TMI Blog2019 (2) TMI 2030X X X X Extracts X X X X X X X X Extracts X X X X ..... s are hereby quashed. The habeas corpus writ petition is allowed. - HABEAS CORPUS WRIT PETITION No.3652 of 2018 - - - Dated:- 1-2-2019 - Hon'ble Vipin Sinha and Hon'ble Ajit Singh, JJ. Counsel for Petitioner :- Chandrakesh Mishra, Daya Shankar Mishra Counsel for Respondent :- G.A., A.S.G.I., Narendra Deo Rai JUDGEMENT Hon'ble Ajit Singh, J. Heard Sri Daya Shankar Mishra, learned Senior Advocate assisted by Sri Chandrakesh Mishra, learned Counsel for the petitioner, Sri Alok Ranjan Mishra, learned Counsel for Union of India and Sri Patanjali Mishra, learned AGA appearing on behalf of the State-respondents. The present Habeas Corpus writ petition has been filed seeking the quashing of the detention order dated 08.07.2018. The relief as sought in the writ petition is herein under: At the very outset, it may be appreciated that the present proceedings are culmination point of First Information Report dated 24.01.2018 with regard to an incident said to have taken place on 23.01.2018 as at the very outset, it may be noted that as far as the said FIR is concerned, copy of which has been annexed as Annexure no.7 to the writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 5 SCC 244, wherein in paragraphs no. 23, 27 and 30 the Court has held thus:- 23........In our opinion, the ordinary law of the land was sufficient to deal with this situation, and hence, recourse to the preventive detention law was illegal. 27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, this is , where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed. 30. Whenever an order under a preventive detention law is challenged one of the questions the court m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 16.07.2018. A further plea has been taken that even the services of a legal advocate were not provided, though the same was specifically sought for by the petitioner. Reliance has been placed on the averments made in paragraph no.28 of the writ petition. Sri D. S. Mishra appearing for the petitioner has very categorically made a statement before the Bar of this Court that the documents which were sought for by the petitioner were not supplied to him for the purpose of filing of an effective representation as well as the relief sought by the petitioner that he may be provided the services of an advocate was not considered by the authority concerned remains undisputed and unrebutted on record. Thus it remains unrebutted that the specific documents which finds a specific mention in the representation of the petitioner dated 16.07.2018, to the District Magistrate annexed with the writ petition itself were not supplied and nor the services of an advocate/legal representative were provided to him, even though they were specifically sought for by the petitioner in view of the fact that the State Government, the sponsoring authority as well as Union of India were fully represented by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se that such officers are not 'legal practitioners' or legal advisers. Regard must be had to the substance and not the form since, especially, in matters like the proceedings of Advisory Boards, whosoever assists or advises on facts or law must be deemed to be in the position of a legal adviser. We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them. Serving or retired Judges of the High Court will have no difficulty in understanding this position. Those who are merely 'qualified to be appointed' as High Court Judges may have to do a little homework in order to appreciate it. 15. In our considered opinion, since the detaining authority was represented by the officers at the time of hearing of the petitioner's case before the Advisory Board, the petitioner too was entitled to be represented through legal practitioner. Since no such opportunity was afforded to the petitioner though claimed by him, he was denied an opportunity of a fair hearing before the Advisory Board, which eventually resulted in passing an adverse order. In support of his second contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the detaining authority to satisfactorily explain the delay, if any, in furnishing even such documents which had been demanded. It will be relevant to quote para No. 7 and 8 of the said judgment which reads as follows: (7) It is alleged by the detenue that there had been unreasonable delay in furnishing of the statements and documents referred to in the grounds of detention. It is the duty of the detaining authority to satisfactorily explain the delay, if any, in furnishing of these documents. We are in this context not referring to the statements and documents not referred to in the grounds of detention for it may be that they are not in the possession of the detaining authority and that reasonable time may be required for furnishing copies of the relevant documents which may not be in his possession.(8) If there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied. The detention cannot be said to be according to the procedure prescribed by law. When the Act contemplates the furnishing of grounds of detention ordinarily within five days of the order of detention, the intention is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments was not furnished to the petitioner. 5 . On the basis of the above mentioned assertion the learned counsel for the petitioner contends that the State Government in its counter-affidavit has almost conceded that it relied upon the proposal sent to the Government by the custom officials and since the proposal which had been relied upon had not been furnished to the detenus, the order of detention should be treated as illegal. Sri A. D. Giri relied upon the judgment of this Court in the case of Jagdish alias Takru v. State of U. P. (Habeas Corpus Petn. No. 1607 of 1987) which has accepted the view canvassed by the petitioner to the extent that if such a proposal, which has been relied upon, has not been furnished to detenu then the continued detention of the petitioner is rendered illegal in spite of the plea of Article 22(6). 6. The learned counsel also relied upon yet another judgment of this Court in Habeas Corpus Petn. No. 16562 of 1988, Harish Gandhi v. Supdt., Central Jail, Naini, in which the same proposition as canvassed by him had been accepted. 7. Sri Prem Prakash, learned Additional Government Advocate, however, challenged the correctness of the aforesaid tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the documents had not been relied upon by the State while passing the order of detention, it was not necessary to supply those documents to the petitioner. It is contended by the learned Government Advocate that the petitioner, in fact, was not in any manner deprived of his right to make a representation in the absence of these documents and that these documents were just demanded by him without any valid reason. 12. It will be relevant to refer to the following passage of the judgment of the Supreme Court in the case of Bhawar Lal Ganeshmalji v. State of Tamil Nadu, AIR 1979 SC 541. The relevant passage occurring at page 545 in the first column is reproduced below: We agree with the learned counsel for the petitioner that in order to make a representation against the order of detention and thus to exercise the fundamental right guaranteed by Article 22(5) of the Constitution, a detenu is entitled to be furnished with all essential particulars forming the basis of the grounds of detention. So it is that where insufficient particulars are mentioned in the grounds the detenu is entitled to call for better particulars. That is a right which flows from the constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... answer to para 15(g) of the appellant's petition both of which have been already set out above. 13. All these observations were made with reference to the privilege which could be claimed by the State under Article 22(6) of the Constitution but it also implies that the Supreme Court was clearly of the view that if a detenu asks for some particulars, then an obligation is cast on the detaining authority to inform the detenu whether such material is being supplied to him and if not, then on what ground. Admittedly in the present case, no information was addressed to the petitioner by the detaining authority as it appears that his request for the documents being furnished to him had not been considered. Shri Prem Prakash, learned Additional Government Advocate contended that the statement made by the petitioner's brother Ravi Shankar Singh and his mother were in respect of the recoveries relating to Ravi Shanker Singh alone, and it has no nexus with the recovery of the petitioner. Be that as it may, the fact that, the detaining authority was under obligation to inform the petitioner in this regard and in any case, since the Government was not claiming privilege under Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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