- (1.) B. K. Sharma, J. Madan Chauhan petitioner has filed this writ petition for issue of a writ of habeas corpus to quash the order of his detention dated 16-11 -1995 passed by the District Magistrate, District Mau, Respondent No. 2 under Section 3 (2) of the National Security Act, 1980. The detention order is Annexure-1 to the Writ Petition. The detention order has been challenged before us on the sole ground that in the grounds of detention, the detaining authority did not inform the petitioner that he had a right to make representation on the ground of detention to the Central Government and thus he was denied the constitutional right to make the representation to the Government of India. The plea has been taken in para-19 of the Writ Petition. In reply to this para, it has been stated in the Counter Affidavit of Sri Om Prakash, District Magistrate, Mau in para-17 that the petitioner had a right to make representation before the appropriate Government regarding which he was informed and as such, there is strict compliance of the Act as well as Article 22 of the Constitution of India.
(2.) THE learned A. G. A. has supported the plea of the District Magistrate by pointing out that Section 8 (1) of the National Security Act obliges the detaining authority to communicate to the detenu the grounds on which the order has been made and to afford him the earliest opportunity of making a representation against the order to the appropriate Government. He has also pointed out to the definition of appropriate Government as has been given in Section 2 (a) of the National Security Act. In that definition, the appropriate Government means as respects the detention order made by an officer subordinate to the State Government. His contention, therefore, is that this requirement has been met by the District Magistrate in the grounds of detention in respect of the detenu and as such, there is neither violation of Article 22 (5) of the Constitution of India or Section 8 (1) of the National Security Act. Article 22 (5) of the Constitution of India provides as below: "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 earlier opportunity of making a representation against the order. " THE Article does not specify by designation the authority to whom representation is to be made. Before we proceed further a reference may be made to Section 14 of the National Security Act. The section provides that detention order made 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. The contention of the learned A. G. A. is that even while Section 14 of the National Security Act vests the Central Government with the power to revoke the detention order made by an officer mentioned in sub-section (3) of Section 3 of the said Act, there is no constitutional obligation of the detaining authority to inform the detenu that he has a right to make a representation to the Central Government. He has placed reliance on the authority AIR 1984, SC 1095 State of U. P. v. Javad Zama Khan, which was an authority rendered by three judges of the Apex Court. In this authority it was said: "at one time it was thought that Section 14 of the Maintenance of Internal Security Act, 1971 which was in pari materia with Section 14 of the Act did not confer any right or privilege on the detenu but there is a definite shift in the judicial attitude, for which there appears to be no discernible basis. Then after refering to various authorities, the Apex Court held that: "the principle that emerges from all these decisions is that the power of revocation conferred on the Central Government under Sec. 14 of the Act is a statutory power which may be exercised on information received by the Central Government from its own sources including that supplied by the State Government under sub-section (5) of Section 3 or from the detenu in the form of a petition for representation. It is for the Central Government to decide whether or not it should revoke the order of detention in a particular case. In the present case, the detenu was not deprived of the right of making a representation to the detaining authority under Article 22 (5) of the Act. Although the detenu had no right to simultaneously make a representation against the order of detention to the Central Government under Art. 22 (5) and there was no duty cast on the State Government to forward the same to the Central Government, nevertheless the State Government forwarded the same forthwith. "
(3.) IN that case the principal question was whether it was obligatory on the part of the Central Government to consider a second representation for revocation under Section 14 of the National Security Act and this point was replied in the negative. The learned A. G. A. has relied on the authority Veeramani v. State of Tamil Nadu, 1994 SCC (Crl) 482, rendered by two judges of the Apex Court, In para-17 it was observed by the Apex Court : "it may be noted that Article 22 (5) casts an obligation on the detaining authority to communicate to the detenu the grounds and to afford to the detenu the earliest opportunity of making the representation. The article does not say to whom such representation is to be made but the right to make a representation against the detention order undoubtedly flows from the constitutional guarantee enshrined therein. The next question as to whom such representation should be made, depends on the authority who has power to approve, rescind or revoke the decision. To know who has such power, we have to necessarily look to the provisions of the Act. ";