SARABJEET SINGH MOKHA versus THE DISTRICT MAGISTRATE, JABALPUR & ORS. on 29 October 2021

468

SUPREME COURT REPORTS

[2021] 11 S.C.R.

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SARABJEET SINGH MOKHA

v.

THE DISTRICT MAGISTRATE, JABALPUR & ORS.

(Criminal Appeal No. 1301 of 2021)

OCTOBER 29, 2021

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[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATHAND B V NAGARATHNA, JJ.]

Constitution of India: Art.22(5) – Preventive detention –Protection to undertrials and detainees – Held: Art.22(5) mandatesCthat (i) the authority making the order shall “as soon as may be”communicate the grounds on which the order has been made to theperson detained; and (ii) the detaining authority shall afford to theperson detained “the earliest opportunity of making a representationagainst the order” – Both these procedural requirements are mutuallyreinforcing – The communication, as soon as may be, of the groundsDof detention is intended to inform the detenu of the basis on whichthe order of detention has been made – The expression “as soon asmay be” imports a requirement of immediacy – The communicationof the grounds is in aid of facilitating the right of the detenu tosubmit a representation against the order of detention – TheEsignificance of Art.22 is that the representation which has beensubmitted by the detenu must be disposed of at an early date.

National Security Act, 1980: s.3(4) – Report to the StateGovernment – Held: Once an order of detention is made, the officermaking the order must forthwith report the fact to the StateFGovernment, together with the grounds on which the order has beenmade and other particulars which have a bearing on the matter.

National Security Act, 1980: s.8(1) – Communication ofgrounds of detention – Requirment of immediacy – Held: s.8(1) usesthe expression “as soon as may be”, qualifying it with the requirementthat the communication of grounds should ordinarily not be laterGthan five days and, in exceptional circumstances, for reasons to berecorded in writing not later than ten days from the date of detention– s.8(1) also embodies the second requirement of Art.22(5) ofaffording to the detenu the earliest opportunity of making arepresentation against the order to the appropriate government –HConstitution of India – Art.22(5).

National Security Act, 1980: s.8 – Delay in considering therepresentation – The requirement under s.8 of the disclosure andcommunication of the grounds of detention and the affording of anopportunity to the detenu of making a representation against suchan order to the appropriate government, is distinct from the referenceto the Advisory Board – In the instant case, in spite of awaiting thereceipt of the report of the Advisory Board which was eventuallyissued on 15 June 2021, the State Government took another onemonth in arriving at a decision on the appellant’s representationdated 18 May 2021 – By delaying its decision on the representation,the State Government deprived the detenu of the valuable right whichemanates from the provisions of s.8(1) of having the representationbeing considered expeditiously – The communication of the groundsof detention to the detenu “as soon as may be” and the affording tothe detenu of the earliest opportunity of making a representationagainst the order of detention to the appropriate government areintended to ensure that the representation of the detenu is consideredby the appropriate government with a sense of immediacy – TheState Government failed to do so – The making of a reference to theAdvisory Board could not have furnished any justification for theState Government to not deal with the representation independentlyat the earliest – The delay by the State Government in disposing ofthe representation and by the Central and State Government incommunicating such rejection, strikes at the heart of the proceduralrights and guarantees granted to the detenu – The law provides forsuch procedural safeguards to balance the wide powers granted tothe executive under the NSA – State Government cannot expect thisCourt to uphold its powers of subjective satisfaction to detain aperson, while violating the procedural guarantees of the detenuthat are fundamental to the laws of preventive detention enshrinedin the Constitution.

National Security Act, 1980: Failure to communicate decisionon the representation – Art.22(4), in guaranteeing a right to makea representation to the detenu creates a corresponding duty on theState machinery to render this right meaningful – The detenu’s rightto make a representation and for it to be considered expeditiouslywould ring hollow without a corollary right of the detenu to receivea timely communication from the appropriate government on thestatus of its representation- be it an acceptance or a rejection –

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AFailure in timely communication of the rejection of representationis a relevant factor for determining the delay that the detenu isprotected against under Art.22(5) – Failure of the Central and theState Government to communicate the rejection of the appellant’srepresentation in a time-bound manner is sufficient to vitiate theorder of detention.B

Allowing the appeal, the Court

HELD: 1. Right to make a representation: Constitutionalsafeguards and legislative scheme of the NSA

1.1 Article 22(5) of the Constitution mandates that (i) theCauthority making the order shall “as soon as may be”communicate the grounds on which the order has been made tothe person detained; and (ii) the detaining authority shall affordto the person detained “the earliest opportunity of making arepresentation against the order”. Clause 5 of Article 22Dincorporates a dual requirement: first, of requiring the detainingauthority to communicate the grounds of detention as soon asmay be; and second, of affording to the detenu “an earliestopportunity” of making a representation. Both these proceduralrequirements are mutually reinforcing. The communication, assoon as may be, of the grounds of detention is intended to informEthe detenu of the basis on which the order of detention has beenmade. The expression “as soon as may be” imports a requirementof immediacy. [Para 21][491-E-F; 492-A]

1.2 The communication of the grounds is in aid of facilitatingthe right of the detenu to submit a representation against theForder of detention. In the absence of the grounds beingcommunicated, the detenu would be left in the dark in regard tothe reasons which have led to the order of detention. Theimportance which the constitutional provision ascribes to thecommunication of the grounds as well as the affording of anopportunity to make a representation is evident from the use ofGthe expression “as soon as may be” in the first part in relation tocommunicating the grounds and allowing the detenu “the earliestopportunity” of availing of the right to submit a representation.Article 22(5) reflects a keen awareness of the framers of theConstitution that preventive detention leads to the detention ofHa person without trial and hence, it incorporates procedural safeguards which mandate an immediacy in terms of time. Thesignificance of Article 22 is that the representation which hasbeen submitted by the detenu must be disposed of at an earlydate. The communication of the grounds of detention, as soon asmay be, and the affording of the earliest opportunity to submit arepresentation against the order of detention will have noconstitutional significance unless the detaining authority dealswith the representation and communicates its decision withexpedition. [Para 22][492-B-E]

1.3 The provisions of the NSA subscribe to the mandate ofArticle 22(5). Section 3(4) contains a requirement that once anorder of detention has been made, the officer making the ordermust forthwith report the fact to the State Government, togetherwith the grounds on which the order has been made and otherparticulars which have a bearing on the matter. No such ordershould remain in force for more than twelve days, unless it hasbeen approved by the State Government. In the meantime, thisperiod is subject to the proviso which stipulates that where thegrounds of detention are communicated by the officer after fivedays (under Section 8) but not later than ten days from the dateof the detention, sub-section (4) will apply as if the words fifteendays stands substituted for twelve days. Upon the StateGovernment either making or approving the order under Section3, it is under a mandate under Section 3(5) to report the fact tothe Central Government within seven days, together with thegrounds on which the order has been made and other necessaryparticulars. [Para 23][492-E-H]

1.4 Under Section 10, the appropriate government has toplace the grounds on which the order of detention has been madewithin three days from the date of detention of the persontogether with a representation, if any, made by the person affectedby the order. The Advisory Board, under the provisions of Section11, has to submit its report to the appropriate government withinseven weeks from the date of detention order after consideringthe relevant materials. It may call for further information fromthe appropriate government, or any person, or even the personconcerned if they desire an opportunity to be heard in person.[Para 25][494-A-B]

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A1.5 When the Advisory Board has reported that in itsopinion there is a sufficient cause for the detention of a person,the appropriate government may approve an order of detentionand continue the detention of the person for such period as itthinks fit. On the other hand, where the Advisory Board reportsthat in its opinion there is insufficient cause for detention, theBappropriate government shall revoke the detention order andcause the person to be released forthwith. In terms of clause (a)and (b) of sub-section (1) of Section 14, both the State Governmentand the Central Government have the power to revoke an orderof detention. [Paras 27, 29][494-F; 495-E]C2. Delay in considering the representation

2.1 The requirement under Section 8 of the disclosure andcommunication of the grounds of detention and the affording ofan opportunity to the detenu of making a representation againstsuch an order to the appropriate government, is distinct fromDthe reference to the Advisory Board. [Para 33][496-C-D]

Jayanarayan Sukul v. State of West Bengal (1970) 1SCC 219 : [1970] 3 SCR 225; Haradhan Saha v. Stateof West Bengal (1975) 3 SCC 198 : [1975] 1 SCR 778;K.M. Abdulla Kunhi v. Union of India (1991) 1 SCCE476 : [1991] 1 SCR 102 – followed Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCC275 : [1980] 2 SCR 1095; Harish Pahwa v. State ofUttar Pradesh (1981) 2 SCC 710 : [1981] 3 SCR 276;Mohinuddin v. District Magistrate, Beed and OthersF(1987) 4 SCC 58 : [1987] 3 SCR 668; Ankit AshokJalan v. Union of India (2020) 16 SCC 127 : [2020] 2SCR 1047; Haji Mohd. Akhlaq v. District Magistrate1988 Supp. SCC 538, 540 – relied on.

