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2001 DIGILAW 338 (RAJ)

Sujiya @ Suje Khan v. State of Rajasthan

2001-02-26

H.R.PANWAR, N.N.MATHUR

body2001
JUDGMENT 1. - These writ petitions are disposed of by a common judgment as the point of law involved in both the cases is same. 2. In the first writ petition being D.B. Civil Writ (Habeas Corpus) Petition No. 3371/2000 Sujiya v. State of Rajasthan , the detenu has challenged the order of detention dated 1.3.2000 passed by the District Magistrate, Jaisalmer, in exercise of powers under Section 3(3) of the National Security Act, 1980. A reply to the writ petition has been filed supported by the affidavit of Shri Rajat Kumar Mishra, District Magistrate, Jodhpur. It is averred that the detenu was found involved in smuggling of narcotics and illegal crossing of the borders of India and Pakistan. It is also averred that the detenu's nephew Sikiya is residing in Pakistan since long and he is arranging smuggling goods and arms and ammunition to the detenu. The detenu is also engaged in sending information of national security to Pakistan Intelligence agencies. Thus, the activities of detenu were found prejudice to the security of State. 3. In second writ petition being D.B. Civil Writ (Habeas Corpus) Petition No. 4241/2000 Kishore Kumar v. State of Rajasthan , the detenu has challenged the order of detention dated 6.6.2000 passed by the District Magistrate, Bhilwara in exercise of powers under Section 3(3) of the National Security Act, 1980. A reply to the writ petition has been filed, supported by the affidavit of Shri Sohanlal Sharma, Additional District Magistrate, Bhilwara. A supplementary affidavit has been filed by Shri C.P. Vyas, District Magistrate, Bhilwara stating that before passing the order of detention he arrived at the subjective satisfaction, after examining the record placed before him. In his opinion, the activities of the detenu were opposed to the public order and created panic and fear in the minds of general public. Therefore, in order to maintain the public order, he felt it necessary to detain the detenu Kishore Kumar. It is also averred in the reply that detenu has been involved in as many as 14 cases. In number of cases after investigation, charge sheet has been laid against him before the competent court. It was also found that even after released on bail, he continued to commit activities prejudicial to the maintenance of public order. The activities of the detenu has created panic and fear in the minds of public. In number of cases after investigation, charge sheet has been laid against him before the competent court. It was also found that even after released on bail, he continued to commit activities prejudicial to the maintenance of public order. The activities of the detenu has created panic and fear in the minds of public. His activities have bearing on the question of maintenance of public order. 4. Various contentions have been raised in both the writ petitions. The common question raised in the writ petition is that there is infraction of the valuable right of the detenu guaranteed under article 22(5) of the Constitution which vitiates the order of detention, inasmuch, as both the detenus were not communicated that they have right to make representation to detaining authority. The reliance has been placed on the recent decision of the Apex Court in the case of State of Maharashtra and Others v. Santosh Shankar Acharya, reported in AIR 2000 SCW 2711 . 5. Section 3 of the National Security Act, 1980 empowers the State Government to issue the order of detention under sub-section (1) of Section 3. The District Magistrate or the Commissioner of Police on being authorised by the State Government can also issue an order of detention under sub-section (3). In view of the sub-section (4) the detaining authority is bound to report forthwith the fact of detention and grounds on which the order of detention is being made and or other particulars to the State Government. On receiving the report, the grounds and the particulars of the officer concerned, the State Government is required to approve the order of detention within 12 days and if it is not approved within 12 days, that the order of detention automatically lapses. Section 3 of the National Security Act, 1980 read as follows : 3. On receiving the report, the grounds and the particulars of the officer concerned, the State Government is required to approve the order of detention within 12 days and if it is not approved within 12 days, that the order of detention automatically lapses. Section 3 of the National Security Act, 1980 read as follows : 3. Power To Make Orders Detaining Certain Persons : (1) The Central Government or the State Government may : (a) if satisfied with respect to any person that with a view to prevent him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, of the security of India, or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained. (2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State of from acting in any manner prejudicial to maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained. Explanation. - For the purposes of this sub-section, `acting in any manner prejudicial to the maintenance of supplies and services essential to the community' does not include `acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community' as defined in the Explanation to sub-section (1) of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of the 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under this Act. (3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section : Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. (4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact 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 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 : Provided that where under Section 8 the grounds of detention are communicated by the officer making the order after five days but not late than ten days from the date of detention, this sub-section shall apply subject to the modification that, for the words `twelve days' the words `fifteen days' shall be substituted. (5) when any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, having a bearing on the necessity for the order. 6. 