# [1970] 3 S.C.R. 225

- **Citation:** [1970] 3 S.C.R. 225
- **Court:** Supreme Court of India
- **Decided:** 1969-11-05
- **Case number:** Writ Petition No. 258 of 1969
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1970-3-s-c-r-225-4906
- **Pages:** 8

## Headnote

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225
JAYANARAYAN SUKUL-·-··· -·--~.
v-.
STATE OF WEST BENGAL
October 15 &·November 5, 1969
[l\f. HIDAYATULLAH, C.J., J. M. SHELA;: C. A. VAIDIALINGAM,
A. N. ·GROVER AND A. N; RAY, JJ.] .
Constitution of India, 1950, Art. 22(5)' Ond Preventive Detenti'a~ Act.
1950, s. 7-Right of detenu t10}1ave his representation considered by Stat~
Government-Government .must consider representation
before nt.aking
reference to"Advisory Board and independently of its-report-Inordinate
delay in considering representation vio/.1tes consHtutional Culirantee.
O~ June 5, 196J the District Magi!trate 24-Parganas; West Bengal .
made an order under s. 3(2) of the Preventive Detention Act. 1950 for
the detention of -the petitioner. On June 7,-- .1969 the. petitioner was.
arrested and served with the grounds of detention. On .June 9, 1969 in-
- formation was givcn_to the State GOvernment.
On June_ 14, 1969 the
GoVernor apptoved the order of detention and sent -the rf:pOrt -under s.
3 ( 4) of the Act along with the grounds of detention. to the
Central
Government.-On June 23, .1969 the petitioner-made a representation te>
·the State Government.
On July l, 1969 the State Government placed
the case of the petitioner together with the said representation before the
Advisory Board under s. 9 of the Act. The Board gave its opinion on
·August -i 3,'_ 1969 that· there. was sufficient cause for the detention of the
petitioner. · On· August 19, 196') the State Government. -aUegedly reiected
the petitioner's representation.
On August 26, 1969 the Governor con_
firmed the order of detention. · The petitioner filed a petition under Art.
; 32 of the Constitution challenging his detention on the ~round that the
State Government did not consider his representation of June 23, 1969'
v.·ith reasonable and proper expedition.
On behalf of the ·State Government it was contend~d that the Government had discharged hs duty inasmuch .as it_ rejected the reoresentation after considering the report of the
Advisory Hoard and making its own enquiries through the Superintendent
Raihi.'av Police- '\/hose reoort ·wa' a little_ delayed.
In resoect of the said'
enquiry h&.\Jing hecn made an affidavit·was fil~d by_ the officer ~ho caused
the enquiry to be· made~
HELD: (i) Broadly stated. four principles, ar~ to be followed in rega'rd to the representation of detenus ~.
-
First, the appropriate .. authority, is bound to give an opportuility to thcUetenu to make a representation and· to consider the represe~ta_tion as
early as possible. (232 BJ
Secondly, the consideration 0-f the representation of the 'c.etenu b}r th~
appronriate authOritv is entirelv independent of any action by_ the Advisory Board includinz the cop,Jde_ration of the representation of the dctenu
by the Advisory Board. (232 CJ '
Thirdly. th~re should not be an-v delay in the matter of con"ider.ltiCJn.
Though nO hard and f~st _rule can bC laid down as to. the measure of time
taken h-V the app'ronriate aut'1ority for consideration. it has to be -remerribcred that the Government has to be viei1ant in the g-overnance Of thccitizens; The fundimenta1 ri!-'it of the detenu to have. his ·representatiotl
:226
SUPREME COURT REPORTS
[1970] 3 s.c.R.
.considered by the appropriate Government would be rendered meaningless
A
jf the Government does nqt deal with the matter expeditiously but at its
O\\'n sweet will and convenience. [232 C-D]
Fourthly the approp'riale Government is to exercise its opinion an<l
_judgment on the representation before sending the case along with the
tletenu's representation to the Advisory Board. If t~e appropriate Government will release the detenu the Government will not send the matter 10
the Advisory BoQ!'d.
If however the Government will not release the
B
<lctenu the Gqvemment will send the case along with the detenu's representation to the Advisory Board.
