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Rajasthan High Court · body

1997 DIGILAW 1085 (RAJ)

Rashid v. State of Rajasthan

1997-09-05

G.L.GUPTA, S.C.MITAL

body1997
Honble GUPTA, J.–This habeas corpus petition under Article 226 of the Constitution of India has been put in by Rashid challenging the detention of his brother Siraj Khan by the District Magistrate, Udaipur vide detention order dt. 1.4.1997 issued under Sec. 3(2) of the National Security Act, 1980. (2). The grounds listed in petition are: (i) the detenu was not informed of hisconstitutional right to make representation before the specific authority particularly the Central Govt. and the Advisory Board who could revoke the order of detention, (ii) the grounds which have been supplied are squarely the grounds of law & order and not of public order, (iii) the detaining authority failed to discharge statutory obligation to supply the detenu grounds of detention within five days as though thedetention order was passed on 1.4.1997, the grounds were supplied to the detenu on 9.4.97, and no reasons have been given for the delay, (iv) the grounds of detention were formulated on 7.4.97 whereas the order of detention was passed on 1.4.97. and, (v) the documents supplied to the detenu were not explained to him and as the detenu was illiterate, he was deprived of submitting effective and pur-poseful representation. (3). In the reply, the State of Rajasthan admitted that Siraj Khan was in detention under the orders of the District Magistrate. It was however, denied that the activities of the detenu were not dangerous to the public order, or that there was violation of Article 22(5) of the Constitution of India, denying that the groundswere formulated on 7.4.1997, it was averred that the grounds were formulated on 1.4.97 but as the detenu was in police custody upto 7.4.1997 and was sent in judicial custody on 7.4.97 and 8th of April was holiday, the grounds were supplied to him on 9.4.97. (4). In the rejoinder the petitioner reiterated the facts mentioned in the petition. (5). We have heard the arguments of the learned counsel for the petitioner and the learned Additional Advocate General and perused the record of the case. (6). (4). In the rejoinder the petitioner reiterated the facts mentioned in the petition. (5). We have heard the arguments of the learned counsel for the petitioner and the learned Additional Advocate General and perused the record of the case. (6). Though the detention order has been assailed on many grounds in the writ petition, Mr.Kalla confined his arguments to two grounds viz., (i) the detaining authority did not inform the detenu of his right to make representation to the CentralGovernment and the Advisory Board who were empowered to revoke the order of detention and (ii) the detaining authority did not specify the officer of the State of Rajasthan before whom the representation could be made by the detenu. It was contended that there was non-compliance of Article 22(5) of the Constitution of India, and therefore, the detention is vitiated. Mr. Kalla cited the cases of Amir ShadKhan vs. L.Hmingalana & Ors. (1), Raghvendra Singh vs. Supdt. Central Jail, Kanpur (2), Kamleshwar Ishwardas Patel vs. Union of India (3) and Nutan J Patel vs. S.V. Prasad (4) in support of his contention. (7). The contention of Mr. Jasmatia, on the other hand, was that the detenu was informed of his right to make representation vide letter Anx. 2 dt. 9.4.1997 and,therefore, there was no violation of his right of information enshrined under Article 22(5) of the Constitution of India. (8). We have carefully considered the above arguments. It is not disputed that the District Magistrate had informed Siraj Khan, detenue vide letter Anx.2 dt. 9.4.97 that he could make representation against the detention through the Superinten-dent, Central Jail Udaipur, either to him or to the State of Rajasthan. (9). The point to be considered is, if the Distt. Magistrate violated the right of information of the detenu, when he did not inform him that he could also make representation to the Central Government and the Advisory Board. (10). Section 8 of the National Security Act, 1980 (for brevity hereinafter referred to as the Act of 1980) provides that the detaining authority shall afford the detenue the earliest opportunity of making a representation against the order of detention to the appropriate Government. (10). Section 8 of the National Security Act, 1980 (for brevity hereinafter referred to as the Act of 1980) provides that the detaining authority shall afford the detenue the earliest opportunity of making a representation against the order of detention to the appropriate Government. The words ``appropriate government have been defined in Section 2(a) of the Act, as follows:– (a) ``appropriate Government means, as respects a detention order made by the Central Government or a person detained under such order, the Central Government, and as respect s a detention order made by a State Government or by an officer subordinate to a State Government or as respects a person detained under such order, the State Government; (11). It is thus obvious that when a detention order is made by the State Government or by an officer subordinate