Heard.
By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 17.02.2012 passed by District Magistrate, Mandsaur detaining him under section 3(2) of the National Security Act, 1980.
The petitioner's case in brief is that the impugned order passed by the District Magistrate affirmed by the State Government has been passed contrary to the facts and against law. The order is in violation of principles of natural justice and also in violation of the procedural requirement. The same is unsustainable in view of the fact that the cases referred to in the order are false and are still pending and it cannot be made basis for passing of the order of detention.
Today when the matter came up for hearing learned counsel for the petitioner has pointed out that in support of the reply submitted by the respondents, the affidavit of the District Magistrate has not been filed and therefore, in view of the law laid down by a Division Bench of this Court in W.P No. 903 of 2012 Usman son of Gani Khan v. State of M.P, and also in W.P No. 9245 of 2011 Prabhu Singh v. State of M.P decided on 3.04.2012, the impugned order is liable to be set aside.
In this case we find that the affidavit in support of the reply filed by the respondents is the affidavit of the City Superintendent of Police, Mandsaur. The affidavit of the District Magistrate has not been filed. The affidavit does not say that the City Superintendent of Police, Mandsaur, personally dealt with the matter. He has merely sworn the affidavit on the information gathered from the record. No explanation has been offered for not filing the affidavit of District Magistrate.
In the case of Usman son of Gani Khan v. State of M.P (supra) the Division Bench of this Court has observed thus:-
“In the instant case, the District Magistrate who passed the order of detention has not filed his affidavit. It is well established by catena of decisions of the Supreme Court that in answer to a Rule issued in a habeas corpus petition, the counter affidavit on behalf of the State should be sworn by the District Magistrate who had passed the detention order. In the present case, there is a direct allegation that the detention order was passed without application of mind and there was no material before the detaining authority to reach the subjective satisfaction. There is no parawise reply. The affidavit in support of the reply does not say that the City Superintendent of Police personally dealt with the matter. He has merely sworn the affidavit on the information gathered from the record. No explanation has been offered for not filing the affidavit of the District Magistrate. The reply also does not show that all procedural steps, as required under the Act, were taken within the specified time. Except for news-paper cuttings (which have no evidensiary value), no other cogent material has been placed before us to judge the legality of the detention order. In this unsatisfactory state of affairs, we have no hesitation to hold that the District Magistrate passed the detention order in a most cavalier manner without any application of mind, and was confirmed by the State Government in equally callous manner as such, it is difficult for us to sustain the detention order. Yet, there is another ground which makes the detention order unsustainable. In this connection, we may refer to the earlier Division Bench decision of this Court in W.P No. 3426/2008 decided on 22.7.2008 wherein it is held that the detenue must be appraised of his right to make representation to Central Government. We find even this was not fulfilled in the case on hand.”
It is also the ground taken in the writ petition that while passing the order of detention dated 17.02.2012, the District Magistrate has failed to comply with the mandatory provisions of the Act in regard to informing the petitioner about his valuable right of making representation against the detention order to the Central Government.
The Supreme Court in the case of Kamleshkumar Ishwardas Patel v. Union of India [(1995) 4 SCC 51] while considering the safeguard provided to the detenu under Article 22(5) of the Constitution of India, in paragraph 14 has held that 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 of detention and thereby give relief to the person detained. The Supreme Court has very categorically held that 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.
Undisputedly, in the present case, the petitioner has not been apprised that he has a right to make representation before the Central Government. By not informing the petitioner about his right, in our considered view, there is an infringement of the constitutional right guaranteed under Article 22(5) of the Constitution of India. Our this view also finds support by judgment delivered by Division Bench of this Court in the case of Nirmaljeet Kaur v. State of M.P [2007 MPHT (II) 443 = 2007 (2) MPLJ 99], Usman v. State of M.P [2012 Cr.L.J (MP) 361] and W.P No. 438/2012 Azam Khan son of Yakub Khan v. The State of M.P decided on 16.05.2012 and also by the law laid down by the Supreme Court in the case of Kamlesh Kumar Ishwardas Patel v. Union of India (supra).
In the circumstances, having regard to the law laid down in the aforesaid cases in our considered view, the petition deserves to be and is hereby allowed.
As a result, the impugned order of detention and the order of State Government affirming the detention are quashed. The petitioner be set at liberty forthwith, if not required in any other case.
C.C within 3 days.