ABDUL KARIM AND OTHERS versus STATE OF WEST BENGAL

Citation: [1969] 3 S.C.R. 479 · Decided: 31-01-1969 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Appeal(s) allowed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
ABDUL KARIM AND OTHERS 
v. 
STATE OF WEST BENGAL 
January 31, 1969 
B 
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.) 
c 
D 
E 
F 
G 
H 
Preventive Detention Act IV of 1950 Ss. 3(2), 8, 9, 10 &o 11(1)-Com. 
titution of India, Art. 22 (5)-I/ State Government under an obligation 
to consider representation of detenu before forwarding to Advisory Board. 
The petitioners were detained by orders of detention under s. 3 (2) of 
tho Preventive Detention Act IV of 1950. After the grounds of detention 
were communicated to them, they made representations to the State Gov-
ernment agaiust their detention. These were considered by the Advisory 
Board which reported under section 10 of the Act that there was sufficient 
cause for detention in each case and the State confirmed the detention& 
under s. 11 (1) di the Acl By petitions under Article 32 of the Constitu-
tion, the petitioners challenged the legality of 
their detention on the 
ground that the representations made hy them against their orders of de-
tention were not considered by the respondent Government, but were 
merely forwarded hy it to the Advisory Board. 
It was contended on behalf of the. State Government that there was no 
obligation on it to consider the representations since an Advisory Board 
had been constituted under Section 8 of the Act to consider the cases of. 
the detenus and had reported that there was sufficient cause for their deten-
tion; and that there was no exp·ress language in Article 22 (5) of the Coll8-
titution requiring the State Government to consider the representations o'i 
the detenus. 
An alternative contention was that 
the State Government 
might be obliged to consider the representat,ion of a detenu only in a case 
• where the detention was for a period o! less than three months ar in a case 
contemplated by Article 22 (7). 
HELD: The orders of detention against the petitioners were illegal 
and ultra vires. 
It is necessarily implicit in the language of Art.. 22 (5) that the State 
Government to whom the representation is made should praperly consider 
the representation as expeditiously as possible. The constitution of an 
Advisory Board under Section 8 of the Act does not relieve the Stale 
Government from the le~al obligation .to consider the representation of 
the detenu as soon as it ts received by it, and to take appropriate action 
thereon including revocation di the order which it was empowered to do 
under section 13 of the Act. 
[ 486 Hl 
It is manifest that the right under Art. 22 (5) to make a representa-
tion has been guaranteed independent o! the duration of the period o! 
detention and irrespective of the existence or non-existence of an Advisory 
Board. The constitution of an Advisory. Board for the purpose di report-
ing 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 i>f considera-
tion by the State Government whether a person should be detained even 
for a single day. Even if a reference has to be made to the Advisory 
Board under section 9 of the Act, the appropriate Government is, under 
a legal obligation, to consider the representation of the detenu before ruch 
a reference is made. 
[488 DJ 
480 
SUPREME COURT REPORTS 
[1969] 3 S.C.R. 
All the procedural requirements of Article 22 a:re mandatory in charac-
ter and even if one of the procedural requirements is not complied with · 
the order of detention would be rendered illegal. [489 Al 
' 
ORIGINAL JURISDICTION : Writ Petition No. 327 of 1968. 
Petition under Art. 32 of the Constitution of India for a writ 
in the nature of habeas corpus. 
R. K. Garg, for the petitioneni. 
Debabrata Mukherjee, P. K. Chakravarti and G. S. Chatter-
jee, for the respondent. 
'The Judgment of the Court was delivered by 
Ramaswami, J. In this case the petitioners have obtained a 
rule ~g 
upon the respondent, viz., the State of West Bengal, 
to show cause why a writ of habeas corpus should not be issued 
under Art. 3 2 of the Comtitution directing their release from 
detention under orders passed under s. 3 ( 2) of the Preventive 
Detention Act, 1950 (Act IV of 1950) (hereinafter called the 
Act). Cause has been shown by Mr. Debabrata Mukherjee and 
other coun$eJ on behalf of the respondent to whom notice of the 
rule was ordered to be given. 
At the conclusion of the hearing of this petition on 15th Janu-
ary, 1969, we directed the release of these petitioners and said 
that the reasons would 

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