2.2 In the present appeal, the order of detention was passedGon 11 May 2021 and the appellant was detained on 12 May 2021.The order of detention was approved by the State Governmenton 13 May 2021, upon which the State Government submittedthe order of detention to the Central Government on the sameday. On 18 May 2021, the detenu submitted a simultaneousH

representation before the District Magistrate, State Governmentand the Central Government. The representation wascommunicated by the District Magistrate to the State Governmentand the Central Government on 20 May 2021. According to theappellant, the records of the Department of Post and Telegraphindicate that service was effected on the Central Government on24 May 2021. However, the Central Government, in its counteraffidavit before the High Court, has submitted that it was receivedin the concerned section on 1 June 2021. [Para 41][503-F-G]

2.3 On 2 June 2021, the Central Government sought para-wise comments from the detaining authority. The DistrictMagistrate forwarded comments on 10 June 2021 which werereceived on 11 June 2021. The representation made by theappellant dated 18 May 2021, along with the comments of theDistrict Magistrate, were processed for consideration by theUnion Home Secretary on 14 June 2021. On 24 June 2021, theUnion Home Secretary rejected the representation of theappellant, which is alleged to have been communicated by awireless message to the detenu on 28 June 2021. There was aone-and-a-half-month delay on the part of the Central Governmentin considering the representation dated 18 May 2021 andrejecting the same only on 24 June 2021. [Para 42][504-A-C]

2.4 The appellant had also submitted a representationagainst the order of detention to the State Government on 18May 2021. An additional reply was filed by the District Magistrateon 12 August 2021 before the High Court. The District Magistratehaving received the representation on 18 May 2021,communicated it to the State Government and the CentralGovernment on 20 May 2021. The State Government rejectedthe representation, after the decision of the Advisory Board. Untilthe representation was rejected by the Advisory Board on 15June 2021, no steps had been taken by the State Government todeal with the appellant’s representation dated 18 May 2021. Inthe counter-affidavit of the District Magistrate before this Courtas well as in the written submissions supplied by the AAG, itappears that the representation was rejected by the StateGovernment on 15 July 2021. However, this Court has neitherbeen provided with a copy of such rejection or proof of AB

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Acommunication of this rejection to the detenu, nor an explanationfor the almost 60 day delay in considering the appellant’srepresentation. [Paras 43, 44][504-C-D, G-H; 505-A-C]

2.5 There is absolutely no reasonable basis for explainingthe circumstances in which the representation dated 18 May 2021Bwas not considered by the State Government until after theAdvisory Board had submitted its report on 15 June 2021. Theconsideration of the representation by the State Government isqualitatively different from the reference to the Advisory Board.This Court, Ankit Ashok Jalan had held that in State Governmentis not bound to wait on the Advisory Board’s report beforeCdeciding the representation and must do so, as expeditiously aspossible. In spite of awaiting the receipt of the report of theAdvisory Board which was eventually issued on 15 June 2021,the State Government took another one month in arriving at adecision on the appellant’s representation dated 18 May 2021.

DThe State Government did not furnish any valid reasons for eitherof the two courses of action. [Para 45][505-C-E]

2.6 By delaying its decision on the representation, theState Government deprived the detenu of the valuable rightwhich emanates from the provisions of Section 8(1) of havingEthe representation being considered expeditiously. Thecommunication of the grounds of detention to the detenu “assoon as may be” and the affording to the detenu of the earliestopportunity of making a representation against the order ofdetention to the appropriate government are intended to ensurethat the representation of the detenu is considered by theFappropriate government with a sense of immediacy. The StateGovernment failed to do so. The making of a reference to theAdvisory Board could not have furnished any justification for theState Government to not deal with the representationindependently at the earliest. The delay by the State GovernmentGin disposing of the representation and by the Central and StateGovernment in communicating such rejection, strikes at the heartof the procedural rights and guarantees granted to the detenu.The law provides for such procedural safeguards to balance thewide powers granted to the executive under the NSA. The State H

Government cannot expect this Court to uphold its powers ofsubjective satisfaction to detain a person, while violating theprocedural guarantees of the detenu that are fundamental to thelaws of preventive detention enshrined in the Constitution.[Para 46][505-F-H; 506-A-B]

3. Failure to communicate decision on the representation 3.1 The respondent could not furnish proof of the appellant’sreceipt of the Central Government’s rejection of representationdated 24 June 2021. The wireless message dated 28 June 2021,issued from the Ministry of Home Affairs of the CentralGovernment to the Home Department of the State Government,communicated the rejection of the representation submitted bythe detenu. The SP of the Central Jail, Jabalpur was directed toserve a copy meant for the detenu. The State Government wasalso directed to inform the detenu. Though in the writ petition asit was originally filed, there was no specific ground that therejection of the representation was not communicated to thedetenu, a specific ground to that effect was raised in the rejoinderfiled before the High Court. There is absolutely no materialcoming forthwith to indicate that the rejection of therepresentation by the Central Government was communicatedto the detenu. [Para 47][506-D-F]

3.2 Article 22(4), in guaranteeing a right to make arepresentation to the detenu, understandably creates acorresponding duty on the State machinery to render this rightmeaningful. The detenu’s right to make a representation and forit to be considered expeditiously would ring hollow without acorollary right of the detenu to receive a timely communicationfrom the appropriate government on the status of itsrepresentation- be it an acceptance or a rejection. [Para 49][507-B-C]

State of Punjab v. Sukhpal Singh (1990) 1 SCC 35 :[1989] 1 Suppl. SCR 420; Madan Lal Anand v. Unionof India (1990) 1 SCC 81 : [1989] 1 Suppl. SCR 733 –relied on.

Union of India v. Saleena (2016) 3 SCC 437 : [2016] 1SCR 373 – held inapplicable A

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A3.3 The AAG has furnished no reasons for the failure tocommunicate the State Government or Central’s governmentrejection of the appellant’s representation. This failure in timelycommunication of the rejection of representation is a relevantfactor for determining the delay that the detenu is protectedagainst under Article 22(5). Accordingly, the order of detentionBis invalidated on two grounds: first, the unexplained delay on partof the State Government in deciding the representation of theappellant and second, the failure of the Central and StateGovernments to communicate the rejection of the representationto the appellant in a timely manner. Once the order of detentionCstands invalidated, the consequential extensions would follow thesame course. [Paras 54, 55][509-F-G; 510-A-C]

Ankit Ashok Jalan v. Union of India 2020 (16) SCC127 : [2020] 2 SCR 1047; Harish Pahwa v.State ofUttar Pradesh 1981(2) SCC 710: [1981] 3 SCR 276;Raj Kishore Prasad v. State of Bihar 1982 (3) SCC 10;Wasiuddin Ahmed v. District Magistrate, Aligarh 1981(4) SCC 521 : [1964] 8 SCR 295; Biren Dutta v. ChiefCommissioner of Tripura AIR 1965 SC 596; Khaja BilalAhmed v. State of Telangana 2020 (13) SCC 632; AnshulJain v. The State of Madhya Pradesh WP No. 1118 of2021; Ghanshyam Upadhyay v. State of Uttar Pradesh2020 (16) SCC 811; Tanveer Patel v. State of MadhyaPradesh 2020 SCC Online MP 2021; Khaja BilalAhmed v. State of Telangana 2020 (13) SCC 632; SamaAruna v. State of Telangana (2018) 12 SCC 150 : [2017]4 SCR 52; Ramesh Yadav v. District Magistrate Etah(1985) 4 SCC 232; Lakshman Khatik v. State of WestBengal (1974) 4 SCC 1; Yumman Ongbi Lembi Liema v.State of Manipur (2012) 2 SCC 176 : [2012] 1 SCR 1;Rameshwar Shaw v. District Magistrate Burdwan AIR1964 SC 334 : [1964] 4 SCR 921; Ramveer Jatav v.State of Uttar Pradesh (1986) 4 SCC 726; Vijay NarainSingh v. State of Bihar (1984) 3 SCC 14 : [1984] 3SCR 435; PP Rukhiya v. Joint Secretary (2019) 20 SCC740; Pebam Ningol Mikoi Devi v. State of Manipur 2010

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(9) SCC 618 : [2010] 12 SCR 429; Rajendra Singh v.State of Uttar Pradesh 2007 (7) SCC 378 : [2007] 8SCR 834; Mohinder Singh Gill v. Chief ElectionCommissioner, New Delhi (1978) 1 SCC 405 : [1978] 2SCR 272; Rameshwar Shah v. District Magistrate[1964] 4 SCR 921; State of Punjab v. Sukhpal Singh(1990) 1 SCC 35 : [1989] 1 Suppl. SCR 420; PebamNingol Mikoi Devi v. State of Manipur (2010) 9 SCC618 : [2010] 12 SCR 429; State of Tamil Nadu v. Nabila(2015) 12 SCC 127: [2014] 12 SCR 405; SubhashBhandari v. District Magistrate (1987) 4 SCC 685 :[1988] 1 SCR 773; David Patrick Ward v. Union ofIndia (1992) 4 SCC 154 : [1992] 1 Suppl. SCR 26;Shafiq Ahmed v. District Magistrate (1989) 4 SCC 556: [1989] 1 Suppl. SCR 56 – referred to.

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Case Law Reference

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1982 (3) SCC 10[1964] 8 SCR 295AIR 1965 SC 5962020 (13) SCC 6322020 (16) SCC 8112020 (13) SCC 632[2017] 4 SCR 52(1985) 4 SCC 232(1974) 4 SCC 1[2012] 1 SCR 1[1964] 4 SCR 921(1986) 4 SCC 726[1984] 3 SCR 435(2019) 20 SCC 740

referred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred to

Para 14 (iii)Para 14 (iii)Para 14 (v)Para 14 (v)EPara 14 (viii)Para 14 (ix)Para 14 (ix)FPara 14 (ix)Para 14 (ix)Para 14 (ix)Para 14 (ix)GPara 14 (x)Para 14 (x)Para 14 (xi)

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FCRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1301 of 2021.

