JUDGEMENT
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(1.)K. K. Misra, J. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner detenu Rafiq has challenged the order dated 30-9-2002 passed by respondent No. 1, District Magistrate, Moradabad and detaining him under Section 3 (2) of the National Security Act (briefly, the Act ). The detention order alongwith ground of detention were served on the petitioner detenu on 30-9-2002 and their copies are annexed as Annexure-4 to the supplementary-affidavit. Counter and rejoinder-affidavits have been exchanged.
(2.)HEAD Sri A. Misra, holding brief of Sri A. K. Agrawal, counsel for the petitioner and learned A. G. As. Sri Arvind Tripath and Mahendra Prasad.
In the ground of detention it was stated that if the petitioner wants, he can make representation (AAP YADI CHAHE TO APANA PRATYAVEDAN ADHOHASTHAR KO BHI DE SAKTE HAI ). Learned counsel for the petitioner urged that the detaining authority had given an option to the petitioner to make representation and has further argued that there is a much difference between an option to make representation and the right to make a representation. Learned counsel has further urged that since the Hon'ble Supreme Court in State of Maharashtra and others v. Santosh Shankar Acharya, 2000 Supreme Court Cases (Cri) 1400, has held in relation to Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 that the detenu has a right to make a representation to the detaining authority and non-communication of this right constitutes infraction of fundamental right guaranteed by Article 22 (5) of the Constitution of India and it vitiates the detention order. Since the provisions contained in Section 8 of the Act is analogous to those contained in Section 8 (1) of the Maharashtra Act. Learned counsel for the State on the contrary has placed reliance on the case of Kamlesh Kumar Ishwar Das Patel v. Union of India and others, 1995 Supreme Court Cases (Cri) 643. Before discussing the above case it is made clear that the said case was also considered by Hon'ble Supreme Court in Santosh Acharya's case (supra) and after considering that case the Hon'ble Supreme Court has held that the detenu has a right to make a representation to the detaining authority and its denial would constitute an infraction of the valuable constitutional right guaranteed to the detenue under Article 22 (5) of the Constitution and such failure would make the order of detention invalid.
The right to make a representation carries with 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 the detention to the authority who are required to consider such a representation. In Section 8 of the Act, it is prescribed that the authority making order shall afford the person detained the earliest opportunity of making representation against the order to the appropriate Government. The zealous safeguard provided by the Constitution should be interpreted in its broader spectrum so far as the right of the detenu is concerned. In NDPS when the provisions with regard to the option was considered, Hon'ble Supreme Court has held that if Section 50 provides that option has to be given then it means that the option should be given in its strictest sense. In Sushil Singh v. D. M. Kheri and others, 2003 (46) ACC 398, a Division Bench consisting of Hon'ble Vishnu Sahai and Hon'ble R. C. Pandey, JJ. has held that since the petitioner detenu was not communicated that he has right to make representation to the detaining authority which was available to him till the approval of the detention order by the State Government, there has been only a partial communication of this right to the person detained and for the reasons mentioned, the aforesaid partial communication would amount the non-communication of the ground of detention violating the right guaranteed to the detenu under Article 22 (5) of the Constitution. The counsel appearing for the State strongly relied upon a decision of Kamlesh Kumar (supra ). Needless to say that this case was considered by the Hon'ble Supreme Court in the case of Santosh Shankar Achraya (supra) and after considering the said case, the Supreme Court has held that the detaining authority is obliged to communicate to the detenu about the detenu's right to make representation to him. Learned counsel for the State has further placed reliance on a decision of a Division Bench of this Court consisting of Hon'ble U. S. Tripathi and Hon'ble D. P. Gupta, JJ. in Habeas Corpus Writ Petition No. 35555 of 2002, Km. Indu Mishra v. Union of India, connected with other matters whereby the above mentioned matter is alleged to have been referred to a larger Bench. This reference for us is of no help because Santosh Acharya's (supra) case has considered the decision in Kamlesh Kumar's case (supra ).
(3.)THE Constitution Bench of Hon'ble Supreme Court in the case of State of Punjab v. Baldev Singh, 1999 (2) JIC 421 (SC); 1999 SCC (Cri) 1080, has considered various aspects of the compliance of Section 50 of NDPS Act and in that judgment also it was held that failure to inform the person concerned about the existence of his right cannot be treated as to be communication to him that he has right under law unless he was told that he had a right under law. This observation was made with regard to Section 50 of the NDPS Act where the accused has to be conveyed the right of his option to be searched before a gazetted officer. THE constitutional provisions are placed on a higher footing and it is the duty of the Court to see that the valuable right of the detenu should be conveyed to him in unequivocal terms making him fully conscious of the fact that he has a right of making the representation to the authority concerned. In the absence of communication of his valuable right guaranteed under Constitution, the detention is liable to be quashed.
Lastly but vehemently it was argued by learned A. G. A. that no specific proforma is provided by the Act to convey to the petitioner regarding his right to make representation. No doubt there is no specific proforma provided by the Act but Article 22 (5) of the Constitution entitles the detenu to be informed about his valuable right of making representation and the representation should be disposed of at the earliest. It is the duty of the Court to carry out the intention of the legislation. The legislation has left certain thing to the wisdom of the Courts. We have cited above the decisions of Santosh Acharya and various other decisions of Hon'ble Supreme Court as well as High Courts which has laid down the proposition that valuable right of the petitioner of making the representation should not be curtailed. The right should be conveyed as valuable right of the detenu and not as an option which is a partial communication. Learned A. G. A. has not been able to show any pronouncement of any High Court which has held contrary to the proposition of law laid down by Hon'ble Supreme Court in Santosh Acharya's case and a Division Bench relied by us of Lucknow Bench of this Court.
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