- (1.) M. N. Shukla, J. The petitioner was detained by an order of detention dated January 27, 1982 passed under Section 3 (2) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act No. 7 of 1980) (hereinafter referred to as the Act) and the detention order was served on him on February 25, 1982. On March 13, 1982 the petitioner made a representation to the Advisory Board constituted under Section 8 of the Act. The counter-affidavit filed by the District Magistrate, Rampur discloses that the reprsentation was sent to the Government on March 15)16, 1982. In the counter-affidavit filed on behalf of the State Government it has been stated that the said representation along with the comments of the District Magistrate was received by the State Government on March 17, 1982, that the State Government forwarded it to the Advisory Board on March 27, 1982, that the Board considered the petitioner's case on March 30, 1982 and also gave him a personal hearing. The District Magistrate's affidavit reveals that the State Government rejected the petitioner's representation on March 25, 1982. In these circumstances it has been vehemently urged on behalf of the petitioner that there was flagrant violation of the procedural safeguard embodied in section 1o of the Act which reads :- " 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 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 referred to in sub-section (2) of Section 3, also the report by such officer under sub-section (3) of that section. "
(2.) THE mandate of the Legislature is that the appropriate Government must place before the Advisory Board the representation made by a detenu within three weeks of the date of detention. In the instant case the period of three weeks was completed on March 17, 1982. It has already been mentioned that the State Government forwarded the petitioner's representation to the Advisory Board on March 27, 1982 which means after the expiry of the period of three weeks. It is apparent that the provisions of Section 10 were contravened, which would vitiate the petitioner's detention. Learned Government Advocate, however, submitted that the rule enshrined in Section 10 of the Act presupposed that there must be a representation on behalf of a detenu as contemplated by the Act. It was suggested that the representation must be one preferred to the appropriate Government, which term is defined in Section 2 (a) of the Act as follows; " 2 (a) "appropriate Government" means, as respects a detention order made by the Central Government or by an officer of the Central Government or a person detained under such order, die Central Government and as respects a detention order made by a State Government or by an officer of a Slate Government or as respects a person detained under such order the State Government. " Since in the present case the order cf detention was parsed by the District Magistrate, the representation would lie to the State Government but as the representation of the petitioner was addressed to the Advisory board it was argued that this would be tantamount to making no representation for consideration of which an obligation was cast on the State Government. Therefore, there was no violation of the mandatory procedure prescribed under the law and the detention order was not rendered illegal. The first question, therefore, which arises for determination is as to whether the representation made by the petitioner was a competent representation under the Act and the State Government was under an imperative duty to forward it to the Advisory Board, within the time schedule of three weeks prescribed by Section 10 of the Act. We have hared learned counsel for the parties and given our careful thought to this question and we are of the opinion that the representation preferred by the petitioner was a valid representation and the Government was not exonerated from the duty of dealing writ it in the manner provided under Section 10 of the Act. In the first place, it is a tact of fundamental importance that admittedly the State Government actually dealt with the petitioner's representation and rejected it. It is trite that a representation is provided under the statute not for any academic purpose but for having it disposed of en merits. The Saw does no prescribe a procedure or methodology for the sake of formality but for achieving some salutary object. It in the opinion of the State Government the representation preferred by the petitioner was redundant, the State Government could have rejected it summarily and refrained from proceeding to dispose it of on merits. The very conduct of the State Government, therefore, belies the stand at present taken on its behalf that there was no representation made by the petitioner according to law. Secondly, it is well settled that in dealing with a writ of Habeas Corpus mere technicalities and legal niceties should not act as an impediment to the Court granting a relief to the petitioner. That is why usual formalities which are otherwise indispensable in normal legc. 1 proceedings are waived in a Habeas Corpus petition. It is well-known that the petition may be, as is more after than not, filed by a person other than the detenu himself. Even a formal communication is sufficient to commence proceedings of Habeas Corpus when the basic facts are found. See Sunil Batra v. Delhi Administration (A. I. R. 1980 S. C. 1579. ). It is in this background that a Habeas Corpus petition presented by a detenu as well as other measures taken by him, including a representation for die purpose of successfully challenging his detention and obtaining his release, must be