DHARAM PAL YADAV v. UNION OF INDIA — 1991 DIGILAW 1548 (ALL)

By this Habeas Corpus Writ Petition the petitioner Dharampal Yadav challenges the validity of his detention in pursuance of the order dated 21-8-1991 passed by the District Magistrate, Bulandshahar under Section 3 (2) of the National Security Act. 2. To begin with it may be mentioned that learned Advocate General Sri V. K. S. Chaudhary raised a preliminary objection about the maintain ability of the writ petition here at Allahabad High Court on the ground that this was a matter which could have been filed and entertained only by the Lucknow Bench of the Allahabad High Court. The basis of objection to entertainment of the habeas corpus petition was the fact that the petitioner has to be detained at District Jail Sultanpur. That the detention order against the petitioner stated the learned Advocate General contended that Sultanpur being situated within the jurisdiction of Lucknow Bench, and as a writ of habeas corpus has necessarily to go to the Jailor where the petitioner is confined, and that Jailor in this case being the Superintendant of the Sultan pur District Jail, the cause of action for the habeas corpus arose only against the order directing detention of the petitioner at Sultanpur, and hence the Lucknow Bench alone could issue a writ to the Superintendent of Sultanpur Jail. 3. Apart from the fact that admittedly the petitioner is now detained in the District Jail, Bulandshahr, the argument of the learned Advocate General cannot be accepted as the order for detention was passed by the District Magistrate, Bulandshahr on the basis of the activities of the petitioner within the District of Bulandshahr. Bulandshahr being outside the jurisdiction of Lucknow Bench, and cases from Bulaudshahr being filed here at Allahabad in the High Court. , it is clear that part of the cause of action for filing this Habeas Corpus petition arose within the jurisdiction of this Court. Bulandshahr being outside the jurisdiction of Lucknow Bench, and cases from Bulaudshahr being filed here at Allahabad in the High Court. , it is clear that part of the cause of action for filing this Habeas Corpus petition arose within the jurisdiction of this Court. In this connection it will be relevant to refer to Article 226 (2) of the Constitution of India which reads as follows : " (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, not with standing that the set of such Government or authority or the residence of such person is not within those territories. " Consequently, the preliminary objection raised by the Advocate General is not acceptable, 4. It appears that the petitioner was wanted in several cases which are mentioned in grounds of detention concerning his activities on 20-5-1991 during the polling in the district of Bulandshahr. These activities of 20th May, 1991 coupled with some activities of the petitioner dated 16-7-1991, 21-7-1991, 22-7-1991, 3-8-1991 and 5-8-1991 have been made the grounds for passing the order of detention against the petitioner. The orders of detention were passed on 21-8-1991 directing the petitioner to be detained in District Jail, Sultanpur where the petitioner is alleged to have been arrested earlier on the same day at 2. 15 p. m. in connection with a case under Sections 353, 404, 506, 216 I. P. C. read with Section 182 of the Motor Vehicles Act and Sections 5/177/180 of the Motor Vehicle Act. As the present petition is not being disposed of on the question of relevancy of the grounds of detention to the object of detention viz. , the maintenance of the Public Order, we are not quoting the grounds of detention which runs over almost 10 foolscape pages. 5. This petition was moved on 19-9-1991 when the respondents were granted time to file affidavit. Number of supplementary affidavits, supple mentary counter-affidavit and rejoinder-affidavits have been exchanged between the parties. , the maintenance of the Public Order, we are not quoting the grounds of detention which runs over almost 10 foolscape pages. 5. This petition was moved on 19-9-1991 when the respondents were granted time to file affidavit. Number of supplementary affidavits, supple mentary counter-affidavit and rejoinder-affidavits have been exchanged between the parties. Consequently, despite the fact that there was no formal order of admission of this petition, as agreed by the learned counsel for the parties, we have heard this petition for its disposal on merits at the stage of admission itself. 6. We have heard Sri Prem Prakash, learned counsel for the petitioner Sri V. K. S. Chaudhary, learned Advocate General and thereafter the learned Government Advocate at some length on various points which were raised in this petition. 7. 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 informa tions, 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. 