# MADAN MOHAN MONDAL v. IBE STATE OF WEST BENGAL

- **Citation:** [1973] 1 S.C.R. 761
- **Court:** Supreme Court of India
- **Decided:** 1972-08-02
- **Case number:** Writ Petition No. 215 of 1972
- **Bench:** I. D. Dua, H. R. Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/madan-mohan-mondal-v-ibe-state-of-west-bengal-5714
- **Pages:** 4

## Headnote

761
Preventive Detention-Maintenance of Internal Security Act, (26 of
1971), ss. 3(1) & (2) and Constitution of India, 1950, Art. 22(5)-Delay
in considering detenu's representation-Efiect of.
The petitioner was arrested pursuant to an order of detention under
ss. 3(1) (a)( iii) and 3(2) of the Maintenance of Internal Security Act,
1971. His representation to the State Government was rejected 33 days
after its receipt.
In a petition under Art. 32 challenging his detention,
the State Government explained the delay by stating that the go-slow
movement launched by the State Government employees and the increase
in the V!)lume of work relatina to detentions caused dislocation in the
work and consequentlal delay, It was also stated in the counter-41ffidavit that
the petitioner was a notorious thief of copper wires and that his activities
seriously disrupted the telegrapMc communication system of the railways
and dislocated railway service.
HELD : ( 1) If preventi\·e detention without trial is to be justified then
the Government must comply with due promptitude with all the -ntial requirements of the Constitution as also cif the Act relating to such
detention. The representation made by a detenu to the State has, therefore, to be considered as early as possible w;thout avoidable delay. This
is implicit in Art. 22(5) which prescribes the minimum procedure that
must be included in any law permitting preventive detention. When the
provisions of the Article or of a law relating to preventive detention pro·
viding for safeguards against arbitrary or illegal detention are not complied with, then, even if the detention may be valid ab i•itio it ceases to
be so as soon as violation of the provisions of the Article or of the law
occurs. The time within which the Government must consider the
representation will depend upon the circumstances of each case and no
rigid limit can be fixed; but any prima facie unreasonable delay must be
satisfactorily explained by the detaining authority if the order of deten·
lion is to be upheld. [763P-H. 764AJ
(2) In the present case, the explanation for the delay is vague and doe•
not indicate that there was any real or genuine obstacle to considering
the representation within reasonable time.
[764Bl
G
(2) In he present case, the explanation for the delay it vague and does
Court it would not advance the cause of justice to postpone the hearing
and await the decision of the High court. (7640-EJ
H
( 4) Legal safeguards against possible arbitrary exercise of power or
abuse or misuse of the provisions of the preventive detention laws demand compliance in all situation covered
thereby,
and to ign~ the
safeguards would be to ignore the mandate of the Constitution. Therefore
the allegations regarding the petitioner's activities
c:mn~ absolve ~
authorities concerned of their constitutional obligation to give appropriate
effect to the legal safeguards provided by the Constitution and the Act
14-LIS2Sup Cl/73
[764E-Hl
162
SUPREME COURT REPORTS
[1973] l S.C.11..
ORIGINAL JURISDICTION : Writ Petition No. 215 of 1972.
Under Article 32 of the Constitution of India for the enforcement of fundamental rights.
G. S. Rama Roo for the petitioner.
G. Mukhoty and G. S. Chatterjee for the respondent.