From the Judgment and Order dated 24.08.2021 of the High Courtof Madhya Pradesh, Bench at Indore in WP No.10085 of 2021.

GSidharth Luthra, Sr. Adv., Ashwani Kumar Dubey, Manish Kumar,Akshat Kumar, Lakshay Mehta, Ms. Ankita Tiwari, Mayank Nagar, Advs.for the Appellant.

Saurabh Mishra, AAG, Ms. Ankita Choudhary, Dy. AG, SunnyChoudhary, Advs. for the Respondents.

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SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE,JABALPUR & ORS.

The Judgment of the Court was delivered by A

DR. DHANANJAYA Y CHANDRACHUD, J.

AFacts.........................................................................3

BSubmissions of counsel.............................................9

CRight to make a representation: ConstitutionalBsafeguards and legislative scheme of the NSA..........17

DAnalysis..................................................................25

D.1Delay in considering the representation................25

D.2Failure to communicate decision on therepresentation.........................................................38

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EConclusion..............................................................43

1. By a judgment dated 24 August 2021, a Division Bench at theIndore Bench of the High Court of Madhya Pradesh rejected a petitionunder Article 226 of the Constitution of India challenging a detentionorder passed against the appellant under Section 3(2) of National SecurityAct 1980[1]. The detenu is in appeal.

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A Facts

2. The appellant is a Director of City Hospital, Jabalpur. On 10May 2021, FIR No. 252/2021 was registered at Police Station Omti,Jabalpur under Sections 274, 275, 308, 420 and 120B of the India PenalCode 1860[2]; Section 53 of the Disaster Management Act 2005; andSection 3 of the Epidemic Diseases Act 1897.The appellant was arrestedin connection with the FIR on 26 May 2021.After the investigation, afinal report under Section 173 of the Code of Criminal Procedure 1973[3]was submitted on 6 August 2021. The allegation against the appellant isthat in connivance with certain others, he procured fake Remdesivirinjections which were administered to patients during the Covid-19pandemic in order to make illegal profits thereby endangering the life ofthe general public.

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3. On 12 May 2021, the appellant was detained in pursuance ofan order of detention dated 11 May 2021 under Section 3(2) of the NSA,for a period of three months.

1 “NSA”2 “IPC”3 “CrPC”

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A4. It is alleged that the Police Station of ‘B’ Division in DistrictMorbi of Gujarat seized fake Remdesivir injections from a factory wherethey were manufactured and an FIR was registered in that regard. On10 May 2021, the statement under Section 161 of the CrPC of a co-accused by the name of Devesh Chaurasia, who was running a pharmacyin the hospital owned by the appellant, was recorded to the effect thatBthe appellant had procured fake Remdesivir injections without a bill. Theappellant is said to have collected the injections through a person namedPrakhar Kohli from Indore, who sent the cartons through a transportercalled Amba Travels. The fake Remdesivir injections were stated tohave been administered to 50 patients at the City Hospital on 30 AprilC2021. In his statement under Section 161 of the CrPC recorded on 10May 2021, Prakhar Kohli stated that the appellant’s son had on 21 April2021 asked him to send the fake Remdesivir injections from Indore toJabalpur. Prakhar Kohli was made to speak to the appellant in thatconnection. Prakhar Kohli is stated to have sent the fake injections throughAmba Travels, and these injections were received at Jabalpur by the co-Daccused, Devesh Chaurasia, on behalf of the appellant.

5. On 11 May 2021, the Superintendent of Police, Jabalpur[4] madea request to the District Magistrate to take action against the appellantunder the NSA. The SP reiterated the allegations against the appellantof having procured and administered fake Remdesivir injections to Covid-E19 patients. The appellant is alleged to have procured 500 injectionsworth Rs.15 lakhs. The SP stated that the newspapers had widelyreported that there was a public outcry following the appellant’s actions,which were likely to disturb the public order. Following therecommendation of the SP, the District Magistrate passed an order onF11 May 2021 under Section 3(2) of the NSA, detaining the appellant fora period of three months. The grounds of detention which were suppliedto the appellant were to the following effect:

(i) Spurious Remdesivir injections had been administered topatients which resulted in several untimely deaths; G(ii)The spurious injections had caused casualties which hadbeen reported in the newspapers;

(iii) There was anger and resentment in the public in Jabalpurand its adjoining districts which may explode at any time; H4 “SP”

(iv) The appellant had criminal antecedents but had beenacquitted in certain cases due to his ‘money power’. Thecriminal cases against the appellant were:

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(a) FIR No. 252 of 2021 dated 10 May 2021, relating tothe sale of spurious Remdesivir injections in the midstof the Covid-19 pandemic;B

(b) Crime No. 400 of 2004 dated 23 May 2004 underSections 395, 397, and 120B of the IPC, and Sections25 and 27 of the Arms Act 1959 registered at PoliceStation Gorakhpur, in which the appellant wasaccused of attacking a person with deadly weapons.The appellant was acquitted in this case; C

(v) City Hospital and Research Centre owned by the appellanthad ordered 500 fake Remdesivir injections worth Rs.15lakhs at the rate of Rs.3,000/- per piece by an invoice no.0063 dated 20 April 2021, which were procured by meansof fake bills from a manufacturing company situated inGujarat against whom an FIR had been registered by theGujarat Police; D

(vi) A public agitation and outcry had spread across the city ofJabalpur with news items being published leading to anapprehension of a law-and-order situation in the area; E

(vii) Fake injections had been procured from Indore and arrivedin Jabalpur through Amba Travels in collusion with DeveshChaurasia and the payment for these injections was madeby one Sapan Jain; F

(viii) In the wake of the Covid-19 pandemic, several cases werereported where the patients needed Remdesivir injections;and

(ix) Cheating patients for administering fake essential drugs isa punishable offence.

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6. The order of detention was communicated to the appellant on11 May 2021. The appellant was detained on 12 May 2021. TheGovernment of Madhya Pradesh[5] approved the order of detention on 13May 2021 in terms of the provisions of Section 3(4) of the NSA. The 5 “State Government”

AState Government submitted a report in regard to the order of detentionto the Government of India[6] on 13 May 2021. On 18 May 2021, theappellant submitted a representation[7] against the order of detention bothto the Home Department of the State Government and the Ministry ofHome Affairs of the Central Government. In terms of the provisions ofSection 10 of the NSA, the State Government submitted the grounds forBdetention and the representation of the appellant to the Advisory Boardconstituted under Section 10. The Advisory Board submitted its reportto the State Government under Section 11 on 15 June 2021 opining thatthere was sufficient cause for the detention of the appellant.

7. In its affidavit submitted before the High Court, the CentralCGovernment stated that it rejected the representation of the appellant on24 June 2021, which was communicated to the Superintendent of theJail and the State Government by a wireless message on 28 June 2021.Pursuant to the report of the Advisory Board, the State Governmentapproved the order of detention, under Section 12(1), on 29 June 2021.

D8. On 29 June 2021, the SP recommended to the District Magistrateto extend the order of detention which had initially been passed for aperiod of three months. By an order dated 5 July 2021, the DistrictMagistrate Jabalpur[8] extended the detention of the appellant by a furtherperiod of three months, to end on 12 November 2021 and forwarded theorder of extension to the State Government.E

9. Meanwhile, on 3 July 2021, the appellant instituted a petitionunder Article 226 of the Constitution to challenge the order of detention.The writ petition before the High Court was amended to challenge both-the original order of detention dated 11 May 2021 as well as the extensiondated 5 July 2021.F

10. On 15 July 2021, the State Government allegedly rejected thefirst representation of the appellant and extended the order of detentiontill 12 November 2021. The District Magistrate, by a letter dated 22 July2021, informed the appellant, who was in custody, of the extension ofthe order of detention by the State Government. Another representation[9]Gof the appellant against the extension of his detention was rejected bythe State Government on 5 August 2021 and was communicated to theappellant by the District Magistrate on the same day.

6 “Central Government”

7 “first representation”

8 “District Magistrate”

H9 “second representation”

11. The writ petition of the appellant was dismissed by the HighCourt by the impugned judgment on 24 August 2021. The Division Benchof the High Court, in upholding the detention order, inter alia, observedthat:

(i) There was no undue delay in sending the order of detention tothe State Government, as the order was passed on 11 May2021 and was sent to the State Government on 13 May2021;

(ii) A singular solitary act, of administering fake Remdesivirinjections in the present case, is sufficient to attract Section3 of the NSA;

(iii) The detention order as well as the affidavit before the HighCourt reflect the subjective satisfaction of the authorities ininvoking Section 3 of the NSA; and

(iv) The District Magistrate had applied their mind to the SP’srecommendation regarding the detention of the appellant,and the detention order was not passed mechanically,without reason.

12. Following the dismissal of the writ petition by the High Court,the appellant moved this Court in proceedings under Article 136 of theConstitution. Notice was issued by this Court on 20 September 2021.

13. During the pendency of the proceedings, by an order dated 30September 2021, the order of detention has been extended for a furtherperiod of three months, ending on 12 February 2022.

