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2014 DIGILAW 231 (PAT)

Sikandar Khan v. State of Bihar

2014-02-12

AHSANUDDIN AMANULLAH, V.N.SINHA

body2014
ORDER (Per: HONOURABLE MR. JUSTICE V.N. SINHA) 1. Heard learned counsel for the petitioner and the State. 2. By filing this writ petition, petitioner has assailed the order bearing Memo No. 445 dated 04.05.2013, Annexure-1 passed by the District Magistrate, Jamui under sub-section (2) of section 12 of the Bihar Control of Crimes Act (Bihar Act 7 of 1981) (hereinafter referred to as the Act) in terms whereof, petitioner has been detained as according to the District Magistrate, he is an antisocial element and can be prevented from committing antisocial activity by passing order detaining him. In support of the order, the District Magistrate has also served the grounds on the petitioner, which is also dated 04.05.2013. Aforesaid detention order has been approved by the State Government under order dated 13.05.2013, which is also impugned in the writ petition as Annexure-2. Having approved the detention order, case of the petitioner was referred by the Govt. to the Advisory Board which also approved the detention of the petitioner and thereafter Govt. issued order dated 28.5.2013 indicating period of his detention until 03.05.2014. Said order has also been impugned in the writ petition as Annexure-3. 3. The challenge to the aforesaid three orders is primarily based on the ground that initial detention order dated 04.05.2013, Annexure-1 did not inform the petitioner of his right to represent against the order of detention, as is required under sub-clause (5) of Article 22 of the Constitution of India, which enjoins a duty on the detaining authority to inform the detenu of his right to make representation at the earliest opportunity against the order of detention. In support of the aforesaid contention, learned counsel for the petitioner has relied on the Division Bench judgment of this Court in the case of Binod Yadav Vs. The State of Bihar & Ors., 2007 (Supp.) PLJR 936. 4. The other submission which the learned counsel for the petitioner has raised in support of the writ petition is that representation of the petitioner dated 15.05.2013, Annexure-6 addressed to the Secretary, Home Department of the Government of Bihar has not been considered by the Govt. so far and failure to consider the representation vitiates his detention. 4. The other submission which the learned counsel for the petitioner has raised in support of the writ petition is that representation of the petitioner dated 15.05.2013, Annexure-6 addressed to the Secretary, Home Department of the Government of Bihar has not been considered by the Govt. so far and failure to consider the representation vitiates his detention. In support of the plea that failure of the State Government to consider his representation has vitiated the detention, learned counsel relied on the Division Bench judgment of this Court in the case of Babloo Tiwari @ Govind Tiwari Vrs. The State of Bihar & Ors. dated 31.03.2009, Annexure-7. 5. The third ground taken in support of the writ petition is that perusal of grounds of detention dated 04.05.2013, Annexure-1 is not indicative of petitioner being any threat to public order in the society, rather the detention order has been passed with reference to few criminal cases in which he has been falsely implicated at the instance of the police and those cases does not constitute any threat by the petitioner to public order in the society. 6. In this matter, three counter affidavits have been filed, one on behalf of Respondent nos.1 to 3, the State of Bihar and officers of the Home Department, the other on behalf of Respondent no. 4, the District Magistrate, Jamui and the third on behalf of Respondent no.5, the Superintendent of Police, Jamui. 7. In the counter affidavit filed on behalf of the State of Bihar and the officers of the Home Department different dates have been indicated on which the detention order was received in the Department as also approved by the State Government and then opinion of the Advisory Board was taken on 17.5.2013 whereafter confirmation order dated 28.05.2013, Annexure-3 was issued. In paragraph 8 of the counter affidavit of Respondent nos. 1 to 3, it has been specifically stated that no representation of the petitioner against the detention order bearing Memo No. 445 dated 04.05.2013, Annexure-1 has been received in the Department. 8. Counsel for the petitioner submitted that as the petitioner was not informed of his right to make representation under the detention order dated 04.05.2013, petitioner did not make any representation against that order until he was informed of his right to make representation under order dated 13.05.2013. 8. Counsel for the petitioner submitted that as the petitioner was not informed of his right to make representation under the detention order dated 04.05.2013, petitioner did not make any representation against that order until he was informed of his right to make representation under order dated 13.05.2013. After receipt of information under order dated 13.05.2013, he actually submitted the representation dated 15.5.2013, Annexure-6 addressed to the Home Secretary, Bihar. 