Dr.T.N.Singh, J. - (1.)It is yet another case of violation of Article 22(5) of Constitution. But, it has a novelty. A brief narration of facts, to which we shall soon turn, will disclose what we mean using the term novelty.
(2.)The detenu was already in confinement on 20.5.84 when an order was passed against him on 1.6.1984 under section 3(2) of the National Security Act, for short the ActTT. This order was served on him in jail 011 2.6.1984 and the grounds on 4.6.1984. Thereafter the order passed by the District Magistrate was approved by the State Government on 12.6.1984. There was a sitting of the Advisory Board on 17.6.1984 and the detenu was produced before the board. This was done despite the fact that in grounds he was told that he could file representation and he was asked 10 intimate his desire to be Government along with his representation if he wanted to be heard in person so that necessary arrangement could be made accordingly. The Board submitted its report to the Government on 17.6.1984 after hearing the detenu. Thereupon the State Government passed an order on 20.6.1984 confirming the detention for a period of 12 months. That is not the end of the saga. The petitioner was then moved out of the State and taken to Varanashi and there he has since been languishing in confinement.
(3.)The grievance, and indeed the single, solitary, solid grievance of the detenu forcibly presented before us by his counsel, Mr. Priyananda Singh, is that the detenu was deprived of his constitutional right to make his representation. Because, in view of the provision of the Section 10 of the Act representation could be submitted by him within a period of three weeks from his detention under the Act for consideration of the Advisory Board. In the instant case the period of three weeks expired on 23.6. 1984 inasmuch as the order was served on him on 2.6.1984 and the detenu would have the right to file his representation before that, even on 22.6.1984. However, he was produced on 17.6.1984 before the Board. There is nothing to show that the detenu himself desired that he should be produced on that date. There is also nothing before us to show that the detenu decided not to file any representation. There is no doubt therefore that his constitutional right was infringed by his production before the Advisory Board without the representation. We would like to stress the paramount constitutional imperative of detenus right to make representation which right cannot be said to be exercised effectively by allowing him a formal hearing by the Board, Indeed, the mandate of Art. 22(5), which speaks of the right of representation, is concretized in the statutory provision embodied in section 10 of the Act. We extract the statutory provision: 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 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 subsection (4) of that section. (Emphasis added)