Holding

The unexplained delay in deciding the representation and the failure to communicate its rejection to the detenu vitiate the detention order, rendering it invalid.

Summary

The appellant, a hospital director, was detained under the National Security Act (NSA) on 12 May 2021 for allegedly procuring fake Remdesivir injections. He filed a representation against the detention on 18 May 2021, which was communicated to the State and Central Governments, but the authorities delayed considering it for over two months and failed to communicate the rejection to him. The Supreme Court examined whether such delay and non‑communication violated Article 22(5) of the Constitution and Section 8 of the NSA, which require immediate communication of grounds and the earliest opportunity to make a representation. Relying on precedent, the Court held that the procedural safeguards are mandatory and that waiting for the Advisory Board’s report does not excuse the delay. Consequently, the detention order and its subsequent extensions were declared invalid. The appeal was allowed, setting aside the High Court’s judgment and quashing the detention.

Issues considered

The adequacy of the State and Central Governments' consideration of the detenu's representation under Article 22(5) and Section 8 of the NSA.
Whether the failure to communicate the decision on the representation to the detenu violates constitutional procedural safeguards.
Whether the appropriate government may defer deciding a representation until after the Advisory Board’s report.
The validity of the extensions of the detention order in light of the alleged procedural violations.

Legislation cited

Constitution of Indias. Art.22(4), s. Art.22(5)
National Security Act, 1980s. s.10, s. s.11, s. s.12, s. s.14, s. s.3(4), s. s.3(5), s. s.8, s. s.8(1)

Subjects

preventive detentionArticle 22(5)representationNational Security Actprocedural fairnessdelaycommunication of groundsdetention order invalidated

Judgment

468 [2021]REPORTS
SUPREME COURT 11 S.C.R. 468 [2021] 11 S.C.R.

A SARABJEET SINGH MOKHA
v.
THE DISTRICT MAGISTRATE, JABALPUR & ORS.
(Criminal Appeal No. 1301 of 2021)
B OCTOBER 29, 2021
[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATH
AND B V NAGARATHNA, JJ.]
Constitution of India: Art.22(5) – Preventive detention –
Protection to undertrials and detainees – Held: Art.22(5) mandates
C that (i) the authority making the order shall “as soon as may be”
communicate the grounds on which the order has been made to the
person detained; and (ii) the detaining authority shall afford to the
person detained “the earliest opportunity of making a representation
against the order” – Both these procedural requirements are mutually
reinforcing – The communication, as soon as may be, of the grounds
D of detention is intended to inform the detenu of the basis on which
the order of detention has been made – The expression “as soon as
may be” imports a requirement of immediacy – The communication
of the grounds is in aid of facilitating the right of the detenu to
submit a representation against the order of detention – The
E significance of Art.22 is that the representation which has been
submitted by the detenu must be disposed of at an early date.
National Security Act, 1980: s.3(4) – Report to the State
Government – Held: Once an order of detention is made, the officer
making the order must forthwith report the fact to the State
F Government, together with the grounds on which the order has been
made and other particulars which have a bearing on the matter.
National Security Act, 1980: s.8(1) – Communication of
grounds of detention – Requirment of immediacy – Held: s.8(1) uses
the expression “as soon as may be”, qualifying it with the requirement
that the communication of grounds should ordinarily not be later
G
than five days and, in exceptional circumstances, for reasons to be
recorded in writing not later than ten days from the date of detention
– s.8(1) also embodies the second requirement of Art.22(5) of
affording to the detenu the earliest opportunity of making a
representation against the order to the appropriate government –
H Constitution of India – Art.22(5).
468
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 469
JABALPUR & ORS.

National Security Act, 1980: s.8 – Delay in considering the A
representation – The requirement under s.8 of the disclosure and
communication of the grounds of detention and the affording of an
opportunity to the detenu of making a representation against such
an order to the appropriate government, is distinct from the reference
to the Advisory Board – In the instant case, in spite of awaiting the
B
receipt of the report of the Advisory Board which was eventually
issued on 15 June 2021, the State Government took another one
month in arriving at a decision on the appellant’s representation
dated 18 May 2021 – By delaying its decision on the representation,
the State Government deprived the detenu of the valuable right which
emanates from the provisions of s.8(1) of having the representation C
being considered expeditiously – The communication of the grounds
of detention to the detenu “as soon as may be” and the affording to
the detenu of the earliest opportunity of making a representation
against the order of detention to the appropriate government are
intended to ensure that the representation of the detenu is considered
D
by the appropriate government with a sense of immediacy – The
State Government failed to do so – The making of a reference to the
Advisory Board could not have furnished any justification for the
State Government to not deal with the representation independently
at the earliest – The delay by the State Government in disposing of
the representation and by the Central and State Government in E
communicating such rejection, strikes at the heart of the procedural
rights and guarantees granted to the detenu – The law provides for
such procedural safeguards to balance the wide powers granted to
the executive under the NSA – State Government cannot expect this
Court to uphold its powers of subjective satisfaction to detain a
F
person, while violating the procedural guarantees of the detenu
that are fundamental to the laws of preventive detention enshrined
in the Constitution.
National Security Act, 1980: Failure to communicate decision
on the representation – Art.22(4), in guaranteeing a right to make
a representation to the detenu creates a corresponding duty on the G
State machinery to render this right meaningful – The detenu’s right
to make a representation and for it to be considered expeditiously
would ring hollow without a corollary right of the detenu to receive
a timely communication from the appropriate government on the
status of its representation- be it an acceptance or a rejection – H
470 SUPREME COURT REPORTS [2021] 11 S.C.R.

A Failure in timely communication of the rejection of representation
is a relevant factor for determining the delay that the detenu is
protected against under Art.22(5) – Failure of the Central and the
State Government to communicate the rejection of the appellant’s
representation in a time-bound manner is sufficient to vitiate the
order of detention.
B
Allowing the appeal, the Court
HELD: 1. Right to make a representation: Constitutional
safeguards and legislative scheme of the NSA
1.1 Article 22(5) of the Constitution mandates that (i) the
C authority making the order shall “as soon as may be”
communicate the grounds on which the order has been made to
the person detained; and (ii) the detaining authority shall afford
to the person detained “the earliest opportunity of making a
representation against the order”. Clause 5 of Article 22
D incorporates a dual requirement: first, of requiring the detaining
authority to communicate the grounds of detention as soon as
may be; and second, of affording to the detenu “an earliest
opportunity” of making a representation. Both these procedural
requirements are mutually reinforcing. The communication, as
soon as may be, of the grounds of detention is intended to inform
E the detenu of the basis on which the order of detention has been
made. The expression “as soon as may be” imports a requirement
of immediacy. [Para 21][491-E-F; 492-A]
1.2 The communication of the grounds is in aid of facilitating
the right of the detenu to submit a representation against the
F order of detention. In the absence of the grounds being
communicated, the detenu would be left in the dark in regard to
the reasons which have led to the order of detention. The
importance which the constitutional provision ascribes to the
communication of the grounds as well as the affording of an
opportunity to make a representation is evident from the use of
G the expression “as soon as may be” in the first part in relation to
communicating the grounds and allowing the detenu “the earliest
opportunity” of availing of the right to submit a representation.
Article 22(5) reflects a keen awareness of the framers of the
Constitution that preventive detention leads to the detention of
H a person without trial and hence, it incorporates procedural
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 471
JABALPUR & ORS.

safeguards which mandate an immediacy in terms of time. The A
significance of Article 22 is that the representation which has
been submitted by the detenu must be disposed of at an early
date. The communication of the grounds of detention, as soon as
may be, and the affording of the earliest opportunity to submit a
representation against the order of detention will have no
B
constitutional significance unless the detaining authority deals
with the representation and communicates its decision with
expedition. [Para 22][492-B-E]
1.3 The provisions of the NSA subscribe to the mandate of
Article 22(5). Section 3(4) contains a requirement that once an
order of detention has been made, the officer making the order C
must forthwith report the fact to the State Government, together
with the grounds on which the order has been made and other
particulars which have a bearing on the matter. No such order
should remain in force for more than twelve days, unless it has
been approved by the State Government. In the meantime, this D
period is subject to the proviso which stipulates that where the
grounds of detention are communicated by the officer after five
days (under Section 8) but not later than ten days from the date
of the detention, sub-section (4) will apply as if the words fifteen
days stands substituted for twelve days. Upon the State
Government either making or approving the order under Section E
3, it is under a mandate under Section 3(5) to report the fact to
the Central Government within seven days, together with the
grounds on which the order has been made and other necessary
particulars. [Para 23][492-E-H]
1.4 Under Section 10, the appropriate government has to F
place the grounds on which the order of detention has been made
within three days from the date of detention of the person
together with a representation, if any, made by the person affected
by the order. The Advisory Board, under the provisions of Section
11, has to submit its report to the appropriate government within
seven weeks from the date of detention order after considering G
the relevant materials. It may call for further information from
the appropriate government, or any person, or even the person
concerned if they desire an opportunity to be heard in person.
[Para 25][494-A-B]
H
472 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 1.5 When the Advisory Board has reported that in its
opinion there is a sufficient cause for the detention of a person,
the appropriate government may approve an order of detention
and continue the detention of the person for such period as it
thinks fit. On the other hand, where the Advisory Board reports
that in its opinion there is insufficient cause for detention, the
B
appropriate government shall revoke the detention order and
cause the person to be released forthwith. In terms of clause (a)
and (b) of sub-section (1) of Section 14, both the State Government
and the Central Government have the power to revoke an order
of detention. [Paras 27, 29][494-F; 495-E]
C 2. Delay in considering the representation
2.1 The requirement under Section 8 of the disclosure and
communication of the grounds of detention and the affording of
an opportunity to the detenu of making a representation against
such an order to the appropriate government, is distinct from
D the reference to the Advisory Board. [Para 33][496-C-D]
Jayanarayan Sukul v. State of West Bengal (1970) 1
SCC 219 : [1970] 3 SCR 225; Haradhan Saha v. State
of West Bengal (1975) 3 SCC 198 : [1975] 1 SCR 778;
K.M. Abdulla Kunhi v. Union of India (1991) 1 SCC
E 476 : [1991] 1 SCR 102 – followed
Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCC
275 : [1980] 2 SCR 1095; Harish Pahwa v. State of
Uttar Pradesh (1981) 2 SCC 710 : [1981] 3 SCR 276;
Mohinuddin v. District Magistrate, Beed and Others
F (1987) 4 SCC 58 : [1987] 3 SCR 668; Ankit Ashok
Jalan v. Union of India (2020) 16 SCC 127 : [2020] 2
SCR 1047; Haji Mohd. Akhlaq v. District Magistrate
1988 Supp. SCC 538, 540 – relied on.
2.2 In the present appeal, the order of detention was passed
G on 11 May 2021 and the appellant was detained on 12 May 2021.
The order of detention was approved by the State Government
on 13 May 2021, upon which the State Government submitted
the order of detention to the Central Government on the same
day. On 18 May 2021, the detenu submitted a simultaneous
H
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 473
JABALPUR & ORS.

