AKSHOY KONAI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner, Akshoy Konai, in his petition under Art. 32 of the Constitution prays for his release from detention in the Dum Dum Central Jail, Calcutta. He was arrested on February 14, 1972 pursuant to the order of detentiond made by the District Magistrate, Bribhum on February 11, 1972 in exercise of the powers dconferred on him by sub-s. (1) read with sub-s. (2) of S. 3 of the Maintenance of Internal Security Act, 26 of 1971 (hereinafter called as the Act). The detention order dated February 11, 1972 the legality of which is assailed herein reads:

(2.) The first objection against the petitioner's detention raised by Shri B. Dutta, the learned counsel appearing as amicus curiae in support of the writ petition, is that though the petitioner had been heard in person by the Advisory Board the decision of the Board was never communicated to him. This omission, according to the counsel, invalidates the petitioner's detention as he was not able to take any step to have this opinion scrutinised by any judicial tribunal. This submission is, in our opinion, difficult to accept. Under S. 11 of the Act the Advisory Board is required only to submit its report to the appropriate Government. There is no obligation imposed by the Act on the Board to communicate its decision to the detenu. The mere fact that under S. 11 the Board hears the person affected by the detention order in case he desires to be so heard, would not for that reason alone imposes on the Board a legal obligation to communicate its decision to the detenu. Our attention has not been drawn to any provision of law or to any principle which would imply any such obligation. In any event omission on the part of the Advisory Board to do so cannot invalidate the petitioner's detention. On receipt of the report of the Advisory Board the appropriate Government is empowered to confirm the detention order and to continue the detention of such person for such period as it thinks fit subject to the maximum period fixed by S. 13. In the present case the State Government communicated to the petitioner-detenu its confirmation of the detention order on May 10, 1972, the very day his detention was confirmed. This was a clear indication to the petitioner that according to the report of the Advisory Board there was sufficient cause for his detention, for, had the Board reported that there was in its opinion no sufficient cause for his detention, the appropriate Government would have revoked the impugned order of detention and caused the petitioner to be released because under S. 12 (2) of the Act it was obligatory on the part of the appropriate Government to do so.

(3.) The submission that the Advisory Board should have communicated its opinion to the petitioner so as to enable him to question its legality is also misconceived. In the first instance the Advisory Board constituted under S. 9 of the Act, as its name connotes, is only required to function in an advisory capacity. Its opinion which is merely an advice is binding on the appropriate Government only if according to it there is no sufficient cause for the detention in question : in that eventuality the detenu cannot possibly have any grievance. When the Board reports that there is sufficient cause for the detention in question, the appropriate Government is not bound under the law to confirm the order of detention. It may or may not do so. The advisory opinion of the Board is merely intended to assist the appropriate Government in determining the question of confirming the detention order and continuing the detention. It is binding on the appropriate Government only when it favours the detenu and not when it goes against him. Such advisory opinion can scarcely be an appropriate subject-matter of review or scrutiny by the judicial Courts or tribunals. Secondly the proceedings of the Board and its report axe expressly declared by S. 11 (4) of the Act to be confidential except that part of the report in which its opinion is specified. This provision clearly indicates that the advisory opinion is never intended to be open to challenge on the merits before any tribunal. So far as the final opinion of the Board is concerned the communication of the confirmation of the detention order by the State Government clearly informed the petitioner that the opinion of the Board was against him.