to the State Government the State Govern-ment is the authority under Sec. 8(1) of the Act before whom a representation can be made by the detenu. In the instant case, admittedly the detenu was informed of his right to make representation to the State Government. As such it cannot be said that the detenu was not informed of his right to make representation against the order of detention. (12). The contention of Mr. Kalla was that Section 14 of the Act empowers the Central Government also to revoke the detention order and therefore, it was incumbent upon the District Magistrate to have informed the detenu of his right to make representation to the Central Government and as it was not done there was violation of Article 22(5) of the Constitution of India. (13). At the outset, it may be stated that the rulings which have been cited in support of the above contention relate to the detention under the provisions of COFEPOSA Act or the PITS NDPS Act. It is relevant to point out that there is a significant difference in the provisions of the National Security Act and the other two Acts i.e. COFEPOSA & PITS NDPS. Specific provision, providing for the authorityto whom a representation against the detention order is to be made, finds place in Sec. 8(1) of the Act. It is relevant to point out that there is a significant difference in the provisions of the National Security Act and the other two Acts i.e. COFEPOSA & PITS NDPS. Specific provision, providing for the authorityto whom a representation against the detention order is to be made, finds place in Sec. 8(1) of the Act. Section 8 of the Act of 1980 mandates that two duties are to be performed by the detaining authority; first the grounds are supplied to the detenu within five days and in exceptional circumstances within 10 days and, second, the detenu shall be afforded an opportunity of making representation against the orderto the appropriate government. There is no such provision in the other two enactments i.e. COFEPOSA Act and PITS NDPS Act. Section 3(3) of those Acts require the performance of one duty only i.e. the grounds of detention shall be communicated to the detenu within a specified period. But there is no provision casting a duty on the detaining authority that the detenu shall be informed of his right to make repre-sentation against the detention. (14). The Honble Apex Court considering the provisions of Article 22(5) of the Constitution of India has held in various cases that when the life and liberty of a citizen is involved, it is expected that the government will ensure that the constitutional safeguards embodied in Article 22 are strictly observed and that when a per-son is detained under any law of preventive detention the authority making the order shall not only communicate to such person grounds on which the order has been made but shall also afford him the earliest opportunity of making a representation against the order. (15). In all the cases cited at the Bar, the question before their Lordships ofthe Supreme Court was as to whether it was necessary for the detaining authority to inform the detenu that he could make representation against his detention to him (detaining authority) also. (16). In the case of Kamleshwar Ishwardas (supra) the question that whether it was necessary for the detaining authority to have informed the detenu that he could make representation against his detention to the detaining authority also, was answered in the affirmative keeping in view the provision of Sec. 21 of the General Clauses Act. (16). In the case of Kamleshwar Ishwardas (supra) the question that whether it was necessary for the detaining authority to have informed the detenu that he could make representation against his detention to the detaining authority also, was answered in the affirmative keeping in view the provision of Sec. 21 of the General Clauses Act. At the same time, their lordships noticed the difference in the provisions of the COFEPOSA & PITS NDPS Act on the one side and the provisions of National Security Act on the other. It was observed at para 19 as follows:– ``19. The provisions in the COFEPOSA Act and PIT NDPS Act differ from those contained in the National Security Act, 1980 as well as earlier preventive detention Laws, namely, the Preventive Detention act, 1950 and the Maintenance of Internal Security Act, 1971 in some respects. Under Sub-section (3) of the National Security Act, power has been conferred on the District Magistrate as well as the Commissioner of Police to make an order of detention, and sub- section (4) of Section 3 prescribes that the officer shall forthwith report the fact of making the order to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and that no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government. In Section 8(1) of the National Security Act it is prescribed that the authority for making the order shall afford the person detained the earliest opportunity of making a representation against the order to the appropriate Government. Similar provisions were contained in the Preventive Detention Act, 1950 and the Maintenance of Internal Security Act, 1971. The COFEPOSA Act and the PIT NDPS Act do not provide for approval by the appropriate Government