Court No. - 51
Case :- HABEAS CORPUS WRIT PETITION No. - 3653 of 2018 Petitioner :- Ravinarayan Singh Alias Bablu Singh Respondent :- Supritendent,District Jail, Lucknow And 3 Others Counsel for Petitioner :- Daya Shankar Mishra,Chandrakesh Mishra Counsel for Respondent :- G.A.,A.S.G.I.,Alok Ranjan Mishra
Hon'ble Vipin Sinha,J. Hon'ble Ghandikota Sri Devi,J.
Heard Sri Daya Shankar Mishra, learned Senior Advocate assisted by Sri Chandrakesh Mishra, learned Counsel for the petitioner, Sri Alok Ranjan Mishra, learned Counsel for Union of India and Sri Patanjali Mishra, learned AGA appearing on behalf of the State-respondents.
The present Habeas Corpus writ petition has been filed seeking the quashing of the detention order dated 08.07.2018. The relief as sought in the writ petition is herein under:
1& ;g fd lEekuuh; U;k;ky; cUnhizR;{khdj.k izd`fr ds ;kfpdkns'k vkns'k@funsZ'k ds ek/;e ls ;kph dks ekuuh; bl U;k;ky; ds le{k l'kjhj@lnsg mifLFkr@izLrqr djus ,oa mldh vk|ksikUr fu:f) ,oa vfHkj{kk dh oS/kkfudrk o laoS/kkfudrk dks ;qDr;qfDrd <ax ls iw.kZ:is.k lansg jfgr fl) ,oa izekf.kr djus gsrq mRrjoknhx.k lesr muds lg;ksxh@lgdehZ] v/khuLFk] vU;kU; lEcfU/kr] leLr vf/kdkjh@izkf/kdkjhx.k dks vknsf'kr@funsZf'kr djus dh egrh d`ik djsaA 2& ;g fd lEekuuh; U;k;ky; cUnhizR;{khdj.k izd`fr ds ;kfpdkns'k vkns'k@funsZ'k ds ek/;e ls ;kph ds fo:) jklqdk dh /kkjk 3¼2½ ds vUrxZr gLrk{kfjr iz'uxr fujks/kkns'k fnukafdr 08-07-2018 ¼layXud la[;k 1½ lesr vU;kU; leLr vk|ksikUr dk;Zokgh ,oa ;kph dh vk|ksikUr] orZeku Øekuqxr@yxkrkj fu:f) o vfHkj{kk dks vfof/kd] vlaoS/kkfud gksus ds vk/kkj ij mls vfoyEc@rRdky Lora=@eqDr o fjgk djus@NksM+us gsrq mRrjoknhx.k lesr muds lg;ksxh@lgdehZ] v/khuLFk] vU;kU;] leLr vf/kdkjhx.k@deZpkjhx.k dks vknsf'kr@funsZf'kr djus dh d`ik djsA 3& ;g fd lEekuuh; U;k;ky; cUnhizR;{khdj.k izd`fr ds ;kfpdkns'k vkns'k@funsZ'k ds ek/;e ls ;kph dh ukxfjd Lora=rk eas voS/kkfud fof/kd ifz Ø;k ds izfrdwy gLr{kis djus ls mRrjoknhx.k lesr muds lg;ksxh@lgdehZ] v/khuLFk] vU;kU;] leLr vf/kdkjhx.k@deZpkjhx.k dks fu"ksf/kr@fuf"kf)r@euk djus dh d`ik djsA 4& ;g lEekuh; U;k;ky; dh n`f"V eas vU; dkbZs U;k;kfs pr ;FkklEHko ;kfpdkns'k vkns'k@funsZ'k] mi"ke@vuqrks"k ;kph ds i{k eas ikfjr o iznku djus dh egrh d`ik djAsa 5& ;g fd ;kph dks ;kfpdk dk lEiw.kZ O;;] izfrdj o fo'ks"k {kfriwfrZ ¼gtkZuk½ Hkh nsus@fnykus dh egrh d`ik djasA At the very outset, it may be appreciated that the present proceedings are culmination point of First Information Report dated 24.01.2018 with regard to an incident said to have taken place on 23.01.2018 as at the very outset, it may be noted that as far as the said FIR is concerned, copy of which has been annexed as Annexure no. 8 to the writ petition, the present writ petitioner has not been named therein and the said FIR has been lodged against unknown persons. This was the starting point on which ultimately became the focal point for passing of the preventive detention order dated 08.07.2018 for the quashing of which the writ petition has been filed along with the other subsequent orders by means of which the period of detention has been extended.
