1969 (11) TMI 86 - SC - Indian Laws

Whether the appropriate Government has disposed of the case as expeditiously as possible? Held that - In the present case, the State of West Bengal is guilty of infraction of the constitutional provision not only by inordinate delay of the consideration of the representation but also by putting off the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no explanation for this inordinate delay. The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional, obligation by inactivity and lack of independent judgment. Appeal allowed.

Issues Involved:
1. Delay in consideration of the detenu's representation by the State Government.
2. The constitutional obligation of the State Government to independently consider the representation of the detenu.
3. The role of the Advisory Board in the consideration of the detenu's representation.
4. The legal requirements under the Preventive Detention Act, 1950, and Article 22 of the Constitution.

Issue-wise Detailed Analysis:

1. Delay in Consideration of the Detenu's Representation by the State Government:
The petitioner argued that the State Government did not consider his representation dated 23 June 1969 with reasonable and proper expedition. The State Government referred the matter to the Advisory Board along with the petitioner's representation and considered the report of the Advisory Board before rejecting the representation on 19 August 1969. The Court found that there was no explanation for the delay, and the affidavit of Rathindra Nath Sen Gupta was of little value as it lacked detailed information on the steps and time taken for the enquiry. The Court emphasized that in cases of preventive detention, the State Government is bound to provide the utmost information to the Court, and any delay would be an irresponsible act and unconstitutional.

2. The Constitutional Obligation of the State Government to Independently Consider the Representation of the Detenu:
The Court reiterated that the appropriate Government must consider the representation of the detenu independently and uninfluenced by any opinion or consideration of the Advisory Board. The Court cited previous cases, including Sk. Abdul Karim v. State of West Bengal and Pankaj Kumar Chakravarty v. State of West Bengal, to emphasize that the Government's obligation to consider the representation is independent of the Advisory Board's actions. The Court stated that the constitutional guarantee under Article 22 and the provisions of Section 7 of the Preventive Detention Act require immediate and independent consideration of the detenu's representation by the appropriate Government.

3. The Role of the Advisory Board in the Consideration of the Detenu's Representation:
The Court clarified that the Advisory Board's role is separate from the Government's obligation to consider the detenu's representation. The Government must exercise its opinion and judgment on the representation before sending the case to the Advisory Board. If the Government decides to release the detenu, it need not refer the matter to the Advisory Board. However, if the Government does not release the detenu, it must send the case along with the representation to the Advisory Board. The Advisory Board's opinion is advisory, and the Government may still exercise its power to release the detenu even if the Board's opinion is against the release.

4. The Legal Requirements Under the Preventive Detention Act, 1950, and Article 22 of the Constitution:
The Court discussed the provisions of the Preventive Detention Act, 1950, particularly Sections 3, 7, 8, 9, 10, 11, and 13, which outline the procedures and requirements for detention orders, disclosure of grounds, representation by the detenu, and the role of the Advisory Board. The Court emphasized that the Act and Article 22 of the Constitution guarantee the right of the detenu to have his representation considered by the appropriate Government as expeditiously as possible. The Court highlighted the fundamental principles that the appropriate authority must follow: providing an opportunity to the detenu to make a representation, considering the representation independently, avoiding any delay, and exercising independent judgment before referring the case to the Advisory Board.

Conclusion:
The Court concluded that the State of West Bengal failed to discharge its constitutional obligation by delaying the consideration of the petitioner's representation and by not providing an independent judgment before the Advisory Board's opinion. The inordinate delay and lack of explanation led the Court to allow the petition and order the release of the petitioner. The petition was allowed, and the petitioner was set at liberty.

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