JUDGMENT
D.P. Wadhwa, J.
(1) This petition under Article 226 of the Constitution is directed against the order dated 7 August 1993 passed by the Commissioner of Police, Delhi, in the exercise of powers conferred upon him under section 3(2) of the National Security Act, 1980 (for short “the N.S.A.”) on his satisfaction that it was necessary to detain the petitioner with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. In pursuance of this order the petitioner was detained on 13 August 1993. We may note that powers for detention under the N.S.A. have been delegated to the Commissioner of Police and extended from time to time. There is no challenge, however, in this petition to the competency of the Commissioner of Police to pass the impugned order of detention.
(2) Under the provisions of the N.S.A. the petitioner was communicated the grounds of detention. In the grounds it was mentioned that the petitioner could represent against ais detention to the Central Government. If we refer to the grounds, serious allegations have been made against the petitioner pointing to his prejudicial activities necessitating the passing of the impugned order. For the purpose of decision of this petition it is not necessary to refer to the grounds of detention and the plea of the petitioner as to how the grounds are not sustainable resulting in his detention.
(3) We may also note that the order of detention has since been approved by the Lt. Governor of the National Capital Territory of Delhi as well as the Central Government as per sub-section (5) of section 3 of the N.S.A.
(4) The petitioner represented against his detention to the Lt. Governor under clause (5) of Article 22 of the Constitution as well as to the Central Government, and the Advisory Board constituted under section 9 of the N.S.A. His representation is dated 18 August,1993. While the Lt. Governor rejected his representation on 10 September 1993, the order of the Central Government rejecting the representation was communicated to the petitioner on 13 October 1993. We required the Central Government to disclose the reasons for delay in disposing of the representation of the petitioner which is to be considered and disposed of with all the promptitude. Since no proper explanation was forthcoming in the return filed by the Central Government we required the relevant file to be produced in court. The file has been perused by us. The representation for the first time was dealt in the Ministry on7 September 1993 after comments had been received from the Commissioner of Police, the detaining authority. These comments are the repetition of the grounds of detention. But what we find is that when the matter was placed before the Home Minister he directed that the representation be kept pending till the opinion of the Advisory Board was received. It was mentioned in the nothings submitted to the Home Minister that the opinion of the Advisory Board would be received on or before I October 1993. After the same had been received the Minister rejected the representation by order dated 9 October 1993. The Advisory Board had opined that there was sufficient cause for the detention of the detenu, the petitioner.
(5) We do not think in the present case the representation of the petitioner has been dealt by the Central Government without any unreasonable delay. The representation had to be examined independently of the opinion of the Advisory Board and it was wrong for the Central Government to await the opinion of the Advisory Board for it to act on the representation of the petitioner. If, however, during the course of the representation the opinion of the Advisory Board is received, the Central Government could look into that as well while making order on the representation. But the Central Government cannot invariably act on the opinion of the Advisory Board and it is not bound by it as it has power to revoke or modify the detention order at any time before the expiry of the period of detention. In K.M.Abdulla Kunhi and B.L.Abdul Khader v. Union of india and others, , the court held that confirmation of detention did not preclude the Government from revoking the order of detention upon considering the representation, and there might be cases where the Government had to consider the representation only after confirmation of detention. The representation could be received even after confirmation of the order ofdetention. As to the role of the Advisory Board and that of the Government in considering the representation the Supreme Court, observed as under :- “IT is now beyond the pale of controversy that the constitutional right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government’s obligation to refer the case of detenu along with the representation of the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by by any such view of the Board. The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references. The Govern- ment considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient cause for detention. The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government. The right to have the representation considered by the Government, is safeguarded by clause (5) of Article 22 and it is independent of the consideration of the detenu’s case and his representation by the Advisory Board under clause (4) of Article 22 read with Section 8(c) of the Act.” (‘the Act’ here refers to Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.)
(6) The representation has been kept pending for a month and we are of the opinion that the provisions of clause (5) of Article 22 of the Constitution have been violated to the prejudice of the petitioner and his continuing detention is, therefore, illegal. In this view of the matter it is not necessary for us to go into the ‘sufficiency or otherwise of the grounds of detention of the petitioner to see if the subjective satisfaction was correctly arrived at by the detaining authority
(7) Accordingly, this petition is allowed. The impugned order of detention is quashed. The petitioner will be set at liberty forthwith.