# PANKAJ KUMAR CHAKRABARTY AND ORS v. STATE OF WEST BENGAL

- **Citation:** [1970] 1 S.C.R. 543
- **Court:** Supreme Court of India
- **Decided:** 1969-05-01
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pankaj-kumar-chakrabarty-and-ors-v-state-of-west-bengal-4657
- **Pages:** 8

## Headnote

A
PANKAJ KUMAR CHAKRABARTY AND ORS.
v.
STATE OF WEST BENGAL
May 1, 1969
B
[J.M. SHELAT, Y.. BHARGAVA, C. A. VAIDIALINGAM, JC. S. HEGDB
c
D
E
F
G
H
AND A. N. GROVER, JJ.]
Constitution of India, Art. 22(5)-Preventive Detention-Representation if to be considered by Government-Preventive Detention Act ( 4 of
1950), ss. 7 and 13.
The petitioners who were detained under ss. 3(l)(a) (ii) (iii) and
3(2) of the Preventive Detention Act, 1950, made representations to the
State Government against their detentions. The representations were made
after their cases were placed before the Advisory Board. Tho State Government without consideriog the representations,
passed them on to the
Advisory Board. The Board considered the case of the petitioners as well
as their representations to the Government and confirmed tho drder of
detention. The petitioners filed a writ of habeas corpus, challenging their
detentions on the grouiid that the State Government had failed to carry out
its obligation under Art 22(5) of the O:m.stitution to consider the representation.
On the questions (i)· whether there is on the
appropriate
Government the obligation to consider the representation made by detenue,
and (ii) if there is, whether it makes any difference where such a representation is made after the detenue's case is referred to the Advisory Board.
HELD : Setting ·aside the detention,
(i) Clause (5) of 'the Art. 22 not only contains the obligation of the
appropriate governmeQt to furnish the grounds and to give the earliest
opportunity to make 'it representation but also by necessary implication·
the obligation to co~ider that representation.
The expre,.ions "as soon
may be" and "the eai:liest 91'portunity" in that clause clearly iedicate that
the grounds are to be'~erved and that the opportunity to make a representation is provided for'· to enable the detenue to show that his detention is·
unwarranted and since: no other authority who should consider such representation is mentiQlled it can only be the detaining authority to whom it is
to be made which hllS to consider. [548 B, FJ
'Sk. Abdul Karim v. State of West Bengal,
[1969] 3 S.C.R. 479,
approved.
(ii) The Constitution could not have intend~d that a representation
under cl. (5) need' not be considered by the appropriate Government
where an Advisory Board is constituted. If that was the intention cl. (5)
would not have directed the detaining authority to afford the
earliest
opportunity to the delenue. In imposing the obligation to afford the oppor.
tunity to make a represPDtation cl. (5) does not make any distinction
between orders of detention for only three months or le5s, where there is.
no necessity of haviQg the opinion of an Advisory Board, and those for a
longer duration. The clause does not say that the representation is to be
considered by the appropriate Government in the former class of cases
and by the Board in lhe latter class of cases. The obligation of the Government oo consider •e representation is distinct from the obligation
to
constitute an Advisqry Board.
Whereas the Government considers the·
representation to ascertain whether the order is in conformity with its.
544
St:PREME COURT REPORTS
( 1970] I S.C.R.
power .under t~c relevant law,, t~e Boa~J co~s!ders such representation from
the point of v1.ew of also arnv1ng at us op1n1on ""'hether there is 3ufticien•
case for detention.
(549 B·C, B-H].
·
•
The provb.ions o~ lhe Act also strengthen the conclusion that the Govem~ent h_as to consider the representation.
If the reprec;entation '-"·as to:
cons1d~rahon 001 by the Go\ernmi!nt but by the Board 1here "'·as no
necessny. to provide in s. 7 that it should be addressed to the Goveramont.
Further, 11 could not have been the intention of Parliament that the Government ~ould pass an order under s. J 3 revoking or rnodifyin& an order of
detention without considering the represcn.tation v..·hich ha!! under
c;
7
been addrc>S<d to it [550 C-Fl
·
Sk. Abdul Karim v. Stc:te of WeJt Bengal,
(196

## Text

A
PANKAJ KUMAR CHAKRABARTY AND ORS.
v.