B Submissions of counsel

14. Mr Sidharth Luthra, senior counsel appearing on behalf of theappellant, has urged the following arguments:

(i) On 18 May 2021, the appellant’s son had made arepresentation to the District Magistrate, the StateGovernment and the Central Government, against thedetention order dated 11 May 2021:

(a) The Central Government incorrectly averred beforethe High Court that the rejection of representationdated 24 June 2021 was communicated to theappellant by wireless message on 28 June 2021. TheCentral Government furnished a copy of their rejectionof representation dated 24 June 2021, only in the form A

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484SUPREME COURT REPORTS

of an annexure in their counter affidavit dated 26July 2021 to the appellant’s writ petition before theHigh Court; and A

(b) The appellant’s representation dated 18 May 2021was forwarded by the District Magistrate on 20 MayB2021 and received by the Central Government on 24May 2021. Thereafter, the Central Governmentsought para-wise comments from the DistrictMagistrate and the State Government on 2 June 2021.The Central Government’s wireless message dated28 June 2021 rejecting the representation by orderCdated 24 June 2021, directed the Jail Superintendentto forward the appellant’s acknowledgement. Therespondents do not have a copy of thisacknowledgement since the appellant has neverreceived the rejection of his representation; D(ii)The State Government also did not furnish a reply to theappellant’s representation, allegedly rejected by it on 15 July2021,except in its additional reply that was filed before theHigh Court on 12 August 2021;

(iii) This Court has held that a delay in considering a detenu’srepresentation could be fatal to the detention order in AnkitEAshok Jalan v. Union of India[10], Harish Pahwa v. Stateof Uttar Pradesh[11], Raj Kishore Prasad v. State ofBihar[12] and Wasiuddin Ahmed v. District Magistrate,Aligarh[13].

(iv) The appellant was not served with a copy of the StateFGovernment’s approval of the detention order dated 13 May2021;

(v) Approval of the detention order and communication of therejection of representation should be made forthwith,according to this Court’s decisions in Biren Dutta v. ChiefCommissioner of Tripura[14]and Khaja Bilal Ahmed v.GState of Telangana;[15]

10 2020 (16) SCC 12711 1981 (2) SCC 71012 1982 (3) SCC 1013 1981 (4) SCC 52114 AIR 1965 SC 596H15 2020 (13) SCC 632

(vi) The High Court of Madhya Pradesh in Anshul Jain v.AThe State of Madhya Pradesh[16]interpreted Section 3(5)of the NSA Act to hold that original record produced fromthe office of the District Magistrate should contain the exactdate of dispatch and receipt by the Central Government ofthe order of approval of the State Government along withBgrounds. In this case, the Central Government had to seekthe aforementioned report from the District Magistrate;

(vii) The extension of the appellant’s detention under the NSAon 15 July 2021 for alleged black-marketing of Remdesiviris illegal, since the Explanation to Section 3(2) of the NSACstates that no order of detention can be made under it if theorder can be made under Prevention of Black Marketing& Maintenance of Supplies of Essential Commodities Act1980;

(viii) The appellant has relied on this Court’s decisions inDGhanshyam Upadhyay v. State of Uttar Pradesh[17]andthe Madhya Pradesh High Court’s decision in TanveerPatel v. State of Madhya Pradesh[18]to argue that mereallegations of media outrage or purported public agitationcannot be the basis of detention. Furthermore, since an orderunder Section 144 of the CrPC was in force at the time, theEground of public order could not be justified for detention;

(ix) The appellant was acquitted by the trial court in Case CrimeNo. 400/2004 and Case Challan No. 547/2004 underSections 395, 397, 120 of the IPC and Sections 25, 27 ArmsAct at PS Gorakhpur. Yet, the detention order dated 11 May2021 has relied upon this past antecedent without it havingany live or proximate link with the present allegations. Thisstale reliance on past antecedents to justify detention is inbreach of this Court’s decisions in Khaja Bilal Ahmed v.State of Telangana,[19] Sama Aruna v. State ofTelangana,[20]Ramesh Yadav v. District Magistrate F

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16 WP No. 1118 of 202117 2020 (16) SCC 81118 2020 SCC Online MP 202119 2020 (13) SCC 63220 (2018) 12 SCC 150

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AEtah,[21] Lakshman Khatik v. State of West Bengal,[22]Yumman Ongbi Lembi Liema v. State of Manipur[23]and Rameshwar Shaw v. District MagistrateBurdwan[24];

(x) The detention is based on a solitary action and ought to beBset aside, as held by this Court in Ramveer Jatav v. Stateof Uttar Pradesh[25]and Vijay Narain Singh v. State ofBihar[26];

(xi) A mere apprehension of the grant of bail in the FIR cannotbe the cause for detention, as held by this Court in PPCRukhiya v. Joint Secretary[27].In any event, thisapprehension is unfounded since the appellant has notapplied for bail;

(xii) There is no substantial evidence of death/harm due to theallegedly fake Remdesivir injections procured by theappellant. As held by this Court in Pebam Ningol MikoiDDevi v. State of Manipur[28]and Rajendra Singh v. Stateof Uttar Pradesh[29], statements recorded under Section161 of the CrPC cannot be relied on to pass a detentionorder;

(xiii) In view of this Court’s decision in Mohinder Singh Gill v.EChief Election Commissioner, New Delhi[30], the validityof the detention has to be seen on the grounds in the originaldetention order and cannot be supplemented by additionalgrounds;

(xiv) The extension of the order of detention on 15 July 2021 andF30 September 2021 is on vague and unjustifiable grounds.This violates the appellant’s right to life and personal libertyunder Article 21; and 21 (1985) 4 SCC 23222 (1974) 4 SCC 1G23 (2012) 2 SCC 17624 AIR 1964 SC 33425 (1986) 4 SCC 72626 (1984) 3 SCC 1427 (2019) 20 SCC 74028 2010 (9) SCC 61829 2007 (7) SCC 378H30 (1978) 1 SCC 405

(xv) The appellant had tested positive for Covid-19 and suffereda heart attack on 6 May 2021. Despite the appellant’s criticalhealth condition and medical advice, he was detained on 12May 2021.

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15. Mr Saurabh Mishra, Additional Advocate General[31] for theState of Madhya Pradesh, appearing on behalf of the respondents, hasurged the following submissions in support of the validity of the detentionorder:

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(i) NSA being a complete code, provides several safeguardsfor the detenu that have been duly observed:

(a) The District Magistrate’s detention order of 11 MayC2021 was communicated on the same day to theappellant, in compliance with the outer-limit of fivedays under Section 8(2) of the NSA. The detentionorder was duly approved by the State Governmenton 13 May 2021, in compliance with Section 3(4); (b)The State Government duly reported the appellant’sDdetention to the Central Government on 13 May 2021,within the seven-day time limit under Section 3(5) ofthe NSA. In compliance with Section 10, the StateGovernment also forwarded the detention order tothe Advisory Board. On 15 June 2021, the AdvisoryEBoard examined the record, under Section 11, andnoted that there was sufficient cause for detention.The State Government accordingly approved thedetention order on 29 June 2021 under Section 12(1);and D

(c) The appellant’s representation was considered andFdecided by the Central Government and StateGovernment in a timely fashion. The StateGovernment forwarded the appellant’s representationto the Central Government on 20 May 2021 and theservice was complete on 1 June 2021. The CentralGGovernment sought para-wise comments from theDistrict Magistrate on 2 June 2021. The DistrictMagistrate forwarded comments on 10 June 2021and they were received by the Central Governmenton 11 June 2021. After due consideration, the Central AGovernment rejected the appellant’s representationon 24 June 2021 and communicated it to him by awireless message dated 28 June 2021. The StateGovernment rejected the appellant’s representationon 15July 2021. In any event, the appellant has noturged the delay in consideration of its representationBbefore the High Court; A

(ii) It is well settled that the subjective satisfaction of thedetaining authority is not justiciable, as held by this Court inRameshwar Shah v. District Magistrate.[32 ]Neither canthe reasonableness of its satisfaction be questioned in acourt of law, nor can the adequacy of the material bescrutinized. The respondents relied on this Court’s decisionsin State of Punjab v. Sukhpal Singh[33] and Pebam NingolMikoi Devi v. State of Manipur[34]; C

(iii) When an order of preventive detention is challenged, theDdetaining authority does not have to prove an offence orformulate a charge. The justification for an order of detentionat best can be established on the basis of suspicion andreasonability, there being no criminal conviction on the basisof evidence, as held by this Court in State of Tamil Naduv. Nabila[35];E

(iv) The Covid-19 pandemic has resulted in devastating effectsworldwide. The conduct of the appellant, as the owner of aspecialty hospital selling spurious essential drugs, had causeda public outcry and a media outrage. Hence, in the subjectivesatisfaction of the detaining authority, the detention wasFrequired to prevent further sale of fake Remdesivir thatwould be prejudicial to public order;

(v) A valid order of detention can be based even on a solitaryact of commission and omission, as held by this Court inSubhash Bhandari v. District Magistrate[36]and DavidGPatrick Ward v. Union of India[37]; 32 (1964) 4 SCR 92133 (1990) 1 SCC 3534 (2010) 9 SCC 61835 (2015) 12 SCC 12736 (1987) 4 SCC 685H37 (1992) 4 SCC 154

(vi) Even if the appellant’s argument of stale reliance on thepast antecedents or any other ground were to succeed,Section 5A of the NSA provides for severability of thegrounds of detention and the rest of the order will sustain.This position in law has been accepted by this Court in ShafiqAhmed v. District Magistrate[38];

(vii) The present case is not a simple act of black marketing, butinvolves the purchase and administration of fake Remdesivirvials for Covid-19 patients. Hence, the Prevention of BlackMarketing and Maintenance of Supplies of EssentialCommodities Act 1980 does not apply;

(viii) There was no violation of the provisions of Section 3(5) ofthe NSA since the State Government approved the orderof detention on 13 May 2021 and immediately reported it tothe Central Government; and

(ix) In the counter affidavit filed before the High Court, theCentral Government has clearly stated that its orderrejecting the representation dated 24 June 2021 was dulycommunicated.