9. Perusal of the copy of representation dated 15.5.2013, Annexure-6 does not indicate the mode through which the said representation has been sent to the Home Secretary. It also does not appear from the representation that the same has been directly sent to the Home Secretary or through the Jail Superintendent. Counsel for the petitioner, however, invited our attention to paragraph 8 of the writ petition wherefrom it appears that the representation dated 15.5.2013 was sent through the Jail Superintendent, Jamui. Respondent nos. 1 to 3 in paragraph 8 of their affidavit, have stated that no representation of the petitioner against the detention order no. 445 dated 04.05.2013 has been received in the Department. The District Magistrate, Jamui, Respondent no.4, however, has stated in paragraph 10 of his affidavit in reply to the statement made by the petitioner in paragraph 8 of the writ petition that the statement made in paragraph 8 of the writ petition is admitted. Paragraph 8 of the writ petition is quoted hereinbelow: “8. That however the petitioner given his representation on 15.5.2013 to the Govt. through the Jail Superintendent, Mandal Kara, Jamui but nothing consideration has been done either it was rejected or it has not been forwarded which is crystal clear from the final order/confirmation. A true copy of representation dt. 15.5.13 is Annexed as annexure-6 to this Petition.” 10. Now, we come to the contents of the approval order dated 13.05.2013, Annexure-2 wherefrom it would appear that having approved the detention of the petitioner, the State Government observed in the approval order that copy of the approval order in triplicate forwarded to the Superintendent, District Jail, Jamui for immediate service on detenu, Sikandar Khan, one copy to be given to the detenu, second copy to be kept in jail office and the third copy bearing the signature or thumb impression of the detenu in token of receipt should be sent to the Govt. immediately. immediately. It further reads that the detenu, if desires to file any representation against the detention order, he may file to Govt. in Home (Police) Department through the Superintendent, District Jail, Jamui. The Superintendent, District Jail, Jamui is hereby directed to send such representation to the Govt. at once through the special messenger. Superintendent of Jail is requested to send a copy of such representation to the concerned District Magistrate at once. 11. From the contents of paragraph 8 of the writ petition, it appears that petitioner submitted representation dated 15.5.2013, Annexure-6 after receipt of the approval order dated 13.05.2013, Annexure-2, the District Magistrate in paragraph 10 of his counter in reply to the statement made by the petitioner in paragraph 8 of the writ petition has stated that the said statement in paragraph 8 is admitted, meaning thereby that filing of the representation dated 15.5.2013, Annexure-6 by the petitioner is admitted. 12. Once the District Magistrate, Jamui in the present case the detaining authority admits in the counter affidavit sworn by himself that detenu did file the representation dated 15.5.2013, which fact is also appearing from the instructions received by the State counsel under letter No. 1361/Legal dated 26.12.2013 from the District Magistrate, Jamui also issued under his signature, we have no option but to hold that representation dated 15.5.2013, Annexure-6 was filed by the detenu against the detention order which has admittedly not yet reached the Department, as such, there has been undue delay in disposal of the representation of the petitioner against the detention order and for such delay, the detention order dated 04.05.2013, Annexure-1, approval order dated 13.05.2013, Annexure-2 and the order confirming the detention after opinion of the Advisory Board dated 28.05.2013, Annexure-3 is required to be quashed. 13. This writ petition was filed on 23.10.2013 and adjourned from time to time to enable the State and its functionaries to file their counter affidavit. After completion of the pleadings, writ petition was heard on 10.02.2014 when this Court acceded to the request of the counsel for the State to pass over the matter so as to enable him to seek instruction from the Deputy Secretary concerned about the availability of the representation of the petitioner dated 15.5.2013, Annexure-6 before the Secretary, Home, Patna through the Superintendent of Jail, Jamui and its fate. In the light of the said request, State counsel interacted with Under Secretary to the Government in Home (Police) Department, who through District Magistrate, Jamui asked the Superintendent of Jail, Jamui to confirm about the representation dated 15.5.2013, Annexure-6. In response, under letter dated 11.2.2014, Superintendent of Jail, Jamui informed the District Magistrate, Jamui that representation of the petitioner has not been received in his office. Copy of the letter has been forwarded by the District Magistrate, Jamui to the Under Secretary in the Home Department, who in turn forwarded the said letter to the counsel for the State, Sri Prabhu Narayan Sharma, A.C. to A.G. under letter dated 12.2.2014. Counsel for the State on 10.2.2014 had requested this Court to pass over the matter so as to enable him to seek instruction from the Deputy Secretary concerned, who issued orders dated 13.5.2013, 28.5.2013, Annexures-2 and 3, but the affidavit in response to the writ petition as also instructions in the light of the request made before this Court on 10.2.2014 is being furnished by the Under Secretary and not by the officer (Deputy Secretary) who is authorized by the Govt. to issue orders under the Act. Had the authorized officer (Deputy Secretary) been dealing with the matter, there could not have been any misstatement about the receipt of the representation of the petitioner dated 15.5.2013, Annexure-6 in the office of the Superintendent of Jail, Jamui. In the light of the affidavit of the District Magistrate, Jamui, the Deputy Secretary authorized to issue orders under