Holding

Under Article 22(5), the detaining authority must independently consider the detenu’s representation regardless of its address, and the Government’s failure to do so invalidates the detention order.

Summary

The mother of Noor alias Babu filed a writ petition under Article 32 seeking to quash his preventive detention order issued under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. The detenu had made a representation against his detention, but it was addressed only to the Central Advisory Board and not to the Central Government. The Government, after receiving the Board’s opinion, confirmed the detention without independently considering the representation. The Court examined whether the Government’s omission violated the safeguard mandated by Article 22(5) of the Constitution, which requires the detaining authority to consider the representation irrespective of the Board’s view. Relying on the Constitution Bench decision in K.M. Abdulla Kunhi v. Union of India, the Court held that the dual obligation under Article 22(5) is mandatory and the mode of address is a mere formality. Consequently, the Court found a breach of the constitutional guarantee and quashed both the original detention order and its confirmation. The writ petition was allowed, though the criminal prosecution for the alleged offence was not affected.

Issues considered

Whether the Central Government is obligated to consider a detenu's representation independently of the Advisory Board when the representation is addressed solely to the Advisory Board.
Whether the mode of address of the representation (to the Advisory Board) satisfies the requirement of Article 22(5) of the Constitution.
Whether the failure to independently consider the representation violates the constitutional safeguard and warrants quashing of the detention order.

Legislation cited

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988s. 10, s. 3, s. 9

Subjects

preventive detentionArticle 22(5)representationadvisory boarddual obligationconstitutional safeguardPITNDPS Actwrit petitionquashing detention

Judgment

SMT. GRACY
A
v.
STATE OF KERALA AND ANR.

FEBRUARY 15, 1991

[B.C. RAY, L.M. SHARMA AND J.S. VERMA, JJ.] B

Constitution of India, 1950: Article 22(5)-Preventive detention
-Safeguards-Representation of detenu under the Prevention of Illicit
Traffic in Narcotic Dtugs and Psychotropic Substances Act-Addres-
sed to the Advisory Board-Consideration by Government independent
of Board's consideration-Dual obligation of both the authorities-Mode
c
- of address only a matter ofform-Constitutional quarantee-Mandatory.

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
. _ / Substances Act, 1988: Section 3-Preventive detention-Representa-
-Y tion of detenu addressed to Advisory Board-Consideration by
Government independent of Board's consideration-Dual obligation D
of both the authorities-Mode of address Qnly a matter of form-
Constitutional mandate under Article 22(5)-Can't be whittled down.

The petitioner's son was arrested on 19.10.1989 on the accusation
that he and his brothers were involved in extensive illicit cultivation of
•- .--'.. ganja plants in violation of the provisions of Narcotic Drugs and E
Psychotropic Substances Act, 1985 (NDPS Act). The Mngistrate before
whom he was produced, rejected the bail application. The Sessions
Court granted conditional bail. The detention order dated 25.1.1990
was served on the detenu on 30.1.1990. The order stated that though
prosecution was likely to be initiated under the NDPS Act, there was
every likelihood of his continuing the cultivation of ganja plants and F
. thus there was a compelling reason to detain him under the Prevention
_-...) ~f Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,
1988. The detenu was informed of his right to make a representation to
the detaining authority, Central Government and the Central Advisory
Board against the detention order. The mode of representation was also
indicated along with the grounds of detention, in accordance with Arti- G
cle 22(5) of the Constitution of India.

In accordance with the procedure, the Central Government refer-
red the case to the Central Advisory Board. During the pendency of the
reference, the detenu made a representation to the Advisory Board.
The Advisory Board considered the reference along with the detenu's H

421
422 SUPREME COURT REPORTS [1991] 1 S.C.R.

A representation and came to the conclusion that there was sufficient
cause to justify his preventive detention. Thereafter, the Central
Government made an order dated 24.4.1990 confirming its earlier
order and directing his detention for a period of two years.

In the present Writ Petition, the mother of the detenu prayed for
B
quashing of the detention order contending that there has been infrac-
tion of the guarantee under Article 22(5) of the Constitution as a result
of the Central Government's omission to consider the representation of
the detenu, independent of its consideration by the Advisory Board.
Petitioner aiso challenged the stand of the Central Government that
there was no obligation on it to consider the representation of the
C detenu independently since the same was addressed to the Advisory
Board and not to the Central Government. -
Allowing the Writ Petition, this Court,

HELD: 1. The obligation of the Government to consider the rep-
0
resentation is different and in addition to the obligation of the Advisory
Board to consider it at the time of bearing the reference before giving its
opinion to the Government. Consideration of the representation by the
Government has to be uninfluenced by the view of the Advisory Board.
The detenu's right to have the representation considered by the
E Government.under Article 22(5) of the Constitution is independent of
the consideration of the detenu's case and his representation by the
Advisory Board. [426G-H]

