PETITIONER:
SMT.GRACY
Vs.
RESPONDENT:
STATE OF KERALA AND ANR.
DATE OF JUDGMENT15/02/1991
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
RAY, B.C. (J)
SHARMA, L.M. (J)
CITATION:
1991 AIR 1090 1991 SCR (1) 421
1991 SCC (2) 1 JT 1991 (1) 371
1991 SCALE (1)211
ACT:
Constitution of India, 1950: Article 22(5)-Preventive
detention -Safeguards-Representation of detents under the
Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act-Addressed 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.
Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988: Section 3-Preventive
detention-Represenation of detents addressed to Advisory
Board-Consideration by Government independent of Board's
consideration-Dual obligation of both the authorities-Mode
of address only a matter of formConstitutional mandate
underarticle 22(5)-Can't be whittled down.
HEADNOTE:
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 ganja plants in violation
of the provisions of Narcotic Drugs and Psychotropic
Substances Act, 1985 (NDPS Act). The Magistrate 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 thus there
was a compelling reason to detain him under the Prevention
of 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 Article 22(5) of the Constitution of India.
In accordance with the procedure, the Central
Government referred 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
422
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.
In the present Writ Petition, the mother of the detenu
prayed for quashing of the detention order contending that
there has been infraction 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 also challenged the stand of the Central
Government that there was no obligation on it to consider
the representation of the detenu independently since the
same was addressed to the Advisory Board and not to the
Central Government.
Allowing the Writ Petition, this Court,
HELD: 1. The obligation of the Government to consider
the representation is different and in addition to the
obligation of the Advisory Board to consider it at the time
of hearing 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 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.
2. Any representation of the detenu against the order
of his detention has to be considered and decided by the
detaining authority, the requirement of its separate
consideration by the 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 detaining authority and so also the order of its
revocation of the representation is accepted, the Advisory
Board's role being merely advisory in nature without the
power to make any order itself. It is not as if there are
two separate and distinct provisions for representation to
two different authorities viz., the detaining authority and
the Advisory Board, both having independent power to act on
its own. (427G-H; 428A-B]
423
3. It being settled that this dual obligation flows
from Art. 22(5) when only one representation is made and
addressed to the detaining authority, there is no reason to
hold that the detaining authority is relieved of this
obligation merely because the representation is addressed
to the Advisory Board instead of the detaining
authority and submitted to the Advisory Board during
pendency of the reference before it. So long as there is a
representation made by the detenu against the order of
detention, the dual obligation under Article 22(5) arises
irrespective of the fact whether the representation is
addressed to the detaining authority or to the Advisory
Board or to both. The mode of address is only a matter of
form which cannot whittle down the requirement of the
Constitutional mandate in Article 22(5) enacted as one of
the safeguards provided to the detenu in case of
preventive detention. [428B-El
4. In the instant case, there has been a breach by the
Central Government of its duty under Article 22(5) of the
Constitution to consider and decide the representation
independently of the Advisory Board's opinion. The order
of detention dated 25.1.1990 as well as the order dated
24.4.1990 of its confirmation passed by the Central
Government are quashed. [428F-G]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (CRL.) No. 1218
of 1990.
(Under Article 32 of the Constitution of India).
John Joseph and T.G.N. Nair for the Petitioner.
A.D. Giri, Solicitor General, Ashok Bhan, Ms. A.
Subhashini and T.T. Kunhikannan for the Respondents.
The Judgment of the Court was delivered by
VERMA J. This writ petition under Article 32 of the
Constitution of India is by the mother of the detenu Noor
alias Babu to quash the detention order F. No. 801/1/90
PITNDPS dated 25.1.1990 passed under Section 3 of the
Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (in short ‘PIT’NDPS
Act’) and the order of confirmation F. No. 801/1/90
PITNDPS dated 24.4.1990 ‘passed under Section 9(f) read
with Section 10(2) of the PITNDPS Act, by the Central
Government directing detention of the detenu for a
period of two yeare w.e.f. 30.1.1990. The only argument
advanced in support of this writ petition is infraction of
Article 22(5) of the Con-
424
stitution of India. The facts material for the point raised
are stated hereafter.
