Gulam Hussain v. District Magistrate — 1996 DIGILAW 674 (RAJ)

Honble KOKJE, J. – The petitioner was detained under Section 3(2) of the National Security Act, 1980 (for short `the Act hereinafter), by the District Magistrate, Barmer by an Order dated August 14, 1995 passed in exercise of powers under Section 3(3) of the Act. (2). The grounds of detention were communicated to the petitioner vide com- munication dated August 16, 1995. The petitioner made a representation against his detention to the Advisory Board on September 9, 1995. The representation was rejected by an Order dated October 4, 1995. It was confirmed under Section 12(1) of the Act by the State Government on October 8, 1995. The petitioner filed this petition on December 6, 1995 challenging his detention. (3). The petitioner contends that the Order of detention was passed in a mechanical manner without proper application of mind. It was contended that the petitioner was detained earlier also by the District Magistrate under the same provision and that Order was quashed by the High Court. The fresh detention was ordered on the same grounds without even supplying the copy of the order of ear- lier detention and the grounds thereof to the detenue. It is, therefore contended that not only that the petitioner has been detained on the same grounds on which he was released consequent upon the quashing of the order by this Court but copies of the earlier detention order and grounds thereof were not supplied to the detenue even though they were relied upon for passing the fresh Order. The petitioner was thus deprived of making an effective representation against his detention on account of non- supply of vital material. According to the petitioner he had also demanded the copies of the earlier detention order and the grounds thereof but received no response. It was also contended that no opportunity of making a representation to the Authority which passed the order initially was given to the petitioner. The detention order therefore is liable to be quashed on that count also. (4). It was further contended that the detenue was not told of his right to be represented by a friend before the Advisory Board and this was absolutely essential in view of the fact that the State was represented by several high ranking officers before the Advisory Board. (4). It was further contended that the detenue was not told of his right to be represented by a friend before the Advisory Board and this was absolutely essential in view of the fact that the State was represented by several high ranking officers before the Advisory Board. It was contended that in the circumstances of the case, the petitioner had a right to be represented not only through a friend but a lawyer. (5). In response, it was submitted on behalf of the State that the earlier detention order was quashed on technical ground by the High Court. It was decided in that case that the impugned order did not record the satisfaction of the State Government as required under sub-section (3) of Section 3 of the Act and it did not even state that the District Magistrate, if satisfied as provided under sub-section (2) of Section 3 of the Act, may exercise the powers under the Act. It was contended that the very authority of the District Magistrate, Barmer to issue an order of detention was held to be invalid in that case and therefore there was no pronouncement on merits. It is also pointed out that in the earlier case D.B. Habeas Corpus Petition No. 5795/93 Gulam Hussain vs. the State of Rajasthan & Anr. decided on November 4, 1993 by the Jaipur Bench (1), it was specifically stated in the Order itself that it would be open for the respondents to pass Order afresh in accordance with law. It was therefore, contended that the previous order could not come in the way of the respondents to pass a fresh Order and in fact the Order of the High Court itself expected the respondents to pass afresh Order. (6). As regards the non-supply of copies of earlier detention order and the grounds thereof, it was contended that the grounds were perfectly within the knowledge of the petitioner and no prejudice has been caused to him because of non-supply of such documents. It was also contended that the High Court having found the whole exercise unauthorised, the impugned detention order cannot be treated as a subsequent detention order, the earlier detention order having been found void ab-initio. It was therefore contended that the State was under no obligation to supply copies of the earlier detention order and the grounds thereof. (7). It was also contended that the High Court having found the whole exercise unauthorised, the impugned detention order cannot be treated as a subsequent detention order, the earlier detention order having been found void ab-initio. It was therefore contended that the State was under no obligation to supply copies of the earlier detention order and the grounds thereof. (7). As regards the opportunity to represent to the Detaining Authority between the date of the passing of the order and the date of the confirmation of the Order by the State of Rajasthan, it was contended that in this case the order was passed on August 14, 1995 and on August 16, 1995 the grounds were supplied. The covering letter through which the grounds were supplied by the District Magistrate stated that if any representation is to be made against the detention to the Home Ministry /Home Department of the State of Rajasthan or the Advisory Board, it should be submitted to the Detaining Authority through the Superintendent of Central Jail, Jodhpur. It was submitted that in view of this no prejudice can be said to have been caused to the petitioner. It was also contended that since the order of the Detaining Authority required confirmation under sub-section 4 of Section 3 of the Act, there was no point in giving an opportunity of representing to the Detaining Authority himself. It was contended that in this case such an order under Section 3(4) of the Act was passed on August 23, 1995 i.e. within ten days of the passing of the order, It was futile to expect any entertainment of any representation by the Detaining Authority itself. (8). As regards opportunity to represented through a friend or a lawyer, it was contended that it was not necessary to specifically mention in any communication that such an opportunity could be availed of by the petitioner. It was also contended that the petitioner was free to pray for being represented through a lawyer or a friend before the Advisory Board and it was for the Advisory Board to entertain or not to entertain such a request. (9). We have heard the learned counsel for the parties and have also perused the record of the case. (10). The learned counsel for the petitioner heavily relied on the decision of the Supreme Court in Chhagan Bhagwan Kahar vs. N.L. Kalna & Ors. (9). We have heard the learned counsel for the parties and have also perused the record of the case. (10). The learned counsel for the petitioner heavily relied on the decision of the Supreme Court in Chhagan Bhagwan Kahar vs. N.L. Kalna & Ors. (2) for the pro- position that a subsequent detention order cannot be passed even with additional fresh grounds along with the grounds taken in the earlier detention. It was contended that this Court in D.B. Habeas Corpus Petition No. 