The Order of the Court was delivered by
S.L Kochar, J.:— By this petition under Article 226 of the Constitution of India, the petitioner prays for quashment of the order dated 20-4-2006 (Annexure P/1), passed by respondent No. 1-State of M.P, to quash the order dated 28-2-2006 (Annexure P/2-A) passed by respondent No. 2 District Magistrate, Barwani and to revoke the detention order of petitioner's husband-Devindersingh-detenu and opinion dated 17-4-2006 (Annexure P/5) of the Advisory Board, Jabalpur.
2. Factual matrix as available in the petition as well as in the return submitted by the respondents, in brief, is that the petitioner's husband Devindersingh son of Shri Gyansingh has been detained by virtue of order Annexure P/2-A (R-1) passed by respondent No. 2 District Magistrate Barwani in exercise of powers conferred by sub-section (2) of section 3 of the National Security Act (hereinafter referred to as the ‘Act’ for short) dated 28-2-2006. This order was confirmed by order Annexure P/1 passed by the respondent No. 1-State Government as per provision under section 12, sub-section (1) of the Act.
3. The detention of the detenu Devindersingh is based on the ground referred to in Annexure P/2 that he had shifted from Amritsar (Punjab) to village Salikala District Barwani and running a hotel (DHABA) since 1996-1997. In his hotel, he was illegally and surreptitiously supplying liquor to the drivers and passengers. He was also indulged in illegal purchase of O.P (spirit) from the tanker-drivers who were passing through Agra Bombay Road going to Maharashtra and other States and the said spirit was being supplied to the tribals by use of threatening and inducement them. Because of illegal business of sale of O.P (spirit) by the detenu nine tribals residents of village Matli within the jurisdiction of P.S Rajpur District Barwani had lost their lives. Apart from these nine tribals, three more tribals named Jalabsingh, Mohansingh and Rameshwar had also died on 30-1-2006 because of use of O.P (spirit) which was supplied by the detenu to tribals Iram s/o Nathu Barela, and others. Mukesh s/o Rajaram, Mahariya s/o Ediya, Dita s/o Mahariya, Ramlal s/o Ganpat, Bhavsingh s/o Shankar, Mahariya s/o Ravja fell ill due to consumption of O.P (spirit). It is also stated in the grounds of detention that because of illegal sale of spirit/liquor to the tribals, there was tension in the general public and disturbance to the maintenance of public order in the tranquility and that in order to make liquor more effective and intoxicant, detenu used dangerous and prohibited chemicals like methyl alcohal and urea as additives and in the result of consumption of such liquor, several persons died and also fell ill in village Salikala on 30-1-2006.
4. The respondent No. 2 also taken into consideration 5/6 other cases registered under Excise Act against the detenue by Nagalwadi Police Station vide Cr. No. 188/96 under section 36, Cr. No. 142/2000 under section 34, Cr. No. 254/2000 under section 34, Cr. No. 12/2005 under section 34A(1) all under Excise Act and Cr. No. 17/06 under section 304/34 of the Indian Penal Code and section 49 of the Excise Act. This crime was under investigation when the detenue was detained. One case vide Crime No. 531/04 under sections 34 and 49 of the Excise Act was also registered by Rajpur Police Station. Out of five cases, in two cases i.e Cr. No. 142/2000 and 12/05 the detenu was convicted and sentenced to fine of Rs. 500/- in each case and other three cases were pending in the Court.
5. The detenu submitted representation Annexure P/4 dated 13-3-2006 to the respondent No. 1 State Government, Department of Home which was received on 14-3-2006 and according to the return submitted by the respondents, the same was decided on 3-4-2006. The respondents have also submitted the document Annexure P/12 which was submitted before the learned Judicial Magistrate, Rajpur District Barwani in regard to the incident dated 30-1-2006 and 1-2-2006 wherein the tribals suffered from vomiting, loss of eye-sight power and death because of consumption of poisonous liquor (O.P spirit). The said liquor was used by the tribals at the house of Iram Barela and Jankibai w/o Jatansingh Barela. Both these persons had purchased the poisonous liquor from the grocery shop of Raju s/o Champalal Malviya and the detenu who was absconding and that about seizure of 3/4 litres of O.P Poisonous liquor on disclosure statement made by Jankibai and five litres from Iram as well as four litres from Raju s/o Champalal. According to co-accused Iram, he had purchased the said liquor from detenu Devindersingh.
