PANKAJ KUMAR CHAKRABARTY AND ORS. versus STATE OF WEST BENGAL

Citation: [1970] 1 S.C.R. 543 · Decided: 01-05-1969 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Appeal(s) allowed

Cited by 9 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A 
PANKAJ KUMAR CHAKRABARTY AND ORS. 
v. 
STATE OF WEST BENGAL 
May 1, 1969 
B 
[J.M. SHELAT, Y.. BHARGAVA, C. A. VAIDIALINGAM, JC. S. HEGDB 
c 
D 
E 
F 
G 
H 
AND A. N. GROVER, JJ.] 
Constitution of India, Art. 22(5)-Preventive Detention-Representa-
tion if to be considered by Government-Preventive Detention Act ( 4 of 
1950), ss. 7 and 13. 
The petitioners who were detained under ss. 3(l)(a) (ii) (iii) and 
3(2) of the Preventive Detention Act, 1950, made representations to the 
State Government against their detentions. The representations were made 
after their cases were placed before the Advisory Board. Tho State Govern-
ment without consideriog the representations, 
passed them on to the 
Advisory Board. The Board considered the case of the petitioners as well 
as their representations to the Government and confirmed tho drder of 
detention. The petitioners filed a writ of habeas corpus, challenging their 
detentions on the grouiid that the State Government had failed to carry out 
its obligation under Art 22(5) of the O:m.stitution to consider the repre-
sentation. 
On the questions (i)· whether there is on the 
appropriate 
Government the obligation to consider the representation made by detenue, 
and (ii) if there is, whether it makes any difference where such a represen-
tation is made after the detenue's case is referred to the Advisory Board. 
HELD : Setting ·aside the detention, 
(i) Clause (5) of 'the Art. 22 not only contains the obligation of the 
appropriate governmeQt to furnish the grounds and to give the earliest 
opportunity to make 'it representation but also by necessary implication· 
the obligation to co~ider that representation. 
The expre,.ions "as soon 
may be" and "the eai:liest 91'portunity" in that clause clearly iedicate that 
the grounds are to be'~erved and that the opportunity to make a represen-
tation is provided for'· to enable the detenue to show that his detention is· 
unwarranted and since: no other authority who should consider such repre-
sentation is mentiQlled it can only be the detaining authority to whom it is 
to be made which hllS to consider. [548 B, FJ 
'Sk. Abdul Karim v. State of West Bengal, 
[1969] 3 S.C.R. 479, 
approved. 
(ii) The Constitution could not have intend~d that a representation 
under cl. (5) need' not be considered by the appropriate Government 
where an Advisory Board is constituted. If that was the intention cl. (5) 
would not have directed the detaining authority to afford the 
earliest 
opportunity to the delenue. In imposing the obligation to afford the oppor. 
tunity to make a represPDtation cl. (5) does not make any distinction 
between orders of detention for only three months or le5s, where there is. 
no necessity of haviQg the opinion of an Advisory Board, and those for a 
longer duration. The clause does not say that the representation is to be 
considered by the appropriate Government in the former class of cases 
and by the Board in lhe latter class of cases. The obligation of the Govern-
ment oo consider •e representation is distinct from the obligation 
to 
constitute an Advisqry Board. 
Whereas the Government considers the· 
representation to ascertain whether the order is in conformity with its. 
544 
St:PREME COURT REPORTS 
( 1970] I S.C.R. 
power .under t~c relevant law,, t~e Boa~J co~s!ders such representation from 
the point of v1.ew of also arnv1ng at us op1n1on ""'hether there is 3ufticien• 
case for detention. 
(549 B·C, B-H]. 
· 
• 
The provb.ions o~ lhe Act also strengthen the conclusion that the Gov-
em~ent h_as to consider the representation. 
If the reprec;entation '-"·as to: 
cons1d~rahon 001 by the Go\ernmi!nt but by the Board 1here "'·as no 
necessny. to provide in s. 7 that it should be addressed to the Goveramont. 
Further, 11 could not have been the intention of Parliament that the Govern-
ment ~ould pass an order under s. J 3 revoking or rnodifyin& an order of 
detention without considering the represcn.tation v..·hich ha!! under 
c; 
7 
been addrc>S<d to it [550 C-Fl 
· 
Sk. Abdul Karim v. Stc:te of WeJt Bengal, 
(1969] 
3 S.C.R. 
.+79, 
approved. 
0RIGISAL Jt:R1so1cnos : Writ Petitioo. No. 377 of 1968. 
Petition under Art. 32 of the Constitution of India for the 
enforcement of fundamental rights. 
S. N. Prasad, for the petitioners Nos. 15 and 36. 
S11kumar Basu, for the respondent. 
R. S. Garg and A. K. Gupta, for interveners Nos. I Io 5. 
Niren De, A110rncy-General. R. II. Dhebar and S. P. Nayar. 
for interven

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