(1.) This order will also govern the disposal of Misc. Petition Nos. 130 of 1972 (Suresh Shukla v. The District Magistrate, Indore and others) and 131 of 1972 (Vishnu Prasad v. The District Magistrate, Indore and others).

(2.) In the above named three petitions, the petitioners, Khurasan Pathan, Suresh Shukla and Vishnu prasad had obtained rule calling upon the respondents to show cause as to why the writs of habeas corpus should not be issued under Article 226 of the Constitution of India directing their release from detention under orders passed by respondent No. 1 under the provisions of the Maintenance of Internal Security Act, 1971 (No. 26 of 1971) (hereinafter referred to as the Act). The cause was shown only by respondent No. 1 the District Magistrate, Indore, on behalf of himself and the other respondents. At the conclusion of the hearing of these petitions on 13-12-1972, we directed the release of the petitioners and stated that the reasons will be furnished later on. We now propose to state those reasons as under,

(3.) The facts giving rise to the Miscellaneous Petition No. 129 of 1972 (Khurasan Pathan v. The District Magistrate, Indore and others) are similar to the facts giving rise to the other two petitions also. The grounds urged in support of these petitions by the counsel for both the parties were also- common. These reasons will, therefore, govern all these three petitions.

(4.) On 16 5-1972, the District Magistrate, Indore served the petitioner with an order (Annexure A) under section 3 (1) (a) (11) of the Act and directed his detention in the Central Jail, Indore on the ground of preventing him from acting in any manner prejudicial to the maintenance of public order. The petitioner was accordingly detained. On 18-5-1972 the District Magistrate furnished the petitioner with the grounds of detention under section 8 of the Act vide Annexure C, the details of which were also furnished vide Annexure E. The State Government on being informed of this order, by the District Magistrate approved of the said order, vide Annexure E to the return on 25-5-1972. A reference to the Advisory Board of the petitioners case for detention was also made vide annexure H to the return. The Advisory Board is said to have approved of the petitioners detention and it was confirmed by the State Government under section 12 of the Act. The petitioner was accordingly directed to be detained for a period of 12 months. So far as these facts are concerned, there is no controversy between the parties.

(5.) The petitioner, however, challenges his detention as being illegal, invalid and contrary to the provisions of the Act and the Constitution of the following grounds, namely :-

(i) The petitioner was not given the earliest opportunity to consult and be defended by a legal practitioner. (ii) That he was allowed to make a representation against his detention to the State Government as late as 30-6-1972 which in substance was a denial of his right to made a representation. (iii) The representation (Annexure G) made by him was not considered by the State Government independently of the report of the Advisory Board. (iv) The grounds of detention and the particulars, thereof furnished on him were false, baseless, non-existent and extraneous to the question of detention under the Act and lack in necessary particulars with the effective representation against his detention. (v) The District Magistrate passed the impugned order without any satisfaction as regards the existence and genuine-se of the report made to him by the Police; and (vi) The grounds on which the petitioner was detained could not be said to be prejudicially affecting the maintenance of public order.

(6.) As we are inclined to consider and allow the petition on some of the aforesaid grounds only, we do not think that the consideration of the other grounds is necessary.

(7.) Denial of the earliest opportunity to consult a lawyer. Under Article 22 (1) of the Constitution of India any person, who is detained in custody is guaranteed the right to consult and to be defended by, a legal practitioner of his choice. According to the petitioner, his counsel Shri Ukas, an Advocate, approached the District Magistrate with an application praying for an interview with the petitioner to enable him to make a representation against his detention to the State Government but the District Magistrate refused to entertain the said application on the ground that he was busy with the by-election to the Lok Sabha. Further, according to the petitioner, the said application was entertained only on 19-6-1972 and even then the petitioners counsel was only informed that interview can be allowed only after it was confirmed from the petitioner that Shri Ukas was engaged by him as his counsel. Lastly, according to the petitioner, the interview was allowed on 30-6 1972 when he made the representation (Annexure-G) for the consideration of the State Government.

