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KM. INDU MISHRA versus UNION OF INDIA & OTHERS

High Court of Judicature at Allahabad

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Km. Indu Mishra v. Union of India & Others - HABEAS CORPUS WRIT PETITION No. 35555 of 2002 [2003] RD-AH 111 (22 April 2003)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

      Habeas Corpus Writ Petition No.35555 of 2002

Km. Indu Mishra      . . . . . . . . . .        Petitioner

                                Versus

Union of India           . . . . . . . . . .      Respondent

                                  With

      Habeas Corpus Writ Petition No.38506 of 2002

Jagdamba Prasad Pandey  . . . . . . .   Petitioner

                                Versus

Union of India            . . . . . . . .         Respondent

                                  With

       Habeas Corpus Writ Petition No.38508 of 2002

Ashok Mishra             . . . . . . .          Petitioner

                               Versus

Union of India        . . . . . . . .            Respondent

                                 With

       Habeas Corpus Writ Petition No.38509 of 2002

Ram Niranjan Mishra       . . . . . . .    Petitioner

                                   Versus

Union of India             . . . . . . . . .     Respondent

Hon'ble U.S.Yripathi, J.

Hon'ble D.P. Gupta, J.

                  (Delivered by Hon'ble U.S. Tripathi, J.)

Above writ petitions have been filed separately by each of the petitioner for quashing their detention order dated 1.5.2002 passed by District Magistrate, Allahabad, respondent No.4, separately against each of the petitioner under Section 3 (2) of National Security Act, herein after called the Act, in order to preventing them from acting in a manner prejudicial to the maintenance of public order.

The grounds of detention served upon each of the petitioner separately along with order of detention common in all the writ petitions, stated that on the night of 22/23-1-2002 at about 10.10 p.m. Dr. Deepak Agrawal, Child Specialist was going to his residence from his clinic situate at Mohalla Unchamandi, P.S. Muthiganj, Allahabad, along with his security guard Kamlesh Narain Mishra, in his Maruti Zen Car.  The petitioner Ashok Mishra along with his associates Ashok Singh, Dinesh Tewari @ Pappu Shooter, Sandeep Singh, Amit @ Brijesh Singh and others in order to carry out their criminal conspiracy, kidnapped him (Dr. Deepak Agarwal) along with his Maruti Car at about 10.30 p.m. for ransom.  The petitioner Ashok Mishra and his associates kept kidnappees Dr. Agrawal and his Security Guard Kamlesh Narain Mishra, at the official residence of petitioner Km. Indu Mishra (Constable) at Police Lines Sultanpur.  Her associates demanded Rs. 50 lacs as ransom from the family members of Dr. Agrawal and his relatives on telephone.  On the report of Smt. Savita Agrawal, wife of Dr. Deepak Agarwal a case at crime no.18 of 2002 was registered under Section 364 IPC at 3.10 a.m. on 23.1.2002 at P.S. Muthiganj, Allahabad.  The matter was negotiated at Rs.30,00,000/-, on payment of Rs.15,10,000/- and promise to pay remaining Rs.14,90,000/- later on.  Dr. Agarwal and his Security Guard were released on the night of 26/27-10-2002 at 11.00 p.m. on Sultanpur - Pratapgarh road.  Shocks, belt and buckle of Security Guard Kamlesh Narain Mishra were recovered from official residence of petitioner Km. Indu Mishra.  On 3.2.2002 on the pointing out of petitioner Indu Mishra, a sum of Rs. One lac, share of ransom money, was recovered by the Investigating Officer.  A sum of Rs.8,800/-, share of ransom money, was recovered from petitioner Jagdamba Prasad Pande and he told that he had spent Rs. 1200/-.

During investigation of above case evidence was collected that telephone (mobile) No.9838095939 belonged to Dinesh Tewari @ Pappu Shooter and telephone No.9838054138 belonged to petitioner Ashok Mishra who talked on said phones after kidnapping and before release of Dr. Agarwal on telephone  (mobile) No.9838067646 purchased from Allahabad, communication was sent to relatives of Dr. Agarwal on mobile phone No.9038057095 and amount of ransom was settled.  Petitioner Indu Mishra talked with petitioner Ashok Mishra from telephone No.27348 on mobile phone No.9838054138, time and again.