the Act should have interacted with the District Magistrate and the Superintendent of Jail, Jamui about the awareness of the District Magistrate of the representation of the petitioner dated 15.5.2013, Annexure-6 and then taken the response of Superintendent of Jail, Jamui in terms of order dated 13.5.2013, Annexure-2. After receipt of the representation of the petitioner, it was the duty of the Superintendent of Jail, Jamui to forward the representation of the petitioner to the concerned District Magistrate at once. The District Magistrate, Jamui having admitted the statement of the petitioner about the submission of the representation of the petitioner, the admission of the District Magistrate about the representation of the petitioner dated 15.5.2013 is indicative of the fact that the same was received in his office. The District Magistrate, Jamui having admitted the statement of the petitioner about the submission of the representation of the petitioner, the admission of the District Magistrate about the representation of the petitioner dated 15.5.2013 is indicative of the fact that the same was received in his office. It is thus evident that representation of the petitioner dated 15.5.2013 remained pending and could not be disposed of infracting right of the petitioner under sub-clause (5) of Article 22 of the Constitution of India and for failure to dispose of the representation, detention of the petitioner is violative of Article 21 of the Constitution of India and, accordingly, the detention order dated 04.05.2013, Annexure-1, approval order dated 13.05.2013, Annexure-2 and the confirmation order 28.05.2013, Annexure-3 are quashed with direction to release the petitioner forthwith, if not wanted in any other case. 14. Before parting with this order, we would like to go back to the Division Bench judgment of this Court in the case of Binod Yadav Vs. The State of Bihar & Ors. (supra), referred to by the counsel for the petitioner in support of submission noted in paragraph 3 above. State of Bihar approached the Supreme Court against the said judgment by filing S.L.P. (Crl.) No(s). 7720 of 2007. Hon’ble Supreme Court under order dated 11.01.2008 issued notice returnable at an early date and stayed the operation of the impugned judgment of the High Court whereunder this Court held that failure of the detaining authority to indicate in the detention order that the detenu under the Act has a right to make representation against the detention order to the detaining authority and failure to inform the detenu of such right is fatal and infracts his right under sub-clause (5) of Article 22 of the Constitution of India. The said S.L.P. was, however, dismissed under order dated 08.09.2008 observing that the question of law involved in the case is kept open to be decided in an appropriate case. 15. In the present matter, we further proceed to consider the right of the detenu under the Act in the Constitutional perspectives. It would be useful to quote the relevant provisions of the Constitution of India. “22. 15. In the present matter, we further proceed to consider the right of the detenu under the Act in the Constitutional perspectives. It would be useful to quote the relevant provisions of the Constitution of India. “22. Protection against arrest and detention in certain cases.- xxxxx (5) When any person is detained in pursuance of 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 made and shall afford him the earliest opportunity of making a representation against the order.” It would also be useful to quote the relevant provisions of the Act. “12. Power to make order detaining certain persons.- (1) 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 maintenance of public order and there is reason to fear that the activities of anti-social elements can not be prevented otherwise than by the immediate arrest of such person, make an order directing that such anti-social element be detained. (2) 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, the State Government is satisfied that it is necessary so to do, it may by an order in writing direct, that during such period as may be specified in the order, such District Magistrate may also, if satisfied as provided in sub-section (1) exercise the powers conferred upon 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. (3) When any order is made by District Magistrate, he shall forthwith report, the fact to the State Government 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 12 days after the making thereof unless, in the meantime, it has been approved by the State Government: Provided that where under section 17 the grounds of detention are communicated by the officer making the order after five days but not later 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. 17. Grounds of order of detention to be disclosed to person 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 State Government. (2) Nothing in sub-section (1) shall require the authority to disclose the facts which it considers to be against the public interest to disclose. 23. Revocation of detention orders.