SHUSHIL SINGH Vs. DISTRICT MAGISTRATE KHERI

JUDGEMENT

(1.) Through this writ petition, preferred under Article 226 of the Constitution of India, the petitioner-detenu Shushil Singh has impugned the order dated 22-9-2002 passed by the first respondent Mr. Ashok Kumar Singh, District Magistrate, Kheri, detaining him under S. 3(2) of the National Security Act (hereinafter referred to as the N.S.A. Act) The detention order along with the grounds of detention, which are also dated 22-9-2002, was served on the petitioner detenu on 22-9-2002 itself and their true copies are annexed as Annexure Nos. 1 and 2 respectively to the writ petition.

(2.) The prejudicial activities of the petitioner detenu impelling, the first respondent to issue the impugned detention order against him are contained in the grounds of detention (annexure-2). A perusal of Annexure-2 would show that the impugned order is founded on a solitary C. R. namely, C. R. No. 168/2002,u/Ss. 147/148/149/302/307/452/504/506/379 I.P.C. and 3(2) (V) S.C./S.T. Act, of police - Station Maigalganj, District Kheri, instituted on the complaint dated 25-7-2002 lodged by one Rajendra Prassad Raidas at the said police station. Since in our view, a reference to them is not necessary for the adjudication of the pleadings contained in paragraph-17 of the petition and ground (f) of para 24 thereof on which this petition deserves to succeed we are not adverting to them.

(3.) We have heard learned Counsel for the parties. The pleadings contained in paragraph 17 of the petition and ground (f) of para 24 thereof are that the petitioner was not communicated the fact that he had a right to make a representation to detaining authority before approval of the detention order by the State Govt. Mr. R. C. Gupta, learned Counsel for the petitioner-detenu strenuously urged that a perusal of the grounds of detention makes it manifest that the petitioner-detenu was only informed that if he wanted he could make a representation to the detaining authority and was not apprised that he had a right to make a representation to him prior to the approval of the detention order by the State Government. To bring home his submission he placed before us the relevant portion of the grounds of detention which read thus: "Yadi Aap Chahen To Mujhey Bhi Apana Abhyavedan De Sakate Hai". (In English it would mean that in case you want you can give your representation to me). Mr. Gupta urged that what was conveyed to the detenu in the grounds of detention was that he had an option to make a representation. He contended that there is a world of difference between an option to make a representation and the right to make one; in the former situation the detenu may or may not make a representation but in the latter would invariably make one. Mr. Gupta urged that since the Supreme Court in paragraph 8 of the oft-quoted case of State of Maharashtra v. Santosh Shanker Acharya reported in 2000 Allahabad Criminal Cases 704 has held in a prevention of detention under S. 3(2) of the Prevention of Dangerous Activities of Slumlords, Bootleggers, Drugs Offenders and Dangerous persons Act, 1981 (hereinafter referred to as the MPDA Act) that in view S. 3, 8 and 14 of the said Act that till the detention order is approved by the State Government the detenu has a right to make representation to detaining authority and non-communication of this right constitutes an infraction of fundamental right guaranteed by Article 22(5) of the Constitution of India and vitiates the detention order and since the provisions contained in Ss. 3, 8 and 14 of the N.S.A. are analogous to those contained in Ss. 3, 8 and 14 of the M.P.D.A. Act, the said ratio would be squarely applicable to the said case and the impugned detention order would have to be quashed.