JUDGMENT
B.R. Arora, J.
1. The petitioner, by this Habeas Corpus Petition, has challenged the legality and correctness of the order of detention dated 2.10.92, passed by the District Magistrate, Barmer, by which the petitioner was ordered to be detained under Section 3(3) of the National Security Act as his activities were found prejudicial to the security of the State and, therefore, in order to prevent him from acting in any manner prejudicial to the security of the ‘State’, he was ordered to be detained in Central Jail, Jodhpur.
2. The facts which necessitated the Detaining Authority to pass the order on 2.10.92 ordering for the detention of the petitioner, are that from the confidential reports dated 15.5.92 and 1.10.92, received from the Military Intelligence, Barmer, the petitioner was found engaged in espionage and an active agent of Pakistan’s Secret Agency F.I.U. In the confidential report dated 22.4.92 of B.S.F., Barmer, the petitioner was found crossing borders and going to Pakistan casually without any valid passport. The petitioner was, also, a History-sheeter of Police Station, Gadra Road, which is clear from the Village Crime Book maintained at Police Station. As per the reports of the Station House Officer, Police Station, Gadra Road, dated 9.10.87, 11.3.88, 6.7.92, 10.3.92, 17.3.92. 8.9.92 and 2.7.92, also, the petitioner was found engaged in espionage activities since 1985. He used to cross International Borders without any valid Passport and has contacts with the Pakistan’s Intelligence Agencies and passes-on the secret strategic informations to Pakistan’s Secret Agencies and in exchange is getting gold and silver. As the petitioner was found engaged in the espionage activities and supplying important strategic informations to the Secret Intelligences of Pakistan, the District Magistrate, Barmer, on the basis of the materials available with him and on the informations received by him, passed an order for detention of the petitioner in the Central Jail, Jodhpur, in order to prevent him from acting in any manner prejudicial to the security of the State as his activities were found prejudicial to the security of the State. After his detention in the Central Jail, Jodhpur, he was supplied with the Grounds of Detention (Annexure. 2) alongwith the copies of Village Crime Book of village Tamlore, maintained by the Station House Officer, Police Station. Gadra Road, relating to the History sheet of the petitioner (Annexure. 3).
3. Learned Counsel for the petitioner has challenged the legality and validity of the detention order on five grounds, namely, (i) that while passing the order for detention dated 2.10.92, the Detaining Authority has taken into consideration the incident relating to 12.9.88 mentioned in the History-sheet, which was a ground of earlier detention and the order of detention on that ground was set-aside and the second order on this very ground cannot be made; (ii) that the grounds of detention are vague and insufficient and the necessary details of the charges, on which the subjective satisfaction of the Detaining Authority was based, was not supplied to the petitioner, which has deprived the petitioner from making an effective representation; (iii) proper opportunity to represent his case before the Advisory Board was not given to the petitioner as he was informed regarding the meeting of the Advisory Board only a day before; (iv) the representation filed by the petitioner was not considered by the Detaining Authority, who was bound to consider the same and the non-consideration of the representation by the Detaining Authority has resulted in the failure of justice which invalidates the detention of the petitioner; and (v) that there was a long and inordinate delay in sending the representation for consideration to the Central Government, which delayed the consideration of the petitioner’s representation by the Central Government. The learned Additional Advocate General and the Central Government’s Standing Counsel Mr. U.S. Bhargava, on the other hand have supported the detention order passed by the respondent No. 1 and submitted that the order of detention passed by the respondent No. 1 does not suffer from any infirmity as pointed out by the learned Counsel for the petitioner. The order passed by the Detaining Authority is neither malafide nor was there any delay in consideration of the representation sent by the petitioner to the Central Government. According to the learned Counsel for the respondents, even the representation was not required to be sent for consideration to the Central Government as it was only the ‘appropriate government’ which has to consider the same. Regarding the consideration of the representation by the Detaining Authority, it is submitted that the representation was duly considered by the District Magistrate, who after consideration, gave its opinion and parawise comments and forwarded the same for consideration to the appropriate government. It was, also, submitted that the proper details of the charges were supplied to the petitioner and the grounds supplied cannot be said to be vague or insufficient. The confidential reports could not be supplied to the petitioner as their disclosure is against the public interest.
