Hattu @ Bablu Vs. State of Rajasthan and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/765366
SubjectCivil
CourtRajasthan High Court
Decided OnSep-26-2005
Case NumberD.B. Habeas Corpus Petition No. 4681 of 2005
Judge Shiv Kumar Sharma and; F.C. Bansal, JJ.
Reported in2005CriLJ4739; RLW2005(4)Raj2980; 2005(4)WLC724
ActsNational Security Act, 1980 - Sections 3, 3(2), 3(3), 3(4), 3(5), 8, 9, 10, 11 and 14; General Clauses Act, 1897 - Sections 3(8) and 21; National Security (Amendment) Act, 1984; Conservation of Foreign Exchange and Prevention of Smuggling Activities Act - Sections 11; Constitution of India - Article 22(5)
AppellantHattu @ Bablu
RespondentState of Rajasthan and ors.
Appellant Advocate A.K. Gupta and; Rinesh Gupta, Advs.; Kamlakar Sharma
Respondent Advocate M.L. Goyal, Addl. G.A.
DispositionPetition allowed
Cases ReferredIn Sat Pal v. State of Punjab
Excerpt:
- - 8. the respondents state government, district magistrate, sawai madhopur and superintendent of police, sawai madhopur in their return stated that the activities of the petitioner disturbed the public order, therefore, it was necessary to detain him under the 1980 act and the impugned order was passed on considering the relevant record and after being subjectively satisfied. 12. in the instant case, the contention of the petitioner remains un-controverted that his representation to the president of india has not been considered and disposed of and there is failure on the part of the government to discharge its obligation under article 22(5) of the constitution. since the central government has failed to discharge its constitutional obligations which require of an expeditious consideration of the petitioner's, representation as spelt out from article 22(5) of the constitution, the non-consideration of petitioner's representation expeditiously by the central government has resulted in rendering the petitioner's continued detention illegal and constitutionally impermissible.shiv kumar sharma, j.1. the petitioner seeks to quash the order dated may 11, 2005 of the district magistrate, sawai madhopur detaining the petitioner under section 3(2) of the national security act, 1980 which was enacted to tackle the law and order situation in the country in a most determined and effective way.2. coming to the scheme of the national security act, 1980 (for short 1980 act), we notice that the state government has to send its report in regard to detention order to the central government, sub-section (5) of section 3 of 1980 act reads as under:--'when any order is made or approved by the state government under this section, the state government, shall, within seven days, report the fact to the central government together with the grounds on which the order has been made and such other particulars as, in the opinion of the state government, have a bearing on the necessity for the order.'3. a detention order may be. revoked or modified at any time under section 14 of the 1980 act which provides thus:--'14. revocation of detention orders.--(1) without prejudice to the provisions of section 21 of the general clauses act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified,--(a) notwithstanding that the order has been made by an officer mentioned in sub-section (3) of section 3, by the state government to which that officer is subordinate or by the central government;(b) notwithstanding that the order has been made by a state government, by the central government.(2) the expiry or revocation of a detention order (hereafter in this sub-section referred to as the earlier detention order) shall not [whether such earlier detention order has been made before or after the commencement of the national security (second amendment) act, 1984] bar the making of another detention order (hereafter in this sub-section referred to as the subsequent detention order) under section 3 against same person:provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extent beyond the expiry of a period of twelve months from the date of detention under the earlier detention order.'4. it is necessary to place the case where detention order is made before the advisory board under section 10 of the 1980 act which provides thus:'10. reference to advisory board.