If thereafter the Advisory Board will
express an opinion in favour of release of the detenu the Government
will release th

## Text

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225
JAYANARAYAN SUKUL-·-··· -·--~.
v-.
STATE OF WEST BENGAL
October 15 &·November 5, 1969
[l\f. HIDAYATULLAH, C.J., J. M. SHELA;: C. A. VAIDIALINGAM,
A. N. ·GROVER AND A. N; RAY, JJ.] .
Constitution of India, 1950, Art. 22(5)' Ond Preventive Detenti'a~ Act.
1950, s. 7-Right of detenu t10}1ave his representation considered by Stat~
Government-Government .must consider representation
before nt.aking
reference to"Advisory Board and independently of its-report-Inordinate
delay in considering representation vio/.1tes consHtutional Culirantee.
O~ June 5, 196J the District Magi!trate 24-Parganas; West Bengal .
made an order under s. 3(2) of the Preventive Detention Act. 1950 for
the detention of -the petitioner. On June 7,-- .1969 the. petitioner was.
arrested and served with the grounds of detention. On .June 9, 1969 in-
- formation was givcn_to the State GOvernment.
On June_ 14, 1969 the
GoVernor apptoved the order of detention and sent -the rf:pOrt -under s.
3 ( 4) of the Act along with the grounds of detention. to the
Central
Government.-On June 23, .1969 the petitioner-made a representation te>
·the State Government.
On July l, 1969 the State Government placed
the case of the petitioner together with the said representation before the
Advisory Board under s. 9 of the Act. The Board gave its opinion on
·August -i 3,'_ 1969 that· there. was sufficient cause for the detention of the
petitioner. · On· August 19, 196') the State Government. -aUegedly reiected
the petitioner's representation.
On August 26, 1969 the Governor con_
firmed the order of detention. · The petitioner filed a petition under Art.
; 32 of the Constitution challenging his detention on the ~round that the
State Government did not consider his representation of June 23, 1969'
v.·ith reasonable and proper expedition.
On behalf of the ·State Government it was contend~d that the Government had discharged hs duty inasmuch .as it_ rejected the reoresentation after considering the report of the
Advisory Hoard and making its own enquiries through the Superintendent
Raihi.'av Police- '\/hose reoort ·wa' a little_ delayed.
In resoect of the said'
enquiry h&.\Jing hecn made an affidavit·was fil~d by_ the officer ~ho caused
the enquiry to be· made~
HELD: (i) Broadly stated. four principles, ar~ to be followed in rega'rd to the representation of detenus ~.
-
First, the appropriate .. authority, is bound to give an opportuility to thcUetenu to make a representation and· to consider the represe~ta_tion as
early as possible. (232 BJ
Secondly, the consideration 0-f the representation of the 'c.etenu b}r th~
appronriate authOritv is entirelv independent of any action by_ the Advisory Board includinz the cop,Jde_ration of the representation of the dctenu
by the Advisory Board. (232 CJ '
Thirdly. th~re should not be an-v delay in the matter of con"ider.ltiCJn.
Though nO hard and f~st _rule can bC laid down as to. the measure of time
taken h-V the app'ronriate aut'1ority for consideration. it has to be -remerribcred that the Government has to be viei1ant in the g-overnance Of thccitizens; The fundimenta1 ri!-'it of the detenu to have. his ·representatiotl
:226
SUPREME COURT REPORTS
[1970] 3 s.c.R.
.considered by the appropriate Government would be rendered meaningless
A
jf the Government does nqt deal with the matter expeditiously but at its
O\\'n sweet will and convenience. [232 C-D]
Fourthly the approp'riale Government is to exercise its opinion an<l
_judgment on the representation before sending the case along with the
tletenu's representation to the Advisory Board. If t~e appropriate Government will release the detenu the Government will not send the matter 10
the Advisory BoQ!'d.
If however the Government will not release the
B
<lctenu the Gqvemment will send the case along with the detenu's representation to the Advisory Board.
If thereafter the Advisory Board will
express an opinion in favour of release of the detenu the Government
will release the detenu.