4. Now, we will examine each of the contentions raised by the learned Counsel for the petitioner-detenu and will see whether the impugned detention is vitiated for any of the aforesaid reasons?
5. The first ground, on which the order of detention has been challenged by the learned Counsel for the petitioner is that on the basis of the incident relating to 12.9.88, mentioned in the History-sheet, an order of detention was passed against the petitioner on 8.12.88, which was challenged by the petitioner before this Court by way of filing a writ petition bearing D.B. Habeas Corpus Petition No. 535 of 1990, and this Court, vide its judgment dated 21.8.90, allowed the habeas corpus petition and quashed and set aside the order of detention dated 8.12.88. The contention of the learned Counsel for the petitioner is that as the facts of the earlier detention order, which was set-aside were taken into consideration by the Detaining Authority at the time of passing the order and as such the order passed by the Detaining Authority deserves to be quashed and set-aside. In support of its case, learned Counsel for the petitioner has placed reliance over Hadibandhu Das v. The District Magistrate, Cuttack and Ors. , Harjasdeo Singh v. The State of Punjab , Shaik Hanif and Ors. v. The State of West Bengal , Alek Mohammed v. The State of West Bengal , Ibrahim Bachu Bafan v. The State of Gujarat and Chhagan Bhanwar Kabar v. N.L. Kalna and Ors. . There is no controversy regarding the law that has been laid down in the cases relied upon by the learned Counsel for the petitioner that a fresh border on the same grounds cannot be made under Section 11(2) read with Section 3 of the Act, where previous order has been quashed by the High Court under Article 226 of the Constitution of India. A fresh order under Sub-Section (2) of Section 11 can be passed only on a new fact and if no facts have arisen after the expiry, revocation or setting aside of the earlier order, a fresh order cannot be passed on the same grounds and even those points or incident cannot be taken into consideration for passing the fresh order. Sub-section (2) of Section 14 of the Act authorises the Detaining Authority to pass fresh order only if fresh facts have arisen. Now, in view of the law on the point, it has to be seen whether the incident relating to 12.9.88 was taken into consideration by the Detaining Authority while passing the order of detention dated 2.10.92? The History sheet relating to 12.9.88 is admittedly in the Village Crime Book of village, Tamlore, but the report of the Station House Officer, Police Station, Gadra Road, which has been taken into consideration for passing the order of detention does not relate to the incident dated 12.9.88, and it only relates to the incidents dated 9.10.87, 11.3.88, 6.8.88, 4.7.88, 19.9.92, 2.7.92, 24.2.92, 14.4.92 and 10.6.92. From the grounds Annexure. 2 it is, therefore, clear that while passing the order of detention, the Detaining Authority never took into consideration the incident relating to 12.9.88. No extraneous material was taken into consideration as alleged by the petitioner detenu by the Detaining Authority while passing the order of detention. The contention raised by the learned Counsel for the petitioner is, therefore, devoid of any force and the deserves to be rejected.
6. The next ground, on which the detention order has been challenged, relates to the. vagueness and insufficiency of the grounds of detention supplied to the petitioner. The case of the petitioner is that the copies of the confidential reports submitted by the Intelligence Agencies against the petitioner, mentioned in para No. 1 and 2 of the grounds have not been supplied to the petitioner, which has deprived the petitioner from making effective representation. His further submission that the non-disclosure of the material facts and the particulars to the detenu on the ground of ‘public interest’ can be resorted to only in exceptional circumstances and not in a case like the present one.
