SARABJEET SINGH MOKHA versus THE DISTRICT MAGISTRATE, JABALPUR & ORS.

Citation: [2021] 11 S.C.R. 468 · Decided: 29-10-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 11 S.C.R.
[2021] 11 S.C.R. 468
468
SARABJEET SINGH MOKHA
v.
THE DISTRICT MAGISTRATE, JABALPUR & ORS.
(Criminal Appeal No. 1301 of 2021)
OCTOBER 29, 2021
[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATH
AND B V NAGARATHNA, JJ.]
Constitution of India: Art.22(5) – Preventive detention –
Protection to undertrials and detainees – Held: Art.22(5) mandates
that (i) the authority making the order shall “as soon as may be”
communicate the grounds on which the order has been made to the
person detained; and (ii) the detaining authority shall afford to the
person detained “the earliest opportunity of making a representation
against the order” – Both these procedural requirements are mutually
reinforcing – The communication, as soon as may be, of the grounds
of detention is intended to inform the detenu of the basis on which
the order of detention has been made – The expression “as soon as
may be” imports a requirement of immediacy – The communication
of the grounds is in aid of facilitating the right of the detenu to
submit a representation against the order of detention – The
significance of Art.22 is that the representation which has been
submitted by the detenu must be disposed of at an early date.
National Security Act, 1980: s.3(4) – Report to the State
Government – Held: Once an order of detention is made, the officer
making the order must forthwith report the fact to the State
Government, together with the grounds on which the order has been
made and other particulars which have a bearing on the matter.
National Security Act, 1980: s.8(1) – Communication of
grounds of detention – Requirment of immediacy – Held: s.8(1) uses
the expression “as soon as may be”, qualifying it with the requirement
that the communication of grounds should ordinarily not be later
than five days and, in exceptional circumstances, for reasons to be
recorded in writing not later than ten days from the date of detention
– s.8(1) also embodies the second requirement of Art.22(5) of
affording to the detenu the earliest opportunity of making a
representation against the order to the appropriate government –
Constitution of India – Art.22(5).
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National Security Act, 1980: s.8 – Delay in considering the
representation – The requirement under s.8 of the disclosure and
communication of the grounds of detention and the affording of an
opportunity to the detenu of making a representation against such
an order to the appropriate government, is distinct from the reference
to the Advisory Board – In the instant case, in spite of awaiting the
receipt of the report of the Advisory Board which was eventually
issued on 15 June 2021, the State Government took another one
month in arriving at a decision on the appellant’s representation
dated 18 May 2021 – By delaying its decision on the representation,
the State Government deprived the detenu of the valuable right which
emanates from the provisions of s.8(1) of having the representation
being considered expeditiously – The communication of the grounds
of detention to the detenu “as soon as may be” and the affording to
the detenu of the earliest opportunity of making a representation
against the order of detention to the appropriate government are
intended to ensure that the representation of the detenu is considered
by the appropriate government with a sense of immediacy – The
State Government failed to do so – The making of a reference to the
Advisory Board could not have furnished any justification for the
State Government to not deal with the representation independently
at the earliest – The delay by the State Government in disposing of
the representation and by the Central and State Government in
communicating such rejection, strikes at the heart of the procedural
rights and guarantees granted to the detenu – The law provides for
such procedural safeguards to balance the wide powers granted to
the executive under the NSA – State Government cannot expect this
Court to uphold its powers of subjective satisfaction to detain a
person, while violating the procedural guarantees of the detenu
that are fundamental to the laws of preventive detention enshrined
in the Constitution.
National Security Act, 1980: Failure to communicate decision
on the representation – Art.22(4), in guaranteeing a right to make
a representation to the detenu creates a corresponding duty on the
State machinery to render this right meaningful – The detenu’s right
to make a represen

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