Full Judgment Text
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PETITIONER:
SMT. PREM LATA SHARMA
Vs.
RESPONDENT:
DISTRICT MAGISTRATE, MATHURA AND ORS.
DATE OF JUDGMENT: 31/03/1998
BENCH:
M.K. MUKHERJEE, SYED SHAH MOHAMMED QUADRI
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Pursuant to an order dated April 26, 1997 made by the
District Magistrate, Mathura (hereinafter referred to ‘the
obtaining authority’) in exercise of his powers under
Section 3(3) of the National Security Act, 1980 (‘Act’ for
short), Suresh Chander Sharma, a resident of Alwar Kunj in
the city of Vrindavan, has been detained since May 5, 1997
with a view to prevent him from acting in any manner
prejudicial to the maintenance of public order. Against his
detention he made a representation to the State Government
on May 14, 1997 which was rejected on May 23, 1997. A copy
of the said representation, along with para-wise comments,
was forwarded by the State Government on May 21, 1997 to the
Home Secretary, Government of India, New Delhi for
consideration. The Central Government also rejected the
representation of the detenu on August 6, 1997. Thereafter,
on August 22, 1997 the detenu made a representation to the
Home Secretary, Government of India, through the
Superintendent of Mathura Jail, where he is confined. By its
letter dated August 26, 1997 the detaining authority
informed the detenu that the representation could not be
sent to the Central Government as it was made after
extraordinary delay. The detaining authority pointed out
that according to the Rules the said representation should
have been made within three weeks from the date of his
detention. Thereafter, the petitioner, who happens to be
wife of the detenu, filed this petition seeking a writ of
Habeas Corpus.
The only point that has been urged in support of this
petition is that the detenu has a right to make a
representation to the Central Government, independent of the
representation he made to the State Government, to pursuade
the former to invoke its powers of revocation of the
detention order under Section 14 of the Act and that by
refusing to send the representation to the Central
Government the detaining authority has deprived him of his
such right.
In repudiating the above contention the detaining
authority relied upon the following averments made in its
supplementary counter affidavit:-
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"That the copy of the
representation dated 14.5.1997 was
already forwarded for consideration
to the Central Government by the
State Government, which
representation was considered and
rejected by the Central Government.
The said Detenue addressed a second
representation dated 22.8.1997 to
the Secretary, Home, Govt. of
India, New Delhi, since the earlier
representation was already
considered and rejected by the
Central Government on 6.8.1997. The
communication about which was
already made to the said detenue
through the Radiogram dated
6.8.1997 from the Ministry of Home
Affairs, New Delhi served upon the
detenue through the Superintendent,
District Jail, Mathura. Under the
circumstances it was not considered
proper to forward the subsequent
belated representation made after
four months of the passing of the
detention order. The detenue was
accordingly informed vide letter
dated 26.8.1997 of the deponent.
In our considered view the above stand of the detaining
authority is wholly untenable: firstly, because in its
letter dated August 26, 1997 the reason given by the
detaining authority (mentioned earlier) for not sending the
representation to the Central Government was different;
secondly, because no Rules referred to in that letter were
brought to our notice; thirdly, because there is no - nor
can there be - a period of limitation regarding exercise of
a right of a detenu to make a representation and the
corresponding obligation of the Central Government to
consider the same for deciding upon the question of
revocation of the order of detention, for such right and
obligation subsist so long as the detention continues; and
lastly, because when the representation was made to the
Central Government it was for it - and not for the detaining
authority - to decide whether the representation should be
rejected on the ground that his earlier representation had
already been considered and rejected. To put it differently,
when the representation was addressed to the Central
Governing it was incumbent on the part of the detaining
authority to forward the same to the Central Government and
not to take a pre-emptive action thereupon of its own.
For the foregoing discussion, it must be held that
refusal on the part of the detaining authority to send the
representation of the detenu to the Central Government
resulted in denial of the right conferred on him under
Article 22(5) of the Constitution of India to pursuade that
Government to revoke the order of detention under Section 14
of the Act and on that ground his continued detention has
become illegal. We, therefore, allow this petition, quash
the impugned order of detention and direct that the detenu
be released forthwith unless wanted in connection with any
other case.