RONGJAM MOMIN Vs. UNION OF INDIA

JUDGEMENT

(1.) The writ petitioner Shri Rongjam Momin has been detained in custody by an order dated 17.05.2004 passed by the learned District Magistrate, East Garo Hills District, William Nagar under Section 3(1) of the Meghalaya Preventive Detention Act, 1985. At the time of his detention, the petitioner was already in judicial custody in connection with certain specific Criminal Cases. Therefore, the order of detention dated 17.5.2004 along with the grounds therefore were served on the petitioner in Jail on 17.05.2004 itself together with a forwarding letter of the same date, i.e., 17.05.2004. The following contents of the forwarding letter dated 17.05.2004 being relevant for the purposes of the present case, are being reproduced herein below :

(2.) Against the detention made by order dated 17.5.2004, the petitioner submitted a representation to the State Government on 1.6.2004, which was rejected by an order dated 15.7.2004. The aforesaid order of rejection of the petitioner's representation though not brought on record by the writ petitioner, is available in the original records placed before the Court on behalf of the official respondents. It must also be noticed herein that in the meantime, the case of the petitioner was considered by the Advisory Board as per the provisions of the Meghalaya Preventive Detention Act, 1995 (hereinafter referred to as the Meghalaya Act) and the Advisory Board had recommended to the State Government that there were sufficient grounds for the detention of the petitioner under the provisions of Section 3(1) of the Act.

(3.) Assailing the detention order dated 17.5.2004, Shri N. Dutta, learned Senior Counsel appearing for the petitioner has submitted that the petitioner, at no stage, was informed of his right to submit a representation to the detaining authority as well as to the Central Government and, therefore, the fundamental rights of the petitioner guaranteed under Article 22(5) of the Constitution of India has been infringed, thereby vitiating the impugned detention order. In support, reliance has been placed on ajudgment of this Court in the case of Thanglenmang Hangsing -Vs.- District Magistrate, Senapati District and Ors., reported in 2004 (1) GLT 646. A decision of the Apex Court in the case of KamleshkumarIshwardas Vs. Union of India and Ors. reported in (1995)4 SCC 51, has also been placed, Shri Dutta has argued that under Section 15 of the Meghalaya Act, the power of revocation of a detention order being without prejudice to the provisions of Section 35 of the Meghalaya Interpretation and General Clauses Act, 1972, the District Magistrate would be competent to vary or resent an order of detention passed by him till such time that the order remains in force. A detenu, therefore, would have aright to submit a representation to the detaining authority for revocation of the detention order, it is submitted. In the present case, the petitioner was not informed of his right to file any such representation to the detaining authority. Neither was any such representation filed by the petitioner. In so far as the right of the petitioner to submit a representation to the Central Government is concerned, Shri Dutta, learned Senior Counsel has argued that the right of the detenu to submit a representation to the Central Government, in cases where the initial detention is made by the District Magistrate, will arise as soon as such a detention order passed by the District Magistrate is approved by the State Government under the provisions of the Meghalaya Act. Placing reliance on the judgment of the Apex Court in the cse of Kamlesh Kumar (supra), learned counsel has argued that upon approval of an order of detention passed by the Di strict Magistrate by the State Government, the State Government becomes the detaining authority and the detention order becomes revocable by the Central Government under Section 15 of the Meghalaya Act. A right of representation to the Central Government, therefore, accrues to a detenu under the Meghalaya Act. In the present case, admittedly, the petitioner was not informed of his right to make a representation to the Central Government nor was any such representation filed by the petitioner. The impugned detention is, therefore, contended to be vitiated in law.