(8.) While replying the aforesaid allegations made by the petitioner in paragraph 9 of his petition respondent No. 1 admits the making of an application but denies that any request for interview was made by the petitioners counsel soon after the detention order was passed. It is also denied that the District Magistrate refused to entertain any application on the ground that he was busy with the by-election to the Lok Sabha. It is however, admitted that in pursuance of the application made by Shri Ukas, he was informed on 20-6-1972 that an interview would be allowed after it was ascertained from the petitioner that the petitioner has engaged Shri Ukas as his counsel. Thus, according to the District Magistrate, the petitioner had due opportunity of making a representation against his detention to the State Government. When it is admitted that an application was made by the petitioners counsel it would have been in all fairness that the said application was produced before this Court to enable us to know as to when the said application was made when it was entertained and when it was finally allowed. We fail to understand as to why this application was kept back and not produced before this Court. Details with regard to the date and time of the making of the application, the enquiry from the petitioner and the date and time of interview allowed to the petitioners counsel should have been furnished in the return. There is no affidavit from the District Magistrate (Shri N. R. Krishnan, who was said to have been sent on deputation to the Central Government) to controvert the fact stated by the petitioner in paragraph 9 of his petition, wherein it was categorically asserted that the District Magistrate was approached by the petitioners counsel soon after his detention and that neither the said application was entertained nor the interview prayed for by the petitioners counsel was allowed. It is clear even from the return that there was an approach by the petitioners counsel on June 20, 1972 and the interview was allowed only after ten days that is on 30-6-1972. In the aforesaid circumstances we cannot but conclude that even though the petitioners counsel desired an interview with the petitioner by means of an application soon after he was detained the interview prayed for was not allowed with the result that the petitioner could not make his representation till after the expiry of 45 days from the date of the detention order. This denial of an opportunity to consult a lawyer was in our opinion in clear violation of the provisions of Article 22 (1) of the Constitution of India.

(9.) Vide Ground No 23 of the petition, the petitioner has contended that the representation made by the petitioner was not considered by the State Government. The reply to this ground by District Magistrate is that it is denied by the representation made by the petitioner was not considered by State Government. It is however, clear both from the return and the annexures to this return that the copy of the order considering the representation made by the petitioner, either allowing or disallowing it has not been filed. We have, therefore, to presume that the representation (Annexure G) made by the petitioner was not considered by the State Government till before the return was filed by the District Magistrate in this case. It is in the background of these facts that we propose to consider the provisions of the Constitution and the Act as interpreted from time to time by their Lordships of the Supreme Court.

(10.) Clause (4) of the Article 22 of the Constitution provides for the safeguards in respect of persons detained under the laws framed by the Parliament for the detention of a citizen. There is a provision for the constitution of the Advisory Board to give its opinion about the sufficiency of the cause for detention. Clause (5) of the same Article further provides that the authority making an order of detention shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. It is in conformity with these provisions of the Constitution that a similar provision is made under section 8 of the Act, which says that the authority making the order of detention shall communicate to the detenue the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order of detention to the appropriate Government. We have therefore, to see as to whether the requirements of aforesaid provisions of the Constitution and the Act have been complied with in this case.

(11.) We have already held above that a representation was no doubt made by the petitioner but this was not allowed to be made for a period of 45 days. We have also held above that neither the representation made by the petitioner was considered by the State Government nor any orders on that representations were passed.

(12.) While considering the provisions of Article 22(5) of the Constitution and similar provisions of the Preventive Detention Act, 1950, Their Lordships of the Supreme Court in Sk. Abdul Karim and others v. The State of West Bengal (AIR 1969 S C 1028.) considered the question as to when the representation of a detenue is to be considered, as also whether such a consideration by the State Government is necessary inspite of the provisions of the Constitution of the Advisory Board. In this case the detention order was passed on 17-2-1968. On 21-2-1968, the detenue made a representation to the State Government against the order of detention. On 22-4-1968, the Advisory Board made a report stating that there was sufficient cause for the detention. On 24-7-1968 the State Government confirmed the detention under section 11 of the Preventive Detention Act. Before the Advisory Board made a report, the representation made by detenue was forwarded to the Board but the State Government did not consider the representation independently before forwarding to the Advisory Board. It was contended on behalf of the State Government that for securing an unprejudiced and impartial consideration of the representation of the detenue by an independent Statutory Authority, the State Government refrained at that stage from expressing any views on the representation and that there was no obligation on the State Government to consider the representation since the Advisory Board has been constituted to consider the case of the detenue and to report to the State Government whether there was sufficient cause for the detention. Their Lordships in paras 11 and 12 of the judgment negatived this contention thus :-

