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2000 DIGILAW 85 (KAR)

MAQBOOL PASHA HUSSENI BAIG v. UNION OF INDIA

2000-01-28

V.GOPALA GOWDA

body2000
GOPALA GOWDA, J. ( 1 ) THE petitioner in this case has sought for the relief to declare his detention which was made during the year 1997 as illegal and unconstitutional as the same is violative of Article 14, 19 and 21 of the Constitution of India and also the human rights guaranteed to him under several International covanents for which Union of India is a Signatory and further sought for issuance of a direction to the respondents to pay him suitable compensation in the form of exemplary damages for their illegal, arbitrary and unconstitutional exercise of power and having deprived of his fundamental and human rights, urging various facts and legal contentions. ( 2 ) THE relevant brief facts necessary for this Court to consider and answer the rival contentions urged by the learned Counsel appearing on behalf of the respective parties are stated as hereunder. ( 3 ) THE petitioner is an Indian Citizen and permanent resident of Bangalore. He has contended that in the year 1985 he went to Saudi arabia for his employment and he was employed as an Assistant electrical Foreman in Saudi Binladin in Organisation and worked there for 10 years. Subsequently he joined A. R. Namla Corporation, at Madeena. In the month of February 1997, he made all the arrangements to visit India for the purpose of getting himself married. On 15. 2. 1997, the petitioner went to his workspot for the purpose 01 giving certain instructions to his Subordinate employees. Around 10 clock in the morning, Madeena Investigating Officials went to his workspot and asked the petitioner to accompany them. The petitioner was taken away from his workspot and he was detained by the said investigating Officials. Thereafter the petitioner made enquiries and asked the reason for his detention. He was informed that Interpol, new Delhi (in short IPND) had sent a message to them to arrest him. Reason for his arrest were not made known to him at the time of his arrest. It is further stated that despite several communications sent by him to IPND to furnish him the reasons and the necessary documents with regard to the detention of the petitioner, the IPND did not respond to the communication made by him. The petitioner was released on 27. 5. 1997. Therefore the petitioner has contended that his detention was illegal from 15. 2. 97 to 27. 5. The petitioner was released on 27. 5. 1997. Therefore the petitioner has contended that his detention was illegal from 15. 2. 97 to 27. 5. 1997, and therefore he has urged that he is entitled for compensation to be awarded by this Court in exercise of its power under Article 226 of the Constitution of India in his favour as claimed by him. ( 4 ) FURTHER it is contended by the Learned Counsel for the petitioner that he was again arrested in Bombay on 28. 8. 1997, and was produced before the Jurisdictional Magistrate on 29. 8. 1997. He was then released on 30. 8. 1997, thereby he was again under unlawful custody of the Bombay Police for 3 days. The petitioner has further contended that he had suffered an illegal, unlawful detention in the period referred to above because of the alleged negligence on the part of the respondents in discharging their duties. The documents produced by the respondents 2 and 3 would clearly establish the serious violation of the fundamental and human rights guaranteed to the petitioner. ( 5 ) IT is contended by the petitioner that the International Criminal Police Organisation, (in short called as "icpo") engaged in promoting inter national police co-operation. The aim of the Organisation is to ensure and promote the mutual assistance among all criminal police authorities within the limits of laws existing in different countries. The said Organisation operates through National Central Bureau (in short called as NCB) of Member countries which exchange requests for investigations/enquiries and apprehending fugitives etc. , from other countries. Each country has to appoint a body which will serve as a ncb for that Country. In our Country, the Central Bureau of investigation (in short called as CBI) also functions as a NCB. It is alleged that the petitioner was arrested and detained at the instance of the Interpol Wing of CBI. Therefore it is urged on behalf of the petitioner that they are responsible for their unconstitutional and illegal action of detention of the petitioner in the period as referred to above. ( 6 ) THE petitioner has produced some of the documents namely Annexure-2 to Annexure-24 to show that the correspondence made by the second and the third respondents from 31. ( 6 ) THE petitioner has produced some of the documents namely Annexure-2 to Annexure-24 to show that the correspondence made by the second and the third respondents from 31. 7,1996 and the clarification sought for by them pertaining to petitioner regarding their negligence in not furnishing the relevant information sought for regarding his detention. It is contended by the learned Counsel Mr. Raghavendra Rao for the petitioner that the message sent by Interpol, riyadh (in short IPR) to IPND to send the warrant of arrest against mohd. Aizaz Akbar, IPR should have taken due care and caution to arrest only the right person after due verification of the person whom they wanted to arrest in pursuant to the warrant issued by the designated Judge. Further, as per Annexure-4 dated 29. 8. 1996 sent by IPND to IPR enclosing the copy of warrant of arrest, even in this document, the Passport No. L - 429395 is mentioned. It is contended that the said passport does not pertain to the petitioner. Annexure-5 is the message sent by IPR to IPND which is dated 2. 9. 1996, in this message, the Riyadh Officials informed IPND that the details given in the Annexure-2 with regard to the address of Aizaz Akbar and the telephone numbers are not correct. This document indicates the prompt action taken by Riyadh Officials with due care and caution requesting the second and third respondents to furnish and correct address and identification of the person to whom the Arrest Warrant was issued to arrest that person. As could be seen at Annexure-6, the message was sent by IPR to IPND on 14. 10. 96. Despite the message sent by the Riyadh Officials to IPND on 2. 9. 1996 seeking certain details of the accused Mohd. Aizaz Akbar are not correct and asked them to furnish the necessary particulars, IP-New Delhi had not taken any action to inform the Riyadh Officials the correct details of Mohd. Aizaz Akbar as sought for by the IPR, even though they have received the communication from them. Therefore annexure-6 was sent in the form of a reminder to the IPND. ( 7 ) FURTHER, it is stated by the learned Counsel for the petitioner that despite IPR intimating IPND on 2. 