6. Section 8 specifically provides that the detenu must be communicated the grounds on which the order of detention has been made, as soon as may be, ordinarily not later than five days and in exceptional circumstances and for the reasons recorded in writing, not later than ten days from the date of detention. With a view to afford him the earliest opportunity of making representation against the order to the appropriate Government. Section 8 of the National Security Act, 1980 reads as follows : 8. Grounds Of Order of Detention To Be Disclosed To Persons Affected By The Order : (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. (2) Nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. 7. Thus, Section 8 of the National Security Act, 1980 in terms provides for a representation to the appropriate Government. Section 14 is peri-materia to Section 14 of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as `Maharashtra Act'). Section 14 of the National Security Act, 1980 reads as follows 14. Revocation of Detention Orders : Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified.- (a) notwithstanding that the order has been made by an officer to mentioned in sub-section 3 of Section 3, by the State Government to which that officer is subordinate or by the Central Government; (b) notwithstanding that the order has been made by the State Government, by the Central Government. (2) The expiry or revocation of a detention order (hereafter in this is sub-section referred to as the earlier detention order) shall not (whether such earlier) detention order has been made before or after the commencement of the National Security (Second Amendment) Act, 1984) bar the making of another detention order (hereafter in this sub-section referred to as the subsequent detention order) under Section 3 against the same person : Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order. 8. The Apex Court in the case of State of Maharashtra and Others v. Santosh Shankar Acharya (supra) has held that in a case where an officer other than the State Government issues an order of detention under sub-section (2) of Section 3 his powers as the detaining authority to deal with the representation under the provisions of Section 21 of the Bombay General Clauses Act, 1904 cannot be said to be taken away merely because Section 8(1) provides for making a representation to the State Government. The court further held that in such cases so long as the order of detention has not been approved by the State Government such an authority has power to receive the representation and revoke the detention. The Apex Court distinguished its earlier decision in Veeramani v. State of Tamil Nadu, reported in (1994) 2 SCC 337 . The court observed as follows:- "In our considered opinion this decision does not assist the respondents in any manner inasmuch as the Court in Veeramani has considered the situation that emerged subsequent to the date of approval of the order of detention by the State Government and not prior thereto. The court observed as follows:- "In our considered opinion this decision does not assist the respondents in any manner inasmuch as the Court in Veeramani has considered the situation that emerged subsequent to the date of approval of the order of detention by the State Government and not prior thereto. As has been stated earlier, it may be difficult to contend that even after the approval of the order of detention by the State Government the detaining authority would still be competent to entertain and dispose of a representation in exercise of the powers under Section 21 of the Bombay General Clauses Act, but this decision cannot be said to be an authority to hold that even before the approval of the order of the detaining authority the detaining authority does not possess the power under Section 21 of the Bombay General Clauses Act. Such a conclusion would make the entire provision of Section 14 of the Maharashtra Act redundant and otiose. Then again the Court had fully relied upon the observations of this Court in State of Maharashtra v. Sushila Mafatlal Shah and the judgment of Sushila Mafatlal Shah has been directly considered and overruled in the Constitution Bench decision in Kamlesh Kumar case. It would also be appropriate to notice that even in Raj Kishore Prasad v. State of Bihar though the Court did not entertain the contention that the detaining authority under the provisions of the National Security Act has a right to consider the representation on the ground that the order of detention had been approved by the State Government yet it had been observed that constitutionally speaking a duty is cast on the detaining authority to consider the representation which would obviously mean that if such representation is made prior to the approval of the order of detention by the State Government. This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non-communication of the fact to the detenu that he has a right to make a representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid." 9. In both the writ petitions it is undisputed fact that till the date State approved the order of detention, the detenus were not communicated their right to make representation to the detaining authority. In view of the decision of the Apex Court in Maharashtra's case till the date of approval the petitioner-detenu had right to make representation to the detaining authority also. Thus both the detaining authorities i.e., District Magistrate, Jodhpur and District Magistrate, Bhilwara have failed in observing constitutional mandate in not informing the detenus that they could make a representation to them for the revocation of the order of detention. Thus, the order of detention of Sujiya as well as of Kishore Kumar are rendered illegal. Thus, we do not feel it necessary to deal with other submission made on behalf of the petitioners. 10. Consequently, both the writ petitions being D.B. Civil Writ (Habeas Corpus) Petition No. 3371/2000 and D.B. Criminal Writ (Habeas Corpus) Petition No. 4241/2000 are allowed. The order of detention of detenu Sujiya in D.B. Civil Writ (Habeas Corpus) Petition No. 3371/2000 and detenu Kishore Kumar in D.B. Criminal Writ (Habeas Corpus) Petition No. 4241/2000 is held illegal. The detenus Sujiya as well as Kishore Kumar are directed to be set at liberty forthwith if both or either of them are not required to be detained in connection with any other case. No order as to costs.Writ Petition allowed. *******