STATE OF GUJARAT v. Hemantkumar Dinkarrai Desai — 1996 DIGILAW 255 (GUJ)

S. D. PANDIT, J. ( 1 ) THIS State has preferred this L. P. A. against the judgment delivered by the learned single Judge of this Court in Spl. C. A. No. 5157 of 1996 decided on 12-1- 1996. ( 2 ) HEMANTKUMAR Dinkarai Desai had filed Spl. C. A. No. 5157/95 against the order of detention passed on 24-5-1995 by the District Magistrate, Valsad under the provisions of Section 3 of the Prevention of blakmarketing and Maintenance of supplies of Essential Commodities Act, 1980 (hereinafter referred to as the said act ). Said Spl. C. A. was heard by the learned single Judge and he came to the conclusion that the representation made by the detenu to the detaining authority along with a copy of the same with a request to the detaining authority to forward the same to the Central Government, but in spite of the said specific request, said representation was not forwarded and the same has resulted into infringement of his fundamental rights under Article 22 (5) of the Constitution of India. ( 3 ) THE learned Assistant Government pleader for the State vehemently urged before us that admittedly in this case the appellant had engaged a senior advocate. A senior advocate knows the procedure as to whom and where the representation is to be made to the Central Government and therefore, in the circumstances, if the said representation is not directly made to the central Government, then it is not open for the detenu to contend that there is infringement of his fumdamental rights guaranteed under Article 22 (5) of the constitution of India. At the outset it may be stated that law cannot make any difference between a detenu who is represented by an adovate or not represented by an advocate. The detenu is entitled to make his representation to the detaining authority and can even make a request to the detaining authority to take out copies of his representation and forward the same to the other authorities. This has been accepted by the Apex Court in the case of Ahir Shad Khan and Anr. , v. Hmingliana and Ors. The detenu is entitled to make his representation to the detaining authority and can even make a request to the detaining authority to take out copies of his representation and forward the same to the other authorities. This has been accepted by the Apex Court in the case of Ahir Shad Khan and Anr. , v. Hmingliana and Ors. , AIR 1991 (SC) 1988, wherein the following principles are laid down :"whether the detenu made a request to the detaining authority that a representation prepared by him may be forwarded to the central Government as well as the State government for consideration after taking out copies thereof, it would be a denial of his right to represent to the Central government if the detaining authority as well as the State Government refused to accede to his request and omitted to forward his representation to the Central government for consideration. Refusal to accede to his request would be wholly unreasonable and in total disregard to the right conferred on the detenu by Art. 22 (5) of the Constitution read with S. 11 of the act and the order of detention would be liable to be quashed. "the court cannot apply different principle to a detenu who is represented by an advocate. The contention which the learned A. G. P. for the State raised before us, was previously raised before the division Bench of this Court in Special criminal Applications Nos. 765/93 and 766/93. In those cases also the detenus were represented by an advocate and representations were handed over to the detaining authority with a request to send the same to the Central Government and the failure on the part of the detaining authority to do so, was taken as infringement of fundamental rights of the detenu under article 22 (5) of the Constitution of India. The decision taken by the earlier Division bench, has considered the contention which is now raised before us by the learned advocate in those proceedings and has negatived the same by making the following observations :"merely because the detenu has been assisted by an advocate, that does not absolve the detaining authority from its duty to forward the detenus representation to all the authorities who have a right to consider the representation, and if found acceptable to accept it, if the detenu or his accredited representative makes a request in that behalf. Here, a specific request in that connection has been made by Mr. Kapadia, the learned Counsel in the representation. Once such a request is made, the duty of the detaining authority to forward the representation to the authorities mentioned in the grounds of detention commences, and that duty would not come to an end because the request on behalf of the detenu has come from an advocate, who is supposed to know in the provisions of the detention law. If the submission of Mr. Mehta, L. A. P. P. is accepted, that would lead to creating discrimination between a class of detenus who are not represented by advocate and the other class of detenus who are so represented. Even amongst the class of detenus who are represented to advocates, there could be such class, viz. detenus who are represented by junior advocates and those who are represented by senior advocates. Such a classification of detenus would be unwarranted under the constitutional conspectus and the detention jurisprudence. Therefore, without saying much on the point, we would only say that the submission of Mr. Mehta, which is so forcefully made on the ground that in the present case as the detenu has been represented by an advocate and the advocate has made the representation, the detaining authority was absolved from its duty to forward the representation to the central Government, cannot be accepted. That contention is rejected. " we do not find any reason to take a different view than the view taken by the earlier Division Bench of this Court. Admittedly, in this case, the detenu had given his representation to the detaining authority and in the representation he had stated that along with his representation, one more copy is being supplied to the detaining authority so as to enable it to forward the same to the Central government immediately and without any undue delay. In spite of the specific request made to the detaining authority, adimittedly, the detaining authority had not forwarded the same to the Central Government. Therefore, in the circumstances the learned single Judge is justified in accepting the said Spl. C. A. The order passed by the learned single Judge is quite legal and proper. In the circumstances, this L. P. A. is dismissed with no order as to costs. .