Usha Rani Tiwari v. State Of Bihar — 1996 DIGILAW 371 (PAT)

Judgment D. P. Wadhawa, C. J. 1. By this petition filed under Articles 226 and 227 of the Constitution, the petitioner seeks writ of habeas corpus for release of her husband. Mr. Nand Kishore Tiwari, who has been detained under the provisions of the Prevention of Illicit traffic in Narcotic Drugs and psychotropic Substances Act, 1988 (for short, the Act ). 2. Mr. Tiwari, the detenu, was detained on March 27, 1996 is pursuance to an order dated January 30, 1996 made by the Governor of Bihar in exercise of his powers conferred by subsection (1) of Sec.3 of the Act on his satisfaction that it was necessary to detain Mr. Tiwari with a view in preventing him from keeping and smuggling of contraband narcotic drugs. In pursuance to sub- section (3)of Sec.3 of the Act and for the purpose of clause (5) of Article 22 of the constitution, the detenu was communicated the grounds on which the order of detention had been made within the time prescribed. Under Sec.12 of the Act the order of detention could be revoked by the State Government and even by the Central Government. 3. It is not necessary for the purpose of decision of this writ application to give the facts in detail except to note that on the basis of specific intelligence the officers of Narcotics Cell of Central excise intercepted two CRPF trucks at a place near Didarganj in the State of bihar and recovered 3200 Kgs. Ganja therefrom. This action was taken on august 11, 1995. All the personnels who were escorting CRPF trucks and one civilian donning CRPF uniform along with arms and ammunitions were arrested. Investigation of the case led to the arrest of the detenu who was at the relevant time I. G. P. (Operation), manipur, Nagaland and Imphal. The investigation showed a wide spread conspiracy to smuggle narcotics into the State of Bihar Anticipatory bail application of Mr. Tiwari was rejected by the Gauhati High Court by its order dated October 30, 1995. He was, however, released on bail by this Court by order dated December 4, 1995. Thereafter detention order was clamped on him and, as noted above, in execution thereof Mr. Tiwari was detained on march 27, 1996. His writ-application seeking quashing of his order of detention at a pre-detention stage, Cr. He was, however, released on bail by this Court by order dated December 4, 1995. Thereafter detention order was clamped on him and, as noted above, in execution thereof Mr. Tiwari was detained on march 27, 1996. His writ-application seeking quashing of his order of detention at a pre-detention stage, Cr. W. J. C.98 of 1996, was dismissed by a Bench of this Court on February 23, 1996. Mr. Tiwari along with others is one of the accused in the criminal case launched with respect to the recovery of the aforesaid narcotics from two CRPF trucks. 4. Mr. Harijinder Singh, learned counsel for the petitioner, has confined his attack to the last paragraph of the grounds of detention for release of the detenu. English version of this para from the grounds given in that language is as under: "sri N. K. Tewary wish to make any representation to the State Government, you may do so in writing and address the same to the Deputy Secretary, Home (Special)Department, Bihar, Patna or Central government through the Superintendent of jail as soon as possible. If you desire to make representation to the Advisory Board, you may address to the Assistant Registrar and ex-officio Secretary, Advisory Board, Patna high Court, Patna through the Jail Superintendent. " If we see the Hindi version of the grounds and translate into English it will read as under : "if Mr. N. K. Tiwary wants to submit his written representation against his detention to the State Government, he may send the same to the Deputy Secretary, Home (Special) Department, Government of Bihar, patna or to the Government of India (Bharat Sarkar) as soon as possible. If he wants to submit his representation to the advisory Board, Patna he may send the same to the Assistant Registrar-cum-ex-of-ficio Secretary, Advisory Board, High Court, patna, through the Jail Superintendent concerned. " His contention is that the detenu has not been apprised of his right to represent against his detention as he has not been informed that he could make his representation both to the state Government as well as to the central Government. He, therefore, says that the fundamental right of the detenue has been contravened. " His contention is that the detenu has not been apprised of his right to represent against his detention as he has not been informed that he could make his representation both to the state Government as well as to the central Government. He, therefore, says that the fundamental right of the detenue has been contravened. If we see the last paragraph of the ground, which we have reproduced above, it is apparent that the detenue has been told that he can represent against his detention to the State Government or to the Central Government. On the one hand, Mr. Harijinder Singh said that the word or in the ground has to be read disjunctively and not conjunctively, but learned counsel for the respondents contend otherwise. Reference was sought to be made to certain decisions of the Courts as well as to the legal dictionaries on this contention. We, however, do not think it is at all necessary to refer to these judgments or to the legal dictionaries. We have to see the bare reading of the ground and what it conveys. To a layman the grounds give a clear message that he can represent against his detention to the State Government which he can send through the Jail Superintendent and the officer to whom it is