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1984 DIGILAW 452 (ALL)

Ali Hasan Khan v. State Of U. P.

1984-07-02

KAMLESHWAR NATH

body1984
JUDGMENT KAMLESHWAR NATH, J. 1. THE order of detention of Kasim Khan, the nephew of petitioner Ali Hasan Khan, passed on 19-3-1984 under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as COFEPOSA) followed by his physical detention since 25-3-1984, confirmed by the State Government orders dated 9-5-1984, has been sought to be questioned and the detenu to be released by this petition for a writ of Habeas Corpus. 2. ON 15-9-1983 at about 12.30 Ambasdor Car USS 5723, carrying 4 persons, including the detenu, was called to stop at Katra Chauraha in Basti by a police party. The inmates of the Car fired at the police party. By return fire, the car was brought to a forced stop, causing a collision and some injuries. ON search of the persons and vehicle, a country made unlicensed pistol with some cartridges and foreign goods worth Rs. 36,013/- were recovered from the person of the detenu and the interior of the car respectively. The recovered goods and the car-occupants were handed over to the Custom authorities. On 16-9-1983 the detenue made a statement to the Custom authorities admitting that the foreign goods were purchased by him from Chand Stores, Krishna Nagar, Nepal, and were being carried for sale in Rahmani Market Kanpur. Further statement of the detenu was taken on 19-9-1983. 3. DETENTION order dated 19-3-1984 (Annexure-1 to the petition) issued by the Joint Secretary (Home) to the State Government of U. P. was served upon the detenu on 25-3-1984 and he was detained in the Central Jail Agra. Shortly thereafter, the grounds of detention were served upon the detenu who sent information by post to the petitioner. The detenu was given an opportunity to make his representation. 4. ACCORDING to the petitioner's affidavit, he was not permitted to interview the detenu in Central Jail Agra on 8-4-1984 for lack of permission of District Magistrate, Gonda. The petitioner applied for permission to District Magistrate Gonda on 11-4-1984, but no orders were communicated. The detenu was given an opportunity to make his representation. 4. ACCORDING to the petitioner's affidavit, he was not permitted to interview the detenu in Central Jail Agra on 8-4-1984 for lack of permission of District Magistrate, Gonda. The petitioner applied for permission to District Magistrate Gonda on 11-4-1984, but no orders were communicated. On 12-4-1984 the petitioner made a petition to the Home Secretary of the State Government by Registered post informing that no Pairvi could be done for the detenue because of inability to interview the latter; it was requested that the Officers of Central Jail Agra be directed to permit the petitioner to interview the detenu so that necessary Pairvi in the matter of his detention might be done. ACCORDING to the petitioner's affidavit, he did not receive any reply to the petition. In the meantime, the detenu was transferred to (Unnao Jail). It is stated that, for these reasons, no representation against detention etc. could be made. 5. HOWEVER, on 25-4-1984, the detenu was produced before the Advisory Board, but in the meantime he did not have the opportunity even of obtaining legal advice. 6. WHEN the detenu appeared before the Advisory Board on 25-4-1984, he submitted a representation to the Board with a covering letter addressed to the Secretary (Home) with the request that his representation may be considered by the State Government. In the representation, the facts set forth above and relied upon by the detaining authority were substantially denied. The Advisory Board, perhaps, found that there were sufficient grounds for the detention of the detenu and submitted its opinion to the State Government accordingly. On 9-5-1984 the State Government, relying upon the opinion of the Advisory Board, confirmed the order of detention. 7. THE following points have been raised in the petition:- 1. THE opposite parties have not filed any counter affidavit, hence the facts stated in the petitioner's affidavit and supplementary affidavit must be accepted. It would be clear from the decision in the cases of Mehta Parikh and Co. v. Commissioner Income Tax Bombay, 1956 SC 554 and Juggial Kamla Pat v. Ram Janki Gupta, 1962 All (DB) 407 that ordinarily a statement made in an affidavit, and not rebutted by a counter affidavit, ought to be accepted. Nonetheless, the court is not bound to accept every statement simply because it is unrebutted. v. Commissioner Income Tax Bombay, 1956 SC 554 and Juggial Kamla Pat v. Ram Janki Gupta, 1962 All (DB) 407 that ordinarily a statement made in an affidavit, and not rebutted by a counter affidavit, ought to be accepted. Nonetheless, the court is not bound to accept every statement simply because it is unrebutted. In the case of Chaturbhuj Pandey v. Collector Raigarh, 1969 SC 255 it has been held that the evidence only by one party without evidence in rebuttal, need not necessarily be accepted ; the -Judges are bound to call in aid their experience of life and test the evidence on the basis of probabilities. It is in this light that the petitioner's affidavit has to be appreciated. THE opposite parties were granted opportunity to file counter affidavit by this Court's orders' dated 23-5-1984, 