7. Sub-section (1) of Section 8 of the Act makes it obligatory on the Detaining Authority to communicate to the detenu the grounds on which the order of detention has been made in order to enable the detenu to make a purposeful and effective representation. The grounds, as contemplated under Section 8(1) of the Act must contain the reason on which the order of detention is based. It must contain the pith and substance of the basic and primary facts. The grounds which are required to be supplied are the conclusion of the facts and not the complete detailed-recital of the facts. The right of the detenu to be furnished with the facts and particulars is subject to the limitation mentioned in Clause (6) of Article 22 of the Constitution of India as well as Sub-section (2) of Section 8 of the Act. The Detaining Authority has a right to with hold such facts and particulars, the disclosure of which it considers to be against the public interest. Whether the disclosure of any fact involves therein against public interest, is within the domain and consideration of the Detaining Authority and not in any other authority. The Detaining Authority, in Grounds No. 1 and 2, has stated that there are confidential reports of the Military Intelligence Agencies against the petitioner showing the involvement of the petitioner-detenu in the smuggling activities as well as in supplying the strategical informations to the Pakistan’s Secret Agencies and further showing the connection of the petitioner with the Pakistan’s Secret Agencies. It has further been stated in the Grounds itself that the disclosure of these two reports is against the public interest and the security of the State. The disclosure of a confidential report and the source of information used in the ground or utilized for making the order of detention and the disclosure of the confidential report is not necessary to be supplied to the detenu. What is necessary for making an effective detention is the disclosure of the material facts and not the copies of the source thereof. In the present case, by indicating the fact that the confidential reports submitted by the Military Intelligence Agencies indicate the connection of the petitioner-detenu with that of Pakistan’s Secret Agencies and the involvement of the petitioner in the smuggling activities, a suggestive disclosure of and the source has, also, been made and there is no infringement of any of the right of the petitioner to make an effective representation. The grounds supplied by the respondents, cannot be said to be vague or insufficient and there is no infringement of any law in not supplying the copies of the confidential reports or disclosing the source thereof by the respondents to the petitioner-detenu. This view taken by us found support from the judgment of the Supreme Court in the case of: Master Lal Mohammed Sabir v. The State of Jammu and Kashmir 1971 Cr. LJ 1271 and the State of Rajasthan and Anr. v. Shamsher Singh 1985 CrLR (SC) 270. In the State of Rajasthan v. Shamsher Singh (Supra), it has been observed by the Apex Court that:
The detenu is not entitled to a disclosure of confidential source of the information used in the grounds or utilized for making the order. What is necessary for the making of an effective representation is the disclosure of materials and not the source thereof. By indicating that the facts have been gathered from confidential reports, suggestive disclosure of the submission of the respondent that there has been an infraction of the law in not supplying to the respondent the copies of the reports or disclosing the source thereof. The respondent had actually been given in the grounds all material details necessary for making an effective representation.
8. The next contention raised by the learned Counsel for the petitioner is that the petitioner was given only one day’s time to represent his case before the Advisory Board, which has resulted in the loss to the petitioner in making proper representation before the Advisory Board. His further contention is that he was not even informed that he can take the assistance of his friend. The right of the detenu to be represented by a friend or through a Lawyer arises only when the Detaining Authority is allowed to be represented by a Higher-ranked Officer or a Lawyer. No such grievance was made by the petitioner before the Advisory Board. The detenu even did not ask for any time to the Advisory Board for representing his case. If such request would have been made before the Advisory Board, petitioner-detenu might have been granted sometime. Instead of making any request for adjournment of the case, the petitioner represented his case before the Advisory Board and the Advisory Board, after hearing (he petitioner, sent his report to the State Government for approving (he detention of the petitioner. The petitioner was not denied the right of hearing or representing his case. The contention, raised by the learned Counsel for the petitioner, in the facts and circumstances of the case, is devoid of any force and deserves to be rejected. Even otherwise, the opinion of the Advisory Board is merely advisory in nature. Its opinion is binding on the appropriate government only if it favours the detenu but if it goes against the detenu then the state government is not bound to accept the opinion of the Advisory Board and can consider the case regarding the continuation of the detention independently on merit.
