Mohmed Kasam Immamuddin Shaikh v. The State Of Gujarat

A.M.Ahmedi:-

(1) A common question arises in these two petitions filed by persons who have been detained under section 3 (1) of the national security act. 1980. The point raised by the learned counsel for the detenu is that in the grounds of detention furnished to each of the detenus under section 8 of the said act, there is no mention that the detenu can make a representation to the advisory board. All that is mentioned is that the detenu has a right to make a representation to the state government.

(2) In this connection, counsel for the detenus placed reliance on the decisions of the supreme court in wasi uddin ahmed v. District magistrate. Aligarh. In paragraph 18 of the judgment, the supreme court has, while dealing with a similar contention, observed as under:

It is unfortunate that there was a failure to mention in the grounds of detention, that the detenu had the right to make a representation against the order of detention as envisaged by article 22 (5) of the constitution read with 5. 8 of the act, and also the right of being heard before the advisory board while he was served with the order of detention. It is expected of a detaining authority while serving an order of detention, as a rule, to mention the grounds of detention that the detenu has a right to make a representation against the order of detention and also a right to be heard by the advisory board. In the present case, the grounds of detention served upon the detenu do not contain any such recital.

The supreme court further observed that the words and shall afford in article 22 (5) have a positive content in matters of personal liberty. Since the only safeguards available to the detenu are procedural safeguards. It is imperative that the detenu is apprised of his constitutional rights under article 22 (5) to make a representation against the order of detention as well as to be heard before the advisory board. That is why the supreme court stated that the right to make a representation would be rendered illusory if the detenu is not informed of this right. It is clear from the above observations, extracted by us, that the detaining authority is expected, while serving the order of detention, as a rule, to mention in the grounds of detention, (1) that the detenu has a right to make a representation against the order of detention and (u) a right to be held in person by the advisory board.

(3) In the present case, the grounds of detention merely state that the detenu has a right to make a representation to the state government. The grounds are totally silent in so far as the detenus right under article 22 (5) of the constitution to make a representation to the advisory board and to be heard in person by that body is concerned. The deprivation of the said right so far as the present detenus are concerned, cannot be doubted. The present detenus were not informed, even orally, at the time of service of the grounds of detention that they had a right to make a representation to the advisory board as well as claim personal hearing prima facie, therefore, the contention appears to be covered by the ratio of the decision of the supreme court in wasi uddin ahmeds case (supra).

(4) It was, however, submitted by mr. Bhatt, the learned public prosecutor, that as in the case with which the supreme court was concerned, so in the present cases the detenus were personally heard by the advisory board and therefore, even though there was an omission on the part of the detaining authority to apprise the detenus of their right to make a representation to the advisory board and claim personal hearing, no prejudice was caused to the detenus. We are afraid that the facts of the present case are quite different from the facts of the case with which the supreme court was concerned the supreme court was dealing with a detenu who was an enlightened politician and who was throughout aware of his rights under article 22 (5) of the constitution. In fact, he bad called for and was furnished a copy of the constitution when he was in jail, for the purpose of making a representation against the order of detention. He was in active politics and was, therefore, fully cognizant of his right to make representation under article 22 (5) of the constitution and under section 8 of the act. He in fact filed a representation before the board and was also personally heard by the board. In the present case, we are dealing with detenus who are illiterate persons. They cannot be expected to be alive to their rights under art. 22 (5) of the constitution. They cannot be compared with the detenu wasi uddin ahmed who was an educated and enlightened politician. For that reason, the supreme court held that the omission had not resulted in the deprivation of his rights under art. 22 (5) and section 8 of the act. That is not the case here. He therefore think that the principle enunciated the supreme court when applied to the facts of the present case, must lead us to hold that the omission is fatal.

(5) In the view that we take on this point, it is not necessary for us to examine the other contentions raised by the detenus.

(6) In the result, both these petitions succeed. The orders of detention in both are quashed and the detenus are ordered to be released forthwith, unless required in any other matter. In both the matters, the rule is made absolute accordingly.