VERY IMPORTANT POINT
The request of the detenu for being temporarily released, invoking the power of the State Govt. u/s 15 of A.P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, if not disposed of early, does not amount to infraction of detenu s Constitutional right under Article 22(5) of the Constitution as application u/s 15 of the Act cannot be construed to be a representation against the order of detention or a prayer for revocation of an order of detention within the meaning of Article 22(5) of the Constitution.

Headnote:Andhra Pradesh Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986-Section 3-Order of detention issued under by Distt. Collector-Constitution of India -Articles 22(5) and 226-Challenged by writ petition in High Court-First writ petition dismissed but detention order quashed in 2nd writ petition on ground that the representation of the detenu filed for temporary release u/s 15 of the Act was not disposed of within a reasonable period and thereby the constitutional right guaranteed to the detenu under Article 22(5) was infringed-Appeal to Supreme Court by special leave-Whether High Court was justified in setting aside the order of detention merely because there had been delay in disposing of the application for temporary release, filed by the detenu u/s 15 of the Act? (No)-Appeal allowed-But detenu not to be detained as period of detention is over-Scope of Article 22(5) explained to show that High Court took a wrong view of the constitutional right guaranteed under it.
       Held : Clause (1) and (2) of Article 22 of the Constitution lay down the procedure to be followed when a person is arrested. It confers a protection against arrest which are effected otherwise than under a warrant issued by a Court, on the allegation or accusation that the arrested person has or is suspected to have committed an act of criminal or quasi-criminal nature. But clause (3)(b) of Article 22 carves out an exception when a person is arrested under a law of preventive detention and such a detenu has no right to be produced before a Magistrate within 24 hours or to be defended by a lawyer. "Preventive Detention" means the detention of a person without trial in such circumstances that the evidence in possession of the authority is not sufficient to make a legal charge or to secure the conviction of the detenu by legal proof, but may still be sufficient to justify his detention. The object of preventive detention is to prevent the detenu from doing something or to prevent an individual from achieving the particular object. The satisfaction of the concerned authority is a subjective satisfaction. The object of the framers of the Constitution in giving a constitutional status to preventive detention was to prevent anti-social and subversive elements from imperilling the welfare of the republic. Having recognised the necessity of laws for preventive detention, the constitution also has provided some safeguards to mitigate the hardships and clause (5) of Article 22 is one such safeguard, available to a detenu, who has been detained under a preventive law. (Para 6)
       Article 22(5) gives the detenu the right to make a representation against an order of detention and such right must be afforded as expeditiously as possible. In other words, the detenu must be afforded the earliest opportunity of making a representation against the order of detention. Article 22(5) in itself does not say, to whom a representation could be made or who will consider the representation but a representation filed by a detenu is required to be considered and disposed of by the Government as soon as it is received. Because of the language of Article 22(5) and because of the fact that an order of detention affects the liberty of a citizen, without laying down any hard and fast rule as to the measure of time taken by the appropriate authority for considering of a representation, it has been held by the Courts that it should be considered as soon as it is received and it is in this connection, it has been further held that an unexplainable delay in disposing of the representation, infringes the right of the detenu under Article 22(5) and makes the detention bad. In other words, the Courts have held that the right of the detenu to have his representation to be considered at the earliest opportunity is a constitutional right and that constitutional right cannot be infringed by the executive Government by delaying the consideration of a representation. But all that has been said is in relation to a representation against an order of detention or when the detenu approaches the authority for revoking an order of detention. The Constitutional right emanating from Article 22(5) is in relation to an order of detention and an opportunity required to be afforded to the detenu is to enable him to make a representation against the order of detention. But invocation of the power of the Government under Section 15 of the Act praying for temporary release of the person detained cannot be construed to be a representation against the order of detention or a prayer for revocation of the order of detention within the meaning of the constitutional right guaranteed to a detenu under Article 22(5) of the Constitution. The power under Section 15 is the power of the Government to release a detenu for any specified period with such conditions to be specified in the order of release and such a prayer by no stretch of imagination can be held to be representation against the order of detention within the meaning of Article 22(5) of the Constitution. That being the position, question of infraction of Article 22(5) does not arise if the prayer of the detenu for being temporarily released, is not disposed of immediately and there is some delay in the disposal of the said prayer. Of course such a prayer for being temporarily released, should be disposed of within a reasonable time but delay on the part of the authority in considering the prayer for temporary release under Section 15 of the Act cannot be held to be an infraction of the constitutional right guaranteed to a detenu under Article 22(5). In this view of the matter, we have no hesitation to come to the conclusion that the High Court committed serious error in setting aside the order of detention, merely because there had been delay in disposing of the application for temporary release, filed by the detenu under Section 15 of the Act. We, therefore, set aside the impugned Judgment of the High Court and allow the appeal accordingly. It is placed on record that the period of detention being over since 5th February, 2001, the detenu will not be required to be detained again under the self-same detention order. (Para 7)

JUDGMENT

Pattanaik, J.-Leave granted.

2. This appeal by special leave is directed against a Judgment of the Division Bench of the Andhra Pradesh High Court. By the impugned judgment, the High Court has quashed an order of detention issued under Section 3 of the Andhra Pradesh Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, inter alia on the ground that the representation of the detenu filed for temporary release under Section 15 of the Act was not disposed of within a reasonable period and thereby the constitutional right guaranteed to the detenu under Article 22(5) was infringed. The question for consideration, therefore, is whether the request of the detenu for being temporarily released, invoking the power of the Government under Section 15 of the Act, if not disposed of early, can it be said that there has been an infraction of Article 22(5) of the Constitution?

3. The Act in question is undoubtedly an Act providing for preventive detention of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers, for preventing their dangerous activities, which are prejudicial to the maintenance of Public Order. It was enacted to deal with the situation arising out of the activities of a category of persons, which adversely affected public order and it was difficult for the State to deal with such persons on account of their resources and influence. Section 3 of the Act enables the State Government to issue an order of detention, on being satisfied that the activities of the detenu are such that it is necessary to prevent him from acting in any manner, prejudicial to maintenance of public order. Section 3(3) makes it obligatory to report the fact of detention to the State Government together with the grounds on which the order has been made, when an order of detention is made by an officer other than the State Government under sub-section (2) of Section 3. Section 8 provides for communication of the grounds of detention to the detenu within a maximum period of five days from the date of detention. Section 9 is the provision for constituting an Advisory Board and Section 10 is the provision under which the Government is duty bound to make the reference to the Advisory Board within three weeks from the date of detention. Section 11 is the procedure to be followed by the Advisory Board and Section 12 is the power of the Government to confirm an order of detention on receipt of the opinion of the Advisory Board that sufficient cause for detention exists. Under Section 13, maximum period of detention that can be passed under the Act is twelve months from the date of detention. Section 14 is the power of revocation of an order of detention by the State Government. Section 15, which is relevant for our purpose, in the case in hand is the power of the State Government to grant temporary release of the person detained. Therefore, the said Section is quoted herein-below in extenso :

"Section 15 : Temporary release of persons detained:-(1) The Government may, at any time direct that any person detained in pursuance of a detention order may be released for any specified period, either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time cancel his release.

(2) In directing the release of any person under sub-section (1), the Government may require him to enter into a bond, with or without sureties, for the due observance of the conditions specified in the direction.

(3) Any person released under sub-section (1) shall surrender himself at the time and place and to the authority, specified in the order directing his release or cancelling his release, as the case may be.

(4) If any person fails without sufficient cause to surrender himself in the manner specified in sub-section (3), he shall, on conviction, be punished with imprisonment for a term which may extend to two

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2001 Supreme(SC) 751

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