representation before the District Magistrate, State Government A
and the Central Government. The representation was
communicated by the District Magistrate to the State Government
and the Central Government on 20 May 2021. According to the
appellant, the records of the Department of Post and Telegraph
indicate that service was effected on the Central Government on
B
24 May 2021. However, the Central Government, in its counter
affidavit before the High Court, has submitted that it was received
in the concerned section on 1 June 2021. [Para 41][503-F-G]
2.3 On 2 June 2021, the Central Government sought para-
wise comments from the detaining authority. The District
Magistrate forwarded comments on 10 June 2021 which were C
received on 11 June 2021. The representation made by the
appellant dated 18 May 2021, along with the comments of the
District Magistrate, were processed for consideration by the
Union Home Secretary on 14 June 2021. On 24 June 2021, the
Union Home Secretary rejected the representation of the D
appellant, which is alleged to have been communicated by a
wireless message to the detenu on 28 June 2021. There was a
one-and-a-half-month delay on the part of the Central Government
in considering the representation dated 18 May 2021 and
rejecting the same only on 24 June 2021. [Para 42][504-A-C]
E
2.4 The appellant had also submitted a representation
against the order of detention to the State Government on 18
May 2021. An additional reply was filed by the District Magistrate
on 12 August 2021 before the High Court. The District Magistrate
having received the representation on 18 May 2021,
communicated it to the State Government and the Central F
Government on 20 May 2021. The State Government rejected
the representation, after the decision of the Advisory Board. Until
the representation was rejected by the Advisory Board on 15
June 2021, no steps had been taken by the State Government to
deal with the appellant’s representation dated 18 May 2021. In G
the counter-affidavit of the District Magistrate before this Court
as well as in the written submissions supplied by the AAG, it
appears that the representation was rejected by the State
Government on 15 July 2021. However, this Court has neither
been provided with a copy of such rejection or proof of
H
474 SUPREME COURT REPORTS [2021] 11 S.C.R.

A communication of this rejection to the detenu, nor an explanation
for the almost 60 day delay in considering the appellant’s
representation. [Paras 43, 44][504-C-D, G-H; 505-A-C]
2.5 There is absolutely no reasonable basis for explaining
the circumstances in which the representation dated 18 May 2021
B was not considered by the State Government until after the
Advisory Board had submitted its report on 15 June 2021. The
consideration of the representation by the State Government is
qualitatively different from the reference to the Advisory Board.
This Court, Ankit Ashok Jalan had held that in State Government
is not bound to wait on the Advisory Board’s report before
C deciding the representation and must do so, as expeditiously as
possible. In spite of awaiting the receipt of the report of the
Advisory Board which was eventually issued on 15 June 2021,
the State Government took another one month in arriving at a
decision on the appellant’s representation dated 18 May 2021.
D The State Government did not furnish any valid reasons for either
of the two courses of action. [Para 45][505-C-E]
2.6 By delaying its decision on the representation, the
State Government deprived the detenu of the valuable right
which emanates from the provisions of Section 8(1) of having
E the representation being considered expeditiously. The
communication of the grounds of detention to the detenu “as
soon as may be” and the affording to the detenu of the earliest
opportunity of making a representation against the order of
detention to the appropriate government are intended to ensure
that the representation of the detenu is considered by the
F appropriate government with a sense of immediacy. The State
Government failed to do so. The making of a reference to the
Advisory Board could not have furnished any justification for the
State Government to not deal with the representation
independently at the earliest. The delay by the State Government
G in disposing of the representation and by the Central and State
Government in communicating such rejection, strikes at the heart
of the procedural rights and guarantees granted to the detenu.
The law provides for such procedural safeguards to balance the
wide powers granted to the executive under the NSA. The State

H
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 475
JABALPUR & ORS.

Government cannot expect this Court to uphold its powers of A
subjective satisfaction to detain a person, while violating the
procedural guarantees of the detenu that are fundamental to the
laws of preventive detention enshrined in the Constitution.
[Para 46][505-F-H; 506-A-B]
3. Failure to communicate decision on the representation B
3.1 The respondent could not furnish proof of the appellant’s
receipt of the Central Government’s rejection of representation
dated 24 June 2021. The wireless message dated 28 June 2021,
issued from the Ministry of Home Affairs of the Central
Government to the Home Department of the State Government, C
communicated the rejection of the representation submitted by
the detenu. The SP of the Central Jail, Jabalpur was directed to
serve a copy meant for the detenu. The State Government was
also directed to inform the detenu. Though in the writ petition as
it was originally filed, there was no specific ground that the
rejection of the representation was not communicated to the D
detenu, a specific ground to that effect was raised in the rejoinder
filed before the High Court. There is absolutely no material
coming forthwith to indicate that the rejection of the
representation by the Central Government was communicated
to the detenu. [Para 47][506-D-F] E
3.2 Article 22(4), in guaranteeing a right to make a
representation to the detenu, understandably creates a
corresponding duty on the State machinery to render this right
meaningful. The detenu’s right to make a representation and for
it to be considered expeditiously would ring hollow without a F
corollary right of the detenu to receive a timely communication
from the appropriate government on the status of its
representation- be it an acceptance or a rejection. [Para 49]
[507-B-C]
State of Punjab v. Sukhpal Singh (1990) 1 SCC 35 : G
[1989] 1 Suppl. SCR 420; Madan Lal Anand v. Union
of India (1990) 1 SCC 81 : [1989] 1 Suppl. SCR 733 –
relied on.
Union of India v. Saleena (2016) 3 SCC 437 : [2016] 1
SCR 373 – held inapplicable
H
476 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 3.3 The AAG has furnished no reasons for the failure to
communicate the State Government or Central’s government
rejection of the appellant’s representation. This failure in timely
communication of the rejection of representation is a relevant
factor for determining the delay that the detenu is protected
against under Article 22(5). Accordingly, the order of detention
B
is invalidated on two grounds: first, the unexplained delay on part
of the State Government in deciding the representation of the
appellant and second, the failure of the Central and State
Governments to communicate the rejection of the representation
to the appellant in a timely manner. Once the order of detention
C stands invalidated, the consequential extensions would follow the
same course. [Paras 54, 55][509-F-G; 510-A-C]
Ankit Ashok Jalan v. Union of India 2020 (16) SCC
127 : [2020] 2 SCR 1047; Harish Pahwa v.State of
Uttar Pradesh 1981(2) SCC 710: [1981] 3 SCR 276;
D Raj Kishore Prasad v. State of Bihar 1982 (3) SCC 10;
Wasiuddin Ahmed v. District Magistrate, Aligarh 1981
(4) SCC 521 : [1964] 8 SCR 295; Biren Dutta v. Chief
Commissioner of Tripura AIR 1965 SC 596; Khaja Bilal
Ahmed v. State of Telangana 2020 (13) SCC 632; Anshul
Jain v. The State of Madhya Pradesh WP No. 1118 of
E
2021; Ghanshyam Upadhyay v. State of Uttar Pradesh
2020 (16) SCC 811; Tanveer Patel v. State of Madhya
Pradesh 2020 SCC Online MP 2021; Khaja Bilal
Ahmed v. State of Telangana 2020 (13) SCC 632; Sama
Aruna v. State of Telangana (2018) 12 SCC 150 : [2017]
F 4 SCR 52; Ramesh Yadav v. District Magistrate Etah
(1985) 4 SCC 232; Lakshman Khatik v. State of West
Bengal (1974) 4 SCC 1; Yumman Ongbi Lembi Liema v.
State of Manipur (2012) 2 SCC 176 : [2012] 1 SCR 1;
Rameshwar Shaw v. District Magistrate Burdwan AIR
1964 SC 334 : [1964] 4 SCR 921; Ramveer Jatav v.
G
State of Uttar Pradesh (1986) 4 SCC 726; Vijay Narain
Singh v. State of Bihar (1984) 3 SCC 14 : [1984] 3
SCR 435; PP Rukhiya v. Joint Secretary (2019) 20 SCC
740; Pebam Ningol Mikoi Devi v. State of Manipur 2010

H
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 477
JABALPUR & ORS.

(9) SCC 618 : [2010] 12 SCR 429; Rajendra Singh v. A
State of Uttar Pradesh 2007 (7) SCC 378 : [2007] 8
SCR 834; Mohinder Singh Gill v. Chief Election
Commissioner, New Delhi (1978) 1 SCC 405 : [1978] 2
SCR 272; Rameshwar Shah v. District Magistrate
[1964] 4 SCR 921; State of Punjab v. Sukhpal Singh
B
(1990) 1 SCC 35 : [1989] 1 Suppl. SCR 420; Pebam
Ningol Mikoi Devi v. State of Manipur (2010) 9 SCC
618 : [2010] 12 SCR 429; State of Tamil Nadu v. Nabila
(2015) 12 SCC 127: [2014] 12 SCR 405; Subhash
Bhandari v. District Magistrate (1987) 4 SCC 685 :
[1988] 1 SCR 773; David Patrick Ward v. Union of C
India (1992) 4 SCC 154 : [1992] 1 Suppl. SCR 26;
Shafiq Ahmed v. District Magistrate (1989) 4 SCC 556
: [1989] 1 Suppl. SCR 56 – referred to.
Case Law Reference
D
1982 (3) SCC 10 referred to Para 14 (iii)
[1964] 8 SCR 295 referred to Para 14 (iii)
AIR 1965 SC 596 referred to Para 14 (v)
2020 (13) SCC 632 referred to Para 14 (v) E
2020 (16) SCC 811 referred to Para 14 (viii)
2020 (13) SCC 632 referred to Para 14 (ix)
[2017] 4 SCR 52 referred to Para 14 (ix)
(1985) 4 SCC 232 referred to Para 14 (ix) F

(1974) 4 SCC 1 referred to Para 14 (ix)
[2012] 1 SCR 1 referred to Para 14 (ix)
[1964] 4 SCR 921 referred to Para 14 (ix)
G
(1986) 4 SCC 726 referred to Para 14 (x)
[1984] 3 SCR 435 referred to Para 14 (x)
(2019) 20 SCC 740 referred to Para 14 (xi)
H
478 SUPREME COURT REPORTS [2021] 11 S.C.R.