If the Advisory Boa!rd will express any opinion
against the release of the detenu the Government may still exercise the
power to release the detcnu. [232 D-F]
Sk. Abdul Karim & Ors. v. State of West Bengal.
[1969] 3 S.C.R..
C
479; Pankaj Kumar Chakrabarty & Or.<. v. State of West Bengal, [1970]
I S.C.R. 543 and Khairul Haque v. State of We>t Bengal, W.P.
No.
246 / 69 dated 10-9-69, applied.
Shyanu.'1 Chakraborty v. Co1111nissio11er of Police,
1 S.C.R. 762 an.d Durga Show and Ors. case, W.P.
206/69 dated 2-9-69, referred to.
Calcutta
[1970)
Nos. 198., 205 i<
(ii) Jn the present case the State of West Bengal was guilty of in·
fraction of the coPstitutional provisions not only by inordinate delay of
1he consideration of the representation but also by putting off the consideration till after the receipt of the opinion of the Advisory Board. There
was no explanation for this inordinate delay.
The Superintendent v-.·ho
made the enquiry did not affirm an affidavit.
The State had given no
information as to \Vhy this long delay occurred.
Because the pe"rsonal
liberty of the citizen was under consideration the State Government shoultl
have given utmost information to the cou'rt.
The inescapable conclusion
in the present case was that the appropriate authority failed to discharge
its constitutional obligation _by inactivity and lack of independent judgment.
The petition must therefore be allowe<l. [232 F-G]
ORIGINAL JURISDICTION : Writ Petition No. 258 of 1969.
Petition under Art. 32 of the Constitution of India for a writ
in the nature of habeas corpus.
S. Chakravarty, for the petitioner.
S. P. Mitra, G. S. Chatterjee for Sukumar Basu, for the
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respondent.
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ORDER
We have heard learned counsel for the pcti•ioner as well as
counsel for the State of West Bengal.
In our opinion, the detention of the detenu suffers from great infirmity as pointed out by
this Court in Sk. Abdul Karim and others v.
The State of Wesr
Bengal (Writ Petitio.n No. 327 of 1968 decided on January 31.
1969). The petitioner is ordered to be released forthwith.
We
shall give our reasons for the release later.
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JAYANARAYAN I'. WEST BENGAL (Ray, J.)
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Ray, J. The petitioner made an application under Article 32
of the Constitution requiring the respondent. to show cause as to
why the petitioner should not be released.
At the conclusion of the hearing of this petition on 15 October, 1969 we directed the release of the petitioner and stated that
the reasons would be given later -0n.
We are stating our reasons
for the order.
On 5 June, 1969 the District Magistrate, 24-Parganas, West
Bengal made an order under section 3(2) of the Preventive Detention Act, 1950 (hen;inafter called the Act) for the detention
of the petitioner.
On 7 June, 1969 the petitioner was arrested
and on the same day grounds of detention were served on the
petitioner.
On 9 June, 1969 information was given to the State
Government.
On 14 June, 1969 the Governor was pleased to
.1pprove the order of detention and on the same day the Governor sent the report to the Central Government under section 3(4)
of the Act together with the grounds of detention.
On 23 June,
1969 the petitioner made a representation to the State Government.
On
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J u!y,
1969
the
State
Gnvermnent
placed the case of the petitioner before the
Advisory Board
. under section 9 of the Act together with the said representation.
On 13 August, 1969, the Advisory Board after consideration elf
the materials placed before it was of the opinion that there was
sufficient cause for the detention of the petitioner.
On I 9 August.
1969 the State Government is alleged to have rejeced the petitioner"s representation.
By an order dated 26 August. 1969 the
Governor was pleased to confirm the order of detention of the
petitioner.
The only contention on behalf of the
petitioner was
that
though the petitioner made the representation on 23 June, 1969
the Government did not consider the said representation
with
reasonable and proper expedition.
On behalf of the State of West Bengal it was contended f.r~t
that the matter was referred
to the Advisory Board along with
the petitioner's representation and the State Government considered
the report of the Advisory Board, and, secondly. the affidavit of
Rathindra Nath Sen Gupta affirmesl on 19 September, 1969 will
show that enquiries were made after the petitioner had made the
representation and the Government therefore considered the representation.
