1997 (2) TMI 551 - HC - Indian Laws

Summary

Issues Involved:
1. Non-consideration of the detenu's representation by the detaining authority and the Central Government.
2. Expeditious consideration of the representation against the declaration under Section 10(1) of the PITNDPS Act.
3. Obligation of the Central Government to consider the detenu's representation independently of the Advisory Board's opinion.

Detailed Analysis:

Issue 1: Non-consideration of the detenu's representation by the detaining authority and the Central Government
The detenu, Sayed Haji Baitullah, was detained under Section 3(1) of the PITNDPS Act. The detenu's wife submitted a representation dated 9.10.1995 to the detaining authority, which was received on 11.10.1995. The detaining authority and the Central Government were obliged to consider this representation. However, it was contended that neither the detaining authority nor the Central Government independently considered this representation. The affidavit of Shri A.K. Srivastava confirmed the receipt of the representation but did not indicate any consideration by the Central Government.

Issue 2: Expeditious consideration of the representation against the declaration under Section 10(1) of the PITNDPS Act
The second contention involved the representation dated 9.10.1995 against the declaration dated 14.9.1995 under Section 10(1) of the PITNDPS Act. This declaration allowed detention for more than three months without the Advisory Board's opinion. The representation was received by the declaring authority on 25.10.1995. The contention was that this representation should have been considered expeditiously by both the declaring authority and the Central Government independently of the Advisory Board's opinion. The affidavit of Shri R.K. Tewari indicated that the representation was forwarded to the Advisory Board but did not confirm any independent consideration by the Central Government.

Issue 3: Obligation of the Central Government to consider the detenu's representation independently of the Advisory Board's opinion
The primary contention was that the Central Government was required to independently consider the detenu's representation dated 9.10.1995 against both the order of detention and the declaration under Section 10(1) of the PITNDPS Act. The Supreme Court's decisions in Nand Lal Bajaj v. The State of Punjab and Smt. Gracy v. State of Kerala established that the Central Government must independently consider the detenu's representation without being influenced by the Advisory Board's opinion. The affidavit of Shri R.K. Tewari confirmed that the Central Government did not independently consider the representations at any stage.

Conclusion:
The judgment concluded that the continued detention of the detenu was not permissible as per the law due to the Central Government's failure to independently consider the detenu's representations. The order of detention dated 11 August 1995 was quashed and set aside, and the detenu was ordered to be released from detention. However, it was clarified that the detenu would remain in custody due to pending cases under the NDPS Act where bail had either been refused or not granted.