JUDGMENT D.P. Mohapatra, C.J.
1. On a reference made by a Division Bench of this Court to answer the following points, this case has been listed before us. The points formulated are:
1. Whether under the provisions of National Security Act, 1980, it is obligatory n the detaining authority to inform the detenu that he has a right to make a representation before the Central Government under Section 14 of the and if such information is not given to the detenu while serving the grounds, it shall vitiate the order of detention being in violation of Article 22(5) of the Constitution of India?
2. Whether in a case where the detenu has not been informed about his right to make a representation before the Central Government but he has himself otherwise made a representation or his representation made to the State Government has been forwarded to the Central Government and it has been considered and rejected by the Central Government and no prejudice has been caused to him, even then the order of detention shall vitiate being in violation of Article 22(5) of the Constitution of India?
3. Where the detenu has not made any representation to the Central Government but his representation made to the State Government is forwarded to the Central Government and delay is caused by Central Government in deciding such representation, the order of detention shall be rendered illegal?
2. The relevant facts leading to the present proceeding may be stated thus :
The petitioner, Raj Bahadur Yadav, was lodged District Jail Deoria, on 8-4-1996, in Case Crime No. 67 of 1996, under Sections 147/307/427/504/ 506 I.P.C. and Section 7, Criminal Law Amendment Act. The petitioner, while in jail, was served with the order of detention dated 22-4-1996(Annexure 1 to the writ petition) under the National Security Act, 1980 (hereinafter referred to as the Act). Along with the order of detention, the petitioner was also served with the grounds on the basis of which the detention order was passed against him (Annexure 2 to the writ petition). In the grounds it has been mentioned, inter alia, that taking advantage of unsatisfactory situation prevailing in Krishna Azad Sugar Mill situate in Kasba Gauri Bazar, the petitioner along with co-accused and other persons, at about 10.00 a.m. on 8-3-1996, proceeded towards the residence of the General Manager of the Mill Sri Shailendra Nath Mishra. After making inquiries from agate keeper about the General Manager, the petitioner tried filthy abuses and exhorted the persons accompanying to kill the General Manager; the petitioner incited a crowd which demolished the boundary wall, broke open gates and attacked the General Manager. On being assaulted the General Manager fell on the ground; then the petitioner started pressing his neck and all efforts to save the General Manager proved futile. Thereafter, the petitioner along with other co-accused entered inside the Sugar Mill and destroyed scientific instruments and threw the inflammable chemicals after destroying the same. Somehow the Mill could be saved from a serious fire accident. After coming out of the laboratory, the petitioner again attacked the General Manager, who was lying injured. The intention of the petitioner was to destroy the Mill and to kill the General Manager. The attempt of the petitioner could be frustrated only on arrival of a large contingent of the police force and by intervention of the people assembled there. It has been stated in the grounds that the object of the petitioner was to disturb the public order and peace of the locality by inciting the Mill employees and sugarcane growers. The act of the petitioner was thus prejudicial to the public order and to maintain the public order, it became necessary to detain him. Two other incidents of criminal activities, in which the petitioner was involved, have also been mentioned in the grounds. It has also been mentioned that though his bail application has been rejected by the lower Court, the petitioner is trying to get himself bailed out from the Sessions Court.
3. After mentioning the grounds of detention, the petitioner has also been informed that under Section 8 of the Act he has a right to make representation to the State Government and if he wants to make a representation to the State Government, it may be forwarded through the Superintendent Jail, Deoria, without delay. It has further been mentioned that the petitioner's case shall be considered by the Advisory Board under Section 10 of the Act, within three weeks and if the representation is sent after that period, it may not be considered. He was also informed that under Section 11(1) of the Act, the petitioner has a right of personal hearing before the Advisory Board and if he wants to avail this right, it should be specifically mentioned in the representation.
4. The District Magistrate sent the report of detention along with other material to the State Government immediately, which was received on 11-4-1996. The detention order was approved by the State Government on 16-4-1996. The matter was thereafter referred by the State Government to the Government of India on 22-4-1996 through a Special Messenger. The case of the petitioner was referred to the Advisory Board on 22-4-1996.
5. The petitioner gave his representation on 27-4-1996 through the jail authorities, which was forwarded by the District Magistrate to the State Government and was received by the State Government on 20-4-1996. Comments on the representation of the petitioner were sent by the District Magistrate along with the letter dated 6-5-1996, which were received by the State Government on 8-6-1996. The representation of the petitioner along with comments was sent to the Adviosry Board and also to the Government of India on 9-5-1996. The representation of the petitioner was rejected by the State Government on 15-5-1996 and intimation was sent to the detenu through the District Magistrate as soon as the authorities received the file from the office of the Governor on 24-5-1996. The opinion of the Advisory Board was received on 24-5-1996. The detention order was confirmed by the State Government on 3-6-1996. The confirmation order was served on the petitioner on 11-6-1996.
6. The petitioner filed the writ petition seeking a writ of certiorari quashing the order passed by the District Magistrate, Deoria on 10-4-1996 and the order dated 5-6-1996 hereby the Governor of Uttar Pradesh approved and confirmed the same and seeking a direction to the respondents to set him at liberty forthwith.