8. The fact relating to this representation being made is not disputed. In para-17 of his petition the petitioner stated that the detaining authority did not bother to even communicate the petitioner as to what decision had been taken upon the aforesaid application. In reply to this assertion made in para-No. 17 of the petition, Sri L. B. Tewari, District Magistrate Bulandshahr stated as follows : - 16. "as the documents mentioned in the application dated 25-8-1991 are concerned most of the documents have been given to him at the time of execution of the detention order only the report of two N. C. R. s of Police-Station Gulawati were not given to the peti tioner which, however, sent to him along with a letter on 12-9-1991. Some of the other documents demanded by the petitioner have no bearing on the present detention. The petitioner, however, was in a position to obtain these documents himself through his counsel as they all were public documents. Some of the other documents demanded by the petitioner have no bearing on the present detention. The petitioner, however, was in a position to obtain these documents himself through his counsel as they all were public documents. This fact can further be confirmed by a report of the Superintendent of District Jail, Sultanpur in which he has intimated that the documents sent along with letter dated 10-9-1991 were received by the petitioner and after going through the documents he refused to sign regarding the receipt of the same. " 9. We also went through the application dated 25-8-1989 which has been annexed with the petition as Annexure-3. A perusal of that application indicates that apart from various informations which had been asked for the petitioner demanded at least 32 other documents to be furnished to him to enable him to make an effective representation. We asked the learned Advocate General to let us know the factual position whether any of these documents had been really given to the petitioner or furnished to him at any stage before the application for these documents was made by the peti tioner. Learned Advocate General assigned by his other colleagues went through his record and informed us that barring the statement of Ram Pal Disti and the two N. C. R. s dated 22-7-1991 of Police Station Gulawati made by Hari Pal and Krishuapal, no other documents had been furnished to the petitioner along with the grounds of detention or at any time either prior to the making of the application or there after. 10. 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 1983 SC page 765. 11. 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 1983 SC page 765. 11. 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 respon dent - setting therein that detenu desired to make a representation against the cider of detention but found that without the copies of document referred to in the grounds of detention order, it was not possible for him to make an effective representation. 12. The copy of these documents was demanded by the petitioner through his counsel on 7-9-1979. 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 who was supposed to supply the copies of documents and the statements 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, 28-9-1979 and 29-9-1979. Thereafter a representation was made by the detenu on 5-10-1979. 13. Accepting the Contention of the petitioner in Ramchandra A. Centals 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 fc oi the said judgment which reads as follows: " (7) It is alleged by the detenu 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" (Italicis ed by us ). (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 detenu are expected to be in possession of the detaining authority should be furnished within reasonable expedition. " 14. The learned counsel relied on the abovementioned passage of the Supreme Court and said that even those documents which were not referred to in the grounds of detention when demanded the detaining authority was required to furnish their copies, although they were not in his possession. In this connection learned counsel relied further on para No. 10 of the aforesaid judgment, the relevant portion whereof reads as under : - "it may not be necessary for the detaining authority to supply copies of all the documents relied upon in the grounds of detention at the time when the grounds are furnished to the detenu but once the detenu states that for effective representation it is necessary that he should have copies of the statements and documents referred to in the grounds of detention, it is the duty of the detaining authority to furnish them with reasonable expedition. The detaining authority cannot decline to furnish copies of the documents on the ground that the grounds were sufficiently detailed to enable the petitioner to make an effective representation. In this case the detaining authority should have taken reasonable steps to provide the detenu or his advocate with the statements and documents as early as possible. (Stalicised by us ). A perusal of the abovementioned case leaves. no room for doubt that the detaining authority could not decline to furnish copies of the documents to the petitioner once they were demanded. 15. The learned counsel for the petitioner has also relied upon the observation of the Supreme Court in the case of Hari Das Arnar Chand Shah v. K. L Verma and others, reported in AIR 1989 SC page 497 : 19:9 JIG 123 (SC ). 15. The learned counsel for the petitioner has also relied upon the observation of the Supreme Court in the case of Hari Das Arnar Chand Shah v. K. L Verma and others, reported in AIR 1989 SC page 497 : 19:9 JIG 123 (SC ). In which case of Ashok Kumar v. Union of India of the Supreme Court has been referred to in para 10 of the said judgment, A perusal of the judg ment indicates that the detenu had demanded Bank Pass Books of the detenu and his wife seized in the course of search of some house from where foreign currency as well as pumary gold in foreign markings had been recovered. The judgment further goes to indicate that the detenu in that case had made an application for furnishing the pass book to enable him to make an effective representation against the order of detention alleging that the house from where the recovery was alleged did not belong to or owned by the detenu. The Court in the case of Ashok Kumar had found that non-supply on the pass book infringed the detenus right to make an effective representation. 