1970 JTR(SC) 510
1971 3 SCC 896 ; 1972 SCC(Cri) 204 ; 1970 2 SCWR 220 ; 1970 KLT(Online) 1263
SUPREME COURT OF INDIA
J.C.Shah, CJI., A.N.Grover : A.N.Ray : G.K.Mitter : K.S.Hegde, JJ.
Prabhakar Shankar Dhuri
Versus
S.G.Pradhan
Case No. : 514 of 1970
Date of Decision : 12/18/70
Unexplained long delay by the government in disposing of a detenu's representation under preventive detention laws is a sufficient ground for the release of the detenu, as it violates the nature of detention without trial.
Act
Referred
:CONSTITUTION OF INDIA
: Art.22(5)
(A) Constitution of India - Articles 19, 21 and 22 - Preventive Detention Act - Sections 8 and 11 - Detention of a person - Delay in disposing of representation - In cases of preventive detention, the government is duty-bound to dispose of the representation made by the detenu without undue delay - A significant delay in disposing of such representation, without a satisfactory explanation, constitutes a sufficient ground for the release of the detenu. (Para 3)
Facts of the case:
A person was detained under a preventive detention law. A representation against the detention order was submitted and received by the government. The government rejected the representation after the expiry of the statutory period within which the case was required to be referred to the Advisory Board. The rejection occurred more than one month after the date of custody and 27 days after the representation was received.
Findings of Court:
The court found that the representation was rejected after the period for making a reference to the Advisory Board had expired. Following established precedent, such a delay in disposing of a representation submitted by a detenu under a special law relating to preventive detention is considered a long delay.
Issues: Whether the delay in disposing of the representation made by the detenu is sufficient to warrant his release.
Ratio Decidendi: In preventive detention cases, where a person is detained without trial, any unexplained long delay by the government in disposing of the detenu's representation is a sufficient ground for releasing the detenu.
Result: Detenu be released forthwith.
Facts of the case:
A person was detained under a preventive detention law. A representation against the detention order was submitted and received by the government. The government rejected the representation after the expiry of the statutory period within which the case was required to be referred to the Advisory Board. The rejection occurred more than one month after the date of custody and 27 days after the representation was received.
Findings of Court:
The court found that the representation was rejected after the period for making a reference to the Advisory Board had expired. Following established precedent, such a delay in disposing of a representation submitted by a detenu under a special law relating to preventive detention is considered a long delay.
Issues: Whether the delay in disposing of the representation made by the detenu is sufficient to warrant his release.
Ratio Decidendi: In preventive detention cases, where a person is detained without trial, any unexplained long delay by the government in disposing of the detenu's representation is a sufficient ground for releasing the detenu.
Result: Detenu be released forthwith.
Delay - Held that an unexplained delay in disposing of a representation submitted by a detenu is sufficient ground for releasing the detenu.
J.C.Shah, C.J.I.
(1) WE have heard detailed arguments on the questions whether the Maharashtra Preventive Detention Act No. 18 of 1970 infringes the guarantee of the fundamental freedom under Articles 19,21 and 22 of the Constitution. We have also heard arguments as to the nature of the jurisdiction exercised by the Advisory Board and by the State government in dealing with the representation made by the detenu detained under the Act. We do not however think it necessary to express any opinion on those questions.
(2) CERTAIN facts disclosed by the record clearly indicate that the petitioner is entitled to be released.
(3) BY order of the Commissioner of Police, dated 24/04/1970, the petitioner was detained and he was taken into custody on the very day. He prepared a representation to be submitted to the government of Maharashtra on 1/05/1970. The representation was despatched on 8/05/1970. It was received on 9/05/1970, by the government of Maharashtra. Under S. 11 of the Act it was obligatory upon the government to refer the case to the Advisory Board within 30 days of the date of detention under the Order. By S. 8 of the Act it is provided that when a person is detained in pursuance of a detention order the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the State government. The representation having been made, it was the duty of the government to dispose of that representation without undue delay. There is no clear evidence on the record as to when representation was disposed of. But a communication was sent on 9/06/1970, rejecting the representation. This was more than 12 days after the date on which the government was required to refer the case to the Advisory Board. This court has taken the view in Durga Show and Others v. The State of West Bengal, that a delay of 16 days in disposing of a representation submitted by a detenu to the government is a long delay where a person is detained without a trial under a special law relating to Preventive Detention, and unless there is satisfactory explanation forthcoming explaining the delay, that by itself would be a sufficient ground for releasing the detenu. In this case the State of Maharashtra sent an intimation rejecting the representation one month 12 days after the petitioner was taken in custody, and 27 days after the representation was received. Again the representation was rejected after the expiry of the period for making a reference to the Advisory Board. Following the judgment in Durga Shows case (supra) referred to above we direct that the detenu be released forthwith.