7. On a perusal of the writ petition it appears that the main grounds on which the detention order was challenged were that the order having been passed on a solitary incident was illegal: that the activities of the petitioner and other persons, even if true, make out a case of law and order problem only and not a case of public order; that the detaining authority has not stated in the detention order in what circumstances it was necessary to pass the order against the petitioner who was already under detention and, therefore the order is illegal and unsustainable in law; and that the detaining authority has not disclosed in the grounds of detention that the petitioner has a right to make a representation before the Central Government as a result of which he could not make any representation to the Central Government and, therefore, the order is liable to be quashed.
8. In the counter-affidavit filed by the Union of India it is averred that the petitioner's representation dated 27-4-1996 was received by the Central Government in the Ministry of Home Affairs on 14-5-1996. It was immediately processed for consideration and was put up before the Deputy Secretary, Ministry of Home Affairs, on 15-5-1996. After the representation was considered by the Joint Secretary and Special Secretary on 15-5-1996, it was put up before the Home Minister on 19-5-1996, The Home Minister desired to know about the opinion of the Advisory Board before deciding the representation. The case was received back in the concerned desk on 20-5-1996 and on the same day a crash wireless message was sent to the State Government and the District Magistrate to intimate the opinion of the Advisory Board. The State Government intimated the opinion of the Advisory Board on 25-6-1996 which was received in the Home Ministry on 13-6-1996. It was also intimated that the State Government had confirmed the detention order after considering the report of the Advisory Board. The case was again submitted to the Home Minister on 14-6-1996. The Home Minister himself considered the case of the detenu and rejected the representation on 8-9-1996. It has been averred in paragraph 7 of the counter-affidavit that the required information became effectively available to the Central Government in the Ministry of Home Affairs for consideration only on 14-6-1996. The final decision to reject the representation was taken in the Home Ministry within 58 days. The order rejecting the representation of the petitioner was communicated to him on 10-9-1996 through the Home Secretary, Government of Uttar Pradesh.
9. As discussions in the reference order show, two points were urged on behalf of the petitioner in support of the challenge against the detention order; Firstly, that the petitioner was not informed about his right to make a representation to the Central Government who is empowered to revoke, rescind or modify the order under Section 14 of the Act and thus the petitioner has been denied a valuable constitutional right guaranteed under Article 22(5) of the Constitution rendering his continued detention illegal. Secondly, that there was a long delay in consideration and rejection of the representation of the petitioner by the Central Government and the explanation tendered for the delay is wholly unsatisfactory; for this reason also the detention of the petitioner is illegal and he is entitled to be released.
Strong reliance was placed on the decision of the Division Bench of this Court in the case of Keshava Babu Shivhare v. Superintendent, District Jail Hamirpur 1996 All JIC 317 : 1996 All LJ 1231. In that case, this Court took the view that representation against the detention is a constitutional right given under Article 22(5) of the Constitution to the detenu; this right is not confined to the appropriate authority; the detenu has a right to file representation before the Central Government also as it is empowered under law to revoke the order and, therefore, it is obligatory on the detaining authority to inform the detenu about this right and failure to inform the detenu about this right vitiates the order of detention and is violative of the constitutional mandate. It has also been held by the Division Bench that the fact that the State Government forwarded the representation to the Central Government and the Central Government considered the same and rejected it cannot save the order as what was sent to the Central Government was only a copy of the representation to the State Government and not a representation to the Central Government. Since a constitutional right of the petitioner was violated, the question of no prejudice is not relevant.
In addition to the above case reliance was also placed on the decisions of the Supreme Court in Kundan Bhai Dula Bhai Shaikh v. District Magistrate Ahmedabad (1996) 2 JT (SC) 532 : AIR 1996 SC 2998, Kamlesh Kumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, Veeramani v. State of Tamil Nadu (1994) 2 SCC 337 : 1995 AIR SCW 1730, Smt. Gracy v. State of Kerala AIR 1991 SC 1090, Amin Mohd. Qureshi v. Commissioner of Police Greater Bombay AIR 1994 SC 1333, Jai Prakash v. District Magistrate, Bulandshar 1993 Cri LJ 303 (SC) and Sat Pal v. State of Punjab AIR 1981 SC 2230.
10. The Additional Government Advocate refuted the contentions raised on behalf of the petitioner. He placed reliance on two Division Bench decisions of this Court in Jokhu Lal v. Superintendent, Central Jail, Naini, Allahabad 1994 Cri LJ 3466 and Ishaq v. State of U.P. (1996) 20 All Cri R 550 : 1996 All LJ 1701. In the former case this Court declined to grant relief to the petitioner on the ground that there was delay in deciding the representation by the Central Government holding that Section 14 of the Act gives a supervisory power to the Central Government to revoke an order of detention where opportunity is denied to the petitioner and on the basis of information received under Section 3(5) of the Act to pass an order of rejection, if necessary. This Court held that it is a statutory right and it docs not flow from Article 22(5) of the Constitution. In Ishaq's case (supra) it was held that as a representation was made to the Central Government and it was considered and decided and no prejudice was caused to the detenu, the order of detention could not be rendered illegal merely on the ground that the petitioner was not informed about his right to make a representation to the Central Government against the grounds of detention. Faced with the divergent views in the aforementioned decisions, the Bench formulated the points noted earlier and sought for an authoritative pronouncement on the legal position by a larger Bench.
11. With consent of the learned counsel for parties, we have heard the entire case at length and we arc disposing of the case by this judgment.
12. Before proceeding to consider the different points formulated, it would be helpful to note the relevant provisions of the Act.
