2019 (2) TMI 2030

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

....tset, it may be noted that as far as the said FIR is concerned, copy of which has been annexed as Annexure no.7 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 has not applied for bail in Case Crime No.68 of 2018. He was in judicial custody in Case Crime No.24 of 2018 and 154 of 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. 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....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

....tatement 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:- A perusal of the above, clearly shows th....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

....cifically 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) ....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

....med 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, reported in 1992 (34) ACR, 70 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 Petiti....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

....tention 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 docu....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

.... 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 judgment....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

....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 n....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

....t 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....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

Previous Next

Contact Us At :

FAQs :

Most Asked Video Tutorials :

Submit Feedback/Suggestion :

2019 (2) TMI 2030