Empowered officer acting as a detaining authority cannot wait for report from Advisory Board for deciding representation of detenue - detention order quashed; SC.

Supreme Court of India

Justice U U Lalit & Justice Indu Malhotra

The SC {ANKIT ASHOK JALAN v. UNION OF IDNIA AND ORS.} holds that the Detaining Authority ought to have considered the representation independently and without waiting for the report of the Central Advisory Board.

It was held that after receipt of letter on 27.11.2019 that the detenues were received in custody, the time for considering the representation started ticking for the Detaining Authority. It was also held that but the representation was considered only on 14.01.2020 and the reason for such delayed consideration is that the report of the Central Advisory Board was awaited. It was held thus, there was no valid explanation for non-consideration of the representation from 27.11.2019 till 14.01.2020. Further held that complete inaction on part of the Detaining Authority in considering the representation caused prejudice to the detenues and violated their constitutional rights.

It was held that it would be proper for the appropriate Government to wait till the report was received from the Advisory Board, while at the same time the specially empowered officer who had acted as the Detaining Authority would be obliged to consider the representation with utmost expedition. It was also held that at times a single representation is prepared with copies to the Detaining Authority namely the specially empowered officer and to the appropriate Government as well as to the Advisory Board. 

It was also held that since there was complete inaction on part of the Detaining Authority in the present case, to whom a representation was addressed in dealing with the representation, the constitutional rights of the detenues were violated and the detenues were entitled to redressal on that count. It was held that the continued detention of the detenues in terms of the Detention Orders was illegal, invalid and unconstitutional.

In the present case, the petition under Article 32 of the Constitution of India was filed  for quashing of the Detention Orders dated 01.07.2019 and for a direction that the detenues be set at liberty. The said petition was allowed by the SC by concurring judgment of two judges. However, Justice Hemant Gupta gave his dissenting judgment - dismissing the petition. As per majority view, ultimately  the Detention Orders were quashed and the detenues were directed to be set at liberty forthwith.