Judgement

KHANNA, J.:- This is a petition through jail under Article 32 of the Constitution of India for issuing a writ of habeas corpus by Kanti Lal Bose, who has been ordered by the District Magistrate Howrah to be detained under Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President s Act No. 19 of 1970) (hereinafter referred to as the Act) "with a view to preventing him from acting in any manner prejudicial to the maintenance of public order".

2. The petition was resisted by the respondent-State and the affidavit of Shri Dipak Kumar Rudra, District Magistrate who passed the detention order, was filed in opposition to the petition, Mr. Vohra argued the case amicus curiae on behalf of the petitioner, while the State was represented by Mr. Ghosh. After hearing the learned counsel, we passed an order on May 3, 1972 for the release of the petitioner and stated that the reasons in support of our order would be indicated later. We now proceed to set out those reasons.

3. The order for the detention of the petitioner was made by the District Magistrate on February 19, 1971. The petitioner, it is stated, was found to be absconding and was arrested on July 15, 1971. The order of detention as well as the ground of detention together with vernacular translation thereof were served on the petitioner on the day of his arrest. In the meanwhile, on February 19, 1971 the District Magistrate sent report to the State Government along with necessary particulars about his having made the detention order. The State Government after considering the report and particulars approved the detention order on March 1, 1971. Report about the making of the detention order along with the requisite particulars was thereafter sent by the State Government to the Central Government. On August 11, 1971 the State Government received a representation from the petitioner. On August 12, 1971 the State Government placed the case of the petitioner before the Advisory Board. The representation of the petitioner was considered by the State government and was rejected on September 8, 1971. The representation was thereafter forwarded to the Advisory Board. The Board, after considering the material placed before it, including the petitioner s representation, and after hearing the petitioner, submitted its report to the State Government on September 9, 1971. Opinion was expressed by the Advisory Board that there was sufficient cause for the detention of the petitioner. On October 11, 1971 the State Government confirmed the order for the detention of the petitioner. Intimation about the confirmation of the detention order was thereafter sent to the petitioner.

4. When the matter came up for hearing before us on April 26, 1972 Mr. Vohra sought permission to take up additional grounds in support of the petition. He thereafter filed a written application setting forth the additional grounds. Looking to the facts of the case, we allowed Mr. Vohra to take the additional grounds.

5. It was argued on behalf of the petitioner that his representation was received by the State Government on August 11, 1971. The State Government considered the representation and rejected it on September 8, 1971. There thus elapsed a period of 28 days between the receipt of the petitioner s representation and the consideration and rejection of the same by the State Government. Learned counsel for the respondent, who had the Government file relating to the detention of the petitioner, could not furnish any explanation as to why the Government took a long period of 28 days to consider and reject the petitioner s representation. In the absence of any cogent ground the failure of the State Government to consider the representation of the petitioner and pass an order thereon for a period of 28 days would, in our opinion, invalidate the detention of the petitioner.

6. In the case of Jayanaravan Sukul v. State of West Bengal, (1970) 3 SCR 225 the Constitution Bench of this Court empha