of the orders passed by the officer specially empowered to pass such an order under Section 3. The said Acts also do not lay down that the authority making the order shall afford an opportunity to make a representation to the appropriate Government. The COFEPOSA Act and the PIT NDPS Act do not provide for approval by the appropriate Government of the orders passed by the officer specially empowered to pass such an order under Section 3. The said Acts also do not lay down that the authority making the order shall afford an opportunity to make a representation to the appropriate Government. The above observations indicate that their lordships noticed that there is specific provision in Section 8(1) of the National Security Act prescribing that the authority shall afford the person detained the earliest opportunity for making arepresentation to the appropriate Government. (17). As already stated, there is no provision in the other two enactments viz. COFEPOSA Act and PIT NDPS Act like the one of Section 8 of the National Security Act providing for the authority to whom the representation against the detention is to be made. The Honble Apex Court in such circumstance observed in the afore-said case that the representation must be made to the authority which has the power to rescind or revoke the detention. In this context, the observations at para no.3 of the case of Amir Shad Khan vs. L.Hmingaliana (supra) were quoted and thereafter it was observed as follows:- ``14. Article 22(5) must, therefore, be construed to mean that the per- son detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e. the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relie f by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representa- tion against the order of detention to the authorities who are required to consider such a representation. (18). The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representa- tion against the order of detention to the authorities who are required to consider such a representation. (18). It is obvious that because of the absence of specific provision in the COFEPOSA Act about the authority to whom the representation is to be made under Article 22(5) of the Constitution of India, their Lordships held that the representation could be made to the authority who was competent to consider the representation, i.e. the authority which has the power to rescind or revoke the detention order. However, in the National Security Act there is a provision contained in the Act itself that a representation has to be made to the appropriateGovernment. In view of the specific provision in the Act itself, it cannot be said that the detenu was entitled to know that the representation could be made to the various authorities who were competent to revoke or rescind the order. (19). Though no direct authority on the point has come to our notice, yet a reading of the undermentioned two cases helps us in deciding the point in issue: (i) The Apex Court had an occasion in the case of Raj Kishore vs. State of Bihar (5) to consider the provisions of Sec.8 of National Security Act for the purpose of deciding that whether it was necessary for the detaining authority to inform the detenu that he could make representation to him also. The question was answered in the negative mainly on the ground that there is specific provision providing forthe authority to whom the representation is to be made. It was observed at para no.7 as follows:– ``However. in view of the specific provision contained in Section 8 which requires that the detaining authority shall afford earliest opportunity to make a representation not to detaining authority but to appropriate government, it follows as a corollary that the appropriate Government must consider it. It was observed at para no.7 as follows:– ``However. in view of the specific provision contained in Section 8 which requires that the detaining authority shall afford earliest opportunity to make a representation not to detaining authority but to appropriate government, it follows as a corollary that the appropriate Government must consider it. (ii) In the case of Amin Mohammed Qureshi vs. Commissioner of Police, Greater Bombay (6) which was also a case under the National Security Act it was observed that there is a specific provision in the National Security Act to the effectthat the detention order will cease to remain in force for more than 12 days if in the meantime it is not approved by the State Government and, therefore, the authorities to whom the representation could be made would be the Central Government and the State Government as the case may be, and not the detaining authority. The question involved in that case was also that if it was necessary to informthe detenu that he could also make representation to the detaining authority, which was answered in the negative but the observations made in the judgment reveal that in the matter of National Security Act the representation is only to be made to the appropriate Government and not to any other authority. (20). The case of Veeramani vs. State of Tamil Nadu (7) arose under the TamilNadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 the provisions of which are not very different from the