RAFIQ Vs. DISTRICT MAGISTRATE MORADABAD

JUDGEMENT

(1.) K. K. Misra, J. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner detenu Rafiq has challenged the order dated 30-9-2002 passed by respondent No. 1, District Magistrate, Moradabad and detaining him under Section 3 (2) of the National Security Act (briefly, the Act ). The detention order alongwith ground of detention were served on the petitioner detenu on 30-9-2002 and their copies are annexed as Annexure-4 to the supplementary-affidavit. Counter and rejoinder-affidavits have been exchanged.

(2.) HEAD Sri A. Misra, holding brief of Sri A. K. Agrawal, counsel for the petitioner and learned A. G. As. Sri Arvind Tripath and Mahendra Prasad.

(3.) THE Constitution Bench of Hon'ble Supreme Court in the case of State of Punjab v. Baldev Singh, 1999 (2) JIC 421 (SC); 1999 SCC (Cri) 1080, has considered various aspects of the compliance of Section 50 of NDPS Act and in that judgment also it was held that failure to inform the person concerned about the existence of his right cannot be treated as to be communication to him that he has right under law unless he was told that he had a right under law. This observation was made with regard to Section 50 of the NDPS Act where the accused has to be conveyed the right of his option to be searched before a gazetted officer. THE constitutional provisions are placed on a higher footing and it is the duty of the Court to see that the valuable right of the detenu should be conveyed to him in unequivocal terms making him fully conscious of the fact that he has a right of making the representation to the authority concerned. In the absence of communication of his valuable right guaranteed under Constitution, the detention is liable to be quashed.