9. The next ground raised by the learned Counsel for the petitioner is that the representation made by the petitioner was not considered by the Detaining Authority and the Detaining Authority merely forwarded the representation of the petitioner alongwith his comments, which has resulted in the failure of justice and, thus, vitiates the detention order. In support of its case, the learned Counsel for the petitioner has placed reliance over: Smt. Santosh Anand v. The Union of India and Ors. . The case of Smt. Santosh Anand, relied upon by the petitioner, was under the COFEPOSA Act, and Section 11 of the COFEPOSA Act makes a provision for consideration of representation by the Detaining Authority and gives power to the detaining Authority after consideration of the representation, to revoke the Detention order. But under the National Security Act, the power of revocation or modification of the order of detention does not vest in the District Magistrate /Detaining Authority. Section 8 of the Act deals with the supply of the Grounds of the order of Detention to the detenu and making of the representation by him against the order. Sub-Section (1) of Section 8 provides that when a person is detained in pursuance of the detention order, the authority making the order, shall communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate government. Sub-section (1) of Section 8, therefore, provides that the representation against his detention has to be made to the appropriate government and not to the Detaining Authority. Section 14 of the Act gives power to the State and Central Government(s) to revoke or modify an order of detention passed by the authority at any time. Sub-section (a) of Section 14 gives power to the Central Government or the State Government to which the officer is subordinate, who has passed the order under Section 3(3) of the Act. Sub-section (b) of Section 14 gives powers to the Central Government to modify or revoke the detention order if the order has been made by the State Government. The power of modification or revocation of the detention order has been given only to the State Government or the Central Government in cases where the order is passed by the Officer under Sub-section (3) of Section 3 of the Act and to the Central Government when the order is passed by the State Government. No power has been given to the Officer authorised under Sub-section (3) of Section 3 to modify or revoke the order. Even Section 8 does not make any provision for making the representation to the Detaining Authority under Sub-section (3) of Section 3. The Detaining Authority, while passing an order under Sub-section (4) of Section 3, is required to forthwith submit the representation to the State Government, to which he is subordinate, with the ground on which the order has been made and such other particulars as in his opinion have necessary bearing on the matter and no such order shall remain in force after twelve days of the making of such order unless in the meantime it has been approved by the State Government. Sub-section (5) of Section 3 of the Act cast a duty on the State Government to report the fact to the Central Government within seven days when any order is made or approved by the State Government under Section 3 together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government having a bearing on the necessity for the order. Admittedly, in the present case, the Detaining Authority, within twelve days of the passing of the order under Sub-section (3) of Section 3 reported the facts to the State Government alongwith the grounds on which the order was made and the Slate Government, vide its order dated 13.10.92, within twelve days of the order of detention, approved the order passed by the Detaining Authority and reported the fact to the Central Government under Sub-section (5) of Section 3 and the Central Government, by his order dated 28.10.92, approved the order passed by the Detaining Authority as approved by the State Government as in the view of the Central Government, there was no necessity to interfere with the order of detention approved by the Government of Rajasthan and, therefore, there was no reason to revoke or modify the order of detention. In view of the provisions of Section 3, 8, and 14, there was, therefore, no necessity of consideration of the representation by the District Magistrate, i.e., the Detaining Authority. Even otherwise, also, the Detaining Authority, in the present case, after the receipt of the representation forwarded the same for consideration to the State Government after giving his opinion that the representation made by the petitioner-detenu deserves to be rejected and, also, submitted his parawise report/comments giving reasons of his opinion. The representation of the petitioner, alongwith the report of the Detaining Authority and the other materials on record, were considered by the Advisory Board and Advisory Board approved the detention of the petitioner. After the report of the Advisory Board, the State Government again considered the representation of the petitioner, the record of the case, the report of the Detaining Authority and the other materials and by its order dated 24.10.92, rejected the representation made by the petitioner and ordered for the detention of the petitioner since 2.10.92 to 1.10.93.