K.M. Abdulla Kunhi and B.L. Abdul Khader v~ Union of India
and Ors., State of Karnataka and Ors., JT 1991 (1) SC 216; relied on.
F
2. Any representation of the detenu against the order of bis ~
detention has to be considered and decided by the detaining authority, ----..,
the requirement of its separate consideration by tbe Advisory Board
being an additional requirement implied by reading together clauses (4)
and (5) of Article 22, even though express mention in Article 22(5) is
only of the detaining authority. The order of detention is by the detain-
G
ing authority and so also the order of its revocation if the representation
is accepted, the Advisory Bo~rd's role being merely advisory in nature
without the power to make any order itself. It is not as if there are two ~ -
separate and distinct provisions for representation to two different
authorities viz., the detaining authority and the Advisory Board, both
having independent power to act on its own. [427G-H; 428A-B]
H
GRACY v. STATE OF KERALA [VERMA, J.] 423

3. It being settled that um dual obligation flows from Art. 22(5) when
only one representation is made and addressed to the detaining autho-
A
rity, there is no reason to hold that the detaining authority is relieved of
this obligation merely because the representation is addressed to the
Advisory Board instead of the detaining authority and submitted to the
Advisory Board during pendency of the reference before it. So long as
there is a representation made by the detenu against the order of deten- B
tion, the dual obligation under Article 22(5) arises irrespective of the
fact whether the representation is addressed to the detaining authority
or to the Advisory Board or to both. The mode of address is only a
matter of form which cannot whittle down the requirement of the Con-

- stitutional mandate in Article 22(5) enacted as one of the safeguards
provided to the detenu in case of preventive detention. [428B-E]

4. In the instant case, there has been a breach by the Central
. -~ Government of its duty under Article 22(5) of the Constitution to con-
c

sider and decide the representation independently of the Advisory
Board's opinion. The order of detention dated 25.1.1990 as well as the
order dated 24.4.1990 of its confirmation passed by the Central D
Government are quashed. [428F-G]

o ORIGINAL JURISDICTION: Writ Petition (CRL.) No. 1218
of 1990.

(Under Article 32 of the Constitution of India). E

John Joseph and T. G .N. Nair for the Petitioner.

A.D. Giri, Solicitor General, Ashok Bhan, Ms. A. Subhashini
and T.T. Kunhikannan for the Respondents.
F
The Judgment of the Court was delivered by

VERMA J. This writ petition under Article 32 of the Constitu-
tion of India is by the mother of the detenu Noor alias Babu to quash
the detention order F. No. 801/1/90 PITNDPS dated 25.1.1990 passed
under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs G
and Psychotropic Substances Act, 1988 (in short 'PITNDPS Act') and
• ~ the order of confirmation F. No. 801/1/90 PITNDPS dated 24.4.1990
·passed under Section 9(f) read with Section 10(2) ·of the PITNDPS Act,
by the Central Government directing detention of the detenu for a
period of two yeare w.e.f. 30.1.1990. The only argument advanced in
support of this writ petition is infraction of Article 22(5) of the Con- H
424 SUPREME COURT REPORTS (1991] 1 S.C.R.

A stitution of India. The facts material for the point raised are stated .i
hereafter. --_,

The detenu was arrested from his family estate at Kochuveetil
House, Kuthugal, Udumpanchola Taluk, Idikki District, Kerala on
19.10.1989 on the accusation that he and his brothers were involved in
B extensive illicit cultivation of ganja plants (Cannabis Sativa) in viola-
tion of the provisions of Narcotic Drugs and Psychotropic Substances
Act, 1985 (in short 'NDPS Act'), He was produced before the Judicial _..._,_
Magistrate who rejected his bail application. The Sessions Judge also
rejected the bail application once but later granted conditional bail.
Thereafter, the detention order dated 25. 1. 1990 was served on the --.+
detenu on 30.1.1990. It was stated therein that even though prosecu-
C tion of the detenu was likely to be initiated under the NDPS Act, there
was likelihood of the detenu indulging in cultivation and production of
-
narcotic drugs (ganja) on the detenu being released on bail on account ~
of which there was compelling necessity to detain him under the
PITNDPS Act. The detenu was informed that he had a right to make
D representation to the detaining authority, Central Government and
the Central Advisory Board against the detention order. The mode of
address of the representation to ·the Central Government and the
Central Advisory Board was also indicated in the detention order o-
along with the grounds of detention in accordance with Article 22(5) of
the Constitution of India. The detenu's case was referred by the Cent- ~
E ral Government to the Central Advisory Board on 2.3.1990. During
pendency of the reference before the Advisory Board, the detenu
made his representation on 24.3.1990 and addressed it to the Advisory
Board. The Advisory Board considered the reference relating to the
detenu made by the Central Government and also the detenu's rep-
. resentation submitted to it. The Advisory Board gave the opinion that
F there was sufficient cause to justify his preventive detention. The
Central Government then made the order dated 24.4.1990 confirming ~
his detention and directed that the detenu Noor alias Babu be detained
for a period of two years w .e.f. 30.1.1990.
--
,

