SUDHIR KUMAR SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this application under Articles 226 and 227 of the Constitution of India, the petitioner, Sudhir Kumar Sinha, has challenged his detention under the Bihar Control of Crimes Act 1981 (hereafter referred to as 'the Act'). The order of detention was passed by the District Magistrate. Hazaribagh, respondent No. 2, under Sub -clause (2) of Section 12 of the Act on 26 -3 -1982 vide Annexure -1. The same was served on the petitioner on 27 -3 -1982. The grounds of detention were served upon the petitioner on 28 -3 -1982 as contained in Annexure -1/A. The detention order was approved by the Government on 3rd of April, 1982 by Annexure -2. On 25 -4 -1982 the petitioner made a representation in which he challenged his detention order. His representation is contained in Annexure6. The petitioner was produced before the Advisory Board on 30 -4 -1982 and the Government in exercise of the power conferred by Section 21 (1) read with Section 22 of the Act, confirmed the detention order and ordered that the petitioner shall remain in detention till 25th of March, 1983. That order of the Government is D/ - 25th of May, 1982 and was served upon the petitioner on 30th of May, 1982. Although the order dt. 26th of May, 1982 is not made a part of the application but the original copy thereof, was produced before us at the time of hearing.

(2.) MR . S.B. Sinha, learned counsel appearing on behalf of the petitioner has challenged the order of detention on various grounds. He first contended that the representation of the petitioner filed on 25 -4 -1982 was not considered by the Government at all and the order of detention should be set aside on this ground alone. In paragraphs 27 and 28 of the petition, it has been stated that the petitioner sent his representation to the Secretary Department of Home (Police) Government of Bihar on 25th of April, 1982. It is further stated that no decision on his representation was communicated to him until 14th of May, 1982, on which date this writ application was filed. A counter -affidavit has been filed on behalf of the State of Bihar, respondent No. 1, which has been sworn by one Ram Sihasan Prasad Sinha, an Assistant in the Home (Police) Department, State of Bihar, Patna. It is a very short and cryptic counter -affidavit which consists of ten paragraphs and in it, it is stated that the facts stated in the counter -affidavit are true to his knowledge derived from the records of this case. The allegation made in paragraph 28 referred to above, has not been traversed. In paragraph 5 of the counter -affidavit, it has been stated that the State Government referred the case of the petitioner in accordance with Section 19 of the Act on 10 -4 -1982 and the representation of the detenu was placed before the Advisory Board for consideration. In paragraph 6 it is stated that on 30th of April, 1982, the Advisory Board heard the petitioner personally and considered all the papers and materials, opined on 30th of April, 1982 that there exist sufficient cause for the detention of the petitioner and the Advisory Board submitted the report on 30th of April, 1982 to the Government. In paragraph 7 it is stated that the State Government in exercise of the powers under Sections 21 and 22 of the Act confirmed the detention order and ordered that the detenu shall be detained till 25th of March, 1983. It is nowhere stated that the representation of the petitioner was considered by the State Government. From the counter -affidavit it appears that representation was considered by the Advisory Board and the detention order was confirmed by the Government on the receipt of the opinion of the Advisory Board. In the case of Dr. Rahamatulla v. State of Bihar (AIR 1981 SC 2069): (1981 Cri. LJ 1698) it was held that "in case of preventive detention of a citizen, the obligation of the appropriate Government is twofold : (i) to afford the detenu the opportunity to make a representation and to consider the representation which may result in the release of the detenu, and (ii) to constitute a Board and to communicate the representation of the detenu along with other materials to the Board to enable it to form its opinion and to obtain such opinion. The former is distinct from the latter. As there is a twofold obligation of the appropriate Government, so there is twofold right in favour of the detenu to have his representation considered by the appropriate government and to have the representation once again considered by the Government in the light of the circumstances of the case considered by the Board for the purpose of giving its opinion." Article 22 (5) of the Constitution provides that the detaining authority shall, as soon as may be communicate the grounds of detention and shall afford the detenu the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. It is meant for consideration by the appropriate authority without any unreasonable delay. The non -consideration or an unreasonably belated consideration of the representation tantamounts to non -compliance of Article 22 (5) of the Constitution. In the case of Dr. Rahamatullah (1981 Cri. LJ 1698) (SC) (supra) as in this case, the State Government seems to have waited till the receipt of the Advisory Board's opinion and confirmed the detention order on 30th of May, 1982. Thus there was a delay of one month and five days from the date of making the representation. Nothing has been placed before us on behalf of the respondents to show that there was any independent consideration of the representation by the State Government. Thus by itself, it is a clear violation of Article 22 (5) of the Constitution. It is now well settled that the representation has to be considered by the Government, without waiting for the opinion of the Advisory Board. Reference may be made to the case of Ashok Kumar v. State of J. and K. ((1981) 2 SCC 73): (1981 Cri. LJ 439) and to the case of Harish Bahwa v. State of U. P. ((1981) 2 SCC 710). (1981 Cri. LJ 750).

(3.) LEARNED counsel appearing on behalf of the petitioner then submitted that the material documents upon which the order of detention is based, were not supplied to the detenu to enable him to make an effective representation and that also has vitiated the detention order. He relied upon the decisions in Mohammad Zakir v. Delhi Administration AIR 1982 SC 696 : (1982 Cri. LJ 611); Baldeo Rai Khanna v. Dy. Commr. Dhanbad (1981 BLT 191). In the case of Mohammad Zakir (Supra) it was observed by the Supreme Court that "it is the constitutional mandate which requires the detaining authority to give the documents relied on or referred to in the order of detention pari passu the grounds of detention in order that the detenu may make an effective representation immediately instead of waiting for the documents to be supplied with." It was further observed that the question of demanding the documents was wholly irrelevant. Similarly in the case of Icchu Devi Choraria (AIR 1980 SC 1983) (supra) it was held that in order to enable the detenu to make an effective representation against his detention, the detaining authority must keep already copies of the documents and other materials relied upon or referred to in the grounds of detention and supply the same to the detenu. This right flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention because unless the former right is available, the latter cannot be meaningfully exercised. It was held that the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention to satisfy the requirements of Article 22(5) of the Constitution. Similar view was taken by a Division Bench of this Court in the case of Baldeo Rai Khanna (Supra).