Abhishek Through Shri Kamal ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 3336 MP

 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
                      Writ Petition No.5430/2021
            (Abhishek Kushwaha Vs. State of M. P. and Others)
                                  -1-

Indore, dated 15/07/2021

      Heard through Video Conferencing.

      Shri Anil Malviya, learned counsel for the petitioner.

      Shri Pushyamitra Bhargava, learned Additional Advocate

General for the respondent / State.

The petitioner before this Court challenges legality, validity and

proprietary of orders of detention initially passed on 03/12/2020 for 03

months, extended for further 03 months vide order dated 09/02/2021

(03/03/2021 to 03/06/2021) and further extended for 06 months vide

order dated 16/04/2021 on various grounds while seeking a writ of

habeas corpus alleging illegal detention.

During the course of arguments, it has transpired that none of

the impugned orders bore stipulates that the detenu has right to make

representation before the Detaining Authority. The aforesaid lapse in

the impugned order seriously jeopardize substantive right of the

petitioner to make an effective representation against passage of

impugned order of detention before the Authority ordering detention in

light of the judgment of Full Bench r endered in Writ Petition

No.22290/2019 (Kamal Khare Vs. State of M.P.) decided on

22/04/2021, wherein the Hon'ble Court has held that requirement of

stipulation in the detention order that detenu has right to make

representation before the Detaining Authority is mandatory and non-

compliance thereof shall render the order vulnerable and consequently HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.5430/2021 (Abhishek Kushwaha Vs. State of M. P. and Others)

liable to be set aside.

Shri Pushyamitra Bhargava, learned Additional Advocate

General does not dispute the aforesaid proposition as laid down by the

Full Bench relying upon a judgment delivered by Hon'ble Supreme Court

in the case of Kamlesh Kumar Ishwardas Patel Vs. Union of India

and others reported in (1995) 4 SCC 51.

In view of the aforesaid we are of the considered view that the

impugned order suffers from jurisdictional error, therefore, cannot

withstand the test of reasonableness. Consequently, the impugned

orders are set aside. The petitioner since in jail under detention order

shall be set free forthwith, only if not required in any other case to be in

jail. However, the District Magistrate, Indore shall have right to pass a

fresh order under Section 3 of the National Security Act, 1980 if so

advised fulfilling the requirement as mentioned above.

With the aforesaid, writ petition stands allowed.

E-certified copy as per rules.

                      (ROHIT ARYA)                   (SHAILENDRA SHUKLA)
                        JUDGE                              JUDGE
Tej

Digitally signed by
TEJPRAKASH VYAS
Date: 2021.07.15
18:22:42 -07'00'