The detenu was arrested from his family estate at
Kochuveetil House, Kuthugal, Udumpanchola Taluk, Idikki
District, Kerala on 19.10-1989 on the accusation that he and
his brothers were involved in extensive illicit cultivation
of ganja plants (Cannabis Sativa) in violation of the
provisions of Narcotic Drugs and Psychotropic Substances
Act, 1985 (in short ‘NDPS Act’), He was produced before the
Judicial Magistrate who rejected his bail application. The
Sessions Judge also rejected the bail application once but
late, granted conditional bail. Thereafter, the detention
order dated 25.1.1990 was served on the detenu on
30.1.1990. It was stated therein that even though
prosecution of the detenu was likely to be initiated under
the NDPS Act, there was likelihood of the detenu indulging
in cultivation and production of narcotic drugs (ganja) on
the detenu being released on bail on account of which there
was compelling necessity to detain him under the PITNDPS
Act. The detenu was informed that he had a right to make
representation to the detaining authority, Central
Government and the Central Advisory Board against the
detention order. The mode of address of the representation
to the Central Government and the Central Advisory Board was
also indicated in the detention order along with the grounds
of detention in accordance with Article 22(5) of the
Constitution of India. The detenu’s case was referred by the
Central Government to the Central Advisory Board on
2.3.1990. During pendency of the reference before the
Advisory Board, the detenu made his representation on
24.3.1990 and addressed it to the Advisory Board. The
Advisory Board considered the reference relating to the
detenu made by the Central Government and also the detenu’s
representation submitted to it. The Advisory Board, gave the
opinion that there was sufficient cause to justify his
preventive detention. The Central Government then made the
order dated 24.4.1990 confirming his detention and directed
that the detenu Noor alias Babu be detained for a period of
two years w.e.f. 30.1.1990.
It is admitted that the Advisory Board considered the
detenu’s representation before sending its opinion to the
Central Government along with the entire record including
the representation submitted by the detenu. It is also
admitted that the Central Government made the order of
confirmation dated 24.4.1990 on receipt of the opinion of
the Advisory Board, but there was no independent
consideration of the detenu’s representation by the Central
Government at any time. In the counter-affidavit filed
initially by Shri A.K. Roy, Under Secretary to
425
the Government of India, this fact was not clearly stated
and, therefore, we directed an additional affidavit to be
filed. In the additional affidavit filed by Shri A.K. Roy,
it has not been disputed that the Central Government did not
at any time consider independently the detenu’s
representation addressed to and given to the Advisory Board.
In the additional affidavit, the stand of the Central
Government in this behalf has been stated thus:
“…… Since the detenu in the present case has
not made any representation to the Central
Government, the assertion in para 2 of the grounds
of petition that no opportunity was afforded by the
Central Government to the said detenu is vehemently
denied. The question of consideration of a
representation and providing of an opportunity
would only arise when a representation is duly made
to the Central Government.”
On the above facts, the question is: Whether there has
been any infraction of the guarantee under Article 22(5) of
the Constitution as a result of Central Government’s
omission to consider the detenu’s representation independent
of its consideration by the Advisory Board? The Central
Government’s stand is that the detenu’s representation being
addressed to the Advisory Board to which it was submitted
during pendency of the reference before the Advisory Board,
there was no obligation on the Central Government also to
consider the same independently since the representation
was not addressed to the Central Government.
The Constitutional mandate in Article 22(5) was
considered recently by a Constitution Bench in 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, in view
of some conflict in earlier decisions of this Court
regarding the detaining authority’s obligation to consider
the detenu’s representation independently of the
Advisory Board’s duty in this behalf. The Constitution
Bench held as follows:
“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 is distinct from the Government’s
obligation to refer the
426
case of detenu along with the representation to
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 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 Government 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 case (sic) 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
cl. (5) of Article 22 and it is independent of the
consideration of the detenu’s case and his
representation by the Advisory Board under cl. (4)
of Art. 22 read with Section 8(c) of the Act.
(See: Sk. Abdul Karim & Ors. v. State of West
Bengal, [ 1969] 1 SCC 433; Pankaj Kumar
Chakrabarty & Ors. v. State of West Bengal,
[1970]1 SCR 543; Shayamal Chakraborty v. The
Commissioner of Police Calcutta and Anr., [ 1969]
2 SCC 426; B. Sundar Rao and Ors. v. State of
Orissa, [ 1972] 3 SCC 1 1; John Martin v. State of
West Bengal, [1975] 3 SCR 2 1 1; S. K. Sekawat v.
