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2016 DIGILAW 728 (MP)

Anand Singh Lodhi v. State of M. P.

2016-08-23

H.P.SINGH, S.K.GANGELE

body2016
ORDER 1. Heard. 2. Petitioner has challenged the order of detention dated 6.6.2016 (Annexure-P-1) passed by the respondent No.2 District Magistrate-Collector, Jabalpur. 3. In the present writ petition one of the ground of challenge is that the detaining authority i.e. respondent No.2 did not inform the petitioner that petitioner detenue has a right to make the representation to the detaining authority before confirmation of the order of the State Government, hence right guaranteed to the petitioner-detenue under Article 22(5) of the Constitution of India has been abridged. This ground has been taken in the writ petition also, but no reply has been filed by the State/respondents controverting the aforesaid fact. 4. We have perused the order of detention (Annexure P-1). In the aforesaid order, the detaining authority did not mention the fact that detenu has a right to make representation against the order of detention to the detaining authority before confirmation of the order by the State Government. 5. The aforesaid point has already been considered by the Division Bench of this Court in the light of judgments passed by the apex Court in the case of Kamleshkumar Ishwardas Patel v. Union of India and others [ (1995)4 SCC 51 ], and in the case of State of Maharashtra and others v. Santosh Shankar Acharya [ (2000)7 SCC 463 ]. The Division Bench vide order dated 1.4.2015 has held as under :- “In all these petitions order of detention is subject matter of challenge. In the leading writ petition (Writ Petition No.1830/2015), the first point urged before us is that the grounds of detention are bereft of any information and un-intelligible. Moreover, the same refers to stale instances/grounds. Further, no intimation is given to the petitioner-detenu that he has right to make representation to the detaining authority before confirmation of the order by the State Government and thereby right guaranteed to the detenu under Article 22(5) of the Constitution of India has been abridged. Even in the companion cases, the last point raised in the leading petition arises for consideration. In none of the impugned orders the fact that the detenue has right to make representation to the detaining authority before confirmation of the order by the State Government has been expressly stated. Even in the companion cases, the last point raised in the leading petition arises for consideration. In none of the impugned orders the fact that the detenue has right to make representation to the detaining authority before confirmation of the order by the State Government has been expressly stated. On this indisputable position, the question will have to be answered on the basis of the exposition of the Constitution Bench of the apex Court in the case of Kamleshkumar Ishwardas Patel v. Union of India and others [ (1995)4 SCC 51 ]. The Supreme Court has opined that if the power of revocation is to be treated as criteria to ascertain the authority whom representation to be made, then representation against the order of detention made by an officer specially empowered by the State Government can be made to officer who has made the order as well as to the State Government or the Central Government who are competent to revoke the order. Indeed the Supreme Court was dealing with the provisions of COFEPOSA Act but we find that the provisions of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 are pari materia with the provisions of COFEPOSA Act. In response, learned counsel for the State contends that since the detention order passed by officer of the State Government is required to be approved by the State Government, the detaining authority cannot be permitted to entertain the representation after having passed the order. It is then contended that this view can be discerned from the case of Veeramani v. State of T.N. [ (1994)2 SCC 337 ]. Notably, both these points have been considered by the Supreme Court in the case of State of Maharashtra and others v. Santosh Shankar Acharya [ (2000)7 SCC 463 ], in paras 5 and 6 in particular. It is then contended that this view can be discerned from the case of Veeramani v. State of T.N. [ (1994)2 SCC 337 ]. Notably, both these points have been considered by the Supreme Court in the case of State of Maharashtra and others v. Santosh Shankar Acharya [ (2000)7 SCC 463 ], in paras 5 and 6 in particular. The Supreme Court following the dictum in the case of Kamleshkumar restated that non-communication of the fact to the detenue that he could make a representation to the detaining authority so long as order of detention has not been approved by the State Government in case the order of detention has been issued by the Officer other than the State Government, would constitute infringement of right guaranteed under Article 22(5) of the Constitution and this ratio of the Constitution Bench of the Supreme Court in Kamleshkumar would apply notwithstanding the fact that same has been made in the context of provisions of COFEPOSA Act. In para 6 of the reported decision, the Supreme Court rejected the similar objection canvassed by the learned counsel for the State relying on Veeramana’s case and noted that the said decision does not help the respondents in any manner. Inasmuch as, in that case the Court was called upon to consider the matter in the context of situation that emerged subsequent to the date of approval of the order of detention by the State Government and not prior thereto. In none of the cases on hand the observation in the case of Veeramani will have any application. Suffice it to observe that the detention order and the disclosure of the fact that detenu could make representation to the detaining authority before the State Government considered the proposal for approval has abridged the right of detenu under Article 22(5) of the Constitution. As a result, the continued detention of the detenu on the basis of such infirm order cannot be countenanced.” 6. In view of the order passed by the Division Bench quoted above and the law laid down by the apex Court, this petition is allowed. The impugned detention order dated 6.6.2016 (Annexure P-1) is hereby quashed. Petitioner be set at liberty forthwith unless required in connection with any other criminal case. Anil Khare with H. S. Chhabar for petitioner; Pradeep Singh, Government Advocate for respondent/State.