9. 1996 and also 14. 10. Aizaz Akbar as sought for by the IPR, even though they have received the communication from them. Therefore annexure-6 was sent in the form of a reminder to the IPND. ( 7 ) FURTHER, it is stated by the learned Counsel for the petitioner that despite IPR intimating IPND on 2. 9. 1996 and also 14. 10. 1996 that the address and the details given by IPND with regard to the accused Aizaz Akbar are not correct and also further made a request by them to the IPND to furnish the correct details, the IP, New Delhi officials did not take any action in that regard. Therefore, another reminder was sent by it as per Annexure-7 dated 4. 11. 1996 in this regard. Further, as per Annexure-8, message was sent by IPND to ipr, dated 18. 11. 1996. In this document, the IPND has informed ipr that the accused Aizaz Akbar against whom Red Corner notice has. been issued has assumed the name of Maqbool Pasha Hussaini baig which is the name of petitioner, it is stated by them that two passport Nos. U-538969 and P-466995. These two passports were of the petitioner. They are different from the passport number which is given in Annexure-1, 2, and 4. In this document it is stated that mr. Aizaz Akbar who has assumed the name of Maqbool Pasha hussaini Baig is working as Electrical Foreman with A. R. Namla corporation and the Post Box number is also given. All the details that are given in this document with regard to the name, passport numbers, designation and with regard to the Organisation of the employment are all referable only to the petitioner. By these details any authority would have approached the petitioner only. Therefore, it is stated that the respondents did not take sufficient and proper care and caution in furnishing the relevant and necessary details to ipr, which has resulted in the illegal and unlawful detention of the petitioner. For a long time, the respondents 2 and 3 did not care to give the details to IPR as sought for by it earlier. They also did not evince any interest and had not taken due care and caution in furnishing the details of the petitioner and furnishing the required information to them as desired by them after due verification, which was resulted the illegal and unlawful detention of the petitioner. They also did not evince any interest and had not taken due care and caution in furnishing the details of the petitioner and furnishing the required information to them as desired by them after due verification, which was resulted the illegal and unlawful detention of the petitioner. ( 8 ) IT is also further alleged by the petitioner that as could be seen at Annexure-9, the radio message was sent by IPND to IPR office on 20. 1. 1996. The details contained at Annexure-8 have been repeated with regard to the detaining the person of the details given. The reiteration of the details in this document confirms the negligent performance of the duties on the part of the respondents 2 and 3. It is further contended by him that the message at Annexure-10 was sent by IPR to IPND which is dated 1. 3. 1997. In that message, riyadh Officials have informed the officials of IP at New Delhi that they have arrested the person on the details furnished by them. They had also requested for Extradition file and also sought for full identity of the person whom they have arrested and detained in their custody. This confirms the care and caution taken by Riyadh officials regarding the person whom they had arrested in pursuant to the particulars furnished by the second and third respondents and the arrest warrant. Annexure-11 dated 3. 31997 confirms that ipnd has received a message dated 1. 3. 97 sent by IPR. Annexure- 12 is a Fax message dated 3. 3. 1997 sent to IPR, confirming the receipt of their message dated 1. 3. 1997 found at Annexure-10. Annexure-12 (a) is a Fax message sent by IPND to IPR. In this message, the IPND had sought information from IPR whether maqbool Pasha, S/o Hussaini Baig holding passport No. 466995 is arrested by Saudi Police Authorities. This message clearly establishes the fact that the manner in which the respondents were functioning with gross negligence. It is the IPND which has furnished the details to the IPR in pursuant to which the petitioner was arrested by them. Without looking into their own message, they had sought information from IPR. This action of the second and third respondent further would clearly establishes the fact of gross negligance on their part. Annexure-13 is the Fax message sent by IPND to IPR, which is dated 4. 3. Without looking into their own message, they had sought information from IPR. This action of the second and third respondent further would clearly establishes the fact of gross negligance on their part. Annexure-13 is the Fax message sent by IPND to IPR, which is dated 4. 3. 1997, in this message they had sought certain clarifications from IPR. The details that have been sought for in this message clearly indicate the most casual and caviler manner in which the respondents 2 and 3 have discharged their official duties. IPND being an expert body, they did not even know what were the documents that are required to be sent to IPR for the arrest of the person in pursuant to the arrest warrant issued by the TADA Designated Judge. They sought certain clarifications even with regard to the date, when the extradition file has to be submitted. When the second and third respondent's authorities know that a person is detained at their instance and he was in custody in Saudi Arabia, instead of sending extradition file at the earliest to IPR, they sought clarification even with regard to the date on which the file has to be submitted and the manner in which the documents are required to be authenticated. These details would clearly show the negligence and inefficiency on the part of the expert body of the first respondent. ( 9 ) FURTHER it is alleged by the petitioner that as could be seen from Annexure-14, the Fax message from the second respondent, new Delhi H. C. Singh AD Interpol which has reflected that Mumbai police were very much in want of the accused Aizaz Akbar. The said accused has also confessed about his involvement in the Train bomb Blast case. The IPR also were seeking the details of the persons whom they had arrested and detained in Riyadh, and they had also asked the photograph of him. The said accused has also confessed about his involvement in the Train bomb Blast case. The IPR also were seeking the details of the persons whom they had arrested and detained in Riyadh, and they had also asked the photograph of him. When the respondents 2 and 3 authorities know that the wanted accused is arrested, they were have been more diligent and if they were to have any anxiety for the release of the person who was wrongly arrested in Riyadh, they ought to have sent