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Judgment
M. Katju and Rakesh Tiwari, JJ.—Heard Sri Shamsher Singh, learned Counsel for the Petitioner and learned Government counsel. The Petitioner is challenging the impugned detention order dated 20.5.2001 (Annexure-1 to the petition) passed under the ''National Security Act''.
It has been alleged in paragraph 3 of the supplementary-affidavit that the District Magistrate who is the detaining authority did not inform the detenu that he could make representation to the detaining authority. Learned Counsel for the Petitioner has relied on the Supreme Court decision in State of Maharashtra v. Santosh Kumar Acharya, 2001 (1) A CrR 453 (SC): (XLI) 2000 ACC 704. This decision has been followed by a Division Bench of this Court in Jai Prakash Shastri v. Adhikshak Janpad Karagar, Muzaffarnagar 2000 (3) ACR 2420: 2000 (41) ACC 883.
In the supplementary counter-affidavit, it has been stated that Petitioner had made a representation to the District Magistrate on 28.5.2001. The District Magistrate (Detaining Authority) held that he could not modify or revoke the detention order dated 20.5.2001 since the same had been approved by the State Government on 23.5.2001. From this, it is obvious that the District Magistrate did not apply his mind independently to the merits of the representation, but he rejected it merely on the ground that the State Government had approved the detention order on 23.5.2001.
Sri A. K. Tripathi learned Counsel for the State Government has submitted that once the State Government granted approval of the detention order, the District Magistrate could not allow Petitioner''s representation. We do not agree. In the decision of the Supreme Court in the State of Maharashtra v. Santosh Kumar Acharya (supra), it has been held that the power of the detaining authority to deal with the representation cannot be said to be taken away merely because the Statute has specifically provided for making a representation to the State Government. Thus, it is obvious from this observation that the power of the District Magistrate in deciding the representation of the detenu is completely independent of the power of the State Government in granting approval. It was the duty of the District Magistrate to have decided the Petitioner''s representation made to him on the merits of that representation, but in this case it seems that the District Magistrate has rejected the representation merely because of approval of the State Government granted on 23.5.2001. Thus, the District Magistrate has not applied his mind independently which in our opinion vitiates the Petitioner''s detention. Moreover, since the State Government had granted approval on 23.5.2001 and this fact was not in the knowledge of the detenue, the Petitioner could obviously not have made representation prior to the approval unless he was informed of his right that he could make such a representation.
In view of the above the petition is allowed.
The impugned detention order dated 20.5.2001 is quashed. The Petitioner shall be released forthwith unless required in some other criminal or preventive detention case.