STATE OF WEST BENGAL
May 1, 1969
B
[J.M. SHELAT, Y.. BHARGAVA, C. A. VAIDIALINGAM, JC. S. HEGDB
c
D
E
F
G
H
AND A. N. GROVER, JJ.]
Constitution of India, Art. 22(5)-Preventive Detention-Representation if to be considered by Government-Preventive Detention Act ( 4 of
1950), ss. 7 and 13.
The petitioners who were detained under ss. 3(l)(a) (ii) (iii) and
3(2) of the Preventive Detention Act, 1950, made representations to the
State Government against their detentions. The representations were made
after their cases were placed before the Advisory Board. Tho State Government without consideriog the representations,
passed them on to the
Advisory Board. The Board considered the case of the petitioners as well
as their representations to the Government and confirmed tho drder of
detention. The petitioners filed a writ of habeas corpus, challenging their
detentions on the grouiid that the State Government had failed to carry out
its obligation under Art 22(5) of the O:m.stitution to consider the representation.
On the questions (i)· whether there is on the
appropriate
Government the obligation to consider the representation made by detenue,
and (ii) if there is, whether it makes any difference where such a representation is made after the detenue's case is referred to the Advisory Board.
HELD : Setting ·aside the detention,
(i) Clause (5) of 'the Art. 22 not only contains the obligation of the
appropriate governmeQt to furnish the grounds and to give the earliest
opportunity to make 'it representation but also by necessary implication·
the obligation to co~ider that representation.
The expre,.ions "as soon
may be" and "the eai:liest 91'portunity" in that clause clearly iedicate that
the grounds are to be'~erved and that the opportunity to make a representation is provided for'· to enable the detenue to show that his detention is·
unwarranted and since: no other authority who should consider such representation is mentiQlled it can only be the detaining authority to whom it is
to be made which hllS to consider. [548 B, FJ
'Sk. Abdul Karim v. State of West Bengal,
[1969] 3 S.C.R. 479,
approved.
(ii) The Constitution could not have intend~d that a representation
under cl. (5) need' not be considered by the appropriate Government
where an Advisory Board is constituted. If that was the intention cl. (5)
would not have directed the detaining authority to afford the
earliest
opportunity to the delenue. In imposing the obligation to afford the oppor.
tunity to make a represPDtation cl. (5) does not make any distinction
between orders of detention for only three months or le5s, where there is.
no necessity of haviQg the opinion of an Advisory Board, and those for a
longer duration. The clause does not say that the representation is to be
considered by the appropriate Government in the former class of cases
and by the Board in lhe latter class of cases. The obligation of the Government oo consider •e representation is distinct from the obligation
to
constitute an Advisqry Board.
Whereas the Government considers the·
representation to ascertain whether the order is in conformity with its.
544
St:PREME COURT REPORTS
( 1970] I S.C.R.
power .under t~c relevant law,, t~e Boa~J co~s!ders such representation from
the point of v1.ew of also arnv1ng at us op1n1on ""'hether there is 3ufticien•
case for detention.
(549 B·C, B-H].
·
•
The provb.ions o~ lhe Act also strengthen the conclusion that the Govem~ent h_as to consider the representation.
If the reprec;entation '-"·as to:
cons1d~rahon 001 by the Go\ernmi!nt but by the Board 1here "'·as no
necessny. to provide in s. 7 that it should be addressed to the Goveramont.
Further, 11 could not have been the intention of Parliament that the Government ~ould pass an order under s. J 3 revoking or rnodifyin& an order of
detention without considering the represcn.tation v..·hich ha!! under
c;
7
been addrc>S<d to it [550 C-Fl
·
Sk. Abdul Karim v. Stc:te of WeJt Bengal,
(1969]
3 S.C.R.
.+79,
approved.
0RIGISAL Jt:R1so1cnos : Writ Petitioo. No. 377 of 1968.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
S. N. Prasad, for the petitioners Nos. 15 and 36.
S11kumar Basu, for the respondent.