the message to Riyadh asking them to set him free of the person who was wrongly detained by them, at once, since the real accused whom the TADA Designated wanted to arrest and that person was arrested by Mumbai Police. When they have detained the accused they wanted under Red Corner notice, they ought to have directed the Riyadh Officials to set free of the person who was under their wrongful and unlawful detention. The above said in-action on the part of IPND Officials would show the casual manner in which the respondents 2 and 3 were discharging their duties without caring for the liberty of the person who was under illegal and unlawful detention of IPR. They ought to have ordered and requested the IPR to release the person who was under wrongful detention, instead of asking them for unnecessary details. Like this, various Fax messages were referred to at Annexures 15, 16 and 17 from March 1997 to June 1997 in which documents would show that there was inter-communication between the respondents of 1 to 3 and the IPR with regard to furnishing certain relevant particulars regarding the petitioner for taking necessary steps for the purpose of verifying as to whether they have arrested the correct person against whom the arrest warrant was issued and further to examine whether the right person was detained by them in pursuance of the arrest warrant issued by the IPND, the respondents 2 and 3 herein. ( 10 ) THE first respondent has not filed statement of counter despite grant of sufficient opportunity from 25. 2. 1999. ( 10 ) THE first respondent has not filed statement of counter despite grant of sufficient opportunity from 25. 2. 1999. The respondents 2 "and 3 have filed a detailed statement of counter where they have taken preliminary objection for entertaining this Writ Petition by this court contending that, a red corner notice Control N. A - 303/6-1996 file No. 17024/96 was issued by the Interpol Secretariat General, lyon, France at the request of IPND for arrest of Mohd. Aejaz Akbar r/o. Gulbarga, Karnataka, he absconding accused of case RCf 37 (S)/ 93/cbi/jpr pending trial in the Court of Judge, Designated Court, ajmer (Rajasthan ). As the petitioner was arrested on the basis of the Red Corner Notice of Interpol as Mohd. Aejaz Akbar by the concerned authorities in Saudi Arabia, the functioning of the international Criminal Police Organisation (ICPO)- Interpol and the interpol Red Corner Notice. ( 11 ) IN the counter statement they have traversed various petition averments. At paragraph-6, it is stated that, the averments made in para 6 of the petition are not within the personal knowledge of respondents. They have however submitted that as mentioned earlier interpol- New Delhi had requested for the arrest of accused Mohd. Aejaz Akbar subject of Red Corner Notice and had also communicated to IP-Riyadh the information received by IP-New Delhi that the subject Mohd. Aejaz Akbar was reported to be holding Indian passport No. U-538969 dated 18. 8. 1983 issued at RPO, Bangalore in the assumed name of Mazbool Pasha Husseni Baig and another passport P-466995 dated 16. 8. 1993 issued at CGI, Jeddah. It is further stated by them that, facts contrary to it are not within their knowledge and therefore they have not admitted. ( 12 ) WITH regard to paragraph 10 of the petition, they have submitted that DGP, Karnataka Police had sent wireless message to the Asst. Director, Interpol Wing, CBi, New Delhi regarding the arrest of the petitioner. In the wireless message, it was only mentioned that Mohd. Pasha Husseni Baig has been arrested in saudi Arabia at the instance of Interpol, New Delhi. There was no mention in the message that Maqbool Pasha Husseni Baig has been arrested under the mistaken identity as Mohd. Aejaz Akbar. As the interpol, New Delhi had requested Interpol-Riyadh for the arrest of mohd. Aejaz Akbar and was also informed by Interpol, Riyadh for the arrest of Mohd. There was no mention in the message that Maqbool Pasha Husseni Baig has been arrested under the mistaken identity as Mohd. Aejaz Akbar. As the interpol, New Delhi had requested Interpol-Riyadh for the arrest of mohd. Aejaz Akbar and was also informed by Interpol, Riyadh for the arrest of Mohd. Aejaz Akbar and was also informed by Interpol- riyadh regarding the arrest of Mohd. Aejaz Akbar the subject of red Corner Notice No. A-303/60-96, the fact that the petitioner had been arrested as Mohd. Aejaz Akbar could not be linked. The Officials of Interpol New Delhi, did they have taken follow-up action and requested Interpol-Riyadh vide Fax Message dated. 10. 3. 1997 to confirm the position regarding the arrest of Mazbool Pasha Husseni baig and no reply was received from IP, Riyadh for taking further action in the matter. ( 13 ) WITH regard to the further averments made by the petitioner at paragraph 12 of the petition, same have not been admitted. The contention of the petitioner that Interpol - New Delhi did not send any reply to the messages received from IP, Riyadh is totally incorrect and erroneous. They have further submitted that a message was received from IP, Riyadh on 3. 3. 1997 stating that the request has been forwarded to the concerned authorities. Subsequently, another message was sent to IP-Riyadh on 4. 3. 1997 requesting them to intimate details of the documents/information that would be required to be sent to the concerned authorities in Saudi Arabia for the extradition of the subject. Later a message was received by IP, New delhi from the Investigating Unit informing that a person by name mohd. Aijaz Akbar has been arrested in Mumbai. On receipt of this information another message was sent to IP, Riyadh on 22. 3. 1997 requesting that the personal particulars, photograph and finger prints of the persons detained may be sent. IP, Riyadh was also requested to confirm whether the detained person is still in their custody. Subsequently, another message dated 31. 3. 1997 was received from ip, Riyadh stating that the subject on interrogation he has stated that he was innocent and has produced a 'certificate of innocence issued by the Indian Ministry of Foreign Affairs". On receipt of this message, IP, Riyadh was again requested vide IP, New Delhi message dated 4. 4. Subsequently, another message dated 31. 3. 1997 was received from ip, Riyadh stating that the subject on interrogation he has stated that he was innocent and has produced a 'certificate of innocence issued by the Indian Ministry of Foreign Affairs". On receipt of this message, IP, Riyadh was again requested vide IP, New Delhi message dated 4. 4. 1997 to send the personal particulars, photograph and finger prints of the detained person subject to confirmation of the identity of the person detained in Saudi Arabia. No reply was received from IP, Riyadh till 12. 6. 1997, when IP, New Delhi received a letter dated 31. 