LIEK RASHID KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Arts. 226 and 227 of the Constitution of India read with S. 482 of the Code of Criminal Procedure has been filed for quashing a detention order dated 14-8-89 passed by respondent 3 Sh. Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of revenue, New Delhi as also for quashing a declaration dated 16-3-90 issued by Sh. S. Venkatarama Iyer, Special Secretary to the Government of India, Ministry of Finance, respondent 2 and also for quashing the confirmation order dated 12-6-90 issued by the Central Government.

(2.) Since the above referred orders are being challenged only on one short ground, therefore, the detailed facts and circumstances in which the petitioner was detained need not be given.

(3.) The main ground urged on behalf of the petitioner is that in the declaration dated 16-3-90 issued by respondent 2, the petitioner was not made aware that he has a right to make a representation against the declaration to the Central Government and the Advisory Board. I have carefully gone through the declaration dated 16-3-90, copy of which is Annexure D at page 35 of the file. This nowhere informs the petitioner that he has a right to make a representation. Learned counsel for the petitioner drew my attention to the case of Jagprit Singh v. Union of India and others reported in 1990 (3) JT 293 decided by a Division Bench of Hon'ble the Supreme Court on 28-3-90. In that case in the declaration the petitioner was not informed that he had a right to make the representation. However, he was made aware of that right only after a perriod of one month and 13 days The Supreme Court held that it was quite unreasonable and inconsistent with the provisions of Art. 22(5) and detention beyond one year was unjustified. In the present case nothing has been brought on record to indicate that petitioner was ever informed even subsequently of his right of making a representation against the impugned declaration and the confirmation. So, I am of the view that since the petitioner has not been made aware of his right to make a representation against the declaration, his valuable right under Art. 22(5) stands violated. The confirmation order in this case was passed after the expiry of a period of more than 3 months from the date of detention, probably on the assumption that a declaration had been issued. This Court had occasion to deal with this aspect of the matter in Criminal Writ No. 799/ 89, Vimal Kapoor, v. Union of India and others decided on dated 16-5-90 and deriving support from the case of Nirmal Kumar Khandelwal v. Union of India, AIR 1978 SC 1155 : (1978 Cri LJ 1094) it laid down that as the order of confirmation had not been made within 3 months from the date of detention, the further detention of the petitioner after expiry of that period is without the authority of law particularly in view of the declaration having been set aside. As already stated above, declaration has to fall because the petitioner was not informed of his right of making a representation. Once the declaration falls and the confirmation order is not shown to have been passed within a period of 3 months from the date of detention order, the detention order will also fall.