Failure to inform the detenu of his right to make a representation before the detaining authority would violate the Constitutional guarantee envisaged by Article 22(5) of the Constitution, leading to the quashing of the detention order.

Hrishikesh Roy, J.

1. Heard Mr. B.K. Mahajan, learned Counsel, appearing for the petitioner. Also heard Mr. H. Rahman, learned Assistant Solicitor General of India, who represents the Union of India and Ms. S. Sarma, learned State Counsel, who represents the State Government and its authorities.

2. The challenge in the instant case is to an order dated 11.9.2007 passed by District Magistrate, In-Charge, Tinsukia under the provisions of the National Security Act, 1980 (hereinafter called as the "Act"), whereby the petitioner, Robin Dhekial Phukan, is ordered to be detained under the provisions of the Act. The detention order was passed when the detenu was lodged in Dibrugarh Jail, in connection with several cases, where he was charged as an accused.

3. Mr. Mahajan, learned Counsel appearing for the petitioner submits that apart from other grounds, the impugned detention order is challenged on the ground that the detaining authority did not, specifically inform the detenu of his right to make a representation to the detaining authority. It is pointed out that in the detention order, the right of the detenu to make a representation against the order of detention is indicated only in the following terms:

However, he may submit representation against the detention order addressed to the Govt. and Advisory Board through concerned Jail 'Supdt. and District Magistrate, Tinsukia.

It is contended that the detention order is vitiated for not informing the detenu of his right to make a representation particularly to the detaining authority and accordingly, the detention order is vitiated in law.

4. In support of the aforesaid legal submission, learned Counsel has referred to the decision of the Supreme Court reported in 1996 (53) ECC 123, Kamleshkumar Ishwardas Patel v. Union of India. In this case the Apex Court held that Article 22(5) of the Constitution confers a right on the detenu to make a representation against the detention order, also to the authority which passed the detention order and the detenu has a right to be informed that he can make a representation to the detaining authority as well, which can also consider such representation and is competent under law, to revoke the order of detention.

Learned Counsel has also referred to the Full Bench decision of this Court reported in 2006 (1) GLT 375 (Konsam Brojen Singh v. State of Manipur and Ors.) which followed the ratio laid down by the Supreme Court in Kamleshkumar (supra) and have held that failure of the detaining authority to discharge such constitutional obligation, would vitiate the order of detention.

5. Mr. H. Rahman, learned Assistant Solicitor General of India submits that not informing the detenu of his right to make a representation specifically before the detaining authority, would not vitiate the detention order and in support of the said contention, the learned Counsel has referred to the decision of the Supreme Court reported in 1994 CriLJ 2095 (Amin Mohammed Qureshi v. Commissioner of Police, Greater Bombay).

6. Ms. S. Sarma, the learned State counsel, however, submits that on reading of the extracted portion of the detention order, same can also be interpreted to mean that the detenu has been informed of his right to make a representation before the District Magistrate, Tinsukia, who had passed the detention order in the present case. Accordingly she submits that there is no infraction of the provisions of Article 22(5) of the Constitution.

7. Having regard to the submissions made by the learned Assistant Solicitor General, it appears that the decision rendered by the Supreme Court in the case of Amin Mohammed Qureshi (supra) was a decision given by a Division Bench of the Supreme Court and the said decision was rendered on 08.02.1994. Whereas the decision of the Supreme Court in Kamleshkumar (supra) has been rendered by a Bench of Five Judges and the said decision is rendered at a later date i.e., on 17.04.1995.

8. In view of the judgment given by a Larger Ben