5. 1997 forwarding the finger prints and photocopy of the passport of the petitioner Maqbool Pasha Husseni Baig. ( 14 ) FURTHER, the averments made in subsequent paragraphs of the Writ Petition have been denied by the second and third respondents. It is contended that, detention of the petitioner was made by the concerned authorities of Saudi Arabia. It is further stated that there has been no violation of fundamental rights of the Petitioner and his family members as contended by him including the violation of Articles 14,19 and 21 of the constitution of India and therefore there is no cause of action arisen in India for entertaining this petition. They have further stated that, the petitioner while in Saudi Arabia was governed by the law of Saudi Arabia and the provisions of the constitution of India are not applicable to the petitioner in the State of Saudi Arabia. They have stated that, the concerned authorities in saudi Arabia acted in compliance with their laws in this case and therefore it is contended by them no Writ can be issued by this court as prayed in this petition by the petitioner. ( 15 ) LEARNED Counsel appearing for the petitioner Mr. Raghavendra Rao has placed reliance on the Judgment in the case of COMMON CAUSE, A REGISTERED SOCIETY vs UNION OF india and ORS for the proposition that, the plea or defence of sovereign immunity is not available to the state in the matter of violation of fundamental and human rights of a citizen of the Country. Raghavendra Rao has placed reliance on the Judgment in the case of COMMON CAUSE, A REGISTERED SOCIETY vs UNION OF india and ORS for the proposition that, the plea or defence of sovereign immunity is not available to the state in the matter of violation of fundamental and human rights of a citizen of the Country. The respondents are strictly liable for their acts of gross negligence and arbitrary action of illegal and unlawful detention of the petitioner and their in action in not taking prompt action for furnishing the relevant particulars pertaining to the petitioner to IPR. The respondents 2 and 3 in their counter statement have taken the defence that, the arrest of the petitioner is due to mistaken identity, and therefore they have "urged that there is no negligence on their part in defining the petitioner. Therefore, the learned counsel would further submits placing reliance on the judgment of the supreme court referred to supra, has contended that the petitioner is entitled for compensation to be awarded by this Court in exercise of its discretionary power for the reason that his fundamental rights were infringed and therefore the respondents are liable to pay exemplary damages to the petitioner as the petitioner was a victim of illegal and unlawful detention at the instance of the second and third respondents. It is further contended by the Learned Counsel for the petitioner that in view of th arbitrary exercise of power by the second and third respondents, the petitioner and his family members had to undergo the suffering, mental agony and the misery beyond the terms of expression, due to illegal and unlawful detention of the petitioner, his aged parents and his family members had to undergo very severe mental tension and anguish. Ultimately the petitioners father died only due to this acute mental tension and suffering. Petitioner's brothers had to run from pillar to post seeking help from all possible quarters to get the petitioner released from his illegal and unlawful detention. Further, due to illegal detention, the petitioner's marriage could not be performed. Therefore, Mr. Ultimately the petitioners father died only due to this acute mental tension and suffering. Petitioner's brothers had to run from pillar to post seeking help from all possible quarters to get the petitioner released from his illegal and unlawful detention. Further, due to illegal detention, the petitioner's marriage could not be performed. Therefore, Mr. Raghavendra Rao, learned counsel appearing for the petitioner submits that, the petitioner is entitled for compensation as the respondents 2 and 3 have not taken due care and caution in discharging their duties in not furnishing the correct particulars to the officials of IPR of the petitioner and regarding the person really wanted to be arrested in pursuant to the arrest warrant issued and forwarded to IPR, by the second and third respondents. Further, the learned Counsel submits that, this is a fit case for exercising extra-ordinary and discretionary jurisdiction under articles 226 of the Constitution of India for granting the reliefs as prayed for in this petition. ( 16 ) THE learned Counsel Mr. Tharanatha Shetty appearing on behalf of the second and third respondent has placed reliance upon the documents produced along with the Counter statement and further he has sought to justify the action of R2 and R3. After hearing the learned Counsel for the parties, the question that would arise for consideration in this case for this Court is whether the detention of the petitioner by IPR at the instance of respondents 2 and 3, by issuing Red corner Notice detaining him from 15. 2. 1997 to 27. 5. 1997 and again from 28. 8. 1997 to 30. 8. 1997 in pursuant to the arrest warrant issued to him was illegal and unlawful or not. Aand further whether they have followed the required procedure or not? These questions are answered by this Court on the basis of the pleadings and documents produced by the parties, keeping in view the law laid down by the Apex Court in the case referred to supra. The undisputed fact is that there is correspondance between IPND and ipr in connection with arrest warrant and detention of the petitioner. These questions are answered by this Court on the basis of the pleadings and documents produced by the parties, keeping in view the law laid down by the Apex Court in the case referred to supra. The undisputed fact is that there is correspondance between IPND and ipr in connection with arrest warrant and detention of the petitioner. The case of the petitioner is, that the respondents 2 and 3 without verifying the relevant records and documents, pertaining to the passport of the petitioner with regard to issuance of the visa in favour of the petitioner and the file pertaining to the case, the Arrest Warrant and Red corner Notice should have not issued in this regard and the respondents 2 and 3 should have been careful and with due diligence they should have examined the relevant records and documents and requested IPR to arrest the correct person against whom the arrest warrant was issued by the designated Judge. The documents Annexures 1 to 5, the correspondence made between ipnd the second respondent herein from 31. 7. 1996 to 15. 2. 