Abdus Sukkur v. the State of West Bengal

Judgment

ORIGINAL JURISDICTION : Wri'l Petition No. 85 of 1972. Under Article 32 of the Constitution of India for a writ in ll 1he nature of habeas corpus. S. L. Chhibber, for the petitioner. G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by KbaDDll, J. An order ·was made by the District Magistrate lJurdwan on February 10, 1971 under section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President's Act. No. 19 ol 1970) for the detention of Abdus Suklmr "with ABDUS SUKKUR v. WEST BENGAL (Khanna, J.) es! a view to preventing him from acting in any manner prejudicial to the maintenance of public order". In pursuance of that order, Abdus Sukkur was arrested on September 24, 1971. Abdus Sukkur thereupon filed the present petition through jail under article 32 of the Constitution to challenge his detention. Mr. Chibber argued the case aml'cus curiae on behalf of the petitioner, while the State of West Bengal was represented by Mr. Chatterjee.

After hearing the learned counsel on May 24, 1972 I ordered that, for r~asons to be given later, the petitioner be set at liberty. I now proceed to set out those reasons. The order for the detention of the petitioner, as mentioned earlier, was made b~ the District Magistrate on February 10, 1971., The petitioner, it is stated,· was found to be absconding after the making of that order and he was arrested on September 24, 1971. He was then served with the order of detention along with the ground of detention together with vernacular translation thereof. In the meanwhile, on February 10, · 1971 the District Magistrate sent report to the State Government about the making of the detention order along with necessary particulars. The State Gove,runent approved the detention order on February 18, 1971. The case of the petitioner was placed on October 23, 1971 by the State Government before the Advisory Board.

On October 28, 1971 the State Government received a representation from tho petitioner against his detention. The said representation was considered by the State Government and w~s rejected on November 24, 1971. The representation was thereafter sent to the Advisory Board. The Advisory Board, after considering the material placed before it and aiter hearing the petitioner in person, sent its report t0 the State Government on November 26, 1971. Opinion was expressed by the Advisory Board that there was sufficient caust for the detention of the petitioner. The State Government confirmed the order for the detention of the petitioner on December 1, 1971. It wotil\I appear from the above that though the rept esentation made by the petitioner against his detention was received by the State Government on October 28, 1971, the said Government considered the representation and rejected it on November 24, 1971.

There thus elapsed a period of 27 days between the receipt of the representation and its consideration and rejection by the State Government. As the above delay in considering: and rejecting the representation had not been explained in the affidavit which was initially filed in opposition to the petition on behalf of the State Government this Court adjourned the matter on Mav 5, 1972 to enable the State Government to file an ad'1itional affidavit. When the case was taken up thereafter on May 24, 1972 Mr. Chatterjee. 9-Ll52SupCJ/73 learned counsel for the State, stated that no additional affidavit was to be filed on behalf of the State. It would thus follow that the delay on the part of the State Government jn considering the representation of the petitioner has remained unexplained. This unexplained delay, in my opinion, is sufficient to invalidate the detention of the petitioner.

According to clause ( 5) of article 22 of the Constitution, 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 as may bJ:, communicate to such person the grounds on which the order has been made a!ld shall afford him the earliest opportunity of making a representation agajnst the order. The fact that earliest opportunity Iias to be afforded to the detenUs for making a representation against tl!e detention order necessarily implies that, as and when the representation is made, it should be dealt with promptly. Undue delay on the part of the detaining authority in dispJsing of the said representation wo.uld run counter to the underlying object of clause ( 5) of article 22.

The requirement about the giving of earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if the authority concerned after giving such an opportunity pays no prompt attention to the representation which is submitted by the detenu as a result of that opportunity. It is, therefore, essential that there should be no ·.mdue or unexplained delay on the part of the detaining authority in disposing of the representation made by the detenu against the deten' ion order. In case the authorit1 concerned is guilty of such delay, the de.tention would be liable to be assailed on the ground of infraction of article 22 ( 5) of the Constitution. This is as it should be, because the matter relates to the liberty of a subject who has been ordered to be detained wihout recourse to a regular trial in a court of law.

The authority concerned has, therefore, to p_roceed strictly in accordance with law and any deviation from compliance with legal requirement canno! be countenanced. It has accordingly been laid down in a string of authorities that undue or unexplained delay in the disposal of the representation of the detenu against the detention order would .introduce a serious infirmity in the detention. In the case of Jayanaravan Sukul v. State of West Bengal( 1) the Constitution Bench of this Court laid stress on the imperative necessity of the conside•ation of the representation made by a detenu by the Government as early as possible. It was observed : "It is established bevo"d any measure of doubt that the aporooriate authority is bound to consider the repre- (!) [1970] 3 S.C.R. 225. r ABDUS SUKKUR v. WEST BENGAL (Khanna, J.) sentation of the detenu as early as possible. The appropriate Government itself is bound to consider the repre-· sentation as expeditiously as possible.

The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay 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 i. person is in peril immediate action should be taken by the relevant authorities. No definite time can be laid down within which a represcntaion of a detenu should b!e dealt with save and except that it is a constitutional right of a <ietenu to have his repre!ientation considered as expeditiously as possible." The detenu in that case made a representation to _!he State Government on June 23, 1969 and the same was rejected by the State Government on August 9, 1969.

It was held that the Government was guilty of the infraction of the constitutional provision because of inordinate delay in considering the representation. The petitioner was accordingly set at liberty. Reliance in the case of Jayanarayan Sukul v. State of West Benigal (supra) was placed upon an earlier decision of this Court in the case of Khairu/ Haque v. State of West Bengal, (W. P. No. 246 of 1969 decided on September 10, 1969). In that case this Court held that article 22 ( 5) of the Constitution envisaged a dual obligation oi. the Government and a corresponding dual right in favour of a detenu, namely, ( 1 ) to have his representation independently considered by the Government, and ( 2) to have that representation, in the light of the facts and circumstances of the case, considered by an Advisory Board. It was observed that the said provision enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make 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 Prof. K. L. Singh v. State of Manipur( 1) this Court held that an unexplained delay of 17 days was enough to render the detention illegal. In Baidya Nath Chunkar v. State of West Bengal (W.P. No. 377 of 1971 decided on March 14, 1972) unexplained delay of 29 days in considering , the representation was held to have vitiated the detention of the (I) A.l.R. 1972 S.C. 438. I SUPREMI COURT REPORTS [19'73] 1 S.C.R. detenu. The different cases mentioood above were referred to by this Court in the case of Kanti Lal Bose v. State of We.rt Bengal (W.P. No. 8 of 1972 decided on May 5, 1972) and it was held that unexplained delay of 28 days in considering the detenu's rerresentation would invalidate his detention.

1, therefore, accept the petition and make the rule absolute. V.P.S. Petition allowed;