SANTOSH YADAV Vs. SATE OF JHARKHAND

JUDGEMENT

(1.) THIS writ petition has been filed challenging the order of detention of the petitioner passed by the District Magistrate, Chatra (resondent No.3) on 26.11.2011 under Section 12 of Jharkhand Control of Crimes Act, 2002 ( the Act for short) and the subsequent orders confirming the same.

(2.) IT appears from the order of detention that in short, the ground is that the petitioner is an active member of Extremist Organization JLT/PLFI and he is involved in about 15 cases of serious nature effecting public and there was chance of his release on bail, due to which there is threat to public order.

(3.) IT appears that copy of the detention order dated 26.11.2011 was sent to the petitioner and it was clearly indicated therein that he could place his written representation, if any, to the State Government through Jail Superintendent, Chatra. The said order was admittedly served on the petitioner on 28.11.2011. It was approved within one week by the State Government i.e. on 03.12.2011. Admittedly, the petitioner did not make any representation before any authority. As per Section 17 of the Act, the detaining Authority has to communicate the detenue the grounds on which the order has been made and he is required to afford him earliest opportunity of making representation against the order to the State Government (emphasis supplied). In the case of Santosh Shankar Acharya (supra) it was, inter alia, observed that as the detaining authority continues to be detaining authority until the order of detention was approved by the State Government within a period of 12 days from the date of issuance of detention order, he could entertain a representation from a detenue and therefore no communication of the fact to the detenue that he could make a representation to the detaining authority so long as the order of detention has not been approved by the State Government could constitute an infraction of a valuable right of the detenue under Article 22(5) of the Constitution. In the case of 'Manoj Kumar Singh @ Bhola Singh @ Bhola' the position was different. In that case, it appears that there was nothing in the order of detention indicating the detenue that he had right to make representation. In the present case, admittedly, the order of detention was served within two days on the petitioner but he did not choose to make any representation to any authority. The order of detaining authority can be approved within 12 days by the State Government. The detaining authority is not expected to know when his order will be approved by the State Government within this period. In the present case, it was approved within one week. The detenue was informed about the right to make representation in terms of Section 17 of the Act, as noticed above. The spirit of Article 22(5) of the Constitution of India is that earliest opportunity should be given to the detenue to make representation which opportunity has been given to the petitioner in this case, as noticed above but he did not make any representation to any authority/ State Government. Otherwise it could be referred to the authority competent to pass order on the same i.e. the State Government or detaining authority.