JUDGMENT Vishnu Sahai, J.
1. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner detenu Jitendra alias Jeetu Misra has impugned the detention order dated 2-9-2002, passed by Mr. R.S. Verma, District Magistrate, Barabanki (opposite party No. 1) detaining him under Section 3(2) of The National Security Act.
2. The detention order, along with the grounds of detention, which are also dated 2-9-2002, was served on the petitioner detenu on 4-9-2002 and their true copies have been annexed as Annexure 1 and 2 respectively to this writ petition.
3. The prejudicial activities of the petitioner detenu impelling the 1st opposite party (the District Magistrate, Barabanki) to issue the impugned detention order against him are contained in the grounds of detention (Annexure No. 2). Since, in our view, a reference to them is not necessary for the adjudication of the pleadings contained in para 16 of the petition and those contained in ground F and I of para 26 thereof, on which alone this writ petition deserves to succeed, we are not adverting to them.
4. We have heard learned counsel for the parties.
The substance of averments contained in paragraph 16 of the petition and grounds F & I of para 26 thereof is that since the petitioner detenu was not apprised the time limit, in which he could make a representation to the detaining authority, he was deprived of his right, to make a representation to him and the impugned detention order is rendered violative of Article 22(5) of the Constitution of India.
5. Mr. Pawan Kumar Trivedi, learned counsel for the petitioner detenu strenuously urged that since the Supreme Court in the oft quoted case of State of Maharashtra (Appellants) v. Santosh Shankar Acharya (Respondent), (2000) 41 All Cri C 704 : (AIR 2000 SC 2504 : 2000 Cri LJ 3939), while dealing with a detention order under Section 3(2) of The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as the "M.P.D.A.") after construing the provisions contained in Sections 3, 8 and 14 of the said Act, which are analogous to those contained in Sections 3, 8 and 14 of The National Security Act has held that till a detention order is approved by the State Government, the detenu has a right to make a representation to the detaining authority and the failure to communicate to him the said right would vitiate the detention order as being violative of Article 22(5) of the Constitution of India, it follows as a logical imperative that in the grounds of detention, the detenu should be communicated that his right to make a representation to the detaining authority was only available to him, till approval of the detention order by the State Government. Mr. Trivedi urged that in the case the same is not done, as is the case here, the impugned detention order would be vitiated, as being violative of Article 22(5) of the Constitution of India.
6. The averments contained in paragraph 16 of the petition have been replied to in para 15 of the return of Mr. R.S. Verma (detaining authority). The detaining authority has averred therein that since the petitioner detenu did make a representation to him on 20-9-2002, he comprehended his right to make a representation to him and therefore, no prejudice was caused to him.
7. Mr. S.K. Singh, learned counsel for opposite parties Nos. 1, 2 and 4 strenously urged that since the petitioner-detenu comprehended his right to make a representation to detaining authority and did make a representation to the detaining authority on 20-9-2002, it hardly lies in his mouth to urge that since he was not apprised that the said right was only available to him till the approval of the detention order by the State Government he could not exercise his right.
8. We have reflected over the rival submissions and are constrained to observe that we do not find any merit in the submission of Mr. S.K. Singh, A.P.P. In view of law laid down, in the Santosh Shankar Acharya (Supra), there is no quarrel with the proposition that the right of the detenu to make a representation to the detaining authority is only available to him till the approval of the detention order by the State Government. In the instant case, a perusal of paragraph 4 of the return of Mr. M. Tripathi, Deputy Jailor, District Jail, Gonda, shows that the detention order was approved, by the State Government on 11-9-2002.
Since the impugned detention order was approved by the State Government on 11-9-2002, in our judgment, the circumstance that the petitioner-detenu made a representation to the detaining authority on 20-9-2002 would not save the detention order from being vitiated. It may be that since the period, wherein the detenu could make a representation to the detaining authority had not been communicated to him, in the grounds of detention, he was labouring under the belief that his right to make a representation to the detaining authority was available to him till the last date of the life of detention order and therefore, on 20-9-2002, he made a representation to the detaining authority. It is well settled that in a preventive detention matter the benefit of any lacunae/obscurity/ambiguity would enure to the detenu.
9. There is another reason as to why in our judgment, the impugned detention order would be vitiated. Since the detenu's right to make a representation to the detaining authority was only available to him till the approval of the detention order by the Government, it follows as logical imperative that the detaining authority should have communicated to the detenu in the grounds of detention the time limit, in which, he could make a representation to him i.e. till the approval of the detention order by the State Government.
10. We make no bones in observing that a partial communication of a right (in the grounds of detention) of the type in the instant case, wherein the time limit for making a representation is of essence and is not communicated in the grounds of detention, would vitiate the first fundamental right guaranteed to the detenu under Article 22(5) of the Constitution of India, namely, of being communicated, as soon as may be, the grounds of detention.
11. In the circumstances, in our view, the impugned detention order is vitiated in law, being violative of Article 22(5) of the Constitution of India.
12. In the result, we allow this writ petition, quash the impugned detention order dated 2-9-2002; and direct that petitioner-detenu Jitendra alias Jeetu Misra be released forthwith unless wanted in some other case.