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2008 DIGILAW 895 (MP)

RIZWAN @ RIJJU v. STATE OF M. P.

2008-07-22

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2008
Judgment ( 1. ) S.K. Kulshrestha, J. :-This petition for a writ of Habeas Corpus has been filed by detenu Rizwan @ Rijju S/o Abdul Gaffar through his mother Raisabee assailing the order of detention dated 25th March, 2008 (Annexure-P/1), passed by the District Magistrate, Indore in exercise of the power conferred upon him by Section 3(2) of the National Security Act, 1980 (here-in-after referred to as "the Act") in pursuance whereof, he has been taken into custody and detained. In support of the order of detention, grounds (Annexure-P/4) as required by Section 8 of the Act, have been furnished to the detenu within the period prescribed therein. ( 2. ) In the grounds of detention, it is stated that on the festival of Holi, he had, on 22/3/2008 gone to the petrol pump and asked the Manager Manish Chouhan to give him petrol, who on his refusal, was abused by the detenu stating that he was supplying petrol to Hindus, but not to Muslims. Immediately thereafter, he alongwith his companions shot a bullet from the firearm which missed the said manager, but went through the window pane which broke. The bullet had caused damage to the pump and its machinery. There was every chance of spark and conflagration. The other grounds namely the ground No. 1 refers to commission of an offence by him under Sections 323, 294, 506 read with Section 34 of the I.P.C. ( 3. ) The learned counsel for the petitioner has submitted that ground No.l refers only to the trivial offence under the provisions of Indian Penal Code, which does not constitute any activity prejudicial to the public order but relates to law and order. Learned counsel submits that even the ground No.2 in which it is stated that he fired a bullet which missed the manager of the petrol pump and struck the glass, also does not constitute sufficient material for corning to the conclusion that it was prejudicial to the public order. Learned counsel submits that even the ground No.2 in which it is stated that he fired a bullet which missed the manager of the petrol pump and struck the glass, also does not constitute sufficient material for corning to the conclusion that it was prejudicial to the public order. Learned counsel has also submitted that although in the grounds of detention, it has been stated that the detenu has a right to file representation against his detention to the State Government [Additional Chief Secretary M.P. Government, Home (C) Department, Bhopal] and also to the Advisory Board and he has also a right to appear before the Advisory Board, nothing has been stated about the right of the detenu to file representation to the Central Government, with the result, the guarantee under Article 22(5) of the Constitution of India stands breached and defeated. ( 4. ) The short question that arises in the present case is as to whether on account of non-communication to the petitioner that he has a right to represent against his detention to the Central Government, the order of detention is vitiated. ( 5. ) Learned counsel for the petitioner has not entered the arena in -so- far-as the ground No.2 is concerned and its consequence being prejudicial to the public order. He has confined his argument to the effect that since he has not been apprised that he could make representation to the Central Government, the detention deserves to be quashed. ( 6. ) Learned counsel for the State has invited attention to the decision of the Supreme Court in Union of India v. Harish Kumar [2008 (1) S.C.C.195] in which in para 10 of the report, their Lordships have observed as under:- "The infraction of the constitutional right to make a representation on account of non-intimating the detenu about his right to make a representation or the opinion of the Advisory Board and the order of detention not being made within the period prescribed under law does not get into the satisfaction of the detaining authority while making an order of detention under Section 3(1) of the COFEPOSA Act. If the detaining authority on the basis of the materials before him did arrive at his satisfaction with regard to the necessity for passing an order of detention and the order is passed thereafter, the same cannot be held to be void because of a subsequent infraction of the detenus right or of non-compliance with the procedure prescribed under law. On such infraction and for non-compliance with the procedure prescribed under law, the further detention becomes illegal. But it does not affect the validity of the order of detention itself issued under Section 3 (1) of me Act by me detaining authority". (Emphasis Supplied) ( 7. ) Before proceeding to consider the case in the light of law, as here-in-above enumerated, by the Apex Court, it would be advantageous to refer to the provision for representation as contained in the act. Section 14 (1) of the Act reads as extracted below:- Revocation of detention orders-(1)\ Wmoutpreju(ficetomeprovisions of Section 21 of the General Clauses Act, 1987 (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 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 a State Government, by the Central Government. ( 8. ) It is quite luculent from the provisions contained in Clause-A that not only the State Government but the Central Government also can revoke the detention even in the case of the order passed by the Detaining Authority exercising powers under Section 3(2) read with the authorisation contained in sub-section 3 thereof. ( 9. ) The learned Dy. A.G., has pointed out that even if an infraction is complained, it is only the further detention which becomes illegal and not the order of detention. ( 10. ) Considering the fact that Central Government is also authorised to revoke the detention at any time, be it a detention order passed by the District Magistrate under Section 3(2) read with the power conferred under Section 3(3) of the Act or the State Government, we are of the considered view that it was mandatory that the detenu was apprised of his right to make representation also to the Central Government. It having not been done, we are of the considered view that the right of the detenu under Article 22(5) of the Constitution of India has been impinged and curtailed and the detention order though can be maintained, the further detention cannot be allowed. ( 11. ) In the result, this petition succeeds. The further detention of the detenu in . pursuance of the order (Annexure-P/1) dated 25/3/2008 passed by the learned District Magistrate, Indore is set aside. It is directed that detenu be now released from custody, if not required in connection with any other offence. Petition Succeeds.