Judgment

BHAGWATI, J.:- This petition is directed against the validity of an order of detention dated 26th July, 1972 made by the District Magistrate, Midnapur under Section 3 of the Maintenance of Internal Security Act, 1971. The petitioner has urged several grounds before us, but it is not necessary to refer to them since there is one ground which is, in our opinion, sufficient to dispose of the petition in favour of the petitioner. To appreciate this ground it is necessary to notice a few facts.

2. The order of detention was made by the District Magistrate on 26th July, 1972 and on the same day he made a report to the State Government. The State Government approved the order of detention on 5th August, 1972 and a report was made by it to the Central Government on the same day. It appears that the petitioner was absconding and he could not, therefore, be arrested pursuant to the order of detention until 24th October, 1972. When the petitioner was arrested on 24th October, 1972, the order of detention was served on him along with the grounds of detention. The State Government thereafter placed the case of the petitioner before the Advisory Board for its opinion and the Advisory Board submitted a report dated 23rd November, 1972 stating that in its opinion there was sufficient cause for the detention of the petitioner. Now, right up to this time no representation against the order of detention was received from the petitioner. It was only on 27th November, 1972 that the State Government received the representation of the petitioner against the order of detention. The State Government had not yet confirmed the order of detention when the representation was received but even so the State Government proceeded to confirm the order of detention without considering the representation. The order of confirmation was passed by the State Government on 29th November, 1972. The State Government thereafter considered the representation of the petitioner and rejected the same on 2nd December, 1972.

3. The petitioner, on these facts, contended that the order confirming the detention of the petitioner having been passed by the State Government without considering the representation of the petitioner, the detention of the petitioner was unlawful as being in violation of Article 22 (5) of the Constitution and Section 7 of the Maintenance of Internal Security Act, 1971. This contention has great force and it must result in the detention of the petitioner being set aside. It is now well settled by a decision of five Judges of this court in Jayanarayan Sukul v. State of West Bengal, (1970) 3 SCR 225 that the peremptory language of Article 22 (5) of the Constitution and Section 7 of the Act makes it obligatory that the State Government should consider the representation of the detenu "as soon as it is received by it". The requirement of Article 22 (5) of the Constitution that the authority making the order of detention should afford the detenu the earliest opportunity of making a representation against the order of detention would become illusory if there were no corresponding obligation on the State Government to consider the representation of the detenu as early as possible. It is not enough for the State Government to forward the representation to the Advisory Board while seeking its opinion as to whether there is sufficient cause for the detention of the detenu. The State Government must itself consider the representation of the detenu and come to its own conclusion whether it is necessary to detain the detenu. If the State Government takes the view, on considering the representation of the detenu, that it is not necessary to detain him, it would be wholly unnecessary for it to place the case of the detenu before the Advisory Board. The requirement of obtaining the opinion of the Advisory Board is an additional safeguard for the detenu over and above the safeguard afforded to him of making a representation against the order of detention. The opini