AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Mr. B.K. Mahajan, learned counsel for the petitioner, Md. D. Mazumdar, learned Additional Advocate General, Assam appearing for the State Respondent authorities and Mr. S.C Keyal, learned ASGI appearing for the respondent Union of India.
By an order dated 22.09.2017, the Deputy Commissioner In-charge, Udalguri was satisfied that in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of the security of the State and public order, it is necessary to keep him under detention. Accordingly, upon perusal of the various reports, FIRs, seizure lists, statements of witnesses, the Deputy Commissioner In-Charge being fully satisfied that the petitioner was involved in activities that are prejudicial to the security of the State and maintenance of public order, had ordered u/s 3(2) read with Section 3(3) of the National Security Act, 1980 that the petitioner be detained with immediate effect for a period of 03(three) months.
In the communication dated 22.09.2017, which was served on the detenue along with the order of detention, it has been stated that "you are also informed that you may submit representation against the order of detention to the following authorities, if you so desire:- (i) The Commissioner and Secretary to the Govt. of Assam, Home and Political Deptt. Dispur, Guwahati-6
(ii) The Advisory Board, National Security Act (Assam State Unit) C/o The Commissioner & Secretary to the Govt. of Assam, Home and Political Deptt. Dispur, Guwahati-6
(3) The Secretary, Ministry of Home Affairs, Govt. of India, (Deptt. Of Internal Security), North Block, New Delhi-110001"
Although many other grounds have been urged upon in the writ petition, but Mr. B.K. Mahajan, learned counsel for the petitioner for the purpose of this writ petition, has urged upon only one ground to assail the order of detention of 22.09.2017. Mr. Mahajan, learned counsel for the petitioner states that the order of detention of 22.09.2017 informs the petitioner that he has a right to make a representation before the Central Government, the State Government and the Advisory Board, but the communication does not inform the petitioner that he has a further right under Article 22(5) of the Constitution of India also to make a representation before the detaining authority itself. In this respect, Mr. Mahajan, learned counsel for the petitioner relies upon the decision of the Hon''ble Supreme Court rendered in Kamaleskumar Ishwardas Patel -vs- Union of India, reported in (1995) 4 SCC Page 51, wherein in paragraph 6 it has been held as follows:- "6. This provision has the same force and sanctity as any other provision relating to fundamental rights. (See: State of Bombay v. Atma Ram Shridhar Vaidya3.) Article 22(5) imposes a dual obligation on the authority making the order of preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22(5) thus proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed. Article 22(5) does not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recognised by Section 21 of the General Clauses Act, 1897 though it does not flow from it. It can, therefore, be said that Article 22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority which is empowered by law to revoke the order of detention."
Further reliance has been placed to the directions contained in the Full Bench Judgment of Konsam Brojen Singh -vs- State of Manipur and others, reported in 2006 (1) GLT 375, which is as follows:-
"57. For all the aforesaid reasons, we hold:
(1) That a detenu has two rights under article 22(5) of the Constitution (1) to be informed, as soon as may be, the grounds on which the order of detention is passed, i.e., the grounds which led to the subjective satisfaction of the detaining authority, and (ii) to be afforded the earliest opportunity of making a representation against the order of detention. The twin rights are available to a detenu whether they are provided for or not in the preventive detention laws."
Reliance has also been placed upon the Division Bench Judgment rendered in Rongjam Momin -vs- Union of India and others, reported in 2005 (1) GLT 173, wherein it has been held as follows:-
"the effect of the approval by the State Government is that from the date of such approval the detention is authorized by the order of the State Government approving the order of detention and the State Government is the detaining authority from the date of the order of approval."
Reliance has also been placed upon the Division Bench Judgment rendered in Robin Dhekial Phukan -vs- Union of India and others, reported in 2008 (2) GLT 876, wherein it has been held as follows:-
9." ....the detention order is not capable of being interpreted to mean that the detenue has been informed of his right to make a representation also before the detaining authority......"
"Therefore, the detention order cannot be sustained in view of the law laid down by the Supreme Court in Kamleshkumar (supra) and accordingly, the impugned detention order dated 11.09.07 is hereby quashed."
Based on the aforesaid propositions of law, it is the submission of MR. B.K. Mahajan, learned counsel for the petitioner that the detaining authority having not informed the petitioner of his constitutional right to make a representation to the detaining authority also had by itself vitiated the order of detention dated 22.09.2017.
Mr. D. Mazumdar, learned Additional Advocate General, Assam appearing for the State respondent authorities submits that the petitioner having been informed that he has the right to make representation to three authorities, namely, the Central Government, the State Government and the Advisory Board and the petitioner having made representations only to the Central Government and the State Government and having not availed the opportunity of making a representation to the Advisory Board, therefore, not informing him of his right also to make a representation before the detaining authority would not vitiate the order the order of detention in the circumstances of the present case.
Law laid down by the Constitution Bench of the Hon''ble Supreme Court of India and the Full Bench of this Court as well as the Division Bench of this Court has made it apparently clear that under Article 22(5) of the Constitution of India, a detenue has a fundamental right to be informed that he has a right to make a representation to the detaining authority also. The further proposition of law laid down is that in the event the detaining authority does not inform the petitioner of such constitutional right, the same by itself vitiates the order of detention.
In the instant case, from the order of detention as well as the communication containing the grounds, it is noticed that the detaining authority had not informed the petitioner of his constitutional right under Article 22(5) of the Constitution of India to make a representation to the detaining authority also.
Accordingly, under the aforesaid factual circumstances as reflected in the communication dated 22.09.2017, by which the grounds of detention were served on the petitioner, this Court is of the considered view that the constitutional right of the petitioner under Article 22(5) of the Constitution of India to be informed of a right to make a representation to the detaining authority had been violated by the detaining authority.
Accordingly, by following the pronouncement of law laid down by the Constitution Bench of the Hon''ble Supreme Court as well as the Full Bench and the Division Bench of this Court, the order of detention dated 22.09.2017 stands vitiated. As no further grounds have been urged in the course of the hearing, this Court does not go into such question.
Accordingly, as it had been held that the order of detention stood vitiated for not informing the petitioner of his constitutional right to make a representation to the detaining authority also, the order of detention of 22.09.2017 is accordingly set aside. The detenue is set at liberty provided he is not required in connection with any other case as per law. In terms of the above, the writ petition stands disposed of.