DAS, J. -
(1.)In this Habeas Corpus petition Mr. A. K. Bhattacharyya, the learned counsel for the petitioner has raised a substantial question of law relating to the mandatory provisions of S. 3(5) read with S. 14 of the National Security Act, 1980 (for short, 'the Act'). The learned counsel has further urged that if on this substantial legal point the petitioner succeeds it would not be necessary for us to enter into other matter relating to the grounds of detention.
(2.)At the outset we would like to note that the petition was moved in this Court on 9-4-1985 and the Rule was made returnable within 3 weeks. On 1-5-85 two separate affidavits-in-opposition on behalf of respondents No. 1 and 3 respectively, were filed. On 20-5-1985 respondent No. 2 submitted their affidavits-in-opposition in Court. While the case was posted on 20-5-1985 for hearing Mr. Ali, the learned Standing Counsel, Central Government, prayed for time to produce the record. He was allowed 2 days' time to produce the record. However, Mr. Ali has submitted before us that it was not possible for him to procure the records within such a short period. Therefore, the learned counsel insisted to consider the affidavit-in-opposition filed by respondent No. 2 on the points as raised by Mr. Bhattacharyya, the learned counsel for the petitioner. In para 22 of the petition the petitioner has stated-
"(22) That your petitioner states that the Central Government has failed to take any decision even after receipt of knowledge of the petitioner's detention under the 'NSA' and, as a result, the constitutional mandate of Art. 22(5) has been violated, which renders the continued detention of the petitioner illegal, inasmuch as, the Central Government has failed to discharge its duty enjoined under S. 14 of the NSA".
The contentions made in para 22 by the petitioner has not been replied to by respondent No. 2. The learned counsel has, however, drawn out attention to para 3 of the affidavit-in-opposition filed by the Union of India. It is submitted by Mr. Ali that the contentions raised by the petitioner in para 22 has been replied in para 3 while replying to the contentions made in paras 18, 19, 20 and 21 of the writ petition.
(3.)The main thrust of argument of Mr. Bhattacharyya, the learned counsel for the petitioner is that while considering the order of detention under S. 14 of the Act, it is obligatory on the part of the Central Government to consider the report as regards the detention of the detenu, the grounds for such detention and other necessary particulars connected thereto. It is also obligatory on the part of the detaining authority to send the report together with the grounds of detention and otter necessary particulars connected thereto to the Central Government under S. 3(5) of the Act within the time bound period as prescribed therein and the Central Government must consider the report, the grounds of detention and other necessary papers, if there be any, and to pass appropriate order under S. 14 of the Act. The Central Government may, after consideration of those, consider the representation, if made by the petitioner, and pass an order under S. 14 of the Act either to confirm, vary or revoke the order of detention. To appreciate the contention of Mr. Bhattacharyya, we feel it necessary to quote the relevant provisions of S. 3(5) as well as S. 14 of the Act.
"3(5). When any order is made or approved by the State Government under this section the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.
14. Revocation of detention order-(1) Without prejudice to the provisions of S. 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified,- (a) Notwithstanding that the order has been made by an officer mentioned in sub-sec. (3) of S. 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 revocation or expiry of a detention order shall not bar the making of a fresh detention order under S. 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer mentioned in sub-sec. (3), or S. 3 as the case may be, is satisfied that such an order should be made."
Referring to the provisions of S. 3(5) of the Act Mr. Bhattacharyya, the learned counsel for the petitioner has laid stress that the report together with the grounds of detention and other particulars must be sent by the State Government to the Central Government for consideration of the detention order and to pass appropriate order in view of the provision of S. 14 of the Act. If that has not been complied with, the order of detention must be set aside.