7-6-1984 and 18-6-1984. In the last date, fixing the case for final disposal on 28-6-1984, it was mentioned that it was expected that the State would not ask for any further time ; and indeed they did not. 2. THE detenu did not get a reasonable opportunity to make his representation ; nor he could avail of legal advice. THE statement in the petitioner's affidavit that the Superintendent of Central Jail Agra did not permit him to interview the detenu must be accepted because Rule 15-A of U.P. Security Prisoners (COFEPOSA) Rules 1976 requires prior approval of the State Government for any interview with detenu. He must have applied for the permission of the State Government and there is no reason to disbelieve his version that he did not receive any order of the State Government on the subject. THE result is that although the detenu had requested the petitioner to do Pairvi for him, the latter could not. THE right to consult a legal practitioner of one's choice is a fundamental right under Article 22 (1) of the Constitution. THE detenu would have wanted to consult a legal practitioner; there is no reason to disbelieve the petitioner's version that on account of opposite parties' failure to accord the requisite permission to interview the detenu, consultation with a legal practitioner has not been possible. Inability to be represented through a legal practitioner before the Advisory Board is not to be confused with the fundamental right to consult one. Inability to be represented through a legal practitioner before the Advisory Board is not to be confused with the fundamental right to consult one. THE former is excluded (subject to limitations) by the specific provisions of Sec. (?) (e) of the COFEPOSA Act ; the latter is protected by Constitution. I, therefore, agree with the learned counsel for the petitioner that the detenu did not get an adequate and reasonable opportunity of making a representation against his detention. 3. THE detenu's representation has not been considered by the detaining authority. THE representation was submitted by the detenu to the Advisory Board with a covering letter to forward it to the State Government. It may bo said that the representation to the State Government because it is not shown that the Advisory Board was bound to forward it to the State Government ; nor is it shown that the Advisory Board actually forwarded it to the, State Government. THE Statement regarding making representation to the State Government is to be founded in petitioner's supplementary affidavit; it only says that the representation addressed to the Home Secretary of the State Government was submitted to the Advisory Board. There is no further mention that the Advisory Board forwarded it to the Home Secretary or that the latter actually received it. 8. THERE is no doubt that order dated 9-5-1984 (Annexure S-1 to the Supplementary affidavit) of the State Government does not mention a word about the representation made by the detenu; it may, therefore, be safely held that the State Government has not considered the representation of the detenu. It is well-settled that the detaining authority has to consider and take a decision on the detenu's representation independently of the opinion of the Advisory Board as held in the case of Pabitra N. Rana v. W. O. I. 1980 SCC (Cr) 450. In the case of Tara Chand v. State of Rajasthan, (1981) 1 SCC 416 (Para 9) it has been held that the mere fact that the meeting of the Advisory Board had been held, earlier than the making of the representation, was not a valid excuse for the detaining authority in not considering the representation of the detenu at all. In other words, a representation has to be considered even after the opinion of the Advisory Board. In other words, a representation has to be considered even after the opinion of the Advisory Board. That has not been done in the present case; but the position of the opposite parties seems to be protected in the particular facts and circumstances of this case in this regard, inasmuch as the material on record is not enough to establish that the representation dated 23-4-1984, submitted by the detenu to the Advisory Board, did reach the opposite parties before the order dated 9-5-1984 was passed. Even so, in view of the finding that the detenu did not get an adequate and reasonable opportunity of making a representation against his detention, this petition must succeed. 9. BEFORE parting with this case, I would like to say that the State Government would do well to enquire into the circumstances in which a counter affidavit was not filed despite full opportunity given by this Court; or how the petitioner's petition for an interview with the detenu, in order to do Pairvi for him, was dealt with and why. After all, the State has to deal fairly with every citizen; and where the freedom of the citizen is in jeopardy the State has to be fully watchful and circumspect. It is as much the duty of the State not to permit a real culprit to escape by default as for the Courts to guard that no person's liberty is to be curtailed without due authority of law. 10. THE petition is allowed and orders of Kasim Khan's detention, contained in Annexure-1, dated 19-3-1984, and Annexure S-1, dated 9-5-1984, are quashed, and the said detenu is directed to be set at liberty forthwith. Petition allowed.