16. The rival submissions need to be analyzed.

C Right to make a representation: Constitutional safeguardsand legislative scheme of the NSA

17. Article 22 of the Constitution provides specific protections toundertrials and detainees in India. The framers of the Constitution, whowere also our freedom fighters, were conscious of founding a polity thatsecured civil and political freedoms to its citizens. Dr B R Ambedkar,while proposing the article, noted the necessity of retaining the conceptof preventive detention “in the present circumstances of the country”.[39]However, the discontinuity from the colonial regime lay in the introductionof strict countervailing measures that ensured that “exigency of libertyof the individual [is not] placed above the interests of the State” in allcases.[40]

38 (1989) 4 SCC 55639 Speech of Dr. B.R. Ambedkar, Constituent Assembly Debates, Vol. IX, 9.141.38 (15/09/1949)40Id.

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A18. The specific provisions relating to preventive detention underArticle 22 were framed in the following terms:

“(4) No law providing for preventive detention shall authorise thedetention of a person for a longer period than three monthsunless—

B(a) an Advisory Board consisting of persons who are, or havebeen, or are qualified to be appointed as, Judges of a High Courthas reported before the expiration of the said period of three monthsthat there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detentionCof any person beyond the maximum period prescribed by any lawmade by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions ofany law made by Parliament under sub-clauses (a) and (b) ofclause (7).

D(5) When any person is detained in pursuance of an ordermade under any law providing for preventive detention, theauthority making the order shall, as soon as may be,communicate to such person the grounds on which the orderhas been made and shall afford him the earliest opportunityof making a representation against the order.E(6) Nothing in clause (5) shall require the authority making anysuch order as is referred to in that clause to disclose facts whichsuch authority considers to be against the public interest to disclose.

(7) Parliament may by law prescribe—

F(a) the circumstances under which, and the class or classes ofcases in which, a person may be detained for a period longer thanthree months under any law providing for preventive detentionwithout obtaining the opinion of an Advisory Board in accordancewith the provisions of sub-clause (a) of clause (4); G(b) the maximum period for which any person may in any class orclasses of cases be detained under any law providing for preventivedetention; and

(c) the procedure to be followed by an Advisory Board in aninquiry under sub-clause (a) of clause (4).”

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19. The text of Article 22 enshrines certain procedural safeguards,many of which are otherwise available in the CrPC. In elevating thesesafeguards to a constitutional status, the framers imposed a specific“limitation upon the authority both of Parliament as well as [State]Legislature [to] not abrogate”[41] rights that are fundamental to India’sconstitution. Dr Bakshi Tek Chand, a conscientious dissenter to preventivedetention in peaceful times, proposed a further safeguard in the provisionof a right to make representation to the detenu,[42] which was eventuallyaccepted by the Constituent Assembly as a reasonablecompromise[43]Therefore, preventive detention in independent India is tobe exercised with utmost regard to constitutional safeguards.

20. This history of the framing of Article 22 is critical for thejudiciary’s evaluation of a detenu’s writ petition alleging, inter alia, adenial of the timely consideration of his representation. While severalarguments have been preferred by the appellant to argue for his releasefrom preventive detention, we are confining our analysis to the mostclinching aspect of this case- the failure of the Central Government andthe State Government to consider his representation dated 18 May 2021in a timely manner.

21. Article 22(5) of the Constitution mandates that (i) the authoritymaking the order shall “as soon as may be” communicate the groundson which the order has been made to the person detained; and (ii) thedetaining authority shall afford to the person detained “the earliestopportunity of making a representation against the order”[44].Clause 5 ofArticle 22 incorporates a dual requirement: first, of requiring the detainingauthority to communicate the grounds of detention as soon as may be;and second, of affording to the detenu “an earliest opportunity” of makinga representation. Both these procedural requirements are mutuallyreinforcing. The communication, as soon as may be, of the grounds ofdetention is intended to inform the detenu of the basis on which the 41 Speech of Dr. B R Ambedkar, supra note 37, 9.141.35; Speech of Alladi KrishnaswamiAyyar, Constituent Assembly Debates, Vol. IX, 9.141.229 (15/09/1949)

42 Speech of Dr. Bakshi Tek Chand, Constituent Assembly Debates, Vol. IX, 9.141.181(15/09/1949)

43 Constituent Assembly Debates, Vol. IX (16/09/1949)

44Article 22(5):When any person is detained in pursuance of an order made under anylaw providing for preventive detention, the authority making the order shall, as soon asmay be, communicate to such person the grounds on which the order has been made andshall afford him the earliest opportunity of making a representation against the order.

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Aorder of detention has been made. The expression “as soon as may be”imports a requirement of immediacy.

22. The communication of the grounds is in aid of facilitating theright of the detenu to submit a representation against the order ofdetention. In the absence of the grounds being communicated, the detenuBwould be left in the dark in regard to the reasons which have led to theorder of detention. The importance which the constitutional provisionascribes to the communication of the grounds as well as the affording ofan opportunity to make a representation is evident from the use of theexpression “as soon as may be” in the first part in relation tocommunicating the grounds and allowing the detenu “the earliestCopportunity” of availing of the right to submit a representation. Article22(5) reflects a keen awareness of the framers of the Constitution thatpreventive detention leads to the detention of a person without trial andhence, it incorporates procedural safeguards which mandate animmediacy in terms of time. The significance of Article 22 is that theDrepresentation which has been submitted by the detenu must be disposedof at an early date. The communication of the grounds of detention, assoon as may be, and the affording of the earliest opportunity to submit arepresentation against the order of detention will have no constitutionalsignificance unless the detaining authority deals with the representationand communicates its decision with expedition.E

23. The provisions of the NSA subscribe to the mandate of Article22(5). Section 3(4) contains a requirement that once an order of detentionhas been made, the officer making the order must forthwith report thefact to the State Government, together with the grounds on which theorder has been made and other particulars which have a bearing on theFmatter. No such order should remain in force for more than twelve days,unless it has been approved by the State Government. In the meantime,thisperiod is subject to the proviso which stipulates that where the groundsof detention are communicated by the officer after five days (underSection 8) but not later than ten days from the date of the detention, sub-Gsection (4) will apply as if the words fifteen days stands substituted fortwelve days. Upon the State Government either making or approvingthe order under Section 3, it is under a mandate under Section 3(5) toreport the fact to the Central Government within seven days, togetherwith the grounds on which the order has been made and other necessaryparticulars.H

24. Section 8 of the NSA contains statutory provisions governingthe disclosure of the grounds of detention. Section 8 is in the followingterms:

“8. Grounds of order of detention to be disclosed to persons affectedby the order.—(1) When a person is detained in pursuance of adetention order, the authority making the order shall, as soon asmay be, but ordinarily not later than five days and in exceptionalcircumstances and for reasons to be recorded in writing, not laterthan [ten days] from the date of detention, communicate to himthe grounds on which the order has been made and shall affordhim the earliest opportunity of making a representation againstthe order to the appropriate Government. (2) Nothing in sub-section(1) shall require the authority to disclose facts which it considersto be against the public interest to disclose.”

As noticed earlier, Article 22(5) of the Constitution provides forthe communication of the grounds on which the order of detention hasbeen made by the detaining authority “as soon as may be”. Section 8(1)uses the expression “as soon as may be”, qualifying it with the requirementthat the communication of grounds should ordinarily not be later thanfive days and, in exceptional circumstances, for reasons to be recordedin writing not later than ten days from the date of detention. Section 8(1)also embodies the second requirement of Article 22(5) of affording tothe detenu the earliest opportunity of making a representation againstthe order to the appropriate government.

25. Section 10 mandates a reference to the Advisory Boardconstituted under the provisions of Section 9:

“10. Reference to Advisory Boards.—Save as otherwiseexpressly provided in this Act, in every case where a detentionorder has been made under this Act, the appropriate Governmentshall, within three weeks from the date of detention of a personunder the order, place before the Advisory Board constituted by itunder section 9, the grounds on which the order has been madeand the representation, if any, made by the person affected by theorder, and in case where the order has been made by an officermentioned in sub-section (3) of section 3, also the report by suchofficer under sub-section (4) of that section.”

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AUnder Section 10, the appropriate government has to place thegrounds on which the order of detention has been made within threedays from the date of detention of the person together with arepresentation, if any, made by the person affected by the order. TheAdvisory Board, under the provisions of Section 11, has to submit itsreport to the appropriate government within seven weeks from the dateBof detention order after considering the relevant materials. It may callfor further information from the appropriate government, or any person,or even the person concerned if they desire an opportunity to be heard inperson.

26. Action on the report of the Advisory Board falls within theCambit of Section 12:

“12. Action upon the report of the Advisory Board.—

(1) In any case where the Advisory Board has reported that thereis, in its opinion, sufficient cause for the detention of a person, theDappropriate Government may confirm the detention order andcontinue the detention of the person concerned for such period asit thinks fit.

(2) In any case where the Advisory Board has reported that thereis, in its opinion, no sufficient cause for the detention of a person,Ethe appropriate Government shall revoke the detention order andcause the person concerned to be released forthwith.”

27. When the Advisory Board has reported that in its opinion thereis a sufficient cause for the detention of a person, the appropriategovernment may approve an order of detention and continue the detentionFof the person for such period as it thinks fit. On the other hand, wherethe Advisory Board reports that in its opinion there is insufficient causefor detention, the appropriate government shall revoke the detention orderand cause the person to be released forthwith.

