ORDER
E.Padmanabhan, J.
1. First respondent, namely, the District Magistrate and District Collector, Coimbatore, clamped an order of detention under Section 3(3) of The National Security Act, 1980, (Central Act 65 of 1980), as against one Perumal, S/o: Muthu, with a view to prevent him, from acting, in any manner, prejudicial to the maintenance of public order.
2. Challenging the said order of detention, the detenu has come before this Court.
3. Heard Mr.G.Karthikeyan, learned counsel for the petitioner, Mr.Abudu Kumar Rajarathnam, learned Government Advocate (Crl.Side), for respondents 1,2 and 4, and Mr.K.Rajendran, learned Additional Central Government Standing Counsel, for the fourth respondent.
4. One of the formidable contentions, advanced by the learned counsel for the petitioner, being that the detenu has not been apprised of his right to make a representation to the Central Government, as against the order of detention, and this failure has resulted in an infraction of Article 22(5) of The Constitution of India.
5. When the above matter is listed today, the learned Government Advocate and Mr.Rajendran, learned Additional Central Government Standing Counsel brought to the notice of this Court about the instructions issued by the Central Government in Notification No.II.15028/1/2002-IS (DO.II)(pt)/NSA dated 28.04.2003 to the State Governments to the effect that in respect of the orders passed by the subordinate to the State Government, the detenues need not be apprised of their right to make a representation to the Central Government. This is an administrative instruction and it is not a statutory Notification. That apart, the Notification only refers to the definition of the expression ‘Appropriate Government’ falling under Section 2(a) but the instructions do not take in or overlook the effect of Section 14(1), wherein the power has been reserved on the State Government as well as Central Government to revoke the order of detention clamped under Section 3(3) by an officer subordinate to the State Government. Therefore, the contention which is sought to be advanced on the basis of certain instructions issued by the Central Government cannot be sustained.
6. The order of detention has been passed by the first respondent, namely, the District Magistrate and District Collector. The material portion of the order, as it is pointed out, being paragraphs 6 and 7 of the grounds of detention. In paragraphs 6 and 7, the detaining authority has informed the detenu of his right to make a representation to the detaining authority, within 12 days from the date of detention, and to the State Government and that if he wishes to make such a representation, he should address to the Under-Secretary, Public (Law & Order-F) Department, Secretariat, Chennai-9, and forward the same through the Superintendent of Central Prison, in which he is confined.
7. Either in para 6 or in paragraph 7 or in any portion of the grounds of detention, the detenu has not been apprised of his right, to make a representation to the Central Government, which is also the authority, competent to revoke the order of detention.
8. Section 3 of The National Security Act, 1980, confers power on the Central Government or the State Government, as the case may be, if satisfied, to make an order, detaining a person, who is acting, in any manner, prejudicial to the defence of India, the relations of India with foreign powers or the security of India.
9. Sub-section (2) of Section 3 of the Act also confers power on the Central Government or the State Government, to clamp an order of detention, against any person, acting, in any manner, prejudicial to the security of the State or acting, in any manner, prejudicial to the maintenance of public order or maintenance of supplies and services, essential to the community.
10. Sub-section (3) confers power on the State Government, to direct a District Magistrate or a Commissioner of Police, by order in writing, that, during such period, as may be specified in the order, the said authority may, as provided under Sub-section (2), exercise the powers conferred by the said Sub-section (2) of Section 3.
11. Section 2(1)(a) defines the expression ‘appropriate Government’
12. Section 14 confers power on the State Government as well as on the Central Government, to revoke or modify the order of detention, passed in respect of the detenu, either by the State Government or by the authority, authorised, in terms of Section 3(3) of the Act.
13. In this case, the detenu has not been apprised of his right, to make a representation to the Central Government, as seen from the grounds of detention. This is being taken advantage of and contended that this results in violation of Article 22(5) of the Constitution.
14. In this respect, attention of this Court is drawn, to the pronouncement of the Supreme Court in Kamleshkumar Ishwardas Patel v. Union of India and Others (1995 SCC (Cri.) 643).
15. The Supreme Court, in the said judgment held thus :
“6.This provision has the same force and sanctity as any other provision relating to fundamental rights. (See: State of Bombay v. Atma Ram Shridhar Vaidya (1951 SCR 167, 186 : )). Article 22(5) imposes a dual obligation on the authority making the order of preventive detention : (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22(5) thus proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed. Article 22(5) does not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recognised by Section 21 of the General Clauses Act, 1897, though it does not flow from it. It can, therefore, be said that Article 22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority, which is empowered by law, to revoke the order of detention.
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14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.”
16. We have referred to the pronouncement of the Supreme Court above and when the person, being a detenu, should be informed of his right to make a representation to the authority who is competent to revoke the order of detention. Even in respect of orders of detention passed by the subordinate of the State Government under Section 3(3), the revocation be either by the State Government or by the Central Government. Therefore, we affirm our view already taken in H.C.P.Nos.1406, 1407 and 1408 of 2003.
17. Following the said judgment in Kamleshkumar Ishwardas Patel v. Union of India and Others, in a recent pronouncement, in State of Maharashtra & Others v. Santosh Shankar Acharya (JUDGMENTS TODAY 2000 (8) SC 374), an identical contention has been sustained, by a Division Bench of the Supreme Court.
18. The earlier pronouncement of the Full Bench of the Supreme Court is on the point.
19. In the present case, as seen from order of detention, the detenu has not been apprised of his right, to make a representation to the Central Government, which is also an authority, competent to revoke or modify the order of detention. This is an infraction of Article 22(5) of the Constitution of India.
20. In the circumstances, the detenu is directed to be set at liberty unless his custody is otherwise required in connection with any other case.
21. In result, the Habeas Corpus Petition is allowed.