Appropriate Government" is defined under Section 2(a) to mean, as respects a detention order made by the Central Government or a person detained under such order, the Central Government, and as respect a detention order made by a State Government or by an officer subordinate to the State Government or as respects a person detained under such order, the State Government.
Section 3 reads as follows :-
3. Power to make orders detaining certain persons-
(1) The Central Government or the State Government may,-
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India; or
(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.
(2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State Government, or from acting in any manner prejudicial to the maintenance of public order of from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.
Explanation - For the purposes of this subsection, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudical to the maintenance of supplies or commodities essential to the community" as defined in the explanation to Sub-section (1) of Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.
(3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in Sub-section (2), exercise the powers conferred by the said sub section :
Provided that the period specified in an order made by the State Government under this sub section shall, not, in the first instance, exceed three months, but the State Government may, I satisfied as aforesaid that it is necessary so to do amend such order to extend such period from time to time by any period not exceeding three month at any one time.
(4) When any order is made under this section by an Officer mentioned in Sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds, on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order ;hall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government:
Provided that where under Section 8 the rounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification hat, for the words "twelve days", the words 'fifteen days" shall be substituted.
(5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the act to the Central Government together with the rounds on which the order has been made and such other particular as, in the opinion of the State Government have a bearing on the necessity for the order.
Section 8(1) provides, inter alia, that when a person is detained in pursuance of detention order, the authority making the order, shall as soon as lay be, but ordinarily not later than five days and I exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the ground on which the order has been made and lull afford him the earlier opportunity of making representation against the order to the appropriate Government. Sub-section (2) of the said Section is down that nothing in Sub-section (1) shall quire the authority to disclose facts which it considers to be against the public interest to disclose.
Sections 11 and 12, which contain provisions with regard to the procedure of the Advisory board and action upon the report of the Advisory board, are quoted hereunder :-
11. Procedure of Advisory Board - (1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned and if, in any particular case, it considers essential so to do or if the person concerned sires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned.
(2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.
(3) When there is difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board.
(4) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board; and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.
12. Acting upon the report of the Advisory Board -
(1) In any case where the Advisory Board has reported that there is, in the opinion, sufficient cause/or the detention of a person, the appropriate Government shall revoke the detention order and cause the person concerned to be released forthwith.
(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the appropriate Government shall revoke the detention order and cause the person concerned to be released forthwith.
Section 14 contains provision regarding revocation of detention order. It reads:
14. Revocation of detention order - (1) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time be revoked or modified, -
(a) notwithstanding that the order has been made by an officer mentioned in Sub-section (3) of Section 3 by the State Government to which that officer is subordinate or by the Central Government;
(b) notwithstanding that the order has been made by a State Government, by the Central Government.
(2) The expiry of revocation of a detention order (here after in this sub-section) referred to as the earlier detention order) shall not whether such earlier detention order has been made before or after the commencement of the National Security (Second Amendment) Act, 1984 bar the making of another detention order (hereafter in this subsection referred to as the subsequent detention order) under Section 3 against the same person.
Provided that in a case where no fresh facts have arisen after the expiry of revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order.
Clauses (4) and (5) of Article 22 of the Constitution of India, which are relevant for the purpose of the present case, are quoted hereunder :-
(4) No law providing for preventive detenion shall authorise the detention of a person for a longer period than three months unless -
(a) an Advisory Board consisting of persons who are; or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention;
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
13. The thrust of the submissions of learned counsel appearing for the petitioner was that under the provisions of the Act the right of the detenu to make a representation to the Central Government for revocation/modification of the order of detention is a consitutional right enshrined in Article 22(5) of the Constitution of India and, therefore, the omission on the part of the detaining authority to state in the grounds of detention that the detenu can make a representation to the Central Government itself renders the detention order invalid. It is his further submission that since the right of representation to the Central Government is a constitutional right the question of prejudice to the detenu is not relevant.
The learned counsel appearing for the State Government and the Union Government, on the other hand, contended that the right of the detenu to make a representation to the Central Government for revocation/modification of the order of detention, which is vested under Section 14 of the Act, is only a statutory right and, therefore, mere non-mention of the fact in the grounds of detention communicated to the detenu is by itself not sufficient to render the detention order invalid. In such a case it has further to be ascertained whether the detenu has been prejudiced by such omission on the part of the detaining authority.
14. In Khudiram Das v. State of West Bengal AIR 1975 SC 550 the Court ruled that where the liberty of the subject is involved, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the subject is not deprived of this personal liberty otherwise than in accordance with law. Section 8(1) of the Act. which merely re-enacts the constitutional requirements of Article 22(5), insists that all basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenu, so that the detenu may have an opportunity of making an effective representation against the order of detention.
(Emphasis supplied) In the said case the Court further held that the 'grounds' under Article 22(5) mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based. Nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu. That is the plain requirement of the first safeguard in Article 22(5). The second safeguard in Article 22(5) requires that the detenu shall be afforded the earlier opportunity of making a representation against the order of detention. No avoidable delay, no short fall in the materials communicated shall stand in the way of the detenu in making an earlier, yet comprehensive and effective, representation in regard to all basic facts and materials which may have influenced the detaining authority in making the order of detention depriving him of his freedom. These are the legal bulwarks enacted by the constitution-makers against arbitrary or improper exercise of vast powers of preventive detention which may be vested in the executive of a law of preventive detention such as the Maintenance of Internal Security Act, 1971.
