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1991 (2) TMI 232 - SC - Indian LawsWhether 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? Held that - As 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.
Issues:
Violation of Article 22(5) of the Constitution by Central Government's failure to consider detenu's representation independently of the Advisory Board's opinion. Detailed Analysis: 1. The writ petition was filed under Article 32 of the Constitution to challenge the detention order of the detenu under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act). The detenu was accused of illicit cultivation of ganja plants, leading to his detention for two years. The sole argument presented was the violation of Article 22(5) of the Constitution, which guarantees the right to make representation against the detention order. 2. The detenu was arrested for drug-related offenses and subsequently detained under the PITNDPS Act. The Central Government confirmed the detention based on the opinion of the Advisory Board without independently considering the detenu's representation. The detenu's representation was addressed to the Advisory Board during the pendency of the reference, but the Central Government did not assess it separately. 3. The main issue revolved around whether the Central Government's failure to independently consider the detenu's representation violated the guarantee under Article 22(5) of the Constitution. The Central Government argued that since the detenu's representation was addressed to the Advisory Board and not directly to them, they were not obligated to consider it independently. 4. The Constitutional mandate of Article 22(5) was analyzed in light of previous judgments, emphasizing the detaining authority's duty to consider the detenu's representation independently of the Advisory Board's opinion. The detaining authority must assess the representation to ensure compliance with the law, separate from the Advisory Board's role in evaluating the necessity of detention. 5. The Court clarified that the detenu's right to have their representation considered by the detaining authority is distinct from the Advisory Board's consideration. The detaining authority must evaluate the representation without being influenced by the Board's opinion, as mandated by Article 22(5) to safeguard personal liberty. 6. The contention that the detaining authority was not obligated to consider the detenu's representation due to its submission to the Advisory Board was rejected. The Court emphasized the importance of strict compliance with Article 22(5) to uphold personal liberty, regardless of the mode of address of the representation. 7. It was established that the detaining authority's duty to consider the detenu's representation independently remains even if the representation is addressed solely to the Advisory Board. The Court emphasized that the detaining authority's obligation under Article 22(5) is crucial in preventive detention cases to ensure the proper consideration of the detenu's representation. 8. Consequently, the Court ruled in favor of the petitioner, quashing the detention order and its confirmation by the Central Government. The judgment did not affect the detenu's prosecution for the alleged offense or imply a direction for release if in custody due to bail refusal. The writ petition was allowed based on the breach of the Central Government's duty under Article 22(5) of the Constitution.
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