SAMPOORNAM Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE present action had been initiated by one Sampoornam, wife of Dhanapal, detenu, under Art. 226 of the Constitution, praying for issuance of a writ of habeas corpus to quash the order of detention passed by the District Magistrate and Collector of South Arcot and Vallalar District, cuddalore, the second respondent herein, and to set at liberty the detenu forthwith.

(2.) IN view of the powers conferred under Sub-sec. (1) of sec. 3 of Tamil Nadu (Act 14 of 1982) the second respondent clamped the order of detention in his reference C. 5/24099/94 dated 19. 3. 1994 on the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and health.

(3.) WHAT the Constitution Bench of the Supreme Court stated in paragraph 10 in Pankaj Kumar v. State of West Bengal, A. I. R. 1970 s. C. 97: 1969 S. C. D. 944: (1970)1 S. C. A. 412: (1970)1 S. C. R. 543, is relevant and it is reflected as below: ". . . It is true that clause (5) does not in positive language provide as to whom the representation is to be made and by whom, when made, it is to be considered. But the expressions "as soon as may be" and "the earliest opportunity" in that clause clearly indicate that the grounds are to be served and the opportunity to make a representation are provided for to enable the detenu to show that his detention is unwarranted and since no other authority who should consider such representation is mentioned it can only be the detaining authority to whom it is to be made which has to consider it. Though clause (5) does not in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make a representation and to consider it when so made whether its order is wrongful or contrary to the law enabling it to detain him. The illustrations given in S. M. Abdul Karim's case, w. P. No. 327 of 1968, dated 31. 1. 1969, A. I. R. 1969 S. C. 1028, show that clause (5) of Art. 22 not only contains the obligation of the appropriate Government to furnish the grounds and to give the earliest opportunity to make a representation but also by necessary implication the obligation to consider that representation. Such an obligation is evidently provided for to give an opportunity to the detenu to show and a corresponding opportunity to the appropriate Government to consider any objections against the order which the detenu may raise so that no person is, through error or otherwise, wrongly arrested and detained. If it was intended that such a representation need not be considered by the Government where an Advisory Board is constituted and that representation in such cases is to be considered by the Board and not by the appropriate government clause (5) would not have directed the detaining authority to afford the earliest opportunity to the detenu. In that case the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to make a representation and communicate the same to the Board. But what would happen in cases where the detention is for less than 3 months and there is no necessity of having the opinion of the Board" If counsel's contention were to be right the representation in such cases would not have to be considered either by the appropriate Government or by the Board and the right of representation and the corresponding obligation of the appropriate Government to give the earliest opportunity to make such representation would be rendered nugatory. In imposing the obligation to afford the opportunity to make a representation clause (5) does not make any distinction between orders of detention for only 3 months or less and those for a longer duration. The obligation applies to both kinds of orders. The clause does not say that the representation is to be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases. In our view it is clear from clauses (4) and (5) of Art. 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. In the light of that representation the board finds that there is no sufficient cause for detention the Government has to revoke the order of detention and set at liberty the detenu. 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 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 to enable it to form the opinion and to obtain such opinion. . . . "