The contention of learned Senior Advocate is to the effect that the detenue was granted bail in Case Crime Nos. 68 of 2018, 24 of 2018, 55 of 2018 on the following dates 11.06.2018, 15.06.2018 and 18.06.2018 respectively, whereas the detention order has been passed on 08.07.2018. It has been contended that there is nothing on record to show that the detention order had some nexus with the objective sought to be achieved. The further contention is that the purpose of detention order in the present case is not preventive but in fact, it is punitive in nature and has been passed after the grant of the bail order.
The reliance by the senior advocate has been placed in the judgment of the Apex Court rendered in Criminal Appeal Nos. 826 of 1985, (Ashok Arora alias Ashoki Thekadar vs. State of Uttar Pradesh and others) and 827 of 1985, (Ashok Kumar Sonkar vs. State of U.P. and others). The order dated November 29, 1985 is being quoted herein below:
“The solitary not which is the basis of the order of detention is also the subject matter of a criminal case in which bail has been granted to the appellants by the Additional Sessions Judge. The order of detention cannot be used to serve as the order for cancellation of bail. The appeals have therefore to be allowed. The appeals are accordingly allowed and the appellants are directed to be set at liberty forthwith."
The contention is that the detaining authority has not recorded its satisfaction nor any explanation has been given by the detaining authority while recording its satisfaction as to what was the need of passing of the detention order once bail has been granted. It is further contended that the detaining authority has not applied its mind as to why and under what circumstances the order has been passed without considering the question as to whether the criminal law machinery of the State is sufficient to deal with the situation or not. In this regard reliance has been placed by the counsel for the petitioner on the judgment of the Apex Court passed in the case of Rekha vs. State of Tamil Nadu through Secretary to Government and another, 2011, Volume 5 SCC 244, wherein in paragraphs no. 23, 27 and 30 the Court has held thus:-
“23. In our opinion, the ordinary law of the land was sufficient to deal with this situation, and hence, recourse to the preventive detention law was illegal.
27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, this is , where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed.
30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their lebels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.”
The counsel for the petitioner has placed heavy reliance upon the judgment of this Court rendered in Habeas Corpus Writ Petition No. 43664 of 2017, Dr. Ashfaq @ Nehal vs. Union of India and 3 others. In another judgment that is Imran vs. Union of India and 3 others reported in 2018 (103) ACC Page 132.
Keeping in view the aforesaid contention the court has perused the satisfaction as has been recorded by the detaining authority. The relevant portion is being extracted herein below:-
vki ,d nqnkZUr] fxjksgcUn ,oa Fkkuk e.MqokMhg ds izpfyr fgLVªh'khVj gSA vkids fo:) iwoZ eas gR;k] gR;k dk iz;kl] jaxnkjh olwyus] vk;q/k vf/kfu;e] ljdkjh deZpkjh;kas ls ekjihV djus] mRrj izns'k fxjksgcUn ,oa lkekt fojks/kh fØ;kdyki ¼fuokj.k½ vf/kfu;e] xq.Mk vf/kfu;e o Ny djus ls lEcfU/kr vijk/k iathd`r gSA mijksDr rF;kas ls izekf.kr gS fd vkidk d`R; ykds O;oLFkk ds vuqj{k.k ds izfrdwy gSA vki orZeku eas eq0v0l0a 154@18 /kkjk 3¼1½ mRrj izns'k fxjksgcUn ,oa lekt fojks/kh fØ;kdyki ¼fuokj.k½ vf/kfu;e Fkkuk e.MqokMhg ds vfHk;ksx eas U;kf;d vfHkj{kk eas tuin dkjkxkj okjk.klh eas fu:) gSA vkidh tekur gsrq vkids ifjtu fujUrj iz;kljr gSA eq0v0la0 68@18 vUrxZr /kkjk 419@420@467@468@471@120ch Hkk0na0fo0 eas vkidh tekur ekuuh; U;k;ky; }kjk fnukda 11-6-18 dks o eq0v0la0 24@18 /kkjk 302@34@120ch Hkk0na0fo0 eas vkidh tekur ekuuh; mPp U;k;ky;
