Madras High Court
Viji @ Vijayan @ Vijayakumar vs The Commissioner Of Police And State Of ... on 25 March, 2003
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar, V. Kanagaraj
ORDER V.S. Sirpurkar, J.
1. The order passed by the Commissioner of Police, Greater Chennai dubbing one Viji as a "Goonda" and directing his detention under Section 3(1) of the Tamil Nadu Act 14 of 1982 (hereinafter referred to as "the Act") is in challenge in this petition.
2. There are as many as four adverse cases reported against the detenu and he has been booked on the basis of an incident dated 18.8.2002 wherein he is said to have tried to assault one Ali. There is also a charge that he tried to extract Rs. 300/- from Ali.
3. It will not be necessary for us to go into the facts and the grounds in details because, the learned counsel for the petitioner restricts himself to only one submission which is of technical nature.
4. Learned counsel for the petitioner points out from the grounds raised that the detenu had sent a representation against his order of detention on 26.9.2002. This representation was directed to the Commissioner. This was obviously made within 12 days of the passing of the detention order. It was directed to the Commissioner of Police who is the Detaining Authority. Learned counsel points out that in his petition the petitioner has raised the question that he is not aware as to what has happened to this representation which is the first representation and whether it was put before the Government and the Advisory Board. The learned counsel further contends that a second representation came to be made on 1.10.2002 which was rejected on 22.10.2002 by the Government. Learned counsel points out that the first representation however was not put before the Advisory Board though the Government was duty bound to put the said representation before the Advisory Board under Section 10 of the Act.
5. The State has not filed any counter in this case. However, on the basis of the record, the learned Additional Public Prosecutor suggests that the representation dated 1.10.2002 has been rejected by the Government on 22.10.2002 without any delay. He further points out that the first representation which was sent by the detenu to the Detaining Authority, the Commissioner of Police reached the Commissioner of Police on 27.9.2002 but since on that day his power to consider the representation had come to an end because of the elapse of 12 days as also because of the approval given to the detention by the Government by its order dated 24.9.2002, he merely forwarded that representation to the Government which reached the Government on 4.10.2002. Learned Additional Public Prosecutor further submits that this representation however was not put before the Advisory Board.
6. It is significant to note in this behalf that the Advisory Board meeting was held on 23.10.2002. In short, both the representation dated 26.9.2002 which was the first representation made in time and the representation dated 1.10.2002 were lying with the Government. However, the Government put only the second representation dated 1.10.2002 before the Advisory Board. The first representation has not however been put before the Advisory Board.
7. However, according to the learned Additional Public Prosecutor, there will be no question of any breach of Section 10 of the Act because of the non-submission of this first representation before the Advisory Board because firstly, the representation was made not to the Government but to the Detaining Authority and secondly, the Detaining Authority had merely forwarded it to the Government and therefore, the Government was not duty bound either to consider the said representation or to put it before the Advisory Board. Learned Additional Public Prosecutor further submits that the power of the Detaining Authority to revoke the detention had come to an end on 24.9.2002 when the Government had approved the detention order. According to him therefore, the petition had no force.
8. Considering the rival submissions, it will be better to see the language of Section 10 of the Act.
"10.Reference to Advisory Board.--- In every case where a detention order has been made under this Act, the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by them 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 the case where the order has been made by an officer, also the report by such officer under sub-section (3) of Section 3."
9. A glance at this section suggests that it is imperative on the part of the Government to put any representation made by the detenu challenging the detention before the Advisory Board. It is not for the Government to choose as to which representation should be put and which should not be put. An Advisory Board has been created as a guarantee against the baseless detentions or the malicious detentions as the case may be. The task of the Advisory Board which is created under Article 22 of the Constitution of India is to see whether there is any reason for the detention. It actually goes into not only the technical aspect of the detentions but also the merits thereof. It is with this idea that the Advisory Boards are created to get assurance that there is every reason for the detention and a continued detention beyond three months. If this is the force of the language of the Act, then obviously it is not for the Government to choose as to which representation should be put before the Advisory Board and which representation should not be put before it. It is not the choice of the Government. The direction of law is loud and clear that every representation which has been made prior to the meeting of the Advisory Board must be put before the Advisory Board.
10. Learned Additional Public Prosecutor wants to get out of this difficult situation by arguing that in fact, the Government was not duty bound to consider the representation at all which was merely forwarded to it by the Detaining Authority. We are not in a position to agree. Every representation which is sent by the detenu in whatever manner has to be considered. A representation received by the Detaining Authority would certainly have to go before the Government for being considered and if the Detaining Authority does not forward that representation, he obviously commits a breach of his duty and thereby the right of the detenu under Article 22(5) of the Constitution is breached. It is futile to say that the representation even if it is forwarded to the Government would only gather dust in the Government desks. The representation has to be considered by the Government. Learned Additional Public Prosecutor says that that representation has actually been considered and rejected by the Government by its order dated 16.10.2002. That may be so. However, the fact remains that the Government has not put this representation before the Advisory Board which it was bound to do. The requirement of law is that the representation must be put before the Advisory Board. That would include all the representations which have been made till the meeting of the Advisory Board is held.
11. Again, the learned Additional Public Prosecutor wants us to read the word 'representation' in Section 10 of the Act as the representation made to the Government only.
12. We are unable to agree. A representation is not made to a particular authority. It is a representation made by the detenu challenging his detention. So, any communication by which the detenu challenges the detention order becomes a representation as contemplated in Section 10. It need not be specifically directed to the Government alone. In this behalf, there are any number of pronouncements that even a representation sent to the President of India has been treated to be a representation to the Government of India. If that is so, the representation does not lose its character as a representation merely because it is not directed to the Government and directed to the Detaining Authority. That will be a simple way of reading the Section. If we accept the interpretation to be forwarded by the learned Additional Public Prosecutor, we would be doing harm to the plain and simple language of Section 10. In that view, it must be held here that in view of the admitted position that the very first representation was not put before the Advisory Board, there is a clear-cut breach of Section 10.
13. Learned Additional Public Prosecutor further almost by way of a desperate argument argues that both the representations were of similar nature and whatever was raised in the first representation was also raised in the second representation dated 1.10.2002.
14. That may be so. That was not for the Government to consider. The Government was bound by the dictate of the Section that every representation must go before the Advisory Board provided the Government comes into the possession of any such representation. This is besides the point that the Advisory Board could have thought that the detenu had made the representation at the earliest possible time i.e. on 26.9.2002 whereas the second representation was a little belated as compared to that. That factor also could have been taken into consideration by the Advisory board. This is again to be seen on the backdrop that the Government has not chosen to file counter and to explain as to why the Government did not place the first representation before the Advisory Board. We do not know as to whether the Government did consider that. There is nothing on record. In that view, we would not go to the question of breach as raised by the learned Additional Public Prosecutor. It is a trite law that where the provision of law is mandatory, its breach would straightaway fatalise the detention. That is exactly what has happened in this case. The petition has to be allowed. The detention order has to be quashed.
15. Rule is made absolute. The Habeas Corpus Petition is allowed. The order of detention dated 15.9.2002 is set aside and the detenu Viji @ Vijayan @ Vijayakumar S/o Pakkirisamy is directed to be set at liberty forthwith, unless he is required in connection with any other case.