Mohd. Shakeel vs State of U.P.& Ors.

Vishnu Sahai, J.—Though this writ petition preferred under Article 226 of Constitution of India, the petitioner detenu has impugned the order dated 1512002 passed by the second respondent Mr. C.N. Dubey, District Magistrate Gonda detaining him under subsection (3) of Section 3 of National Security Act.

The detention order alognwith the grounds of detention, which are also dated 1512002, was served on the petitionerdetenu on 1612002 and their true copies have been annexed as Annexure Nos. 1 and 2 respectively to this petition.

The prejudicial activities of the petitionerdetenu impelling the second respondent to pass the impugned detention order against the petitionerdetenu are contained in the grounds of detention. Since it is common ground between Counsel for the parties that although the impugned detention order was served on the petitionerdetenu on the very next and the petitionerdetenu had a right to make a representation to the detaining authority within 12 days of passing of the detention order or its approval by the State Government whichever is earlier and the petitioner detenu was not conveyed in the grounds of detention that he had such a right and instead was conveyed that if, he so wanted he could make a representation, this writ petition is liable to succeed on this point. Consequently, we are not adverting to the prejudicial activities of the petitionerdetenu contained in the grounds of detention.

This Court has repeatedly taken the view that there is world of difference between the right to make representation and option to make a representation. There are plethora of decisions on the point that if the detenu has been conveyed that he had an option to make representation as the case here, the impugned order of detention would be rendered bad in law. The rationale for such a view is that if the petitionerdetenu is conveyed that he has an option to make representation, he may or may not make one, but where he is informed that he has right to make representation, he would invariably make one.

Since in the instant case the petitionerdetenu has been conveyed that he had an option to make representation and has not been conveyed that he has a right to make one, the impugned order is vitiated.

In the result, we allow this writ petition quash the impugned detention order dated 1512002 and direct that the petitioner detenu Mohd. Shakeel be released forthwith unless wanted in some other case.