28. Section14 provides for the revocation of detention orders inGthe following terms:

“14. Revocation of detention orders.—

(1) Without prejudice to the provisions of section 21 of the GeneralClauses Act, 1897 (10 of 1897), a detention order may, at anytime, be revoked or modified,—H

(a) notwithstanding that the order has been made by an officermentioned in sub-section (3) of section 3, by the State Governmentto which that officer is subordinate or by the Central Government; (b) notwithstanding that the order has been made by a StateGovernment, by the Central Government.

(2) The expiry or revocation of a detention order (hereafter in thissub-section referred to as the earlier detention order) shall not[whether such earlier detention order has been made before orafter the commencement of the National Security (SecondAmendment) Act, 1984 (60 of 1984) bar the making of anotherdetention order (hereafter in this sub-section referred to as thesubsequent detention order) under section 3 against the sameperson:

Provided that in a case where no fresh facts have arisen after theexpiry or revocation of the earlier detention order made againstsuch person, the maximum period for which such person may bedetained in pursuance of the subsequent detention order shall, inno case, extend beyond the expiry of a period of twelve monthsfrom the date of detention under the earlier detention order.”

29. In terms of clause (a) and (b) of sub-section (1) of Section 14,both the State Government and the Central Government have the powerto revoke an order of detention.

30. We shall now proceed to analyse the facts of the presentcase. At the outset, we would like to note that our analysis is limited tothe order of detention, the extension orders passed and the rejection ofthe first representation dated 18 May 2021 made by the appellant.

D Analysis

D.1 Delay in considering the representation

31. Mr Saurab Mishra, AAG has submitted that there was nounreasonable delay in considering the representation of the appellantdated 18 May 2021, which was communicated by the District Magistrateto the State and Central Government on 20 May 2021. Thereafter, theState Government awaited the report from the Advisory Board, to whichit had submitted the detention order and other information, and consideredthe comments of the District Magistrate, before formulating its opinion.Following the report of the Advisory Board, the State Government rejected A

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Athe representation of the appellant on 15 July 2021. Thus, therepresentation made by the appellant on 18 May 2021, was allegedlyrejected after almost two months on 15 July 2021 by the State Government.The State Government’s order rejecting the representation has not beenfiled before this Court.B32. The issue that arises for our consideration is whether theprocedural rights of the detenu emanating from Article 22 of theConstitution and Section 8 of the NSA were sufficiently protected in thepresent case.

33. The requirement under Section 8 of the disclosure andCcommunication of the grounds of detention and the affording of anopportunity to the detenu of making a representation against such anorder to the appropriate government, is distinct from the reference tothe Advisory Board. In Jayanarayan Sukul v. State of West Bengal[45],a Constitution Bench of this Court laid emphasis on the expeditiousconsideration of the representation by the appropriate government. InDthat case, a representation was made by the petitioner against an orderof detention passed under Section 3(2) of the Preventive Detention Act1950. The petitioner made a representation to the State Government on23 June 1969, which was rejected on 19 August 1969, as a referenceregarding the detention order was pending before the Advisory Board.EThe Court held that there was an inordinate delay in considering therepresentation of the petitioner. Justice AN Ray (as the learned ChiefJustice then was), speaking for the Bench, observed:

“18. It is established beyond any measure of doubt that theappropriate authority is bound to consider the representation ofthe detenu as early as possible. The appropriate Government itselfFis bound to consider the representation as expeditiously as possible.The reason for immediate consideration of the representation istoo obvious to be stressed. The personal liberty of a person is atstake. Any delay would not only be an irresponsible act on thepart of the appropriate authority but also unconstitutional becauseGthe Constitution enshrines the fundamental right of a detenu tohave his representation considered and it is imperative that whenthe liberty of a person is in peril immediate action should be takenby the relevant authorities.

[…]

H45 (1970) 1 SCC 219

20. Broadly stated, four principles are to be followed in regard torepresentation of detenus. First, the appropriate authority is boundto give an opportunity to the detenu to make a representation andto consider the representation of the detenu as early as possible.Secondly, the consideration of the representation of thedetenu by the appropriate authority is entirely independentof any action by the Advisory Board including theconsideration of the representation of the detenu by theAdvisory Board. Thirdly, there should not be any delay inthe matter of consideration. It is true that no hard and fastrule can be laid down as to the measure of time taken bythe appropriate authority for consideration but it has to beremembered that the Government has to be vigilant in thegovernance of the citizens. A citizen’s right raises acorrelative duty of the State. Fourthly, the appropriateGovernment is to exercise its opinion and judgment on therepresentation before sending the case along with the detenu’srepresentation to the Advisory Board. If the appropriateGovernment will release the detenu the Government will not sendthe matter to the Advisory Board. If however the Governmentwill not release the detenu the Government will send the casealong with the detenu’s representation to the Advisory Board. Ifthereafter the Advisory Board will express an opinion in favour ofrelease of the detenu the Government will release the detenu. Ifthe Advisory Board will express any opinion against the releaseof the detenu the Government may still exercise the power torelease the detenu.”

34. A Constitution Bench in Haradhan Saha v. State of WestBengal[46] made a clear distinction between the right of the detenu tohave their representation considered by the appropriate government andthe power which is entrusted to the Advisory Board. The Court observed:

“24. The representation of a detenu is to be considered. There isan obligation on the State to consider the representation. TheAdvisory Board has adequate power to examine the entire material.The Board can also call for more materials. The Board may callthe detenu at his request. The constitution of the Board shows ABC

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Athat it is to consist of Judges or persons qualified to be Judges ofthe High Court. The constitution of the Board observes thefundamental of fair play and principles of natural justice. It is notthe requirement of principles of natural justice that there must bean oral hearing. Section 8 of the Act which casts an obligation onthe State to consider the representation affords the detenu all theBrights which are guaranteed by Article 22(5). The Governmentconsiders the representation to ascertain essentially whether theorder is in conformity with the power under the law. The Board,on the other hand, considers whether in the light of therepresentation there is sufficient cause for detention.”

C35. In Frances Coralie Mullin v. W.C. Khambra[47] a Bench oftwo judges of this Court reiterated the principles enunciated in theprecedents of this Court by observing:

”5. […] We agree : (1) the detaining authority must provide theDdetenu a very early opportunity to make a representation, (2) thedetaining authority must consider the representation as soon aspossible, and this, preferably, must be before the representation isforwarded to the Advisory Board, (3) the representation must beforwarded to the Advisory Board before the Board makes itsreport, and (4) the consideration by the detaining authority of theErepresentation must be entirely independent of the hearing by theBoard or its report, expedition being essential at every stage.”

At the same time the Court observed that “the time– imperative[for consideration of representation] can never be absolute orobsessive.” This view was approved by a Constitution Bench of thisFCourt in K.M. Abdulla Kunhi v. Union of India[48].

36. The distinction between the consideration of a representationby the appropriate government and by the Advisory Board is well settled.In Haradhan Saha (supra) the Court noted that the State Government,while the considering the representation, has to ascertain whether theGorder is in conformity with the power under the law, while the Board onthe other hand, considers whether there is sufficient cause for detentionin the light of the representation.

47 (1980) 2 SCC 275H48 (1991) 1 SCC 476

37. A two-judge Bench of this Court, in Harish Pahwa v. Stateof Uttar Pradesh[49], held that a representation by a detenu must beconsidered expeditiously and can be kept pending, only when seekingassistance is absolutely necessary. This Court was considering a detentionorder dated 16 May 1980, a representation by the detenu dated 3 June1980 and the rejection of such representation on 24 June 1980, whichwas communicated to the detenu within two days. Justice AD Koshalheld the unexplained delay as fatal to the detention by holding the following:

“5. In our opinion, the manner in which the representation madeby the appellant has been dealt with reveals a sorry state of affairsin the matter of consideration of representations made by personsdetained without trial. There is no explanation at all as to why noaction was taken in reference to the representation on June 4, 5and 25, 1980. It is also not clear what consideration was given bythe government to the representation from June 13, 1980 to June16, 1980 when we find that it culminated only in a reference tothe Law Department, nor it is apparent why the Law Departmenthad to be consulted at all. Again, we fail to understand why therepresentation had to travel from table to table for six days beforereaching the Chief Minister who was the only authority to decidethe representation. We may make it clear, as we have done onnumerous earlier occasions, that this Court does not look withequanimity upon such delays when the liberty of a person isconcerned. Calling comments from other departments, seekingthe opinion of Secretary after Secretary and allowing therepresentation to lie without being attended to is not the type ofaction which the State is expected to take in a matter of such vitalimport. We would emphasise that it is the duty of the State toproceed to determine representations of the character abovementioned with the utmost expedition, which means that the mattermust be taken up for consideration as soon as such arepresentation is received and dealt with continuously (unless it isabsolutely necessary to wait for some assistance in connectionwith it) until a final decision is taken and communicated to thedetenu. This not having been done in the present case we have nooption but to declare the detention unconstitutional. We orderaccordingly, allow the appeal and direct that the appellant be setat liberty forthwith.”