A [2010] 12 SCR 429 referred to Para 14 (xii)
[2007] 8 SCR 834 referred to Para 14 (xii)
[1978] 2 SCR 272 referred to Para 14 (xiii)
[1964] 4 SCR 921 referred to Para 15 (ii)
B
[1989] 1 Suppl. SCR 420 referred to Para 15 (ii)
[2010] 12 SCR 429 referred to Para 15 (ii)
[2014] 12 SCR 405 referred to Para 15 (iii)

C [1988] 1 SCR 773 referred to Para 15 (v)
[1992] 1 Suppl. SCR 26 referred to Para 15 (v)
[1989] 1 Suppl. SCR 56 referred to Para 15 (vi)
[1970] 3 SCR 225 followed Para 33
D [1975] 1 SCR 778 followed Para 34
[1980] 2 SCR 1095 relied on Para 35
[1991] 1 SCR 102 followed Para 35
[1981] 3 SCR 276 relied on Para 37
E
[1987] 3 SCR 668 relied on Para 38
[2020] 2 SCR 1047 relied on Para 39
(1988) Supp. SCC 538 relied on Para 40
F CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1301 of 2021.
From the Judgment and Order dated 24.08.2021 of the High Court
of Madhya Pradesh, Bench at Indore in WP No.10085 of 2021.

G Sidharth Luthra, Sr. Adv., Ashwani Kumar Dubey, Manish Kumar,
Akshat Kumar, Lakshay Mehta, Ms. Ankita Tiwari, Mayank Nagar, Advs.
for the Appellant.
Saurabh Mishra, AAG, Ms. Ankita Choudhary, Dy. AG, Sunny
Choudhary, Advs. for the Respondents.
H
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 479
JABALPUR & ORS.

The Judgment of the Court was delivered by A
DR. DHANANJAYA Y CHANDRACHUD, J.
A Facts.........................................................................3
B Submissions of counsel.............................................9
C Right to make a representation: Constitutional B
safeguards and legislative scheme of the NSA..........17
D Analysis..................................................................25
D.1 Delay in considering the representation................25
D.2 Failure to communicate decision on the
C
representation.........................................................38
E Conclusion..............................................................43
1. By a judgment dated 24 August 2021, a Division Bench at the
Indore Bench of the High Court of Madhya Pradesh rejected a petition
under Article 226 of the Constitution of India challenging a detention D
order passed against the appellant under Section 3(2) of National Security
Act 19801. The detenu is in appeal.
A Facts
2. The appellant is a Director of City Hospital, Jabalpur. On 10
May 2021, FIR No. 252/2021 was registered at Police Station Omti, E
Jabalpur under Sections 274, 275, 308, 420 and 120B of the India Penal
Code 18602; Section 53 of the Disaster Management Act 2005; and
Section 3 of the Epidemic Diseases Act 1897.The appellant was arrested
in connection with the FIR on 26 May 2021.After the investigation, a
final report under Section 173 of the Code of Criminal Procedure 1973 3
F
was submitted on 6 August 2021. The allegation against the appellant is
that in connivance with certain others, he procured fake Remdesivir
injections which were administered to patients during the Covid-19
pandemic in order to make illegal profits thereby endangering the life of
the general public.
3. On 12 May 2021, the appellant was detained in pursuance of G
an order of detention dated 11 May 2021 under Section 3(2) of the NSA,
for a period of three months.
1
“NSA”
2
“IPC”
3
“CrPC” H
480 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 4. It is alleged that the Police Station of ‘B’ Division in District
Morbi of Gujarat seized fake Remdesivir injections from a factory where
they were manufactured and an FIR was registered in that regard. On
10 May 2021, the statement under Section 161 of the CrPC of a co-
accused by the name of Devesh Chaurasia, who was running a pharmacy
in the hospital owned by the appellant, was recorded to the effect that
B
the appellant had procured fake Remdesivir injections without a bill. The
appellant is said to have collected the injections through a person named
Prakhar Kohli from Indore, who sent the cartons through a transporter
called Amba Travels. The fake Remdesivir injections were stated to
have been administered to 50 patients at the City Hospital on 30 April
C 2021. In his statement under Section 161 of the CrPC recorded on 10
May 2021, Prakhar Kohli stated that the appellant’s son had on 21 April
2021 asked him to send the fake Remdesivir injections from Indore to
Jabalpur. Prakhar Kohli was made to speak to the appellant in that
connection. Prakhar Kohli is stated to have sent the fake injections through
Amba Travels, and these injections were received at Jabalpur by the co-
D
accused, Devesh Chaurasia, on behalf of the appellant.
5. On 11 May 2021, the Superintendent of Police, Jabalpur4 made
a request to the District Magistrate to take action against the appellant
under the NSA. The SP reiterated the allegations against the appellant
of having procured and administered fake Remdesivir injections to Covid-
E 19 patients. The appellant is alleged to have procured 500 injections
worth Rs.15 lakhs. The SP stated that the newspapers had widely
reported that there was a public outcry following the appellant’s actions,
which were likely to disturb the public order. Following the
recommendation of the SP, the District Magistrate passed an order on
F 11 May 2021 under Section 3(2) of the NSA, detaining the appellant for
a period of three months. The grounds of detention which were supplied
to the appellant were to the following effect:
(i) Spurious Remdesivir injections had been administered to
patients which resulted in several untimely deaths;
G (ii) The spurious injections had caused casualties which had
been reported in the newspapers;
(iii) There was anger and resentment in the public in Jabalpur
and its adjoining districts which may explode at any time;
4
H “SP”
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 481
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

(iv) The appellant had criminal antecedents but had been A
acquitted in certain cases due to his ‘money power’. The
criminal cases against the appellant were:
(a) FIR No. 252 of 2021 dated 10 May 2021, relating to
the sale of spurious Remdesivir injections in the midst
of the Covid-19 pandemic; B
(b) Crime No. 400 of 2004 dated 23 May 2004 under
Sections 395, 397, and 120B of the IPC, and Sections
25 and 27 of the Arms Act 1959 registered at Police
Station Gorakhpur, in which the appellant was
accused of attacking a person with deadly weapons. C
The appellant was acquitted in this case;
(v) City Hospital and Research Centre owned by the appellant
had ordered 500 fake Remdesivir injections worth Rs.15
lakhs at the rate of Rs.3,000/- per piece by an invoice no.
0063 dated 20 April 2021, which were procured by means
D
of fake bills from a manufacturing company situated in
Gujarat against whom an FIR had been registered by the
Gujarat Police;
(vi) A public agitation and outcry had spread across the city of
Jabalpur with news items being published leading to an
E
apprehension of a law-and-order situation in the area;
(vii) Fake injections had been procured from Indore and arrived
in Jabalpur through Amba Travels in collusion with Devesh
Chaurasia and the payment for these injections was made
by one Sapan Jain;
F
(viii) In the wake of the Covid-19 pandemic, several cases were
reported where the patients needed Remdesivir injections;
and
(ix) Cheating patients for administering fake essential drugs is
a punishable offence.
G
6. The order of detention was communicated to the appellant on
11 May 2021. The appellant was detained on 12 May 2021. The
Government of Madhya Pradesh5 approved the order of detention on 13
May 2021 in terms of the provisions of Section 3(4) of the NSA. The
5
“State Government” H
482 SUPREME COURT REPORTS [2021] 11 S.C.R.

A State Government submitted a report in regard to the order of detention
to the Government of India6 on 13 May 2021. On 18 May 2021, the
appellant submitted a representation7 against the order of detention both
to the Home Department of the State Government and the Ministry of
Home Affairs of the Central Government. In terms of the provisions of
Section 10 of the NSA, the State Government submitted the grounds for
B
detention and the representation of the appellant to the Advisory Board
constituted under Section 10. The Advisory Board submitted its report
to the State Government under Section 11 on 15 June 2021 opining that
there was sufficient cause for the detention of the appellant.
7. In its affidavit submitted before the High Court, the Central
C Government stated that it rejected the representation of the appellant on
24 June 2021, which was communicated to the Superintendent of the
Jail and the State Government by a wireless message on 28 June 2021.
Pursuant to the report of the Advisory Board, the State Government
approved the order of detention, under Section 12(1), on 29 June 2021.
D 8. On 29 June 2021, the SP recommended to the District Magistrate
to extend the order of detention which had initially been passed for a
period of three months. By an order dated 5 July 2021, the District
Magistrate Jabalpur8 extended the detention of the appellant by a further
period of three months, to end on 12 November 2021 and forwarded the
order of extension to the State Government.
E
9. Meanwhile, on 3 July 2021, the appellant instituted a petition
under Article 226 of the Constitution to challenge the order of detention.
The writ petition before the High Court was amended to challenge both-
the original order of detention dated 11 May 2021 as well as the extension
dated 5 July 2021.
F 10. On 15 July 2021, the State Government allegedly rejected the
first representation of the appellant and extended the order of detention
till 12 November 2021. The District Magistrate, by a letter dated 22 July
2021, informed the appellant, who was in custody, of the extension of
the order of detention by the State Government. Another representation 9
G of the appellant against the extension of his detention was rejected by
the State Government on 5 August 2021 and was communicated to the
appellant by the District Magistrate on the same day.
6
“Central Government”
7
“first representation”
8
“District Magistrate”
H 9
“second representation”
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 483
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

