M NATESAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE order of preventive detention damped on the detenu under Section 3 (2) of Tamil Nadu Prevention of Dangerous Activities of bootleggers, Drug Offenders, Goondas. Immoral Traffic Offenders, forest-Offenders and Slum Grabbers Act 1332 (Act no. 14 of 1982) as a goonda/bootlegger, as the case may be, is under challenge, inter alia, on the ground that the around of detention is conspicuously silent about the detenu's right to make a representation to the detaining authority against the detention order within 12 days from the date of detention, as envisaged under Section 3 (3) of the said Act.

(2.) AFTER hearing learned counsel for the petitioners and learned Public Prosecutor Mr. R. Shanmuga Sundaram and learned Additional public Prosecutor, Mr. S. Anbalagan, we are of the considered opinion that the petitioners are well founded in their submission. From a plain reading of section 3 (3) of the Act, it is abundantly clear that the duration between the date of passing the detention order and the approval of the same by the State government is 12 days and during this period of 12 days, the detenu has a right to prefer a representation before the detaining authority for revocation of the order of detention. However, the detaining authority has failed to communicate to the detenu that he has a statutory right to make a representation to him against the order of detention within the aforesaid period of 12 days. Since the order of the detaining authority under Section 3 (2) of the Act is to be approved by the State Government within a period of 12 days, till then, the detaining authority can entertain the representation from the detenu and pass appropriate orders thereon. Therefore, in our considered opinion, non-communication of the right of the detenu to make a representation, as aforesaid, is violative of the constitutional right of the detenu, as envisaged under Article 22 (5) of the Constitution. So long as the order of detention has not been approved by the State Government under Section 3 (3) of the Act, the detaining authority will be well within its right to entertain a representation from the detenu. In other words, 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 as a sequel, non-communication of the fact to the detenu that he has a right to make a representation to the detaining authority would certainly constitute 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. This is a procedural safeguard. The Apex Court , in a catena of decisions, has held that the liberty of the citizen is a priceless freedom, sedulously secured by the constitution. Such liberty may be curtailed, but only in strict compliance with statutory formalities which are the vigilant concerns of the Courts to enforce. We have already adverted how in the present batch of cases there has been a failure on the part of the detaining authority to comply with Section 3 (3) of the Act. By judicial engineering, this Court can stall breaches of constitutional dykes, protecting fundamental freedom. The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty is of prime importance to the body politic. It is well settled that the law of preventive detention is a hard law and therefore, it should be strictly construed. Care should be taken that the liberty of a person is not curtailed unless his case fails squarely within the four corners of the relevant law. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law. When a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our solemn duty to see that procedure is rigorously observed. Since the order of preventive detention is passed based on the subjective satisfaction, the detaining authority must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if an order of preventive detention is to be passed following a prescribed procedure, however queer it may appear, that procedure must be scrupulously observed. (See Service v. Dulles, 354 U. S. 363 ). This judicially evolved rule of administrative law is now firmly entrenched in our legal system, and if we may add, rightly so. It was frankfurter J, who observed in Vitarelli v. Seaton 359 U. S. 535that, "he that takes the procedural sword shall perish with that sword" (emphasis supplied by us ). Therefore, we have no hesitation in concluding that failure to communicate to the detenu (e) about the right to make a representation to the detaining authority is fatal to the maintainability of the detention order. The view, we are taking, is fortified by no less than-a bead of decisions of the apex Court reported in the following cases viz. , (1) Prabhu Dayai Deorah v. District Magistrate,air 1974 S. C. 183 (2) Ajit Kumar v. District Magistrate, birbhum, AIR 1974 S. C. 1917 (3) Shor Mohammed v. State of West Bengal, AIR 1975 S. C. 2049 ; (4) Wasi Uddin Ahmed v. District Magistrate, Aligarh, AIR 1961 S. C. 100 ; (5) Vijay Narain Singh v. State of Bihar, AIR 1984 S. C. 1334 and (6) State of Maharashtra & Ors. v. Santosh Shankar Acharya, JT 2000 (6) SC 374.