The Supreme Court in the case of Sher Mohammad v. State of West Bengal AIR 1975 SC 2049 observed that the Court has, in several rulings held that the liberty of the citizen is a priceless freedom sedulously secured by the Constitution. Even so, during times of emergency in compliance with the provisions of the Constitution, the said freedom may be curtailed, but only in strict compliance with statutory formalities which are the Vigilant concern of the Courts to enforce. In the facts of that case it was held that the full requirement of Section 3(4) of the Maintenance of Internal Security Act, 1971, was not complied within the period specified.
In the case of Mohd. Dhana Ali Khan v. State of West Bengal AIR 1976 SC 734, the Supreme Court held that Section 14 of the Maintenance of internal Security Act. 1971, which is in pari materia with Section 14 of the National Security Act. 1980, merely confers a discretion on the Central Government to revoke or modify an order of detention made by the State Government: it docs not confer any right or privilege on the detenu. It is for the Central Government to revoke or modify the order of detention after the report is submitted to it. The mere fact that the Central Government does not choose to revoke or modify the order of detention without anything more cannot necessarily lead to the irresistible inference that the Central Government failed to apply its mind.
(Emphasis supplied).
In the case of Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla AIR 1976 SC 1207, a five Judge Bench of the Supreme Court held, inter alia, that there are two rights which the detenu has one is the fundamental right conferred by Article 22. clause (5) and the other is the statutory right conferred by Section 8. Though the contents of both these rights are the same, they have distinct and independent existence and merely because enforcement of one is suspended, it does not mean that the other also cannot be enforced. The 'theory of reflection' which found favour with Kerala High Court in Fatima Beebi v. M.K. Ravindranathan 1975 Cri LJ 1164 is clearly erroneous. The Court observed that if the right conferred under Section 8 were a reflection of the fundamental right conferred by Article 22, clause (5) as held by the Kerala High Court, the removal of the fundamental right under Article 22, clause (5), which is the object reflected, must necessarily result in the effacement of the right under Section 8 which is said to constitute the reflection. But even if Article 22, clause (5), were deleted from the Constitution, Section 8 would still remain on the statute book until repealed by the legislature. The presidential order would not, therefore, bar enforcement of the right conferred by Section 8.
(Emphasis supplied) Another five Judge Bench of the Supreme Court in the case of Haradhan Saha v. State of West Bengal AIR 1974 SC 2154, ruled, inter alia, that Section 8 of the Maintenance of Internal Security Act, which casts an obligation on the State to consider the representation affords the detenu all the rights which are guaranteed by Article 22(5). The representation is to be considered by the Advisory Board by following the substance of natural justice as far as it is consistent with the nature of the said Act, the nature of the relative jurisdiction of the Government and of the Advisory Board; procedural reasonableness for natural justice flows from Article 19. Article 22(5) speaks of liberty and making of representation. The combined result of clauses (4), (5) and (6) of Article 22 is that a procedure which permits representation will give all the facts before the Board. The Court further held that Section 8 of the Act follows the provisions of Article 22(5) of the Constitution, Article 22(5) enjoins upon the detaining authority obligation to afford to detenu earlier opportunity of making a representation against the order: and opportunity of making a representation cannot be equated with an opportunity of oral hearing or hearing before a Court and the procedure of judicial trial; as long as there is an opportunity to make a representation against the order of detention and as long as representation is to be considered by the Advisory Board, there is no unreasonalbeness in regard to the procedure. The Court also held that whether in a particular case, a detenu has not been afforded an opportunity of making a representation or whether the detaining authority is abusing the powers of detention can be brought before the Court of Law.
(Emphasis supplied) In the case of Wasi Uddin Ahmed v. District Magistrate, Aligarh AIR 1981 SC 2166, which was a case under the Act, the Supreme Court, interpreting Article 22(5) of the Constitution, held that it is expected of a detaining authority while serving an order of detention, as a rule, to mention in the grounds of detention, that the detenu has a right to make a representation against the order of detention and also a right to be heard by the Advisory Board. The words 'and shall afford' in Article 22(5) have a positive content in the matters of personal liberty. The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguards, particularly in the cases of deprivation of life and Liberty is of prime importance to the body politic. It is, therefore, imperative that the detaining authority must 'apprise' detenu of his constitutional right under Article 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. Considering the facts of that case the Court held that where the detenu was an enlightened person and had been in active politic and was, therefore, fully cognisant of his right to make a representation under Article 22(5) and under Section 8 of the Act, and he, in fact appeared before the Advisory Board and filed a representation against the order of detention and was also personally heard by the Advisory Board, the failure to comply with the requirement of informing the detenu with his right to make a representation would not have the effect of vitiating the order of detention or render the continued detention of the detenu illegal.
(Emphasis supplied).
In the same volume, in another case Sat Pal v. State of Punjab AIR 1981 SC 2230, it was held that when there is no denial of the right of detenu of making a representation to the Central Government for revocation of the order of detention under Section 11, however, there is an unexplained delay on the part of the State Government in forwarding the representation made by the detenu to the Central Government, the delay by itself is not sufficient to invalidate the order of detention. However, where the allegation of delay is not denied, the Government should explain it, as the failure to explain the delay betrays complete lack of awareness of constitutional obligations imposed under Article 22(5). Considering the facts of that case, the Court held that in the present case, there was no denial of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act for short), there is nothing but unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention : the detenu was not deprived of the right of making a representation to the State Government, i.e.. the detaining authority, as well as of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act; the representations that he made were duly considered by the State Government and the Central Government the contention that the unexplained delay on the part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The Court must look at the substance of the matter and not act on mere technicality.