R. S. Garg and A. K. Gupta, for interveners Nos. I Io 5.
Niren De, A110rncy-General. R. II. Dhebar and S. P. Nayar.
for intervener No. 6.
The Judgment of the Court was delivered by
Shdal,
J.
3 7
persons detained
under
s.
3f I 1«: 1;:i •
and
(iii)
read
with
s. 3(2)
of
the
Preventive !),,,,,_
tion
Act,
JV
of 1950
filed
this
petition
against otJ"'
of detention passed against them by the
District
Magistr~te<
of Howrah, Midnapore and Purulia, West Bengal.
We are •.J\\·
ever, concerned only with Subodh Chandra Barik and G1 :1iram
Gope, petitioners 15 and 36, as the rest of them have sin~·~ then
been released.
The petition came up for hearing on April 11.
1969 before Si.kri and Bachawat, JJ. who referred it to a larger
Bench as the question involved in this petition was of sl'bstantial
importance. That is how this petition has come up befor, us for
disposal.
Petitioners in W. P. 448 of 1969. pending in this Court and
who are detained under the Jammu & Kashmir Preventive Deter.-
lion Act, applied for intervention as the point involved in thi;
petition also arises in their petition and that having been allowed.
Mr. Garg representing them appeared before us supporting the
contentions raised on behalf of petitioners 15 and 36.
The order of detention against petitioner Barik was passed
on March 23, 1968 by the District Magistrate, Midnapore. as he
was satisfied that with a view to preventing the
petitioner from
acting in a manner prejudicial to the maintenance of 'upplies and
~rvicct essential to the community it was necessary to detain him.
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P. K. CHAKRABAllTY v. 'WEST BENGAL. (She/at, J.)
545
A
Tiie District Magistrate reported to the State Government his
"" said order on March 27, and the Governor approved the same on
Aprill, 1968. As required bys. 3(4) of the Act, the GovernC'r
reported the case to the Central Government.
The petitioner was
taken into custody on September 16, 1968 when he was served
with the.said <Xder and the grounds therefor.
His case was placed
before the Advisory Board on September 21, 1968 under s. 9 of
the Act. On O~tober 21, 1968 !ht pelifi011er made his representaB
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tion against the said order to the· State Government.
On November 6, 1968 the Advisory Board, after considering his ·case as
also his said representation, gave its opinion that there was sufficient cause for his detention and thereupon the Governor, by his
order dated November 11, 1968, confirmed the said order. The
petitioner filed a petltion in the High Court at Calcutta against
the said order but that was dismissed.
As regards petitioner Guhiram Gape, the 'order of delention
was passed against him by the District Magistrate of Purulia on
August 29, 1968 on the ground th&t he was satisfied that he,- was
acting· in a manner prejudicial to the maintenance of supplies and
services essential to the community jlnd also to the maint~nance
of public order, i.e., under els. (ii) and (iii) of s. 3(1)(a). The
order was reported to the State Government on the same tlay.
The Governor approved the order on September 6,
1968 and
!Jlade his report to the Central Government on the same day.
The petitioner was taken into detention on August 29, 1968 after
he was served with the order and the grounds therefor.
His case
was placed before the Advisory Board on September 29, 1968.
The petitioner made his representation to' the State Government
on October 5, 1968.
On·N6vember. 6, 1968 the Board considered his case as also his said, representation and on its finding that
there was·sufficient cause for his detention the Governor confirmed the said order on,November 12, 1968. It is not necessary to
go into the various grounds furnished to the petitioners-. It is
sufficient to notice iliat in the affidavit in reply filed on behalf of
the State Government the detention of the two petitioners was
sought ·to be defended on the ground that the petitioners, taking.
advantage of the scarcity ;onditi,ons prevailing in-the State, were
indulging in illegitimate procuring, holding-and disP9sing of food
grains thereby defeating the 'J)Olicy of and the Vjttlous
control
·orders passed in that behalf by the-State Government.
We
may also μotice that the grounds ·supplied to the petitioners also
stated that the petitioners may make a represenfation to the 'State
Government as 'early as p()Ssible and that such representation_should be addressed to the officer specified therein.