It is admitted that the Advisory Board considered the detenu's
G representation before sending its opinion to the Central Government
along with the entire record including the representation submitted by
the detenu. It is also admitted that the Central Government made the ~ ~
order of confirmation dated 24.4.1990 on receipt of the opinion of the
Advisory Board, but there was no independent consideration of the
detenu's representation by the Central Government at any time. In the
H counter-aff.idavit filed initially by Shri A.K. Roy, Under Secretary to
GRACY v. STATE 1 _- KERALA [VERMA, J.] 425

the Government of India, this fact was not clearly stated and,. there-
A
)- fore, we directed an additional affidavit to be filed. In the additional
affidavit filed by Shri A.K. Roy, it has not been disputed that the
Center! Government did not at any time consider independently the
detenu's representation addressed to and given to the Advisory Board.
In the additional affidavit, the stand of the Central Government in this
behalf has been stated thus: B

" ...... Since the detenu in the present case has not made·
any representation to the Central Government, the asser-
tion in para 2 of the grounds of petition that no opportunity
was afforded by the Central Government to the said detenu

- is vehemently denied. The question of consideration of a
representation and providing of an opportunity would only
arise when a representation is duly made to the Central
c
Government."

On the above facts, the question is: Whether there has been any
infraction of the guarantee under Article 22(5) of the Constitution as a D
result of Central Government's omission to consider the detenu's rep-·
resentation independent of its consideration· by the Advisory Board?
The Central Government's stand is that the detenu's representation
being addressed to the Advisory Board to which it was submitted
~ during pendency of the reference before the Advisory Board, there
was no obligation on the Central Government also to consider the E
same independently since the representation was not addressed to the
Central Government.

The Constitutional mandate in Article 22(5) was considered
recently by a Constitution Bench in K.M. Abdulla Kunhi and B.L.
___ _.,. Abdul Khader v. Union of India and Ors.,_ State of Karnataka and F
-..-Ors., JT 1991 (1) SC 216, in view of some conflict in earlier decisions of
this Court regarding the detaining authority's obligation to consider
the detenu's representation independently of the Advisory Board's
duty in. this behalf. The Constitution Bench held as follows:

"It is now beyond the pale of controversy that the G
constitutional right to make representation under clause
(5) of Article 22 by necessary implication guarantees the
constitutional right to a proper consideration of the rep-
resentation. Secondly, the obligation of the Government to
afford to the detenu an opportunity to make representation
is distinct from the Government's obligation to refer the H
426 SUPREME COURT REPORTS [1991] 1 S.C.R.

case of detenu along with the representation to the Advi- ~
A sory Board to enable it to form its opinion and send a
report to the Government. It is implicit in clauses (4) and
(5) of Article 22 that the Government while discharging its
duty to consider the representation, cannot depend upon the
views of the Board on such representation. It has to consider
.B the representation on its own without being influenced by
any such view of the Board. The obligation of the Govern-
ment to consider the representation is different from the obli- )1..-
gation of the Board to c.onsider the representation at the
time of hearing the references. The Government considers
the representation to ascertain essentiaily whether the 4
order is in conformity with the power under the law. The -
c Board, on the other hand, considers the representation and
the case of the detenu to examine wheth,er there is suffi-
cient case (sic) for detention. The consideration by the -~
Board is an additional safeguard and not a substitute for
consideration of the representation by the Government. The
D right .to have the representation considered by the Govern-
ment, is safeguarded by cl. (5) of Article 22 and it is inde-
pendent of the consideration of the detenu's case and his
representation by the Advisory Board under cl. (4) of Art.
22 read with Section 8( c) of the Act. (See: Sk. Abdul Karim
& Ors. v. State of West Bengal, [1969] 1SCC433; Pankaj ~
E Kumar Chakrabarty & Ors. v. State of West Bengal, [1970]
1 SCR 543; Shayamal Chakraborty v. The Commissioner of
Police Calcutta and Anr. , [1969] 2 SCC 426; B. Sundar Rao
and Ors. v. State ofOrissa, [1972] 3 SCC 11; John Martin v.
State of West Bengal; [1975] 3 SCR 211; S.K. Sekawat v.
State of West Bengal, [1975] 2 SCR 161 and Haradhan Saha
F & Anr. v. State of West Bengal and Ors., [1975] 1 SCR ;.---
778)." . ~~.

