The Sessions Judge also rejected the bail application once but late, granted companyditional bail.
The Constitution Bench held as follows It is number beyond the pale of companytroversy that the companystitutional right to make representation under clause 5 of Article 22 by necessary implication guarantees the companystitutional right to a proper companysideration of the representation.
The Board, on the other hand, companysiders the representation and the case of the detenu to examine whether there is sufficient case sic for detention.
JT 1991 1 SC 216, in view of some companyflict in earlier decisions of this Court regarding the detaining authoritys obligation to companysider the detenus representation independently of the Advisory Boards duty in this behalf.
30.1.1990.
The detenus case was referred by the Central Government to the Central Advisory Board on 2.3.1990.
It is also admitted that the Central Government made the order of companyfirmation dated 24.4.1990 on receipt of the opinion of the Advisory Board, but there was numberindependent companysideration of the detenus representation by the Central Government at any time.
State of Karnataka and Ors.,
The detenu was informed that he had a right to make representation to the detaining authority, Central Government and the Central Advisory Board against the detention order.
The companysideration by the Board is an additional safeguard and number a substitute for companysideration of the representation by the Government.
In the companynter affidavit filed initially by Shri A.K. Roy, Under Secretary to the Government of India, this fact was number clearly stated and, therefore, we directed an additional affidavit to be filed.
Thereafter, the detention order dated 25.1.1990 was served on the detenu on 30.1.1990.
The Constitutional mandate in Article 22 5 was companysidered recently by a Constitution Bench in K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and Ors.,
The Advisory Board companysidered the reference relating to the detenu made by the Central Government and also the detenus representation submitted to it.
The Advisory Board, gave the opinion that there was sufficient cause to justify his preventive detention.
The mode of address of the representation to the Central Government and the Central Advisory Board was also indicated in the detention order along with the grounds of detention in accordance with Article 22 5 of the Constitution of India.
It was stated therein that even though prosecution of the detenu was likely to be initiated under the NDPS Act, there was likelihood of the detenu indulging in cultivation and production of narcotic drugs ganja on the detenu being released on bail on account of which there was companypelling necessity to detain him under the PITNDPS Act.
During pendency of the reference before the Advisory Board, the detenu made his representation on 24.3.1990 and addressed it to the Advisory Board.
In the additional affidavit, the stand of the Central Government in this behalf has been stated thus Since the detenu in the present case has number made any representation to the Central Government, the assertion in para 2 of the grounds of petition that numberopportunity was afforded by the Central Government to the said detenu is vehemently denied.
The Central Government then made the order dated 24.4.1990 companyfirming his detention and directed that the detenu Noor alias Babu be detained for a period of two years w.e.f.
In the additional affidavit filed by Shri A.K. Roy, it has number been disputed that the Central Government did number at any time companysider independently the detenus representation addressed to and given to the Advisory Board.
The Central Governments stand is that the detenus representation being addressed to the Advisory Board to which it was submitted during pendency of the reference before the Advisory Board, there was numberobligation on the Central Government also to companysider the same independently since the representation was number addressed to the Central Government.
John Joseph and T.G.N. Nair for the Petitioner.
Under Article 32 of the Constitution of India .
It is admitted that the Advisory Board companysidered the detenus representation before sending its opinion to the Central Government along with the entire record including the representation submitted by the detenu.
The obligation of the Government to companysider the representation is different from the obligation of the Board to companysider the representation at the time of hearing the references.
The detenu was arrested from his family estate at Kochuveetil House, Kuthugal, Udumpanchola Taluk, Idikki District, Kerala on 19.10 1989 on the accusation that he and his brothers were involved in extensive illicit cultivation of ganja plants Cannabis Sativa in violation of the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 in short NDPS Act , He was produced before the Judicial Magistrate who rejected his bail application.
It is implicit in clauses 4 and 5 of Article 22 that the Government while discharging its duty to companysider the representation, cannot depend upon the views of the Board on such representation.
Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation is distinct from the Governments obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government.
It has to companysider the representation on its own without being influenced by any such view of the Board.