Dr.Agarwal recognized the petitioner Indu Mishra and her assocites Dinesh Tewari @ Pappu Shooter, Sandeep Singh @ Guddu @ Dabboo, Amit @ Brijesh Singh.  He also disclosed that threats were extended to him by the petitioners to kill him in case he gave evidence against them.  The dare devil incident of kidnapping of a doctor for ransom was committed during Assembly Election period.  On account of said incident a sense of terror and fear prevailed in doctors, traders and respectable citizens of Allahabad.  The doctors resorted to the strike due to which public order was adversely affected.  The news of kidnapping was published in daily newspapers on various dates which again affected public order.

The petitioners were detained in Central Jail, Naini and attempt was being made by pairokars of the petitioners to get them released on bail.  There was real possibility of petitioners being released on bail and on release on bail of indulging them in similar activities prejudicial to the maintenance of public order.

On account of above the detaining authority was satisfied that detention of petitioner under the Act was essential for preventing the petitioners from indulging in activities prejudicial to maintenance of public order.

Each of the petitioner was separately communicated that in case he wanted to make representation against detention order before detaining authority, he may do so, at the earliest through jail authorities where they were detained.  In case representation was received after approval of detention order by the State Government then the detaining authority would not consider it.

Each of the petitioner was further informed that in case he wanted to make representation to State Government he could do so addressing to Home Secretary, Government of U.P. through jail authority.  They were further informed that detention order would be referred to the Advisory Board within 3 weeks for approval under Section 10 of the Act and in case petitioners wanted to send representation to the Advisory Board they could do so.  Representation received after approval by Advisory Board would not be considered.

It was again informed to each of the petitioner that in case he wanted to make representation to His Excellency President of India or Central Government, he could do so addressing to Secretary, Home and Internal Security Department, Government of India, North Block, New Delhi though jail authorities.

Common questions of law and fact were involved in all the above writ petitions and therefore all the writ petitions are being disposed of by a common order, with the consent of parties learned counsel.

We have heard Sri Prem Prakash, learned counsel for the petitioner in each of the petition, Sri Arvind Tripathi, learned A.G.A. and learned Standing Counsel for Union of India and have gone through record.

Though the order of detention was challenged on various grounds the learned counsel for the petitioners raised only one point the detaining authority had though informed each of the petitioner that in case he wanted to make representation to him he would do so at the earliest and a representation received after approval of the detention order by the State Government, it would not be considered.  The petitioner made a representation to Detaining Authority on 14.5.2002 but he did not consider the same on the ground that the detention order dated 1.5.2002 was approved by the State Government on 10.5.2002.

Copy of the order dated 23.5.2002 passed by District Magistrate rejecting the representation of each of the petitioner on the above ground was also filed along with rejoinder affidavit.  It was further contended that non consideration of the representation by the detaining authority on the ground that the same was received after approval of the detention order by the State Government was clear violation of Article 22 (5) of Constitution of India.  That the same view was taken by the Division Bench of this Court in Habeas Corpus Writ Petitions No.32237 of 2002 Dilip Kumar Srivastava vs. Abhikshak Kendriya Karagar, Naini decided on 31.10.2002, the Writ Petition No.32234 of 2002 Ganesh Kumar Sahu Vs. Adhikshak Kendriya Karagar Naini decided on 31.10.2002 (both arising out of detention order dated 1.5.2002) and Idrish vs. Secretary, Ministry of Home Affairs, 2002 U.P. Criminal Rulings 718, Lallan Goswami vs. Superintendent Central Jail, Naini, Allahabad and others, Writ Petition No.32229 of 2002 decided on 30.9.2002.  That the above decisions of Division Bench of this Court are based on Supreme Court decision in Kamlesh Kumar's case 1995 SCC (Crl.) 643 and State of Maharashtra vs. Santosh Acharya, J.T.2000(8) SC.374.

The learned counsel for the petitioner has cited various other decisions of Apex Court and of this Court which shall be discussed at appropriate stages.

The main contention of the learned counsel for the petitioners was that in case detention order was passed by the District Magistrate, he continues to be Detaining Authority till the end of the period of detention and therefore he cannot refuse to consider the representation of detenu on the ground that he ceased to remain detaining authority after 12 days of the passing of detention order or approval of detention order by the State Government as after approval State Government becomes only "Approving Authority" and not the "Detaining Authority".