The affidavit of Rathindra Nath Sen Gupta is of little value.
The deponent stated first that he caused further enquiries to be
made through the Superintendent, Railway Police after he had
received the representation of the petitioner from the State Gnvernment, secondly, that the Superintendent, Railway Police took a
little time to submit a report, thirdly, th() deponent after being
228
SUPREME COURT REPORTS
[1970] 3 s.c.R.
satisfied about anti-social activities of the petitioner informed the
State Government on 12 August, 1969 to. the effect thai he did
!lot recommend the release of the petitioner, and, fourthly, that
the State Government on 19 August, 1969 rejected the petitioner's
representation.
There is no affidav.t by the Superintendent of
Police, Sealdah who is alleged to have made ,further enquiries.
One will look in vain into the affidavit of the deponent to find
out as to when the deponent entrusted the said enquiry to the
Superintendent, Railway Police and fUrther as to what time was
taken for enquiry and report.
The Court is entitled to know the
time and the steps taken along with the nature of the enquiry.
The importance of the matter lies in the fact that it is a case of
preventive detention and the personal liberty of a citizen is under
consideration of the State Government.
The State Government
is, therefore, bound to give the utmost information to this Court.
The Preventive D~tention Act confers powers on· the Central
Government or the State Government to make an order for deten1 ion of a person.
The order of detention can be passed by the
District Magistr:i_te or the Additional District Magistrate or the
Commissioner of Police or the Collector.
When an order is made
hy any of these officers he shall forthwith report the fact to the
State Government to which he is subordinate together with the
grounds and no such order shall remain in force for more than
12 days after the making of the order unless it is approved by
! he State Government.
The State Government shall, as soon as
may be, report the fact to the Central Government.
Under sect ion 7 of the Act grounds of order of detention are to be disclosed
to the persons affected by the order not later than 5 days from
I he date of detention and the Act further requires to afford the
person affected by the order the earliest opportunity of making a
representation against the order to the appropriate Government.
In the present petition, we are concerned with the scope and intent
of section 7 of the Act in regard to the representation made by the
petitioner.
Section 8 _<lf the Act_ contemplates c<?nstitution of Advisory
Boards.
Seclion 9 reqmres the appropnate Government within
30 days from the date of detention to place the grounds and the
repre,entation. if any. before the Advisory Board.
The Advisorv
Board under section I 0 is to consider the materials and if
th~
Board considers it essential to. hear the person concerned who
desires to be _heard, the Board will hear the person and make the
report.
Section I 1 of the Act states that the Government ma\·
confirm the detention orde'. if the Advisory Board gives an opiniol1
to that effect.
Under section 13 of the Act the State Government
may revoke an order passed by its officers and the Central Government may revoke an order made by. the State Government.
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JAYANARAYAN V. WEST BENGAL (Ray, J.)
229
Counsel on behalf of the State of West Bengal contended that
the matter was referred to the Advisory Board along with the representation of the detenu dated 23 June, 1969 and the State
Government on 19 August, 1969 rejected the representation of
the petitioner and thus discharged its duty.
This contention has
to be examined in the light of Article 22 of the Constitution and
the provisions of the Act.
There have been five recent decisions of this Court on the
provisions of this Act particularly in regard to the right of the
detenu to have his representation considered by the appropriate
Government and the obligation of the appropriate Government in
that behalf. In Sk. Abdul Karim & Ors. v. The State of West
Bengal(') this Court held that the appropriate Government could
not be said to discharge the obligation merely by forwarding the
representation of the detenu to the Advisory Board.
Article 22
of the Constitution guarantees the right of a detenu to have a proper
consideration of the representation by the appropriate authorit}.
In the case of Pankaj Kumar Chakravarty & Ors. v. The State
of West Bengal(') this Court put in the forefront the distinction
between the twin obligations of the appropriate authority under
sections 7 and 8 of the Act.
The appropriate Government ·is to
consider the representation of the detenu inasmuch as section 7
of the Act speaks of affording the detenu the earliest oppqrtunity
of making a representation against the order of detention.
Th~
obligation of the appropriate authority to consider the representation of the detenu under section 7 of the Act is entirely independent of any action of the Advisory Board or any consideration by
the said Board of the representation of the detenu.
