Shiva Kirti Singh, J.
1. Learned Counsel for the petitioner and learned Addl. Advocate General III have been heard in detail so that this writ petition may be disposed of at the stage of admission itself.
2. Petitioner has sought for a writ in the nature of Habeas Corpus seeking his release from preventive detention pursuant to order dated 22.5.2007 (Annexure-1) issued by the District Magistrate, Bhagalpur under Section 12(2) of Bihar Control of Crimes Act, 1981 (hereinafter referred to as 'the Act') which has been confirmed by the State Government vide order dated 1.6.2007 (Annexure-2).
3. Petitioner is presently in preventive jail custody at Central Jail, Bhagalpur since 22.5.2007. While in such custody, on 6.6.2007 he was served with order of the State government contained in Annexure-2 dated 1.6.2007 whereby he was informed that the State Government has approved the order of the District Magistrate dated 22.5.2007 and if the petitioner wishes then he may file his written representation against order of preventive detention to the State Government through the Superintendent of Central Jail, Bhagalpur. Even prior to service of grounds of detention, as appears from Annexure-3 on 23.5.2007, through an Advocate the petitioner filed a representation/petition before the District Magistrate, Bhagalpur praying for release from jail custody. No order appears to have been passed in respect of that representation. Through a communication dated 24.5.2007 contained in Annexure-4, the District Magistrate, Bhagalpur communicated to the petitioner the grounds for his preventive detention in which four criminal cases against the petitioner were given as grounds and altogether seven criminal cases of earlier period were shown as criminal history of the petitioner. On the basis of those materials as appears from Annexure-4 the District Magistrate came to a subjective satisfaction that petitioner falls in the category of anti social element; his activities had created fear and tenor in the general public and the same was prejudicial to maintenance of public order. It further appears from order of the State Government contained in memo No. 7149 dated 14.7.2007 that the Advisory Board had also opined in favour of preventive detention of the petitioner under the provisions of the Act.
4. While communicating the grounds of detention, through Annexure-4 dated 24.5.2007 and also through order of the State Government under Section 12(3) of the Act dated 1.6.2007 (Annexure-2) the petitioner was informed that he could represent before the State Government. Apparently due to Section 17 of the Act, the petitioner was never informed that he could represent before the District Magistrate, Bhagalpur.
5. On behalf of the petitioner an argument was advanced that there is no valid delegation of the power of preventive detention by the State Government in favour of the District Magistrate, Bhagalpur. In reply learned State counsel relied upon the impugned order contained in Annexure-1 which refers to a notification of the State Government under Section 12(2) of the Act dated 22.12.2006 and a memo No. 2558 dated 9.3.2007. Further to make the position clear, a copy of notification dated 9.3.2007 has been brought on record as Annexure-B to a supplementary counter affidavit filed on 6.8.2007. That notification clearly shows that there was a valid delegation of power to order for preventive detention in favour of the District Magistrate, Bhagalpur for the period 1.4.2007 to 30.6.2007. Hence, first point raised on behalf of the petitioner is found without any substance.
6. The next submission advanced on behalf of the petitioner raises an important question of law as to whether constitutional safeguards under Article 22(5) of the Constitution of India require an information to be given to the detenu that he can make a representation against the order of detention to the detaining authority i.e. the District Magistrate in this case. According to learned Counsel for the petitioner, this issue is no longer res integra and has already been settled by a Constitution Bench judgment of the Supreme Court in the case of Kamleshkumar Ishwardas Patel v. Union of India : 1996(53)ECC123 . No doubt, after paragraph 14 in the said judgment the Apex Court proceeded to consider the right to make a representation in the light of relevant provisions in the COFEPOSA Act and PIT NDPS Act and finally concluded in paragraph 46 that since the representation of the person detained was not considered by the officer making the order of detention the High Court was in error in holding that the said failure on the part of the detaining authority to consider and decide the representation is not fatal to the order of detention. But learned Counsel for the petitioner has submitted that discussions made in the said judgment from paragraph 7 to 14 and particularly in paragraph 12, go to show that the Constitution Bench also discussed cases relating to orders of detention made by the District Magistrate under the Preventive Detention Act, 1950 wherein Section 7(1) provided that the authority making the order of detention shall afford to the person detained the earliest opportunity of making a representation against the order 'to the appropriate Government'. According to learned Counsel for the petitioner, it was in respect of orders of detention under similar Acts that the Apex Court in paragraph 14 of the said judgment held as follows:
Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.
