- (1.) VISHNU Sahai, J. Through this writ petition preferred under Article 22 (a of the Constitution of India, the petitioner-detenu Ashish Seth has impugned the order, dated 28. 5. 2002, passed by opposite party No. I Mr. Sanjay Prasad, District Magistrate, Kheri, detaining him under section 3 (2) of the National Security Act.
(2.) IT is common ground between the counsel for the parties that the detention order, alongwith the grounds of detention, which are also dated 28. 5. 2002, was served on the petitioner-detenu on 28. 5. 2002 itself, and their true copies have been annexed as Annexure Nos. 1 and 2 respectively to the writ petition. The prejudicial activities of the petitioner-detenu impelling the opposite party no. I to pass the impugned order against the petitioner-detenu are contained in the grounds of detention. A perusal of the ground of detention would show that the impugned order is based on a solitary CR, namely CR No. 285 of 2002 under section 354/306/511 I. P. C. of Police Station Kotwali, Lakhimpur, which was later on converted to one under Sections 376/511/306 I. P. C. We have heard learned counsel for the parties. It is well settled that within the first 12 days from the date of issuance of the detention order by the detaining authority or its approval by the State Government, whichever was earlier, the detenu has a right to make a representation to the detaining authority and the failure to inform him about this would vitiate the detention order. Since in the instant case the detention order was served on the petitioner-detenu on the date of issuance itself i. e. on 28. 5. 2002 and in the grounds of detention he was only informed that if he so wanted he could make a representation to the detaining authority and was not apprised therein that the said right was available to him within a period of 12 days from the date of passing of the detention order or its approval by the State Government, whichever was earlier, this petition deserves to succeed.
(3.) SINCE the right of the petitioner-detenu to make a representation to the detaining authority was only available to him within 12 days from the date of issuance of the detention order or its approval by the State Government, whichever was earlier, and the petitioner-detenu was not communicated this, in our view the first facet of the fundamental right guaranteed to the petitioner-detenu under Article 22 (5) of the Constitution of India would be infracted. Article 22 (5) of the Constitution of India reads thus : " 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. " A perusal of the aforesaid article would show that the detenu has two distinct fundamental rights, namely- (a) of being communicated by the detaining authority, as soon as may be, the grounds on which the detention order is founded; and (b) of being afforded the earliest opportunity of making representation against the detention order. In our view, a vague communication or partial communication of the grounds of detention would amount to non communication of the grounds of detention, violating the first facet of the fundamental right guaranteed by Article 22 (5) of the Constitution of India.;