11. The writ petition of the appellant was dismissed by the High A
Court by the impugned judgment on 24 August 2021. The Division Bench
of the High Court, in upholding the detention order, inter alia, observed
that:
(i) There was no undue delay in sending the order of detention to
the State Government, as the order was passed on 11 May B
2021 and was sent to the State Government on 13 May
2021;
(ii) A singular solitary act, of administering fake Remdesivir
injections in the present case, is sufficient to attract Section
3 of the NSA;
C
(iii) The detention order as well as the affidavit before the High
Court reflect the subjective satisfaction of the authorities in
invoking Section 3 of the NSA; and
(iv) The District Magistrate had applied their mind to the SP’s
recommendation regarding the detention of the appellant,
and the detention order was not passed mechanically, D
without reason.
12. Following the dismissal of the writ petition by the High Court,
the appellant moved this Court in proceedings under Article 136 of the
Constitution. Notice was issued by this Court on 20 September 2021.
13. During the pendency of the proceedings, by an order dated 30 E
September 2021, the order of detention has been extended for a further
period of three months, ending on 12 February 2022.
B Submissions of counsel
14. Mr Sidharth Luthra, senior counsel appearing on behalf of the
appellant, has urged the following arguments: F
(i) On 18 May 2021, the appellant’s son had made a
representation to the District Magistrate, the State
Government and the Central Government, against the
detention order dated 11 May 2021:
(a) The Central Government incorrectly averred before G
the High Court that the rejection of representation
dated 24 June 2021 was communicated to the
appellant by wireless message on 28 June 2021. The
Central Government furnished a copy of their rejection
of representation dated 24 June 2021, only in the form
H
484 SUPREME COURT REPORTS [2021] 11 S.C.R.

A of an annexure in their counter affidavit dated 26
July 2021 to the appellant’s writ petition before the
High Court; and
(b) The appellant’s representation dated 18 May 2021
was forwarded by the District Magistrate on 20 May
B 2021 and received by the Central Government on 24
May 2021. Thereafter, the Central Government
sought para-wise comments from the District
Magistrate and the State Government on 2 June 2021.
The Central Government’s wireless message dated
28 June 2021 rejecting the representation by order
C dated 24 June 2021, directed the Jail Superintendent
to forward the appellant’s acknowledgement. The
respondents do not have a copy of this
acknowledgement since the appellant has never
received the rejection of his representation;
D (ii) The State Government also did not furnish a reply to the
appellant’s representation, allegedly rejected by it on 15 July
2021,except in its additional reply that was filed before the
High Court on 12 August 2021;
(iii) This Court has held that a delay in considering a detenu’s
representation could be fatal to the detention order in Ankit
E Ashok Jalan v. Union of India10, Harish Pahwa v. State
of Uttar Pradesh 11, Raj Kishore Prasad v. State of
Bihar12 and Wasiuddin Ahmed v. District Magistrate,
Aligarh13.
(iv) The appellant was not served with a copy of the State
F Government’s approval of the detention order dated 13 May
2021;
(v) Approval of the detention order and communication of the
rejection of representation should be made forthwith,
according to this Court’s decisions in Biren Dutta v. Chief
Commissioner of Tripura14 and Khaja Bilal Ahmed v.
G
State of Telangana;15
10
2020 (16) SCC 127
11
1981 (2) SCC 710
12
1982 (3) SCC 10
13
1981 (4) SCC 521
14
AIR 1965 SC 596
H 15
2020 (13) SCC 632
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 485
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

(vi) The High Court of Madhya Pradesh in Anshul Jain v. A
The State of Madhya Pradesh16 interpreted Section 3(5)
of the NSA Act to hold that original record produced from
the office of the District Magistrate should contain the exact
date of dispatch and receipt by the Central Government of
the order of approval of the State Government along with
B
grounds. In this case, the Central Government had to seek
the aforementioned report from the District Magistrate;
(vii) The extension of the appellant’s detention under the NSA
on 15 July 2021 for alleged black-marketing of Remdesivir
is illegal, since the Explanation to Section 3(2) of the NSA
states that no order of detention can be made under it if the C
order can be made under Prevention of Black Marketing
& Maintenance of Supplies of Essential Commodities Act
1980;
(viii) The appellant has relied on this Court’s decisions in
Ghanshyam Upadhyay v. State of Uttar Pradesh17 and D
the Madhya Pradesh High Court’s decision in Tanveer
Patel v. State of Madhya Pradesh18 to argue that mere
allegations of media outrage or purported public agitation
cannot be the basis of detention. Furthermore, since an order
under Section 144 of the CrPC was in force at the time, the E
ground of public order could not be justified for detention;
(ix) The appellant was acquitted by the trial court in Case Crime
No. 400/2004 and Case Challan No. 547/2004 under
Sections 395, 397, 120 of the IPC and Sections 25, 27 Arms
Act at PS Gorakhpur. Yet, the detention order dated 11 May F
2021 has relied upon this past antecedent without it having
any live or proximate link with the present allegations. This
stale reliance on past antecedents to justify detention is in
breach of this Court’s decisions in Khaja Bilal Ahmed v.
State of Telangana, 19 Sama Aruna v. State of
Telangana, 20Ramesh Yadav v. District Magistrate G

16
WP No. 1118 of 2021
17
2020 (16) SCC 811
18
2020 SCC Online MP 2021
19
2020 (13) SCC 632
20
(2018) 12 SCC 150 H
486 SUPREME COURT REPORTS [2021] 11 S.C.R.

A Etah,21 Lakshman Khatik v. State of West Bengal,22
Yumman Ongbi Lembi Liema v. State of Manipur23
and Rameshwar Shaw v. District Magistrate
Burdwan24;
(x) The detention is based on a solitary action and ought to be
B set aside, as held by this Court in Ramveer Jatav v. State
of Uttar Pradesh25 and Vijay Narain Singh v. State of
Bihar26;
(xi) A mere apprehension of the grant of bail in the FIR cannot
be the cause for detention, as held by this Court in PP
C Rukhiya v. Joint Secretary 27 .In any event, this
apprehension is unfounded since the appellant has not
applied for bail;
(xii) There is no substantial evidence of death/harm due to the
allegedly fake Remdesivir injections procured by the
appellant. As held by this Court in Pebam Ningol Mikoi
D
Devi v. State of Manipur28 and Rajendra Singh v. State
of Uttar Pradesh29, statements recorded under Section
161 of the CrPC cannot be relied on to pass a detention
order;
(xiii) In view of this Court’s decision in Mohinder Singh Gill v.
E Chief Election Commissioner, New Delhi30, the validity
of the detention has to be seen on the grounds in the original
detention order and cannot be supplemented by additional
grounds;
(xiv) The extension of the order of detention on 15 July 2021 and
F 30 September 2021 is on vague and unjustifiable grounds.
This violates the appellant’s right to life and personal liberty
under Article 21; and
21
(1985) 4 SCC 232
22
(1974) 4 SCC 1
23
G (2012) 2 SCC 176
24
AIR 1964 SC 334
25
(1986) 4 SCC 726
26
(1984) 3 SCC 14
27
(2019) 20 SCC 740
28
2010 (9) SCC 618
29
2007 (7) SCC 378
H 30
(1978) 1 SCC 405
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 487
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

(xv) The appellant had tested positive for Covid-19 and suffered A
a heart attack on 6 May 2021. Despite the appellant’s critical
health condition and medical advice, he was detained on 12
May 2021.
15. Mr Saurabh Mishra, Additional Advocate General31 for the
State of Madhya Pradesh, appearing on behalf of the respondents, has B
urged the following submissions in support of the validity of the detention
order:
(i) NSA being a complete code, provides several safeguards
for the detenu that have been duly observed:
(a) The District Magistrate’s detention order of 11 May
2021 was communicated on the same day to the C
appellant, in compliance with the outer-limit of five
days under Section 8(2) of the NSA. The detention
order was duly approved by the State Government
on 13 May 2021, in compliance with Section 3(4);
(b) The State Government duly reported the appellant’s D
detention to the Central Government on 13 May 2021,
within the seven-day time limit under Section 3(5) of
the NSA. In compliance with Section 10, the State
Government also forwarded the detention order to
the Advisory Board. On 15 June 2021, the Advisory
Board examined the record, under Section 11, and E
noted that there was sufficient cause for detention.
The State Government accordingly approved the
detention order on 29 June 2021 under Section 12(1);
and
(c) The appellant’s representation was considered and F
decided by the Central Government and State
Government in a timely fashion. The State
Government forwarded the appellant’s representation
to the Central Government on 20 May 2021 and the
service was complete on 1 June 2021. The Central
Government sought para-wise comments from the G
District Magistrate on 2 June 2021. The District
Magistrate forwarded comments on 10 June 2021
and they were received by the Central Government
on 11 June 2021. After due consideration, the Central
31
“AAG“ H
488 SUPREME COURT REPORTS [2021] 11 S.C.R.

