Madhya Pradesh High Court sets aside detention orders passed without making detenues aware about their right to representation

The Madhya Pradesh High Court on Thursday quashed detention orders passed by a district magistrate for not making the detenues aware of their valuable right to prefer representation (Banshilal Choudhary v. State of MP)..The Division Bench of Justice Sujoy Paul and Justice Shailendra Shukla found that the action of the district magistrate was contrary to the Supreme Court Constitution Bench judgment in Kamleshkumar Ishwardas Patel v. Union of India..The Petitioners challenged the orders on three grounds:i) Deprivation of right to representation before the detaining authority.ii) No period of detention mentioned in the orders.iii) Orders were passed while detenues were already in custody, yet they were mentioned to be “absconding”..The Court discussed the law laid down in Kamleshkumar, in which the apex court held,“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.”.The Bench also placed reliance on Salma vs. State of MP, where it was established that non-communication of the fact that the detenue can make a representation to the detaining authority constitutes an infringement of the right guaranteed under Article 22(5)..The Court thus observed that denial of an opportunity to be represented vitiated the impugned order and that the order could not sustain judicial scrutiny..While addressing the second ground, however, the Court held that it was not mandatory for the period of detention to be mentioned in the order and the same could not be held illegal for not specifying the period of detention..Discussing the third ground, the Court cited a case in which it was held that if the State carries the impression that the detenue is absconding, it may adversely impact their decision, “Thus, utmost care and caution must be taken while giving a finding whether the person concern is really absconding or not,” the cited judgment stated..The Court finally found that the petitioners succeeded on the first ground, and set aside the detention orders..Advocate Sankalp Kochar appeared for the petitioners. Additional Advocate General Pushyamitra Bhargav appeared for the State..[Read Order Here]