On the other hand the learned A.G.A. contended that the District Magistrate acts on the authorization by the State Government under Section 3 (3) of the Act and as required by Section 3 (4) of the Act, the District Magistrate has to forthwith report the fact to the State Government concerned together with the grounds on which the order has been made and other necessary particulars 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. Therefore, District Magistrate ceases to become detaining authority after 12 days of the making of order or after approval of the order by the State Government and cannot decide representation of detenu after 12 days or after approval by the State Government.  He further contended that Section 8 of the Act requires that the authority making the detention order is under obligation to afford the detenu an opportunity of making a representation against the order to the "Appropriate Government" only; that the provisions of the Act has been held valid by the Apex Court in A.K. Roy vs. Union of India, AIR 1982 SC, 710.

Section 3 (2) of the Act which authorizes Central or State Government to pass order of detention reads as under :-

"3 (2).  The Central Government or 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 security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained."

Section 3 (3) of the Act which authorizes District Magistrate or Commissioner of Police to exercise power under Section 3 (2) reads as under :-

3 (3).  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 or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred 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."

Section 3 (4) which deals with the life of detention order made by District Magistrate reads as under :-

"3 (4) when any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate 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 twelve days after the making thereof unless, in the meantime, it has been approved by the State Government:

Provided that where under Section 8 of 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.

Section 8 which deals with the affording of an opportunity to the detenu to make representation reads as under :-

"8.  Grounds of order of detention to be disclosed to persons 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 be appropriate Government."

Section 14 of the Act which deals with revocation of detention order reads as under :-

"14.   Revocation of detention orders - Without prejudice to the provisions of Section 21 of the General Clauses Act, 1987 (10 of 1987) a detention order may, at any time, be revoked or modified-

(a)notwithstanding that the order has been made by an officer mentioned in sub-section (3) of Section 3, by the State Government to which that officer is subordinate or by the Central Government:

(b) notwithstanding that the order has been made by a State Government, by the Central Government.

(2)  The expiry or revocation of a detention order (hereinafter in this sub-section referred to as the earlier detention order) shall not (whether such earlier detention order has been made before or after the commencement of the National Security (Second Amendment) Act, 1984, bar the making of another detention order (hereafter in this sub-section referred to as the subsequent detention order) under Section 3 against the same person :

Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order.

A Full Bench decision of this Court in Manni Lal v. Superintendent of Central Jail, Naini, Allahabad and others, 1985 AWC 641 (FB) held, in para 9, that it appears from a plain reading of Section 3 (4) of the Act that the order of detention passed by the District Magistrate under Section 3(2) of the Act shall not remain in force for more than twelve days unless in the meantime it has been approved by the State Government.  The approval accorded by the State Government extends the life of the order of detention passed by the District Magistrate beyond twelve days.  The State Government does not pass any fresh order of detention under section 3(4) of the Act but it merely approves the order of detention passed by the District Magistrate.  The order of detention passed by the District Magistrate thus continues even after it is approved by the State Government.  It does not exhaust itself or merge in any order of the State Government.

It was further held in the said case that in view of Section 21 of General Clauses Act that where by any Central Act a power to issue orders is conferred then that power includes a power exercisable in the like manner and subject to the like sanction and conditions, if any, to rescind any order.  It therefore, follows that the District Magistrate is empowered to revoke the detention order passed by him even after it has been approved by the State Government in view of Section 21 of General Clauses Act.

Subsequently, the Apex Court in the case of Veeramani vs. State of Tamil Nadu, 1994 SCC (Cri) 482 while discussing provisions of Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest-Offenders, Goondas, Immoral Traffic  Offenders and Slum Grabbers Act, 1982, which is pari materia with National Security Act, and earlier decisions in Ibrahim Bachu Bafan's case, 1985 SCC (Cri), 49 held as below:-

"From this observation we find it difficult to agree with even after the approval by the State Government, as provided under the Act, the detaining authority can independently revoke the detention by itself independently.

Thereafter in Full Bench decision of Kamlesh Kumar Ishwardas Patel vs. Union of India and others, 1995 SCC (Cri) 643 the following questions arose before the Apex Court.

"When an order for preventive detention is passed by an officer specially empowered to do so by the Central Government or the State Government, is the said officer required to consider the representation submitted by the detenu.

