JAI PRAKASH; PARAM SINGH Vs. DISTRICT MAGISTRATE RAMPUR

JUDGEMENT

(1.) BOTH these petitions under Article 226 of the Constitution of India are directed against the order of the District Magistrate, Rampur, dated 31-1-2003 detaining the petitioners under Section 3 (2) of the Natinal Security Act, 1980, (hereinafter referred to as the Act), on account of their involvement in Case Crime No. 761 of 2002 under Section 302/307, IPC, P. S. Tanda, district Rampur.

(2.) COUNTER and refounder affidavits have been exchanged and they are on record.

(3.) ALTHOUGH the impugned order of detention is challenged on several grounds but during the course of argument learned counsel for the petitioner confined his submission to the point that the petitioner was not communicated the fact that he had a right to make representation to the detaining authority before approval of the detention order by the State Government. Learned counsel further drew our attention to the grounds of detention which provides that the detenu is being informed that he can make representation to the detaining authority/district Magistrate against his detention but such representation must be received before the approval of the detention order by the State Government, Learned counsel for the petitioner urged that a plain reading of the grounds of detention indicates that the right to make such representation to the detaining authority has not been conveyed and what was conveyed is the option to make such representation, and there is material difference between the option to make representation and right to make representation. He further placed reliance on a Division Bench judgment of this Court in the case of Sushil Singh v. District Magistrate, Kheri & others, reported in 2003 (1) JIC 639 (AII) (LB), wherein it has been held that the absence of communication of right to make representation to the detaining authority amounts to partial communication of his fundamental right and such partial communication would be violative of the fundamental right guaranteed to a detenu under Article 22 (5) of the Constitution of India. On the other hand, learned counsel appearing for the respondents, opposed the writ petition and sought to argue that there is no violation of Article 22 (5) of the Constitution and, therefore, the order of detention on that ground has not been vitiated.