16. It will also be relevant to quote the following passage from the judgment of Justice Sawant as he then was in the case of Mohd. Hussain v. Secretary Government of Maharstra, Home Department- Mantralay Bombay and others, resported in 19&2 Cr LJ, page 1948 wherein, after referring to various Judgments of the Supreme Court, the law in this connection was summarised as follows: " (a) the copies of all the documents which are relied upon in or which form the basis of the grounds of detention must be supplied to the detenu along with the grounds of detention; (b) the documents which are not relied upon or do not form the basis of the detention order but which are merely referred to casually or incidentally as and by way of narration of facts in the grounds of detention need not be supplied to the detenu, (c) however, even such documents if the detnu requests for the same, hate to be supplied to Mm, for whether they are relevant to his defence or not is for the detenu to decide and not for the detaining authority to Judge. " (Italicised by us) 17. " (Italicised by us) 17. A Division Bench of this Court in the case of Bhawani Shanker v. State of U. P. , reported in 1982 Cr LJ page 1830 also found that in spite of detenus damand to supply to him the copies of the judgement acquitting the detenu, the copy being not supplied to him, affected the detenus right to make an effective representation which rendered the continued detention of the peti tioner bad in the eyes of law. Similar view has been taken by the Division Bench cases of this Court in the case of Daya Shanker Singh v. Union of India, reported in 1990, Cr LJ page 1647; (1990) JIC 33 (All), and in the case of Sanjeev Kumar Jain v. State of U. P. and other, reported in 1980 ALJ page 488. 18. The learned Advocate General, however, contended that non-supply of these documents really did not affect the right of representation to the detenu, more so as the detenu in fact did make a representation letter on 3-9-1991. In this connection learned Advocate General relied on the judgment of Qamrunnisha v. Union of India, reported in AIR 1991 SC page 1646. Relevant passage on which the learned Advocate General relied is at page-1949 (second column) and the same reads as under : - "it is not sufficient to say that the detenus not supplied the copies of the documents in (sic) on demand but it must further be shown that that non-supply has impaired the datenus right to make an effective and purposeful representation. Demand of any or every document, however, irrelevant it may be for the concerned detenu, merely on the ground that there is a reference thereto in the grounds of detention cannot vitiate on otherwise legal detention order. No hard and fast rule can be laid down in this behalf but what is essential is that the detenu must show that the failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however, slight or insigni ficant it my be. In view of the contention of the learned Advocate General we went through the application, dated 25-8- 91 to be satisfied whether the documents which the detenu had demanded were in any case relevant for making an effective repre sentation against the order of detention or not. In view of the contention of the learned Advocate General we went through the application, dated 25-8- 91 to be satisfied whether the documents which the detenu had demanded were in any case relevant for making an effective repre sentation against the order of detention or not. On perusing the said appli cation we are satisfied that the documents which are demanded were relevant for making the representation by the detenu without adverting to all such documents it would suffice if we may mention a few documents which the petitioner demanded. 19. The case of the petitioner in the said representation was that he had been arrested in the morning of 21-8-1991 at 6 a. m. and that his arrest had been communicated to the District Magistrate, Bulandshahr in the morning itself. The learned counsel asserts that the version given in the counter- affidavit that the petitioner was in fact detained at 2-15 p m. was incorrect. Accordingly, the petitioners contention is that if he could demonstrate by cogent evidence that the fact about the petitioners arrest was already known to the detaining authority before he had passed order of detention then viewed with the fact that he was wanted in so many criminal cases at that time and he had not applied for bail in any of these cases, the passing of the detention order by the detaining authority could be shown to have been an exercise in futility, particularly, without any application of his mind to the question, whether in view of the petitioner being already in jail it was still necessary to pass an order of detention or not. In this connection the petitioner had demanded the copy of G. D. entry of departure of the Station Officer, Doshtpur in district Sultanpur by which the petitioner wanted to de monstrate that the fact about arrest of the petitioner had come into existanco much before 2. 15 p. m. on 21-8-1991. Yet another document demanded by the petitioner was the G. O. entry of the departure of the Station Officer of Police Station Khurja Dehat Distt. 