(emphasis supplied)

It is thus clear that the obligation of the Government to consider
G the representation is different and in addition to the obligation of the
Board to consider it at the time of hearing the reference before giving
its opinion to the Government. Consideration of the representation by )...-_ --~
the Government has to be uninfluenced by the view of the Advisory
Board. In short, the detenu's right to have the representation con-
sidered by the Government under Article 22(5) is independent of the
H consideration of the detenu's case and his representation by the Advi-
GRACY v. STATE OF KERALA [VERMA, J.] 427

!-:sory Board. This position in law is also not disputed before us. A
The learned Solicitor General, however, contended that in the
present case there being no representation addressed to the Central
Government, the only representation made by the detenu being
addressed to the Advisory Board during pendency of the reference,
there was in fact no representation of the detenu giving rise to the B
Central Government's obligation to consider the same. The question
-4is: Whether this contention can be accepted in the face of the clear
mandate in Article 22(5) of the Constitution?

~- It is undisputed that if there be only one representation by the
detenu addressed to the detaining authority, the obligation arises
under Article 22(5) of its consideration by the detaining authority c
ind!;!pendent of the opinion of the Advisory Board in addition to its
. __ --yconsideration by the Advisory Board while giving its opinion. In other
' words, one representation oft.he detenu addressed only to the Central
Government and not also to the Advisory Board does not dispense
with the requirement of its consideration also by the Advisory Board. D
The question, therefore, is: Whether one of the requirement of consi-
deration by Government ·is dispensed with when the detenu's repre-
sentation instead of being addressed to the Government or also to the
Government is addressed only to the Advisory Board and submitted to
-J..._ the Advisory Board instead of the Government? On principle, we find
it difficult to uphold the learned Solicitor General's contention which E
would reduce the duty of the detaining authority from one of substance
to mere form. The nature of duty imposed on the detaining authority
under Article 22(5) in the context of the extraordinary power of pre-
ventive detention is sufficient to indicate that strict compliance is
necessary to justify interference with personal liberty. It is more so
, since the liberty involved is of a person in detention and not of a free F
,."' agent. Article 22(5) casts an important duty on the detaining authority
to communicate the grounds of detention to the detenu at the earliest
to afford him the earliest opportunity of making a representation
against the detention order which implies the duty to consider and
decide the representation when made, as soon as possible. Article
22(5) speaks of the detenu's 'representation against the order', and G
imposes the obligation on the detaining authority. Thus, any represen-
.,, . . .~ tation of the detenu against the order of his detention has to be con-
t ' sidered and decided by the detaining authority, the requirement of its
separate consideration by the Advisory Board being an additional
requirement implied by reading together clauses (4) and (5) of Article
22, even though express mention in Article 22(5) is only of the detain- H
428 SUPREME COURT REPORTS (1991] 1 S.C.R.

A ing authority. Moreover, the order of detention is by the detaining
authority and so also the order of its revocation if the representation is
accepted, the Advisory Board's role being merely advisory in nature
without the power to make any order itself. It"is not as if there are two
separate and distinct provisions for representation to two different
authorities viz. the detaining authority and the Advisory Board, both
B having independent power to act on its own.

It being settled that the aforesaid dual obligation of considera-
tion of the detenu's representation by the Advisory Board and inde-
pendently by the detaining authority flows from Article 22(5) when
only one representation is made addressed to the detaining authority,
c there is no reason to hold that the detaining authority is relieved of this
obligation merely because the representation is addressed to the
Advisory Board instead of the detaining authority and submitted to
---
the Advisory Board during pendency of the reference before it. It is
difficult to spell out such an inference from the contents of Article
22(5) in suppurt of the contention of the learned Solicitor General.
D The contents of Article 22(5) as well as the nature of duty imposed
thereby on the detaining authority support the view that so long as
there is a representation made by the detenu against the order of
detention, the aforesaid dual obligation under Article 22(5) arises
irrespective of the fact whether the representation is addressed to the
detaining authority or to the Advisory Board or to both. The mode of
E address is only a matter of form which cannot whittle down the
requirement of the Constitutional mandate in Article 22(5) enacted as
one of the safeguards provided to the detenu in case of preventive
detention.

We are, therefore, unable to accept the only argument advanced
F by the learned Solicitor General to support the detention. On this
conclusion, it is not disputed that there has been a breach by the
Central Government of its duty under Article 22(5) of the Constitution
of India to consider and decide the representation independently of
the Advisory Board's opinion. The order of detention dated 25.1.1990
as well as the order dated 24.4.1990 of its confirmation passed by the
G Central Government are, therefore, quashed. This shall not, however,
affect the detenu's prosecution for the alleged offence and i.t shall also
not be construed as a direction to release him in case he is in custody as a
result of refusal of bail. The writ petition is allowed, accordingly.

G.N. Petition allowed.