7. On behalf of the petitioner reliance was also placed upon judgment of the Supreme Court in the case of State of Maharashtra v. Santosh Shankar Acharya, : 2000CriLJ3939 . That case was under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981. Section 8(1) of the Act categorically provided that an earliest opportunity of making a representation against the order to the State Government should be afforded but the Full Bench of Bombay High Court held that in case of an order of detention by an officer under Sub-section (2) of Section 3 of the said Act, non-communication to the detenu that he has a right of making a representation to the detaining authority constitutes an infraction to a valuable right of the detenu under Article 22(5) of the Constitution of India and as such vitiates the order of detention. The Full Bench relied upon Constitution Bench judgment of the Supreme Court in Kamleshkumar Ishwardas Patel v. Union of India (supra). While hearing the appeal, after considering the implication of Section 14(1) of the said Act and in view of the expression 'without prejudice to the provisions of Section 21 of the Bombay General Clauses Act, 1904', the Supreme Court rejected the contention advanced on behalf of the State of Maharashtra that on communication of an order under Sub-section (2) of Section 3 of the said Act to the State Government under Sub-section (3), the State Government becomes the detaining authority and, therefore, the officer passing the detention order ceases to have any power to amend, vary or rescind the order. The Apex Court held that until the detention order is approved by the State Government the detaining authority can entertain a representation from a detenu and exercise power to amend, vary or rescind the order in view of provisions in the General Clauses Act. Ultimately, in that case the Apex Court held that non-communication of the fact to the detenu that he can make a representation to the detaining authority so long as the order of detention has not been approved by the State Government in a case where an order of detention is issued by an officer other than the State government, would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and the ratio of the Constitution Bench decision in Kamlesh kumar Ishwardas Patel's case (supra) would apply although in that case the Supreme Court was dealing with an order of detention issued under the provisions of the COFEPOSA Act.
8. On behalf of the petitioner reliance was also placed upon judgment of the Supreme Court in the case of A.C. Razia v. Govt. of Kerala : 2004CriLJ2498 . In that case in paragraph 11 the Supreme Court took notice of various relevant provisions of COFEPOSA Act and cognate Acts, including Section 11 which empowers the State Government or the Central Government, as the case may be, to revoke the detention order without prejudice to the power of the detaining authority to rescind the same under Section 21 of the General Clauses Act. Thereafter, in paragraph 12 relying upon the case of Kamlesh kumar Ishwardas Patel v. Union of India (supra) it was held that the words 'without prejudice to the provisions of Section 21 of the General Clauses Act' in Sub-section (1) of Section 11 ensured that the power to revoke the order of detention conferred on the Central and the State Government does not detract from the power that is available to the authority that has made the order of detention to revoke it. In paragraph 10 of the said judgment it has been held that 'the duty to apprise the detenu of the right to make representation to one or more authorities who have power to reconsider or revoke the detention has been cast on the detaining authority.' From this judgment it has been shown that dual rights under Clause (5) of Article 22 of the Constitution of India are: (i) the right to be informed as soon as may be of the grounds on which the order has been made and (ii) the right to be afforded the earliest opportunity of making a representation against the order of detention. Further, by judicial craftsmanship certain ancillary and concomitant rights have been read into this article so as to effectuate the guarantees/safeguards envisaged by the Constitution under Clause (5) of Article 22.
9. Learned Additional Advocate General appearing for the State submitted that under Section 17 of the Act a detenu is required to be communicated the grounds of detention ordinarily within five days and in exceptional circumstances within 10 days from the date of detention and the authority making the detention order is required to offer the detenu the earliest opportunity of making a representation against the order to the State Government. He further referred to Sub-section (1) of Section 23 of the Act which reads as follows:
23. (1) Without prejudice to the provision of Section 21 of General Clauses Act, 1897 (10 of 1897), detention order may, at any time, be revoked or modified-
(i) notwithstanding that the order has been made by an officer mentioned in Sub-section (2) of Section 12, or by the State Government to which that officer is subordinate.
He submitted that the word 'or' in Clause (i) occurring after the words 'Section 12' is apparently a drafting mistake and the clear meaning of the said provision is that even where the detention order has been made by an officer, it can be revoked or modified only by the State Government. However, he failed to explain why the words- 'without prejudice to the provisions of Section 21 of the General Clauses Act 1897' had been used at the beginning of Sub-section (1) of Section 23.