15 p. m. on 21-8-1991. Yet another document demanded by the petitioner was the G. O. entry of the departure of the Station Officer of Police Station Khurja Dehat Distt. Bulandshahr by which the petitioner alleged that the Station Officer had moved an application before Judicial Magistrate, Bulandshahr at about 12 Noon for obtaining b warrant alleging therein that as the petitioner had been arrested at Sultanpur and the said warrant should be immediately sent to Sultaapur to procure his presence in a case which was pending in the Court of Judicial Magistrate, Bulandshahr at the relevant time. These are clearly the documents by which the petitioner could have agitated before the detaining authority or the Advisory Board that there was no necessity to pass any order of detention by the detaining authority for preventively detaining the petitioner, as ho was already in custody at the time when the order of detention was being passed by the District Magistrate. These are only few of the documents which we have referred to, to indicate that the contention on behalf of the State that the documents demanded where wholly irrelevant and, as such their non-supply to the petitioner could not in, any manner affect his right to make an effective representation, cannot be sustained. Consequently we are satisfied that non-supply of the documents to the petitioner demanded by his application/representation dated 25-8-1989 has rendered his continued detention bad in the eyes of law. 20. In this connection, learned counsel for the petitioner has urged that his application dated 25-8-1991 was in fact as representation and this repre sentation having not been placed before the Advisory Board, when the Govern ment referred the case of the petitioner to the Board, has also rendered the continued detention of the petitioner bad in the eyes of law. In this connec tion, it would be relevant to quote the portion of Section 10 of the National Security Act which reads as follows: "place before the Advisory Board constituted by it under Section 9, the grounds on which the order has been made and the represen tation, if any. " 21. In this connec tion, it would be relevant to quote the portion of Section 10 of the National Security Act which reads as follows: "place before the Advisory Board constituted by it under Section 9, the grounds on which the order has been made and the represen tation, if any. " 21. In reply to this contention of the learned counsel for the petitioner, learned Advocate General has stated that the application dated 25-8-1991 can not be treated to be a representation, as the representation has to be made not to the District Magistrate but to the Government and this representation having not been addressed to the Government, cannot be treated as represen tation within the meaning of Section 10 of the National Security Act. Learned Advocate General relied on the judgment of the Supreme Court in the case of State of Maharashtra v. Shusttila Mafat Lal, reported in AIR 1988 SC 2090 . Although the Supreme Court in the aforesaid judgment did hold that the detain ing authority was the Government it self and not an officer of the Government, yet the following passage in the said judgment would certainly demonstrate that even if the detaining authority is the Government, it was necessary for the officer concerned to place the representation before the Government, which, in turn, would have required the Government to place the representation before the Advisory Board as is demonstrated by Section 10. It would be relevant to quote the following observation of the Supreme Court in the case of Shushila Mafat Lal (supra) from para 10 of the report which is as follows : "the only further duty to be performed thereafter is to place the representation made by the detenu before the concerned officer or the Minister empowered under the Rules or Business of the Government to deal with such representation if the detenu addresses this representation to the officer himself" (Italicised by us) 22. Therefore, it is not possible to contend that neither the detaining authority was required to place this representation before the Government, or that this application could not be termed as a representation. Therefore, it is not possible to contend that neither the detaining authority was required to place this representation before the Government, or that this application could not be termed as a representation. In any case, the question whether such an application could be treated to be a representa tion or not, seems to have been finally settled by the judgment of the Supreme Court in the case of Kubic Dariusa v. Union of India and others reported in Judgment Today, 1990 (Vol. I) SC page 38 : 1990 JIC 416 (SC ). This judgment clearly indicates that although the respondents wanted an application moved by the detenu to be treated as only a request for translated copies of the grounds, the Supreme Court had found such an application as a representa tion. In para 15 of the said judgment, the Supreme Court clearly held as follows : "therefore, the detenus representation asking for copies of documents must be held to have amounted to a representation and it was mandatory on the part of the appropriate Government to consider and act upon it at the earliest opportunity and failure to do so would be fatal to the detention order. " 23. Hence apart from the fact failure to act upon the said representa tion was fatal to the detention order, it has to be held that this was also a representation made by the petitioner and since admittedly this representation was not placed before the Advisory Board, hence the continued detention of the petitioner has to be held to be not in accordance with law. In connection with the same representation of the petitioner dated 25th August, 1991, it has been contended by learned counsel for the petitioner that by the said application, the petitioner had clearly made a request for his order of detention to be revoked. Accordingly the contention of the learned counsel for the petitioner is that this was clearly a representation for revokation of the order and it could not lie in the mouth of me respondents to say that this was merely an application for supply of the documents. 