1997 makes it abundantly very clear that, before arresting the petitioner in pursuant to the communication sent by IPND informing the IPR officials to arrest him and they have taken due care to see that correct person against whom arrest warrant was issued should have arrested as requested by IPND the 2nd respondent herein. The IPR have sought for certain particulars and details as mentioned vide annexure-Z from IPND with regard to address of Azeez Akbar and his telephone particulars. This document clearly goes to show about the action taken by IPND before issuing arrest warrant due care and caution should have been taken. Despite the message. was sent on 2. 9. 96 by Riyadh Officials stating that the details of the accused mohd. Azeez Akbar are not correct. The second respondent has not taken any action to inform the Riyadh officials. Therefore, again they have sent a reminder letter dated 14. 10. 96. This one document would clearly goes to show that respondents 2 and 3 have not taken due care and caution in taking necessary steps to furnish correct facts, particulars regarding the person against whom arrest warrant was issued as desired by them. Further, as could be seen from Annexure- 7, there was messages from IPR intimating to the IPND on 2. 9. 1996 to 14. Further, as could be seen from Annexure- 7, there was messages from IPR intimating to the IPND on 2. 9. 1996 to 14. 10. 1996 asking the respondents 2 and 3 for furnishing of the correct and relevant particulars, about the person whom they have to arrears in pursuant to red corner notice the officials of IPND the second respondent have not taken any action in that regard. ( 17 ) AS could be seen from Annexure-8 the message sent by the second respondent to IPR vide letter dated 18. 11. 1996 wherein the second and third respondents have informed IPR stating that accused azeez Akbar against whom Red Corner notice has been issued has assumed the name of Maqbool Pasha Hussaini Baig. [have perused the documents produced by both the parties with reference to the pleadings and rival contentions I have to record my findings while answering the points formulated by me as hereunder. The statement of facts contained at Annexure-8 are not supported with any documents. No documents are produced by the respondents 2 and 3 to substantiate their contentions urged in their counter statement though the petitioner has made specific petition averments in this regard and further the in-action on the part of the respondents 2 and 3 for releasing the petitioner at liberty from his unlawful detention on the ground that officials of IPR arrested him on wrong identity of the person. These undisputed facts and the circumstances are sufficient for this Court to record a finding of fact that second and third respondents have not taken due care and caution in sending the message to the office of IPR by furnishing the required relevant material particulars along with the relevant documents for their clarification as sought for by them. The contention of the respondents nos. 2 and 3 that the relevant documents maintained by the passport office as well as the second respondent were sent to IPR to arrest the person to whom they have issued red corner notice is one and the same is not tenable in law and therefore the same cannot be accepted. The contention of the respondents nos. 2 and 3 that the relevant documents maintained by the passport office as well as the second respondent were sent to IPR to arrest the person to whom they have issued red corner notice is one and the same is not tenable in law and therefore the same cannot be accepted. No materials are produced before this Court by the respondents 2 and 3 to show that they have taken due care and caution before making correspondence by them for arrest of the person sending message vide Annexure-8 to the office of IPR for arrest of the person on the basis of which they have arrested the petitioner. Further, the passport Nos. 538969 and 466995 pertains to the petitioner. The particulars given in the Annexures A, A1 and a2 to the office of IPR by the officials of IPND are different. Further, the document at Annexure-4 wherein it is stated that Azeez Akbar who has assumed the name of Mohd. Pasha Hussaini Baig, and the details that are given with regard to the name of the petitioner, his passport number are all from the records, with reference to the petitioner only. From the documents produced by the parties and the undisputed pleadings in this case the officials of IPND would clearly go to show that they have not taken sufficient care and caution in verifying the relevant documents and the file with regard to identity of the person whom they wanted to arrest in pursuant to the red corner notice issued by the 2nd and 3rd respondents. Further, from the documents produced by the petitioner and the respondents in respect of which documents, this Court has briefly referred to the relevant contents of the documents in preceding paragraphs of this judgment the same are considered by this Court and record its findings based on the contents of the documents holding the respondents have not discharged their duties in getting arrested the petitioner and detain him unlawfully and they have not furnished the particulars to the IPR as sought for by them for the purpose of correct identification of the person whom they wanted to arrest in pursuant to the Red Corner Notice issued by them. Further the second and third respondents themselves have admitted that petitioner was arrested and detained in the unlawful! Further the second and third respondents themselves have admitted that petitioner was arrested and detained in the unlawful! detention by the IPR at their instance of issuing the Red Corner Notice for arrest of the person who was required in the Tada Case at India and the respondents have made correspondence with "ipr, which documents would disclose that the respondents have not acted deligently taking all care for release of the petitioner immediately after the officials of the IPR asked the clarification regarding the identity of the person whom they were required to arrest in pursuant to the Red Corner notice issued by the respondents No. 1 and 2. ( 18 ) AFTER going through the said documents, I am of the view that, respondents 2 and 3 have not taken due care at all to verify the identity of the person on whom the arrest warrant was issued by the designated Judge of the TADA Court in respect of the case referred to above and in pursuant to which the Red Corner Notice was issued to IPR. Therefore, this Court has to record a finding after careful perusal of the undisputed documents produced by the parties that the case urged by the learned Counsel Mr. Raghavendra rao on behalf of the petitioner is well founded and same must be accepted. The reliance placed upon the Judgment of the Supreme court reported in JT 1999 (5) SC 237, for awarding damages by the learned Counsel for the petitioner