SMT. GRACY versus STATE OF KERALA AND ANR.

Citation: [1991] 1 S.C.R. 421 · Decided: 15-02-1991 · Supreme Court of India · Bench: B.C. RAY · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SMT. GRACY 
A 
v. 
STATE OF KERALA AND ANR. 
FEBRUARY 15, 1991 
[B.C. RAY, L.M. SHARMA AND J.S. VERMA, JJ.] 
B 
Constitution of India, 1950: Article 22(5)-Preventive detention 
-Safeguards-Representation of detenu under the Prevention of Illicit 
Traffic in Narcotic Dtugs and Psychotropic Substances Act-Addres-
sed to the Advisory Board-Consideration by Government independent 
of Board's consideration-Dual obligation of both the authorities-Mode 
of address only a matter of form-Constitutional quarantee-Mandatory. 
c 
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic 
._ / Substances Act, 1988: Section 3-Preventive detention-Representa-
-Y 
tion of detenu addressed to Advisory Board-Consideration by 
Government independent of Board's consideration-Dual obligation 
D 
of both the authorities-Mode of address Qnly a matter of form-
Constitutional mandate under Article 22(5)-Can't be whittled down. 
The petitioner's son was arrested on 19.10.1989 on the accusation 
that he and his brothers were involved in extensive illicit cultivation of 
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ganja plants in violation of the provisions of Narcotic Drugs and 
E 
Psychotropic Substances Act, 1985 (NDPS Act). The Mngistrate before 
whom he was produced, rejected the bail application. The Sessions 
Court granted conditional bail. The detention order dated 25.1.1990 
was served on the detenu on 30.1.1990. The order stated that though 
prosecution was likely to be initiated under the NDPS Act, there was 
every likelihood of his continuing the cultivation of ganja plants and 
F 
. 
thus there was a compelling reason to detain him under the Prevention 
_-...) ~f 
Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 
1988. The detenu was informed of his right to make a representation to 
the detaining authority, Central Government and the Central Advisory 
Board against the detention order. The mode of representation was also 
indicated along with the grounds of detention, in accordance with Arti-
G 
cle 22( 5) of the Constitution of India. 
In accordance with the procedure, the Central Government refer-
red the case to the Central Advisory Board. During the pendency of the 
reference, the detenu made a representation to the Advisory Board. 
The Advisory Board considered the reference along with the detenu's 
421 
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422 
SUPREME COURT REPORTS 
[1991] 1 S.C.R. 
A representation and came to the conclusion that there was sufficient 
cause to justify his preventive detention. Thereafter, the Central 
Government made an order dated 24.4.1990 confirming its earlier 
order and directing his detention for a period of two years. 
B 
In the present Writ Petition, the mother of the detenu prayed for 
quashing of the detention order contending that there has been infrac-
tion of the guarantee under Article 22(5) of the Constitution as a result 
of the Central Government's omission to consider the representation of 
the detenu, independent of its consideration by the Advisory Board. 
Petitioner aiso challenged the stand of the Central Government that 
there was no obligation on it to consider the representation of the 
C 
detenu independently since the same was addressed to the Advisory 
Board and not to the Central Government. 
Allowing the Writ Petition, this Court, 
0 
HELD: 1. The obligation of the Government to consider the rep-
resentation is different and in addition to the obligation of the Advisory 
Board to consider it at the time of bearing the reference before giving its 
opinion to the Government. Consideration of the representation by the 
Government has to be uninfluenced by the view of the Advisory Board. 
The detenu's right to have the representation considered by the 
E 
Government.under Article 22(5) of the Constitution is independent of 
the consideration of the detenu's case and his representation by the 
Advisory Board. [426G-H] 
K.M. Abdulla Kunhi and B.L. Abdul Khader v~ Union of India 
and Ors., State of Karnataka and Ors., JT 1991 (1) SC 216; relied on. 
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F 
2. Any representation of the detenu against the order of bis 
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detention has to be considered and decided by the detaining authority, ----.., 
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H 
the requirement of its separate consideration by tbe Advisory Board 
being an additional requirement implied by reading together clauses ( 4) 
and (5) of Article 22, even though express mention in Article 22(5) is 
only of the detaining authority. The order of detention is by the detain-
ing authority and so also the order of

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