SMT. PREM LATA SHARMAversusDISTRICT MAGISTRATE, MATHURA AND ORS.

                      SMT. PREM LAT A SHARMA                                    A
                                 v.
              DISTRICT MAGISTRATE, MATHIJRA AND ORS.

                               MARCH 31, 1998

         [M.K. MUKHERJEE AND S.S. MOHAMMED QUADRI, JJ.]                         B

         National Security Act, 1980 : Sections 3(3) and 14.

          Preventive Detention-Right of detenu to make representation to Central
    Government-Detention order-Detenu 's representation against-Rejection C
    by State Government-Representation forwarded by State Government to
    Central Government-Rejection of representation by Central Government
    also-Second representation made by detenu to Central Government-Failure
    of detaining authority to forward second representation on the ground that
    it was made after extraordinary delay-Writ petition by wife of detenue- D
T   Stand of detaining authority that earlier representation of Revenue was
    rejected-Therefore it was not considered proper to forward the subsequent
    belated representation made after four months of the passing of the detention
    order-Held the stand of the detaining authority was wholly untenable-
    There is no period of limitation regarding exercise of a right of a detenu to E
    make a representation and the corresponding obligation of the Cr;ntral
    Government to consider the same for deciding upon the question of revocation
    of the detention order-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 F
    representation had already been considered and rejected-Refasal 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)-Detention order quashed as it became illegal.

         Constitution of India, 1950 : Article 22(5).                           G
          Detention order-Representation of detenu-Failure of detaining
    authority to forward the same to Central Government-Held violative of
    Article 22(5).

         CRIMINAL ORIGINAL JURISDICTION : Writ Petition (CRL.) No.              H
                                       617
    618                    SUPREME COURT REPORTS                     [1998) 2 S.C.R.

A   290 of 1997.

          (Under Article 32 of the Constitution of India.)

          K.B. Sinha and Ashok Kumar Sharma for the Petitioner.

          R.K. Singh and A.S. Pundir for the Respondents.
B         The following Judgment of the Court was delivered :

          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,
C   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
D   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 deteou 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
E   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
F   the detenu has a right to make a representation to the Central Government,
    independent of the representation he made to the State Government, to
    persuade 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
G   such right.

          In repudiating the above contention the detaining authority relied upon
    the following averments made in its supplementary counter affidavit:-

            "That the copy of the representation dated 14.5.1997 was already
            forwarded for consideration to the Central Government by the State
H           Government, which representation was considered and rejected by the
            P.L. SHARMA v. DISTT. MAGISTRATE MATHURA                        619
         Central Government. The said Detenue addressed a second                   A
         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                    B
         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 leiter dated 26.8.1997 of the
         deponent."
                                                                                   c
      In our considered view the above stand of the detaining authority is
wholly untenable: firstly, because in its leiter 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 leiter were brought to our notice; thirdly, because   D
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       E
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
Government 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.                                                              F
      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 persuade that Government to
revoke the order of detention under Section 14 of the Act and on that ground       G
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.

T.N.A.                                                        Petition allowed.    H