- (1.) This petition is filed by the detenu challenging the detention order dated 23.7.1999 (Annexure 1) and order of confirmation dated 31.7.1999 (Annexure 3) passed by the State Government against him under the National Security Act, 1980 (for short 'the Act'). The order of detention was passed by the District Magistrate, Ajmer on 23.7.1999 in exercise of powers under Section 3(2) of the Act. The detention order provided that the detenu shall be detained for a period of one year. The detenu was served with the ground of detention. In pursuance of the detention order he was arrested and sent to Jail. On 31.7.1999 the State Government approved the detention order passed by the District Magistrate exercising the powers conferred under Section 3(4) of the Act vide Annexure-3. The detention order was confirmed by the State Government after the approval of the Advisory Board was received.
(2.) The order of detention is challenged on various grounds in the petition. It is submitted by the counsel for the petitioner that fixing the period of detention as mentioned in the order dated 23.7.1999 is beyond the powers and jurisdiction of the District Magistrate under Section 3 of the Act and is thus illegal. It is further submitted that such peremptory determination of the period of detention has positively prejudiced a fair consideration of the representation of detenu and was liable to influence the authority of Advisory Board while considering the representation. The Division Bench of this Court in Kuldeep Singh v. State of Rajasthan & Others, 1999(3) WLC 36 relying on the decisions of the Apex Court reported in AIR 1952 SC 27 Makhan Singh Tarsikka v. State of Punjab , AIR 1952 SC 181, Dattatraya Moreshwar v. State of Bombay , AIR 1958 SC 163, Puranlal Lakhanpal v. Union of India and Others (1955) 4 SCC 51, Kamlesh Kumar Ishwardas Patel v. Union of India & Others , has held that the detaining authority does not have jurisdiction to define the period of detention for which the detention is to be continued. It is the prerogative of State to be exercised by it after the opinion of the Advisory Board is sought for. Providing the period of detention prejudicially affects the right of the detenu and makes the order of detention illegal. The Advocate General appearing on behalf of the State has not controverted the proposition laid down in the aforesaid decisions.
(3.) The detention order passed by the District Magistrate provided the period of one year of detention for which he has no authority and thus the right of representation of detenu is prejudicial affected which vitiates the order of detention passed against the petitioner.;