu dated 29th September, 1971 and 7th October 1971 were received by the State Government. With regard to the consideration of these representations, the reply filed on behalf of the Government is contradictory and the only possible inference from this reply is that these representations were in fact not considered by the appropriate authority. In paragraph 7 of the affidavit of Miss Ravneet Kaur which has already been quoted in extenso, though it is asserted that these representations were duly considered by the Government but at the same time it was pointed out that the "Government is not required under the law to take any decision on the representation of the detenu and, therefore, the question of communicating the decision to the detenu does not arise". It was further stated that the Advisory Board had considered the representation and had also given a personal hearing to the detenu. It is not possible to accept that if no decision is taken on a representation of a detenu it could amount to a consideration of the representation of the detenu within the meaning of Article 22(5) of the Constitution As pointed out by the Supreme Court in Abdul Karim''s case, it is implicit in the language of Article 22(5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action. From this it would necessarily follow that the State Government has to take a decision on the representation as only then any action can be taken on it. If this right of representation is to be an effective and valuable right and not a mere formality, the appropriate authority has to apply its mind with a view to take a decision whether the detention is to continue or it was a case where powers u/s 14 of the Act had to be exercised at that stage. Having regard, therefore, to the nature of the right under Article 22(5) which the detenu has and the nature of the obligation imposed on the State Government to consider the representation at the earliest and to take appropriate action on it, there can be no doubt that if no decision is taken on the representation it would tantamount to the representation not having been considered. The procedural safeguard against the improper exercise of the power of preventive detention contained in Article 22(5) has, therefore, been disregarded in this case and as this requirement is mandatory in character the order of detention of Gokal Chand alias Ganja is rendered illegal Accordingly, the order of detention dated 12th September 1971 and the subsequent order of the State Government confirming the order of detention dated 23rd September 1971 must be held to be illegal and ultra vires and Gokal Chand alias Ganja detenu was entitled to be released.

In the case of Gurnam Singh and Ajit Singh petitioners, the order of detention is defective in the same manner as the order in the case of Gokal Chand alias Ganja. It is not disputed on behalf of the State Government that the only communication sent to the petitioners after they had made the representations was the order dated 18th December 1971 (No. 13888 in the case of Gurnam Singh and No. 13870 in the case of Ajit Singh) whereby the petitioners had been informed by the State Government that the Advisory Board had opined that there was sufficient cause for the detention of these petitioners. It was also accepted on behalf of the State Government that no reply was sent to the petitioners in respect of the consideration of their representations. Shri Kulwant Singh, I.A.S., Home Secretary to Government, Punjab, had tiled an affidavit in each of these two petitions and in these affidavits he had stated that the representations of the detenu was duly considered by the State Government and was found to be unsatisfactory. It is further added that the representation was then forwarded to the Advisory Board for their consideration. In these affidavits there is no mention as to when the representations were received and when these were considered. In the absence of relevant data it is not possible to conclude that the State Government had fulfilled its obligation under Article 22(5) of the Constitution to consider the representation as soon as possible the obligation is not only that the representation should be considered but that it should be considered at the earliest and unless this is done it would amount to disregard of the guarantee provided under Article 22(5). Moreover, the consideration of the representation detaining authority has to be with a view to exercise its powers u/s 14 and to consider whether it was a fit case at that stage for revoking the order of detention. The consideration is not only for the purpose of examining whether it is to be forwarded to the Advisory Board for its consideration. As pointed out by the Supreme Court in Abdul Karim''s case, the obligation of the detaining authority to consider the representation is different from the obligation of the Advisory Board to consider the representation later on at the time of hearing the reference. So far as the obligation of the detaining authority is concerned, it is to take appropriate action on the representation which would include action to revoke the order u/s 14 of the Act. From the fact that no order was communicated to the detenus that their representations had been considered and appropriate action had been taken on those it would be reasonable to infer that in fact there had been no proper consideration within the meaning of Article 22(5). Had there been a proper consideration with a view to take action, there is no reason why the result of the consideration and the decision taken up should not have been communicated to the detenu. It is well settled that the appropriate Government is bound to consider the representation as expeditiously as possible and in Prof. Khaidem Ibocha Singh, etc. Vs. The State of Manipur, the Supreme Court has observed that any delay in the consideration of a representation would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities. The authorities in this case having even failed to show that, if at all, immediate action had been taken on the representations of the two petitioners, I hold that the detention of the two petitioners was illegal. The rule in their case is also made absolute and it is directed that all the three detenus be released forthwith unless they are required in connection with any other case.