TaxTMI 
TaxTMI 
1991 (2) TMI 232
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....PITNDPS dated 25-11-1990 passed under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (in short 'PITNDPS Act') and the order of confirmation F. No. 801/1/90-PITNDPS dated 24-4-1990 passed under Section 9(f) read with Section 10(2) of the PITNDPS Act, by the Central Govt. directing detention of the detenu for a period of two years w.e.f. 30-1-1990. The only argument advanced in support of this writ petition is infraction of Article 22(5) of the Constitution of India. The facts material for the point raised are stated hereafter. 2. The detenu was arrested from his family estate at Kochuveetil House, Kuthugal, Udumpanchola Taluk, Idikki District, Kerala on 19-10-1989 on the accusation t....
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....sidered the reference relating to the detenu made by the Central Government and also the detenu's representation submitted to it. The Advisory Board gave the opinion that there was sufficient cause to justify his preventive detention. The Central Government then made the order dated 24-4-1990 confirming his detention and directed that the detenu Noor alias Babu be detained for a period of two years w.e.f. 30-1-1990. 3. It is admitted that the Advisory Board considered the detenu's representation before sending its opinion to the Central Government along with the entire record including the representation submitted by the detenu. It is also admitted that the Central Government made the order of confirmation dated 24-4-1990 on receipt of t....
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....ed during pendency of the reference before the Advisory Board, there was no obligation on the Central Government also to consider the same independently since the representation was not addressed to the Central Government. 5. The Constitutional mandate in Article 22(5) was considered recently by a Constitution Bench in K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and Ors., State of Karnataka and Ors. [JT 1991 (1) SC 216], in view of some conflict in earlier decisions of this Court regarding the detaining authority's obligation to consider the detenu's representation independently of the Advisory Board's duty in this behalf. The Constitution Bench held as follows :- all right to a proper consideration of the representatio....
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....Karim & Ors. v. State of West Bengal -1969 (1) SCC 433; Pankaj Kumar Chakrabarty & Ors. v. State of West Bengal -1970 (1) SCR 543; Shayamal Chakraborty v. The Commissioner of Police, Calcutta and Anr. -1969 (2) SCC 426;B. Sundar Rao and Ors. v. State of Orissa - 1972 (3) SCC 11; John Martin v. State of West Bengal - 1975 (3) SCR 211; S.K. Sekawat v. State of West Bengal - 1975 (2) SCR 161; and Haradhan Saha & Anr. v. State of West Bengal and Ors. - 1975 (1) SCR 778]." (emphasis supplied) 6. It is thus clear that the obligation of the Government to consider the representation is different and in addition to the obligation of the Board to consider it at the time of hearing the reference before giving its opinion to the Government. Consi....
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....ideration by Government is dispensed with when the detenu's representation instead of being addressed to the Government or also to the Government is addressed only to the Advisory Board and submitted to the Advisory Board instead of the Government? On principle, we find it difficult to uphold the learned Solicitor General's contention which would reduce the duty of the detaining authority from one of substance to mere form. The nature of duty imposed on the detaining authority under Article 22(5) in the context of the extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference with personal liberty. It is more so since the liberty involved is of a person in detention and ....
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....) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Article 22(5) in support of the contention of the learned Solicitor General. The contents of Article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Article ....