KULDIP SINGH WADALA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner has sought the quashing of the detention order dated December 2, 1986 (Annexure P. 1) by which be was detained by the respondent State Government under Section 3(2) of the National Security Act.

(2.) IN pursuance of the impugned order the petitioner was detained on December 3, 1986 in jail at Jalandhar. Thereafter he was transferred to a jail at Sagar in Madhya Pradesh on December 24, 1986. The main ground on which the petitioner has challenged his detention is the delay in the dispossal of his representation with the jail authorities at Sagar (Madhya Pradesh) on January 30, 1987. The Government of Madhya Pardesh forwarded the same to the Punjab Government after more than one month and it was received in the office of the Home Secretary, Punjab, on March 9, 1987. Thereafter the representation was processed at various levels and was ultimately rejected or, March 21, 1987.

(3.) IN the present case, as mentioned above. Although the representation was filed, by the petitioner on January 30, 1987, it remained unattended with the Madhya Pradesh Government till the month of March when it was forwarded to the Punjab Government where it was received on March 1987, No explanation has been offered as to why, the Madhya Pradesh Government took more than on month to forward the representation made by the detenu to the Punjab Government for consideration. This unexplained delay vitiates the detention. The learned counsel appearing for the Punjab Government contended that since the representation of the petitioner had been considered by the Advisory Board, it was not necessary for the Punjab Government consider his representation all over again. There is no merit in this contention. It was held in Pankaj Kumar Chakrabarti and others v. State of West Bengal, AIR 1970 Supreme Court 97, 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 are (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." It is further observed : 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 to enable it to form its opinion. In the light of ibis judgment it is manifest that the detenu has a constitutional right and there is on the Government a corresponding constitutional obligation to consider his representation irrespective of whether another representation is made before the Advisory Board. In afore-mentioned circumstances have no option but to declare the petitioner's detention unconstitutional. This petition is allowed, the impugned detention order is set aside and the petitioner is ordered to set at liberty forthwith.