M. Natesan vs The State of Tamil Nadu and another

K. Narayana Kurup, J,

The order of preventive detention damped on the detenu u/s 3(2) of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas. Immoral Traffic Offenders, Forest-Offenders and Slum Grabbers Act 1332 (Act no. 14 of 1982) as a goonda/bootlegger, as the case may be, is under challenge, inter alia, on the ground that the around of detention is conspicuously silent about the detenu''s right to make a representation to the detaining authority against the detention order within 12 days from the date of detention, as envisaged u/s 3(3) of the said Act.

2.After hearing learned counsel for the petitioners and learned Public Prosecutor Mr . R. Shanmuga Sundaram and learned Additional Public Prosecutor, Mr.S.Anbalagan, we are of the considered opinion that the petitioners are well founded in their submission . From a plain reading of Section 3(3) of the Act, it is abundantly clear that the duration between the date of passing the detention order and the approval of the same by the State Government is 12 days and during this period of 12 days, the detenu has a right to prefer a representation before the detaining authority for revocation of the order of detention. However, the detaining authority has failed to communicate to the detenu that he has a statutory right to make a representation to him against the order of detention within the aforesaid period of 12 days. Since the order of the detaining authority u/s 3(2) of the Act is to be approved by the State Government within a period of 12 days, till then, the detaining authority can entertain the representation from the detenu and pass appropriate orders thereon. Therefore, in our considered opinion, non-communication of the right of the detenu to make a representation, as aforesaid, is violative of the constitutional right of the detenu, as envisaged under Article 22(5) of the Constitution. So long as the order of detention has not been approved by the State Government u/s 3(3) of the Act, the detaining authority will be well within its right to entertain a representation from the detenu. In other words, a detenu will have a right to make a. representation to the detaining authority so long as the order of detention has not been approved by the State Government and as a sequel, non-communication of the fact to the detenu that he has a right to make a representation to the detaining authority would certainly constitute infraction of the valuable constitulional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. This is a procedural safeguard. The Apex Court, in a catena of decisions, has held that the liberty of the citizen is a priceless freedom, sedulously secured by the Constitution. Such liberty may be curtailed, but only in strict compliance with statutory formalities which are the vigilant concerns of the Courts to enforce. We have already adverted how in the present batch of cases there has been a failure on the part of the detaining authority to comply with Section 3(3) of the Act. By judicial engineering, this Court can stall breaches of Constitutional dykes, protecting fundamental freedom. The need for observance of proeedural safeguards particularly in cases of deprivation of life and libeity is of prime importance to the body politic. It is well settled that the law of prevemive detention is a hard law and therefore, it should be strictly construed. Care should be taken that the liberty of a person is not curtailed unless his case fails squarely within the four corners of the relevant law. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived ot" it except in accordance with the procedure established by law. When a certain procedure is prescribed by the Constitution or the laws for depriving a citi/en of his personal liberty, we think it our solemn duty to see that procedure is rigorously observed. Since the order of preventive detention is passed based on the subjective satisfaction, the detaining authority must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if an order of preventive detention is to be passed following a prescribed procedure, however queer it may appear, that procedure must be scrupulously observed. (See Service v. Duties, 354 U.S.363). This judicially evolved rule of administrative law is now firmly entrenched in our legal system, and if we may add, rightly so. It was Frankfurter J, who observed in Vitaretti v. Seaton 359 U.S.535 that, "He that takes the procedural sword shall perish with that sword" . Therefore, we have no hesitation in concluding that failure to communicate to the dctenu(e) about the right to make a representation to the detaining authority is fatal to the maintainability of the detention order. The view, we arc taking, is fortified by no less than-a bead of decisions of the Apex Court reported in the following cases viz., (1) Prabhu Dayal Deorah Vs. The District Magistrate, Kamrup and Others, (2) Ajit Kumar Kaviraj Vs. District Magistrate, Birbhum and Another, (3) Sher Mohammad alias Seru Vs. The State of West Bengal, ; (4) Wasi Vddin Ahmed v. District Magistrate, Aligarh, AIR 1961 S.C.1GO ; (5) Vijay Narain Singh Vs. State of Bihar and Others, and (6) State of Maharashtra & Ors. v. Santosh Shankar Acharya, JT 2000(6) SC 374.

Of course, learned Public Prosecutor vehemently contended relying on the decision reported In Pankaj Kumar Chakrabarty and Others Vs. The State of West Bengal, that there is no obligation on the part of the detaining authority to mention the fact that the detenu has a right to make a representation within 12 days, since the detenu is expected to know about hit; legal right. We are afraid it is too preposterous a proposition to have the imprimatur of this Court. A detenu, who in most cases is a layperson being inexperienced in legal jargon, can hardly be expected to know the intricacies of law much less his right to make a representation within the stipulated time to a prescribed authority. The detaining authority will not be relieved of its obligation to communicate to the detenu of his right to make a representation, even assuming the detenu is otherwise in know of his right to make a representation. It is, therefore, up to the detaining authority to communicate to the detenu about the latter''s right to make a representation in terms of Section 3(3) of the Act. Otherwise, the light of the detenu to make an effective representation will be defeated. In this connection, even at the risk of repetition, we may observe that in a case or preventive detention, it is absolutely obligatory to communicate all relevant materials to the detenu in clear and unambiguous terms giving as much particulars as will facilitate making of an effective representation in order to satisfy the detaining authority that the order is unfounded or invalid.

For the aforesaid reasons, we allow these H.C.Ps. and as a sequel, quash the orders of preventive detention impugned herein and direct that the detenus be set at liberty forthwith, if not wanted in connection with any other case.