## Text

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MADAN MOHAN MONDAL
v.
IBE STATE OF WEST BENGAL
August 2, 1972
[I. D. DUA AND H. R. KHANNA, JJ.]
761
Preventive Detention-Maintenance of Internal Security Act, (26 of
1971), ss. 3(1) & (2) and Constitution of India, 1950, Art. 22(5)-Delay
in considering detenu's representation-Efiect of.
The petitioner was arrested pursuant to an order of detention under
ss. 3(1) (a)( iii) and 3(2) of the Maintenance of Internal Security Act,
1971. His representation to the State Government was rejected 33 days
after its receipt.
In a petition under Art. 32 challenging his detention,
the State Government explained the delay by stating that the go-slow
movement launched by the State Government employees and the increase
in the V!)lume of work relatina to detentions caused dislocation in the
work and consequentlal delay, It was also stated in the counter-41ffidavit that
the petitioner was a notorious thief of copper wires and that his activities
seriously disrupted the telegrapMc communication system of the railways
and dislocated railway service.
HELD : ( 1) If preventi\·e detention without trial is to be justified then
the Government must comply with due promptitude with all the -ntial requirements of the Constitution as also cif the Act relating to such
detention. The representation made by a detenu to the State has, therefore, to be considered as early as possible w;thout avoidable delay. This
is implicit in Art. 22(5) which prescribes the minimum procedure that
must be included in any law permitting preventive detention. When the
provisions of the Article or of a law relating to preventive detention pro·
viding for safeguards against arbitrary or illegal detention are not complied with, then, even if the detention may be valid ab i•itio it ceases to
be so as soon as violation of the provisions of the Article or of the law
occurs. The time within which the Government must consider the
representation will depend upon the circumstances of each case and no
rigid limit can be fixed; but any prima facie unreasonable delay must be
satisfactorily explained by the detaining authority if the order of deten·
lion is to be upheld. [763P-H. 764AJ
(2) In the present case, the explanation for the delay is vague and doe•
not indicate that there was any real or genuine obstacle to considering
the representation within reasonable time.
[764Bl
G
(2) In he present case, the explanation for the delay it vague and does
Court it would not advance the cause of justice to postpone the hearing
and await the decision of the High court. (7640-EJ
H
( 4) Legal safeguards against possible arbitrary exercise of power or
abuse or misuse of the provisions of the preventive detention laws demand compliance in all situation covered
thereby,
and to ign~ the
safeguards would be to ignore the mandate of the Constitution. Therefore
the allegations regarding the petitioner's activities
c:mn~ absolve ~
authorities concerned of their constitutional obligation to give appropriate
effect to the legal safeguards provided by the Constitution and the Act
14-LIS2Sup Cl/73
[764E-Hl
162
SUPREME COURT REPORTS
[1973] l S.C.11..
ORIGINAL JURISDICTION : Writ Petition No. 215 of 1972.
Under Article 32 of the Constitution of India for the enforcement of fundamental rights.
G. S. Rama Roo for the petitioner.
G. Mukhoty and G. S. Chatterjee for the respondent.
The Judgment of the Court was delivered by
Dua, J.-The petitioner was arrested on November 8, 1971
pursuant to the order of detention of the same date passed under
sub-s. (1) (a) (iii) read with sub-s. (2) of s. 3 of the Maintenance of Internal Security Act, 26 of 1971
(hereinafter called
the Act).
The grounds of detention were also served on him
and the matter reported to the State Government on that very
day.
On November 16, 1971 the State Government accorded
its approval and made the necessary report to the Central Government.
The case was placed before the Advisory Board on
December 3, 1971.
On December 6, 1971
the
petitioner's
representation was received by the State Government but it WM
considered on January 8, 1972 nearly 33 days after its receipt.
The Advisory Board gave its decision on January 13, 1972 and
the order of detention was affirmed by the State Government on
January 22, 1972.
The det.enu was communicated of this order
on January 25, 1972.
The only ground raised on behalf of the detenu before us is
that the State Government considered his
represen;ation
after
undue delay and that his detention must be considered to . have
become illegal on this ground.
The explanation given by the State for this delay is contained
in para 8 of the counter-affidavit and it reads :
". . . . . . . . the said representation of the detenupetitioner could not . be considered by the Siate earlier,
inter alia, on the following grounds : ·
(a) that the go-slow movement launched by the
State Government employees . 90metime
back
caused some dislocation in office work consequential increase in the pending work and delay
in disposal.
( b) that due to increase of the volume of work
relating to detentions under the said Act there
was considerable pressure of work and in consequence whereof disposal of urgent matters were
also delayed.
( c) that due to aforesaid grounds,
movement of
files w-..s delayed and the records were not
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MADAN MOHAN MONDAL v. WEST BENGAL (Dua, !.) 763
readily available and in this case there was a