In the cas~
of
Pankaj
Kumar
Chakrabarty( 2 )
this
Court
observed:
"The peremptory language in clause 5 of Article 22 of the Cmhtitution and section 7 of the Act would not have been necessa n if
the Board and not the Government had to consider the repres~n
tation".
There is. another reason why the appropriate Government is
required to consider on its own the representation of the detenu.
If the consideration· of the representation of· the detenu by the
Board sufficed the consititutional guarantee section 7 of the Act
would be robbed of its content.
ln Pankaj
Kumar· Chakrabarty's case(2) this Court emphasised the aspect that the representation was addressed to the Government and not directly to
the Advisory Board and it was frr the reason that the appropriat~
authority was to .;xercise its opinion and judgment in an independent and honest manner.
(I) [1969] 3 SC R. 479.
(2) (1970) I S.C.R.543.
230
SUPREME COURT REPORTS
[ 1970]3 S.C.R.
It, therefore, follows that the appropriate authority is to consiA
tier the representation of the detenu uninfluenced by any opinion
or consideration of the Advisory Board.
In the case of Khairul
Haque v. State of West Bengal (') this Court observed that "it is
implicit in the language of Article 22 that the appropriate Government. while discharging its duty to consider the representation
cannot depend upon the views of the Board on such representaB
tion''.
The logic behind this proposition is that the Go,·ernment
should immediately consider the representation of the delctrn before sending the matter to the Advisorv Board and further that
such action- will thflD- have
the
real "flavour· of independent
judgment.
In the case of Shyamal Clwkrabortv v. The Commissioner of
Police, Calcutta & Anr.(') one cf the contentions was that the·
detenu's representation was not considered by the Government.
There the facts were these.
The detenu was arrested on 13
'\ovember. 1968. On 6 January. 1969 the Governor was pleased
tn confirm the order of detention after the Advisorv Board had
given opiniOJ) that there was sufficient cause for detention of th~
petitioner.
The detenu thereafter on 13 or 16 January. 1969
made a representation.
On 1 April. l 969 the Commissioner of
Police informed the Home Department that he did not recommend ·the release of the petitioner.
On 28 March, 1969 notice
'was issued under Article 32 of the Constitution to the Commissioner of Police and to the State Government to show cause why
the petitioner should not be set at liberty.
It is curious that even
when Shyamal's case(') was heard in this
Court on 4 August
1969 the representation of the netitioner could not be
traced.
This Court did not accept the contention of the petitioner that
there was any breach of section 7 of the Act on consideration of
the facts thnt the detenu did not choose to make a representation
till after the Advisory Board had dealt with the matter and further
that the State Government was in the process of dealing with
the representation and the detenu did not state that the. grounds
nf detention were false.
This Court concluded in the case of
Shyamal Chakrahorty(') by stating that the State Government
would deal with the representation and pass a suitable order.
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When the present Writ Petition canie up for hearin2 on 30
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September. 1969 before the Bench consisting of Sikri. Mitter and
Reddy. JJ.. the matter was referred for decision by a larger Rench
to consider as to what would be the question of period within
whi.ch the Government could dispose of the representation of the
detenu becmise it wa< felt that there was an apparent
conijict
between the cases
of Shyama/ Chakraborty(')
o.nd Khairul
H
Haque(').
(ll
W.P. No. 246 of 1969 decid'd on 10-9-1969.
(1)
[t970] I S.C.R. 762.
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JAYANARAYAN V, WEST BENGAL (Ray,/.)
23 L
In view of the fact that there is a fundamental right o(j'he
deten\r to have the representation consicjered by the appropnat~
Government such right will be rendered meaningless if the Government will not deal with the matter expeditiously but at its own
\\'i!I .and convenienc,e. · In the case of Khairul l;laque(')
the
peticioner made a representation on 23 June, 1969.
The Advisory
Board made its report ~m 11 August,,1969.
On 12 August, 1969
the Governor confirmed the order of detention.
On 29 August.
1969 Che Governor rejected the petitioner's representation.
The
delay was not explained in the case.
