MARGARET WASSWA Vs. R D TYAGI

JUDGEMENT

(1.) THE petitioner-detenu Mrs. Margaret Wasswa, an Ugandan national has filed this petition seeking a writ to quash the order of detention passed by the Principal Secretary to the Government of Maharashtra, Home Department, Mantralaya, Bombay and detaining authority dated 26th July 1994 directing the petitioner-detenu to be detained in exercise of powers to detain the petitioner under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,1988.

(2.) BRIEF facts which led to the detention of the petitioner-detenu as narrated in the petition appear to be that the petitioner who is a Ugandan national came to be arrested on 3.3.1994 by the Officers of the Narcotics Control Bureau, Bombay for the violation of the provisions of the N.D.P.S. Act as he was found carrying 3.450 kgs of heroin and as such the detaining authority found it necessary to issue the order of detention under section 3(1) of the PIT NDPS Act with a view to preventing her from engaging in illicit traffic in narcotic drugs.

(3.) THE learned Public Prosecutor has not been able to show that the detaining authority has complied with the necessary requirements of communicating to the detenu i.e. the petitioner herein, of her right to make a representation to the detaining authority to which the petitioner-detenu could have made a representation against the detention order. We have gone through the impugned order of detention and the grounds communicated to the petitioner-detenu. THE detaining authority in paragraphs 12 to 14 of its order has informed the detenu that she has a right to make a representation to the State Government, Central Government and also that the matter has been referred to the Advisory Board under section 9 of the PIT NDPS Act,1988, but has failed to record in its order that the detenu has also a right to make a representation against the detention order to the detaining authority itself. In view of this fact the consequence would follow, that is, as the detaining authority has failed to comply with the express provision of Article 22(5) of the Constitution of India and having failed to inform the detenu that she has a right to make a representation against the order of detention to the authority who has passed the order, in addition to her right to make a representation to the State Government and the Central Government where the detention order has been made by an officer specially empowered by the State Government and the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his/her right to make a representation to the authority that has made the order of detention at the time when he/she is served with the grounds of detention so as to enable the detenu to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation and such a lapse on the part of the respondents would lead to quashing of the order of detention. In this case it is also an admitted position that the detenu has not made any representation to the detaining authority.