bykgkckn }kjk fnukad 15-6-18 dks Lohd`r dh tk pqdh gS eq0v0la0 154@18 /kkjk 3¼1½ m0iz0 fxjksgcUn ,oa lekt fojks/kh fØ;kdyki ¼fuokj.k½ vf/kfu;e Fkkuk e.MqokMhg eas vkidh tekur ekuuh; voj ,oa l= U;k;ky; ls vLohd`r gksus ds ckn ekuuh; mPp U;k;ky; bykgkckn eas Lohd`r gks xbZ gSA tekur Lohd`r gksus ds i'pkr U;k;ky; eas c/a k i= nkf[ky dj vki }kjk tsy ls fjgk gksus dk iz;kl fd;k tk jgk gS] ;g Hkh iw.kZ lEHkkouk gS fd vki tsy ls tekur ij NwVus ds i'pkr jaxnkjh olwyus o viuk izHkqRo dk;e j[kus ds fy;s iqu% gR;k o gR;k ds iz;kl ,oa jaxnkjh olwyus tSls t?kU; vijk/kkas dh iq ujko`fRr djxsa s ftlls ykds O;oLFkk dk vuqj{k.k dqizHkkfor gksxkA lekt eas ykds O;oLFkk cuk;s j[kus rFkk fof/k dk 'kklu LFkkfir djus ds fy;s o yksd O;oLFkk ds vuqj{k.k ds fgr eas vkidks jk"Vªh; lqj{kk vf/kfu;e ds vUrxZr fu:) fd;k tkuk vko';d gSA ofj"B iqfyl v/kh{kd okjk.klh ds xksiuh; i= la[;k 13 ,u0,l0,0@18 fnukad 6&7&18 o layXudksa ds ifj'khyu ls Li"V gS fd vki eq0v0la0 154@18 /kkjk 3¼1½ mRrj izns'k fxjksgcUn ,oa lekt fojks/kh fØ;kdyki ¼fuokj.k½ vf/kfu;e Fkkuk e.MqokMhg] okjk.klh ds vfHk;ksx eas ftyk dkjkxkj okjk.klh eas U;k;ky; eas fu:) gS vkSj tekur Lohd`r gksus ds i'pkr ca/k i= nkf[ky dj vki }kjk tsy ls fjgk gksus dk iz;kl fd;k tk jgk gSA tekur ij NwVus ds i'pkr vki iqu% blh izdkj ds t?kU; vijk/k djasxs ftlls yskd O;oLFkk dk vuqj{k.k dqizHkkfor gksxkA eSa O;fDrxr :i ls larq"V gwa fd tsy ls tekur ij NwVus ds i'pkr vki iqu% vkijkf/kd xfrfof/k;ksa eas O;oLFkk ds vuqj{k.k dks dqizHkkfor djasxsA lafyIr gksdj yksd mijksDr vk/kkjkas ls ejs k lek/kku gks x;k gS fd vki ds }kjk ,sls fdlh Hkh jhfr eas dk;Zokgh fd;s tkus dh lEHkkouk gS tks yksd O;oLFkk ds vuqj{k.k ds izfrdwy gS vkSj vkidks ,slh jhr eas dk;Zokgh djus ls tks ykds O;oLFkk ds vuqj{k.k ds izfrdwy gS] jksdus ds mn~ns'; ls ;g vko';d gS fd vkidks fu:) fd;k tk;A A perusal of the above, clearly shows that detaining authority recorded the satisfaction in mechanical manner in a set language and not at all applied its mind to the facts and circumstances of the case.
The counsel for the petitioner has further placed reliance upon the following judgments:
Md. Sahabuddin vs. District Magistrate 24 Paraganas, 1975 AIR (SC) 1722, SK Serajul vs. State of West Bengal 1975 AIR (SC) 1517, Jagan Nath Biswas vs. State of West Bengal, 1975 AIR (SC) 1516.
The next contention of the counsel for the petitioner is that the petitioner has made a representation to the District Magistrate on 16.07.2018, copy of which has been annexed at page 59 of the writ petition. In the said representation, the petitioner has made two prayers before the District Magistrate, Varanasi which is as follows:
1. either revoke the detention order.
2. Or certain documents which were required by the detenue to make an effective representation, have not been supplied to him and they may be supplied to him in order to enable him to make a representation. Not only representation but an effective and purposeful representation.
It remains undisputed that the District Magistrate did not supply those documents as were sought for. Reliance in this regard has been placed in paragraph nos. 14, 15 and 16 of the said representation dated 16.07.2018, which is on page 59 of the writ petition and also mentioned in paragraph no. 17 of the writ petition. A further plea has been taken that even the services of a legal advocate were not provided, though the same was specifically sought for by the petitioner. Reliance has been placed on the averments made in paragraph no. 31 of the writ petition.
