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Madhya Pradesh High Court · body

2010 DIGILAW 664 (MP)

Salim Khan v. State of M. P.

2010-07-07

S.K.SETH, SHANTANU KEMKAR

body2010
ORDER Shantanu Kemkar, J.: 1. By this petition under Article 226 of the Constitution of India the Petitioner, who has been detained under Section 3(2) of National Security Act, 1980 (for short the Act) on the basis of an order dated 15.1.10 (Annexure P-3) passed by the second Respondent/District Magistrate, Dewas, which has been confirmed by the State Government vide order dated 27.3.2006, has prayed for quashment of the said order and for his release from the custody. 2. The Petitioner claims that he is an Income Tax payee and he is doing business of wholesale grain merchant. The District Magistrate Dewas passed a detention order dated 15.1.10 and the Petitioner have been detained in Bherugarh Jail, Ujjain. The detention order was passed observing that the District Magistrate was satisfied that it was necessary to detain the Petitioner with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The order with the ground for detention was served upon the Petitioner on 15.1.2010. After approval of the Advisory Board the State Government passed the order dated 27.3.2010 in exercise of its powers under Section 12 of the Act, confirming the detention order dated 15.1.2010 for a period of 12 months. 3. Though various grounds have been raised by the Petitioner to challenge the order of his detention, but main contention of learned Counsel for the Petitioner is that, the Petitioner had made various representations, but the said representations have not been considered by the Respondents and as such there is denial of the constitutional safeguard conferred upon the Petitioner under Article 22(5) of the Constitution of India as also the mandatory requirement of Section 8(1) of the Act. 4. In reply the case of the Respondents is that the Petitioner did not produce any material on record to substantiate his claim of sending the representations. It has been stated by the Respondent in reply that the Petitioner be called upon to substantiate his claim of sending of the representations and unless the Petitioner substantiate the same it would not affect the detention order. 5. Heard learned Counsel for the parties and perused the original record, which was produced by leaned Dy. G.A. 6. It has been stated by the Respondent in reply that the Petitioner be called upon to substantiate his claim of sending of the representations and unless the Petitioner substantiate the same it would not affect the detention order. 5. Heard learned Counsel for the parties and perused the original record, which was produced by leaned Dy. G.A. 6. On going through the record produced before us we found that the representation dated 22.1.2001 submitted by the Petitioner's brother against the impugned detention order is available at Page 90 of the record. Thus, the stand of the Respondents denying the receipt of representation against the detention order gets falsified. 7. Article 22(5) of the Constitution reads thus : Article 22.- When any person is detained in pursuance for an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been passed and shall afford him the earliest opportunity of making a representation against the order. 8. Section 8(1) of the Act also prescribes that the authority making the order shall afford the person detained, the earliest opportunity of making representation against the order to the appropriate Government. 9. Having regarded to the clear position of law there can be no doubt that the detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within a reasonable dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering breach and would defeat the very concept of liberty, the highest cherished right, which is enshrined in Article 21 of the Constitution. (See: Smt. Shalini Soni v. Union of India and Ors., AIR 1981 SC 431 and Gazi Khan v. State of Rajasthan, AIR 1990 SC 1361 ). 10. (See: Smt. Shalini Soni v. Union of India and Ors., AIR 1981 SC 431 and Gazi Khan v. State of Rajasthan, AIR 1990 SC 1361 ). 10. Having regard to the aforesaid, we find that the mandatory provision of law and the procedural safeguard provided under the Act have not been complied with by the Respondents in as much as there is no decision on the representation submitted on his behalf against the order of his detention. 11. Accordingly, for the reason stated above we allow this petition and quash the detention order dated 15.1.10 (Annexure P- 3) and the confirmation order dated 27.3.10 as a consequence we direct the Respondents to release the detenu Salim Khan s/o Aziz Khan immediately from the custody, if he is not required in any other case. 12. With the direction aforesaid this petition is disposed of.