A Government rejected the appellant’s representation
on 24 June 2021 and communicated it to him by a
wireless message dated 28 June 2021. The State
Government rejected the appellant’s representation
on 15July 2021. In any event, the appellant has not
urged the delay in consideration of its representation
B
before the High Court;
(ii) It is well settled that the subjective satisfaction of the
detaining authority is not justiciable, as held by this Court in
Rameshwar Shah v. District Magistrate.32 Neither can
the reasonableness of its satisfaction be questioned in a
C court of law, nor can the adequacy of the material be
scrutinized. The respondents relied on this Court’s decisions
in State of Punjab v. Sukhpal Singh33 and Pebam Ningol
Mikoi Devi v. State of Manipur34;
(iii) When an order of preventive detention is challenged, the
D detaining authority does not have to prove an offence or
formulate a charge. The justification for an order of detention
at best can be established on the basis of suspicion and
reasonability, there being no criminal conviction on the basis
of evidence, as held by this Court in State of Tamil Nadu
v. Nabila35;
E
(iv) The Covid-19 pandemic has resulted in devastating effects
worldwide. The conduct of the appellant, as the owner of a
specialty hospital selling spurious essential drugs, had caused
a public outcry and a media outrage. Hence, in the subjective
satisfaction of the detaining authority, the detention was
F required to prevent further sale of fake Remdesivir that
would be prejudicial to public order;
(v) A valid order of detention can be based even on a solitary
act of commission and omission, as held by this Court in
Subhash Bhandari v. District Magistrate36 and David
G Patrick Ward v. Union of India37;
32
(1964) 4 SCR 921
33
(1990) 1 SCC 35
34
(2010) 9 SCC 618
35
(2015) 12 SCC 127
36
(1987) 4 SCC 685
H 37
(1992) 4 SCC 154
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 489
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

(vi) Even if the appellant’s argument of stale reliance on the A
past antecedents or any other ground were to succeed,
Section 5A of the NSA provides for severability of the
grounds of detention and the rest of the order will sustain.
This position in law has been accepted by this Court in Shafiq
Ahmed v. District Magistrate38;
B
(vii) The present case is not a simple act of black marketing, but
involves the purchase and administration of fake Remdesivir
vials for Covid-19 patients. Hence, the Prevention of Black
Marketing and Maintenance of Supplies of Essential
Commodities Act 1980 does not apply;
C
(viii) There was no violation of the provisions of Section 3(5) of
the NSA since the State Government approved the order
of detention on 13 May 2021 and immediately reported it to
the Central Government; and
(ix) In the counter affidavit filed before the High Court, the D
Central Government has clearly stated that its order
rejecting the representation dated 24 June 2021 was duly
communicated.
16. The rival submissions need to be analyzed.
C Right to make a representation: Constitutional safeguards E
and legislative scheme of the NSA
17. Article 22 of the Constitution provides specific protections to
undertrials and detainees in India. The framers of the Constitution, who
were also our freedom fighters, were conscious of founding a polity that
secured civil and political freedoms to its citizens. Dr B R Ambedkar, F
while proposing the article, noted the necessity of retaining the concept
of preventive detention “in the present circumstances of the country”.39
However, the discontinuity from the colonial regime lay in the introduction
of strict countervailing measures that ensured that “exigency of liberty
of the individual [is not] placed above the interests of the State” in all G
cases. 40

38
(1989) 4 SCC 556
39
Speech of Dr. B.R. Ambedkar, Constituent Assembly Debates, Vol. IX, 9.141.38 (15/
09/1949)
40
Id. H
490 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 18. The specific provisions relating to preventive detention under
Article 22 were framed in the following terms:
“(4) No law providing for preventive detention shall authorise the
detention of a person for a longer period than three months
unless—
B (a) an Advisory Board consisting of persons who are, or have
been, or are qualified to be appointed as, Judges of a High Court
has reported before the expiration of the said period of three months
that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention
C of any person beyond the maximum period prescribed by any law
made by Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of
any law made by Parliament under sub-clauses (a) and (b) of
clause (7).
D (5) When any person is detained in pursuance of an order
made under any law providing for preventive detention, the
authority making the order shall, as soon as may be,
communicate to such person the grounds on which the order
has been made and shall afford him the earliest opportunity
of making a representation against the order.
E
(6) Nothing in clause (5) shall require the authority making any
such order as is referred to in that clause to disclose facts which
such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe—
F (a) the circumstances under which, and the class or classes of
cases in which, a person may be detained for a period longer than
three months under any law providing for preventive detention
without obtaining the opinion of an Advisory Board in accordance
with the provisions of sub-clause (a) of clause (4);
G (b) the maximum period for which any person may in any class or
classes of cases be detained under any law providing for preventive
detention; and
(c) the procedure to be followed by an Advisory Board in an
inquiry under sub-clause (a) of clause (4).”
H (emphasis supplied)
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 491
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

19. The text of Article 22 enshrines certain procedural safeguards, A
many of which are otherwise available in the CrPC. In elevating these
safeguards to a constitutional status, the framers imposed a specific
“limitation upon the authority both of Parliament as well as [State]
Legislature [to] not abrogate”41 rights that are fundamental to India’s
constitution. Dr Bakshi Tek Chand, a conscientious dissenter to preventive
B
detention in peaceful times, proposed a further safeguard in the provision
of a right to make representation to the detenu,42 which was eventually
accepted by the Constituent Assembly as a reasonable
compromise43Therefore, preventive detention in independent India is to
be exercised with utmost regard to constitutional safeguards.
C
20. This history of the framing of Article 22 is critical for the
judiciary’s evaluation of a detenu’s writ petition alleging, inter alia, a
denial of the timely consideration of his representation. While several
arguments have been preferred by the appellant to argue for his release
from preventive detention, we are confining our analysis to the most
clinching aspect of this case- the failure of the Central Government and D
the State Government to consider his representation dated 18 May 2021
in a timely manner.
21. Article 22(5) of the Constitution mandates that (i) the authority
making the order shall “as soon as may be” communicate the grounds
on which the order has been made to the person detained; and (ii) the E
detaining authority shall afford to the person detained “the earliest
opportunity of making a representation against the order”44.Clause 5 of
Article 22 incorporates a dual requirement: first, of requiring the detaining
authority to communicate the grounds of detention as soon as may be;
and second, of affording to the detenu “an earliest opportunity” of making
F
a representation. Both these procedural requirements are mutually
reinforcing. The communication, as soon as may be, of the grounds of
detention is intended to inform the detenu of the basis on which the

41
Speech of Dr. B R Ambedkar, supra note 37, 9.141.35; Speech of Alladi Krishnaswami
Ayyar, Constituent Assembly Debates, Vol. IX, 9.141.229 (15/09/1949) G
42
Speech of Dr. Bakshi Tek Chand, Constituent Assembly Debates, Vol. IX, 9.141.181
(15/09/1949)
43
Constituent Assembly Debates, Vol. IX (16/09/1949)
44
Article 22(5):When any person is detained in pursuance of an order made under any
law providing for preventive detention, the authority making the order shall, as soon as
may be, communicate to such person the grounds on which the order has been made and
shall afford him the earliest opportunity of making a representation against the order. H
492 SUPREME COURT REPORTS [2021] 11 S.C.R.

A order of detention has been made. The expression “as soon as may be”
imports a requirement of immediacy.
22. The communication of the grounds is in aid of facilitating the
right of the detenu to submit a representation against the order of
detention. In the absence of the grounds being communicated, the detenu
B would be left in the dark in regard to the reasons which have led to the
order of detention. The importance which the constitutional provision
ascribes to the communication of the grounds as well as the affording of
an opportunity to make a representation is evident from the use of the
expression “as soon as may be” in the first part in relation to
communicating the grounds and allowing the detenu “the earliest
C
opportunity” of availing of the right to submit a representation. Article
22(5) reflects a keen awareness of the framers of the Constitution that
preventive detention leads to the detention of a person without trial and
hence, it incorporates procedural safeguards which mandate an
immediacy in terms of time. The significance of Article 22 is that the
D representation which has been submitted by the detenu must be disposed
of at an early date. The communication of the grounds of detention, as
soon as may be, and the affording of the earliest opportunity to submit a
representation against the order of detention will have no constitutional
significance unless the detaining authority deals with the representation
and communicates its decision with expedition.
E
23. The provisions of the NSA subscribe to the mandate of Article
22(5). Section 3(4) contains a requirement that once an order of detention
has been made, the officer making the order must forthwith report the
fact to the State Government, together with the grounds on which the
order has been made and other particulars which have a bearing on the
F
matter. No such order should remain in force for more than twelve days,
unless it has been approved by the State Government. In the meantime,this
period is subject to the proviso which stipulates that where the grounds
of detention are communicated by the officer after five days (under
Section 8) but not later than ten days from the date of the detention, sub-
G section (4) will apply as if the words fifteen days stands substituted for
twelve days. Upon the State Government either making or approving
the order under Section 3, it is under a mandate under Section 3(5) to
report the fact to the Central Government within seven days, together
with the grounds on which the order has been made and other necessary
particulars.
H
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 493
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

24. Section 8 of the NSA contains statutory provisions governing A
the disclosure of the grounds of detention. Section 8 is in the following
terms:
“8. Grounds of order of detention to be disclosed to persons affected
by the order.—(1) When a person is detained in pursuance of a
detention order, the authority making the order shall, as soon as B
may be, but ordinarily not later than five days and in exceptional
circumstances and for reasons to be recorded in writing, not later
than [ten 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 C
the order to the appropriate Government. (2) Nothing in sub-section
(1) shall require the authority to disclose facts which it considers
to be against the public interest to disclose.”
As noticed earlier, Article 22(5) of the Constitution provides for
the communication of the grounds on which the order of detention has D
been made by the detaining authority “as soon as may be”. Section 8(1)
uses the expression “as soon as may be”, qualifying it with the requirement
that the communication of grounds should ordinarily not be later than
five days and, in exceptional circumstances, for reasons to be recorded
in writing not later than ten days from the date of detention. Section 8(1)
also embodies the second requirement of Article 22(5) of affording to E
the detenu the earliest opportunity of making a representation against
the order to the appropriate government.
25. Section 10 mandates a reference to the Advisory Board
constituted under the provisions of Section 9:
F
“10. Reference to Advisory Boards.—Save as otherwise
expressly provided in this Act, in every case where a detention
order has been made under this Act, the appropriate Government
shall, within three weeks from the date of detention of a person
under the order, place before the Advisory Board constituted by it
G
under section 9, the grounds on which the order has been made
and the representation, if any, made by the person affected by the
order, and in case where the order has been made by an officer
mentioned in sub-section (3) of section 3, also the report by such
officer under sub-section (4) of that section.”
H
494 SUPREME COURT REPORTS [2021] 11 S.C.R.