--save as otherwise expressly provided in this act, in every case where a detention order has been made under this act, the appropriate government shall, within three weeks from the date of detention of a person under the order, place before the advisory board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in sub-section 3 of section 3, also the report by such officer under sub-section (4) of that section.'5. at this juncture reference of article 22 of the constitution of india appears necessary which provides that 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.6. the petitioner through his counsel made representation against his detention order to the president of india which was received in the secretariat of the president of india and the same was sent to ministry of law and justice vide pres. sectt.'s letter no. 10(37/2005-p(i), dated june 10, 2005 and it was further forwarded to joint secretary, ministry of home affairs on august 8, 2005.7. the respondent union of india did choose to file affidavit of ms. rita dogra, under secretary, ministry of human affairs to the effect that a report as envisaged under section 3(5) of 1980 act about the detention of the petitioner was made by the government of rajasthan to the central government which was received in the ministry of home affairs on may 24, 2005. the position was noted by the concerned director authorised under section 3(5). it is further stated that as per provisions of section 8, the petitioner on receipt of grounds of detention had right to make representation to the government of rajasthan and not to the central government.8. the respondents state government, district magistrate, sawai madhopur and superintendent of police, sawai madhopur in their return stated that the activities of the petitioner disturbed the public order, therefore, it was necessary to detain him under the 1980 act and the impugned order was passed on considering the relevant record and after being subjectively satisfied. therefore, the petition deserves to be rejected.9. we have pondered over the submissions advanced before us.10. a look at section 3(8) of the general clauses act demonstrates that the 'central government' means the president and a representation addressed to the president must be considered to be a representation properly addressed to the central government.11. in sat pal v. state of punjab, : 1981crilj1867 , their lordships of the supreme court explained the nature of the power of revocation conferred on the central government under section 11 of the cofeposa act which in terms is similar to section 14 of the national security act. it was held that the making of an application for revocation to the central government under section 11 of the act is, therefore part of the constitutional right a citizen has against his detention under a law relating to preventive detention. while article 22(5) contemplates the making of a representation against the order of detention to the detaining authority, which has to be referred by the appropriate government to the advisory board constituted under section 8(a) of the act, parliament has, in its wisdom, enacted section 11 and conferred an additional safeguard against arbitrary executive action.12. in the instant case, the contention of the petitioner remains un-controverted that his representation to the president of india has not been considered and disposed of and there is failure on the part of the government to discharge its obligation under article 22(5) of the constitution. the prayer in the representation specially invoke section 14 of the 1980 act which enables the central government to revoke or modify the order of detention made by the state government. from the affidavit filed on behalf of union of india, it appears that the representation of the petitioner addressed to the president was received by president's secretariat.13. we are of the opinion that the representation made by the petitioner under article 22(5) of the constitution to the president of india was proper representation and it was a constitutional obligation on the part of the central government to consider the same without undue delay. since the central government has failed to discharge its constitutional obligations which require of an expeditious consideration of the petitioner's, representation as spelt out from article 22(5) of the constitution, the non-consideration of petitioner's representation expeditiously by the central government has resulted in rendering the petitioner's continued detention illegal and constitutionally impermissible.14. for these reasons,' we allow the petition and set-aside the impugned detention order dated may 11, 2005 (annex.2) passed by the district magistrate, sawai madhopur. the petitioner shall be set at liberty forthwith, if not required to be detained in any other case.
Judgment:

Shiv Kumar Sharma, J.

1. The petitioner seeks to quash the order dated May 11, 2005 of the District Magistrate, Sawai Madhopur detaining the petitioner under Section 3(2) of the National Security Act, 1980 which was enacted to tackle the law and order situation in the country in a most determined and effective way.

2. Coming to the scheme of the National Security Act, 1980 (for short 1980 Act), we notice that the State Government has to send its report in regard to detention order to the Central Government, Sub-section (5) of Section 3 of 1980 Act reads as under:--

'When any order is made or approved by the State Government under this section, the State Government, shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.'

3. A detention order may be. revoked or modified at any time under Section 14 of the 1980 Act which provides thus:--

'14. Revocation of detention orders.--(1) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified,--

(a) notwithstanding that the order has been made by an officer mentioned in Sub-section (3) of Section 3, by the State Government to which that officer is subordinate or by the Central Government;

(b) notwithstanding that the order has been made by a State Government, by the Central Government.

(2) The expiry or revocation of a detention order (hereafter in this sub-section referred to as the earlier detention order) shall not [whether such earlier detention order has been made before or after the commencement of the National Security (Second Amendment) Act, 1984] bar the making of another detention order (hereafter in this sub-section referred to as the subsequent detention order) under Section 3 against same person:

Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extent beyond the expiry of a period of twelve months from the date of detention under the earlier detention order.'

4. It is necessary to place the case where detention order is made before the Advisory Board under Section 10 of the 1980 Act which provides thus:

'10. Reference to Advisory Board.--Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under Section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in Sub-section 3 of Section 3, also the report by such officer under Sub-section (4) of that section.'

5. At this juncture reference of Article 22 of the Constitution of India appears necessary which provides that 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.

6. The petitioner through his Counsel made representation against his detention order to the President of India which was received in the Secretariat of the President of India and the same was sent to Ministry of Law and Justice vide Pres. Sectt.'s letter No. 10(37/2005-P(I), dated June 10, 2005 and it was further forwarded to Joint Secretary, Ministry of Home Affairs on August 8, 2005.

7. The respondent Union of India did choose to file affidavit of Ms. Rita Dogra, Under Secretary, Ministry of Human Affairs to the effect that a report as envisaged under Section 3(5) of 1980 Act about the detention of the petitioner was made by the Government of Rajasthan to the Central Government which was received in the Ministry of Home Affairs on May 24, 2005. The position was noted by the concerned Director authorised under Section 3(5). It is further stated that as per provisions of Section 8, the petitioner on receipt of grounds of detention had right to make representation to the Government of Rajasthan and not to the Central Government.

8. The respondents State Government, District Magistrate, Sawai Madhopur and Superintendent of Police, Sawai Madhopur in their return stated that the activities of the petitioner disturbed the public order, therefore, it was necessary to detain him under the 1980 Act and the impugned order was passed on considering the relevant record and after being subjectively satisfied. Therefore, the petition deserves to be rejected.

9. We have pondered over the submissions advanced before us.

10. A look at Section 3(8) of the General Clauses Act demonstrates that the 'Central Government' means the President and a representation addressed to the President must be considered to be a representation properly addressed to the Central Government.

11. In Sat Pal v. State of Punjab, : 1981CriLJ1867 , their Lordships of the Supreme Court explained the nature of the power of revocation conferred on the Central Government under Section 11 of the COFEPOSA Act which in terms is similar to Section 14 of the National Security Act. It was held that the making of an application for revocation to the Central Government under Section 11 of the Act is, therefore part of the constitutional right a citizen has against his detention under a law relating to preventive detention. While Article 22(5) contemplates the making of a representation against the order of detention to the detaining authority, which has to be referred by the appropriate Government to the Advisory Board constituted under Section 8(a) of the Act, Parliament has, in its wisdom, enacted Section 11 and conferred an additional safeguard against arbitrary executive action.

12. In the instant case, the contention of the petitioner remains un-controverted that his representation to the President of India has not been considered and disposed of and there is failure on the part of the Government to discharge its obligation under Article 22(5) of the Constitution. The prayer in the representation specially invoke Section 14 of the 1980 Act which enables the Central Government to revoke or modify the order of detention made by the State Government. From the affidavit filed on behalf of Union of India, it appears that the representation of the petitioner addressed to the President was received by President's Secretariat.

13. We are of the opinion that the representation made by the petitioner under Article 22(5) of the Constitution to the President of India was proper representation and it was a constitutional obligation on the part of the Central Government to consider the same without undue delay. Since the central Government has failed to discharge its constitutional obligations which require of an expeditious consideration of the petitioner's, representation as spelt out from Article 22(5) of the Constitution, the non-consideration of petitioner's representation expeditiously by the Central Government has resulted in rendering the petitioner's continued detention illegal and constitutionally impermissible.

14. For these reasons,' we allow the petition and set-aside the impugned detention order dated May 11, 2005 (Annex.2) passed by the District Magistrate, Sawai Madhopur. The petitioner shall be set at liberty forthwith, if not required to be detained in any other case.