The above case related to COFEPOSA Act.  After discussing various provisions of COFEPOSA Act and PITNDPS Act and earlier decisions it was held as below :

"Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and PITNDPS Act, the question posed is thus answered: Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention.  This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered.  This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation."  (Vide para 38).  It was also held in para 19 of the above decision as below :-

"The provisions in the COFEPOSA Act and PITNDPS Act differ from those contained in the National Security Act, 1980 as well as earlier preventive detention laws, namely, the Preventive Detention Act, 1950 and the Maintenance of Internal Security Act, 1971 in some respects.  Under sub-section (3) of Section 3 of the National Security Act, power has been conferred on the District Magistrate as well as the Commissioner of Police to make an order of detention, and sub-section (4) of Section 3 prescribes that the officer shall forthwith report the fact of making the order to the State Government to which he is subordinate 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 that no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government.  In Section 8 (1) of the National Security Act it is prescribed that the authority making the order shall afford the person detained the earliest opportunity of making a representation against the order to the appropriate Government.  Similar provisions were contained in the Preventive Detention Act, 1950 and the Maintenance of Internal Security Act, 1971.  The COFEPOSA Act and the PITNDPS Act do not provide for approval by the appropriate Government of the orders passed by the officer specially empowered to pass such an order under Section 3.  The said Acts also do not lay down that the authority making the order shall afford an opportunity to make a representation to the appropriate Government."

Under Section 3 of the  COFEPOSA Act and the PITNDPS Act an order of detention can be made by -

(i)the Central Government; or

(ii)an officer specially empowered by the Central Government; or

(iii)the State Government; or

(iv)an officer specially empowered by the state Government."

It was further held in para 34 of the said judgement as below:-

"In the National Security Act there is an express provision Section 3(4) in respect of orders made by the district Magistrate or the Commissioner of Police under Section 3(3) and the District Magistrate or the Commissioner of Police who has made the order is required to forthwith report the fact to the State Government to which he is subordinate.  The said provision further prescribes that no such order shall remain in force for more than twelve days after the making thereof, unless in the meantime, it has been approved by the State Government.  This would show that it is the approval of the State Government which gives further life to the order which would otherwise die its natural death on the expiry of twelve days after its making.  It is also the requirement of Section 3 (4) that the report should be accompanied by the grounds on which the order has been made and such other particulars, as in the opinion of the said officer, have a bearing on the matter which means that the State Government has to take into consideration the grounds and the said material while giving its approval to the order of detention.  The effect of the approval by the State Government is that from the date of such approval the detention is authorised 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.  That appears to be the reason why Section 8 (1) envisages that the representation against the order of detention is to be made to the State Government.  The  COFEPOSA Act and the PITNDPS Act do not require the approval of an order made by the officer specially empowered by the State Government or by the Central Government.  The order passed by such an officer operates on its own force.  All that is required by Section 3 (2) of the  COFEPOSA Act and the PITNDPS Act is that the State Government shall within 10 days forward to the Central Government a report in respect of an order that is made by the State Government or an officer specially empowered by the State Government.  An order made by the officer specially empowered by the State Government is placed on the same footing as an order made by the State Government because the report has to be forwarded to the Central Government in respect of both such orders.  No such report is required to be forwarded to the Central Government in respect of an order made by an officer specially empowered by the Central Government.  Requirement regarding forwarding of the report contained in Section 3 (2) of the  COFEPOSA Act and the PITNDPS Act cannot, therefore, afford the basis for holding that an order made by an officer specially empowered by the Central Government or the State Government acquires deemed approval of that Government from the date of its issue.  Approval, actual or deemed, postulates application of mind to the action being approved by the authority giving approval.  Approval of an order of detention would require consideration by the approving authority of the grounds and the supporting material on the basis of which the officer making the order had arrived at the requisite satisfaction for the purpose of making the order of detention.  Unlike Section 3 (4) of the National Security Act there is no requirement in the  COFEPOSA Act and the PITNDPS Act that the officer specially empowered for the purpose of making of an order of detention must forthwith send to the Government concerned the grounds and the supporting materials on the basis of which the order of detention has been made.  . . . . . . . . . . . . .  . . . .. . . . . . . . . . . By specially empowering a particular officer under Section 3 (2) of the COFEPOSA Act and the PITNDPS Act the Central Government or the State Government confers an independent power on the said officer to make an order of detention after arriving at his own satisfaction about the activities of the person sought to be detained.  Since the detention of the person detained draws its legal sanction from the order passed by such officer, the officer is the detaining authority in respect of the said person.  He continues to be the detaining authority so long as the order of detention remains operative.  He ceases to be the detaining authority only when the order of detention ceases to operate.  This would be on the expiry of the period of detention as prescribed by law or on the order being revoked by the officer himself or by the authority mentioned in Section 11 of the  COFEPOSA Act and Section 12 of the PITNDPS Act.  There is nothing in the provisions of these enactments to show that the role of the officer comes to an end after he has made the order of detention and that thereafter he ceased to be detaining authority and the Government concerned which had empowered him assumes the "role of the detaining authority . . . . ... . "(emphasis laid by us).