Sri D. S. Mishra appearing for the petitioner has very categorically made a statement before the Bar of this Court that the documents which were sought for by the petitioner were not supplied to him for the purpose of filing of an effective representation as well as the relief sought by the petitioner that he may be provided the services of an advocate was not considered by the authority concerned remains undisputed and unrebutted on record. Thus it remains unrebutted that the specific documents which finds a specific mention in the representation of the petitioner dated 16.07.2018, to the District Magistrate annexed with the writ petition itself were not supplied and nor the services of an advocate/legal representative were provided to him, even though they were specifically sought for by the petitioner in view of the fact that the State Government, the sponsoring authority as well as Union of India were fully represented by legal counsel. The counsel for the petitioner has placed reliance in this regard upon a judgment of the Apex Court reported in 2015, volume 17 SCC, 688, Choith Nanikram Harchandani vs. State of Maharashtra and others, the relevant portion of the judgment is being extracted herein below:
“12. As rightly argued by the learned counsel for the petitioner, the question as to whether the detenu has a 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 Constitutional Bench of this Court in A. K. Roy Case2. 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."
15. 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.”
In support of his second contention the counsel for the petitioner has placed reliance upon two other judgments rendered in Dharam Pal Yadav vs. Union of India, the relevant portion is being extracted herein below:
“4. While arguing this petition Sri Prem, Prakash Learned Counsel for the Petitioner urged that on 25-8-1991 the Petitioner gave an application which has been termed by him to be a presentation to the District Magistrate, Bulandshahr, enumerating therein various documents as also the information's, which he claimed was needed by him to enable him to make an effective representation. The first contention of the Learned Counsel for the Petitioner is that though these documents were demanded, these documents were never supplied.
5. The contention of the Learned Counsel for the Petitioner is that as these documents have not been furnished to him, his right to make an effective representation against the order of detention has been materially affected. Learned Counsel for the Petitioner has relied upon the judgment of the Supreme Court in the case of Ram Chandra A. Kamat v. Union of India and others reported in AIR 1980 SC 765.
6. In the case of Ramchandra A. Kamat (supra) the Petitioner through his Advocate by a letter dated 7-9-1979 had written to the second Respondent stating therein that detenu desired to make a representation against the order of detention but found that without the copies of documents referred to in the grounds of detention order, it was not possible for him to make an effective representation.
The copy of these documents was demanded by the Petitioner through his counsel on 7-9-79. Admittedly the letter demanding the copies had been received by the authorities concerned. The authorities while acknowledging the receipt of his letter advised the counsel to contact the Deputy Director of Enforcement Bombay who was supposed to supply the copies of documents and the statements demanded by him. As the documents were not received the counsel again wrote to the authorities concerned demanding those documents. Initially the counsel was asked to inspect the record, but the copies were finally supplied to him on 26-9-1979, 28-9-79, and 29.9.79. Thereafter a representation was made by the detenue on 5- 10-79.
Accepting the contention of the Petitioner in Ram Chandra A. Kamat's case the Supreme Court found that it was the duty of the detaining authority to satisfactorily explain the delay, if any, in furnishing even such documents which had been demanded. It will be relevant to quote para No. 7 and 8 of the said judgment which reads as follows: (7) It is alleged by the detenue that there had been unreasonable delay in furnishing of the statements and documents referred to in the grounds of detention. It is the duty of the detaining authority to satisfactorily explain the delay, if any, in furnishing of these documents. We are in this context not referring to the statements and documents not referred to in the grounds of detention for it may be that they are not in the possession of the detaining authority and that reasonable time may be required for furnishing copies of the relevant documents which may not be in his possession.(8) If there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied. The detention cannot be said to be according to the procedure prescribed by law. When the Act contemplates the furnishing of grounds of detention ordinarily within five days of the order of detention, the intention is clear that the statements and documents which are referred to in the grounds of detention and which are required by the detenue and are expected to be in possession of the detaining authority should be furnished within reasonable expedition."
