LexDR. RAHAMATULLAH versus STATE OF BLHAR AND ANR.
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DR. RAHAMATULLAH
v.
STATE OF BlHAR AND ANR.
Septemher 28, 1981
[A.P. SEN AND BAHARUL !SLAM, JJ.J
Constitution of India 1950, Art. 22(5) and National Security Act 1980,
S. 3(2)-Preventive Detention-Jlepresenfotion of detenu-Consideration by
Government-Necessity of
The petitioner was detained under section 3 (2) of the National Security Act
1980. The order of detention was passed by the District Magistrate on April 30,
1981, and the grounds of detention were served on the petitioner on May I, 1981.
The State Government approved the order of detention on May 7, 1981, and
referred the matter to the Advisory Board on May 19, 1981. The petitioner
submitted his representation against the detention on May 31, 1981 and a copy
of the same was sent to the Advi'iiory Board. The Advisory Board by its report
dated June 29, 1981 gave its opinion that there was sufficient ground for deten-
tion. On receipt of the report, the State Government confirmed 1he dete-ntion
ar.d directed detention of lhe petitioner for a period of one year.
In the \1/rit petition to this Court it \\'as contended on behalf of the petitioner
that the State Government did not consider the representation submitted by the
petitioner and thereby violated Article 22 (5) of the Constitution.
A II owing the writ petition,
HELD : l. The law is well-settled that in case of preventive detention of
a citizen, the obligation of the appropriate Government is two-fold: (i) to afford
the detenu the opportunity to make a representation and to consider the represen-
taNon which may result in the release of the detenu, and (ii) to constitute a
Board and to communicate the representation of the detenu alongwith other
materials 10 the Board to enable it to form its opinion and to obtain such opi-
nioo. The former is distinct from the latter.
As there is a two-fold obligation
of the appropriate government, so there is a two-fold right in favour of the
detenu to have his representation considered by the appropriate government and
to have the representation once again considered by the Government in the light
of the circumstances of the case considered by the Board for the purpose of
giving its opinion. [840 B-D]
Jn the instant case, the State Government did not discharge the first of the
two-fold obligation and waited tiJI 1he receipt of the Advisory Board's opinion.
There v .. as an unexplained period of twenty-four days of non-consideration of the
RAHAMATULLAH 1', BIHAR (Baharul ls/am, J.)
837
representation. This shows there was no independent consideration of the repre.
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sentation by the State Government on the contrary they deferred its consideration
till they received the report of the Advisory Board. This is clear non-compliance
of Art. 22 (5). The order of detention is therefore, liable to be qua<hed. [84GE-FJ
2. The normal rule of law is tbat whi:n a person con1mits an offence or a
number of offences, he should be prosecuted and punished in ac.:ordance with
the normal appropriate criminal law; but if he is sought to be detained under any
of the preventive detention laws as may often be necessary to prevent further
commission of such offences, then the provisions of Article 22 (5) must be comp.
lied with. This sub-article provides that the detaining authority shall as soon as
may be communicate the grounds of detention and shall afford him the earliest
opportunity of making a representation against the order. The opportunity of
making a representation is not for nothing. The representation, if any, submit-
ted by the detenu is meant for cono;ideration by the Appropriate Authority with-
out any unreasonable delay as it involves the liberty of a citizen guaranteed by
Article 19 of the Constitution. [839 E-840 A)
Narendra Purushotam Umrao etc. v. B. B. Gujral and Ors., [1979] 2 SCR 315
and Pankaj Kumar Chakraborty and Ors. v. State of West Bengal, [1970] 1 SCR
543, referred to.
ORIGINAL JURISDICTION
Writ Petition (Crl.) No. 5124 of
1981
(Under Article 32 of the Constitution of India)
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R. K. Garg,
V. J. Francis and Su nil Kum u Jain for
the
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Petitioner.
K.G. Bhagat and D. Goburdhan for the Respondents.
The Judgment of the Court was delivered by
BAHARUL ISLAM, J.
This is a writ petition under Article 32
of the Constitution by the petitioner who ha> been detained under
Section 3(2) of the National Security Act, 1980 (hereinafter "the
Act").
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