9911796707
TMI Blog1992 (5) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... , Sanwar Road, Industrial Area, Indore in the presence of panchas, in the early hours of 27-2-1992. When the search party reached the aforesaid premises they saw that one truck was parked in the premises from which some goods were being unloaded. One Canter Vehicle, two Maruti vans, one Scooter, one Motor Cycle were also found parked in the premises and some people were found remaining here and there. One of the petitioners Nitin Kumar Soni told that the premises belongs to him. One Truck No. OR-04-3735 was parked there in which three persons Amrik Singh, Kalvinder Singh and Ramsingh were sitting. Amrik Singh disclosed that he was the owner of that truck. Two other persons Aman Soni and Shashipal Mishra were unloading silver slabs, having foreign markings, from the truck. Then the search party found a pit and in that pit also some silver slabs were being dumped. On that spot one Omprakash Neema was found standing. There was false cavity in truck No. PR-04-5735 from where silver slabs bearing foreign marking were being unloaded. From the truck 9 silver slabs bearing foreign markings were also recovered. From a pit made in a shed of the premises 71 slabs of silver having foreign mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e smuggled goods. 5. The detention order has been challenged by the detenus on multi-pronged pleas, but the emphasis of the learned Counsel for all the detenus is that there is violation of Art. 22(5) of the Constitution of India in view of the fact that the earliest opportunity for making an effective representation was not afforded to the petitioners. The second ground on which emphasis is laid, is that the representation of the detenus made against the detention order to the detaining Authority was not considered and decided by the said Authority. The third ground is that the photostat copies of the documents supplied to the petitioners are mostly illegible and, therefore, the supply of the illegible copies would amount to non-supply of the material documents to the petitioners. There is variance between the English and Hindi version of the detention order and that shows that the Detaining Authority has not applied its mind to the record while passing the detention order. Another ground is that the document at Sl. No. 108 was despatched to the Detaining Authority on 13th and strangely enough the detention order has also been passed on itself and the Union of India has failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parameters of the existing Jail rules and other relevant instructions. It has further been stated that the Detaining Authority has no objection to the detenus having legal interview with their lawyer if the memo is permitted under the existing Jail Rules and other relevant instructions. But no order has been passed till this date on the prayer of the detenus making representations for their release from illegal detention. 8. It has been argued that the main prayer of the detenus was for seeking legal interview and, therefore, it was not necessary for the Detaining Authority to pass any order on the prayer of the detenus for their release. Furthermore this was not considered necessary in view of the pendency of the writ petitions. In our opinion, the law on the aforesaid subject is clear and has been laid down by the apex Court in unequivocal terms. As back as in the year 1975 in the case of Sk Sekawat v. The State of West Bengal - AIR 1975 S.C. 64 the Supreme Court has said that the language of Section 7 of the Maintenance of Internal Security Act and of Art. 22(5) of the Constitution of India makes obligatory on the State Government to consider the representation made by the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect the learned Counsel for the petitioners Shri J.P. Gupta has drawn our attention to the Supreme Court cases wherein the Supreme Court has held that in absence of any particular form having been prescribed for making representation, any prayer for release by a detenu to the Government irrespective of the law of pleadings has to be treated as a representation. In Smt. Icchu Devi Chorasia v. Union of India and Others - AIR 1980 S.C. 1983 the Supreme Court has held that in a writ of habeas corpus the strict rules of pleadings are not to be followed and no undue emphasis should be placed on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from Jail has been sufficient to activise the Court into examining the legality of detention. This authority of course is pertaining to the invoking of the writ jurisdiction of the court, but the principle laid down in the aforesaid judgment is that once a complaint about illegal detention is made it is for the Detaining Authority to satisfy the Court that the procedure prescribed by the law has been followed while detaining the detenu. 11. The case of Smt. Shalini Soni v. Union of India and Others - AIR 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on the representation made by the petitioners and in the light of the aforementioned discussion the petitions deserve to be allowed on this ground alone. 14. The second ground is about the grievance of the petitioners refusing them the opportunity to meet their lawyer at the earliest. It is true that the detenus have a right to have interview with a legal adviser of their choice. In the case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi - AIR 1981 S.C. 746 the Supreme Court considered the right of the detenu to have interview with lawyer and family members and also considered the restrictions imposed by the Delhi Administration in various clauses of the order regulating the right of detenu to have interview with lawyer and family members. Dealing with the aforesaid regulations the Supreme Court has held that our Constitution recognises the existence of power of preventive detention but is hedged-in by various safeguards set out in Articles 21 and 22, Art. 21 requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary. Therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners should be provided with the facilities to make a representation against their detention as soon as possible. Therefore, in our opinion, there is force in this argument also of the detenus that they were deprived of a precious opportunity of making effective a representation against their detention as soon as possible. 17. As regards the supply of photostat copies of some documents being illegible, we find that most of the copies are legible, but in copy at page 46, some words are missing copy at page 50 is of a notice which is very faint; copy at page 69 is legible, but can be read with some effort; copy at page 76 is legible except a few words and same is the case with copy at page 77. Copy at page 130 can be read with effort; copy at page 208 is not legible. Copy at page 222 is legible; copy at page 289 is also legible and can be read only with some effort; copy at page 290 is legible; copy at page 313 also is legible, copy at page 332 is legible. As such we find no force in this argument that the petitioners were not supplied with legible copies. 18. An argument has also been raised that the document at page 287 of the record is dated 13-3-1992 and it was despatched on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uctions appear necessary. 2. During hearing it was given out that applications for interview if denied are returned to Counsel or applicants with endorsement to that effect implying thereby that no corresponding record in the jail as regards the applications or refusals of interviews is kept. What is the sanction or authority behind such obnoxious practice was not indicated during the hearing. To say the least such procedure is arbitrary and requires modification and improvement. The application for interview even if it is refused must be kept in jail for proper record and refusal should be communicated separately or the applications should be taken into duplicate and refusal endorsed both on the application kept in jail with suitable endorsement to that effect on the duplicate remaining with the applicants or the Counsel. Corresponding record of the application and refusal should be kept in jail to avoid situation like the one arising from the affidavit of Jailor Shri S.P. Jain, sworn on behalf of the respondent No. 3, Superintendent of Jail. According to this affidavit on 30-3-1992 no application for interviews was filed on behalf of the petitioner-detenus by Mr. Ansar Hussain, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - the Jailor of his having refused interview and returned the application to Ansar Hussain. The Jailor does not know what his assistant has done. Everyone appears to be a cut unto himself. The procedure to say the least is most unsatisfactory and casual approach like this in a serious matter of detention should not be allowed or encouraged. Besides, in the foregoing circumstances the Jailor's seal ought not to have been permitted to be used by the warder who signed the application in a serious matter of detention and approach like the present one can undo as it has done, a decision of preventive detention taken at a fairly high level in the hierarchy of the Government. 4. It is not clear whether at the time the order of detention was passed any instructions or guidelines were given to the Superintendent of Jail in the matter of interview detenus as the same has not been placed before us. It is also unfortunate that the respondent No. 3 Superintendent Jail has himself not filed return in the matter leading to confusion as seen in the affidavit of Jailor Shri S.P. Jain and Assistant Jailor Ranjit Singh Bhati. The State Government and the Union Government would do well to evolve sui ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
