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TMI Blog2003 (10) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... l of protecting personal liberty, which obligated this Court to device guidelines to ensure such protection by balancing individual rights and the interests of the nation, as well. Any unscrupulous petitioners are approaching this Court under Article 32 of the Constitution challenging the order of detention directly without first approaching the concerned High Courts. It is appropriate that the concerned High Court under whose jurisdiction the order of detention has been passed by the State Government or Union Territory should be approached first. In order to invoke jurisdiction under Article 32 of the Constitution to approach this Court directly, it has to be shown by the petitioner as to why the High Court has not been approached, could not be approached or it is futile to approach the High Court. Unless satisfactory reasons are indicated in this regard, filing of petition on such matters, directly under Article 32 of the Constitution is to be discouraged. In view of the fact that the detenu has suffered detention for about the whole period of detention, we do not consider this a fit case for interference, hence dismissed. - 21 of 2002 - - - Dated:- 13-10-2003 - Doraiswa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts and details, nothing had in fact been furnished. The delay and the failure indicated above constituted violation of constitutional safeguards. It was brought to the notice of the High Court by the respondents before it that there was no representation made as claimed when the matter was taken up on 28-9-2000. Only three grounds were urged by the present respondent before the High Court. It was first contended that there was no material to support the conclusion that the detenu is a remand prisoner as was contended by the present appellant. Secondly, the materials/documents furnished to the detenu were illegible and this disabled the detenu from making an effective representation resulting in violation of the protection guaranteed under Article 22(5) of the Constitution of India, 1950 (in short "the Constitution"). Finally, it was contended that the documents supplied were illegible and, therefore, the detention order was vitiated and there was no necessity of going into the question whether the documents were relied upon, or material documents or otherwise. The High Court did not find any merit in the aforesaid three contentions and since no other point was pressed, the writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is impermissible in a review application particularly on such grounds. Thirdly, the High Court having accepted that there was no delay in dealing with the representation by the State Government and the Union of India after it reached them, it ought not to have held that there was unexplained delay in dealing with the representation. A person should not be allowed to take advantage of the concern shown by the Courts to protect personal liberty resorting to dubious and fraudulent methods to gain undeserved benefits by such manipulations. He should not be permitted to gain any advantage from such acts. It was further submitted that renegades who disturb peace and tranquility of citizens are like termites which corrode financial stability of the country with vicious designs file petitions full of falsehood and at times approach this Court under Article 32 even without approaching the jurisdictional High Court. It was in essence submitted that prerogative writs should not be issued in such cases to encourage the deceiters from gaining any advantage. 4.In response, learned Counsel for the respondent submitted that the detenu was really arrested on 27-2-2000 and the order of detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Clauses (1) and (2) contain the guarantee of the four fundamental rights enumerated above, Clause (3) contains two exceptions and provides that the constitutional guarantees do not apply to (a) enemy aliens, and (b) persons arrested or detained under any law providing for preventive detention. Clauses (4) and (7) are devoted to laying down certain fundamental principles as to preventive detention and guaranteeing certain fundamental rights to persons who are arrested under any law for preventive detention. The fundamental rights guaranteed by Clauses (4) to (7) to persons detained under any law for preventive detention relate, to the maximum period of detention, the provision of an Advisory Board to consider and report on the sufficiency of the cause for detention and the right to have the earliest opportunity of making a representation against the order of detention. Preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the liberty of the subject and forthwith the Judge will put all other matter aside and hear it. It may be an application for a writ of habeas corpus, or an application for bail but whatever form it takes, it is heard first." (Freedom under the Law, Hamlyn Lectures, 1949). 9.The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of States' security, public order, disruption of national economic discipline, etc., being envisaged as a necessary evil to be administered under strict constitutional restrictions. In Smt. Ichhu Devi v. Union of India (AIR 1980 SC 1983), this judicial commitment was highlighted in the following words : "The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade". "This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirement of the law and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention". In Vijay Narain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (6) QBD 376 : "Then comes the question upon, the habeas corpus. It is a general rule, which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the Court will not allow the imprisonment to continue." 11.One of the points raised by the respondent was that detenu being in custody, the anticipated and apprehended acts were practical impossibilities. 12.So far as this question relating to procedure to be adopted in case the detenu is already in custody is concerned, the matter has been dealt with in several cases. Where detention orders are passed in relation to persons who are already in Jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The writ has been described as a writ of right which is grantable ex dobito justitae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right. 14.In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. (See Rex v. Nallidev (1917 AC 26o); Mr. Kubic Dariusz v. Union of India and Others - 1990 (48) E.L.T. 171 (S.C.) = AIR 1990 SC 605. But at the same time, a person's greatest of human freedoms, i.e., personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however, technical is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... described as follows : "1. State of Tamil Nadu Rep. By its Secretary, Government of Tamil Nadu, Public (SC) Department, Fort St. George, Chennai, 600 009. Union of India,2. Rep. By its Secretary Ministry of Finance, Department of Revenue, New Delhi." 17.As noted supra, for the first time in the review application it was disclosed that the representation was made to the President of India and no representation was made to the State of Tamil Nadu or the Union of India who were arrayed in the writ petition as parties. This appears to be a deliberate attempt to create confusion and reap an undeserved benefit by adopting such dubious device. The High Court also transgressed its jurisdiction in entertaining the review petition with an entirely a new substratum of issues. Considering the limited scope for review the High Court ought not to have taken into account factual aspects which were not disclosed or were concealed in the writ petition. While dealing with a habeas corpus application undue importance is not to be attached to technicalities, but at the same time where the Court is satisfied that an attempt has been made to deflect the course of justice by le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "We are satisfied that the detenu in this case was apprised of his right to make representation to the appropriate Government/authorities against his order of detention as mandated in Article 22(5) of the Constitution. Despite knowledge, the detenu did not avail of the opportunity. Instead of making a representation to the appropriate Government or the confirming authority, the detenu chose to address a representation to the Advisory Board alone even without a request to send its copy to the authorities concerned under the Act. In the absence of representation or the knowledge of the representation having been made by the detenu, the appropriate Government was justified in confirming the order of detention on perusal of record and documents excluding the representation made by the detenu to the Advisory Board. For this alleged failure of the appropriate Government, the order of detention of the appropriate Government is neither rendered unconstitutional nor illegal." 20.Another aspect which has been highlighted is that many unscrupulous petitioners are approaching this Court under Article 32 of the Constitution challenging the order of detention directly without first approac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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