SHAMS IQBAL v. STATE OF U. P. — 1985 DIGILAW 858 (ALL)

B. L. YADAV, J. ( 1 ) THE present Habeas Corpus Petition is directed against the detention order dated 23. 1. 85 passed by the District Magistrate, Jaunpur, under Section 3 (1) of the National Security Act, 1980, (for short the Act ). ( 2 ) THE facts of the case are in a very narrow compass and they are these. The petitioner was earlier detained in the year 1982, under section 30) of the Act and he filed a Habeas Corpus petition in this Court, which was allowed on 20. 12. 82. Again the petitioner was detained by order dated 23. 1. 85 under section 3 (3) of the Act, (Annexure ito the Petition) and the grounds of detention were given in Annexure 2 to the petition. The grounds of detention translated in English are set out below: - (i) You looted a sum of Rs. 10, 569/- from the box of a petrol pump and a charge under section 392 I. P. C. was framed; (ii) On 26. 4. 82 at about 1. 45 P. M. at Badlapur Parao, P. 5. Kotwali, being armed with gun and bomb terrorised the public and attacked the bus No. U. T. N. 6527 and charges framed were under sections 307/427, I. P. C. and the case is pending; (iii) On 7. 6. 82 at about 6. 00 P. M. at Marhiaum Ka Parao, P. 5. Kotwali, you alongwith your friends followed a motorbike and fired at it and a criminal case was pending against you; (iv) On 7. 4. 83 at about 11. 45 A. M. at Harlal Ka Road, you along with your friend armed with rifle and country made pistol etc. attacked Uma Shankar and started enquiring from him about Arjun Yadav and a criminal case under sections 147/452/148/149/ 504/506, I. P. C. was pending; (v) On 27. 4. 84 at about 9. 00 A. M. at Machchli Shahr Parao, you along with your friends attacked Vinod Kumar Singh and threw a bomb and opened fire from your rifle and a case under section 307 I. P. C. was pending against you; (vi) Similarly on 27. 12. 84 at about 11. 4. 84 at about 9. 00 A. M. at Machchli Shahr Parao, you along with your friends attacked Vinod Kumar Singh and threw a bomb and opened fire from your rifle and a case under section 307 I. P. C. was pending against you; (vi) Similarly on 27. 12. 84 at about 11. 15 A. M. at Mohalla Katghara, on the eye of Parliamentary elections, you along with your friends snatched away the bundle of ballot papers from the Presiding Officers and after putting the seal on the same illegally inserted the ballot papers inside the ballot box and a case under section 395 was pending; (vii) On 27. 12. 84 on the second round of Parliamentary elections at village Muradganj, Polling Booth No. 168, at about 1. 00 P. M. you along with your friends armed with pistol and bomb, hit the Presiding Officer and by force snatched away the ballot papers and after putting the seal on them inserted the same in the ballot box and a criminal case under sections 395/397 was pending; (viii) On 27. 12. 84 at the time of Parliamentary elections, you along with your friends, armed with pistol, created a problem for law and order at a number of polling booths and from different polling stations snatched away ballot papers and after putting seal inserted the same into ballot box and on being resisted by the police of P. 5. Gora Badshahpur, you opened fire along with your friends and a case under sections 395/397, I. P. C. was pending; and (ix) As it was obvious from a report of the Superintendent of Police dated 22. 1. 85 that you had moved an application for bail and there were sanguine hopes for the bail application being allowed, hence keeping in view your criminal antecedents and as you were acting in a manner prejudicial to the maintenance of public order, hence it was not safe to keep you outside jail and the order of detention was required. ( 3 ) THE detention order was served on the petitioner. ( 3 ) THE detention order was served on the petitioner. The grounds of detention were disclosed to him and in view of section 8 of the Act, he was also directed to make representation against the order of detention to the State Government and his case would be referred to the Advisory Board under section 10 of the Act and in case he wants personally to be heard in view of section 11 (1) of the Act, he should writ clearly in his representation and that he should make representation through the Superintendent, Jail to the State Government. The petitioner made a representation to the Advisory Board on 5. 2. 