,
It is 3n admitted fact that though the grounds furnished to
the detenues stated that they might, if they so desired, make a
representation to the State Government, the · State Government
546
SUPllBMB COUi.T UPOllTS
[1970] I S.c.ll.
did not c~
the representations and merely passed them on
to the AdVJSOry Board for its consideration. Praiumably that
was done as the representatious were made after the cases of the
two petitioDCES were referred to the board and the Government
felt that it shOUld not intmfeie with the decision of the Board by
~pressing its own views ooo way or the other on those representations. .The stand taken before us by counsel for the State was
: that neither Art. 22, els. 4 and 5, nvr any of the provisions of
the Act made it mandatory either expressly or by necessary implication for the State Government to consider the representations
and that it was sufficient for the Government to pass them on to
• the Board for its consideration while viewing the case of the two
detenues.
Counsel argued that the decision in Sk. Abdul Karim
&: Ors. v. State of West Bengal(') which has held that there will'
a legal obligation on the appropriate Government to consider
the represcatation of a detenue besides constituting an advisory
board and referring to such board the case of such a detenue for
its opinion was not warranted by the provisions of Art. 22 or the
provisions of the Act and that in any event according to that
decision consideration of such a representation by the appropriate
Government was obligatory only where it was made before and
not after the detenue's case was referred to the Board.
That
decision, therefore. said counsel, cannot help th.ese petitioners as
they had made their representations after their cases were referred
to the Advisory Board.
Besides, there was no practical utility,
said counsel, in the Government considering their representations
when their cases including the representations were being considered by the Board.
On the&e contentions two questions arise : I I ) whether there
is on the appropriate Government the obligation to consider the
representation made by a detenue, and (2) if there is, whether
it makes any difference where such a representation is made after
the detenue's case is referred to the Advisory Board.
In $k. Abdul Karim's case('), this Court, examining Art. 22
and the several provisions of the Act, held that (i) a person
detained .under the Act has a right to be funnished with the
grounds for his detention, (ii) that he has a right to make a
representalio• against the order for his
detention,
(iii) that
though cl. 5 of Art. 22 docs not in express language provide as
to whom such a representation is to be made and how the detaining authority is to deal with it, there is by necessary implication
an obligation on the part of the appropriate Government to consider it, and (iv) the setting up of an advisory board under s. 8
of the Act does not relieve the appropriate Government from its
obligation to consider the representation as soon as it is received
(I) (1969! 3 S.C.R. 479,
.
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P. K. CBAKMBARTY Y. WEST BENGAL (She/ltt, ./:)
.547
by it.
The Court held that. the. constitutional right to make a
representation guaranteed by Art. 22 ( 5) includes by necesSary
implication the constitutional" right to a
consideration of the
representation by the detaining authority to whom it is made and
repelled the contention that once an advisory boad was constituted for the consideration of the detenue's case it. was enough if'·ihe.
State Government were to send
the
representation
to
the
board for consideration without itself considering it.
The learned
Judges there gave several illustrations to show that such a qqnten-:.
tion was not only incorrect but would defeat the proViSioils ··i5f
Art. 22 ( 4) an>! ( 5) and those of the Act.
.
Article 21 guarantees protection against depriviuiop.~~f> J>4,'..
c·
sonal liberty sav~ that in accorc!ainCe with the procedure-·established by law. At first sight it would appear somewhat stran~. that·
the Constitution should make provisions relating to preventive.
detention immediately next after Art. 21. That appears to. h<tve
been done· because the Constitution recognizei; the necessity of .
preventive detention on extraordinary occasions when control ove~
public order, security of the country etc. are in danger of a breakdown.
But while recognizing the need of preventive detention
without recourse to the normal procedure according to 'law, it
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ptovides at the same time certain ·restrictions on the power of
detention both legislative and . executive which it considers
asminimum safeguards to ensure that the power of such detention
is not illegitimately or arbitrarily used.
The power of preventive
detention is thus acquiesced in by the Constitution as a necessary
evil and is, therefore, hedged in by diverse procedural safeguards
to minimise as much as possible the danger of its misuse. · It is
for this reason that Art. 22 has been given a place in the Chapter
on guaranteed rights.