- (1) Without prejudice to the provision of section 21 of the General Clauses Act, 1987 (10 of 1987), detention order may, at any time, be revoked or modified- (i) notwithstanding that the order has been made by an officer mentioned in sub-section (2) of section 12, or by the State Government to which that officer is subordinate. (2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order under section 12 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the State Government or an officer mentioned in sub-section (2) section 12, as the case may be, is satisfied that such an order should be made.” 16. The detenu who has been detained by the District Magistrate pursuant to the delegated authority of the State Govt. The detenu who has been detained by the District Magistrate pursuant to the delegated authority of the State Govt. under sub-section (2) of Section 12 of the Act is to be informed of his right to make representation against the detention order issued under the Act. Under sub-section (1) of Section 12 of the Act, the State Government is empowered to detain an antisocial element if the Government is of the view that the activities of the antisocial element cannot be prevented otherwise than by putting him under immediate arrest. Sub-section (2) of Section 12 of the Act empowers the Government to delegate its authority to the District Magistrate for a period of three months which may be extended from time to time to detain the antisocial element within the local limits of jurisdiction of the District Magistrate concerned provided the District Magistrate is satisfied that the activities of the antisocial element cannot be controlled without detaining the antisocial element. Under sub-section (3) of Section 12 of the Act, the detention order passed by the District Magistrate together with the grounds on which the order has been made is required to be reported to the State Government forthwith by the District Magistrate. The order shall remain in force for not more than 12 days unless approved by the State Government in the meantime. Proviso to sub-section (3) of Section 12 refers to Section 17 of the Act which inter alia require the detenu be served with the grounds of detention as soon as possible, ordinarily not later than 5 days but in exceptional circumstances for reasons to be recorded in writing not later than 10 days from the date of detention with information to the detenu that he has right to make representation against the detention order to the State Government. Proviso to sub-section (3) of Section 12 further provides that the validity of the detention order ground(s) whereof has been served after 5 days but not later than 10 days shall be for 15 days. It is thus quite obvious that the detaining authority under Section 12 of the Act is the State Government and it is for the detaining authority to inform the detenu of his right to make representation against the detention order to the detaining authority at the earliest. It is thus quite obvious that the detaining authority under Section 12 of the Act is the State Government and it is for the detaining authority to inform the detenu of his right to make representation against the detention order to the detaining authority at the earliest. The District Magistrate within the local limits of his jurisdiction, if authorized by the State Government for a specified period which may extend upto three months act as a detaining authority but the validity of the detention order issued by the District Magistrate shall be for a period of 12 days if the grounds supporting the order is served on the detenu within 5 days of the issue of the detention order, in exceptional cases the validity of the said order is 15 days if the ground(s) are served on the detenu after 5 days, but before 10 days. It is thus obvious that the District Magistrate is the delegatee of the detaining authority, the State Government as District Magistrate acts in the light of the authorization issued by the State Government for a specified period of three months or less. From the scheme of Section 12 of the Act, it is evident that the validity of the order issued by the delegatee-District Magistrate detaining antisocial element within the local limits of his jurisdiction is for a period of 12/15 days as the case may be unless approved by the detaining authority, the State Government. It is thus the duty of the detaining authority while approving the detention order passed by its delegatee-District Magistrate to inform the detenu of his right to make representation to the detaining authority, the State Government. 17. In the instant case, the State Government while approving the detention order and grounds in support thereof both dated 04.05.2013, Anexure-1 vide order dated 13.05.2013, Annexure-2 did inform the detenu of his right to make representation against the detention order dated 04.05.2013 and thus the requirement of sub-clause (5) Article 22 of the Constitution of India was complied with and does not suffer from illegality on the ground that detenu was not informed of his right to represent against the detention order. Aforesaid conclusion of ours is further reinforced in view of discussion hereafter. 18. Aforesaid conclusion of ours is further reinforced in view of discussion hereafter. 18. From perusal of the judgment of this Court in the case of Binod Yadav (supra), it appears that this Court placed heavy reliance on the judgment of the Supreme Court in the case of Kamleshkumar Ishwardas Patel Vrs. Union of India, (1995) 4 SCC 51 and on the case of the State of Maharashtra Vrs. Santosh Shankar Acharya, (2000) 7 SCC 463 = AIR 2000 SC 2504 . Perusal of the judgment in the case of Kamleshkumar Ishwardas Patel (supra) indicates that the same was rendered in the light of the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act). Perusal of Section 3 of the COFEPOSA Act would indicate that power to detain a person from indulging in smuggling activities is vested with the Central Government or the State Government or any officer of the Central Government/State Government not below the rank of Joint Secretary of the Central Government/Secretary of the State