85 through the Superintendent, Jail Jaunpur. Again he made another application (Annexure 32 to the Petition) making a prayer that he has been severely beaten by police and he is not in a proper mental condition and he was afraid that he would not be able to represent his case personally in a proper way; Consequently he wants that his friend Sri Shyam Narain Lal may be permitted to represent his case before the Advisory Board. ( 4 ) ACCORDING to the petitioners case he was not afforded any opportunity of being he are through Sri Shyam Narain Lal, non Advocate friend and the Advisory Board was of the view that there was sufficient cause for his detention being continued for a period of one year. Through the present petition the petitioner has challenged the order of detention. ( 5 ) WE have heard Sri is. Sengar, learned counsel for the petitioner and Sri G. Bhatt, learned counsel for the State of UP. Sri Sengar urged before us that ground Nos. 1 to 4 were covered by the earlier petition and hence they cannot be considered for the purposes of present petition and the remaining grounds Nos. 5 to 9 do not relate to public order rather they relate to law and order and in connection with these grounds the cases alleged were already pending trial. Hence there was no valid ground for the order of detention. It was further urged that for some grounds (grounds 1 to 4) which were state were taken into account by the detaining authority. Hence the action of detaining authority was prejudiced by the consideration of irrelevant grounds and the order of detention was vitiated. Hence there was no valid ground for the order of detention. It was further urged that for some grounds (grounds 1 to 4) which were state were taken into account by the detaining authority. Hence the action of detaining authority was prejudiced by the consideration of irrelevant grounds and the order of detention was vitiated. The petitioner was not afforded opportunity of hearing before the Advisory Board in as much as neither Sri Shyam Narain Lal, a friend of the petitioner, through whom he wanted to be heard, was called for nor any opportunity was given. Whereas hearing by Advisory Board was mandatory in view of section 11 (1) of the. Act. Reliance was placed on Abdul Jabbar v. State of Rajasthan. Sri Bhatt, learned counsel for the State on the other hand urged that the petitioner was not denied opportunity of being heared through his friend and the petitioner did not take any steps to summon his friend Sri Shyam Narain Lal on the date fixed before the Advisory Board. He heavily placed reliance on A. K. Roy v. Union of India. ( 6 ) HAVING heard learned counsel for, the parties we are of the opinion that the argument as to whether the petitioner was afforded opportunity of being heard before the Advisory Board itself is sufficient for the disposal of the petitioner and we need not go into other arguments urged on behalf of the petitioner. ( 7 ) IT was stated in paras 25 and 27 of the petition that the petitioner was not afforded opportunity of being heard through his friend Sri Shyam Narain Lal. In reply to that averment it counter affidavit was filed on behalf of opposite party No. 4 (Advisory Board) and in para 8 of the counter affidavit it was alleged that no legal practitioner was allowed before the Board and the petitioner appeared before the Board and produced records in answer to questions and in some cases friends of detenus were, permitted to appear before the Board. But the requests are considered on merits. But the requests are considered on merits. In the instant case as the detenue himself appeared and was heard, hence opportunity was afforded, and the petitioner was even asked to adduce additional evidence and inform his next friends, but the petitioner refused to produce him before the Board and in case any request was made on behalf of the petitioner for the adjournment of case, the Board would have considered the same. Hence there was no denial of opportunity of hearing. ( 8 ) IN reply to para 8 of the counter affidavit on behalf of the Advisory Board stating that sufficient opportunity was given to the petitioner for being heard before the Advisory Board, was denied in rejoinder affidavit filed on behalf of the petitioner. A supplementary rejoinder affidavit was also filed and in para 4 thereof it was alleged on behalf of the petitioner that the contents of para 8 of the affidavit on behalf of the Advisory Board were not correct. The State was represented by Sri C. P. Misra, City Magistrate, Jaunpur and the petitioner remained before the Board hardly for a few minutes and was not heard even for a second on merits of the case. The petitioner insisted that he should be heard through Sri Shyam Narain Lal, nonadvocate friend of the petitioner but his request was turned down. ( 9 ) WE granted sufficient opportunity to the State to rebut para 4 of the supplementary rejoinder affidavit, inasmuch as on 5. 8. 85, learned counsel appearing, for the State prayed for and was granted two weeks time to file a supplementary counter affidavit and the petitioner was directed to file supplementary rejoinder affidavit if he so chose. But no supplementary counter affidavit was filed on behalf of the State. Again on 21. 8. 85 when the case was listed, we observed in the order sheet that the Government, Advocate did not file any supplementary counter affidavit as directed earlier on 5. 