Decided on March 26,1976


Cited Judgements :-



- (1.)THIS Rule for issue of a writ in the nature of Habeas Corpus raises an important issue as to whether the State Government has any obligation to place a representation made by the detenue beyond 30 days from the date of detention but sufficiently before the consideration of the case by the Advisory Board, before the said Board. The issue arises on the following facts.
(2.)THE District Magistrate of Murshidabad in exercise of his powers under section 3 of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the said Act) made an order on December 21, 1974 directing the detenue petitioner to be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The said order was duly approved by the State government on December 31, 1974. The detenue was taken into custody in execution of the order on January 24, 1975. The detenue made a representation on february 28, 1975, i. e. , just a few days after the expiry of 30 days from the date of detention. In this representation, he raised his own plea as to why the order and the detention there under are unjustified and he further pleaded that he be given an opportunity of being heard by the Advisory board where he would make further representations in support of his defense. This representation was received by the Home Department on March 4, 1975, and the same was rejected by the appropriate authority on behalf of the State Government on march 11, 1975. A reference to the advisory Board under section 10 of the said Act was, however, made prior to the making of the representation on february 13, 1975. The Board took up the case for consideration on March 17, 1976. Unfortunately, though the representation was rejected by the state Government on March 11, 1975, and there was enough opportunity for the State Government to place the said representation before the Advisory board on March 17, 1975, when the case was taken up for consideration by the board, the State Government failed to do so. The State Government further failed to produce the detenue before the advisory Board and thus afford him an opportunity to be heard by the said board as prayed for by him. As a mater of fact, the Home Department forwarded the representation to the advisory Board on March 18, 1975, but as the case had already been disposed of by the Board no cognizance of the representation could be taken by the board which received the representation only on March 19, 1975. The board submitted a report without, however, considering the representation and without hearing the detenue on March 17, 1975, and expressed an opinion that there is sufficient cause for the detention. On the report as aforesaid, the state Government confirmed the detention by an order dated March 29, 1975. The order of confirmation, however, bears the following irregular recital: -
"and Whereas the said person has made a representation under section 8 of the said Act against the said detention order And Whereas the grounds oh which the said detention order was made and the said representation and the report made under sub-section (3) of Section 3 of the said Act by the District Magistrate Murshidabad were placed by the State Government before an advisory Board constituted by it under section 9 of the said Act And whereas the said Advisory Board after considering all the materials placed before it has reported that there is in its opinion sufficient cause for the detention of the said person. Now, therefore, in exercise of the power conferred by subsection (1) of Section 12 at the maintenance of Internal Security act, 1971 (Act XXVI of 1971), the governor is pleased hereby to confirm the said detention Order No. 3968c dated 21. 12. 74 in respect of of the said Shri Siraj Sheikh. "

(3.)ON the facts set out hereinbefore it is, however, wholly incorrect to suggest-as suggested in this order of confirmation that the detenue representation was at ail effectively placed before the Advisory Board or that the Board took the same into consideration in making its report.

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