Opportunity To Make Representation Against Preventive Detention Must Be Given Before Detaining Authority, Not State Govt: Madhya Pradesh High Court

The division bench of Justice Sheel Nagu and Justice M.S. Bhatti was essentially dealing with a writ petition filed by the Petitioner, wherein he was seeking directions of the Court to quash the order of his detention, passed by the District Magistrate pursuant to his power under Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.

The Petitioner argued that as per his detention order, he was granted an opportunity to submit a representation before the State Government. However, he wasn't given a chance to do the same before the Detaining Authority. Placing reliance on the decision of a Full Bench of the Court in Kamal Khare v. State of M.P., the Petitioner submitted that this communication by the District Magistrate was bad in the eye of law.

The Petitioner also asserted that Article 22(5) of the Constitution specifically provides that in a case of detention, the authority passing order of detention is obliged to afford an opportunity to the person concerned to make a representation to the authority which has passed the order of detention.

Per contra, the State submitted that the Petitioner was granted opportunity to submit his representation before the State Government and therefore, there was no violation of any statutory provisions.

Examining its decision in Kamal Khare case along with the facts of the case, the Court found merit in the arguments put forth by the Petitioner-

The aforesaid directives of the Full Bench makes it unequivocally clear that the authority passing an order of detention is obliged/duty bound to afford opportunity of hearing to the detainee to make a representation against the order of detention. Apparently in the present case, no such opportunity was granted to the petitioner to submit a representation before the Detaining Authority. However, on the contrary, an opportunity was given to submit a representation before the State Government, however, this was not proper particularly in view of the law laid down by the Full Bench in the case of Kamal Khare (supra).

With the aforesaid observations, the Court quashed the impugned order of detention and granted liberty to the District Magistrate to proceed against the Petitioner under the Essential Commodities Act and the orders framed thereunder.