The· disposal of the representotion by the Gov'ernment after the receipt of the Report of
the Advisory Board was found by this Court to raise a doubt there
"hether the Government considered the
representation in
an
independent manner.
This independent consideration by the appr,1priate Government is implicit in Article 22 of the Constitution.
In ,the case of Durga Show and Ors.(") three petitioners were
set at liberty.
There the representation of one delenu was recci·;ed on 29 May, 1969, and wa,; rejected OI) 11 August, 1969.
In another case the representatioo o( the detenu _was
recE_ived
on I 8 June. I 969 and was' r.ejected by the Governm·enT on I 6
August, I 969.
Jn the third case the representation of the detentt
was received on 28 June •. 1969 and was rejected, on 14 July, 1969.
In the case of Durga Show and Ors.(') the opinion of this Court
in the case of Sk. Abdut Karim(") was re-stated by emphasisingthe legal obligation of the appropriate Govern111ent to consider
the representation cf the detenu "as soon as it is received by it".
It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of
the
detenu as early as possible.
The appropriate Government itself
is bound to consider the representatio9 as expeditiously as possible.
The reason for immediate consideration of the representation i'
too obvious to be stressed.
The personal liberty of a person is
m stake.
Any delay would not only be an irresponsible act on
the part of lhe apprqpriate authority but also unconstitutional because•the Constitution enshrines the fundamental right of a detenu
to have his representation considered and it is imperative that'
when the liberty of a person is in peril immediate action shoukf
be taken by the relevant authorities.
No definite time can be laid, down within. which a representation of a detenu should be dealt .with save and except that it h
a constitutional right of a deJenu to have his representation considered as expeditiously as possible.
It will depend upon the facts
(I) W.ij, No. 246 or t969 ~<eided on 10-9-1969.
(2) W,f'-. N'"1. 198, 205 and.206or1969 dccidcdoo 2-9-1969 •
. (3) '[1~69l l S. C. R. 479
232
SUPREME COURT REPORTS
[ 1970] 3 S.C.R.
<tnd circumstances of each case whether the appropriate GovernA
ment has disposed of the case as expeditiously as 'possible for
otherwise in words of Shelat, J. who spoke for this Court in the
case of Khairul Haque(') "it is obvious that the obligation to
furnish the earliest opportunity to make a representation loses both
its purpose and meaning-":
Broadly stated, four principles are to be followed in regard
to representation of detenus.
First, the appropriate authority is
bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early a:;
possible.
Secondly, the consideration of the representation of the
detenu by the appropriate authority is entirely independent of
any action by the Aavisory Board including the consideration Of
the representation of the detenu by the Advisory Board.
Thirdly,
there should not be any delay in the matter of consideration. ·It
in true that no hard and fast rule can be laid down as· to the
measure of time taken by the appropriate authority for con.sideraB
c
tion but it has to be remembered that the Government has to be
vigilant in the gov11rnance of the citizens.
A citizen's right raises . D
a correlative duty of the State.
Fourthly, the approprjate Government is to exercise its opinion and judgment on the representation
before sending the case along with the detenu's representation to
the Adbisory Board. If the appropriate Government will release
the detenu the Government will not send the m:itter to the advisory Board. If however the Government will not release the
detenu the Government will send the case along with the detemt's
representa!ion to the Advisory Board. If thereafter the Advisory
Board will express an opinion in favour of release of the detenu
the Government will release the detenu. If the Advisory Board
will express any opinion against the release of the detenu th-:
Government may still exercise the power to release the detenu.
In the present case, the State of West Bengal is guilty of in-
.fraction of the constitutional provision not only by inordinatcdelay of the consideration of the representation but also by puttin~
off the consideration till after the receipt of the opinion of the
Advisory Board.
As we have already observed there is no explanation for this inordinate delay.
The Superintendent
who
made the enquiry. did not affirm an affidavit.
The State has given
no information as to why this long delay occurred. The inescapable conclusion in the. present case is that the al)propriate autho- ·
ritv failed to discharge its constitutional obligation by inactivity
«nd lack of independent judgment.
The petition is, therefore, allowed.
The petitioner is set at
liberty.
G.C.
Petition allowed.
(I) W.P. No. 246 of 1969 drci1<d on 10-9-1969.
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