examined. If the law affords to a detenu the protection of making a representation in order to challenge the validity of his detention, mere technicalities or faults in the manner and style of his representation would not be suffered to defeat the ends of justice. The basic test which has to be applied is whether the right to make a representation is conferred on the petitioner and if so to what purpose and whether the authorities mentioned under the statute are those which are capable of affording such relief to the detenu. Merely inartistic description of the parties or even misdescription thereof would not destroy the legal effectiveness of the representation of it is addressed to any authority which is competent under the law to grant some kind of relief to the petitioner at one stage or the other. An analysis of the provisions of the Act shows that a mandatory duty is cast on the appropriate Government of sending the representation within the statutory time limit to the Advisory Boards. The procedure which the Board has to follow under Section 11 of the Act is that it has to consider the material placed before it and that material is indicated in Section 10 as including the grounds on which the order has been made and the representation, if any made by the person affected by the order. The addition of the words "if any'" in Section 10 is pregnant with meaning inasmuch as it enlarges the scope and nature of the representation which is intended to be made under Section 8 of the Act. Therefore, in order to effectuate the real object of the Legislature it is essential that Sections 8 and 10 should be read together and merely because a representation is not addressed literally to the appropriate Government it should not be brushed aside as irrelevant. In substance the representation has to be made to an authority competent under the law for giving relief to the detenu and whose duty it is to consider the representation in the discharge of its functions. It is noteworthy that the opinion given by the Advisory Board is not merely of a persuasive nature. It is in a real sense conclusive It is provided under Section 10 that if the Advisory Hoard has reported that there was sufficient cause for the detention of the person the Government may confirm its order but where the Advisory Board reports that there is no sufficient cause for his detention, the appropriate. Government is bound to revoke the detention. In this view of the matter the representation addressed by the petitioner to the Advisory Board must be regarded as a substantial and valid representation and it was incumbent upon the State Government to forward it to the Advisory Board for consideration. A narrative of the events clearly indicates that the representation was not casual or remote or perfunctory on the face of it. It was made after the service of the detention order and prior to the expiry of the period of three weeks. Hence, the State Government could not be said to have been absolved from the duty of forwarding the same to the Advisory Board within the time schedule prescribed by the Act. In Tara Chand v. State of Rajasthan and others (A. I. R. 1980 S. C. 2133.) there was delay of one month and five days in communicating the representation of the detenu from the jail to the detaining authority and the detaining authority refused to consider the same merely because the detenu had requested that his representation be forwarded to the Advisory Board also. It was held by the Supreme Court that the mere fact that the meeting of the Advisory Board had been held earlier was not a valid excuse for the detaining authority in not considering the representation of the detenu at all. Our attention was drawn to a recent decision of the Supreme Court in Phillippa Anne Duke v, State of Tamil Nadu and others (A I. R. 1982 S. C. 1178.) in which two British nationals who wore alleged to be collaborators in smuggling enterprises were detained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act hereinafter referred to as the COFEPOSA Act. The orders of detention were made against them on January 7, 1982. The detention was assailed on the ground that the representation made by the detenus to the Central Government as long back as March 1982 to revoke the orders of detention remained undisposed of till the date of the filing of the petition and on that ground alone it was argued the detenus were entitled to he released. The manner in which the representation came under scrutiny in that sate was curious. While, the Prime Minister of India was in England a Bout De Papiere was presented to the delegation accompanying her, expressing concern about the detention without trial of the detenus and suggesting that the detention order be lifted. It further appeared from the affidavit filed in the case tint he British High Commission in India had also addressed the Ministry of external Affairs, Government of India and reminded them about the Bout De Papiere presented to the Prime Minister's delegation in Britain during her visit to that country. It was contended on behalf of the detenus that the Bout De Papiere presented to the Prime Minister's delegation in Britain and the subsequent reminder by the British High Commission constituted a representation to the Central Government demanding their immediate consideration in terms of the provisions of the COFEFOSA Act. This argument was repelled and it was in that context that the Supreme Court observed: " But I find it difficult to treat such diplomatic communications between one country and another as representations to the statutory authorities functioning under the COFEPOSA Act, as representations which require immediate consideration by the statutory authorities and which, if not considered immediately, would entitle the detenus to be set at liberty. Nor is it possible to treat the countless petitions, memorials and representations which are everywhere presented to the Prime Minister and other Ministers ns statutory appeals or petitions, statutorily obliging them to consider and dispose of such appeals and petitions in the manner provided by the statute. . . . . . It is not also possible to treat representations from whatever source addressed to whomsoever officer of one or other department of the Government as a representation to the Government requiring the appropriate authority under the COFEPOSA Act to consider the matter. "
