The right to make representation is a fundamental right of the detenu under Article 22(5) of the Constitution, and the failure to consider the option of resorting to cancellation of bail is crucial in preventive detention cases.

JUDGMENT :

A.Y. KOGJE, J.

1. This petition under Article 226 of the Constitution of India is filed essentially challenging an order of detention passed by the detaining authority Commissioner of Police, Surat City on 25.08.2023 detaining the petitioner as a “Dangerous person” on the basis of two offences under the provisions of Indian Penal Code.

2. Learned advocate for the petitioner has taken this Court through the contentions of both the FIRs. The first offence is private in nature whereas the second incident is arising on account of road accident. Learned advocate for the petitioner has submitted that despite the petitioner was released on bail by the Court of competent jurisdiction in the month of July 2023, an order was passed in the month of August 2023 and therefore, there is delay in passing the detention order either in the order of detention or by separate affidavit. Lastly, learned advocate has submitted that the documents supplied by the detaining authority are illegible and therefore, petitioner could not make effective representation on the basis of such illegible documents. Learned advocate has therefore, relied upon the decision of this Court in the case of State of Manipur vs. Buyamayum Abdul Hanan @ Anand, 2022 (0) AIJEL-SC 69999, wherein Hon’ble Apex Court has observed as under:

“21. Thus, the legal position has been settled by this Court that the right to make representation is a fundamental right of the detenu under Article 22(5) of the Constitution and supply of the illegible copy of documents which has been relied upon by the detaining authority indeed has deprived him in making an effective representation and denial thereof will hold the order of detention illegal and not in accordance with the procedure contemplated under law.”

3. Learned AGP has objected to the petition by submitting that the offences registered against the petitioner are falling in the category as specified in the definition of ‘Dangerous person’ in PASA. In fact the gist of the offences registered against the petitioner and produced in the grounds of detention clearly indicates conduct of the petitioner being anti-social and thereby disturbing the public order. Therefore, the detention order is justified.

4. Having considered the rival submissions of the parties and having perused the documents on record, petitioner has been detained as Dangerous person by an order dated 25.08.2023 passed by the Surat Police Commissioner.

4.1 The grounds of detention indicates that the detaining authority has relied upon the two IPC offences registered against the petitioner. The details of which in tabular form are as under:

4.2 The chronology mentioned herein above would indicate that the petitioner was enlarged on bail in connection with the last offence in chronology on 26.07.2023 and thereafter the petitioner was detained by the impugned order on 25.08.2023. Therefore, there is a gap of 29 days in passing the order of detention during which the petitioner was not in custody. In opinion of the Court this delay of One month is fatal and the detaining authority was not prompt in passing the order of detention then the detention itself would stand vitiated. The Apex Court in the case of Sushanta Kumar Banik vs. State of Tripura, AIR 2022 SC 4715 has observed as under:

“11. We are persuaded to allow this appeal on the following two grounds:

(i) Delay in passing the order of detention from the date of proposal thereby snap