The above passages quoted from the judgement indicates that the Apex Court has made distinction between provisions of Section 3 of National Security Act and Section 3 of  COFEPOSA Act and  PITNDPS Act.

However a Division Bench of Apex Court in the case of State of Maharashtra Vs. Santosh Shankar Acharya J.T. 2000 (8) SC 374 the question before Apex Court was whether in case of an order of detention by an officer under Sub Section (2) of Section 3 of Maharashtra Prevention o Dangerous Activities of Slumlords, Bootleggers, Drugs offenders and Dangerous Persons Act, 1981 (hereinafter referred as Maharastra Act) which is pari materia with National Security Act non communication of the detenue that he has right of making a representation to the Detaining Authority constitutes an infraction of valuable right of the detenue under Article 22 (5) of the Constitution, an as such, vitiates the order or detention.

Referring provisions contained u/ss 3(3), 3(2) 8,19 of Maharastra Act and Section 21 Maharastra General Clauses Act and Apex Courts decisions in Kamlesh Kumar's case (supra) Veeramani Vs. State of T.N. J.T. 1994 (1) SC 350 State of Maharastra Vs. Sushila Mafatlal Sah JT 1988 (3) SC 646 and Raj Kishore Prasad Vs. State of Bihar (1982) 3 SCC 10 it was held as under :-

"The only logical and harmonious construction of the provision would be that in a case where an order of detention is issued by an officer under sub Section (2) of Section 3 of the Act, notwithstanding the fact that he is required to forthwith report the factum of detention together with the grounds and materials to the State Government and notwithstanding the fact that the Act itself specifically provides for making a representation to the State Government under Section 8 (1), the said Detaining Authority continues to be Detaining Authority until the order of detention issued by him is approved by the State Government within a period of 12 days from the date of issuance of detention order.  Consequently, until the said detention order is approved by the State Government the Detaining Authority can entertain a representation from a detenu  and in exercise of his power under the provisions of Section 21 of Bombay General Clauses Act could amend, vary or rescind the order as is provided under Section 14 of Maharastra Act.  Such a construction of powers would give a full play to the provisions of Section 8 (1) as well as section 14 and also Section 3 of the Maharastra Act.  This being the position non communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where an order of detention is issued by an officer other than the State Government under sub Section (2) of Section 3 of the Maharastra Act would constitute an infraction of a valuable right of the detenu under Article 22 (5) of the Construction and the ratio of the Constitution Bench decision of this Court in Kamlesh Kumar's case (supra) would apply notwithstanding the fact that the Court was dealing with an order of detention issued under the provisions of COFEPOSA" (Vide Para 8 of J.T. Report).

"This being the position, it goes without saying that even under the Maharastra Act a detenu will have a right to make a representation to the Detaining Authority, so long as the order of detention has not been approved by the State Government and consequently non communication of the fact to the detenu that he has a right to make representation to the Detaining Authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22 (5) of the Constitution and such failure would make the order of detention invalid" (vide para 98 J.T.report) (emphasis laid by us).

Relying on above decision a Division Bench of this Court held in Nawab Dulha vs. Union of India and others, 2001 Crl.J. 390 as below :-

"In the instant case the undisputed fact is that the impugned detention order (dated 25.4.2000 served on 30.4.2002) was approved by the State Government on 8.5.2000 and the order of approval was communicated to the petitioner through radiogram on 9.5.2000.  Till that date the petitioner had a right to make a representation to the Detaining Authority also.  Therefore, it was incumbent upon the respondent no.3 to have communicated to the petitioner of his right to make a representation to the detaining authority also while serving the detention order as contained in Annexure 1 and 2, upon the petitioner.  The respondent No.3 having failed in observing constitutional mandate, the order of detention passed by the said authority, as approved by the State Government cannot be sustained and the continued detention order of the petitioner under such order would be rendered illegal" (emphasis laid by us).

Similar view was taken by another Division Bench case of this Court in Vijai Kumar Mishra vs. Superintendent District Jail, Gorakhpur 2002 Cr. L.J. 3652.