provisions of the National Security Act. Their lordships noticed the difference in the provisions of COFEPOSA Act and Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offen-ders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 and observed at para no. 21 as follows:- ``Therefore even in the context of Article 22(5) the scheme of the particular Act has to be examined to find out the authority to whom a representation can be made. The observations made in Ibrahim Bachu Bafans case and Amir Shad Khans case under COFEPOSA Act do not change the legal scenario under the other Acts where the legal implications in the context of Article 22(5) are of different nature but in conformity with the spirit and avowed object underlying Article 22(5). (21). The observations made in Ibrahim Bachu Bafans case and Amir Shad Khans case under COFEPOSA Act do not change the legal scenario under the other Acts where the legal implications in the context of Article 22(5) are of different nature but in conformity with the spirit and avowed object underlying Article 22(5). (21). The above observations make it crystal clear that if there is specific provision in any enactment in conformity with the spirit and avowed object of Article 22(5), the matter should be examined in the light of the provisions of that Act, even though the power of revocation vests in some other authorities also. (22). Section 8 of the National Security Act names the authority who is competent to consider the representation of the detenu under Section 8 of the Act. Therefore, if detenu is informed of his right to make representation to the appropriate Government, i.e. the State Government if the detention order was passed by the Officer of the State Government and the Central Government if the order waspassed by the Officer of the Central Government it is sufficient compliance of the provisions of Article 22(5) of the Constitution of India. (23). The detention order cannot be held to have vitiated because the detenu was not informed that he could make representation to the Central Government. The detention order was not passed by the Central Government and, therefore,obviously the Central Government was not the appropriate Government to consider the representation. Section 3 of the Act provides that when an order is made under Section 3 or approved by the State Government, the State Government shall within 7 days report the fact to the Centrla Govenrment together with the grounds on which the order has been made. Thus, a duty has been cast on the State Govern-ment to send a copy of the detention order and the copy of the grounds on which the detention order was passed to the Central Government. It is true that the Central Government under Section 14 of the Act is empowered to revoke the detention order even when it was passed by the State Government but by that a duty is not cast to the detaining authority to inform the detenu that he could make representa-tion to the Central Government as well. It is true that the Central Government under Section 14 of the Act is empowered to revoke the detention order even when it was passed by the State Government but by that a duty is not cast to the detaining authority to inform the detenu that he could make representa-tion to the Central Government as well. The provision of Section 3(5) of the Act has been made in order to keep the Central Government apprised of the detention orders made by the State Government but it has been clearly provided in Section 8 that a representation can be made only to the State Government when the order, making detention was passed by the officer of the State Government. In other wordsthe Central Government though has been empowered to revoke the order, yet the detenu has been given right to make representation only to the appropriate Government i.e. the State Government. As such the order is not vitiated because the detenu was not informed that he could also make representation to the Central Government. (24). In the case of Raghvendra Singh (supra) relied on by Mr. Kalla it has not been held that the detenu should be informed of his right to make representation to the Central Government. The observations at para no.3 were made because the detenu had also made representation to the President of India, the Prime Minister of India after his representation was rejected by the State Government. The ApexCourt has held that the representation addressed to the President of India was properly addressed to the Central Government. It is not the point in issue in the instant case that a representation was made by the detenu and it was not considered by the appropriate authority. This case does not help the petitioner. (25). A duty has been cast on the State Government under Section 9 of the Actto constitute Advisory Boards. It is the duty of the State Government under Section 10 to place before the Advisory Board the detention order, the grounds on which the order was passed, and the representation, if any, made by the person affected by the order. Thus, when a representation is made by a detenu it is the duty of the State Government to forward the same to the Advisory Board for consideration. Thus, when a representation is made by a detenu it is the duty of the