"Article 22 prescribes the minimum procedure that must be included in any law permitting preventive detention and if such requirements are not observed the detention infringes the fundamental right of the detenue guaranteed under Articles 21 and 22 of the Constitution. The said requirements are: (1) that no law can provide for detention for a period of more than three months unless the sufficiency for the cause of the detention is investigated by an Advisory Board within the said period of three months; (2) that the State Law cannot authorise detention beyond the maximum period prescribed by Parliament under the powers given to it in Article 22, clause (7); (3) that Parliament also cannot make a law authorising detention for a period bey and three months without the intervention of an Advisory Board unless the law conforms to the conditions laid down in clause (7) of Article 2; (4) provision has also been made to enable Parliament to prescribe the procedure to be followed by Advisory Boards. Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by clause (5) of Article 22. A person detained under a law of preventive detention has a right to obtain information to to the grounds of detention and has also the right to make a representation protesting against an order of preventive detention. Article 22 (5) does not expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation. But it is necessarily implicit in the language of Article 22 (5) that the State Government to whom the representation is made should properly consider the representation as expeditiously as possible. The constitution of an Advisory Board under section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenue as soon as it is received by it..... In our opinion, the constitutional right to make a representation guaranteed by Article 22 (5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Article 22 (5) is a valuable constitutional right and is not a mere formality. The constitution of an Advisory Board for the purpose of reporting whether a person should or should not be detained for a period of more than three months is a very different thing from a right of consideration by the State Government whether a person should be detained even for a single day......... It follows, therefore, that even if reference is to be made to the Advisory Board under section 9 of the Act, the appropriate Government is under legal obligation to consider the representation of the detenue before such a reference is made."

(13.) The matter was re-examined by a larger Bench in Jaynarayan v. State of West-Bengal (A I R 1970 S C 675.) where on a consideration of five other cases decided earlier, Their Lordships held that:-

"Broadly stated, four principles are to be followed in regard to representation of detenue. First, the appropriate authority is bound to give an opportunity to the detenue to make a representation and to consider the representation of the detenue as early as possible. Secondly, the consideration of the representation of the detenue by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenue by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizens right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenues representation to the Advisory Board. If the appropriate Government will release the detenue the Government will not send the matter to the Advisory Board. If, however, the Government will not release the detenue the Government will send the case along with detenues representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenue the Government will release the detenue. If the Advisory Board will express any opinion against the release of the detenue the Govern may still exercise the power to release the detenue."

(14.) Even in cases where there is delay in the consideration of the representation made by the detenue, Their Lordships of the Supreme Court in L. I. Singh v. State of Manipur (AIR 1972 S C 438.) Ranjit Da v. The State of West Bengal (AIR 1972 S C 1753.) and Atiar Rehman v. State of West Bengal (AIR 1972 S C 2529.) have held that delay in the consideration of the detenues representation would invalidate the detention. While referring to an earlier decision in Khairal Hague v. State of West Bengal (1960 (2) S C R 520.) it was held in K I Singhs case (supra) as under :-

"In Khairal Haque v. State of West Bengal (Writ petition No. 246 of 1969 dated 10-9.1969 (S C).) this Court had to consider the effect of a delay in the Government considering the representations with regard to the orders of detention. This Court again reiterated that under Article 22 (5) of the Constitution, there was a dual obligation on the appropriate Government and a dual right in favour of a detenue, namely-(1) to have his representation irrespective of the length of detention, considered by the appropriate Government; and (2) to have once again that representation in the light of the circumstances of the case considered by the Advisory Board before it gave its opinion. It was emphasised that the two obligations of the Government to refer the case of the detenue to the Advisory Board and to obtain its report on the one hand and to give an earliest opportunity to the detenue to make a representation and consider the representation on the other, are two distinct-obligations independent of each other "

It was further observed as follows : -

"The fact that Article 22 (5) enjoins upon the detaining authority to afford to the detenue the earliest opportunity to make a representation must implicitly mean that such representation must, when made, be considered and disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning."

(15.) From the aforesaid decisions it is therefore clear that either in any case where the Government delays the consideration of the detenues representation and the delay is not explained or in a case where the representation is not considered either before or even after the reference of the detenues case to the Advisory Board independently of the consideration of the representation by the Advisory Board the detention order passed against the detenue would be invalid and the detenue is entitled to be set at liberty.

(16.) In the instant case, as already stated above, the petitioner was not given the earliest opportunity guaranteed by the constitution, to make a representation against his detention; that the delay in giving this constitutional opportunity has not been at all explained and that the representation made to the State Government instead of being considered independently of a reference to the Advisory Board, was not at all considered. These grounds were, in our opinion, more than sufficient to justify the final order that was passed by us on 13-12-1972. Though a number of other grounds were raised on behalf of the petitioner and which we have mentioned above in paragraph 5 yet we think that their consideration is not necessary in the light of the view that we have taken on the ground considered earlier. We, therefore, need not express any opinion on the justifiability or otherwise of the rest of the grounds.

(17.) For the reasons aforesaid, we had allowed this petition as also Misc. Petition No. 130 of 1972 and 131 of 1972. Petition allowed.