A Under Section 10, the appropriate government has to place the
grounds on which the order of detention has been made within three
days from the date of detention of the person together with a
representation, if any, made by the person affected by the order. The
Advisory Board, under the provisions of Section 11, has to submit its
report to the appropriate government within seven weeks from the date
B
of detention order after considering the relevant materials. It may call
for further information from the appropriate government, or any person,
or even the person concerned if they desire an opportunity to be heard in
person.
26. Action on the report of the Advisory Board falls within the
C
ambit of Section 12:
“12. Action upon the report of the Advisory Board.—
(1) In any case where the Advisory Board has reported that there
is, in its opinion, sufficient cause for the detention of a person, the
D appropriate Government may confirm the detention order and
continue the detention of the person concerned for such period as
it thinks fit.
(2) In any case where the Advisory Board has reported that there
is, in its opinion, no sufficient cause for the detention of a person,
E the appropriate Government shall revoke the detention order and
cause the person concerned to be released forthwith.”
27. When the Advisory Board has reported that in its opinion there
is a sufficient cause for the detention of a person, the appropriate
government may approve an order of detention and continue the detention
F of the person for such period as it thinks fit. On the other hand, where
the Advisory Board reports that in its opinion there is insufficient cause
for detention, the appropriate government shall revoke the detention order
and cause the person to be released forthwith.
28. Section14 provides for the revocation of detention orders in
G the following terms:
“14. Revocation of detention orders.—
(1) Without prejudice to the provisions of section 21 of the General
Clauses Act, 1897 (10 of 1897), a detention order may, at any
time, be revoked or modified,—
H
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 495
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

(a) notwithstanding that the order has been made by an officer A
mentioned in sub-section (3) of section 3, by the State Government
to which that officer is subordinate or by the Central Government;
(b) notwithstanding that the order has been made by a State
Government, by the Central Government.
(2) The expiry or revocation of a detention order (hereafter in this B
sub-section referred to as the earlier detention order) shall not
[whether such earlier detention order has been made before or
after the commencement of the National Security (Second
Amendment) Act, 1984 (60 of 1984) bar the making of another
detention order (hereafter in this sub-section referred to as the C
subsequent detention order) under section 3 against the same
person:
Provided that in a case where no fresh facts have arisen after the
expiry or revocation of the earlier detention order made against
such person, the maximum period for which such person may be D
detained in pursuance of the subsequent detention order shall, in
no case, extend beyond the expiry of a period of twelve months
from the date of detention under the earlier detention order.”
29. In terms of clause (a) and (b) of sub-section (1) of Section 14,
both the State Government and the Central Government have the power E
to revoke an order of detention.
30. We shall now proceed to analyse the facts of the present
case. At the outset, we would like to note that our analysis is limited to
the order of detention, the extension orders passed and the rejection of
the first representation dated 18 May 2021 made by the appellant. F
D Analysis
D.1 Delay in considering the representation
31. Mr Saurab Mishra, AAG has submitted that there was no
unreasonable delay in considering the representation of the appellant
dated 18 May 2021, which was communicated by the District Magistrate G
to the State and Central Government on 20 May 2021. Thereafter, the
State Government awaited the report from the Advisory Board, to which
it had submitted the detention order and other information, and considered
the comments of the District Magistrate, before formulating its opinion.
Following the report of the Advisory Board, the State Government rejected H
496 SUPREME COURT REPORTS [2021] 11 S.C.R.

A the representation of the appellant on 15 July 2021. Thus, the
representation made by the appellant on 18 May 2021, was allegedly
rejected after almost two months on 15 July 2021 by the State Government.
The State Government’s order rejecting the representation has not been
filed before this Court.
B 32. The issue that arises for our consideration is whether the
procedural rights of the detenu emanating from Article 22 of the
Constitution and Section 8 of the NSA were sufficiently protected in the
present case.
33. The requirement under Section 8 of the disclosure and
C communication of the grounds of detention and the affording of an
opportunity to the detenu of making a representation against such an
order to the appropriate government, is distinct from the reference to
the Advisory Board. In Jayanarayan Sukul v. State of West Bengal45,
a Constitution Bench of this Court laid emphasis on the expeditious
consideration of the representation by the appropriate government. In
D that case, a representation was made by the petitioner against an order
of detention passed under Section 3(2) of the Preventive Detention Act
1950. The petitioner made a representation to the State Government on
23 June 1969, which was rejected on 19 August 1969, as a reference
regarding the detention order was pending before the Advisory Board.
E The Court held that there was an inordinate delay in considering the
representation of the petitioner. Justice AN Ray (as the learned Chief
Justice then was), speaking for the Bench, observed:
“18. It is established beyond any measure of doubt that the
appropriate authority is bound to consider the representation of
the detenu as early as possible. The appropriate Government itself
F is bound to consider the representation as expeditiously as possible.
The reason for immediate consideration of the representation is
too obvious to be stressed. The personal liberty of a person is at
stake. Any delay would not only be an irresponsible act on the
part of the appropriate authority but also unconstitutional because
G the Constitution enshrines the fundamental right of a detenu to
have his representation considered and it is imperative that when
the liberty of a person is in peril immediate action should be taken
by the relevant authorities.
[…]
H 45
(1970) 1 SCC 219
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 497
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

20. Broadly stated, four principles are to be followed in regard to A
representation of detenus. First, the appropriate authority is bound
to give an opportunity to the detenu to make a representation and
to consider the representation of the detenu as early as possible.
Secondly, the consideration of the representation of the
detenu by the appropriate authority is entirely independent
B
of any action by the Advisory Board including the
consideration of the representation of the detenu by the
Advisory Board. Thirdly, there should not be any delay in
the matter of consideration. It is true that no hard and fast
rule can be laid down as to the measure of time taken by
the appropriate authority for consideration but it has to be C
remembered that the Government has to be vigilant in the
governance of the citizens. A citizen’s right raises a
correlative duty of the State. Fourthly, the appropriate
Government is to exercise its opinion and judgment on the
representation before sending the case along with the detenu’s
D
representation to the Advisory Board. If the appropriate
Government will release the detenu the Government will not send
the matter to the Advisory Board. If however the Government
will not release the detenu the Government will send the case
along with the detenu’s representation to the Advisory Board. If
thereafter the Advisory Board will express an opinion in favour of E
release of the detenu the Government will release the detenu. If
the Advisory Board will express any opinion against the release
of the detenu the Government may still exercise the power to
release the detenu.”
(emphasis supplied) F
34. A Constitution Bench in Haradhan Saha v. State of West
Bengal46 made a clear distinction between the right of the detenu to
have their representation considered by the appropriate government and
the power which is entrusted to the Advisory Board. The Court observed:
“24. The representation of a detenu is to be considered. There is G
an obligation on the State to consider the representation. The
Advisory Board has adequate power to examine the entire material.
The Board can also call for more materials. The Board may call
the detenu at his request. The constitution of the Board shows
46
(1975) 3 SCC 198 [“Haradhan Saha“] H
498 SUPREME COURT REPORTS [2021] 11 S.C.R.

A that it is to consist of Judges or persons qualified to be Judges of
the High Court. The constitution of the Board observes the
fundamental of fair play and principles of natural justice. It is not
the requirement of principles of natural justice that there must be
an oral hearing. Section 8 of the Act which casts an obligation on
the State to consider the representation affords the detenu all the
B
rights which are guaranteed by Article 22(5). 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 whether in the light of the
representation there is sufficient cause for detention.”
C
35. In Frances Coralie Mullin v. W.C. Khambra47 a Bench of
two judges of this Court reiterated the principles enunciated in the
precedents of this Court by observing:
”5. […] We agree : (1) the detaining authority must provide the
D detenu a very early opportunity to make a representation, (2) the
detaining authority must consider the representation as soon as
possible, and this, preferably, must be before the representation is
forwarded to the Advisory Board, (3) the representation must be
forwarded to the Advisory Board before the Board makes its
report, and (4) the consideration by the detaining authority of the
E representation must be entirely independent of the hearing by the
Board or its report, expedition being essential at every stage.”
At the same time the Court observed that “the time– imperative
[for consideration of representation] can never be absolute or
obsessive.” This view was approved by a Constitution Bench of this
F Court in K.M. Abdulla Kunhi v. Union of India48.
36. The distinction between the consideration of a representation
by the appropriate government and by the Advisory Board is well settled.
In Haradhan Saha (supra) the Court noted that the State Government,
while the considering the representation, has to ascertain whether the
G
order is in conformity with the power under the law, while the Board on
the other hand, considers whether there is sufficient cause for detention
in the light of the representation.

47
(1980) 2 SCC 275
H 48
(1991) 1 SCC 476
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 499
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

