KAMLESH PAHADIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS civil writ petition (habeas corpus) has been filed by petitioner Kamlesh Pahadia under Art. 226, 19 and 21 of the Constitution of India challenging the detention order dated 6. 7. 2006 passed by the District Magistrate, Kota as well as the order dated 14/15th of August, 2006 passed by the Secretary, Home Department, Government of Rajasthan.

(2.) BRIEF facts giving rise to this petitioner are that the District Magistrate Kota passed the impugned order dated 6. 7. 06 under Section 3 (2) of the National Security Act, 1980 (for short `the Act') for detention of the petitioner in the interest of maintenance of public order and public safety. The detention order has been challenged on the ground that the District Magistrate, Kota did not supply the sufficient material to the petitioner/detenu to enable to make effective representation to the State of Rajasthan. The material disclosed by the Detaining Authority did not contain sufficient ground to pass the order against the petitioner under the Act. It was averred that the petitioner was not produced before the Advisory Board within three weeks of the detention as per the mandatory provisions under Section 10 of the Act. It was further averred that the petitioner was informed to appear before the Advisory Board on 18. 8. 2006 but the date was changed and he was directed to appear before the Advisory Board on 11. 82006 vide order dated 7. 8. 2006 which was received by the petitioner on 10. 8. 2006 at Central Jail, Kota and as such he was not accorded reasonable time to make representation to defend himself before the Advisory Board. It has also been made a ground that he was not produced before the Advisory Board within three weeks of his detention and as such the detention order is liable to be quashed.

(3.) THE learned counsel for the petitioner has mainly assailed the detention of the petitioner on the ground that the detenu was not accorded sufficient opportunity to make representation as the date of his appearance before the Advisory Board was changed from 18. 8. 2006 to 11. 8. 2006 which was communicated to him on 10. 8. 206 at 4. 15 PM at Central Jail, Kota. In this regard, we have gone through the order of the Advisory Board dated 11. 8. 2006. From the order, it is revealed that though no representation was made by the detenu before the State Government but one representation was submitted by him before the Board at the time of hearing and that the detenu was given opportunity of personal hearing. THE learned counsel for the petitioner has argued that the detenu could not produce evidence in support of his representation as he was not accorded reasonable opportunity to produce his defence. In this regard, the learned counsel has relied in State of Maharashtra and others vs. Shri Ram Chandra Rammilan Mishra alias Pandey (2004) 4 SCC 509) wherein it was held that the detenu was free to produce witnesses before the Advisory Board in order to rebut the allegations levelled. THE learned counsel for the respondent has argued that the detenu was free to produce any witness to rebut the allegation before the Advisory Board but he did not express any such desire and it was not essential for the Advisory Board to take initiative on behalf of the petitioner. On perusal of the order of the Advisory Boards, we find that the detenu was given opportunity for personal hearing and he had filed representation before the Board for consideration but he had made no request for producing witness in order to rebut the allegation against him. Thus, there is no material on record to arrive at the conclusion that no sufficient opportunity was accorded to the detenu.