6. Learned counsel for the petitioner has submitted that the ground No. 6 regarding sale of poisonous liquor by the detenu and seizure from other persons/co-accused persons in criminal case is vague and no date of incident, crime number and others details have been furnished in the grounds. It has also been submitted that in ground of detention page No. 2 death of some tribals occurred in 30-1-2006 whereas on this date, the petitioner and her husband detenu were in Punjab. To substantiate this ground, the petitioner filed Annexure P/3, photo stat copy of the Railway ticket dated 14-1-2006 going from Indore to Delhi and on 6-2-2006 return from Jullundur to Indore and other tickets and submitted that if the Detaining Authority would have inquired through Railway authorities about travelling of the detenu and the petitioner, through these tickets, the same would have been established that it was indeed the petitioner and her husband-detenu Devindersingh had travelled on the said tickets. Learned counsel for the petitioner has also submitted that sufficient documents and particulars have not been supplied to the detenu for making effective representation which has prejudiced his valuable right of representation and the petitioner was not made aware of his statutory right to submit representation to the concerned authorities.
7. Per contra, learned counsel for the respondents has submitted that in the grounds of detention all the details have been furnished to the petitioner well within the stipulated statutory period and petitioner submitted the representation Annexure P/4 which was immediately forwarded to the Government and the same has been dismissed after due application of mind. Therefore, no ground exists for interference with the detention order Annexure P/2-A and confirmation order by the State Government Ex. P/1.
8. Having heard learned counsel for the parties and after perusing the entire record, we are of the opinion that along with the grounds of detention documents relating to six criminal cases as described, have not been supplied to the detenu. Mere chart was attached with the grounds of detention disclosing the crime number, section, criminal case number, police station and status of the case, whereas it was obligatory on the part of the Detaining Authority to have supplied the documents relied upon. Failure to non-supply of such documents has infringed the right of Constitutional the detenu as enshrined under Article 22 (Clause 5) which reads as under:—
“22. Protection against arrest and detention in certain cases.—
(1) …………..……..
(2) …………..……..
(3) …………..……..
(4) …………..……..
(5) 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.”
9. In the case of Mohd. Zakir v. Delhi Administration, (1982) 3 SCC 216 : AIR 1982 SC 696 the highest Court of our country has, after taking into consideration the earlier judgments, ruled as under:—
“It is the Constitutional mandate which requires the detaining authority to give the documents relied on or referred to in the order of detention pari passu the grounds of detention in order that the detenu may make an effective representation immediately instead of waiting for the documents to be supplied with. It is manifest that question of demanding the documents is wholly irrelevant. The infirmity in this regard is violative of constitutional safeguard enshrined in Article 22(5) of the Constitution. (1980) 4 SCC 531 : AIR 1980 SC 1983 and (1981) 1 SCC 748 : AIR 1981 SC 814 Foll.”
10. Yet another mandatory requirement has not been fulfilled by the detaining authority in compliance with Article 22(5) of the Constitution read with section 14 of the Act which is reproduced below for convenience:—
CHAPTER XVI
“Revocation of detention order.—
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 (hereinafter 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 (herein-after in this sub-section referred to as the subsequent detention order) under section 3 against the 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, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order.”
11. In view of the section 14, the detention order can be revoked by the State Government as well as the Central Government. Therefore, the detenu must have been apprised of his right to submit representation before the State Government as well as the Central Government. This view is further strengthened by section 8 of the Act, reproduced as under:—
“CHAPTER X
DISCLOSURE OF GROUNDS
8. Grounds of order of detention to be disclosed to persons affected by the order.— (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.
(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.”
12. In the instant case, in grounds of detention (Annexure P/2), the detaining authority mentioned only in last three lines this much that against the detention order, detenu has right to submit his representation before the Secretary State of Madhya Pradesh Home Department (‘C’ section Bhopal) and also has right to appear before the Advisory Board for his submission and prayer. In Annexure P/2 or Annexure P/2-A, he had not been apprised of his right to submit representation before the Central Government who also has power as per provision of section 14 of the Act as mentioned herein-above to revoke the order of detention. This is also a ground for infringement of Constitutional right guaranteed under Article 22(5) of the Constitution. We may usefully refer the Five Judges Constitutional Bench judgment of the Supreme Court, which has considered this aspect of the matter along with other provisions in the case of Kamlesh Kumar v. Union of India, (1995) 4 SCC 51, wherein Hon'ble His Lordship Shri S.C Agrawal speaking for the Bench has observed, after taking into account several earlier judgments on the point, in para 14, as under:
“14. 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.”
13. As a result of the aforementioned factual and legal scanning, this petition succeeds. The detention order Annexure P/2-A dated 28-2-2006 and confirmation order Annexure P/1 issued by the State Government dated 20-4-2006 are hereby quashed. The detenu Devindersingh is ordered to be set free unless required in connection with any other case.
Appeal allowed.