1997 (3) Crimes 489
ALLAHABAD HIGH COURT
(FB)
D.P. Mohapatra, C.J., B.M. Lal and R.R.K. Trivedi, JJ.
Raj Bahadur Yadav - Petitioner
versus
State of U.P. & Ors. - Respondents
Habeas Corpus Writ Petition No. 25526 of 1996
Decided on 21-3-1997
Counsel for the parties:
For the Petitioner: Mr. Krishan Yadava, Advocate.
For the Respondents: A.G.A

IMPORTANT POINT
Power u/s 14 of the National Security Act, is statutory, discretionary and supervisory in nature, and it is not obligatory on the detaining authority to inform, the detenu that he has a right to make a representation before the Central Government u/ s 14 of the Act.

Headnote:(1) Preventive Detention - Constitution of India, 1950 - Art. 22(5) - National Security Act, 1980 - Sections 3, 8, 10, 11(1), 12, 14 - Detention u/s 3 - Detenu's right to make a representation - Constitutional right to make representation to detaining authority and to State Government - Right to be heard before Advisory Board - His statutory right to make representation invoking power of Central Government to revoke or modify detention order whether under the provisions of the Act, it is obligatory on detaining authority to inform detenu that he has a right to make representation to Central Government u/s 14 of the Act? - Difference between COFEPOSA Act and PIT NDPS Act, 1988 and the Act and Maintenance of Internal Security Act, 1971.

       Held: Under the provisions of the Act, the detenu has a constitutional right to make a representation against the order of detention to the detaining authority and to the State Government. In addition, he has the right to be heard before the Advisory Board. He has also a statutory right to make a representation invoking the power of the Central Government to revoke or modify the detention order. Section 8(1) of the Act, which mandates that the authority making the detention order shall communicate to the detenu the ground on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government is an extension of the constitutional safeguard provided under Article 22(5) of the Constitution. Section 14, which provides, inter alia, that without prejudice to the provisions of Section 21 of the General Clauses Act. 1897, a detention order may at any time be revoked or modified by the Central Government vests a statutory power. This power of revocation/modification is discretionary in nature and can be exercised by the Central Government suo motu or on receiving information from the State Government or any other source or on receiving a representation from the detenu. In this regard, there is a clear difference between the COFEPOSA Act and PIT NDPS Act, 1988, on one hand and the Act and Maintenance of Internal Security Act, 1971, on the, other. In the former statutes, there is no provision for approval of the detention order by appropriate Government. To put it differently, there is no pari materia provision to Section 8 of the Act in the COFEPOSA Act and PIT NDPS Act, 1988. Therefore, decisions under the COFEPOSA Act and PIT NDPS Act, 1988, holding that right to make representation to the Central Government is constitutional right of the detenu are not very helpful while considering the question in relation to the Act. The power of revocation/modification of the detention order vested in the Central Government under Section 14 of the Act is in the nature of a supervisory power to enable the Central Government to keep a check on the orders of the detaining authority and the State Government since the matter of liberty of citizen is involved. Therefore, if the detaining authority has stated in the grounds of detention that the detenu may make a representation to the State Government and to the Advisory Board and may inform if he will like to be heard personally by the Advisory Board, that would be in compliance with the mandate under Article 22(5). If in a case, as in the present case, these requirements are fulfilled and the detenu has made representation to the State Government and the Advisory Board has heard him and considered his representation within the time specified in the statute and the State Government has considered his representation with reasonable expedition, the constitutional safeguard is fulfilled and the constitutional obligation cast on the detaining authority is satisfied. The view which we have taken is fortified by the Apex Court in Kamlesh Kumar Ishwar Das, (1995) 4 S. C. C. 51, wherein the earlier decisions rendered by the Apex Court have been taken into consideration. (Para 16)

       (ii) Constitution of India, 1950 - Art. 22(5) - National Security Act. 1980 - Sections 3, 8, 10 to 12, 14-Detention u/s 3 - Detenu's right to make representation u/s 14 - Failure on part of detaining authority to state in grounds of detention that detenu may make a representation to Central Government - What is its effect on detention order? – Held, it will not render detention order invalid - Power u/s 14 is statutory discretionary and supervisory in nature. (Para 17)

       (iii) National Security Act, 1980 - Sections 3, 8, 10 to 12, 14-Detention u/s 3 - Detenu's right to make representation - Advisory Board, appropriate Government and Central Government are required to act with promptitude and reasonable despatch in dealing with representation -Inordinate delay of 86 days on the part of Central Government in disposing of representation of detenu – Held, in facts and circumstances of the case further detention of petitioner has to be held to be illegal. (Paras 18 & 19)

       Result: Writ Petition allowed. Order of detention quashed.