H.N. Seth, J.
1. By this petition petitioner Kartar Singh impugns the validity of his continued detention directed by the District Magistrate, Saharanpur vide his order dated 14th of July, 1981 passed Under Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act,
2. One of the grounds raised by the petitioner for challenging the validity of his continued detention is that there has been a contravention of the provisions contained in Section 10 of the Act Accordingly, we proceed to state only such facts which have a bearing on this aspect of the case,
3. The petitioner was actually arrested in pursuance of the order dated 14th of July, 1981 on 20th of July, 1981. The petitioner made a representation against his detention on 31st of July, 1981 which was received by the State Government on 7th of Aug. 1981. The same day after receiving the representation, the State Government placed before the Advisory Board, the grounds on which the order had been made and some other relevant material, but it did not forward the representation made by the petitioner which had already been received by it. The State Government eventually rejected petitioner's representation on 17th of Aug. 1981 and forwarded the same to the Advisory Board on 28th of Aug. 1981.
4. In order to appreciate the argument raised by the petitioner it would be convenient to extract the provisions of Section 10 of the Act which reads thus:-
10. Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act. the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory, Board constituted by it Under Section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer referred to in Sub-section (2) of Section 3. also the report by such officer under Sub-section (3) of that section.
A perusal of Section 10 shows that if a representation has been received by the State Government the State Government is obliged to place not only the grounds on which the order of detention was made but also the representation if received from the detenu before the Advisory Board within a period of three weeks of his detention which admittedly came to an end on 10th of Aug. 1981. Undoubtedly the representation of the petitioner had been received on 7th of Aug. 1981 well before 10th of Aug. 1981 and there was appearently no difficulty in,the way of State Government in placing the same before the Advisory Board within the time limit laid down in Section 10 of the Act.
5. It cannot be doubted that the provisions contained in Section 10 of the Act are mandatory in nature and that if any safeguard mentioned therein is contravened, it will have the effect of rendering the detention of a detenu under the provisions of the Act, illegal.
6. Learned Additional Government. Advocate tried to justify the propriety of petitioner's detention by submitting that there has, in the circumstances, of the case been no contravention of the provisions of Section 10 of the Act. He contended that the section contemplates that representation made by a detenue to the State Government should be disposed of before the State Government places the same before the Advisory Board, but then where a detenu himself makes a representation so late that it becomes impossible for the State Government to consider the same within a period of three weeks specified in the section, the obligation cast upon the State Govt. in this regard to place the same before the Advisory Board within three weeks also disappears. Accordingly in a case where the representation has been received so late that the State Govt. is not in a position to dispose it of within a period of three weeks there would be no obligation upon it to forward the same to the Advisory Board within that period. He contends that the section, in such a case contemplates that the State Government can take its own time to place the representation before the Advisory Board at any time before the Board takes up the matter for consideration.
7. In our opinion no exception can be taken to the submission of the learned Additional Government Advocate that in cases where the representation made by a detenu is received well in time and the State Government is in a position to dispose it of within a period of three weeks specified in Section 10 of the Act, it has to, before placing tha same before the Advisory Board, dispose of the representation. But then there are no imperatives in Section 10 obliging the State Government to, in all cases decide the representation made by a detenu before placing the same before the Advisory Board. In our opinion what the section contemplates is that in cases where the representation made by a detenu has been received by,the State Government within three weeks of his detention the State Government should give its decision on the representation before placing the same before the Advisory Board within the specified period, but, where it is not possible for it to decide the representation within the period specified in the section either for the reason that it was received too late or for any other legitimate reason, it still must place the representation before the Advisory Board within the stipulated period, although it has not been possible for it to decide the same. In deed such a procedure has, in so many words, been countenanced by the Supreme Court in the case of Frances Coralie Mullin v. W. C. Khambra : 1980CriLJ548 wherein the Court, after considering the similar provisions contained in the COFEPOSA Act observed thus (At p. 551 of Cri LJ):
We agree; (l) the detaining authority must provide the detenu a very early opportunity to make a representation, (2) the detaining authority must consider the representation as soon as possible, and this preferably, must be before the representation is forwarded to the AdviV sory Board (3) the representation must be forwarded to the Advisory Board before the Board makes its report, and (4) the consideration by the detaining authority of the representation must be entirely independent of the hearing by the Board of its report, expedition being essential at every stage. We however, hasten to add that the time-imperative can never be absolute or obsessive. The Court's observations are not to be so understood. There has to be lee-way, depending on the necessities (we refrain from using the word 'circumstances') of the case. One may well imagine a case where a detenu does not make a representation before the Board makes its report, making it impossible for the detaining authority either . to consider it or to forward it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before them but may merely forward it to the Board without himself considering it. Several such situations may arise compelling departure from the time-imperative....
