Ashish Seth vs District Magistrate Lakhimpur Kheri and others

Vishnu Sahai, J.—Through this writ petition preferred under Article 22(a of the Constitution of India, the petitionerdetenu Ashish Seth has impugned the order, dated 28.5.2002, passed by opposite party No. I Mr. Sanjay Prasad, District Magistrate, Kheri, detaining him under section 3(2) of the National Security Act.

It is common ground between the counsel for the parties that the detention order, alongwith the grounds of detention, which are also dated 28.5.2002, was served on the petitionerdetenu on 28.5.2002 itself, and their true copies have been annexed as Annexure Nos. 1 and 2 respectively to the writ petition.

The prejudicial activities of the petitionerdetenu impelling the opposite party no. I to pass the impugned order against the petitionerdetenu are contained in the grounds of detention. A perusal of the ground of detention would show that the impugned order is based on a solitary CR, namely CR No. 285 of 2002 under section 354/306/511 I.P.C. of Police Station Kotwali, Lakhimpur, which was later on converted to one under Sections 376/511/306 I.P.C.

We have heard learned counsel for the parties. It is well settled that within the first 12 days from the date of issuance of the detention order by the detaining authority or its approval by the State Government, whichever was earlier, the detenu has a right to make a representation to the detaining authority and the failure to inform him about this would vitiate the detention order. Since in the instant case the detention order was served on the petitionerdetenu on the date of issuance itself i.e. on 28.5.2002 and in the grounds of detention he was only informed that if he so wanted he could make a representation to the detaining authority and was not apprised therein that the said right was available to him within a period of 12 days from the date of passing of the detention order or its approval by the State Government, whichever was earlier, this petition deserves to succeed.

Since the right of the petitionerdetenu to make a representation to the detaining authority was only available to him within 12 days from the date of issuance of the detention order or its approval by the State Government, whichever was earlier, and the petitionerdetenu was not communicated this, in our view the first facet of the fundamental right guaranteed to the petitionerdetenu under Article 22(5) of the Constitution of India would be infracted.

Article 22(5) of the Constitution of India reads thus :

"When any person, is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."

A perusal of the aforesaid article would show that the detenu has two distinct fundamental rights, namely

(a) of being communicated by the detaining authority, as soon as may be, the grounds on which the detention order is founded; and

(b) of being afforded the earliest opportunity of making representation against the detention order.

In our view, a vague communication or partial communication of the grounds of detention would amount to non communication of the grounds of detention, violating the first facet of the fundamental right guaranteed by Article 22(5) of the Constitution of India.

Mr. S.K. Singh, (earned counsel for opposite parties 1 and 2, strenuously contended that since, as is manifest from paragraph 13 of the return of the detaining authority, the petitionerdetenu preferred representation to the detaining authority on 10.06.2002, it is not open for the petitionerdetenu to urge that he was deprived of his right of making a representation to the detaining authority.

We have reflected over the said submission and are constrained to observe that it is misconceived. We say this because the right of a detenu to make a representation to the detaining authority would only be available to the detenu within first 12 days from the date of issuance of the detention order or its approval by the State Government, whichever was earlier. In the instant case, even Mr. S.K. Singh, learned counsel for opposite parties 1 and 2, does not dispute that the detention order was approved by the State Government on 03.06.2002. In other words, the right of the petitionerdetenu to prefer a representation to the detaining authority was extinguished on 3.6.2002. In that view of the matter, the mere circumstance that the petitionerdetenu made a representation to the detaining authority on 10.62002 i.e. 13 days after the passing of the detention is neither here nor there. The possibility that after 3.6.2002 (the date when the State Government had approved the detention order passed against the petitionerdetenu), the petitionerdetenu learnt that he had a right to make a representation to the detaining authority and therefore made one on 10.6.2002 cannot be ruled out.

For the aforesaid reasons, we are of the judgment that since the detaining authority in the grounds of detention did not inform the petitionerdetenu that he had a right to make a representation to him within 12 days from the date of the issuance of the detention order or its approval by the State Government, whichever was earlier, there was noncommunication of the grounds of detention to the petitionerdetenu, violating the first fact of the fundamental right guaranteed to him by Article 22(5) of the Constitution of India.

It is true that the aforesaid point has not been pleaded by the petitioner''s counsel in the writ petition, but in our view, even in the absence of the same there is no legal impediment in considering it because the material for adjudicating upon it is available on record and the principle of strict pleadings does not apply to habeas corpus petitions, see Harish Pahwa v. State of U.P., 1982 (19) ACC 28 (Sum) = AIR 1981 SC page 1126 para 2. and Icchu Devi Choraria v. Union of India and others. AIR 1980 SC page 1983 para 4.

In the result, we allow this writ petition, quash and set aside the impugned detention order and direct that the petitionerdetenu Ashish Seth be released forthwith unless wanted in some other case.