Government specially empowered under the Act by the Government concerned. To make the point obvious for ready reference, Section 3(1) of the COFEPOSA Act is quoted below: “3. Power to make orders detaining certain persons. To make the point obvious for ready reference, Section 3(1) of the COFEPOSA Act is quoted below: “3. Power to make orders detaining certain persons. – (1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from – (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained: [Provided that no order of detention shall be made on any of the grounds specified in this sub-section on which an order of detention may be made under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 or under section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 (J. & K. Ordinance 1 of 1988).]” It is thus quite evident that under sub-section (1) of Section 3 of the COFEPOSA Act, the Joint Secretary to the Central Government and the Secretary to the State Government specially empowered are also the detaining authority at par with the Central Government or the State Government and not the delegatee of the Central or the State Government. The detention order under Section 3 of the COFEPOSA Act if issued by the specially empowered Joint Secretary of the Central Government or Secretary of the State Government, the said Joint Secretary or the Secretary is required to inform the detenu of his right to represent under Article 22 (5) of the Constitution of India. 19. The detention order under Section 3 of the COFEPOSA Act if issued by the specially empowered Joint Secretary of the Central Government or Secretary of the State Government, the said Joint Secretary or the Secretary is required to inform the detenu of his right to represent under Article 22 (5) of the Constitution of India. 19. The other Supreme Court judgment relied by this Court in the case of Binod Yadav (supra) is the case of State of Maharashtra Vs. Santosh Shankar Acharya (supra), was rendered in the light of the provisions of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as the Maharashtra Act). Perusal of sub-section (2) of Section 3 of the Maharashtra Act would indicate that the same is pari materia with the Act. In the Maharashtra case, Supreme Court placed reliance on the judgment of Kamleshkumar Ishwardas Patel (supra) as also on the provisions of Section 14(1) of the Maharashtra Act, which is quoted below : “Section 14(1): Without prejudice to the provisions of section 21 of the Bombay General Clauses Act, 1904, (Bom. 1 of 1904) a detention order may, at any time, be revoked or modified by the State Government, notwithstanding that the order has been made by an officer mentioned in sub-section (2) of section 3.” This Court in the case of Binod Yadav (supra) also placed reliance on the provisions of Section 23(1) of the Act and observed in paragraph 9 of judgment at page 940 of the report that the counsel for the State failed to explain why the words “without prejudice to the provisions of Section 21 of the General Clauses Act, 1897” has been used at the beginning of sub-section (1) of Section 23 and then proceeded to place reliance on the aforesaid two judgments of the Supreme Court for holding that it was incumbent upon the delegatee detaining authority under sub-section (2) of Section 12 of the Act also to inform the detenu of his right to make representation during the period between 12/15 days until the detention order remains in force even without approval of the detaining authority, the State Government. 20. 20. In the case of Binod Yadav (supra) this Court while placing reliance on sub-section (1) of Section 23 of the Act which provide for revocation of detention order issued under sub-section (2) of Section 12 of the Act or by the State Government did not notice sub-section (2) of Section 23 which inter alia provide that revocation of the detention order shall not be a bar in making of fresh detention order under Section 12 against the same person where fresh facts have arisen after the date of revocation. In the Maharashtra Act, there is no provision like sub-section (2) of Section 23, which is a distinguishing feature between the act and the Maharashtra Act. Under the Act, order of revocation has to be preceded by fresh facts. 21. In terms of the Act, District Magistrate is the delegatee of the detaining authority, the State Government and prevention order issued by the delegatee District Magistrate is valid for a period of 12/15 days from the date of its service on the detenu unless in the meanwhile approved by the detaining authority, the State Government. During the period of 12/15 days until the detention order is approved by the State Government it may be open for the detenu to submit the representation before the District Magistrate which may also be entertained by him, but failure to inform the detenu during the aforesaid period of 12/15 days of his right to represent may not vitiate the detention order as the said detention order is subject to approval by the detaining authority, the State Government and sub-clause (5) of Article 22 of the Constitution of India will come into play only after detention order is approved by the detaining authority, the State Government. 