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Madhya Pradesh High Court · body

1996 DIGILAW 793 (MP)

Lakhan v. State of M. P.

1996-09-06

R.D.SHUKLA, SHAMBHOO SINGH

body1996
ORDER R.D. Shukla, J. -- 1. The petitioner challenges detention order passed by the District Magistrate of Ujjain in exercise of powers under sub-section (2) of section 3 of National Security Act, 1980 (hereinafter referred to as 'the Act'). 2. The District Magistrate Ujjain passed order of detention (Ex. P/2) on 24.2.96, which was served on the same day, alongwith grounds of detention (Ex. P/3) and description of reports against the detenue vide Ex. P/4, P/5 and P/6. The order was approved by the State Government vide Ex. P/1 on 3.4.96. The case was referred to Advisory Board constituted under S. 9 of the National Security Act 1980. The Board approved the same vide Annexure-A. The petitioner has challenged the order mainly on two grounds: Istly that proper opportunity for making representation against detention has not been afforded and IIndly that there is total non-compliance of mandatory provision of sub-section (5) of Sec. 3 of the Act. It has further been submitted that the grounds alleged are old and stail. No substantive offence was registered against the accused after 1994 and, therefore, there was neither sufficient ground nor urgency for detaining the detenue. It has been vehemently opposed by the respondent-State. 3. Learned counsel for the State Shri Desai has submitted that act of the accused was prejudicial to the public order and it was for this reason that the detention order was proposed and the same has been approved by the Advisory Board constituted under S. 9 of the National Security Act. The next contentions of the learned counsel for the respondent-State is that since no representation against the detention was made by the Detenue to the State Government and, therefore, there was no necessity of reporting the fact to the Central Government. The right of representation flows from Article 22 (5) of the Constitution. 4. Section 8 of the Act provides that when a person is detained in pursuance of detention order the authority making order shall, as soon as may be ordinarily within 5 days, on exceptional circumstances within 10 days, communicate to him the grounds on which the order has been made and shall afford the earliest opportunity of making a representation against the order to the appropriate Government. 5. 5. The grounds of detention (P/3) at para-3 (as served on detenue) contains a recitation that detenue has got a right to appear before the Advisory Board against the detention order. It nowhere mentions that detenue is entitled to make a representation to the State Government or the Central Government. The detenue has a right to make a representation to the State Government and/or Central Government as the order of detention can be revoked by the Central Government in exercise of powers under section 14 of the Act. Similarly, the State Government can revoke the detention order in exercise of powers under S. 13 of the Act. 6. Article 22 (5) of Constitution provides that when any person is detained in pursuance of an order made under any law providing for detention, the Authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. 7. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the Authority (State Government & Central Government here). Failure on the part of the specified officer (District Magistrate here) to inform the detenue that he has a constitutional right to make a representation to the Central Government or the State Government against the order of detention violates Article 22 (5) of the Constitution. (See 1996 SCC (Cri) 269) Nutan J. Patel (Ms) v. S. V. Prasad & Anr. 8. The Constitutional Bench of the Supreme Court, as reported in (1995) 4 SCC 51 (Kamlesh Kumar Patel v. Union of India & Ors.) has laid down the following principles: "Fundamental rights available to the detenue must be strictly enforced irrespective of the nature of activities of the detenue-While discharging the constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, the Court would not be influenced by the nature of the activities of the detenu. History of liberty is the history of procedural safeguards The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. History of liberty is the history of procedural safeguards The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "zealously watched and enforced by the Court". Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. 9. The petitioner-detenu had made a representation to the Advisory Board constituted under the Act. It has therefore been argued that the detenue has failed to make representation against the order of detention. We do not agree with this contention. The contents of Article 22 (5) as well as the nature of duty imposed thereby on the detailing authority support the view that so long as there is a representation made by detenu against the order of detention dual obligation under Article 22 (5) arises irrespective of the fact whether the representation is addressed to the detaining authority or the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Art. 22 (5) enacted as one of the safeguards provided to the detenue in case of preventive detention. Reference may be had to AIR 1991 SC 1090 (Smt. Gracy v. State of Kerala & Anr.). 10. Under sub-section (5) of section 3 of the Act when any order is made or approved by the State Government under this section the State Government shall within 7 days report the fact to the Central Government together with the grounds on which order has been made and such other particulars as in the opinion of the State Government have a bearing in the necessity for the order. This is a mandatory provision. This is not in dispute and atleast there is no evidence to show that after approval by the State Government vide Annexure-P/1 the matter was reported to the Central Government. Thus, there is non-compliance of mandatory provision of sub-section (5) of Sec. 3 of the Act. 11. We would like to mention here that in cases of detention under National Security Act the detaining authority (District Magistrate here) has no right to revoke the same. It is the State Govt. Thus, there is non-compliance of mandatory provision of sub-section (5) of Sec. 3 of the Act. 11. We would like to mention here that in cases of detention under National Security Act the detaining authority (District Magistrate here) has no right to revoke the same. It is the State Govt. and the Central Govt. u/S. 13 & 14 of the Act have powers to revoke the same and, therefore, non-affording the opportunity to make representation before the detaining authority (District Magistrate here) would not be fatal in cases of detention under National Security Act. However, the position would be different if the person is detained under the provisions of Preventive of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act where detaining authority itself has a right to revoke the order. 12. In view of the discussions above firstly the detenu has not been given proper opportunity of representation to the appropriate authority as the grounds supplied to the detenu do not contain any recitation that he is entitled to make representation to the State Government and/or Central Government. 2ndly the representation made by the detenu to the Advisory Board should be taken as a representation to the State Govt. and the same ought to have been decided. Thus, the State Govt. has failed to decide the representation made by the detenu. 3rdly there is total non-compliance of provisions of Sec. 3 (5) of the Act. For the reasons above there has been a breach of fundamental right of the detenu and, therefore, the detention order cannot be sustained. 13. As a result, the petition succeeds and is allowed. The detention order passed by the District Magistrate, Ujjain (Annexure-P/2) is hereby quashed. The detenu lie released forthwith.