10. The question whether the representation of the detenu under Section 8 of the Act and under Article 22(5) of the Constitution of India is required to be considered by the District Magistrate ordering for the detention of the petitioner-detenu under Section 3(3) of the National Security Act, came up for consideration before the Hon’ble Supreme Court in the case of: Raj Kishore Prasad v. State of Bihar and Ors. . In that case the contention was raised that the Detaining Authority merely forwarded the representation to the State Government after making its report and without deciding the same, and, therefore, the detention order stands vitiated. Reliance was placed on the same judgment on which reliance has been placed by the petitioner in this case, namely, Smt. Santosh Anand v. The Union of India, and Ors. . The Apex Court distinguished the judgment of the Supreme Court in the case of Santosh Anand in view of the Specific provision contained under Section 8 of the Act, which requires for making the representation to the appropriate government only and not to the Detaining Authority. The Apex. Court, after distinguishing the authority of the Supreme Court in the case of Santosh Anand, observed as under:
However in view of the specific provisions contained in Section 8, which requires that the detaining authority shall afford earliest opportunity to make representation, not to the Detaining Authority but to the appropriate government, it follows as a corollary that the appropriate government must consider it. The Chief Minister has considered the representation and rejected it after calling for the parawise remarks by the Detaining Authority. Therefore, it is not possible to accept the contention that the failure of the Detaining Authority to consider the representation would invalidate the order.
In this view of the matter, the non-consideration of the representation by the Detaining Authority and reporting the matter to the appropriate government alongwith its opinion and parawise comments, does not invalidate the order of detention passed by the Detaining Authority.
11. The last contention raised by the learned Counsel for the petitioner-detenu is that there was a delay in sending the representation by the Detaining Authority to the Central Government, which has resulted in the delay in consideration by the Central Government, which invalidates the detention order passed by the learned District Magistrate and the petitioner deserves to be released forthwith. The first limb of this argument is that the representation was not forwarded by the Detaining Authority for consideration to the Central Government. It is, no doubt, true that the Detaining Authority did not forward the representation for consideration to the Central Government, but only sent the representation alongwith its report/parawise comments for consideration to the State Government. The order of detention, as required under Sub-section (4) of Section 3 was sent by the Detaining Authority alongwith its report/parawise comments to the Central Government under Section 3(5) of the Act together with its report and the Central Government, under Sub-section (5) of Section 3 of the Act, approved the detention order as it was of the opinion that there is no necessity to interfere with the order detention approved by the State Government and there is no reason to revoke or modify the detention order. The representation Annexure. 5, which is placed on record, is addressed to the District Magistrate, Barmer, and to the Home Secretary, only. Section 8 of the Act requires the representation to be made to the ‘appropriate Government’. The District Magistrate, Barmer, i.e., the Detaining Authority, after the receipt of the representation alongwith his report, sent the representation for consideration to the appropriate government. As is evident from the representation Annexure. 5 on record that it was neither addressed to the Central Government nor was any request made on behalf of the petitioner that the representation may be sent for consideration to the Central Government. The case of the petitioner is that the Central Government has been assigned with the power to modify or revoke the detention order and, therefore, it was obligatory for the Detaining Authority to have sent the representation to the Central Government.
12. The controversy in the present case stands concluded by the judgment of a Bench consisting of three Hon’ble Judges of the Supreme Court in the case of: The State of Uttar Pradesh v. Zavad Zama Khan , in which after consideration of the relevant provisions of law, the law on the point, the earlier judgments of the Supreme Court on the point, the Supreme Court held as under:
The principle that emerges for all these decisions is that the power of revocation conferred on the Central Government under Section 14 of the Act is a statutory power which may be exercised on information received by the Central Government from its own sources including that supplied by the State Government under Section 3(5) of the Act or from the detenu in the from of the representation. It is for the Central Government to decide whether or not it should revoke the order of detention in a particular case. In the present case the detenu was not deprived of his right of making the representation to the Detaining Authority under Article 22(5) of the Constitution of India read with Section 8(1) of the Act, although the detenu had no right to simultaneously make a representation against the order of detention to the Central Government under Article 22(2) and there was no duty cast on the State Government to forward the same to the Central Government.