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A38. In another decision in the case of Mohinuddin v. DistrictMagistrate, Beed and Others[50], the petitioner made tworepresentations, one to the Advisory Board and the other to the ChiefMinister. While the representation to the Advisory Board was considered,the representation dated 22 September 1986 was disposed of on 17November 1986. Rejecting the submission of the State Government,BJustice AP Sen, speaking for the two judge Bench, held:

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“6. […] When the life and liberty of a citizen is involved, it isexpected that the Government will ensure that the constitutionalsafeguards embodied in Article 22(5) are strictly observed. Wesay and we think it necessary to repeat that the gravity of the evilto the community resulting from anti-social activities can neverfurnish an adequate reason for invading the personal liberty of acitizen, except in accordance with the procedure established bythe Constitution and the laws. The history of personal liberty islargely the history of insistence on observance of the proceduralsafeguards.

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8. […] The counter-affidavit filed by Shri S.V. Joshi, DistrictMagistrate contains a bare denial in para that there was anyunreasonable delay in the disposal of the representation. […]

EIt is accepted that the representation made by the appellant to theChief Minister on September 22, 1986, forwarded by theSuperintendent, Aurangabad Central Prison on the 24th, wasreceived in the Home Department on the 26th which in its turnforwarded the same to the detaining authority i.e. the DistrictMagistrate on the same day i.e. 26th for his comments. The DistrictFMagistrate returned the representation along with his commentsdated October 3, 1986 which was received by the government onthe 6th. It is said that thereafter the representation wasprocessed together with the report of the Advisory Board andwas forwarded to the Chief Minister’s Secretariat where the sameGwas received on October 23, 1986. It is enough to say that theexplanation that the Chief Minister was “preoccupied with veryimportant matters of the State which involved tours as well astwo Cabinet meetings at Pune on October 28 and 29, 1986 and atAurangabad on November 11 and 12, 1986” was no explanation at all why the Chief Minister did not attend to the representationmade by the appellant till November 17, 1986 i.e. for a period of25 days. There was no reason why the representation submittedby the appellant could not be dealt with by the Chief Minister withall reasonable promptitude and diligence and the explanation thathe remained away from Bombay is certainly not a reasonableexplanation. In view of the wholly unexplained and unduly longdelay in the disposal of the representation by the State Government,the further detention of the appellant must be held illegal and hemust be set at liberty forthwith.”

39. In a recent decision of a three judge Bench of this Court inAnkit Ashok Jalan v. Union of India[51], Justice UU Lalit revisited thebody of precedent on the subject and noticed the qualitative differencebetween the consideration of a representation by the appropriategovernment on the one hand and by the Advisory Board on the other.Justice UU Lalit, speaking for himself and Justice Indu Malhotra (withJustice Hemant Gupta dissenting[52]) observed:

“16. These decisions clearly laid down that the consideration ofrepresentations by the appropriate Government and by the Boardwould always be qualitatively different and the power ofconsideration by the appropriate Government must be completelyindependent of any action by the Advisory Board. In para 12 ofthe decision in Pankaj Kumar Chakrabarty [Pankaj KumarChakrabarty v. State of W.B., (1969) 3 SCC 400 : (1970) 1 SCR543] it was stated that the obligation on the part of the Governmentto consider representation would be irrespective of whether therepresentation was made before or after the case was referredto the Advisory Board. As stated in para 18, this was stated so, asany delay in consideration of the representation would not only bean irresponsible act on the part of the appropriate authority butalso unconstitutional. The contingency whether the representationswere received before or after was again considered in para 29 ofthe decision in Haradhan Saha [Haradhan Saha v. State ofW.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816] .”

51 (2020) 16 SCC 127[“Ankit Ashok Jalan“]

52Justice Hemant Gupta’s dissent is on the ground that once the representation hasbeen referred to the Advisory Board by the appropriate government, it is a matter ofprudence for the detaining authority to consider the view of the Advisory Board andany delay owing to this process is not prejudicial to the detenu.

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Justice UU Lalit categorized the different stages for when arepresentation is received and disposed, with the underlying principlethat the representation must be expeditiously disposed of, at every stage:

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“17. In terms of these principles, the matter of consideration ofrepresentation in the context of reference to the Advisory Board,can be put in the following four categories:

B

17.1. If the representation is received well before the referenceis made to the Advisory Board and can be considered by theappropriate Government, the representation must be consideredwith expedition. Thereafter the representation along with thedecision taken on the representation shall be forwarded to andmust form part of the documents to be placed before the AdvisoryBoard.

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17.2. If the representation is received just before the reference ismade to the Advisory Board and there is not sufficient time toDdecide the representation, in terms of law laid downin Jayanarayan Sukul [Jayanarayan Sukul v. State of W.B.,(1970) 1 SCC 219 : 1970 SCC (Cri) 92] and HaradhanSaha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 :1974 SCC (Cri) 816] the representation must be decided first andthereafter the representation and the decision must be sent to theEAdvisory Board. This is premised on the principle that theconsideration by the appropriate Government is completelyindependent and also that there ought not to be any delay inconsideration of the representation.

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17.3. If the representation is received after the reference is madebut before the matter is decided by the Advisory Board, accordingto the principles laid down in Haradhan Saha [HaradhanSaha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816], the representation must be decided. The decision as well as therepresentation must thereafter be immediately sent to the AdvisoryBoard.

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17.4. If the representation is received after the decision of theAdvisory Board, the decisions are clear that in such cases thereis no requirement to send the representation to the Advisory Board.The representation in such cases must be considered withexpedition.

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18. […] it is well accepted that the representation must beconsidered with utmost expedition; and the power of theGovernment is completely independent of the power of theAdvisory Board; and the scope of consideration is also qualitativelydifferent, there is no reason why the consideration by theGovernment must await the decision by the Advisory Board. Noneof the aforesaid cases even remotely suggested that theconsideration must await till the report was received from theAdvisory Board.”

40. At this stage, it would be also important to note the principle ofmaking simultaneous representations by the detenu to the State andCentral Governments, as enunciated by a two-judge Bench of this Courtin Haji Mohd. Akhlaq v. District Magistrate[53]. In that case, thepetitioner challenged the validity of his detention under the NSA on theground that there was undue delay on part of the State Government toforward his representation to the Central Government. The Court notedthat the power which is conferred upon the Central Government to revokean order of detention under Section 14(1), even if it is made by the StateGovernment, would only have real meaning and content, if the detenu isentitled to make a representation to the Central Government. The failureof the State Government to comply with the request of the detenu foronward transmission of the representation of the Central Governmentdeprives the detenu of a valuable right to have the detention revoked bythe Central Government.

41. In the present appeal, the order of detention was passed on 11May 2021 and the appellant was detained on 12 May 2021. The order ofdetention was approved by the State Government on 13 May 2021, uponwhich the State Government submitted the order of detention to theCentral Government on the same day. On 18 May 2021, the detenusubmitted a simultaneous representation before the District Magistrate,State Government and the Central Government. The representation wascommunicated by the District Magistrate to the State Government andthe Central Government on 20 May 2021. According to the appellant,the records of the Department of Post and Telegraph indicate that servicewas effected on the Central Government on 24 May 2021. However,the Central Government, in its counter affidavit before the High Court,has submitted that it was received in the concerned section on 1 June2021.

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A42. On 2 June 2021, the Central Government sought para-wisecomments from the detaining authority. The District Magistrateforwarded comments on 10 June 2021 which were received on 11 June2021. The representation made by the appellant dated 18 May 2021,along with the comments of the District Magistrate, were processed forconsideration by the Union Home Secretary on 14 June 2021. On 24BJune 2021, the Union Home Secretary rejected the representation of theappellant, which is alleged to have been communicated by a wirelessmessage to the detenu on 28 June 2021. There was a one-and-a-half-month delay on the part of the Central Government in considering therepresentation dated 18 May 2021 and rejecting the same only on 24CJune 2021.

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A

43. The appellant had also submitted a representation against theorder of detention to the State Government on 18 May 2021. An additionalreply was filed by the District Magistrate on 12 August 2021 before theHigh Court. Paragraph 2 of the reply is extracted below:D“2 That it is submitted that against the impugned order dated11.05.2021, the petitioner Sarabjeet Singh Mokha submitted arepresentation on 18.05.201 (Annexnre RI .IP..) through AmarjitMokha before the District Magistrate, State Government and theCentral Government. The learned District MagistrateEreceived the representation and communicated the sameto the Secretary, Home Department, Govt. of M.P and tothe Secretary, Ministry of Home Affairs, Govt. of India on20.05.2021.It is humbly submitted that after considerationof the comments of the District Magistrate as also thedecision dated 29.06.2021 taken by the Advisory Board,Fand thereafter the State Government also rejected therepresentation of the Petitioner /Detenue andcommunicated the same to the petitioner. Copy of the decisionof the State Government is annexed herewith as ANNEXURER-11.”

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44. The above extract makes it abundantly clear that the DistrictMagistrate having received the representation on 18 May 2021,communicated it to the State Government and the Central Governmenton 20 May 2021. The State Government rejected the representation,Hafter the decision of the Advisory Board. The above extract from the affidavit, which was filed before the High Court, does not specify thedate on which the representation was rejected by the State Government,but leaves no manner of doubt that until the representation was rejectedby the Advisory Board on15 June 2021, no steps had been taken by theState Government to deal with the appellant’s representation dated 18May 2021. In the counter-affidavit of the District Magistrate before thisCourt as well as in the written submissions supplied by the AAG, it appearsthat the representation was rejected by the State Government on 15 July2021. However, this Court has neither been provided with a copy ofsuch rejection or proof of communication of this rejection to the detenu,nor an explanation for the almost 60 day delay in considering theappellant’s representation.