22. There is yet another aspect of the matter. Sub-clause (5) of Article 22 of the Constitution of India requires the detaining authority making the detention order to communicate the detenu, as soon as may be, the grounds on which the detention order has been made. The said sub-clause further requires the detaining authority to afford the detenu earliest opportunity of making a representation against the detention order. Aforesaid mandate of sub-clause (5) of Article 22 of the Constitution of India has been taken care of by the Legislature when it enacted sub-section (3) of Section 12 of the Act. The said sub-clause further requires the detaining authority to afford the detenu earliest opportunity of making a representation against the detention order. Aforesaid mandate of sub-clause (5) of Article 22 of the Constitution of India has been taken care of by the Legislature when it enacted sub-section (3) of Section 12 of the Act. Under sub-section (3) of Section 12 of the Act, the detention order passed by the delegatee- District Magistrate is required to be communicated to the detaining authority, the State Government forthwith together with the grounds on which the order has been made and shall remain in force for 12 days unless approved by the State Government in the meantime. Proviso to sub-section (3) of Section 12 of the Act refers to Section 17 of the Act. Section 17 of the Act requires service of the ground(s) of detention on the detenu as soon as possible, ordinarily not later than 5 days but in exceptional circumstances for reasons to be recorded in writing not later than 10 days from the date of detention with information to the detenu that he has right to make representation against the detention order to the State Government. Proviso to sub-section (3) of Section 12 of the Act further provides that the validity of the detention order grounds whereof have been served on the detenu after 5 days, but not later than 10 days shall be for a period of 15 days even if the detention order has not been approved by the State Government in the meanwhile. It is thus evident that the detention order passed by the District Magistrate is valid for a period of 12/15 days provided the detention order and the grounds on the basis of which the same has been made has been communicated by the District Magistrate forthwith to the detaining authority, the State Government. Detention order being preventive in nature is valid for a period of 12/15 days even if the same has not been approved by the State Government, provided the order and the grounds on the basis of which the detention order has been issued has been communicated to the State Government forthwith. Detention order being preventive in nature is valid for a period of 12/15 days even if the same has not been approved by the State Government, provided the order and the grounds on the basis of which the detention order has been issued has been communicated to the State Government forthwith. The occasion of affording the earliest opportunity to the detenu of making representation against the detention order issued by the District Magistrate shall arise after 12/15 days, provided the detention order has been approved by the State Government, as during the said period, the detention order is valid even if the ground(s) of detention has not been served on the detenu. Representation by the detenu is to be made against the grounds which is the basis of his detention. Detention being valid for the period of 12/15 days even without serving the grounds, it is obvious that opportunity to represent against the detention order and the grounds can be given only after service of the grounds on the basis of which the detention order has been made. It is, therefore, quite obvious that the detention order issued by the District Magistrate will remain valid for 12/15 days even if the same does not inform the detenu of his right to represent against the detention order. Detention being preventive in nature Legislature being conscious of the rights of the detenu enshrined under sub-clause (5) of Article 22 of the Constitution of India, allowed the District Magistrate period of 5 days and in exceptional circumstances for reasons to be recorded in writing not later than 10 days to serve the grounds of detention on the detenu and such detention order shall remain valid for a period of 12/15 days, the Legislature thereby made its intention clear that the detention order shall remain valid for 12/15 days even without informing the detenu of his right to represent against the detention order. Mandate of sub-clause (5) of Article 22 to communicate to the detenu the grounds of his detention as soon as possible and then to afford the detenu earliest opportunity of making representation against the detention order does not mean that the detenu be served with the grounds with information about his right to submit representation against the detention order forthwith. Mandate of sub-clause (5) of Article 22 to communicate to the detenu the grounds of his detention as soon as possible and then to afford the detenu earliest opportunity of making representation against the detention order does not mean that the detenu be served with the grounds with information about his right to submit representation against the detention order forthwith. Compliance of the right of the detenu enshrined in sub-clause (5) of Article 22 can be ensured if the detenu is informed about his right to represent against the detention order, if such information is given to the detenu under the order approving his detention within reasonable time of its issue and service on the detenu. 23. In view of our discussions in paragraphs 2 to 12 and findings in paragraph 13 that petitioner did file his representation dated 15.05.2013, but the same did not reach the Department and could not be considered by the Government, the right of the petitioner under Articles 21 and 22 having been violated, the impugned orders Annexures-1, 2, 3 have already been quashed. The writ petition is, accordingly, allowed.