JUDGMENT Vishnu Sahai, J.
1. Through this writ petition preferred under Article 226 of the Constitution of India the petitioner-detenu has impugned the order dated 30-12-2001 passed by respondent No. 2 Mr. C. N. Dubey, District Magistrate, Gonda detaining him under Sub-section (2) of Section 3 of the National Security Act.
The detention order along with grounds of detention which are also dated 30-12-2001 was served on the petitioner-detenu on 31-12-2001 itself and their true copies have been annexed collectively as Annexure 1 to this petition.
2. The prejudicial activities of the petitioner-detenu prompting the 2nd respondent to issue the impugned detention order against the petitioner-detenu are contained in the grounds of detention. Since in our view it is common ground between counsel for the parties that the detaining authority only communicated to the petitioner-detenu that if he so wanted he could make a representation to him (the detaining authority) within 12 days of the date of issuance of the detention order or its approval by the State Government whichever was earlier and the petitioner-detenu was not communicated that he had a right to make a representation to the detaining authority, it is not necessary to advert to the prejudicial activities of the petitioner-detenu mentioned in the grounds of detention.
3. Learned counsel for respondent Nos. 1 to 3 does not dispute that :
(a) the petitioner-detenu had a right to make a representation to the detaining authority within first twelve days of the detention order or its approval by the State Government whichever was earlier;
(b) the detention order was served on the petitioner-detenu on the date of issuance itself, i.e. 30-12-2001;
(c) what has been conveyed to the petitioner-detenu on the grounds of detention is that if he so wanted he could make a representation to the detaining authority till the detention order was approved by the State Government.
4. Since the Apex Court in the decision rendered in the case of State of Maharashtra v. Santosh Shankar Acharya, reported in 2000 SCC (Cri) 1400 : (AIR 2000 SC 2504) has laid down in para 6 that till the detention order is approved by the State Government the detenu has a right to make a representation to the detaining authority and non-communication of this right to the detenu would constitute an infraction of the detenu's valuable constitutional right guaranteed by Article 22(5) of the Constitution and would make the order of detention invalid, and the provisions contained in Sections 3, 8 and 14 of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 whereunder the said decision was rendered, are analogous to those contained in Sections 3, 8 and 14 of the National Security Act, the failure of the detaining authority to communicate the detenu his aforesaid right would render his detention invalid.
5. We make bones in observing that we are not impressed with the submission of Mr. Jyotindra Mishra learned counsel for the respondent Nos. 1, 2 and 3 that since the petitioner-detenu has been informed in the grounds of detention that if he so wanted he would make a representation to the detaining authority, there was sufficient compliance of Article 22(5) of the Constitution of India, in terms of the case of State of Maharashtra v. Santosh Shankar Acharya (supra). We make no bones in observing that expression that if the detenu so wanted, he could make a representation to the detaining authority only conveyed to him that he had an option to make a representation to the detaining authority and did not convey to him that he had a right to make one to the said authority. In our judgment there is world of difference between conveying to the detenu the option to make a representation and a right to make one.
In our view there is world of difference between the expression that if the detenu so wanted he could make a representation to the detaining authority till the detention order was approved by the State Government and that he had a right to make representation to the detaining authority till the said approval. In the former situation a detenu may or may not make a representation but in the latter one he would make one in all probability.
At any rate we fail to see that when the mandate of the law is that the detenu had a right to make a, representation to the detaining authority why the said right has not been communicated to him as a right by the detaining authority. In our view for the failure of the detaining authority to do so the detention order would be rendered unsustainable in law. It should be borne in mind that the Supreme Court in para 7 of the oft quoted case of Srimati Shalini Soni v. Union of India, reported in AIR 1981 SC 431 at page 433 has laid down that:
"............Since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by Article 22(5) read with Article 19, the Courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed. A breach of the procedural imperative must lead to the release of the detenu. ........."
6. Since in this case in the grounds of detention the detenu has not been apprised that he had a right to make a representation to the detaining authority and therein it has been only mentioned that if he so wanted he could make a representation to the detaining authority, in our view the detenu's fundamental right under Article 22(5) of the Constitution would stand infracted as was held by the Apex Court in the case of State of Maharashtra v. Santosh Shankar Acharya (AIR 2000 SC 2504) (supra). Therefore, the impugned order in our view cannot be sustained in law and has to be set aside.
7. In the result we allow the writ petition; quash and set aside the detention order dated 30-12-2001; and direct that the petitioner-detenu be released forthwith unless wanted in some other case.