8. 85 by us and the counsel for the State prayed for and was granted ten days time and no more for filing supplementary counter affidavit and the case was directed to be listed on 3. 9. 85. When the cast was listed, thereafter for hearing before us, no supplementary counter affidavit was filed on behalf of the State. 8. 85 by us and the counsel for the State prayed for and was granted ten days time and no more for filing supplementary counter affidavit and the case was directed to be listed on 3. 9. 85. When the cast was listed, thereafter for hearing before us, no supplementary counter affidavit was filed on behalf of the State. Under these circumstances, even though again a prayer was made for further time, but as on 21. 8. 85 we had granted ten days and no more time for filing the supplementary counter affidavit, there was no reason to grant any further time for filing supplementary counter affidavit to the State. Hence we had no option but to proceed to decide the petition on the basis of existing affidavits filed by the respective parties. ( 10 ) SECTION 11 (1) of the Act contains specific provision for hearing to the detenus by the Advisory Board and the Advisory Board was to submit its opinion only after hearing the detenu. In the instant case while preferring the representation before the Advisory Board, the petitioner had already made a prayer that as he was severely beaten by police and was not in a position to represent his case personally, hence he may be heard before the Advisory Board through his friend Sri Shyam Narain Lal. As if was stated in para 4 of the supplementary rejoinder affidavit filed on behalf of the petitioner that neither the petitioner was heared by the Advisory Board nor his friend Sri Shyam Narain Lal was summoned and his request to summon him was turned down by the Advisory Board and since these allegations remained uncontroverted inspite of time being granted twice to the State, hence we have no option but rely upon the same. As the right of hearing to the detenu was a statutory right and the same was denied, hence the report submitted by the Advisory Board cannot be said to be legal. Right of hearing through a practitioner has been recognised under Article 22 of the Constitution. ( 11 ) UNDER the American Constitution the concept was that right to in of a counsel was of fundamental character as discussed by C. Herman Pritchett in his American Constitution, Ilird Edition on page 451. Right of hearing through a practitioner has been recognised under Article 22 of the Constitution. ( 11 ) UNDER the American Constitution the concept was that right to in of a counsel was of fundamental character as discussed by C. Herman Pritchett in his American Constitution, Ilird Edition on page 451. Referring to Powell v. Albama, it was held as follows: - Even an intelligent and educated lay man has small and sometimes no skill in the science of law. If charged with a crime he is incapable, generally to determine for himself whether indictment is good or bad. He is unfamiliar with the rules of evidence. ( 12 ) UNDER the circumstances of that case it was held that failure of the trial court to give reasonable time and opportunity to secure counsel was a clear denial of due process and if the counsel was to be engaged, it was held that it must be an effective appointment of the counsel. Similarly at page 452, it was observed as follows: - Whether requested or not, to assign counsel for him is the necessary requisite of due process of law, and that duty is not discharged by an appointment at such time of under such circumstances as to preclude the giving of effective aid in the trial and preparation of the case. ( 13 ) HENCE it was dear that if the opportunity of hearing was being given or a counsel was being provided to a detenu, it must be at a time so as to give effective aid in preparation and trial of the case. ( 14 ) IN the instant case it was statutory requirement of section II of the Act, that the hearing of the petitioner was mandatory in case he desired to be heard and we are of the opinion that if the petitioner wanted personally to be heard, there was no occasion for the Advisory Board not to hear the petitioner and that hearing was such comprehensive that it includes hearing through his friend. In the instant case the petitioner desired to be heard through Sri Shyam Narain Lal, his friend and as he was severely beaten by police and was in a position to represent his case before the Advisory Board, hence it was bounden duty of the Advisory Board to have heard the petitioner through his friend. In the instant case the petitioner desired to be heard through Sri Shyam Narain Lal, his friend and as he was severely beaten by police and was in a position to represent his case before the Advisory Board, hence it was bounden duty of the Advisory Board to have heard the petitioner through his friend. ( 15 ) IN Abdul Jabbar v. State of Rajasthan (supra), it was held that the right of a detenu to be represented by a friend, who in truth, and substance, is not a legal practitioner, cannot be disputed and no reasons were given by the Board why it was denied to the petitioner. There was nothing to suggest that the petitioner wanted to be represented by any so-called friend, who in reality was a legal practitioner. Even the name of the friend in that case was not clear. Their Lordships of the Supreme Court held that the Board could have asked the petitioner to do so by furnishing the name of the friend on or earlier to 5th April, 1982 before the commencement of the proceedings and it was held ultimately on page 506, para 3 as follows: The procedure followed by the Advisory Board which involve denial of a valuable right to the petitioner, unquestionably vitiates the entire proceedings before it and, therefore, the continued detention of the petitioner from 5. 4. 82 would be illegal and thes ame will have to be quashed ( 16 ) HENCE the detention of the petitioner in pursuance of the report of the Advisory Board became manifestly erroneous. ( 17 ) AS regards A. K. Roy v. Union of India (supra), heavily relied upon by learned counsel for the respondents, suffice it to state that this case was considered by their Lordships of the Supreme Court in Abdul Jabbar v. State of Rajasthan (supra), and the observations in the case of A. K. Roy have been quoted at page 505 (para 2), which were as follows: - Every person whose interest are adversely affected as a result of proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend, a detenu taken straight from his cell to the Boards room may lack case and composure to present his point of view. He may be tongue tied, nervous, confused or wanting intelligence. He may be tongue tied, nervous, confused or wanting intelligence. ( 18 ) IN Pett v. Grey Hound Racing Association, as referred to in the case of A. K. Roy v. Union of India (supra), it was held that if justice is to be done, he must at least have a help of a friend who can assist him to give coherence to his strange and wonderful ideas. In cerebration makes a man and his thoughts disheveled. ( 19 ) IN view of the observations made in A. K. Roy as case, relied upon by the learned counsel for the respondents, having been referred to and considered in Abdul Jabbars case (supra), we are of the considered opinion that there is nothing in A. K. Roys case which can help learned counsel for the respondents in support of his contention. ( 20 ) CONSIDERING the facts and circumstances of the case and the mandatory provision of section 11 (1) of the Act, we are of the opinion that as the petitioner had prayed for assistance of his friend Sri Shyam Narain Lal to be heard on his behalf, it was mandatory on the part of the Advisory Board to have taken steps to procure the attendance of Sri Shyam Narain Lal as desired by the petitioner. No supplementary counter affidavit has been filed on behalf of the State in spite of time being granted on a number of occasions. Hence we are left with no option but to rely upon the allegations made in para 4 on the supplementary rejoinder affidavit and as the petitioner was not heard through his friend, hence the entire proceedings before the Advisory Board were vitiated. Hearing any person or through next friend was an essence of the fair play and was incompliance of the principles of natural justice. ( 21 ) LEARNED counsel for the respondents submitted at the close of his argument that even if the court finds that petitioners request for being heard through next friend was rejected incorrectly by the Advisory Board, the matter should go back to the Advisory Board for being heard again. ( 21 ) LEARNED counsel for the respondents submitted at the close of his argument that even if the court finds that petitioners request for being heard through next friend was rejected incorrectly by the Advisory Board, the matter should go back to the Advisory Board for being heard again. When the procedure followed by the Advisory Board involves denial of a valuable right of the petitioner, the entire proceedings before the Advisory Board becomes illegal and, therefore, the continued detention of the petitioner would become illegal and manifestly erroneous and the same will have to be quashed. ( 22 ) IN view of the facts and circumstances stated hereinbefore, the order detaining the petitioner cannot be sustained. ( 23 ) THE petition accordingly succeeds and is allowed. The order of detention dated 23. 1. 85 passed by the District Magistrate, Jaunpur, is hereby quashed and the petitioner is directed to be set at liberty forthwith if he is not required to be detained in any other case. We, under the circumstances of the case, make no order as to costs. .