Under Article 141 of the Constitution of India, the law declared by the Supreme Court is binding on all the Courts within the territory of India and this Court is bound to follow the dictum laid down by the Supreme Court. In case of conflict between the decisions of the Supreme Court itself, the judgment of the larger Bench of the Supreme Court has got a binding force, but in case where there are two conflicting judgments of the Supreme Court on the point by the Bench consisting of the same number of Hon’ble Judges then in that case the earlier judgment, given by the Supreme Court has to be followed as precedent because it subsists until it is expressly over-ruled by a larger Bench. A mere expression of disapproval or a judgment given by the Coordinate Bench of the Supreme Court without considering the earlier judgments of the Supreme Court by the same number of Judges cannot over-rule an earlier decision and cannot take away its binding character. It is, no doubt true that the Supreme Court is not bound to follow its own decision under Article 141 of the Constitution of India and is free to reconsider them in appropriate cases, but a Bench of the Supreme Court cannot over-rule or disapprove the decision of another Bench of equal number of Hon’ble Judges and in case of disagreement, the matter should be referred to a larger Bench. The latter Bench decision taking a contrary view because probably the earlier decision was not brought to its notice, will not effect the binding force of the decision of the earlier Bench which was passed by taking into consideration the relevant provisions of law and the earlier judgments of the Supreme Court. It has been held by the Hon’ble Supreme Court in the case of Union of India v. Godfrey Phillips Ltd. , as under:
What has been laid down in Motilal Sugar Mills case in this regard is the correct law. A different view taken in a subsequent decision in Jit Ram v. The State of Haryana expressing Court’s disagreement with the observations made in Motilal Sugar Mills case cannot prevail. A Bench of two Judges in Jit Ram could not over rule or disagree with what has been said by another Bench of two judges in Motilal Sugar Mills. If the two Judges’ Bench in Jit Ram found themselves unable to agree with the law laid down in Motilal Sugar Mills, they could have referred Jit Ram’s case to a larger Bench.
The latter decision given by the Bench consisting of same number of Judges can be said to be given ‘per incuriam’ when the Court acted in ignorance of a previous decision of its own. The latter Bench took a contrary view because probably the earlier decision was not brought to its notice, but by that the earlier judgment of the Bench will not lose its binding force. The Supreme Court, while dealing with the question of ‘per incuriam’, in the case of A.R. Antuley v. R.S. Nayak , observed as under:
Per incuriam’ are those decisions given in ignorance or forgetfulness of some inconsistent statutory provisions or of some authority binding on the Court concerned so that in such cases some part of the decision or some steps in the reasoning on which it is based is found on that account to be demonstrably wrong (See Marellie v. Wakeling)
Similar view has also been taken by the Supreme Court in the case of: Punjab Land Development and Reclamation Corporation Limited v. Presiding Officer, Labour Court and Ors. , while dealing with the question of ‘per incuriam’,
The expression ‘per incuriam’ means through in advertence. A decision can be said generally to be given ‘per incuriam’ when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court. It cannot be doubted that Article 141 embodies, as a rule of law, the doctrine of precedence on which our judicial system is based.