24. We have perused the said representation dated 25-3-1991 and find that both in its opening para as also in its last para, there was an specific request made by the petitioner to the District Magistrate that his detention order should be revoked. 25. 24. We have perused the said representation dated 25-3-1991 and find that both in its opening para as also in its last para, there was an specific request made by the petitioner to the District Magistrate that his detention order should be revoked. 25. Learned Advocate General strenuously contended that since by this representation only the copies were demanded so that the petitioner could make an effective representation and since the petitioner did make a represen tation subsequently, hence this application, merely because at two places a simple request was added to revoke his detention order, cannot be treated to be an application for the revocation of the detention order. We do not agree in para 6 of the said representation, the petitioner had made a categorical assertion that although the names of this associates were not mentioned in the grounds, but it was obvious that the activities as assigned to the petitioner were also the activities of his associates. While making an inquiry whether the detention order had been passed against his colleagues also on the basis of the same activities, the petitioner had categorically asserted if the detention order was not passed against the persons similarly situate, then the order against the petitioner was violative of Article 14 of the Constitution rendering the order of detention only against him bad in the eyes of law. Similarly in para 13 of the said representation, the petitioner had said that in respect of the incident dated 20th May, 1991 as Sarai Ghasi a cross-report had been lodged by his agent Sri B. S. Sharma, at P. S. Kotwali, Bulandshahr in which three of his associates were shown to have not returned till the lodging of the report in the evening. The petitioner had clearly stated that this was the cross-version of the incident which it appeared the sponsering authority had not placed before the detaining authority and, had the sponsering authority placed the said cross-version before the detaining authority, then his satisfaction to detain the petitioner could have been otherwise. Even here in the High Court, the petitioner had categorically stated that the statements of Suresh Yadav and Rewati Saran in support of this cross-version had been recorded by the investigating officer under Section 161, Cr. P. C. and these statements had not been placed before the detaining authority. Even here in the High Court, the petitioner had categorically stated that the statements of Suresh Yadav and Rewati Saran in support of this cross-version had been recorded by the investigating officer under Section 161, Cr. P. C. and these statements had not been placed before the detaining authority. This assertion made in para 77 of the petition has not been denied by the detaining authority in para 69 of his counter-affidavit. Thus there was a specific assertion made in the representa tion of the 25th August, 1991 that there was a cross- version which having not been placed before the detaining authority, the satisfaction of the detaining authority had been vitiated. This fact coupled with the prayer at the end of the representation made to the detaining authority to revoke the order of detention, clearly makes this application of the 2s5th August, 1991 a represen tation and the detaining authority having not placed the same before the Government and the Government in turn having not placed the same before the Advisory Board, the continued detention of the petitioner is rendered had in the eyes of law. Sri Prem Prakash had also argued before us that he had handed over representations to the Chairman of the Advisory Board and the said representation had not been considered by the Government. He also argued that satisfaction of the detaining authority was vitiated due to his considering some extraneous and irrelevant materials. His further contention that certain relvant materials affecting satisfaction of the detaining authority were not supported to the detenu and that materials referred to and relied upon in the grounds were not supplied to him rendered that detention order vitiated, need not be gone into by us in view of the fact that we have held earlier that the continued detention of the petitioner has been rendered bad on account of the non-consideration of the representation of the petitioner dated 25th August, 1991, as well as on account of the non-supply of the materials and documents demanded by the petitioner by the said representation. 26. The result is that this Habeas Corpus petition is allowed. The petitioner shall be set at liverty forthwith, unless he is wanted in any other case. Petition allowed. .