DOMARSAHNI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner has been detained in preventive custody under Section 12(2) of the Bihar Control of Crimes Act, 1981 by the District Magistrate, Darbhanga vide him Memo No. 4564 dated 21.10.2001. THE detention has been approved and later confirmed for a period of one year upto 20.10.2001 under Sections 21(3) and 21(1) read with 22 of the Act by the State Government vide Memo No. 10573 dated 31.10.2001 and Memo No. 11973 dated 13.12.2001 respectively. THE petitioner seeks quashing of the said orders, copies whereof have been enclosed as Annexure 2, 4 and 1 respectively to the writ petition.

(2.) THE short factors of the case so far as relevant for disposal of the case are that after service of order of detention on 23.10.2001 the ground of detention was served on the petitioner. THE petitioner filed representation against his detention on 9.11.2001 which was rejected on 10.12.2001. Rejection was communicated on 13.12.2001.

(3.) IN K.M. Abdulla Kunhi v. Union of INdia (supra) while considering the question of delay on account of reference to Advisory Board a Constitution Bench of the Apex Court observed in paragraph 1 of the judgment (at page 483 of the report) as under: The obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in Clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the Government to consider the representation at the time of hearing the references. The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case for detention. The consideration by the Board is an additional safeguard and not a substituted for consideration of the representation by the Government. The right to have the representation considered by the Government, is safeguarded by Clause (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under Clause (4) of Article 22 read with Section 8(c) of the Act. However, in paragraph 16 at page 486 of the report, the Apex Court also observed: