1969 (1) TMI 73 - SC - Indian Laws

Summary

Issues Involved:
1. Legality of the detention orders under the Preventive Detention Act, 1950.
2. Requirement for the State Government to consider representations made by detainees before forwarding them to the Advisory Board.
3. Compliance with procedural safeguards under Article 22(5) of the Constitution.

Detailed Analysis:

1. Legality of the Detention Orders under the Preventive Detention Act, 1950

The petitioners sought a writ of habeas corpus for their release from detention under orders passed under Section 3(2) of the Preventive Detention Act, 1950. The detention orders were issued by the District Magistrate of Hooghly, citing the necessity to prevent actions prejudicial to the maintenance of essential supplies and services. The grounds for detention included specific instances of unauthorized transportation of rice, which were communicated to the detainees. The Advisory Board later confirmed the detention orders, and the Governor of West Bengal upheld them under Section 11(1) of the Act.

2. Requirement for the State Government to Consider Representations

The core argument presented by the petitioners was that their representations were not considered by the State Government before being forwarded to the Advisory Board. The respondent's counter-affidavits were vague and did not categorically deny this allegation. The court emphasized that Article 22(5) of the Constitution implicitly requires the State Government to consider detainees' representations as expeditiously as possible. The constitution of an Advisory Board does not absolve the State Government from this legal obligation. The court held that the right to make a representation includes the right to have it properly considered by the authority to whom it is made.

3. Compliance with Procedural Safeguards under Article 22(5) of the Constitution

The court underscored that Article 22(5) guarantees detainees the right to be informed of the grounds of detention and to make a representation against it. This right is independent of the duration of detention and the existence of an Advisory Board. The State Government must consider the representation promptly and take appropriate action. The failure to do so renders the detention order illegal. The court rejected the respondent's argument that the State Government need not consider the representation if a reference is to be made to the Advisory Board.

Conclusion

The court concluded that the detention orders against the petitioners, including Sk. Abdul Karim, Nirmal Chandra Jana, Sk. Ibrahim, and Nur Mohd., were illegal and ultra vires due to the State Government's failure to consider their representations before forwarding them to the Advisory Board. The procedural safeguards under Article 22(5) were mandatory, and non-compliance rendered the detention orders invalid. Consequently, the petitioners were entitled to be released. The petition was allowed.