He has also placed reliance upon a judgment rendered in case of Daya Shankar Singh vs. Union of India and others reported in 1990 volume 27 ACC page 235, the relevant paragraphs are being extracted herein below:
“4. In this connection, it would be relevant to refer to paragraphs Nos. 8 and 10 of the petition. In paragraph No. 8 of the petition, the petitioner has asserted that the custom officials of Varanasi must have forwarded the proposal to the Government and since the copy of the said proposal had not been supplied to the petitioner along with the grounds of detention, the petitioner could not make an effective representation. It was also mentioned that the order of detention had been passed after considering some documents including the proposal and since the petitioner was unable to know about those documents, he could not know whether the application of mind by the detaining authority on those material was justified or not. His contention was that despite specific requests for supply of those documents, the documents were not supplied and being unaware of the nature of those documents, the petitioner had been deprived of his right to make an effective representation. The learned counsel for the petitioner relied on paragraph 5 of the counter-affidavit filed by Dr. R. S. Asthana, Joint Secretary Home, which reads as follows:
" It is respectfully submitted that the proposal which was made confidential was sent by Collector Custom Patna vide his covering letter dated 30-1-1989.......... The proposal which was confidential contains the name of the petitioner and various other associates and also the modus operandi being adopted by him in keeping and concealing the smuggled goods. It was decided by the State Government that the disclosure of the aforesaid proposal would cause public injury as the petitioner's associates might go underground and they would have changed their modus operandi and no more watch and vigil could have been possible upon the activities of the petitioner and his associates. As such while exercising powers under Article 22(6) of the Constitution of India, the aforesaid documents was not furnished to the petitioner."
5 . On the basis of the above mentioned assertion the learned counsel for the petitioner contends that the State Government in its counter-affidavit has almost conceded that it relied upon the proposal sent to the Government by the custom officials and since the proposal which had been relied upon had not been furnished to the detenus, the order of detention should be treated as illegal. Sri A. D. Giri relied upon the judgment of this Court in the case of Jagdish alias Takru v. State of U. P. (Habeas Corpus Petn. No. 1607 of 1987) which has accepted the view canvassed by the petitioner to the extent that if such a proposal, which has been relied upon, has not been furnished to detenu then the continued detention of the petitioner is rendered illegal in spite of the plea of Article 22(6).
6. The learned counsel also relied upon yet another judgment of this Court in Habeas Corpus Petn. No. 16562 of 1988, Harish Gandhi v. Supdt., Central Jail, Naini, in which the same proposition as canvassed by him had been accepted.
7. Sri Prem Prakash, learned Additional Government Advocate, however, challenged the correctness of the aforesaid two Division Bench cases of this Court as according to him these judgments were against the judgment of the Supreme Court and few Division Bench judgments of the High Court. Sri Prem Prakash relied upon the judgment of the Supreme Court in the case of State of Bombay vs. Atmaram AIR 1951 SC 157, Lakhmir Singh vs. Union of India 1987 Cr.L.J. 421, State of Rajasthan vs. Shamsher Singh, AIR 1985 SC 1082 as also Lawrence D. Souza v. State of Bombay, AIR 1956 SC 531 (para 5) and urged that in view of these judgments of the Supreme Court we may refer this case to a larger Bench to decide whether the opinion expressed by the two Division Benches of the High Court in the case of Jagdish and Harish Gandhi (supra) are correct or not. However, since we think that this case can be disposed of on the second point, we do not consider it necessary to consider the submissions of Sri Prem Prakash relating to the correctness of the two Division Bench judgments of this Court mentioned above.
8. It is not disputed by the State that the petitioner in his representation dated 13-3-89 had very clearly stated that he wanted the documents and particulars enumerated by him in the representation to make an effective representation. The documents demanded were (1) the proposal/recommendation of the custom department (2) copy of the statement of the petitioner's mother Dhanraj Devi (3) copy of the letter sent by Custom Commissioner Patna forwarding the proposal (4) copy of the memo of arrest to know about the time/date shown therein, (5) copy of the original order passed by the detaining authority as the petitioner did not know when the original order had been made, (6) copy of the statement of the brother of the petitioner Sri Ravi Shanker Singh recorded under Section 108 of the Customs Act involving the petitioner, (7) copy of the bail application by Ravi Shankar Singh to know about the stand taken by Ravi Shankar Singh, (8) report submitted before the Screening Committee, (9) copies of the documents and particulars collected during investigation against Ganesh Prasad by the Custom Officials as the petitioner thought that on the strength of those papers he would demonstrate that he was not involved in the alleged episode and (10) name of the authority who had actually passed the order of detention.
10 . The contention of the learned counsel for the State is that since these other the documents had not been relied upon by the State while passing the order of detention, it was not necessary to supply those documents to the petitioner. It is contended by the learned Government Advocate that the petitioner, in fact, was not in any manner deprived of his right to make a representation in the absence of these documents and that these documents were just demanded by him without any valid reason.
