LOKENDRAversusUNION OF INDIA AND 3 OTHERS

          HIGH COURT OF JUDICATURE AT ALLAHABAD
           HABEAS CORPUS WRIT PETITION No. - 1245 of 2026

Lokendra
                                                                          .....Petitioner(s)
                                           Versus

Union Of India And 3 Others
                                                                         .....Respondent(s)

Counsel for Petitioner(s)                : Ashutosh Ganguli, Masoom Alam
Counsel for Respondent(s)                : A.S.G.I., G.A., Shiv Kumar Pal

Court No. - 42
                     HON'BLE ATUL SREEDHARAN, J.
                     HON'BLE ACHAL SACHDEV, J.

1. Counter affidavit filed today, is taken on record.

2. The petitioner has been detained under the provisions of the

PITNDPS Act. The issue before this Court lies within a very narrow

compass and that is whether the detenu was informed of his right

to file a representation for revocation of the detention order to the

detaining authority?


3. Mr. Anoop Trivedi, learned Additional Advocate General

appearing on behalf of the State has submitted that the order of

detention is fully compliant of the law laid down by the Hon'ble

Supreme Court in Alfiya.A Vs. State of Kerala & Ors., 2026 INSC

810. In order to appreciate the arguments of the learned Additional

Advocate General, reference is made in its entirety to paragraph-2

of the impugned detention order dated 29.01.2026, which reads as

under:

     "2. यह कि प्रत्यावेदन देना आपका मूल अधिकार है. आप उक्त निरुद्धि आधार के विरुद्ध राज्य
     सरकार द्वारा गठित मा० परामर्शदात्री परिषद (निरुद्धियां), मा० उच्च न्यायालय, इलाहाबाद,
     लखनऊ तथा सचिव, भारत सरकार, राजस्व विभाग, वित्त मंत्रालय, नई दिल्ली-110001 एवं
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    सचिव/ प्रमुख सचिव, गृह विभाग, उत्तर प्रदेश शासन, पांचवा तल, लोक भवन, लखनऊ
    -226001 को सम्बोधित अपना प्रत्यावेदन, जेल अधीक्षक, जहाँ आप निरुद्ध है, के माध्यम से
    प्रेषित कर सकते हैं । "


4. The said paragraph deals with the intimation given to the

petitioner with regard to the authorities that he has a right to make

the representations to and they are, firstly to the Advisory Board

constituted by the State Government at the High Court, Allahabad,

Lucknow, secondly, to the Secretary, Government of India,

Department of Revenue, Ministry of Finance and thirdly,

Secretary/Principal Secretary, Home Department, Government of

Uttar Pradesh, Lucknow.


5. Learned Additional Advocate General has referred to paragraph-

17 of the judgment passed by the Supreme Court in Alfiya.A

(supra), where the Supreme Court held that it is a constitutional

mandate of Article 22(5), whereby the authority is under two

distinct obligations while making a detention under a preventive

detention law and that the second of them, is to afford the detenu

the earliest opportunity of making a representation against the

order, which according to the Supreme Court, carries a necessary

concomitant obligation of the authority to inform the detenu of the

persons or bodies to whom he may address his representation. It is

relevant to mention here that Alfiya.A’s case was also under the

PITNDPS Act.


6. Before referring further to the said judgment, it is essential to

quote Section 12 of the PITNDPS Act, which reads as under:

    "12. Revocation of detention orders.—(1) Without prejudice to
    the provisions of section 21 of the General Clauses Act, 1897 (10
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                               3

     of 1897), a detention order may, at any time, be revoked or
     modified-

     (a) notwithstanding that the order has been made by an officer of a
     State Government, by that State Government or by the Central
     Government;

     (b) notwithstanding that the order has been made by an officer of
     the Central Government or by a State Government, by the Central
     Government.

     (2) The revocation of a detention order shall not bar the making of
     another detention order under section 3 against the same person."

7. Section 21 of the General Clauses Act complements with

Section 12 of the PITNDPS Act, which is essentially the power to

pass a fresh order of detention against a person whose previous

order has been revoked.


8. There is a subtle but discernible difference between setting

aside an order of detention and a revocation of an detention

order. While an order passed by the detaining authority may be set

aside by the Advisory Board or by the Secretary concerned to

the Central Government or the Secretary or Principal Secretary

to the State Government, it is only the detaining authority who

passed the order of detention who has a right to revoke the order.


