STATE OF GUJARAT Vs. HEMANTKUMAR DINKARRAI DESAI

JUDGEMENT

(1.) This State has preferred this L. P. A. against the judgment delivered by the learned single Judge of this Court in Spl. C. A. No. 5157 of 1996 decided on 12-1- 1996.

(2.) Hemantkumar Dinkarai Desai had filed Spl. C. A. No. 5157/95 against the order of detention passed on 24-5-1995 by the District Magistrate, Valsad under the provisions of Section 3 of the Prevention of Blakmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as the said Act). Said Spl. C. A. was heard by the learned single Judge and he came to the conclusion that the representation made by the detenu to the detaining authority along with a copy of the same with a request to the detaining authority to forward the same to the Central Government, but in spite of the said specific request, said representation was not forwarded and the same has resulted into infringement of his fundamental rights under Article 22(5) of the Constitution of India.

(3.) The learned Assistant Government Pleader for the State vehemently urged before us that admittedly in this case the appellant had engaged a senior advocate. A senior advocate knows the procedure as to whom and where the representation is to be made to the Central Government and therefore, in the circumstances, if the said representation is not directly made to the Central Government, then it is not open for the detenu to contend that there is infringement of his fumdamental rights guaranteed under Article 22 (5) of the Constitution of India. At the outset it may be stated that law cannot make any difference between a detenu who is represented by an adovate or not represented by an advocate. The detenu is entitled to make his representation to the detaining authority and can even make a request to the detaining authority to take out copies of his representation and forward the same to the other authorities. This has been accepted by the Apex Court in the case of Ahir Shad Khan & Anr., v. Hmingliana & Ors., AIR 1991 (SC) 1988, wherein the following principles are laid down :