10. As flows from various Supreme Court judgments noticed earlier, it has to be held that as a result of power available under Section 21 of the General Clauses Act the officer making the detention order under Sub-section (2) of Section 12 of the Act retains the power to vary, modify or rescind the order till it has been approved by the State Government. No doubt, under Sub-section (3) of Section 12 when an order is made by District Magistrate, it shall not remain in force for more than 12 days unless, in the meantime, it has been approved by the State Government. However, till such approval which may take upto 12 days, the detenu cannot be treated to be deprived of right of making a representation against the order of detention when under the provisions of the Act the District Magistrate has the power to vary, modify or rescind the order till it is approved by the State Government. This flows from the fundamental right available to a detenu under Article 22(5) of the Constitution of India that he shall be afforded the earliest opportunity of making a representation, as explained and clarified by various judicial pronouncements of the Supreme Court some of which have been cited on behalf of the petitioner and noticed earlier.
11. Learned Addl. Advocate General placed reliance upon judgment of the Supreme Court in the case of Ram Bali Rajbhar v. the State of West Bengal, : 1975CriLJ592 . On careful perusal of that judgment it is found that in relevant paragraph 11 the Supreme Court was merely examining the scope of power of the State Government in the context of representation by detenu for revocation of detention order in exercise of specific power under Section 14 of the Maintenance of Internal Security Act, 1971. It was held that such power under the said Act was wider in amplitude than that under Section 21 of the General Clauses Act and hence, the State Government could refer a case back to the Advisory Board for its opinion. The other case relied upon by him is Raj Kishore Prasad v. State of Bihar : 1983CriLJ629 . That case was considered by the Constitution Bench in the case of Kamlesh kumar Ishwardas Patel (supra). Further in that case the issue was not the effect of non-communication of right of representation to the detaining authority but the effect of disposal of representation by the State Government on account of forwarding of the same by the District Magistrate. Once the order of detention is approved by the State Government, thereafter the District Magistrate may have to consider to forward the representation to the State Government. That judgment is not of any help to the State in the present case.
12. Lastly, learned Counsel for the State has placed reliance upon judgment of the Supreme Court in the case of Sri Anand Hanumathsa Katare v. Additional District Magistrate : 2007CriLJ30 . In that case the detenu had made a representation to the detaining authority, who rejected the same and since the order of detention had been approved by the State Government, on behalf of the detenu an issue was raised before the court that the detaining authority had become functus officio, therefore, it should have transmitted the representation to the State Government for consideration. This contention was rejected by the High Court on the ground that there was no provision in the concerned Act to show that the role of the detaining authority comes to an end after making an order. It was further found that the detaining authority had made the detenu aware of his right to make representation to the State Government. In such circumstances, the Supreme Court rejected the appeal of the detenu. The Supreme Court noticed that in spite of being made aware of his right of making a representation to the appropriate government, the detenu did not avail of that opportunity and hence, in the facts of that case, the Supreme Court refused to reverse the judgment of the High Court. The issue under consideration was not raised or discussed in that judgment.
13. Thus, on an in-depth consideration of judgments of the Supreme Court in the case of Kamlesh kumar Ishwardas Patel, A.C. Razia and S.S. Acharya and an unreported judgment of this Court dated 20.4.2004 passed in CrWJC No. 287 of 2003 (Raja Singh @ Rajwa v. The State of Bihar and Ors.) a copy whereof was placed before us on behalf of the petitioner, we find substance in the submission advanced on behalf of the petitioner that under the safeguards available to a detenu by virtue of Article 22(5) of the Constitution of India, the petitioner-detenu was entitled to be apprised of his right to file a representation against the order of detention before the District Magistrate who had passed the order under Section 12(2) of the Act so that the detenu could effectively exercise his right of filing a representation at the earliest. That was clearly not done in this case. Hence, the preventive detention of the petitioner is found to be illegal.
14. Accordingly, the writ petition is allowed. The impugned orders contained in Annexures 1 and 2 are quashed. The petitioner is directed to be released forthwith, if not required in any other case.
15. Before parting with this matter, it is deemed necessary to direct the State of Bihar to circulate fresh guidelines, if required, to all the District Magistrates that in addition to provisions in Section 17 of the Act entitling a detenu to make representation to the State Government, on account of judicial interpretation of Article 22(5) of the Constitution, a detenu is further entitled to information that he can make representation also to the Distinct Magistrate in case the order of detention has been made by a District Magistrate. In case a representation is filed before the District Magistrate, the same should be given due and expeditious consideration in keeping with the spirit of Article 22(5) of the Constitution of India.
Syed Md. Mahfooz Alam, J.
16. I agree.