12 . It will be relevant to refer to the following passage of the judgment of the Supreme Court in the case of Bhawar Lal Ganeshmalji v. State of Tamil Nadu, AIR 1979 SC 541. The relevant passage occurring at page 545 in the first column is reproduced below:
"We agree with the learned counsel for the petitioner that in order to make a representation against the order of detention and thus to exercise the fundamental right guaranteed by Article 22(5) of the Constitution, a detenu is entitled to be furnished with all essential particulars forming the basis of the grounds of detention. So it is that where insufficient particulars are mentioned in the grounds the detenu is entitled to call for better particulars. That is a right which flows from the constitutional right to be afforded a reasonable opportunity to make representation. Of course where the grounds are vague, no question would arise of the detenu asking for better particulars. But the present case is not a case of vague ground. The ground is specific enough. If the detenu wanted any more particulars such as the same of the intelligence officer or other information he could have well asked for the particulars before making his representation. That he never did. It was not as if any privilege had been claimed by the Government in respect of the intelligence reports. In fact, we find that the intelligence reports were produced before the learned Judges of the High Court at the hearing of the writ petition there. There was no complaint before us that the detenu or his counsel wanted to peruse the reports and were denied the opportunity of doing so. We do not think that the detenu could be said to have been denied a reasonable opportunity of making a representation merely because particulars which he never desired in respect of a ground which was not vague were not furnished to him."
Although in this case of the Supreme Court, it was found by their Lordships of the Supreme Court that the detenu was not denied the reasonable opportunity of making representation, a perusal of this passage clearly indicates that if the detenu wanted any more particulars, then those particulars ought to have been supplied to him. Similarly in the case of Lawrence D. Souza v. State of Bombay (supra) first column it was observed :
"The necessity for such a communication would arise only if the detenu, feeling the grounds to be vague, asks for particulars. An obligation tocommunicate the decision not to disclose facts considered prejudicial to public interest may well be implied in such a situation. But in the absence of any such request by the detenu, the non-communication of the decision cannot be held to have hampered his constitutional right of representation under obligation to communicate be implied in these circumstances."
"In the present case, there is no merit in the contention. If the appellant had exercised his right to ask for particulars at the time, from the detaining authority there can be no doubt that he would have been furnished then the very information which he has been supplied in paragraph 12 of the under Secretary's affidavit in answer to para 15(g) of the appellant's petition both of which have been already set out above."
13. All these observations were made with reference to the privilege which could be claimed by the State under Article 22(6) of the Constitution but it also implies that the Supreme Court was clearly of the view that if a detenu asks for some particulars, then an obligation is cast on the detaining authority to inform the detenu whether such material is being supplied to him and if not, then on what ground. Admittedly in the present case, no information was addressed to the petitioner by the detaining authority as it appears that his request for the documents being furnished to him had not been considered. Shri Prem Prakash, learned Additional Government Advocate contended that the statement made by the petitioner's brother Ravi Shankar Singh and his mother were in respect of the recoveries relating to Ravi Shanker Singh alone, and it has no nexus with the recovery of the petitioner. Be that as it may, the fact that, the detaining authority was under obligation to inform the petitioner in this regard and in any case, since the Government was not claiming privilege under Article 22(6) of the Constitution that it was not in the public interest to have furnished those documents to the petitioner, it will have to be held that the petitioner could not have the satisfaction of making an effective representation. This was the minimum guarantee which was guaranteed to a person under Article 22(5) of our Constitution. This was admittedly denied to the petitioner. Consequently, the continued detention of the petitioner in this case is rendered illegal.”
We have heard Sri Alok Ranjan Mishra, learned counsel for Union of India and we have also heard Sri Patanjali Mishra, learned AGA, who however have not been able to show anything to the contrary to what has been stated by Mr. D. S. Mishra. They have not been able to show anything contrary with regard to the law as cited, as has been placed before this Court by Sri D. S. Mishra.
In view of the aforesaid facts and circumstances, case for grant of indulgence is made out.
The petitioner who is detained in custody in pursuance of the detention order dated 08.07.2018 and subsequent orders by means of which the petitioner has been abstained/detained is hereby released from custody. He shall be released from custody forthwith until and unless wanted in some other case. The Detention Order dated 8.7.18 and all subsequent orders are hereby quashed.
The habeas corpus writ petition is allowed.
Order Date :- 19.12.2018
V.S.Singh (Ghandikota Sri Devi,J.) (Vipin Sinha,J.)