45. There is absolutely no reasonable basis for explaining thecircumstances in which the representation dated 18 May 2021 was notconsidered by the State Government until after the Advisory Board hadsubmitted its report on 15 June 2021. As we have indicated on the basisof the precedents of this Court, the consideration of the representationby the State Government is qualitatively different from the reference tothe Advisory Board. This Court, Ankit Ashok Jalan (supra) had heldthat in State Government is not bound to wait on the Advisory Board’sreport before deciding the representation and must do so, as expeditiouslyas possible. In spite of awaiting the receipt of the report of the AdvisoryBoard which was eventually issued on 15 June 2021, the StateGovernment took another one month in arriving at a decision on theappellant’s representation dated 18 May 2021. The State Governmentdid not furnish any valid reasons for either of the two courses of action.

46. By delaying its decision on the representation, the StateGovernment deprived the detenu of the valuable right which emanatesfrom the provisions of Section 8(1) of having the representation beingconsidered expeditiously. As we have noted earlier, the communicationof the grounds of detention to the detenu “as soon as may be” and theaffording to the detenu of the earliest opportunity of making arepresentation against the order of detention to the appropriategovernment are intended to ensure that the representation of the detenuis considered by the appropriate government with a sense of immediacy.The State Government failed to do so. The making of a reference to theAdvisory Board could not have furnished any justification for the StateGovernment to not deal with the representation independently at theearliest. The delay by the State Government in disposing of the AB

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Arepresentation and by the Central and State Government in communicatingsuch rejection, strikes at the heart of the procedural rights and guaranteesgranted to the detenu. It is necessary to understand that the law providesfor such procedural safeguards to balance the wide powers granted tothe executive under the NSA. The State Government cannot expect thisCourt to uphold its powers of subjective satisfaction to detain a person,Bwhile violating the procedural guarantees of the detenu that arefundamental to the laws of preventive detention enshrined in theConstitution.

D.2 Failure to communicate decision on the representationC47. Apart from the above position, there is a more fundamentalreason for interreference with the order of detention- the failure tocommunicate the rejection to the appellant. The respondent could notfurnish proof of the appellant’s receipt of the Central Government’srejection of representation dated 24 June 2021. The wireless messageDdated 28 June 2021, issued from the Ministry of Home Affairs of theCentral Government to the Home Department of the State Government,communicated the rejection of the representation submitted by the detenu.The SP of the Central Jail, Jabalpur was directed to serve a copy meantfor the detenu. The State Government was also directed to inform thedetenu. Though in the writ petition as it was originally filed, there was noEspecific ground that the rejection of the representation was notcommunicated to the detenu, a specific ground to that effect was raisedin the rejoinder filed before the High Court. Be that is it may, there isabsolutely no material coming forthwith to indicate that the rejection ofthe representation by the Central Government was communicated toFthe detenu. The appellant has submitted that it was notified of the rejectionof its representation by the Central Government, only when such rejectionwas furnished as an annexure to the Central Government’s counter-affidavit before the High Court. The Central Government’s wirelessmessage dated 28 June 2021 directed the SP to collect the appellant’sacknowledgement of receipt. However, the respondents were unable toGfurnish any proof of such acknowledgement. This lends credibility to theappellant’s contention that he was never served with a copy of CentralGovernment’s rejection of his representation.

48. Similarly, the AAG has submitted that the State Governmentrejected the appellant’s representation on 15 July 2021. However, withH

the exception of the rejection order forming a part of the annexures tothe respondents’ additional reply before the High Court, there is no proofof the appellant having knowledge of the rejection of its representationby the State or Central Government before he filed his writ petitionbefore the High Court.

49. Article 22(4), in guaranteeing a right to make a representationto the detenu, understandably creates a corresponding duty on the Statemachinery to render this right meaningingful. In Section D.1 of thejudgement, we have detailed this Court’s settled precedent on the detenu’sright to make a representation and for it to be considered expeditiously-failing which the detention order would be invalidated. However, thisright would ring hollow without a corollary right of the detenu to receivea timely communication from the appropriate government on the statusof its representation- be it an acceptance or a rejection.

50. This Court, in considering claims of delay in the appropriategovernment’s dealing with the representation of a detenu, has includeddelays in communication of such rejection. A two judge Bench of thisCourt in State of Punjab v. Sukhpal Singh[54] had noted that such adelay formed a part of the infraction on the detenu’s constitutional rightunder Article 22(4). Justice K N Saikia, speaking on behalf of this Court,had held:

“19. In the instant case we are satisfied that after receipt of thezerox copy from the Central Government, the State Governmenttook only 13 days including 4 holidays is disposing of therepresentation. Considering the situation prevailing and theconsultation needed in the matter, the State Government could tohave been unmindful of urgency in the matter. But the factsremain that it took more than two months from the date ofsubmission of the representation to the date of informingthe detenu of the result of his representation. Eight dayswere taken after disposal of the representation by the StateGovernment. The result is that the detenu’s constitutionalright to prompt disposal of his representation was deniedand the legal consequences must follow.”

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A51. Similarly, a two judge Bench of this Court in Madan Lal Anandv. Union of India[55 ]considered an explanation for a two day delay incommunicating a rejection of representation to the detenu in determininglaches or negligence on the part of the detaining authority. It noted:

“37. At the hearing of this appeal, the learned counsel for theBrespondents handed over to us a list of dates showing that a numberof holidays intervened between one date and another and hencethe apparent delay. It appears that the Collector of Central Excise& Customs received the representation for his comments onJanuary 23, 1989 and handed over the same to the dealing officerCfor comments on January 24, 1989 and the Collector’s commentwas made on February 9, 1989. Between January 25, 1989 andFebruary 8, 1989 a number of holidays intervened, namely January26, 1989 (Republic day), January 28, 1989 and January 29, 1989(Saturday and Sunday), and February 4, 1989 and February 5,1989 (Saturday and Sunday). On February 9, 1989, it was sent toDthe Ministry of Finance (COFEPOSA Cell), New Delhi, and wasreceived by that Ministry on February 10, 1989. February 11, 1989and February 12, 1989 being Saturday and Sunday were holidays.On February 13, 1989, it was put up before the Joint Secretary,COFEPOSA, and was sent to the Minister of StateE(Revenue). The file was received back after the rejection ofthe representation and such rejection was communicatedto the detenu on February 20, 1989. The two interveningdates, namely, February 18, 1989 and February 19, 1989being Saturday and Sunday were holidays.

38. It is clear from the above statement that there was no lachesFor negligence on the part of the detaining authority or the otherauthorities concerned in dealing with the representation of thedetenu. In L.M.S. Ummu Saleema v. B.B. Gujaral[(1981) 3 SCC317 : 1981 SCC (Cri) 720] it has been observed that the timeimperative can never be absolute or obsessive, and thatGthe occasional observations made by this Court that eachday’s delay in dealing with the representation must beadequately explained are meant to emphasise the expeditionwith which the representation must be considered and not that it is a magical formula, the slightest breach of whichmust result in the release of the detenu. In the instant case,the detaining authority has explained the delay in the disposal ofthe representation made by the detenu and, accordingly, the orderof detention cannot be rendered invalid on that ground.”

52. At this point, it would also be relevant to mention that thisCourt inUnion of India v. Saleena[56], considered the issue of whethernon-communication of the order rejecting the representation by thecompetent authority would invalidate or vitiate the order of detention. Inthe facts of that case, though the order of the competent authorityrejecting the detenu’s representation was not communicated to him, theUnder Secretary had informed the detenu of the outcome of the decision.The Court observed that the procedural safeguards under Article 22(5)of the Constitution do not require a communication of the order rejectingthe representation by the competent authority or incorporation of theorder passed by the competent authority in the order of communicationto the detenu. Without commenting on the merits of Saleena (supra),we note that the decision was limited to the issue framed which relatesto whether an order rejecting the representation must be mandatorilycommunicated to the detenu by the competent authority.

53. In the present case, let alone the order rejecting therepresentation, even the outcome of the representation, that is whetherit has been rejected or not, was not communicated to the appellant.Thus, the decision in Saleena (supra) does not find application in thefacts of the present case.

54. The AAG has furnished no reasons for the failure tocommunicate the State Government or Central’s government rejectionof the appellant’s representation. This failure in timely communicationof the rejection of representation is a relevant factor for determining thedelay that the detenu is protected against under Article22(5). Based onthe precedents of this Court, we hold that the failure of the Central andthe State Government to communicate the rejection of the appellant’srepresentation in a time-bound manner is sufficient to vitiate the order ofdetention.

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AE Conclusion

55. Accordingly, the order of detention is invalidated on twogrounds: first, the unexplained delay on part of the State Government indeciding the representation of the appellant and second, the failure ofthe Central and State Governments to communicate the rejection of theBrepresentation to the appellant in a timely manner. The basis of theextensions which have been issued on 15 July 2021 and 30 September2021, finds its genesis in the original order of detention dated 11 May2021. Once the order of detention stands invalidated, the consequentialextensions would follow the same course. During the course of theproceedings, both parties have advanced submissions on the merits ofCthe order of detention. In the view which we have taken, it is not necessaryto consider these other grounds of challenge since the appellant is entitledto succeed on the violation of his procedural rights under the Constitutionand the statute.

56. For the reasons we have indicated above, the appeal isDaccordingly allowed. The impugned judgment of the High Court dated24 August 2021 shall stand set aside. The order of detention dated 11May 2021 and the extensions dated 15 July 2021 and 30 September2021 shall accordingly stand quashed and set aside.

57. Pending application(s), if any, shall stand disposed of.

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Devika Gujral

Appeal allowed.

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