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1994 DIGILAW 954 (MAD)

Sampoornam v. State of Tamil Nadu and another

1994-11-15

JANARTHANAM, THANGAMANI

body1994
Judgment :- Janarthanam, J. 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 13. 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. Claiming the detenu to be a bootlegger, apart from the ground case set out in the grounds of detention, he had come to adverse notice in three cases for violation or refraction of the relevant provisions of the Tamil Nadu Prohibition Act, 1937 and in all those cases he had been found guilty, convicted thereunder and sentenced in an appropriate way. 4. Though manifold grounds, of course, had been taken in the affidavit filed in support of the present action; yet, Mr.S. Swamidoss Manokaram, learned counsel representing the petitioner, thought fit to press into service, the lone and sole point, namely, the first respondent-Government, did not at all consider the representation for the second time, at the time of confirmation of the order of detention, which event happened on 15. 1994 and such a factor vitiates the order of detention and therefore, it is but proper for this Court, to set aside the order of detention and set the detenu at liberty, forthwith. In support of such a submission, the said learned counsel, relies upon the decision in the case of Rahamatullah v. State of Bihar, 1991 Crl.L.J. 1968. 5. Mr.R. Krishnamoorthy, learned Advocate General, representing the respondents, would, however, repeal such a submission. In support of such a submission, the said learned counsel, relies upon the decision in the case of Rahamatullah v. State of Bihar, 1991 Crl.L.J. 1968. 5. Mr.R. Krishnamoorthy, learned Advocate General, representing the respondents, would, however, repeal such a submission. And what he would submit is that in the light of the sanguine and salutary provisions adumbrated under clauses (4) and (5) of Art. 22 of the Constitution of India, 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. He would elaborate by saying that no doubt true it is, dual right is in favour of the detenu to have his representation considered twice, one by the appropriate Government and another by the Advisory Board, constituted under the relevant provisions of detention law, and there is no need at all to consider the representation of the detenu twice by the appropriate Government itself and it is sufficient for the appropriate Government to consider such representation once alone, without any avoidable delay and that is all and nothing further and to put it otherwise, he would further say, that there is no obligation on the part of the appropriate Government to consider the representation of the detenu at the time of confirmation of the order of detention, if the representation had been earlier considered by the appropriate Government. In support of such a submission, learned Advocate General would place implicit reliance upon the Constitution Bench decision in the case of 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 and also the decision of the Apex Court in the case of Narendra v. B.B. Gujral, A.I.R. 1979 S.C. 420: (1979)2 S.C.C. 637 , which simply followed the decision of the Constitution Bench as aforesaid. 6. In the case of Rahamatullah v. State of Bihar, 1991 Crl.L.J. 1968, the Apex Court, expressed thus in para. 6. In the case of Rahamatullah v. State of Bihar, 1991 Crl.L.J. 1968, the Apex Court, expressed thus in para. 4: “...The law is well settled that in case of preventive detention of a citizen the obligation of the appropriate Government is two-fold: (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 two-fold obligation of the appropriate government, so there is a 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....” 7. 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. The illustrations given in S.M. Abdul Karim’s case, W.P.No. 327 of 1968, dated 31. 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. 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...." 8. Such a view of the Constitution Bench of the Apex Court was subsequently followed by Three Judges Bench of the Apex Court, in the case of Narendra v. B.B.Gujral, A.I.R. 1979 S.C. 420: (1979)2 S.C.C. 637 , and what Their Lordships stated in para. 13 is relevant and the same is reflected as below. "...It is, therefore, well-settled that in case of preventive detention of a citizen, the Constitution by Art. 22(5) as interpreted by this Court, enjoins that the obligation of the appropriate Government to afford 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 and to obtain such opinion..." 9. On a conspectus Of the Various decisions referred to above, two views emerged one in the case of Rahamatullah v. State of Bihar, 1991 Crl.L.J. 1968, and the other view, in the cases of 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 and Narendra v. B.B. Gujral, A.I.R. 1979 S.C. 420: (1979)2 S.C.C. 637 . the view expressed by the Supreme Court in the case of Pankaj Kumar is by a Constitution Bench and such a view had been followed by three Judges Bench of the Apex Court in the case of Narendra. The view expressed by the Apex Court in the case of Rahamatullah is by a Division Bench. For the sake of emphasis, it may be stated here, that the view projected by the Constitution Bench of the Supreme Court is that the representation of the detenu has to be considered twice, in certain situations, once by the appropriate Government and again by the Advisory Board and there is no need or necessity at all, to have the consideration of the representation, by the appropriate Government twice-once anterior in point of time of the detention order and again at the time, when the detention order is confirmed by the appropriate Government. The view, as projected by the Division Bench of the Supreme Court in the case of Rahamatullah is diametrically opposite to the view as entertained by the Constitution Bench in the case of Pankaj Kumar, followed by a Three Judges Bench of the Supreme Court in the case of Narendra, that is to say, that the representation of the detenu requires to be considered, not only anterior in point of passing of the order of detention, but also at the time when the order is confirmed by the appropriate Government. In such State of affairs, as rightly pointed out by Mr.R. Krishnamoorthy, learned Advocate General, the view as projected by the Constitution Bench of the Supreme Court in para 10 in the case of Pankaj Kumar alone, will be having a binding effect as the law laid down under Art. 141 of the Constitution, to be implicitly followed by this Court and in that view of the matter, there is no other go for us, except to reject the submission, as projected by Mr.S. Swamidoss Manokaran, learned counsel for the petitioner, placing implicit reliance on the decision of the Division Bench of the Apex Court, in Rahamatullah, the consequence of which is, the petition, as such, deserves to be dismissed and the same is accordingly dismissed.