37. A two-judge Bench of this Court, in Harish Pahwa v. State A
of Uttar Pradesh49, held that a representation by a detenu must be
considered expeditiously and can be kept pending, only when seeking
assistance is absolutely necessary. This Court was considering a detention
order dated 16 May 1980, a representation by the detenu dated 3 June
1980 and the rejection of such representation on 24 June 1980, which
B
was communicated to the detenu within two days. Justice AD Koshal
held the unexplained delay as fatal to the detention by holding the following:
“5. In our opinion, the manner in which the representation made
by the appellant has been dealt with reveals a sorry state of affairs
in the matter of consideration of representations made by persons
detained without trial. There is no explanation at all as to why no C
action was taken in reference to the representation on June 4, 5
and 25, 1980. It is also not clear what consideration was given by
the government to the representation from June 13, 1980 to June
16, 1980 when we find that it culminated only in a reference to
the Law Department, nor it is apparent why the Law Department
D
had to be consulted at all. Again, we fail to understand why the
representation had to travel from table to table for six days before
reaching the Chief Minister who was the only authority to decide
the representation. We may make it clear, as we have done on
numerous earlier occasions, that this Court does not look with
equanimity upon such delays when the liberty of a person is E
concerned. Calling comments from other departments, seeking
the opinion of Secretary after Secretary and allowing the
representation to lie without being attended to is not the type of
action which the State is expected to take in a matter of such vital
import. We would emphasise that it is the duty of the State to
F
proceed to determine representations of the character above
mentioned with the utmost expedition, which means that the matter
must be taken up for consideration as soon as such a
representation is received and dealt with continuously (unless it is
absolutely necessary to wait for some assistance in connection
with it) until a final decision is taken and communicated to the G
detenu. This not having been done in the present case we have no
option but to declare the detention unconstitutional. We order
accordingly, allow the appeal and direct that the appellant be set
at liberty forthwith.”
49
(1981) 2 SCC 710 H
500 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 38. In another decision in the case of Mohinuddin v. District
Magistrate, Beed and Others 50 , the petitioner made two
representations, one to the Advisory Board and the other to the Chief
Minister. While the representation to the Advisory Board was considered,
the representation dated 22 September 1986 was disposed of on 17
November 1986. Rejecting the submission of the State Government,
B
Justice AP Sen, speaking for the two judge Bench, held:
“6. […] When the life and liberty of a citizen is involved, it is
expected that the Government will ensure that the constitutional
safeguards embodied in Article 22(5) are strictly observed. We
say and we think it necessary to repeat that the gravity of the evil
C to the community resulting from anti-social activities can never
furnish an adequate reason for invading the personal liberty of a
citizen, except in accordance with the procedure established by
the Constitution and the laws. The history of personal liberty is
largely the history of insistence on observance of the procedural
D safeguards.
[…]
8. […] The counter-affidavit filed by Shri S.V. Joshi, District
Magistrate contains a bare denial in para that there was any
unreasonable delay in the disposal of the representation. […]
E It is accepted that the representation made by the appellant to the
Chief Minister on September 22, 1986, forwarded by the
Superintendent, Aurangabad Central Prison on the 24th, was
received in the Home Department on the 26th which in its turn
forwarded the same to the detaining authority i.e. the District
Magistrate on the same day i.e. 26th for his comments. The District
F Magistrate returned the representation along with his comments
dated October 3, 1986 which was received by the government on
the 6th. It is said that thereafter the representation was
processed together with the report of the Advisory Board and
was forwarded to the Chief Minister’s Secretariat where the same
G was received on October 23, 1986. It is enough to say that the
explanation that the Chief Minister was “preoccupied with very
important matters of the State which involved tours as well as
two Cabinet meetings at Pune on October 28 and 29, 1986 and at
Aurangabad on November 11 and 12, 1986” was no explanation
50
H (1987) 4 SCC 58
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 501
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

at all why the Chief Minister did not attend to the representation A
made by the appellant till November 17, 1986 i.e. for a period of
25 days. There was no reason why the representation submitted
by the appellant could not be dealt with by the Chief Minister with
all reasonable promptitude and diligence and the explanation that
he remained away from Bombay is certainly not a reasonable
B
explanation. In view of the wholly unexplained and unduly long
delay in the disposal of the representation by the State Government,
the further detention of the appellant must be held illegal and he
must be set at liberty forthwith.”
39. In a recent decision of a three judge Bench of this Court in
Ankit Ashok Jalan v. Union of India51, Justice UU Lalit revisited the C
body of precedent on the subject and noticed the qualitative difference
between the consideration of a representation by the appropriate
government on the one hand and by the Advisory Board on the other.
Justice UU Lalit, speaking for himself and Justice Indu Malhotra (with
Justice Hemant Gupta dissenting52) observed: D
“16. These decisions clearly laid down that the consideration of
representations by the appropriate Government and by the Board
would always be qualitatively different and the power of
consideration by the appropriate Government must be completely
independent of any action by the Advisory Board. In para 12 of
the decision in Pankaj Kumar Chakrabarty [Pankaj Kumar E
Chakrabarty v. State of W.B., (1969) 3 SCC 400 : (1970) 1 SCR
543] it was stated that the obligation on the part of the Government
to consider representation would be irrespective of whether the
representation was made before or after the case was referred
to the Advisory Board. As stated in para 18, this was stated so, as F
any delay in consideration of the representation would not only be
an irresponsible act on the part of the appropriate authority but
also unconstitutional. The contingency whether the representations
were received before or after was again considered in para 29 of
the decision in Haradhan Saha [Haradhan Saha v. State of
W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816] .” G

51
(2020) 16 SCC 127[“Ankit Ashok Jalan“]
52
Justice Hemant Gupta’s dissent is on the ground that once the representation has
been referred to the Advisory Board by the appropriate government, it is a matter of
prudence for the detaining authority to consider the view of the Advisory Board and
any delay owing to this process is not prejudicial to the detenu. H
502 SUPREME COURT REPORTS [2021] 11 S.C.R.

A Justice UU Lalit categorized the different stages for when a
representation is received and disposed, with the underlying principle
that the representation must be expeditiously disposed of, at every stage:
“17. In terms of these principles, the matter of consideration of
representation in the context of reference to the Advisory Board,
B can be put in the following four categories:
17.1. If the representation is received well before the reference
is made to the Advisory Board and can be considered by the
appropriate Government, the representation must be considered
with expedition. Thereafter the representation along with the
C decision taken on the representation shall be forwarded to and
must form part of the documents to be placed before the Advisory
Board.
17.2. If the representation is received just before the reference is
made to the Advisory Board and there is not sufficient time to
D decide the representation, in terms of law laid down
in Jayanarayan Sukul [Jayanarayan Sukul v. State of W.B.,
(1970) 1 SCC 219 : 1970 SCC (Cri) 92] and Haradhan
Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 :
1974 SCC (Cri) 816] the representation must be decided first and
thereafter the representation and the decision must be sent to the
E Advisory Board. This is premised on the principle that the
consideration by the appropriate Government is completely
independent and also that there ought not to be any delay in
consideration of the representation.
17.3. If the representation is received after the reference is made
F but before the matter is decided by the Advisory Board, according
to the principles laid down in Haradhan Saha [Haradhan
Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816]
, the representation must be decided. The decision as well as the
representation must thereafter be immediately sent to the Advisory
G Board.
17.4. If the representation is received after the decision of the
Advisory Board, the decisions are clear that in such cases there
is no requirement to send the representation to the Advisory Board.
The representation in such cases must be considered with
expedition.
H
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 503
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

18. […] it is well accepted that the representation must be A
considered with utmost expedition; and the power of the
Government is completely independent of the power of the
Advisory Board; and the scope of consideration is also qualitatively
different, there is no reason why the consideration by the
Government must await the decision by the Advisory Board. None
B
of the aforesaid cases even remotely suggested that the
consideration must await till the report was received from the
Advisory Board.”
40. At this stage, it would be also important to note the principle of
making simultaneous representations by the detenu to the State and
Central Governments, as enunciated by a two-judge Bench of this Court C
in Haji Mohd. Akhlaq v. District Magistrate53. In that case, the
petitioner challenged the validity of his detention under the NSA on the
ground that there was undue delay on part of the State Government to
forward his representation to the Central Government. The Court noted
that the power which is conferred upon the Central Government to revoke
D
an order of detention under Section 14(1), even if it is made by the State
Government, would only have real meaning and content, if the detenu is
entitled to make a representation to the Central Government. The failure
of the State Government to comply with the request of the detenu for
onward transmission of the representation of the Central Government
deprives the detenu of a valuable right to have the detention revoked by E
the Central Government.
41. In the present appeal, the order of detention was passed on 11
May 2021 and the appellant was detained on 12 May 2021. The order of
detention was approved by the State Government on 13 May 2021, upon
which the State Government submitted the order of detention to the
F
Central Government on the same day. On 18 May 2021, the detenu
submitted a simultaneous representation before the District Magistrate,
State Government and the Central Government. The representation was
communicated by the District Magistrate to the State Government and
the Central Government on 20 May 2021. According to the appellant,
the records of the Department of Post and Telegraph indicate that service G
was effected on the Central Government on 24 May 2021. However,
the Central Government, in its counter affidavit before the High Court,
has submitted that it was received in the concerned section on 1 June
2021.
53
1988 Supp. SCC 538, 540, para 3 H
504 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 42. On 2 June 2021, the Central Government sought para-wise
comments from the detaining authority. The District Magistrate
forwarded comments on 10 June 2021 which were received on 11 June
2021. The representation made by the appellant dated 18 May 2021,
along with the comments of the District Magistrate, were processed for
consideration by the Union Home Secretary on 14 June 2021. On 24
B
June 2021, the Union Home Secretary rejected the representation of the
appellant, which is alleged to have been communicated by a wireless
message to the detenu on 28 June 2021. There was a one-and-a-half-
month delay on the part of the Central Government in considering the
representation dated 18 May 2021 and rejecting the same only on 24
C June 2021.
43. The appellant had also submitted a representation against the
order of detention to the State Government on 18 May 2021. An additional
reply was filed by the District Magistrate on 12 August 2021 before the
High Court. Paragraph 2 of the reply is extracted below:
D “2 That it is submitted that against the impugned order dated
11.05.2021, the petitioner Sarabjeet Singh Mokha submitted a
representation on 18.05.201 (Annexnre RI .IP..) through Amarjit
Mokha before the District Magistrate, State Government and the
Central Government. The learned District Magistrate
E received the representation and communicated the same
to the Secretary, Home Department, Govt. of M.P and to
the Secretary, Ministry of Home Affairs, Govt. of India on
20.05.2021.It is humbly submitted that after consideration
of the comments of the District Magistrate as also the
decision dated 29.06.2021 taken by the Advisory Board,
F and thereafter the State Government also rejected the
representation of the Petitioner /Detenue and
communicated the same to the petitioner. Copy of the decision
of the State Government is annexed herewith as ANNEXURE
R-11.”
G (emphasis supplied)
44. The above extract makes it abundantly clear that the District
Magistrate having received the representation on 18 May 2021,
communicated it to the State Government and the Central Government
on 20 May 2021. The State Government rejected the representation,
H after the decision of the Advisory Board. The above extract from the
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 505
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

