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1996 DIGILAW 589 (PAT)

Jay Singh Alias Ajay Singh v. State Of Bihar

1996-09-11

B.P.SHARMA, B.R.SINGH

body1996
Judgment B. P. Singh, B. P. Sharma, JJ. 1. The petitioner here in has challenged the order of detention passed by the District magistrate, Gaya, on 9th April, 1996 under sub-section (3) of Sec.3 of the national Security Act, 1980. He has also impugned the order of the Government of Bihar issued under the signature of respondent No.3, the Deputy Secretary, home (Special) Department dated 20th april, 1996, approving the order of detention. The order of detention was passed by the District Magistrate, Gaya, and, therefore, when this habeas corpus petition came up for admission, this court by order dated 24.7.1996 directed that the affidavit to be filed on behalf of respondent No.3 must be affirmed by the District Magistrate concerned, who had passed the order of detention. Despite the clear order of this Court, a counter-affidavit was filled on behalf of the District Magistrate, the detaining authority, but sworn by a Deputy Collector. This Court again by its order dated 19.8.1996 directed that an affidavit should be filed duly sworn to by the District Magistrate himself. Despite the two orders of this Court no counter-affidavit has been filed affirmed by the district Magistrate, Gaya. We are, therefore, left with the counter-affidavit affirmed by the Deputy Collector, Gaya, and the second counter-affidavit filed on behalf of respondent Nos.1 and 2 affirmed by an Under-Secretary in the home (Special) Department, Government of Bihar. 2. Counsel for the petitioner submitted that apars from other grounds urged in the writ-petition, the order of detention must be quashed on the short ground that the representation made by the petitioner in exercise of his fundamental right guaranteed under article 22 (5) of the Constitution of India was not considered. 3. Having regard to the submission urged on behalf of the petitioner, it is not necessary to examine the other contentions raised in the writ petition. In paragraph No.5 of the writ-petition it has been stated that the petitioner had represented to the State Government on 2nd May, 19%. In paragraph No.9 it has been stated that the said representation of 2nd May, 1996 has not been disposed of by the respondent-authorities at the earliest. 4. In paragraph No.5 of the writ-petition it has been stated that the petitioner had represented to the State Government on 2nd May, 19%. In paragraph No.9 it has been stated that the said representation of 2nd May, 1996 has not been disposed of by the respondent-authorities at the earliest. 4. In the counter-affidavit filed on behalf of respondent Nos.1 and 2, i. e. on behalf of the State of Bihar it is admitted in paragraph No.8 that the petitioner had sent a representation to the Deputy Secretary, Home (Special)Department with a specific request to place before the Advisory Board for consideration. The representation was sent to the Advisory Board to consider the same. The Advisory Board after going through the contents of the representation came to the conclusion that there was sufficient ground for issuance of detention order, and in this way the representation was disposed of. It is, therefore, not denied that the petitioner had represented through proper channel on 2.5.1996 and in paragraph No.5 of the counter-affidavit it is also admitted that the said representation of the petitioner was forwarded on 3.5.1996 to the State Government, which was received by it on 4.5.1996. The representation made by the petitioner has been annexed as An-nexure-A to the counter-affidavit of respondent Nos.1 and 2. In the representation the petitioner has urged several grounds challenging the order of detention. He has also made a request that his representation should be placed before the Advisory Board. However, the prayer in the representation is to accept the representation and to cancel the order of detention. It is, therefore, obvious that a representation was made by the petitioner in exercise of his constitutional right to represent against the order of detention with a request that the order of detention may be cancelled on the grounds set out in the representation. He had also requested that the representation be placed before the advisory Board as well. 5. It is apparent that by placing such a representation before the Advisory Board, the State Government was not absolved of its obligation and duty to consider the representation on its merit and to pass, an appropriate order without delay. It is well settled that the right to make a representation to the state Government is a constitution right guaranteed by Article 22 of the constitution of India. It is well settled that the right to make a representation to the state Government is a constitution right guaranteed by Article 22 of the constitution of India. The right conferred upon a detenue casts an obligation upon the State Government to consider the representation without delay and to pass an appropriate order. If the State Government refuses to consider the representation or inordinately delays the considsration of such representation, the fundamental right of a citizen, who is detained, is infringed. This constitutional right is distinct from the various safeguards which may be provided under the Act itself which authorities the detention in certain cases. This distinction should not be lost sight of. 6. It is now well settled that for failure of the State Government to consider the representation made, the detention order must be quashed [see jai Narain Shukla V/s. State of West Bengal (A. I. R.1970 SC 675) and S. K. Sekawat v. State of West Bengal (A. I. R.1975 S. C.64. It was held that where a detenue made a representation against the order of his detention and the State Government without considering the representation confirmed the order of detention, the State Government failed in its obligatory duty and the confirmation of detention was in violation of section 7 of the Act and Article 22 (5) of the Constitution and, therefore, invalid. 7. The same principles must apply to the case in hand. The petitioner admittedly made a representation which was never considered by the State government on its own merit. On the advice of the Advisory Board the detention order was confirmed, and the representation disposed of accordingly. 8. We, therefore, have no option but to quash the order of detention (Annexure 1 dated 9.4.1996) and the order of confirmation by the State government (Annexure 2, dated 20th april, 1996 ). The petitioner shall be released forthwith unless required to remain in custody in connection with any other case. This writ-petition is allowed. Petition Allowed.