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1986 Supreme(All) 379
IN THE HIGH COURT OF ALLAHABAD
R. K. Shukia, B. L. Yadav
HIRA LAL PANDEY - Appellant
Versus
STATE OF UTTARPRADESH - Respondents
Habeas Corpus Petition 6993 Of 1986
Decided On : 11/10/1986
D.S.MISHRA, J.S.SANGAR, P.N.KATJU
The grounds of detention must have proximity in time to provide a rational nexus between the incidents relied upon and the satisfaction arrived at in respect of Public Order. The materials in support of the grounds are an integral part of the grounds and must be served on the detenu. The detenu has a right to be heard before the Advisory Board and can be represented by a next friend, even if the next friend is an Advocate.
Headnote:
NATIONAL SECURITY ACT - DETENTION ORDER - DELAY IN ARREST - GROUNDS OF DETENTION - SUPPLY OF MATERIALS - HEARING BEFORE ADVISORY BOARD - REPRESENTATION THROUGH NEXT FRIEND - PRINCIPLES OF NATURAL JUSTICE - WRIT OF HABEAS CORPUS. 1. Inordinate delay in passing the order of detention and the actual arrest of the petitioner, especially when as Pradhan, Block Pramukh he attended a number of meetings, certainly throws considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate in passing the impugned order of detention. 2. The grounds of detention served on the petitioner have no proximity in time to provide a rational nexus between the incidents relied upon and the satisfaction arrived at in respect of Public Order. 3. The grounds of detention cannot be said to be complete unless they are accompanied by the materials (i.e. F.I.R. or judgment and order etc. in some case), on the basis of which grounds were based and opinion was formed. The materials are the integral part of the grounds. 4. The petitioner was denied the right of hearing before the Advisory Board and the principles of natural justice were violated. 5. The order of detention cannot be sustained and is hereby quashed.
Fact of the Case:
The petitioner was detained under the National Security Act (NSA) on the ground of acting in a manner prejudicial to the maintenance of public order. The petitioner challenged the detention order on the grounds of delay in arrest, stale and irrelevant grounds of detention, non-supply of materials in support of the grounds, and denial of opportunity of hearing before the Advisory Board.
Finding of the Court:
The Court found that there was inordinate delay in passing the detention order and the actual arrest of the petitioner, which cast doubt on the genuineness of the subjective satisfaction of the District Magistrate. The grounds of detention were stale and irrelevant and did not provide a rational nexus between the incidents relied upon and the satisfaction arrived at in respect of Public Order. The materials in support of the grounds were not served on the petitioner. The petitioner was denied the right of hearing before the Advisory Board as his next friend, who was an Advocate, was not permitted to represent him.
Issues: 1. Whether the delay in arrest cast doubt on the genuineness of the subjective satisfaction of the District Magistrate? 2. Whether the grounds of detention were stale and irrelevant? 3. Whether the materials in support of the grounds were served on the petitioner? 4. Whether the petitioner was denied the right of hearing before the Advisory Board?
Ratio Decidendi: 1. The Court held that inordinate delay in passing the detention order and the actual arrest of the petitioner, especially when he attended a number of meetings as Pradhan and Block Pramukh, cast considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate. 2. The Court held that the grounds of detention were stale and irrelevant and did not provide a rational nexus between the incidents relied upon and the satisfaction arrived at in respect of Public Order. 3. The Court held that the materials in support of the grounds were not served on the petitioner. 4. The Court held that the petitioner was denied the right of hearing before the Advisory Board as his next friend, who was an Advocate, was not permitted to represent him.
Final Decision: The Court quashed the detention order and directed the petitioner to be set at liberty forthwith.
( 1 ) THE petitioner has filed the present habeas corpus petition under Article 226 of the Constitution of India against the detention order dated 16. 11. 1984 (Annexure I to the petition) passed under section 3 (2) of the National Security Act (for short the Act) and the order dated 26. 11. 84 (Annexure T9t) confirming the order of detention.
( 2 ) THE facts of the case need not detain much. According to the case of the State the petitioner, immediately after passing the order of detention dated 16. 11. 1984, absconded and could not be arrested till 22. 5. 86, when the detention order was served on him along with nine grounds of detention coupled with other materials on which reliance was placed. The Advisory Boards opinion was received under Section 10 to this effect that there was sufficient cause for detention of the petitioner. Thereafter the detention order was confirmed by the State Government vide its order dated 26. 11. 84 (Annexure 9 ). The petitioner has challenged these two order dated 16. 11. 84 and 26. 11. 84.
( 3 ) SRI D. S. Misra, the learned counsel for die petitioner, urged before us that even though the order of detention was passed on 16. 11. 84 but the petitioner was actually arrested on 21/22. 5. 86 and before that according to the case set up by the State, the petitioner was absconding. In that event the procedure prescribed for a person who has absconded, as provided under Section 7 of the Act ought to have been followed, and a report must have been made to the Metropolitan Magistrate or the Judicial Magistrate, First Class, having jurisdiction over the place, there the petitioner ordinarily resided and the order must have been published in the Official Gazette and the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 must have been complied with. But no such report was made. There is no explanation as to wby the order of detention passed on 16. 11. 1984 could not be served on the petitioner till 21/22. 5. 1986, particularly when he was Pradhan and also a Block Pramukh of Pahari. During that period he has presided or attended a number of meetings, which were attended by some Govt. Officials or the other (vide Para 5 and Annexures 1 to 17t of Rejoinder Affidavit ). The grounds disclosed have no nexus to the order of detention and a number of grounds are stale, and the remaining grounds do. not raise a question of Public Order. The First Information Reports and other materials forming the basis of the grounds were not supplied to the petitioner and he was deprived of the right of hearing. The proceedings before the Advisory Board were held in violation of the principles of natural justice. The petitioner fell seriously ill as he has serious anginapector is pain. According to Jail Doctor he was unable to undertake journey. He wanted to be represented through his next friend Sri Ram Nath Dubey, Advocate. But on 7th July, 1986, on the date fixed for hearing before the Advisory Board at Lucknow, neither the petitioner was present nor heard. His next friend Sri Dubey was not heard on the ground that he was a practising lawyer. Sri Dubey did not represent the petitioner as a lawyer but as a next friend.
( 4 ) SRI Surendra Nath Singh, the learned Asstt. Govt. Advocate appearing for the State, refuted the contentions raised by the learned counsel for the petitioner and supported the order of detention. He urged that the publications was made in the gazette about he fact that the petitioner had absconded. This was sufficient compliance of Section 7. The grounds served on the petitioner were relevant and were the grounds pertaining to the Public Order and not Law and Order. The petitioner was afforded sufficient opportunity of hearing as required by Section 11 (I) and (4) of the Act but he did not avail it. Sri R. N. Dubey the alleged next friend of the petitioner was a legal practitioner, hence he could not represent the petitioner. Consequently, the Advisory Board wa