affidavit, which was filed before the High Court, does not specify the A
date on which the representation was rejected by the State Government,
but leaves no manner of doubt that until the representation was rejected
by the Advisory Board on15 June 2021, no steps had been taken by the
State Government to deal with the appellant’s representation dated 18
May 2021. In the counter-affidavit of the District Magistrate before this
B
Court as well as in the written submissions supplied by the AAG, it appears
that the representation was rejected by the State Government on 15 July
2021. However, this Court has neither been provided with a copy of
such rejection or proof of communication of this rejection to the detenu,
nor an explanation for the almost 60 day delay in considering the
appellant’s representation. C
45. There is absolutely no reasonable basis for explaining the
circumstances in which the representation dated 18 May 2021 was not
considered by the State Government until after the Advisory Board had
submitted its report on 15 June 2021. As we have indicated on the basis
of the precedents of this Court, the consideration of the representation D
by the State Government is qualitatively different from the reference to
the Advisory Board. This Court, Ankit Ashok Jalan (supra) had held
that in State Government is not bound to wait on the Advisory Board’s
report before deciding the representation and must do so, as expeditiously
as possible. In spite of awaiting the receipt of the report of the Advisory
Board which was eventually issued on 15 June 2021, the State E
Government took another one month in arriving at a decision on the
appellant’s representation dated 18 May 2021. The State Government
did not furnish any valid reasons for either of the two courses of action.
46. By delaying its decision on the representation, the State
Government deprived the detenu of the valuable right which emanates F
from the provisions of Section 8(1) of having the representation being
considered expeditiously. As we have noted earlier, the communication
of the grounds of detention to the detenu “as soon as may be” and the
affording to the detenu of the earliest opportunity of making a
representation against the order of detention to the appropriate G
government are intended to ensure that the representation of the detenu
is considered by the appropriate government with a sense of immediacy.
The State Government failed to do so. The making of a reference to the
Advisory Board could not have furnished any justification for the State
Government to not deal with the representation independently at the
earliest. The delay by the State Government in disposing of the H
506 SUPREME COURT REPORTS [2021] 11 S.C.R.

A representation and by the Central and State Government in communicating
such rejection, strikes at the heart of the procedural rights and guarantees
granted to the detenu. It is necessary to understand that the law provides
for such procedural safeguards to balance the wide powers granted to
the executive under the NSA. The State Government cannot expect this
Court to uphold its powers of subjective satisfaction to detain a person,
B
while violating the procedural guarantees of the detenu that are
fundamental to the laws of preventive detention enshrined in the
Constitution.
D.2 Failure to communicate decision on the representation
C 47. Apart from the above position, there is a more fundamental
reason for interreference with the order of detention- the failure to
communicate the rejection to the appellant. The respondent could not
furnish proof of the appellant’s receipt of the Central Government’s
rejection of representation dated 24 June 2021. The wireless message
D dated 28 June 2021, issued from the Ministry of Home Affairs of the
Central Government to the Home Department of the State Government,
communicated the rejection of the representation submitted by the detenu.
The SP of the Central Jail, Jabalpur was directed to serve a copy meant
for the detenu. The State Government was also directed to inform the
detenu. Though in the writ petition as it was originally filed, there was no
E specific ground that the rejection of the representation was not
communicated to the detenu, a specific ground to that effect was raised
in the rejoinder filed before the High Court. Be that is it may, there is
absolutely no material coming forthwith to indicate that the rejection of
the representation by the Central Government was communicated to
F the detenu. The appellant has submitted that it was notified of the rejection
of its representation by the Central Government, only when such rejection
was furnished as an annexure to the Central Government’s counter-
affidavit before the High Court. The Central Government’s wireless
message dated 28 June 2021 directed the SP to collect the appellant’s
acknowledgement of receipt. However, the respondents were unable to
G furnish any proof of such acknowledgement. This lends credibility to the
appellant’s contention that he was never served with a copy of Central
Government’s rejection of his representation.
48. Similarly, the AAG has submitted that the State Government
rejected the appellant’s representation on 15 July 2021. However, with
H
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 507
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

the exception of the rejection order forming a part of the annexures to A
the respondents’ additional reply before the High Court, there is no proof
of the appellant having knowledge of the rejection of its representation
by the State or Central Government before he filed his writ petition
before the High Court.
49. Article 22(4), in guaranteeing a right to make a representation B
to the detenu, understandably creates a corresponding duty on the State
machinery to render this right meaningingful. In Section D.1 of the
judgement, we have detailed this Court’s settled precedent on the detenu’s
right to make a representation and for it to be considered expeditiously-
failing which the detention order would be invalidated. However, this C
right would ring hollow without a corollary right of the detenu to receive
a timely communication from the appropriate government on the status
of its representation- be it an acceptance or a rejection.
50. This Court, in considering claims of delay in the appropriate
government’s dealing with the representation of a detenu, has included D
delays in communication of such rejection. A two judge Bench of this
Court in State of Punjab v. Sukhpal Singh54 had noted that such a
delay formed a part of the infraction on the detenu’s constitutional right
under Article 22(4). Justice K N Saikia, speaking on behalf of this Court,
had held:
E
“19. In the instant case we are satisfied that after receipt of the
zerox copy from the Central Government, the State Government
took only 13 days including 4 holidays is disposing of the
representation. Considering the situation prevailing and the
consultation needed in the matter, the State Government could to
have been unmindful of urgency in the matter. But the facts F
remain that it took more than two months from the date of
submission of the representation to the date of informing
the detenu of the result of his representation. Eight days
were taken after disposal of the representation by the State
Government. The result is that the detenu’s constitutional G
right to prompt disposal of his representation was denied
and the legal consequences must follow.”
(emphasis supplied)

54
(1990) 1 SCC 35 H
508 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 51. Similarly, a two judge Bench of this Court in Madan Lal Anand
v. Union of India55 considered an explanation for a two day delay in
communicating a rejection of representation to the detenu in determining
laches or negligence on the part of the detaining authority. It noted:
“37. At the hearing of this appeal, the learned counsel for the
B respondents handed over to us a list of dates showing that a number
of holidays intervened between one date and another and hence
the apparent delay. It appears that the Collector of Central Excise
& Customs received the representation for his comments on
January 23, 1989 and handed over the same to the dealing officer
C for comments on January 24, 1989 and the Collector’s comment
was made on February 9, 1989. Between January 25, 1989 and
February 8, 1989 a number of holidays intervened, namely January
26, 1989 (Republic day), January 28, 1989 and January 29, 1989
(Saturday and Sunday), and February 4, 1989 and February 5,
1989 (Saturday and Sunday). On February 9, 1989, it was sent to
D the Ministry of Finance (COFEPOSA Cell), New Delhi, and was
received by that Ministry on February 10, 1989. February 11, 1989
and February 12, 1989 being Saturday and Sunday were holidays.
On February 13, 1989, it was put up before the Joint Secretary,
COFEPOSA, and was sent to the Minister of State
E (Revenue). The file was received back after the rejection of
the representation and such rejection was communicated
to the detenu on February 20, 1989. The two intervening
dates, namely, February 18, 1989 and February 19, 1989
being Saturday and Sunday were holidays.

F 38. It is clear from the above statement that there was no laches
or negligence on the part of the detaining authority or the other
authorities concerned in dealing with the representation of the
detenu. In L.M.S. Ummu Saleema v. B.B. Gujaral[(1981) 3 SCC
317 : 1981 SCC (Cri) 720] it has been observed that the time
imperative can never be absolute or obsessive, and that
G the occasional observations made by this Court that each
day’s delay in dealing with the representation must be
adequately explained are meant to emphasise the expedition
with which the representation must be considered and not

55
H (1990) 1 SCC 81
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, 509
JABALPUR & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

that it is a magical formula, the slightest breach of which A
must result in the release of the detenu. In the instant case,
the detaining authority has explained the delay in the disposal of
the representation made by the detenu and, accordingly, the order
of detention cannot be rendered invalid on that ground.”
(emphasis supplied) B

52. At this point, it would also be relevant to mention that this
Court inUnion of India v. Saleena56, considered the issue of whether
non-communication of the order rejecting the representation by the
competent authority would invalidate or vitiate the order of detention. In
the facts of that case, though the order of the competent authority C
rejecting the detenu’s representation was not communicated to him, the
Under Secretary had informed the detenu of the outcome of the decision.
The Court observed that the procedural safeguards under Article 22(5)
of the Constitution do not require a communication of the order rejecting
the representation by the competent authority or incorporation of the D
order passed by the competent authority in the order of communication
to the detenu. Without commenting on the merits of Saleena (supra),
we note that the decision was limited to the issue framed which relates
to whether an order rejecting the representation must be mandatorily
communicated to the detenu by the competent authority.
E
53. In the present case, let alone the order rejecting the
representation, even the outcome of the representation, that is whether
it has been rejected or not, was not communicated to the appellant.
Thus, the decision in Saleena (supra) does not find application in the
facts of the present case.
F
54. The AAG has furnished no reasons for the failure to
communicate the State Government or Central’s government rejection
of the appellant’s representation. This failure in timely communication
of the rejection of representation is a relevant factor for determining the
delay that the detenu is protected against under Article22(5). Based on
G
the precedents of this Court, we hold that the failure of the Central and
the State Government to communicate the rejection of the appellant’s
representation in a time-bound manner is sufficient to vitiate the order of
detention.

56
(2016) 3 SCC 437 H
510 SUPREME COURT REPORTS [2021] 11 S.C.R.

A E Conclusion
55. Accordingly, the order of detention is invalidated on two
grounds: first, the unexplained delay on part of the State Government in
deciding the representation of the appellant and second, the failure of
the Central and State Governments to communicate the rejection of the
B representation to the appellant in a timely manner. The basis of the
extensions which have been issued on 15 July 2021 and 30 September
2021, finds its genesis in the original order of detention dated 11 May
2021. Once the order of detention stands invalidated, the consequential
extensions would follow the same course. During the course of the
proceedings, both parties have advanced submissions on the merits of
C the order of detention. In the view which we have taken, it is not necessary
to consider these other grounds of challenge since the appellant is entitled
to succeed on the violation of his procedural rights under the Constitution
and the statute.
56. For the reasons we have indicated above, the appeal is
D accordingly allowed. The impugned judgment of the High Court dated
24 August 2021 shall stand set aside. The order of detention dated 11
May 2021 and the extensions dated 15 July 2021 and 30 September
2021 shall accordingly stand quashed and set aside.
57. Pending application(s), if any, shall stand disposed of.
E

Devika Gujral Appeal allowed.

F

G

H