8. In view of aforementioned observations made by the Supreme Court, we are unable to accept the submission of the Learned Additional Government Advocate that in cases where the representation made by a detenu against his detention had been received by the State Government within a period of three weeks of his detention and the State Government was not in a position to dispose it of within the stipulated period, it was none the less necessary for it to decide the representation before forwarding the same to the Advisory Board, We also do not agree with the submission that Section 10 of the Act contemplates that in all cases the State Government must decide the representation made by detenu before placing the same before the Advisory Board. In our opinion it is not possible to construe Section 10 of the Act in such a way that where it is not possible for the State Government to dispose of a representation received by it within a period of three weeks its obligation to place it before the Advisory Board within the stipulated period also disappears. As pointed out above, in such cases where the representation has been received so late or for any other legitimate reason fit is not possible for the State Government to dispose it of within a period of three weeks of the date of detenu's detention, the State Government has to place the same before the Advisory Board without deciding the same. We are in this view fully supported by the decision of the Calcutta High Court in the case of Utpal Mazumdar v. State of West Bengal, 1975 Cri LJ 175.
9. Learned Additional Government Advocate also argued that in case the provisions of Section 10 of the Act are interpreted as mentioned above there will be difficulty in reconciling the dictum of the Supreme Court laid down in Frances Coralie Mullin v. W. C. Khambra : 1980CriLJ548 namely that the detaining authority must consider the representation made by a detenu as soon as possible and at the same time forward it to the Board without deciding the same inasmuch as after forwarding the representation the State Government will not be in a position to deal with it. We are unable to accept this submission. In the first place while the State Government is required to dispose of a representation by a detenu expeditiously and as soon as possible nowhere has any time been prescribed after which the representation cannot be disposed of. If there exists good reason which incapacitates the State Government from considering the representation made by a detenu during a particular period that period has to be accounted for in considering the question with regard to expeditious disposal of a representation made by the detenu. In the very nature of things consumption of time in consideration of a representation made by a detenu, during which the State Government is incapacitated from considering the same, would be iustified by the necessities of the case and any delay in disposal of the representation on this account will not affect the validity of order of detention made under the provisions of the Act. Moreover there is nothing in Section 10 of the Act which say? that once the original representation received from a detenu has been forwarded by the state Government to the Advisory Board, the State Government is precluded from considering the same merely because the original representation is not before it. In such cases the consideration by the State Government which has to be done independently of the consideration of the case by the Advisory Board of its report can well be done if the State Government keeps a copy of the representation received from the detenu on its records for the purpose. Neither Section 10 of the Act nor Article 22 of the Constitution while requiring the State Government to consider a representation made by a detenu at the earliest, lay it down that the order accepting or rejecting the representation must be passed on the same piece of paper which contains the representation. Accordingly, even if the original representation has been forwarded by the State Government to the Advisory Board, the State Government can still proceed to decide that representation provided it keeps a copy of the same on its file. In the circumstances, we are unable to agree with the submission of Learned Additional Government Advocate that in case we interpret the section in the manner indicated by us, any difficulty of the nature suggested by him would arise.
10. In the result, we are of opinion that in this case there has been a contravention of the provisions contained in Section 10 of the Act rendering petitioner's continued detention directed by the District Magistrate, Saharanpur vide his order dated 14th of July, 1981 invalid.
11. The petition, therefore, succeeds and is allowed. The respondents are directed not to keep the petitioner in detention in connection with the order dated 14th of July, 1981 passed by the District Magistrate, Saharanpur as approved by the State Government by its order dated 25th of July 1981 and that he should be set at liberty forthwith unless required in connection with some other case.