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2006 DIGILAW 296 (GAU)

Salam James Meitei @ Sanatombi @ Naocha @ Albertson @ Lantamba @ Ningthiba v. State of Manipur and Ors.

2006-03-24

M.B.K.SINGH, T.NANDA KUMAR SINGH

body2006
Heard Mr.Dolen Sharma, learned counsel appearing on behalf of the petitioner, Mr.Jalal Uddin, Addl.Government Advocate appearing on behalf of respondent nos.1 to 3 and Mr.N.Ibotombi, learned Advocate appearing on behalf of respondent no.4. [2] The petitioner was detained under NSA vide order passed on 7.11.2005 by the District Magistrate, Bishnupur purportedly for preventing him from acting in any manner prejudicial to the security of the State and maintenance of public order. Detention order was approved by the State Government on 15.11.2005 and the said detention order was confirmed by the State Government on 22.12.2005. [3] The petitioner is challenging the legality of the detention mainly on the ground that he was never informed about his right to make representation to the Detaining Authority within a period of 12 (twelve) days and as such his right under Article 22(5) of the Constitution has been violated. [4] Upon hearing the parties and on perusal of the counter affidavit filed on behalf of respondent no.2, it is ascertained that the petitioner/detenu was never informed about his right to make representation to the Detaining authority within a period of 12 (twelve) days in addition to his right to make representation to the appropriate Government. [5] In view of the decision of the Special Bench of this Court in Shri Konsam Brojen Singh @ Basan @ Sekhar @ Sekhar @ Sainthel @ Basanta @ Inaotomba Vs The State of Manipur & 3 Ors and (Writ Petition (Cril) No.35 of 2005] dated 27.2.2006, it is settled that: (para No.57 of the Judgment): “57. For all the aforesaid reasons, we hold: (1) That a detenu has two rights under Article 22(5) of the Constitution: (i) to be informed, as soon as may be, the grounds on which the order of detention is passed, i.e., the grounds which led to the subjective satisfaction of the detaining authority, and (ii) to be afforded the earliest opportunity of making a representation against the order of detention. The twin rights are available to a detenu whether they are provided for or not in the preventive detention laws. (2) The right to make representation to the detaining authority by a detenue in addition to his right to file representation to the Central Government or appropriate Government is also guaranteed under Article 22(5) of the Constitution which forms part of package of guaranteed fundamental right. (2) The right to make representation to the detaining authority by a detenue in addition to his right to file representation to the Central Government or appropriate Government is also guaranteed under Article 22(5) of the Constitution which forms part of package of guaranteed fundamental right. No distinction as such could be made in this regard in respect of the detention orders made either under COFEPOSA, PIT NDPS or National Security Act, 1980, as the case may be. (3) The detaining authority is under the constitutional obligation to inform the detenue of his right to make such a representation to the detaining authority. (4) The failure to inform the detenue of such right to make representation to the detaining authority vitiates the detention order made even under the provisions of the National Security Act, 1980”. [6] In our present case, in view of the finding that the Detaining authorities did not communicate to the detenu/petitioner of his right to make representation to the detaining authority in addition to his right to make representation to the appropriate Government and also having regard to the above noted decision, we are of the view that the impugned detention orders are liable to be set aside and quashed. [7] Accordingly, the impugned detention order dated 7.11.2005, the impugned approval dated 15.11.2005 and the impugned confirmation order dated 22.12.2005 are hereby quashed. Petitioner/detenu be released at his liberty forthwith if otherwise not required. Writ petition is accordingly allowed. No costs.