(3.) THE facts of the present case are clearly distinguishable. Here the representation was made strictly within the time limit when the State Government should have forwarded it to the Advisory Board and it was, in fact, a sequel to the order of detention by which the petitioner felt aggrieved. It was not a memorandum incidentally handed over to some Executive authority in the course of its sojourn or travel. It was a Well-considered, deliberate recourse to a remedy prescribed by law and could not be bracketed with just a facile and mechanical memorandum presented by an irrelevant person to an irrelevant authority. THE time and place and other accompanying circumstances of making the representation, the person to whom it is actually submitted mutt ail be examined pragmatically fir the purpose of drawing the inference as to whether such representation was amenable to legal disposal and whether compliance of the procedure enjoined by law was in the situation chosen by the petitioner really feasible. In Phillippa's case (supra) it was pointed out that the diplomatic communicator between the two countries afforded a completely different background and perspective in which it was not possible to mobilise the machmery actually set up under an act of preventive detention and therefore in the particular circumstances of that case such precipitant disposal of the representation as required by law under the COFEPOSA Act was rendered impossible. Section 11 of the COFEPOSA Act merely provides that a detection order may, at any time, be revoked or modified by the State Government of the Central Government. Hence, the representation made by the detenu in that case to the Prime Minister could not be regarded as legally incompetent. Had it been made at the proper time or in a proper manner and at the proper piece the representation would have been disposed of on merits. In the case in hand, as we have already pointed out, the representation had been addressed to the Advisory Board which was competent to give an opinion suggesting revocation of the detention order and which opinion would have been binding on the State Government. It is impossible to arrive at the inference that the Advisory Board was a body incompetent to afford any relief to the petitioner or that it was an irrelevant authority which could not be instrumental in effecting the petitioner's release. Hence, the representation made to the Advisory Board was a representation made in accordance with law and the State Government was under an obligation to deal with it in the manner provided under Section 10 of the Act. In fact, its conduct in disposing it of on merits was well advised. From the passage quoted in Phillippa's case (supra) it is clear that the representation made by the detenu was regarded as not fit to be treated as a proper representation not because of its being addressed to the Prime Minister but because it was presented in such circumstances and surrounding as to make its proper and speedy disposal impossible. THE stress was on the promptness and speed with which the law required such representation to be disposed of. THE representation in order to be effective must be presented to such authority and at such time and place as to make its speedy disposal feasible. We are of the opinion that so long as a representation is not addressed to a completely irrelevant authority or an authority which under the law is not capable of affording any relief to the petitioner, it is a valid representation and must be disposed of on merits. The fact that particular authority is specified for the purpose under the statute does not erode the basic guarantee which is enshrined in Article 22 (5) of the Constitution. The fact, all the safeguards to the benefit of the detenu flow from that fundamental guarantee which must be regarded as the archetype and the safeguards enacted by various statutes are only its faint shadows. This aspect was emphasised by the Supreme Court in Smt. Khatoon Begum v. Union of India and others (A. I. R. 1981 S. C. 1077.): " The right of a detenu to have his representation considered 'at the earliest opportunity' and the obligation of the detaining authority to consider the representation 'at the earliest opportunity' are not a right and an obligation flowing from either the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 or the National Security Act or, for that matter any other Parliamentary or State law providing for preventive detention. They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State law. Article 22 (5) enjoins a duty on the authority making the order of detention to afford the detenu the earliest opportunity of making a representation against the order. ' The right and obligation to make and to consider the representation at the earliest opportunity is a constitutional imperative which cannot be curtailed or abridged. ";