with all fours applicable to the facts of this case. Therefore this Court has to record a finding on the basis of the. undisputed documents referred to supra holding that the action of respondents 2 and 3 in arresting and detaining the petitioner unlawfully by the officials of IPR pursuant to Arrest warrant issued by the designated Judge, TADA Court and the Red corner Notice issued at the instance of the respondents 2 and 3 in connection with the case referred to above is a clear case of unlawful and illegal detention of the petitioner, as he is nothing to do with the tada case referred to above and further the respondents have failed to discharge their statutory duties in not furnishing the relevant documents to the IPR as desired by them regarding the correct identity of the person whom they were required to arrest. ( 19 ) HAVING answered the point formulated by this Court that the detention of the petitioner is unlawful and illegal, thereby the fundamental rights guaranteed to him under Articles 14, 16, 19 and 21 "of the Constitution of India and Human rights guranteed as per human Rights Declaration Act, 1948 are violated. The next point for consideration of this Court is, having regard to the facts and the materials produced before this Court, and findings recorded by this court holding that the detention of the petitioner is unlawful and illegal due to careless action of the respondents, this Court has to answer as to whether this is a fit case for awarding exemplary damages as sought for by the petitioner. In this regard, reliance placed upon the Judgment of the Apex Court referred to above by the petitioner's Counsel is considered with reference to the law laid down in that case. In view of the law laid down by the Apex Court, this Court has to award compensation based on certain relevant material facts and the documents in this regard. Since the petitioner has not placed any material with regard to the quantum of compensation to be awarded in his favour of having infringed his fundamental rights for his unlawful detention by the Riyadh officials on the basis of the request made by the IP Officials at New Delhi and again he was detained on 28. 8. 97 at Bombay Airport. This is due to carelessness and negligent actions of the respondents 2 and 3. ( 20 ) REGARDING the second point formulated by me this Court records its findings with reasons as hereunder : this Court has already answered the first point in favour of the petitioner holding that action of respondents 2 and 3 in arresting him and detaining him unlawfully in custody from 16. 2. 1997 to 27. 5. 1997 and again he was arrested by the Airport Police at Bombay on 28. 8. 1997 and he was in the custody till 30. 8. 1997 at the instance of the !pnd. Therefore, the petitioner is entitled for the damages as claimed in this petition for violation of the fundamental rights guaranteed to him under Articles 14, 16 and 21 of the Constitution of India and the Human rights guaranteed to him as per the international covenants for which the first respondent is a signatory. 1997 at the instance of the !pnd. Therefore, the petitioner is entitled for the damages as claimed in this petition for violation of the fundamental rights guaranteed to him under Articles 14, 16 and 21 of the Constitution of India and the Human rights guaranteed to him as per the international covenants for which the first respondent is a signatory. The learned Counsel appearing on behalf of the petitioner Sri raghavendra Rao has placed strong reliance on the Judgment of the Supreme Court reported in AIR 1993 SC 1960 . AIR 1983 SC 1036 and the recent cases reported in JT 1999 (5) 237 wherein the apex Court reviewed the entire case law with reference to fundamental rights guaranteed to the-citizens and scope and ambit of power of this court in awarding damages by way of compensation in favour of the persons whose fundamental rights are affected. He has strongly placed reliance upon the Judgment of COMMON cause REGISTERED SOCIETY's CASE with reference to paragraphs 64, 105, 126, 127, 128, 129, 130 and 131, 134 and 135 contending that the documents produced in this case by the petitioner and the respondents would clearly go to show that action of respondents 2 and 3 in arresting the petitioner and detaining him unlawfully in the custody by the IPR and he has been in unlawful detention for more than three months and he was set at liberty in riyadh, again when he came to India, he was arrested at Bombay airport by the Airport Police at the instance of IPND and again he was in unlawful detention for three days at Bombay. Therefore, their action is arbitrary, unjustifiable which has resulted in violation of the fundamental rights guaranteed to the petitioner The Supreme Court in the case referred to supra has placed reliance on the Judgments of those of Lords reported in All England Reporter and number of cases of the Apex Court, wherein it has dealt with the similar contentions and clearly laid down the law with regard to the power of this Court in awarding compensation in the cases of this nature. Therefore, the learned counsel's submits that the law laid down in the case referred to above is applicable to the facts for awarding compensation in favour of the petitioner. Therefore, the learned counsel's submits that the law laid down in the case referred to above is applicable to the facts for awarding compensation in favour of the petitioner. ( 21 ) THE legal submissions of the petitioner's counsel has been countered by the learned Counsel appearing for the respondent 2 and 3 Sri Taranath Shetty and Sri Ponnappa, learned Counsel appearing for the first respondent, who has submitted that, the action of the respondents is neither arbitrary, unfair nor unreasonable and it is a mistaken identity of the person in requesting the IRP to arrest the petitioner and detain him in custody in pursuant to the arrest warrant issued by the Designated Judge of Tada Court and the Red corner Notice issued by the respondents 2 and 3. Therefore, they would submit that law laid down in the aforesaid case of the Apex court has no application to the fact of this case. In the background of their submission, the case of the petitioner is examined with reference to the case law upon which the reliance is placed by the learned Counsel appearing for the petitioner. in my considered view, the Supreme Court in the COMMON CAUSE case referred to supra has elaborately considered the variouspronouncements of the Apex court and the House of Lords. At paragraph 64 of the said Judgment, it has been held thus:"there is, therefore, not muchof a difference between the powers of the Court exercised here in this country under Article 32 or 226 and those exercised in England for judicial Review. Public law remedies are available in both the countries and the courts can award