3429/95 Gulia @ Gulsher vs. The District Magistrate & Anr., decided on 24th April, 1996 (3), followed the aforesaid dictum giving reasons as to why no other interpretation could be put on the decision of the Supreme Court in Chhagan Bhagwan Kahars case (supra). In answer to this plea it was contended on behalf of the respondents that a distinction will have to be made in a detention order passed by an authorised person which was found defective by the Court and a detention order which was found by the Court to be unauthorised and therefore void ab-initio. (11). On careful consideration on the facts of the case, we find that this Court in the petition challenging the earlier detention order did not go on the merits of the case but held the order unauthorised. It has therefore to be taken that the Order was held to be void ab-initio and non-existent for all purposes. It is for this reason that the Court also observed that it would be open for the respondents to pass a fresh detention order is accordance with law. (12). The observations in the decisions of the Supreme Court in Hadibandhu Das vs. District Magistrate, Cuttack & Anr. (2) and Har Jas Dev Singh vs. State of Punjab & Ors. (3), quoted in Gulias/Habeas Corpus Petition No. 3429/95, decided on April 24, 1996 by this Court cannot be stretched to the extent of applying to an order which is void ab initio. We are therefore of the view that in this case, the previous detention order being unauthorised and void ab initio cannot be treated as an order which could be taken into account for any purpose at all. We are therefore of the view that in this case, the previous detention order being unauthorised and void ab initio cannot be treated as an order which could be taken into account for any purpose at all. If the grounds which were the basis for the earlier detention order, which will be deemed to have been non-existent order being declared void ab-initio, were also included in the grounds while passing a fresh order, the fresh order cannot be said to be vitiated. The present case is clearly distinguishable on facts from the case of Chhagan Bhagwan Kahar (supra), Hadibandhu Das (supra) and Har Jas Dev Singh (supra). As already observed, the detention order and the communication of grounds thereof having been declared unauthorised, will have to be treated as void ab initio. They cannot be used for any purpose at all and therefore non-supply of copies of the earlier detention order and the grounds thereof would be of no consequence in this case. It will not be a material document at all because anything which is done by any one who was not authorised by the State Government, would not be material at all for the purpose of any order of detention. (13). On facts also what we find is that in the grounds of detention the previous detention is referred to at the end of the grounds and is clearly as a narration of facts and not a ground itself. What is stated is that the detenue was earlier detained under Section 3(2) of the Act on May 29, 1993 and was released from Central Jail consequent to Order dated November 4, 1993 passed by the Rajasthan High Court. It was also observed that the Order of the High Court was perused and it was found that the detenue was released on technical ground. This cannot be said to be making the earlier detention order the ground for detention. In these circumstances, if the detention order and the grounds thereof were not supplied along with the communication of grounds of the impugned detention, it cannot be said that some material documents affecting the right of the petitioner to make an effective representation were withheld from him. In these circumstances, if the detention order and the grounds thereof were not supplied along with the communication of grounds of the impugned detention, it cannot be said that some material documents affecting the right of the petitioner to make an effective representation were withheld from him. As regards other documents, we are satisfied that only such documents which were secret in nature, which the respondents had a right under the Act itself to withhold, have not been given to the petitioner. (14). As regards right to be represented through a friend or a lawyer, the learned counsel for the petitioner heavily relied on the decision of the Supreme Court in Kamlesh Kumar Ishwardas Patel vs. Union of India & Ors. (6). It was con- tended that it was necessary for the respondent to have informed the petitioner that he had a right to make a representation to the District Magistrate himself as before the Order was confirmed, the District Magistrate himself could have revoked the order. This Court has dealt with in detail the decision of Supreme Court in Kamlesh Kumar Ishwardas Patel (supra), in D.B. Habeas Corpus Petition No. 3624/ 96 (7), Ishaq Khan vs. The District Magistrate, Barmer & Anr., decided on 24th April, 1995. Relying on the decision, we reject the contention that it was necessary to inform the petitioner that he could make a representation to the District Magistrate himself. As regards the right of the detenue to be represented by a lawyer or a friend before the Advisory Board, reliance was placed by the learned counsel for the petitioner on the decisions of the Supreme Court in A.K. Roy vs. Union of India & Anr. (8), Johney Dcouto vs. State of Tamil Nadu (9), Nand Lal Bajaj vs. State of Punjab (10) and Smt. Kavita vs. State of Maharashtra (11). (15). This Court had an occasion to deal with all these cases in Ishaq Khans Habeas Corups Petition (supra). It was held by this Court in the aforesaid decision that all that which has been held by the Supreme Court is that a detenue had a right to apply for assistance of a lawyer or a friend and if he so applies, the question has to be decided on its own merits in the peculiar circumstances of each case. It was held by this Court in the aforesaid decision that all that which has been held by the Supreme Court is that a detenue had a right to apply for assistance of a lawyer or a friend and if he so applies, the question has to be decided on its own merits in the peculiar circumstances of each case. This Court has also held that it has been declared obligatory on the Detaining Authority to inform the detenue that he has a right to make an application for being represented through a lawyer or a friend. It was also held by this Court that whenever the Detaining Authority is represented before the Advisory Board through lawyers or legal advisers, the detenue has to be given equal treatment by allowing him to be represented through a lawyer or a friend. We find no reason to take a different view than which was taken by this Court in Ishaq Khans case (supra). On the facts of this case, also, we do not find that the allegation that higher ranking police officers were sent to represent the case of the Detaining Authority before the Advisory Board to be properly substantiated. The respondents have stated that a Additional Superintendent of Police remained present with the record at the time of hearing of the petitioners case before the Advisory Board and he was present only for the purpose of making the entire record available to the Advisory Board if the Advisory Board required the record. (16). For the aforesaid reasons, this petition deserves to be and is hereby dis- missed with no order as to costs.