It has, also, been observed in the case Marellie v. Wakeling 1955 (2) Queen’s Bench 372 that “such instances in which the decisions have subsequently been regarded as having been reached ‘per incuriam’, should be limited to the decision given in ignorance or forgetfulness of some statutory pro vision or some authority binding on the Court concerned.” The latter judgment of the Supreme Court in the case of Jai Prakash v. District Magistrate, Bulandshahar; U.P. can be said to have been given ‘per incuriam’ as it has been given without takes the consideration of the earlier judgment in the case of the State of Uttar Pradesh v. Zavad Zama Khan AIR 1984 SC 1092, which was probably not brought to the notice of the Hon’ble Supreme Court at the time of consideration of Jai Prakash’s case, and, therefore, we have to follow the judgment of the Supreme Court given in the case of the State of Uttar Pradesh v. Zavad Zama Khan’s case, being a binding precedent. The latter judgment cannot take away the binding character of the earlier judgment which is a precedent as no subsequent decision has expressly or impliedly over ruled the judgment in the case of the State of Uttar Pradesh v. Zavad Zama Khan (Supra).
13. In the present case, the fact regarding the detention of the petitioner, as required under Sub-section (5) of Section 3 was reported by the State Government after approval alongwith its comments and necessary papers to the Central Government and the Central Government, by its order dated 28.10.92, approved this detention order. In view of the law laid down by the Supreme Court in the case of the State of Uttar Pradesh v. Zavad Zama Khan (Supra), it was not necessary for the State Government to have referred the representation to the Central Government. Neither any representation was made by the petitioner to the Central Government nor was any request made by the petitioner for sending the representation for consideration to the Central Government, but still after the service of the copy of the writ petition, the Central Government called for the representation alongwith parawise reply/comments, the opinion of the Advisory Board. After the receipt of the wireless message, the representation of the petitioner alongwith the parawise comments of the Detaining Authority, the order of the confirmation made by the State Government as well as the relevant record, was sent to the Central Government, which was received by the Central Government and was considered and decided by it on 22.2.93. The representation filed by the detenu was rejected by the Central Government. The order of detention, passed by the learned Detaining Authority, thus, does not suffer from any infirmity,
14. The second limb of this argument is that the representation of the petitioner in the present case has not been given prompt and expeditious consideration and it took about 3-months in its disposal. The delay of such a long period in consideration of the representation, in the absence of satisfactory explanation renders the order of detention invalid. The learned Counsel for the petitioner, in support of its case, has placed reliance over a number of judgments. It is not necessary to refer all the judgments in the present case because the proposition of law deducible from these judgments as well as from the other judgments of the Supreme Court, has been summarised by the Supreme Court in Rama Dhaudu Borade v. V.K. Saraf, the Commissioner of Police and Ors. , in the following words:
“The detenu has an independent constitutional right to make his representation under Article. 22(5) of the Constitution of India. Correspondingly there is a constitutional mandaten commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order, clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose of the same as expeditiously as possible. The constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal since such a breach would defeat the very concept of liberty – the highly cherished right – which Is enshrined in Article 21 of the Constitution of India.
True, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with. The use of the words ‘as soon as may be’ occurring in Article 22(5) of the Constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.
The Constitutional imperative of Article 22(5) is that the concerned authority, to whom the representation has been submitted by the detenu, should consider the representation with immediate dispatch but the delay in the disposal of the representation itself will not make the detention illegal if the delay in disposal of the representation has properly been explained. In view of the judgment of the Supreme Court in the case of: The State of Uttar Pradesh v. Zavad Zama Khan (Supra), it was not necessary for the State Government to have forwarded the representation for consideration to the Central Government as it was neither addressed to the Central Government nor was any request made by the petitioner-detenu for referring the same for consideration to the Central Government, but still the representation was sent to the Central Government and the Central Government considered the representation and rejected the same. The Central Government had already approved the detention of the petitioner-detenu under Sub-section (5) of Section 3 of the Act within a period of three weeks from the date of the order of detention passed by the Detaining Authority.
15. In this view of the matter, the order of the detention, passed by the Detaining Authority does not suffer from any infirmity.
16. In the result, we do not find any merit in this habeas corpus petition and the same is hereby dismissed.