(Emphasis supplied) In the case of Veeramani v. State of T.N. (1994) 2 SCC 337 : 1995 AIR SCW 1730 the detenu was detained under the provisions of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas. Immoral Traffic Offenders and Slum Grabbers Act, 1982. In that case it was submitted on behalf of the detenu that the detaining authority had the power to revoke the detention and such power was preserved as provided under Section 14 of the T. N. Act and that in the grounds it was not indicated that he could make a representation for such revocation by the detaining authority himself; on the other hand it was mentioned that the detenu had a right to make representation in writing addressed to the Secretary to the Government through the Superintendent of Prisons which was a wrong advice. It was further submitted that at any rate when the representation reached the detaining authority it should have examined the same and considered whether it could exercise its power under Section 14 and revoke the detention and that failure to do so vitiated the detention itself.
Rejecting the submissions, the Court held that the right to make representation against the detention order flows from Article 22(5). But that article does not say to whom such representation is to be made. Such a representation must be made to the authority who has power to approve, rescind or revoke the decision. To know who has such power, the provisions of the Act have to be seen.
(Emphasis supplied) Under the T. N. Act any detention order made by the empowered officer shall cease to be in operation if not approved within 12 days. Therefore, the Act never contemplated that the detaining authority has specific power to revoke and it cannot be inferred that a representation can be made to it within the meaning of Article 22(5). Therefore the representation to be made by the detenu, after the earliest opportunity was afforded to him, can be only to the Government which has the power to approve or to revoke.
(Emphasis supplied) Therefore, the question of detenu being informed specifically in the grounds that he had also a right to make a representation to the detaining authority itself besides the State Government does not arise. Drawing a distinction between T. N. Act and the COFEPOSA Act the Supreme Court held that Ibrahim Bachu Bafan case (1985) 2 SCC 24 : (AIR 1985 SC 697) and Amir Shad Khan case (1991.) 4 SCC 39 : (AIR 1991 SC 1983) arose under the COFEPOSA Act where there is no specific provision for approval by the State Government such as that under the T. N. Act-Therefore the question whether the detaining authority, namely, the empowered officer of the Government can act independently and revoke the detention order even after the State Government has approved and affirmed the detention as provided under the other Acts did not arise directly.
(Emphasis supplied) In those two decisions, the ratio is that the detaining authority has also the power to revoke the detention order made by it by virtue of the power conferred by Section 21 of the General Clauses Act read with Section 11 of the COFEPOSA Act and in that context it was further observed that the power of revocation conferred by Section 11 of the Act has nexus with the right of representation conferred on the detenu by Article 22(5) and the State Government when requested to forward a copy of the representation to the Central Government, is under obligation to do so. The Court was of the view that the observations in the cases arising under the COFEPOSA Act do not squarely apply to cases where factually the detention order made by an empowered officer has been approved by the State Government as provided for under the other enactments: in such cases, the question of detaining authority revoking the order after such approval does not arise and the power preserved by virtue of the provisions under General Clauses Act is no more exercisable.
(Emphasis supplied) It was further observed by the Court that the observations made in Ibrahim Bachu Bafan Case (1985) 2 SCC 24 : (AIR 1985 SC 697) and Amir Shad Khan case (1991)4 SCC 39: (AIR 1991 SC 1983) under COFEPOSA Act do not change the legal scenario under the other Acts where the legal implications in the context of Article 22(5) are of different nature but in conformity with the spirit and avowed object underlying Article 22(5). Even in the context of Article 22(5) the scheme of the particular act has to be examined to find out the authority to whom a representation can be made.
(Emphasis supplied) In the case of Kamlesh Kumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, a five Judge Bench of the Supreme Court, construing the provisions of COFEPOSA Act and Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short PIT NDPS Act, 1988), held, inter alia, that Article 22(5) confers right on the detenu to make a representation against the order of detention also to the detaining authority, that is, the authority which passed the order of detention, apart from the authority which is competent under the law to revoke the order. The detenu has also the right to be informed that he could make a representation to the detaining authority as well. Interpreting Article 22(5) of the Constitution the Court held, inter alia, that it imposes on the authority making 1998 Raj Bahadur Yadav v. State of U. P. (FB) 113 the order of detention an obligation to communicate to the person detained as soon as may be the grounds on which the order of detention has been made and to afford the person detained the earlier opportunity of making a representation against the order of detention; that Article 22(5) proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed. Article 22(5) does not, however, indicate the authority to whom the representation is to be made except the detaining authority. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recognised by Section 21 of the General Clauses Act, 1897 though it does not flow from it. It can, therefore, be said that Article 22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority which is empowered by law to revoke the order of detention. The Court was of the view that Article 22(5) must be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation against the order of detention carries within it a corresponding obligation on the authority making the order of detention inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.