However, a Division Bench of this Court in the case of Idrish vs. Secretary, Ministry of Home Affairs, Government of India, New Delhi and others, 2002 (1) U.P. CrR. 718 it was held as below :-

"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 Maharastra vs. Santosh Kumar Acharya (supra).  This decision has been followed by a Division Bench of this Court in Jai Prakash Shastri v. Adhikshak Janpad Karagrar, Muzaffarnagar, 2000 (41) ACC, 883.  In the supplementary counter affidavit it has been stated that petitioner had made a representation to the District Magistrate on 28th May, 2001.  The District Magistrate (Detaining Authority) held that he could not modify or revoke the detention order dated 20th May, 2001 since the same had been approved by the State Government on 23rd May, 2001.  From this 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 23rd May, 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 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 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 23rd May, 2001.  Thus, the District Magistrate has not applied his mind independently which in our opinion vitiate the petitioner's detention.  Moreover, since the State Government had granted approval on 23rd May, 2001 and this fact was not in the knowledge of the detenu, the petitioner could obviously not have made representation prior to the approval unless he was informed of his right that he could make such representation."

In Habeas Corpus Writ Petition No.32237 of 2002 Dilip Kumar Srivastava vs. Adhikshak Kendriya Karagar, Naini, Allahabad and others, and in case of Vinod Kumar Jain vs. State of U.P., 2002 CBC 688 Division Bench of this Court held that in Idrish's case (supra) the District Magistrate had rejected the representation because of earlier approval of the State Government of the detention order.  In the present case, the District Magistrate has not even decided the representation dated 1st June, 2002.  In Kamlesh Kumar vs. Union of India (supra) it has been held by the Supreme Court that the right of detenu to make representation to the District Magistrate is in addition to the right to make representation to the State Government and Central Government.  Obviously, when the detenu makes representation to the District Magistrate, the District magistrate must apply his mind and decide the representation, but in the present case the District Magistrate had not decided the same.  In view of this Court's decision in Idrish's case (supra) which has followed the decision of Supreme Court in the case of State of Maharashtra vs. Santosh Kumar Acharya (supra) the submission of Sri Misra appears to be correct."

In Habeas Corpus Writ Petition No.32327 of 2002 arising out of the same detention order dated 1.5.2002 Division Bench of this Court held as below:-

"It has been held by the Supreme Court in Kamlesh Kumar's case (supra) that the right of the detenu to make a representation to the District magistrate is independent of his right to make a representation to the State Government and Central Government.  In the case of Mohd. Idrish (supra) and Lallan Goswami (supra) we have held that the District Magistrate cannot say that he will not decide the representation of the detenu by applying his mind independently on the ground that the state Government has approved the detention order.  In view of the above this petition is allowed.  The impugned detention order dated 01.5.2002 is quashed.  The petitioner shall be released forthwith unless required in some other criminal or preventive detention."

However, another division Bench in the case of Mohammad Jaid vs. district Magistrate, Sitapur and others, 2002(45) ACC, 611 took the following view:-

"Perusal of Article 22 (5) of the Constitution of India would show that the detenu has two distinct fundamental rights namely:

(a)  of being communicated by the authority passing the detention order as soon as may be, the grounds of detention; and

(b)  of being afforded by the authority making the detention order, the earliest opportunity of making a representation against the detention order . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . .

It  was further held in the said case that we have no reservation in observing that in the instant case detenu's fundamental right (a) of being apprised by the detaining authority that he had right to make a representation to him has been violated for two reasons namely :

(i)It has not been communicated to the detenu by the detaining authority that he had right to make representation to him and instead he has been informed that if he so wanted he could make one; and

(ii)the period in which he could exercise the right has also not being communicated to him by the detaining authority.

In the case of Sushil Singh v. D.M. Kheri, 2003 (5) ALR 560, the same Division Bench of this Court held as below:-

"In our view since the petitioner-detenu was not communicated that his right to make a representation to the detaining authority, was only available to him till the approval of the detention order by the State Government there has only been a partial communication of his fundamental right of being communicated the grounds of detention and for the reasons mentioned earlier the aforesaid partial communication would amount to non-communication of the grounds of detention violating the first facet of the fundamental right guaranteed to the detenu by Article 22 (5) of the Constitution."

