GOPAL CHANDRA MAZUMDAR Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) THE subject matter of challenge in this Rule is the detention of the detenu Dilip Kumar Mazumdar, alias, Mona under an order dated October 19, 1971, passed by the Commissioner of Police, Calcutta in the exercise of his powers under Section 3(1) read with Section 3(2) of the Maintenance of Internal Security Act, 1971. The impugned order recites that the Commissioner was satisfied that such detention was necessary with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order. The detention rests on two grounds which are set out hereunder:

(2.) THE detenu was put to detention on October 19, 1971. The order of detention was duly approved by the State Government on October 28, 1971. The detenu made a representation on November 10, 1971. and the said representation was actually received by the Home Department on November 13, 1971. Under Section 10 the State Government made a reference to the Advisory Board on November 16, 1970. In making the said reference the State Government, however, proceeded on the basis that no representation had been received from the detenu and the relevant part of the pro from a order indicating forwarding of the representation to the Advisory Board was penned. through. The representation itself was taken up for consideration by the appropriate authority on behalf of the State Government on December 3, 1971. on which date it was rejected as a general denial and on the same date a copy of the representation was forwarded to the Advisory Board, The Advisory Board submitted its report oh December 7, 1971 expressing its views that there is sufficient cause for detention. Thereafter, by an order dated December 17, 1971 the order of detention was confirmed and the detention was directed to continue for a period of twelve months.

(3.) A question thus arises for consideration as to what would be the effect of such delay in the matter of placing the representation before the Advisory Board. This question would involve consideration as to whether the obligation cast upon the State Government by Section 10 of the Act in the matter of placing the representation before the Advisory Board within thirty days is mandatory or not. It would be necessary to refer to Section 10 itself which reads as follows: Reference to Advisory Boards! Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within thirty days from the date of detention under the order, place before the Advisory Board constituted by it under Section 9 the grounds on which the order has been made and the representation, if any made by the person affected by the order, and in case where the order has been made by an officer, and also the report by such officer under Sub -section (3) of Section 3.