Hon'ble Ravindra Nath Kakkar,J.
Per Hon'ble Bala Krishna Narayana, J.
The argument of this case was concluded on 19.09.2018. We then made the following order :-
"Heard Sri Daya Shankar Mishra, learned counsel for the petitioner, Sri Jitendra Prasad Mishra, learned counsel for Union of India, Smt. Manju Thakur, learned A.G.A.-I and Sri J. K. Upadhyay, learned A.G.A. for the State.
We will give reasons later. But we are making the operative order here and now.
This habeas corpus writ petition is allowed. The impugned detention order dated 13.04.2018 passed by respondent no. 2, District Magistrate, Muzaffar Nagar detaining the petitioner u/s 3 (2) of the National Security Act, 1980 is hereby set-aside.
The petitioner Nazar Quraishi (detenu) is set at liberty.'' Here are the reasons :- In this petition, the validity of the detention of petitioner Najar Quraishi (detenu) has been challenged. He has been detained by the District Magistrate, Muzaffar Nagar by an order dated 13.04.2018 made under Section 3 (2) of the National Security Act, 1980 (hereinafter referred to as the NSA).
The impugned order of preventive detention was passed against the petitioner while he was confined to District Jail, Muzaffar Nagar on account of his being accused in following cases namely :-
(a) Case Crime No. 1175 of 2017 u/s 3/5/8 of U.P. Prevention of Cow Slaughter Act.
(b) Case Crime No. 1176 of 2017 u/s 147, 148, 149, 307, 323, 332, 336, 353, 427, 201, 224 I.P.C. & Section 7 of Criminal Law Amendment Act.
(c) Case Crime No. 2663 of 2017 u/s 429 I.P.C. & Section 3/11 of Prevention of Cruelty to Animals Act.
(d) Case Crime No. 118 of 2018 u/s 3/5/8 of U.P. Prevention of Cow Slaughter Act & Section 3/11 of Prevention of Cruelty to Animals Act.
(e) Case Crime No. 151 of 2018 u/s 3/5/8 of U.P. Prevention of Cow Slaughter Act & Section 3/11 of Prevention of Cruelty to Animals Act.
(f) Case Crime No. 497 of 2017 u/s 382 I.P.C.
Upon being served with the impugned detention order, the petitioner filed representations before the detaining authority, State Government, Central Government as well as the Advisory Board. The Advisory Board approved the detention order.
The only ground on which the learned counsel for the petitioner has challenged the impugned detention order is that the petitioner was not given any opportunity by the Advisory Board to be represented through a legal practitioner/counsel of his choice before the Board so as to enable him to place his case effectively before the Board. He next submitted that the Board had allowed participation and assistance of officials at the time of hearing of case against the petitioner and in view of the above, it was all the more necessary rather obligatory on the part of the Board to have granted opportunity to the petitioner to engage any legal practitioner to have represented his case. He further submitted that since the petitioner was denied the opportunity to represent his case effectively before the Board, the impugned order is not legally sustainable and deserves to be quashed on this ground alone. In support of his submissions, learned counsel for the petitioner has place reliance on two decisions of this Court in A. K. Roy V. Union of India reported in (1982) 1 SCC 271 : 1982 SCC (Cri) 152 and Choith Nanikram Harchandani V. State of Maharashtra and Others with Bittu Choith Harchandani V. State of Maharashtra and Others reported in (2018) 2 Supreme Court Cases (Cri) 403, (2015) 17 Supreme Court Cases 688.
In reply, learned counsel for the respondents supported the impugned order and prayed for its upholding, contending that the petitioner is not entitled to any indulgence. Moreover, no prayer was made by him before the Advisory Board to allow him to be represented through a counsel and hence, the impugned detention order is not liable to be set-aside on the aforesaid submissions made by the learned counsel for the petitioner.
We have heard learned counsel for the parties present and very carefully scanned the impugned order and the grounds of detention and also the counter affidavits filed on behalf of the respondent nos. 1 to 4 in this writ petition and the law reports cited before us by the learned counsel for the petitioner.
The issue is to whether the detenu has right to appear through a legal practitioner in the proceedings before the Advisory Board remains no more res integra and stands settled by the decision of the Constitution Bench of the Apex Court in A. K. Roy (supra). Y.V. Chandrachud, C.J. Speaking for the Bench succinctly dealt with this issue and held in para 93 as under : (SCC pp. 334-35) "93. We must therefore hold, regretfully though, that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board. It is, however, necessary to add an important caveat. The reason behind the provisions contained in Article 22 (3) (b) of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party. The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu. In any case, that is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22. Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenu. We must therefore make it clear that if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. We are informed that officers of the Government in the departments concerned often appear before the Board and assist it with a view to justifying the detention orders. If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly; and no one should be enabled to take shelter behind the excuse that such officers are not 'legal practitioners' or legal advisers. Regard must be had to the substance and not the form since, especially, in matters like the proceedings of Advisory Boards, whosoever assists or advises on facts or law must be deemed to be in the position of a legal adviser. We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them. Serving or retired Judges of the High Court will have no difficulty in understanding this position. Those who are merely 'qualified to be appointed' as High Court Judges may have to do a little homework in order to appreciate it."
Similarly by the Apex Court in the case of Choith Nanikram Harchandani (supra) in paragraph 15 as held as hereunder :-
"In our considered opinion, since the detaining authority was represented by the officers at the time of hearing of the petitioner's case before the Advisory Board, the petitioner too was entitled to be represented through legal practitioner. Since no such opportunity was afforded to the petitioner though claimed by him, he was denied an opportunity of a fair hearing before the Advisory Board, which eventually resulted in passing an adverse order."
Applying the aforesaid principle to the facts of this case, we find in paragraph 20 of the writ petition in which the petitioner has categorically stated on oath that while the detaining authority was represented by officials, by legal advisers and legal officers before the Advisory Board, the petitioner was not allowed to be represented through legal practitioner despite request made by him before the Board in this regard. The petitioner was thus, denied the opportunity of a fair hearing before the Advisory Board which eventually resulted in passing of adverse order against him.
The reply to the contents of the paragraph 20 of the writ petition having been given by the respondent no. 2 in paragraph 22 of his counter affidavit in which he has failed to categorically deny the contents of the paragraph 20 of the writ petition and has merely deposed that the petitioner was heard before the Advisory Board.
In paragraph 9 of the counter affidavit sworn by one Padmakar Shukla, Under Secretary, Home (Confidential) Department, U.P. Civil Secretariat, Lucknow and filed on behalf of the State of U.P., has merely stated that the petitioner was informed by the State Government vide letter dated 03.05.2018 that he could attend the hearing before the U.P. Advisory Board, Lucknow along with his next friend (non-advocate).
Thus, there is no denial in the counter affidavit of either of the respondents that at the time of hearing of the case before the U.P. Advisory Board, Lucknow, officers of the detaining authority were present and heard in the course of proceedings.
This infirmity being fatal renders the impugned order legally unsustainable as held in A. K. Roy (supra) :-
"If the detaining authority or the Government takes the aid of a legal practitioner or legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. If it is denied to him then a clear case of breach of Article 14 is made out in favour of detenu. Since the expression "legal practitioner" was interpreted in A. K. Roy (supra) to include even the officers of the Government when they appear before the Board to assist the proceedings against the detenu, the detenu too has to be provided with equal facility of appearing before the Board through legal practitioner."
In view of the above, the impugned order cannot be sustained and is liable to be set-aside.
These are the reasons upon which we had set-aside the impugned order dated 13.04.2018 passed by the respondent no. 2, District Magistrate, Muzaffar Nagar.
Order Date :- 19.9.2018 KS