damages against public authorities to compensate for the loss or injury caused to the plaintiff/petitioner, provided the case involves, in this country, the violation of fundamental rights by the Government or other public authorities or that their action was wholly arbitrary or oppressive in violation of Article 14 or in breach of statutory duty and is not purely private matter directed against a private individual. " ( 22 ) AT paragraph 105, the Apex Court has held thus:"there after the Court proceeded to hear Mr. " ( 22 ) AT paragraph 105, the Apex Court has held thus:"there after the Court proceeded to hear Mr. Harish N. Salve on the question of damages and after considering certain English decisions on the question of exemplary damages and also the decision of this Court in Neelabati Behera vs State of Orissa JT 1993 (2) SC 503 (2), in which it was laid down that the damages can be awarded by this Court in a proceeding under Article 32 of the Constitution, the Court directed the petitioner to pay a sum of R. 50 lakhs as exemplary damages to the Govt. Exchequer, with the observation that since the property with which the petitioner was dealing was Govt. property, the Government, which is "by the people", has to be compensated. The Court further directed the petitioner to deposit the amount with the Secretary, ministry of Finance, Government of India within nine months. It was further provided that the amount, if not paid, would be recoverable as arrears of land revenue;" ( 23 ) BY careful consideration of the said Judgment referred to above it is clear that, any proceedings under Section 32 of the constitution, the Apex Court has got power to award damages against persons who have contravened the statutory provisions and violated the fundamental rights guaranteed to the citizens. In the same Judgment at paragraph 126, the Apex Court has elaborately considered the law with regard to the object of awarding of damages in favour of aggrieved persons by way of compensation either towards the damages, or the loss or injury they have suffered. Further at paragraph 126 of the said Judgment, it has been held as hereunder :"the object of an award of damages it to give the plaintiff compensation for damage, loss or injury he has suffered. The elements of damage recognised by law are divisible into two main groups; pecuniary and non-pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute, or replacement for other money but, as a substitute what Mogregor says, is generally more important than money; it is the best that a Court can do. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute, or replacement for other money but, as a substitute what Mogregor says, is generally more important than money; it is the best that a Court can do. "in Re: The Medianna (1900) A. C. 1300, Lord halsbury L. C. observed as under :"how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. But nevertheless the law recognises that as a topic upon which damages may be given. ""127. This principle was applied in Fletcher v. Autocarand transporters (1968) 2 Q. B. 322 and Parry v. Cleaner (1970) a. C. 1. ""128. In a suit for damages under the Law of Tort, the Court awards pecuniary compensation after it is proved that the defendant committed a wrongful act. In such cases, the Court usually has to decide three questions : 1. Was the damage alleged caused by the defendant's wrongful act? 2. Was it remote? 3. What is the monetary compensation for the damage? "133. Exemplary Damages made their appearance on the english legal scene in 1760s when in two cases, namely HUCKLE. v. MONEY and JOHN WILKES vs WOOD (1973) 2 Wils. KB 205 and (1763) Lofft 1 respectively, exemplary damages were awarded. These cases were followed by two other cases, namely, benson vs FREDRICK (1766) 3 Burr. 1845 relating to the tort of assault in TULLIDGE vs WADE (1969) 3 Wils KB 18 relating to the tort of seduction, and in both the cases exemplary damages were allowed. Exemplary damages, therefore, became a familiar feature of the Law of Tort and were even awarded in cases relating to trespass to land and trespass to goods. 1845 relating to the tort of assault in TULLIDGE vs WADE (1969) 3 Wils KB 18 relating to the tort of seduction, and in both the cases exemplary damages were allowed. Exemplary damages, therefore, became a familiar feature of the Law of Tort and were even awarded in cases relating to trespass to land and trespass to goods. Paragraph 135 is extracted hereunder : "lord Devlin then set out the categories in which, in his view, exemplary damages could be awarded as under : (1) Where there has been oppressive, arbitrary or unconstitutional action by the servants of the government; (2) Where the defendant's conduct has been calculated by him to make a profit which may well exceed the compensation payable to the plaintiff; and (3) Where such damages are expressly authorised by statute. " ( 24 ) IN view of the law laid down in the said case as extracted above, it is established from the facts, undisputed documents and the findings recorded by this Court, holding that the action of second and third respondents in getting arresting and detaining the petitioner and keeping him in unlawful and illegal custody by the officials of ipr is arbtirary and viotetive of Articles 14, 19 and 21 of the constitution of India. The action of second and third respondents is arbitrary and unreasonable in executing the arrest warrant issued by the designated Judge, TADA Court without making proper verification as to whether, the person to whom the arrest warrant is issued is the same person or somebody else. The Red Corner Notice issued to IPR by IPND to arrest the petitioner is without discharging the statutory duties by the respondents 1 and 2 which has resulted in violation of fundamental rights and Human rights guaranteed to the petitioner. Further, pursuant to the said action, the right to employment/avocation of the petitioner which was required to be carried on with his employment as guaranteed under Article 19 (1) (g) of the Constitution of India is affected. Further, the fundamental rights guaranteed under Article 21 of the Constitution is also affected as the petitioner's liberty was taken away by the respondents 2 and 3 in asking the IPR to arrest him and detain him in unlawful custody without following the procedure and discharging their duties deligently. No person shall be deprived of his personal liberty except following the procedure as established by law. No person shall be deprived of his personal liberty except following the procedure as established by law. This Court has already recorded a finding that the action of the respondents 2 and 3 is arbitrary and unreasonable as they have not followed the procedure required to be followed to ascertain the correct facts with reference to the relevant files