State Government to forward the same to the Advisory Board for consideration. Onthe ground that the detenu was not informed that he could make representation to the Advisory Board constituted under Section 9 it cannot be held that the detention is vitiated. (26). In the instant case, the detenu was informed that he could make representation against his detention through the Superintendent Central Jail, Udai- pur to the detaining authority himself or the State Government. As a matter of fact, in the matters of National Security Act, the detenu is not required to be informed that he could make representation to the detaining authority, even then the detaining authority informed the detenu that he could make a representation to him also. In any case, it was clearly informed that representation could be made to the State Government through the Supdt. Central Jail, Udaipur. There was thus no violation of fundamental rights enshrined under Article 22(5) of the Constitution of India. The detention can not be held to have vitiated because in the order Anx. 2 it was not stated that the representation could be made to the Central Government. (27). The order of detention also cannot be quashed on the ground that in the letter Anx.2 it was not informed that to whom the representation was to be addressed. In the order, it was clearly, stated that the representation could be made through the Supdt. Central Jail, Udaipur to the State Government. It was, therefore, for the Supdt. Central Jail Udaipur to forward the representation to the concernedofficer of the State Government. The order cannot be held to have vitiated because the designation of the officer to whom the representation could be addressed was not mentioned. The observations made in the case of Nutan J. Patel (supra) are to be read in the context in which the matter was considered by the Honble Apex Court. In that case the question for consideration was whether the order was vitia-ted because the detenu was not informed that he could make the representation to the authority who had passed the detention order. The words `specified officer used in the judgment obviously refer to the authority who had passed the detention order. In that case the question for consideration was whether the order was vitia-ted because the detenu was not informed that he could make the representation to the authority who had passed the detention order. The words `specified officer used in the judgment obviously refer to the authority who had passed the detention order. It is relevant to state that, that case was decided on the basis of constitution Bench decision of Kamleshwar Ishwardas (supra) in which it was held that thedetenu must be informed of his right to make representation to the authority that had made the order of detention. It is in this context that the word `specified officer was used in the case of Nutan J. Patel. This ruling is not an authority on the point that the detenu should also be informed the name/designation of the officer of the State Government to whom the representation should be addressed. (28). Consequently, we do not find any merit in both the contentions canvassed before us. No other ground was pressed by Mr. Kalla. (29). Before we conclude we deem it proper to consider one more ground taken in the petition which is to this effect that the detention order was passed on 1.4.97 whereas the grounds were formulated on 7.4.97. A reading of the photo copyof the grounds of detention Anx. 5 indicates that the detenu is A Class History Sheeter against whom as many as 30 cases have been registered in various police stations for the offences under the Arms Act and the Indian Penal Code from 1978 to the date of detention order. A complaint was also filed against him under Section 110 Cr.P.C. besides a complaint filed, under the Rajasthan Goonda Control Act.There is date 7.4.97 written at the bottom of the copy of the document Anx.5 filed along with the petition. If this date is accepted to be the correct date, the allegations in the petition that the detention order was passed without existence of any ground on 1.4.97 would stand substantiated. However, a perusal of the copy of the grounds Anx. 5, filed along with the return, indicates that the grounds were formulated onthe very day on which the detention order was passed. Date 1.4.97 appears at the bottom of the grounds. A bare perusal of Anx. 5 filed along with the petition, indicates that change has been made in the date. 5, filed along with the return, indicates that the grounds were formulated onthe very day on which the detention order was passed. Date 1.4.97 appears at the bottom of the grounds. A bare perusal of Anx. 5 filed along with the petition, indicates that change has been made in the date. Figure ``1 of date `1.4.97 obviously has been changed to figure ``7 in order to make it a ground of challenge. An affidavit has been filed in support of the reply that the grounds were formulatedon 1.4.97 and not on 7.4.97. There are circumstances to hold that the petitioner has made a change in the date to seek relief in the writ petition. This by itself disentitles the detenu the relief asked for. (30). Consequently, we find no merit in this petition which is hereby dismissed.