9. The difference lies in the effect of an order setting aside an order

of detention, and the revocation of a detention order. The Advisory

Board consisting of sitting or retired High Court judges and the

Secretary to the Government of India who are higher in hierarchy

and protocol in comparison to a Secretary or a Principal Secretary

to the State Government. A Secretary to the Government of India

and the Chief Secretary to a State Government are at s.no. 23 in

the order of precedence while the Secretary/Principal Secretary to
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                               4


the State Government are below the Chief Secretary to the State

Government, but who in the scheme of the detention laws has

been authorised, like the other two, to set aside an order of

detention.


10. The Advisory Board, the Secretary to the Government of India

and the Secretary/Principal Secretary to the State Government,

have the authority to set aside an order of detention. The same is

done because the order of detention was passed without

jurisdiction, that there was violation of natural justice, arbitrariness

and/or procedural infirmity.


11. On the other hand, an order of revocation is passed because

the original circumstances existing at the time of passing the

detention order have changed or that the existence of the order is

no longer necessary, and the same is passed by the detaining

authority.


12. While an order setting aside a detention order by the superior

authority would preclude the detaining authority to pass a fresh

order of detention on the same set of facts, an order revoking a

detention order would still authorise the detaining authority to pass

a fresh order of detention, maybe on the same set of facts, but on

different grounds from the previous order of detention, that has

been revoked. The power to proceed afresh after revocation of a

detention order is provided explicitly in s. 12 of the PITNDPS Act.


13. Coming back to the Alfiya.A’s judgment, in paragraph-18, the

Supreme Court clearly held in that case that the detenu was not
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separately informed that he was entitled to make a representation

to the officer, who had passed the order of detention. It further held

in that case, that though the detenu had in fact made a

representation to the detaining authority, the same did not cure the

illegality, as the obligation upon the authority to communicate the

right of the detenue to represent to the detaining, could not depend

upon whether the detenu independently became aware of it. Such

is the strong view taken in favour of personal liberty by the

Supreme Court in Alfiya.A's case in paragraph-18.


14. Coming back to the factual aspects of the arguments put forth

by the learned Additional Advocate General that, the detenu was

informed about his right to make a representation to the the

Secretary/Chief Secretary, Home Department, Govt. of U.P., who

in effect was the detaining authority, the strict requirement of the

law as laid down in Alfiya.A’s judgement was complied with is

concerned, this Court, with utmost respect begs to differ.


15. The opinion that the third authority to whom the representation

could be made as per paragraph-2 is the detaining authority is

incorrect because the third authority is not the detaining authority,

but the authority that can set aside the order of detention even

though, it was the same officer who had passed the order of

detention, but was acting in his capacity as the State Government

having the authority to set aside the order of detention. It is only

when the detenue is made aware of his right to represent

specifically to the detaining authority, who alone was vested with

the right to revoke the order of detention, can it be said that the
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                                                                  6


                                    requirement voiced strongly by the Supreme Court in Alfiya.A’s

                                    judgment, was complied with. That intimation was not given

                                    specifically to the detenue in this case regarding the detaining

                                    authority, who also happens to be the same officer, acting as the

                                    State Government.


                                    16. In all, the detenu ought to have been informed of his right to

                                    make the representations to four authorities. Authority No.1 is the

                                    Advisory Board, Authority No.2 is Central Government, Authority

                                    No. 3 is State Government and Authority No. 4 is the Detaining

                                    Authority. In this case, the detenu is informed of his right to

                                    represent to the Authority No.1,2 and 3 but not to 4.


                                    17. Therefore, this Court is unable to agree with the submissions

                                    put forth by the learned Additional Advocate General, that the strict

                                    requirements of Alfiya.A’s judgment were complied with, and

                                    holds that the detenu was not specifically informed of his right to

                                    represent to the detaining authority.


                                    18. Accordingly, the petition is allowed in line with the judgment of

                                    the Hon'ble Supreme Court passed in Alfiya.A (supra), impugned

                                    order is set aside, and the Petitioner be set at liberty forthwith if not

                                    wanted in any other case.

                                    September 21, 2026
                                    Noman

                                                               (Achal Sachdev,J.) (Atul Sreedharan,J.)




Digitally signed by :-
NOMAN AHMAD
High Court of Judicature at Allahabad