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2012 DIGILAW 542 (MP)

Azam S/o Yakub Khan v. State of M. P.

2012-05-16

S.C.SHARMA, SHANTANU KEMKAR

body2012
Judgment Shantanu Kemkar, J. : - By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated KMO-2011 passed by the District Magistrate, Mandsaur and also the order dated 15-12-2011 passed by the State Government confirming the order passed by the District Magistrate by which the petitioner has been detained under Section 3 (2) of the National Security Act, 1980 (for short "the Act"). 2. In the writ petition, the petitioner has raised various grounds for challenging the order of detention including the ground that he was not made aware of his right to make representation to the Central Government but was made aware of his right to make representation only to the State Government. In the circumstances, according to the petitioner, there is a violation of Article 22 (5) of the Constitution of India. 3. Shri Asif Warsi, learned Counsel for the petitioner in order to support the aforesaid ground raised that the petitioner was also required to have made aware by the Detaining Authority that he has got right of representation before the Central Government, placed reliance on a judgment of the Supreme Court in the case of Kamleshkumar Ishwardas Patel Vs. Union of India and others, (1995) 4 SCC 51 . 4. Ms. Mini Ravindran, learned Deputy Govt. Advocate on the other hand has contended that Section 8(1) of the Act provides that the detenu shall be afforded an opportunity of making a representation by the Detaining Authority against the order of detention before the appropriate Government, which in the present case is the State Government, and therefore, there was no necessity for making the petitioner aware about his right to make representation to the Central Government. 5. We have heard learned Counsel for the parties and perused the record. 6. Section 2 (1) (a) of the Act defines "appropriate Government". According to which if a detention order is made by the Central Government, the appropriate Government would be the Central Government and if the detention order is made by the State Government or by an officer subordinate to a State Government, the appropriate Government would be the State Government. Section 8 of the Act deals with grounds of order of detention to be disclosed to the persons affected by the order. Section 8 of the Act deals with grounds of order of detention to be disclosed to the persons affected by the order. It also provides that opportunity of making a representation against the order of detention to the appropriate Government shall be afforded at the earliest. Section 14 of the Act deals with power for revocation of detention order. It empowers the State or Central Government to revoke or modify the order of detention. 7. The Supreme Court in the case of Kamleshkumar Ishwardas Patel Vs. Union of India and others (supra), while considering the safeguard provided to the detenu under Article 22 (5) of the Constitution of India, in Paragraph 14 has held that Article 22 (5) must, therefore, be construed to mean that the person 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 relief by revoking the said order as well as to any other authority, which is competent under law to revoke the order of detention and thereby give relief to the person detained. The Supreme Court has very categorically held that 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 representation against the order of detention to the authorities, who are required to consider such a representation. 8. In the present case, as would be clear from Section 14 of the Act that the Central Government is equally empowered to revoke or modify the detention order and, therefore, in our considered view the authority making the order of detention was duty bound to inform the petitioner of his right to make a representation to the Central Government also. By not doing so, in our considered view there is an infringement of Constitutional right guaranteed under Article 22 (5) of the Constitution of India. A Division Bench of this Court in the case of Nirmaljeet Kaur Vs. By not doing so, in our considered view there is an infringement of Constitutional right guaranteed under Article 22 (5) of the Constitution of India. A Division Bench of this Court in the case of Nirmaljeet Kaur Vs. State of M.P., 2007(2) M.P.H.T. 443 (DB) = 2007 (2) MPLJ 99 , in identical circumstances had quashed the detention order and had allowed the petition by placing reliance on the judgment of the Supreme Court in the case of Kamleshkumar Ishwardas Patel Vs. Union of India and others (supra). 9. Having regard to the aforesaid clear violation of Article 22 (5) of the Constitution of India read with Sections 8 and 14 of the Act, we are of the considered view that the impugned order of detention is liable to be quashed. As a result, without going into the other grounds we deem it proper to allow this petition on this ground alone. As a result, the impugned detention order as also the confirmation order are hereby quashed. The petitioner be released forthwith, if he is not required to be detained in any other case.