2019 (2) TMI 2030 - HC - Indian Laws

Writ of habeas corpus - seeking quashing of detention order of detenue - it is contended that there is nothing on record to show that the detention order had some nexus with the objective sought to be achieved - the purpose of detention order in the present case is preventive or punitive in nature? - HELD THAT - Learned counsel of Revenue have been heard, who however have not been able to show anything to the contrary to what has been stated by petitioner counsel. They have not been able to show anything contrary with regard to the law as cited, as has been placed before this Court by the counsel of petitioner. In view of the aforesaid facts and circumstances, case for grant of indulgence is made out. The petitioner who is detained in custody in pursuance of the detention order dated 08.07.2018 and subsequent orders by means of which the petitioner has been detained is hereby released from custody. He shall be released from custody forthwith until and unless wanted in some other case. The Detention Order dated 08.07.2018 and all subsequent orders are hereby quashed. The habeas corpus writ petition is allowed.

Summary

Issues Involved:
1. Validity of the detention order dated 08.07.2018.
2. Whether the detention order was preventive or punitive in nature.
3. Detaining authority's satisfaction and application of mind.
4. Right to effective representation and supply of necessary documents.
5. Right to legal representation before the Advisory Board.

Detailed Analysis:

1. Validity of the Detention Order Dated 08.07.2018:
The petitioner challenged the detention order dated 08.07.2018, which was based on an FIR lodged against unknown persons on 24.01.2018. The petitioner was not named in the FIR, and the detention order was claimed to lack a nexus with the objective sought to be achieved. The court noted that the detention order was issued in a mechanical manner without proper application of mind by the detaining authority, rendering it invalid.

2. Whether the Detention Order Was Preventive or Punitive in Nature:
The petitioner argued that the detention order was punitive rather than preventive. The court referenced the Supreme Court's judgment in "Ashok Arora alias Ashoki Thekadar vs. State of Uttar Pradesh" and "Rekha vs. State of Tamil Nadu," emphasizing that preventive detention should not be used as a substitute for punitive measures. The court concluded that the detention order in question was indeed punitive.

3. Detaining Authority's Satisfaction and Application of Mind:
The court scrutinized the satisfaction recorded by the detaining authority and found it to be in a set language, indicating a lack of genuine application of mind. The court cited the Supreme Court's judgments in "Md. Sahabuddin vs. District Magistrate 24 Paraganas" and "SK Serajul vs. State of West Bengal," which stress the necessity for the detaining authority to apply its mind to the specific facts and circumstances of each case.

4. Right to Effective Representation and Supply of Necessary Documents:
The petitioner contended that essential documents required for making an effective representation were not supplied. The court noted that the District Magistrate did not provide the requested documents, which hampered the petitioner's ability to make an effective representation. The court cited the Supreme Court's judgment in "Ram Chandra A. Kamat vs. Union of India," which mandates the timely supply of documents referred to in the grounds of detention to ensure the detenue's right to make an effective representation.

5. Right to Legal Representation Before the Advisory Board:
The petitioner was denied the services of a legal advocate before the Advisory Board, despite specifically requesting it. The court referenced the Supreme Court's judgment in "Choith Nanikram Harchandani vs. State of Maharashtra," which held that if the detaining authority is represented by legal counsel, the detenue must also be allowed legal representation to ensure fairness and compliance with Article 14 of the Constitution.

Conclusion:
The court found that the detention order dated 08.07.2018 and subsequent orders extending the detention were issued without proper application of mind and in a punitive rather than preventive manner. The failure to supply necessary documents and denial of legal representation further violated the petitioner's rights. Consequently, the court quashed the detention order and directed the petitioner's immediate release, provided he was not wanted in any other case. The habeas corpus writ petition was allowed.