Clause 1 of Art. 22 guarantees to a detenue the right to be
informed as soon as possible of the grounds for his detention and
the right to consult and of being defended by a legal practitioner
of his choice. Clause 2 imposes the obligation of his having to be.
produced before a Jllagistrate within 24 hours of his detention
and of not-being detained beyond that period without the authority
of such magistrate. Clause 3, however, withdraws these safeguard's
in the case of two• categories of persons, namely, an enemy alien
and . persons detained under a law providing for preventive deten-·
tfon.
But the next two clauses impose certain restrictions on and
safeguards against \he power of detention.
Clause 4 thus lays .
down that· no Jaw providing for suqh detention can authorise the ·
dete!!tiool foi:.more than 3 m.onths unless an advisory- bOOrd com- .
posed as therein stated certifies that there is Sl!fficient cause for
such detention and· such detention is in consonance with and
is
not
for a period
longer
than
the
one
provided '
by a Parliament Act made under cl.
7. ·ClaUSG' 7. autho-·
rises Parliament to make a
l<iw prescribing Ille circums-
-
'---·
548
SUPllBMB oouar UPOllTS
[1970] 1 &c.L
tances under which and the class or classes of cases in which a
person can be detained for more than 3 months without oblaining
the opinion of the advisory board and the maximum period for
which a person may in any such class or classee of cues bo.
detained and the procedure to be followed by the advisory board
ill the CDquiry under cl 4(a). Clause 5 impoe.:a on obligation on the detaining auihority to furnish t.o ihe person detained by
it grounds for his detention "as soon as may be" and give him ''the
. earliest opportunity" of making a representation against me order
of det~ntion passed against him.
These clauses thus clearly impose en the detaining authority the obligation to furnish to the
detenue as soon as may be the grounds for his detention, ~
obligation to afford him the earliest opportunity of making a ropresentation against the ..irder and the obligation to constitute
an advisory board and not to keep ihe detcnue in detention for
a period longer than 3 months unless before the expiry
of that period it has obtained the opinion of the board that there
is sufficient cause for such detention except in cases rrescribed
in a Parliament Act passed under and by virtue of c . 7. The
reason for the expressions "as soon as may be'' for furnishing the
grounds and "the earliest opportunity" for making a representation in these clauses is the extreme anxiety of ihe Constitution to
see that no person is detained contrary to the law enabling preventive detention or in breach of or countrary to the safeguards and
restrictions provided in these clauses. The grounds for detontion
are to be served on the detenue as· soon as may be and the earliest
opportunity to make a representation against the order is to be
given to him to enable him to protest against the order that he is
either wrongly or illega]\y detained.
It is true that cl. 5 does not in positive language provide as
to whom the representation is to be made and· by whom, when
made, it is to be considered.
But the expressions "as 900n as
may be" and "the earliest opportunity" in that clause clearly
indicate that the grounds are to be served and the opportunity to
make a representation are provided for to enable the detenue to
show that his detention is unwarranted and since no other authority who should consider such representation is mentioned it can
only be the detaining authority to whom it is to be made which
has to consider it.
Though cl. 5 does not in express terms say so
it follows from its provisions that it is the detaining authority
which has to ~ive to the detenue the earliest opportunity to make
a representation and to consider it when so made whether its
order is wrongful or contrary to the law enabling it to detain him.
Tho illustratio.ns given in Sk. Abdul Karim's case(')
show
that cT. S of Art. 22 not only contains the obligation of the appropriate -{;ovemment to furnish the grounds and to give the
(I) [1969] l S.C.R. 479
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P. K. CHAKRABARTY v. WEST BENGAL (She/at, I.)
549
earliest opportunity to make a representation but also by necessary
implication the obligation to consider that representation. Such
an obligation is evidently provided for to given an opportunity
to the detenue to show
and
a
corresponding
opportuuity
to the appropriate Government to consider any objections against
the order which the deten1:1e may raise so that no person is, through
error or otherwise, wrongly arrested and detained. If it was intended that such a representation need not be considered by the
Government where an advisory board is constituted and that
representation in such cases is to be considered by the board and
not by the appropriate Government, cl. 5 would not have directed
the detaining authority to· afford the earliest opportunity . to the
detenue.