In paragraph 33 of the judgment the Court observed that the second premise that the Central Government becomes the detaining authority since there is deemed approval by the Government of the order made by the officer specially empowered in that regard from the time of its issue, runs counter to the scheme of COFEPOSA Act and the PIT NDPS Act. 1988. which differs from that of other preventive laws, namely, the Act the Maintenance of Internal Security Act, 1971 and the Preventive Detention Act. 1950. The Court also observed that under the National Security Act there is an express provision (Section 3(4)) in respect of orders made by the District Magistrate or the Commissioner of Police under Section 3(3) and the District Magistrate or the Commissioner of Police who has made the order is required to forthwith report the fact to the State Government to which he is subordinate and the said provision further prescribes that no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government, and this would show that it is the approval of the State Government which gives further life to the order which would otherwise die its natural death on the expiry of twelve days after its making. The effect of the approval by the State Government is that from the date of such approval the detention is authorised by the order of the State Government approving that order of detention and the State Government is the detaining authority from the date of the order of approval. The Court was of the view, that there appears to be the reason why Section 8(1) envisages that the representation-against the order of detention is to be made to the State Government. The COFEPOSA Act and the PIT NDPS Act do not require the approval of an order made by the office specially empowered by the State Government or by the Central Government; the order passed by such an officer operates on its own force.
(Emphasis supplied) The Court also observed that unlike Section 3(4) of the National Security Act there is no requirement in the COFEPOSA Act and the PIT NDPS Act that the officer specially empowered for the purpose of making of an order of detention must forthwith send to the Government concerned the grounds and the supporting material on the basis of which the order of detention has been made; nor is it prescribed in the said enactments that after the order of detention has been made by the officer specially empowered for that purpose the Government concerned is required to apply its mind to the grounds and the supporting material on the basis of which the order of detention was made. There is nothing in the provisions of these enactments (COFEPOSA Act and PIT NDPS Act) to show that the role of the officer comes to an end after he has made the order of detention and that thereafter he ceases to be the detaining authority and the Government concerned which had empowered him assumes the role of the detaining authority. The Court was of the view that an indication to the contrary is given in Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act which preserve the power of such officer to revoke the order that was made by him, which means that the officer does not go out of the picture after he has passed the order of detention. The Court concluded that it must, therefore, be held that the officer specially empowered for the purpose continues to be the detaining authority and is not displaced by the Government concerned after he has made the order of detention, and therefore, by virtue of his being the detaining authority he is required to consider the representation of the person detained against the order of detention.
After discussing the decisions of the Supreme Court in Santosh Anand v. Union of India (1981) 2 SCC 420 Satpal v. State of Punjab (1982) 1 SCC 12 : AIR 1981 SC 2230 and Raj Kishore Prasad v. State of Bihar (1982) 3 SCC 19 : AIR 1983 SC 320, the Court took the view that the decisions in Sat Pal and Raj Kishore Prasad on which the High Court has placed reliance do not detract from the law laid down in Santosh Anand, I laving found that the representation of the person detained was not considered by the officer making the order of detention the High Court was in error in holding that the said failure on the part by the detaining authority to consider and decide the representation is not fatal to the order of detention. Earlier, the Court referred to the relevant observations in Santosh Anand's case to the effect :
It is thus very clear to us that the representation could be said to have been considered by the Chief Secretary at the highest but he did not take the decision to reject the same himself and for that purpose the papers were submitted to the Administrator who ultimately rejected the same. There is no affidavit filed by the Chief Secretary before us stating that he had rejected the representation. The representation was, therefore, not rejected by the detaining authority and as such the constitutional safeguard under Article 22(5), as interpreted by this Court, cannot be said to have been strictly observed or complied with.
In Nutan, J. Patel (Ms.) v. S.V. Prasad (1996) 2 SCC 315 : 1996 AIR SCW 232 the detenu Jayantibhai Rambhai Patel was detained under the COFEPOSA Act. The Madras High Court allowed the writ petition filed by the wife of the detenu and set aside the order of detention on the ground that the detenus were not informed of their constitutional right to make a representation to the detaining authority and it vitiates the right guaranteed under Article 22(5) of the Constitution. In that case the detenu was informed that he was at liberty to make a representation to the State Government, Central Government and to the Advisory Board, but was not informed of his constitutional right to make a representation to the Specified Officer for reconsideration of his detention. The Supreme Court took the view that the failure on the part of the Specified Officer to inform the detenu that he has a constitutional right to make representation to the Specified Officer against the order of detention, violated Article 22(5) of the Constitution. Therefore, the order of detention got vitiated.
