Virender Singh Yadav vs Union Of India And Ors.
1995 Latest Caselaw 507 Del

JUDGMENT

J.K. Mehra, J.

(1) In this petition, the petitioner has challenged his detention under order passed 'by one Mr. A.K. Srivastava, Joint Secretary, Ministry of Finance on 3.12.1993 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. It is pointed out that in the said order, there is no mention of the petitioner's right to make. the representation to the detaining authorities. Even in the grounds of detention at the end, the detenu has been informed that he could make a representation if he so desires to the Central Advisory Board (Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988) or that he could address the representation to the Central Government, Ministry of Finance. In these grounds of detention also, there is no mention of the detenu being informed of the right to make representation to the detaining authority, i.e., the Joint Secretary himself. Counsel for the petitioner has cited the case of Kamleshkumar Ishwardas Patel Vs. Union of India & Ors., reported as 1995(3) Jt 639 (SC) wherein it has been clearly laid down by the Hon'ble Supreme Court that the right to make representation to the said officer -is a right of the detenu in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by. the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the lime when he. is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial to the person detained of the right to make a representation.

(2) Counsel for the State has argued that though it was not spelt out in clear terms in the grounds of detention that the detenu could file representation to the officer passing the order of detention, but the representation made by the detenu was in fact considered by the same officer. I am unable to accept this. On the face of it, the representation was not addressed to that officer and the detenu did not know of the existence of a right to make such representation to the said officer. What transpired at Central Government's end is not brought on record here. Non- communication to detenu of his said right in fact amounts to denial of an opportunity to him to make such a representation and for that reason, the continued detention of the detenu is bad and must be revoked. Accordingly, I allow the petition to the extent that the order of detention suffers from serious infirmity as is noticed hereinabove and for that reason, the detention of the detenu is bad in law. The petition is disposed of in the above terms. The petitioner, if not required in any other case, be set at liberty forthwith.