In that
case
the
words
would
more·· appropriately have been that the authority should obtain the opiuion
of the. board after giving an opportuuity to the detenue to make
a representation and communicate the ~ame to the board. But
what would happen in cases where the detention is
for
less
than 3 months and there is no necessity of having the opinion of
the board ? If counsel's contention were to be right the representation in such cases would not have to be considered either by
the appropriate Government or by the board and the right of
representation and the corresponding obligation of the appropriate
Government to give the earliest opportunity to make such representation would be rendered nugatory. In imposing the obligation
to afford the opportunity to make a representation cl. 5 does
not make any distinction ;between orders of detention for only
3 months or less and those for a longer duration. The obligation
applies to both kinds of otders. The clause does not say that the
representation is to be considered by the appropriate Government
in the former class of cases and by the board in the later Class of
cases.
In our view it is clear from els. 4 and 5 of Art. 22 that
there is a dual obligation on the appropriate Government and a
dual right in favour of the detenue, namely, (1) to have his representation irrespective of the length of detention considered by
the appropriate Governmen.t and (2) to have once again that
representation in the light of the circumstances of the case considered by the board before it gives its opinon.
If in the light of
that representation the boilrd finds that there is no sufficient cause
for detention the Governnlent has to revoke the order of detention
and set at liberty the detenue.
Thus, whereas the Government
considers the repre•entation to ascertain whether the order is in
confonnity with its power .under the relevant law, the board considers such representation ftom the point of view of arriving at its
opinion whether there is. sufficient cause for detention. The obligation of the appropria,te Government to afford to the detenue the
oppertunity to make a representation and to consider that representation is distinct from the Government's. obligation to constitute
a board and to communicate the representation amongst other
!; 50
SUPREME COURT REPORTS
[1970] 1 S.C.R.
materials to the board to. enable it to form its opinion and to
obtain such opinion.
This conclusion is strengthened by the other provisions of the
Act. In conformity with els. 4 and 5 of An. 22, s. 7 of the Act
enjoins upon the ci~taining authority to furnish to the detenue
grounds of detention within five days from the date of his detention and to afford to the detenue the earliest opportunity to make
his representation to the appropriate Government. Sections 8 am!
9 enjoin upon the appropriate Government
to
constitute
an
advisory board and to place within 30 days from the date of the
detention the grounds for detention, the detenue's representation
and also the report of the officer where the order of detention is
made by an officer and not by the Government.
The obligation
under s. 7 is quite distinct from that under as. 8 and 9.
If the
representation was for the consideration not by the Government
but by the board only as contended, there was no necessity lb
provide rhat it should be addressed to the Government and not
directly to the board. · The Government could not have been intended to be only a transmitting authority nor could it have l:>een
contemplated
that it should sit
tight on that representation
and remit it to the board after it is constituted.
The peremptoiy language in cl. 5 of Art. 22 and s. 7 of the Act would not
have been necessary if the board and not the Government had to
consider the representatiQn. Section 13 also furnishes an answer
to the argument of counsel for the State. U'lder that section the
State Government and the Central Government are empowerecl to
revoke or modify an order of detention.
That power is evidently
provided for (() enable the Government to take appropriate action
where on a representation made to it finds that the order ir r;:.estion should be modified or even revoked.
Obviously, the intention of ParEament could not have been that the appropriate Government should pass an order under s. 13 without considering the
representation which has under s. 7 been addressed to it.
For the reasons aforesaid we are in agreemeni with the decision in Sk. Abdul Karim's case{').
Consequently,
the
petitioners had a constitutional right and there was on the State Government a corresponding constitutional obligation to consider
their representations irrespective of whether they
were
made
before or after their cases were referred to the Advisory Board
and that not having been done the order of detention against them
cannot be sustained. In this view it is not necessary for us to
examine the other objections raised against these orders.
The
petition is therefore allowed, the orders of detention against petitioners 15 and 36 are set aside and we direct that they should be
set at liberty forthwith.
Y.P.
Petition a/lawed.
(t) [t969) 3 S.C.R.479.
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