In the case of State of U.P. v. Zavad Zama Khan AIR 1984 SC 1095 construing the provisions of Sections 3(3), 11, 8(1) and 14 of the Act and Article 22(5) of the Constitution the Court took the view that in the case of Sabir Ahmad v. Union of India (1980) 3 SCR 738 the power conferred under Section 11 of the COFEPOSA Act on the Central Government to direct revocation of an order of detention to be 'statutory'. (emphasis supplied) It was also observed in that case that the power of the Central Government to revoke an order of detention implies that the detenu can make representation for exercise of that power and a petition for revocation of an order of detention should be dealt with reasonable expedition. Since a representation properly addressed by the detenu to the Central Government was not forwarded to the, Central Government the continued detention of the detenu was held to be illegal. A similar view was taken in Sabir Ahmad (supra) in which it was further held that the power conferred by Section 11 on the Central Government was a supervisory power and it was intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or by the State Government. (emphasis supplied) Taking note of the case of Rattan Singh v. State of Punjab (1982) 1 SCR 1010 : AIR 1982 SC 1 the Supreme Court observed that in that case the Court went still further and held that there was a lapse on the part of the State Government in forwarding the representation simultaneously made by the detenu to the Central Government for revocation of the order of detention under Section 11 of the COFEPOSA Act, and struck down the order of detention on the ground that there was a denial of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act and this was tantamount to a denial of the constitutional safeguard of Article 22(5). Thereafter, in Sat Pal v. State of Punjab AIR 1981 SC 2230, examining the nature of the power of revocation conferred on the Central Government under Section 11 of the COFEPOSA Act it was held that the power was supervisory in nature and it was observed" (emphasis supplied). That is, as it should be, as under our federal structure the Centre must always keep a vigilant eye in the matter of the life and liberty of a citizen guaranteed under Article 21. After taking note of the aforesaid decisions, the Court in the case of State of U.P. v. Zavad Zama Khan AIR 1984 SC 1095 held as follows (at Pp. 1098-1099 of AIR):-
The principle that emerges from all these decisions is that the power of revocation conferred on the Central Government under Section 14 of the Act is a statutory power which may be exercised on information received by the Central Government from its own sources including that supplied by the State Government under Sub-section (5) of Section 3 or from the detenu in the form of a petition for representation. It is for the Central Government to decide whether or not it should revoke the order of detention in a particular case. In the present case the detenu was not deprived of the right of making a representation to the detaining authority under Article 22(5) of the Constitution read with Section 8(1) of the Act. Although the detenu had no right to simultaneously make a representation against the order of detention to the Central Government under Article 22(5) and there was no duty cast on the State Government to forward the same to the Central Government nevertheless the State Government forwarded the same forthwith. The Central Government duly considered that representation which in effect was nothing but a representation for revocation of the order of detention under Section 14 of the Act. That being so it was not obligatory on the part of the Central Government to consider a second representation for revocation under Section 14. We may profitably refer to Phillippa Anne Duke's case, AIR 1982 SC 1178 which in somewhat similar circumstances it was held that failure of the Central Government to consider a representation for revocation of an order of detention under Section 11(1)(b) of the COFEPOSA Act handed over to the Prime Minister during her visit to England did not render the continued detention invalid.
The Court set aside the judgment and order of the High Court and maintained the order of detention passed by the District Magistrate under Section 3(3) of the National Security Act, 1980.
In the case of Jayanarayan Sukul v. State of West Bengal AIR 1970 SC 675 a five Judge Bench of the Supreme Court, considering the procedure to be followed in regard to representation of detenus, held (at Pp. 678-79 of AIR) :-
Broadly stated, four principles are to be in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board.
In the same volume, in the case of Pankaj Kumar Chakrabarty v. State of West Bengal AIR 1970 SC 97 another 5 Judge Bench of the Supreme Court, construing the provisions of Article 22(4) and (5) of the Constitution and Section 7 of the Preventive Detention Act, 1950, held that it is clear from clauses (4) and (5) of Article 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (1) to have his representation, irrespective of the length of detention, considered by the appropriate Government and (2) to have once again that representation in the light of the circumstances of the case, considered by the Board before it gives its opinion. Thus, whereas the Government considers the representation to ascertain whether the order is in conformity with its power under the relevant law, the Board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention. The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Government's obligation to constitute a Board and to communicate the representation amongst other materials to the Board. Section 7 of the Act enjoins upon the detaining authority to furnish to the detenu grounds of detention and to afford to him the earliest opportunity to make his representation to the appropriate Government. Consequently, the detenu has a constitutional right and there is on the Government a corresponding constitutional obligation to it is made before or after his case is referred to the Advisory Board.
The above view was reiterated in the case of Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police AIR 1989 SC 1861. In that case the Supreme Court held that the detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasonable despatch and to dispose of the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 22 of the Constitution. The Court further observed that true, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law i.e. National Security Act, within which the representation should be dealt with. The use of the words "as soon as may be" occurring in Article 22 of the Constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and as hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention (emphasis supplied).
In the case of K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India AIR 1991 SC 574 a five Judge Bench, construing Article 22 of the Constitution of India ruled that the time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. (emphasis supplied) The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenus. The representation may be received after the case of the detenus is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the Government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the Government in such situations to await the report of the Board. If the representation is received by the Government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Advisory Board. It will have to be dealt with and disposed of by the Government as early as possible. In that detention order was passed under the COFEPOSA Act. In that case the Supreme Court also held that there is no constitutional mandate under Clause (5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention.
In another case reported in the same volume, Smt. Gracy v. State of Kerala AIR 1991 SC 1090, the Supreme Court was considering the case of detention under the provisions of PIT NDPS Act, 1988. The Court ruled that the dual obligation 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. It cannot be said 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. 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, 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 detaining authority.
(emphasis supplied) In the case of Jai Prakash v. District Magistrate, Bulandshahr U.P. (1992) 2 JT (SC) 342 : 1993 Cri LJ 303, which is a case of detention under the Act, in paragraph 5 of the judgment of the Court observed (at P. 304 of Cri LJ):
The District Magistrate along with the grounds specifically informed the detenu that he has a right to make representation to the State Government and also to the Central Government. The representation sent by the detenu was neither addressed to the State Government nor to the Central Government. He only mentioned 'Home Secretary' as the addressee without further indicating whether he meant Home Secretary to the State Government or the Central Government. It is not disputed that the detenu gave nine copies of the representation to the Superintendent of Jail for onward submission to the authorities. We are of the view that the Superintendent Jail, in the circumstances of this case, was under an obligation to send one copy of the representation to the Central Government. The Superintendent sent the representation only to the State Government and not to the Central Government. When the detenu gave sufficient number of copies of his representation and left it to the jail authorities to forward the same to the authorities as specified in the grounds of detention, the Superintendent Jail was legally bound to send one copy to the Central Government. We are, therefore, of the view that the detenu was denied his right to make an effective representation and on that short ground his detention is liable to be quashed.