to be sent has been mentioned. Alternatively he can represent against his detention to the Central Government but to which department of the Central Government and to whom the representation has to be sent the ground is silent. Mr. Shiva kirti Singh, learned counsel for the second respondent (Central Government) said that without instructions he was unable to tell us as to which ministry or department of the Central government the detenu could have represented. On the other hand, Mr. Suryadeo Yadav, learned counsel for the first respondent (State) said that it could be Ministry of Finance. However, he was also not sure. It was also suggested that it could be Ministry of home in the Central Government as well. If the respondents themselves do not know as to which Ministry of the department, the representtion is to be sent how would a detenu confined in jail would know? It is nobodys case that if representation is addressed just as Central Government, Delhi, it would reach the right quarter. If the respondents themselves do not know as to which Ministry of the department, the representtion is to be sent how would a detenu confined in jail would know? It is nobodys case that if representation is addressed just as Central Government, Delhi, it would reach the right quarter. That is apart from the fact that the detenu has not been told that he could represent both to the State Government as well as to the Central Government. Rather, he has been informed that representation could either be addressed to the State government or the Central Government. It was also sought to be argued that the detenu was holding a high position and would know that representation could be made both to the state Government as well as to the central Government and that he would also know to which Ministry or department of the Central Government the representation could have been addressed. 5. In this connection I refer to a constitution Bench decision of the supreme Court in Kamleshkumar ishwardas Patel V/s. Union of India, (1995) 4 s. C. C.51. The Supreme Court in no uncertain words has said that the detenue has right to make representation to the State Government and the Central Government and to have the same duly considered. In this case though the Supreme Court was considering the question of failure on the part of the detaining authority to inform the detenu that he could also represent against his detention to the detaining authority being an officer authorised under the Act to pass the order of detention. The Court said that the right to make representation necessarily implied that the person detained must be informed of his right to make representation to the authority that has made the order of detention when he is served with the grounds of detention so as loanable him to make such a representation and the failure to do so would result in denial of the right of the person detained to make a representation. Similar observation would apply when representation is to be made to the State Government and the central Government. Here the detenu has not been apprised of his right to make his representation to both the state Government and the Central government. As noted above, he has been told to represent either to the state Government or to the Central government. Similar observation would apply when representation is to be made to the State Government and the central Government. Here the detenu has not been apprised of his right to make his representation to both the state Government and the Central government. As noted above, he has been told to represent either to the state Government or to the Central government. Then the Court in this judgment dealt with the argument of union of India that some detenus had been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and were involved in other anti-national activities which were very harmful to the national economy. It was urged that having regard to the nature of the activities of the detenus the cases did not justify interference with the order of detention made against them. The Court observed as under: "we are not unmindful of the harmful consequences of the activities in which the detenus are alleged to be involved But while discharging our constitutional obligation to enforce. the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. The framers of the constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporated in clauses (4) and (5) of articles 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "zealously watched and enforced by the Court". Their rigour cannot "be modulated on the basis of the nature of the activities of a particular person. We would, in this contest, reiterate what was said earlier by this Court while rejecting a similar submission". "may be that a detenu is a smuggler whose tribe (and how their numbers increase)deserves no sympathy since its activities have paralysed the indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus. " 6. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus. " 6. In the case before us, therefore, we find that there is clear violation of clause (5) of Article 22 of the Constitution inasmuch as the detenu has been deprived of his right to make his representation against his detention both to the State Government and to the central Government. Further, he has not been told that if representation is to be made to the Central Government, to whom it is to be addressed. 7. We would, therefore, quash the detention order. Accordingly, the application is allowed and writ is issued to release the detenu forthwith who has been detained by the order dated january 30, 1996. Rule is made absolute. Application Allowed.