In the instant case each of the petitioner was informed by the detaining authority (District Magistrate) that in case he wanted to make representation against the detention order before detaining authority, they may do so at the earliest to the jail authorities where they were detained.  In case, representation was received after approval by the State Government, then the detaining authority would not consider it.

As narrated above, the Apex Court in Santosh Acharya's case has clearly held that "consequently until the detention order is approved by the State Government, the detaining authority can entertain representation from a detenu and in exercise of his power under the provisions of Section 21 of Maharashtra General Clauses Act could amend, vary or rescind the order as it provided under Section 14 of Maharashtra Act."  It shows that in the said case, the Apex Court held that the power of deciding representation by the detaining authority.  District Magistrate acting under delegated power under Section 3 (3) of the Act is only up to approval of the detention order by the State Government.  In the cases of Lucknow Bench of this Court in Mohammad Jaid vs. D.M. Sitapur, and Sushil Singh vs. D.M. Kheri it was held that power to decide the representation by the District Magistrate is only upto the period of 12 days or before approval of detention order by the State Government.  But in the decision of Idrish vs. Secretary, Ministry of Home Affairs, Government of India, New Delhi and others, Lallan Goswami @ Ajaynath Goswami vs. Superintendent, Central Jail, Naini, Allahabad and others, Dilip Kumar Srivastava vs. Superintendent Kendriya Karagar, Naini and others (supra) it has been laid down that the District Magistrate has right to decide the representation even after its approval by the State Government and non consideration of representation of detenu on the ground that detention order passed by him has been approved by the State Government is no excuse and if representation of the detenu is not decided by the detaining authority on the ground that detention order was approved by the State Government it would invalidate the detention order.

In this way, we find that there is conflict in the decision of Idrish and others and Mohammad Jaid and others as well as Apex Court's decision in Santosh Acharya's case.

We also noticed that in the decision in Sushil Singh vs. D.M. Kheri (supra) it was held that the District Magistrate/Detaining Authority is also required to communicate the period in which the detenu could exercise the right to make representation before him.  Under Section 3 (4) of the Act a legal mandate is imposed on the District Magistrate or Commissioner or Police to report the fact forth with to the State Government.  Meaning thereby the District Magistrate cannot wait the reporting of the fact up to 12 days and if it is reported earlier then 12 days to the State Government the State Government is not under any obligation to postpone the approval of detention order upto 12 days.  As such the district magistrate cannot foresee the date of approval of detention order by the State Government.  Under these circumstances, how the District Magistrate can communicate the period to the detenu in which he could make representation to him.

In these circumstances, it is difficult for us to accept the contention that the District Magistrate, who passes detention order under Section 3 (2) of  National Security Act has power to decide the representation of the detenu even after approval of the detention order by the State Government, as it is not in conformity with the Apex Court decisions in Kamlesh Kumar's case and Santosh Acharya's case (supra) and other decisions of Division Bench of this Court noted above.  In our opinion, the following questions need to be reconsidered by larger Bench.

(1)Whether the District Magistrate/Detaining Authority acting under Section 3 (2) of the National Security Act is required to communicate to the person detained regarding right of making representation to him in view of Apex Court's decision in Kamlesh Kumar's case (supra)?  If so, non communication would infringe fundamental right guaranteed under Article 22 (5) of the Constitution ?

(2)If the answer of question no.1 is in the affirmative whether there is obligation on the District Magistrate (Detaining Authority) to communicate the detenu's right within which the detenu is required to make representation to him i.e. before approval of the detention order by the State Government or before 12 days ?  If so non communication of above period will render the detention order invalid ?

(3)Whether the District Magistrate/Detaining Authority has power to revoke or modify the detention order passed by him after its approval by the State Government ?

(4)Whether there is obligation on the District Magistrate/Detaining Authority to consider and decide the representation of the detenu even after approval of the detention order by the State Government ?

Let the records of the cases be placed before Hon'ble the Chief Justice for constituting larger Bench for deciding the questions referred to above.

In the meanwhile, since the Division Bench decision in Idrish vs. Secretary, Ministry of Home Affairs, Government of India, New Delhi and others and in Habeas Corpus Writ Petition No.32237 of 2002 decided on 31.10.2002 the correctness of which is to be decided by larger Bench is in favour of detenu, relying on Division Bench's decision of this Court in Ram Lal vs. State of U.P., 2000 (41) ACC, 1715, it is directed that petitioner of each petition shall be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of District Magistrate, Allahabad.

Dated : 22.04.2003

HSM


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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