Preventive detention challenge over ignored detainee representations under Article 22(5), leading to detention quashed and release ordered

The dominant issue was whether a preventive detention order was vitiated by non-consideration of the detenu's representations, denying an effective opportunity to contest the grounds and violating Article 22(5). The HC held that the detaining authority (or the Government, if it is the detaining authority under s.3(1)) must consider the detenu's representation, and even where the representation is addressed to the Advisory Board, the Government must independently consider it after the Board's opinion, exercising discretion under s.12 to confirm or revoke detention. As the representations were considered only by the Advisory Board and not by the Government/detaining authority, the detention was illegal and void ab initio; the detention and approval/confirmation orders were quashed and the detenu directed to be released forthwith.

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1. ISSUES PRESENTED AND CONSIDERED

(i) Whether the preventive detention was vitiated for breach of the constitutional mandate under Article 22(5) due to non-consideration of the detenu's representations by the detaining authority and/or the Government, independent of the Advisory Board's consideration, and before confirmation of detention.

(ii) Whether alleged non-supply/non-translation/illegibility of certain documents (including bail and acquittal orders) invalidated the detention, in the absence of a clear identification in the detention order of which documents were "relied upon" as distinct from those merely "referred to".

2. ISSUE-WISE DETAILED ANALYSIS

Issue (i): Non-consideration of representation and effect on validity of detention

Legal framework (as discussed by the Court): The Court treated Article 22(5) as imposing a dual obligation: (a) to afford a real opportunity to make a representation, and (b) to ensure proper and timely consideration of that representation by the competent authority. The Court held that consideration by the Advisory Board does not substitute the obligation of the Government/detaining authority; the Government must consider the representation at least once and, where possible, before confirmation of the detention.

Interpretation and reasoning: The Court held that a detenu's representation must be considered by the appropriate executive authority irrespective of the addressee (detaining authority/Government/Advisory Board). The purpose is substantive: the executive authority must apply its own mind and decide whether detention should continue; if it revokes detention on representation, the process need not proceed further. The Court emphasized that confirmation of detention without prior consideration of a pending representation renders the confirmation invalid and subsequent rejection cannot cure the defect.

Conclusions: The Court found, on the record, that representations made by the detenu were considered only by the Advisory Board and were not considered by the Government or the detaining authority either prior to or after referral to the Advisory Board. This was held to be non-compliance with Article 22(5), vitiating the detention in its entirety. The detention, approval, and confirmation were therefore quashed and immediate release was ordered.

Issue (ii): Non-supply/translation/legibility of documents and "relied upon" vs "referred to" materials

Legal framework (as discussed by the Court): The Court accepted the governing principle that non-supply of documents that are relied upon (including where translation/legibility is necessary for effective representation) can vitiate detention, whereas non-supply of documents only casually or passingly referred to does not. The Court also applied the preventive detention principle that detention may rest on multiple grounds and does not automatically fail merely because some grounds are unavailable, provided at least one valid ground sustains it.

Interpretation and reasoning: The Court acknowledged contentions about untranslated English documents, missing bail/acquittal orders, and illegible copies. It also noted concessions that certain acquittal-related materials were not secured or translations were not supplied. However, the Court identified a decisive difficulty: the detention order did not specify which documents were actually relied upon and which were merely referred to. The Court reasoned that, without such identification by the detaining authority, it becomes uncertain (even for legally trained readers) to determine whether non-supply relates to relied-upon material that affects the right to make an effective representation. In that situation, the Court held the document-supply ground was not established in a manner that could independently invalidate the detention in the present case, although it found the drafting practice created ambiguity.

Conclusions: The Court did not quash the detention on the document-supply/translation/legibility grounds because there was no specific mention in the detention order identifying the relied-upon documents allegedly not furnished, and hence the Court treated that challenge as not available on the facts. Nonetheless, the Court issued prospective directions that detaining authorities should clearly state (preferably under each ground) which documents are relied upon and confirm that legible translated copies of relied-upon materials are furnished, to enable effective representation; this directive was stated not to apply to already-passed orders.

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