15. From the conspectus of the views taken in the decisions referred to above, the emerging position, as we see it, may be summed up thus:
Under the provisions of the Act the detenu has a constitutional right to make a representation against1 the order of detention to the detaining authority and to the State Government. In addition, he has the right to be heard before the Advisory Board. He has also a statutory right to make a representation invoking the power of the Central Government to revoke or modify the detention order. Section 8(1) of the Act, which mandates that the authority making the detention order shall communicate to the detenu the ground on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government, is an extension of the constitutional safeguard provided under Article 22(5) of the Constitution. Section 14, which provides, interalia, that without prejudice to the provisions of Section 21 of the General Clauses Act, 1897, a detention order may, at any time be revoked or modified by the Central Government vests a statutory power. This power of revocation/modification is discretionary in nature and can be exercised by the Central Government suo motu or on receiving information from the State Government or any other source or on receiving a representation from the detenu. In this regard there is a clear difference between the COFEPOSA Act, and PIT NDPS Act, 1988 on the one hand and the Act and Maintenance of International Security Act, 1971 on the other. In the former statutes there is no provision for approval of the detention order by appropriate Government. To put it differently, there is no pari materia provision to Section 8 of the Act in the COFEPOSA Act and PIT NDPS Act, 1988. Therefore, decisions under the COFEPOSA Act, and PIT NDPS Act, 1988 holding that right to make representation to the Central Government is constitutional right of the detenu are not very helpful while considering the question in relation to the Act. The power of revocation modification of the detention order vested in the Central Government under Section 11 of the Act is in the nature of a supervisory power to enable the Central Government to keep a check on the orders of the detaining authority and the State Government since the matter of liberty of citizen is involved. Therefore if the detaining authority has stated in the grounds of detention that the detenu may make a representation to the State Government and to the Advisory Board and may inform if he will like to be heard personally by the Advisory Board, that would be in compliance with the mandate under Article 22(5). If in a case, as in the present case, these requirements are fulfilled and the detenu has made representations to the State Government and the Advisory Board has heard him and considered his representation within the time specified in the statute and the State Government has considered his representation with reasonable expedition, the constitutional safeguard is fulfilled and the constitutional obligation cast on the detaining authority is satisfied. The view which we have taken is fortified by the Apex Court in Kamlesh Kumar Ishwar Das, (1995 (4) SCC 51) (supra) wherein the earlier decisions rendered by the Apex Court have been taken into consideration.
16. The further question that arises for consideration is whether it is obligatory on the part of the detaining authority to state in the grounds of detention that the detenu may also make a representation to the Central Government invoking its power of revocation/modification of the order and if that has not been done what is its effect on the detention order? On giving our anxious consideration to the matter, we are of the view that the detaining authority may state this in the grounds of detention, but failure to do so by itself, will not be sufficient to render the detention order invalid and further detention of the detenu illegal. As we have already found the power under Section 14 of the Act is statutory, discretionary and supervisory in nature.
17. Coming to the question of delay in disposing of the detenu's representation, the position is clear that the Advisory Board, the appropriate Government and the Central Government are required to act with promptitude and reasonable dispatch in dealing with the representation of the detenu and to consider whether his further detention is legal. Inordinate and unexplained delay on the part of any of the authorities in dealing with the matter will render further detention of the detenu illegal.
18. Coming to the facts of the case in hand it is manifest that there is inordinate delay on the part of the Central Government in disposing of the representation of the detenu. Though the representation was received on 14-5-1996 it was not placed before the Home Minister till 19-5-1996 and on his query about the opinion of the Advisory Board the State Government took time till 13-6-1996 to furnish the requisition informations and thereafter the file was put up before the Home Minister on 14-6-1996 and it was disposed of 96 days thereafter on 8-9-1996. In the counter-affidavit no explanation whatsoever has been offered why this inordinate long period of 86 days was taken to dispose of the matter. Therefore, we have no hesitation to hold that in the facts and circumstances of the case further detention of the petitioner has to be held to be illegal.
19. On the analysis and discussions in the foregoing paragraphs, our answers to the first two questions formulated by the Division Bench are in the negative and answer to the last question is in the affirmative and the view expressed by the Division Bench of this Court in cases of Ishaq, (1996 All LJ 1701) (supra) and Keshav Babu 'Shivhare, (1996 All LJ 1231) (supra) stands overruled to the extent indicated above.
Considering the case on merits we hold that the inordinate and unexplained delay in disposing of the petitioner's representation by the Central Government has rendered his further detention illegal. Therefore, we allow the writ petition and direct the respondents to release the petitioner forthwith.
Before parting with the case we place on record our appreciation for the able assistance rendered by Sri P. P. Yadav who appeared for the petitioner, Sri U. N. Sharma who appeared for the Union of India, Sri A. K. Tripathi who appeared for the State and Sri D. S. Misra who appeared amicus curiae.