delay of about 33 days in considering the representation of the petitioner.
I further state that the said delay was unintentional
and was caused for such reasons beyond the control
of tlie State Government. I submit that the said delay
may be condoned."
No doubt there was war with Pakistan from December 3,
1971 to December 17, 1971 when India unilaterally declared
ceasefire and in the State of West Bengal naturally things could
not be quite normal during the war days and perhaps also during
some time thereafter.
These are the facts of which this Court
can certainly take judicial notice.
But for reasons best known
to the respondent no reliance has been placed on this
circumstance while explaining the delay and our decision must not be
considered to imply any expression of opinion on the effect of
the 1971 Indo-Pak war. The question whether or not the IndoPak war. or its after-effects on the normal functioning of the
relevant Government departmentll reasonably
contributed
towards delay in the consideration of the detenu's representation
must be left open to be decided when appropriately raised in a
case.
We should like to repeat what seems to us to be well-settled
that too leisurely a manner of dealing with the statutory provisions relating to safeguards against arbitrary or illegal orders of
preventive detention requiring urgent attention, as is the case
before us, is wholly inconsistent with the fundamental import·
anee attached by our Constitution to the question of personal
freedom of the individual. If preventive detention without trial
is to be justified then the Government must comply with
due
promptitude with all the essential requirements of our Constitu·
tion as also of the Act relating to such detention. The represen·
talion made by the detenu to the State has, therefore, to
be
considered as early as possible, or in other words as expeditiously
as practicable without avoidable delay. This has been repeatedly
stated by this Court to be implicit in Art. 22 ( 5) of the Constitution. Article 22, it may be recalled, prescribes the minimum
procedure that must be included in any law permitting preventive detention and when the provisions of Art. 22 or of a law
relating to a preventive detention providing for safeguards against
arbitrary or illegal orders of detention are not complied with then
even if the detention may be valid ab initio it ceases to be valiu
as soon as violation of ~
provisions of Art. 22 or of the mandatory provisions of the law pennitting preventive
detention
occurs. No doubt no rigid limit of time can be fixed within
which the Government must consider the representation and the
764
SUPREME COURT REPORTS
[1973] 1 S.C.R.
question always requires determination on the facts and circumstances of each case. Any prima facie untl!asonable delay must
be satisfactorily explained by the detaining authority if the order
of detention is required to be upheld by this Court.· The explanation for the delay in the present case is so extremely vague that
we find it almost impossible to hold that due to the .rel\sons contained in the explanation embodied in the counter-affidavit there
was any real, genuine obstacle in the way of the Government in
con~idering the representation within reasonable time and before
t:1e expiry of what seems to be an inordinate delay of 33 days.
In the counter-affidavit it is averred that the petitioner appears
also to have applied to the Calcutta High Court for a writ of
habeas corpus (Crl. Misc. No. 958 of 1972) which is still ~nd
ing there.
Tile petitioner has iri his application in this Court
stated that he had "not appealed to the Hon'ble High Court at
Calcutta". The learned counsel for both sides in this Court were
unable to give any further details or information in this connection.
The State hflS not produced before us a copy of the writ
application nor could the counsel for the State tell us about the
date on which the writ petition in the Calcutta High Court was
filed by the detenu. In these circumstances we do not think it
would advance the cause of justice to decline to dispose of the
present petition under Art. 32 of the Constitution or to postpone
the hearing and await the decision of the Calcutta High Court.
We are not unmindful of the fact that in the counter-affidavit
it is stated that the detenu-petitioner is a notorious · tthief
of
copper wires and cables and after stating the objectionable activities of the detenu and after referring to the incidents mentioned
in the grounds of detention it is asserted that the detenu-petitioner's activities seriously disrupted telegraphic communication
systc,m of the railways and caused dislocation of railway service.
But this cannot absolve the authorities concerned of their constitutional obligation to give appropriate effect to the legal safeguards provided by the Constitution and the Act. Indeed it is
precisely in such a situation that the real strength and vigour of
the true democratic system of government like ours which
guarantees individual liberty is properly· tested. Legal safeguards
against possible arbitrary exercise of power or abu'Se or misuse
of the provisions of the preventive detention laws demand compliarice in all situations covered thereby including situations like
the 6ne suggested in the counter-affidavit. To ignore them would
. be to ignore the mandate of the Constitution.
This writ petition is accordingly allowed and the detenu-petitioner directed to be set at liberty fOrthwith.
V.P.S.
Petition allowed.
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