Stale of West Bengal, [1975] 2 SCR 161 and
Haradhan Saha & Anr. v. State of IVest Bengal and
Ors., [1975] 1 SCR 778).”
(emphasis supplied)
It is thus clear that the obligation of the Government
to consider the representation is different and in addition
to the obligation of the Board to consider it at the time of
hearing 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. In short, the detenu’s right to have the
representation considered by the Government under Article
22(5) is independent of the consideration of the detenu’s
case and his representation by the Advi-
427
sory Board. This position in law is also not disputed before
us.
The learned Solicitor General, however, contended that
in the present case there being no representation addressed
to the Central Government, the only representation made
by the detenu being addressed to the Advisory Board
during pendency of the reference, there was in fact no
representation of the detenu giving rise to the Central
Government’s obligation to consider the same. The
question is: Whether this contention can be accepted in the
face of the clear mandate in Article 22(5) of the
Constitution?
It is undisputed that if there be only one
representation by the detenu addressed to the detaining
authority, the obligation arises under Article 22(5) of
its consideration by the detaining authority independent of
the opinion of the Advisory Board in addition to its
consideration by the Advisory Board while giving its
opinion. In other words, one representation of the detenu
addressed only to the Central Government and not also to the
Advisory Board does not dispense with the requirement of
its consideration also by the Advisory Board. The question,
therefore, is: Whether one of the requirement of
consideration by Government is dispensed with when the
detenu’s representation instead of being addressed to the
Government or also to the Government is addressed only to
the Advisory Board and submitted to the Advisory Board
instead of the Government? On principle, we find it
difficult to uphold the teamed Solicitor General’s
contention which would reduce the duty of the detaining
authority from one of substance to mere form. The nature of
duty imposed on the detaining authority under Article 22(5)
in the context of the extraordinary power of preventive
detention is sufficient to indicate that strict compliance
is necessary to justify interference with personal liberty.
It is more so since the liberty involved is of a person in
detention and not of a free agent. Article 22(5) casts an
important duty on the detaining authority to communicate the
grounds of detention to the detenu at the earliest to
afford him the earliest opportunity of making a
representation against the detention order which implies the
duty to consider and decide the representation when made, as
soon as possible. Article 22(5) speaks of the detenu’s
‘representation against the order’, and imposes the
obligation on the detaining authority. Thus, any
representation of the detenu against the order of his
detention has to be considered and decided by the detaining
authority, the requirement of its separate consideration by
the 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 detain
428
ing authority. Moreover, the order of detention is by the
detaining authority and so also the order of its revocation
if the representation is accepted, the Advisory Board’s role
being merely advisory in nature without the power to make
any order itself. It is not as if there are two separate and
distinct provisions for representation to two different
authorities viz. the detaining authority and the Advisory
Board, both having independent power to act on its own.
It being settled that the aforesaid dual obligation of
consideration of the detenu’s representation by the Advisory
Board and independently by the detaining authority flows
from Article 22(5) when only one representation is made
addressed to the detaining authority, there is no reason to
hold that the detaining authority is relieved of this
obligation merely because the representation is addressed to
the Advisory Board instead of the detaining authority and
submitted to the Advisory Board during pendency of the
reference before it. It is difficult to spell out such an
inference from the contents of Article 22(5) in support of
the contention of the learned Solicitor General. The
contents of Article 22(5) as well as the nature of duty
imposed thereby on the detaining authority support the view
that so long as there is a representation made by the
detenu against the order of detention, the aforesaid dual
obligation under Article 22(5) arises irrespective of the
fact whether the representation is addressed to the
detaining authority or to the Advisory Board or to both. The
mode of address is only a matter of form which cannot
whittle down the requirement of the Constitutional mandate
in Article 22(5) enacted as one of the safeguards provided
to the detenu in case of preventive detention.
We are, therefore, unable to accept the only argument
advanced by the learned Solicitor General to support the
detention. On this conclusion, it is not disputed that there
has been a breach by the Central Government of its duty
under Article 22(5) of the Constitution of India to consider
and decide the representation independently of the Advisory
Board’s opinion. The order of detention dated 25.1.1990 as
well as the order dated 24.4.1990 of its confirmation passed
by the Central Government are, therefore, quashed. This
shall not, however, affect the detenu’s prosecution for the
alleged offence and it shall also not be construed as a
direction to release him in case he is in custody as a
result of refusal of bail. The writ petition is allowed,
accordingly.
G.N. Petition allowed.
429