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Impugned order of detention cannot sustain judicial scrutiny. : Madhya Pradesh High Court

Given these authoritative pronouncements, there is little doubt that the detainee had a valuable right to make a representation to the detaining authority, and that the denial of that right vitiates the contested order was mentioned by Justice Anil Verma of the Madhya Pradesh High Court in the matter of Rafiq Kha versus State of M.P [ Writ Petition No. 9885/2021]

The order was passed when petitioner’s learned counsel raised a single point of dispute before this Court in opposition to the impugned decree dated 16.5.2021. It is said that the Magistrate stated that the petitioner has the right to seek counsel in court against the detention order from (i) the State Government and (ii) the Federal Government. However, the challenged order makes no mention of the petitioner’s valuable right to prefer representation before the same authority, namely the District Magistrate, in order to challenge the detention order. In the absence of this, the order became weak and susceptible to disruption. This Court’s recent decision is being used as a foundation (Gurubachan Singh Saluja Vs. State of MP & Others).

The learned Additional Advocate General did not contest the aforementioned legal point and rightly argued that the impugned order was vulnerable because the right of representation before the same authority was not mentioned. The parties’ learned counsel make no other arguments. We’ve listened to both sides extensively.

Clearly, there is no provision in the detention order that the detainee has the right to prefer representation before the same authority, namely the District Magistrate. This Court’s recent Full Bench decision in the instance of Kamal Khare is cited. To address this point, the learned AAG argued that the Full Bench decision in question is distinct.

The Full Bench decision is based on a constitution bench decision in Kamleshkumar Ishwardas Patel v. Union of India, 4 SCC 51, from 1995. The Supreme Court in Kamleshkumar (above) was concerned with the COFEPOSA Act and the PIT NDPS Act, not the NSA Act. As a result, the aforementioned Constitution Bench decision could not be relied upon.

The Supreme Court in Life Insurance Corporation of India v. D.J. Bahadur and Others, (1981) 1 SCC 315, dealing with the aspect whether the Life Insurance Corporation Act, 1956 is a special statute qua the Industrial Disputes Act, 1947 when it came to a dispute regarding the conditions of service of the employees of a life insurance corporation.

In light of the foregoing, the Supreme Court’s Constitution Bench in Kamlesh Kumar Ishwardas Patel examined the effect of failing to inform the detainee of his right to make a representation to the detaining authority itself in paragraph No.47 of the report, concluding that this amounts to a denial of his right under Article 22(5) of the Indian Constitution, rendering the detention illegal.

Before we get into the details of the case, we should point out that the main complaint of the detainee/complainant was that the District Magistrate, when issuing the detention order, failed to inform him of his valuable right to file a representation against the detention order with the same authority, namely the District Magistrate. As a result, it will be proper for the State to ensure that, going forward, the detainee’s right to prefer representation before the same authority must be specified in the order of detention.” 

As a result, the contested detention order cannot withstand judicial scrutiny. As a result, the order dated 16.5.2021 is nullified. And the writ petition was allowed.

Click here to read the full judgement

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