and records pertaining to issuance of the passport and visa to the petitioner. The petitioner was not required to be arrested against arrest warrant issued by the designated Judge of TADA Court and Red Corner Notice issued by the respondents 2 and 3. Therefore, the action of concerned officials of respondents 2 and 3 in not following the procedure which was required to be followed at the time of executing the arrest warrant issued by the Designated judge of TADA Court and they have not deligently and properly assisted the officials of IPR for arresting the person against whom arrest warrant was issued. ( 25 ) IN this view of the matter, the petitioner not only sustainedpecuniary loss but also lost his employment and earning for more than three months, he has also been put to great mental agony and torture as his freedom and personal liberty has been curtailed to him by unlawful detention by the IPR officials at the instance of respondents 2 and 3. Therefore, in my considered view, as law laid down by the Supreme Court in the case referred to supra, pecuniary and non-pecuniary loss has been sustained by the petitioner. The pecuniary loss can be quantified as he was earning the definite salary per month through his employment at Riyadh. Non-pecuniary loss can be assessed by this Court as the petitioner has been deprived of his fundamental rights guaranteed to him under the Constitution and Human Rights on account of arbitrary action of respondents 2 and 3. The petitioner is entitled for compensation under the both heads. Further, as per the above Supreme Court Judgment referred to supra in the COMMON CAUSE Registered Society's case (para 126) as to how anybody has to measure pain and suffering in moneys counted? Nobody can suggest that he can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering of which a person has undergone by reason of an accident or on account of unlawful detention. Nobody can suggest that he can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering of which a person has undergone by reason of an accident or on account of unlawful detention. But nevertheless the law recognises that as the relevant aspects upon which damages may be given. The same principle is applicable here with reference to the arbitrary action of respondents 2 and 3 as the petitioner has been detained in unlawful detention on account of which, his aged parents died and the marriage which was fixed to him in India could not be performed. The petitioner has made several representations to the Police Department at New Delhi regarding his unlawful detention and to take necessary steps to clarify certain aspects to the IPR on account of which the petitioner and his parents have mentally suffered and agonised. For this reasons also, the petitioner is entitled for awarding the damages under 'non-pecuniary' head also as held by the Apex Court in the case cited supra. ( 26 ) FOR the reasons stated supra, the submission of the Learned Counsel for the petitioner relying on the Judgment of the Supreme court in the case of Common Causes, Registered Society's case referred to supra, is well founded and the same must be accepted. The said Judgment is applicable to the present case with all fours. This Court has already recorded a finding on the first point in favour of the petitioner that the action of respondents 2 and 3 in detaining him in unlawful custody for more than three months is not only arbitrary but also unreasonable and unfair. ( 27 ) ON the other hand, the submission of the learned Counsel for the respondents Sri Tharanath Shetty placing reliance on the judgment of Supreme Court reported in AIR 1997 SC 107 for the proposition that the petitioner was detained on a mistaken identity hence the action of respondents 2 and 3 is not arbitrary and unreasonable. From the counter statement it is noticed that, respondents have requested the IPR to execute the arrest warrant issued by the designated Judge, TADA Court on account of facts which stated therein by issuing Red Corner Notice. Therefore, it is a case of arbitrary exercise of power by the second and third respondents. From the counter statement it is noticed that, respondents have requested the IPR to execute the arrest warrant issued by the designated Judge, TADA Court on account of facts which stated therein by issuing Red Corner Notice. Therefore, it is a case of arbitrary exercise of power by the second and third respondents. Further respondents counsel sumbits the claim in respect of compensation to be awarded by this Court as prayed need not be granted by this Court in this case. The Judgment cited by the respondents Counsel as referred to above is not applicable to the facts of the present case, therefore the submission made in this regard is liable to be rejected. ( 28 ) HAVING answered the point in favour of the petitioner that action of respondents 2 and 3 is arbitrary and unreasonable, violative of fundamental and statutory rights of the petitioner in keeping him in unlawful custody for more than three months, therefore he is entitled for compensation. This Court has to consider as to what is the quantum of compensation which has to be awarded in favour of the petitioner. No-doubt the petitioner has not stated what is the pecuniary loss sustained by him by giving particulars regarding his salary and other monetary benefits for which he is entitled if he would have worked with his employer, but that itself is no ground for this Court for denying the relief of awarding compensation. The fact that he was in employment at Saudi Arabia is not disputed in the counter statement filed by the respondents 1 and 2. ( 29 ) IN the facts and circumstances of this case and in view of the findings recorded by this Court as above, this is a proper and fit case for this Court to award damages by way of compensation under both heads i. e. pecuniary and non-pecuniary to an extent of Rs. 1 lakh (One lakh), payable by the second and third respondents within two months from the date of receipt of this order. ( 30 ) FOR the reasons stated supra, the writ petition is allowed. Rule issued and made absolute. It is declared that the detention of the petitioner for the period mentioned above is arbitrary and illegal,. 1 lakh (One lakh), payable by the second and third respondents within two months from the date of receipt of this order. ( 30 ) FOR the reasons stated supra, the writ petition is allowed. Rule issued and made absolute. It is declared that the detention of the petitioner for the period mentioned above is arbitrary and illegal,. Further, having regard to the facts and the findings recorded by this court the respondent 2 and 3 are hereby directed to pay the compensation to the petitioner to an exten of Rs. 1 lakh within two months from the date of receipt of this order. But no costs are awarded. --- *** --- .