Sharad
Kumar Tyagi Vs. State of Uttar Pradesh & Ors [1989] INSC 18 (18 January 1989)
Natrajan,
S. (J) Natrajan, S. (J) Dutt, M.M. (J)
CITATION:
1989 AIR 764 1989 SCR (1) 257 1989 SCC (1) 736 JT 1989 (2) 21 1989 SCALE (1)138
ACT:
National
Security Act 1980 Sections 3(2), 7(2) and 11--Detenu-Demanding Chauth for gundagardi
of mango--On refusal to pay-Threatening contractors and shop-keepers--Reports
lodged with police--Whether inci- dents affect 'Law and Order' or 'maintenance
of public order'--Detention order--Whether valid.
Advisory
Board--Representation by friend--Duty of detenu to make the request.
Detention
order--Challenge to---On ground of delay in arrest of detenu--When sustainable.
HEAD NOTE:
On April 5, 1988 an order of detention was passed against
the petitioner in the writ petition under s. 3(2) of the National Security Act.
He could not be served with this order and taken into preventive custody as he
was abscond- ing. He was treated as an absconder and resort was had to s. 7(2)
of the Act. A proclamation was obtained against him under Sections 82 and 83 of
the Criminal Procedure Code 1973 and was executed on May 5, 1988. He surrendered thereafter in Court on July 4, 1988 and was sent to the District Jail
where he was served the detention order and the grounds of detention on July 5, 1988.
In the
grounds of detention three incidents were enumer- ated indicating that the
petitioner had acted in a manner which was against the maintenance of public
law and order situation. The incidents were:
(1) On
July 8, 1987 the petitioner had gone along with
his associates and threatened the contractor of a mango garden that fees for goondagardi
(Chauth) should be paid to him and assaulted the contractor. The matter was
reported to the police who registered a case under Sections 301 and 323 I.P.C..
(2) On
February 11, 1988 the petitioner threatened a
shopkeeper that he should pay Rs. 10,000 immediately falling which he would killed.
The shopkeeper reported the matter to the police who had 258 registered a case
under s. 506 I.P.C.
(3) On
March 3, 1988 the petitioner taking a Revolver in
his hand moved in the market area and, threatened the shop- keepers if they do
not pay 'Chauth' they could not open their shops. On account of this threat the
entire market was closed.
The
grounds of detention also informed the petitioner that he could make a
representation under s. 3 of the Act and that the matter would be submitted
under s. 10 to the Advisory Board, and that he could make any representation
for the consideration of the Board.
The
meeting of the Advisory Board was fixed on August 2, 1988. The Board considered the written
and oral representa- tions of the petitioner and gave a report that there was
sufficient cause for the detention of the petitioner. The State Government
accepted the report of the Advisory Board and passed a further order on August
17/18, 1988 confirming the detention of the petitioner.
In the
writ petition to this Court the detention order was assailed on the following
grounds:
(1)
The three grounds set out in the grounds of deten- tion are not incidents which
would affect the maintenance of public order or the even tempo of the life of
the community.
(2) the
third incident has been concocted in order to give credibility to the detention
order.
(3)
The petitioner was denied the opportunity to have the assistance of a friend
when he appeared before the Advisory Board, and
(4)
That the Central Government had not considered the petitioner's case when the
State Government sent a report under section 3(5) of the Act and the nonapplication
of mind by the Central Government vitiates the detention of the petitioner.
Dismissing
the writ petition,
HELD:
1 .(a) The demand for chauth from the contractor and the attack launched on him
would show that it was not a case of singling out a particular contractor for
payment of chauth but a demand expected to be complied with by all owners or
contractors of mango groves in the locality. In such circumstances the demand
made and the attack launched would undoubtedly cause fear and panic in the
minds of all the owners and contractors of mango groves in that area, and this
would have affected the even tempo of life of the community. [265E-F] 259 l.(b)
The incident in the second ground must also be viewed in the same manner in
which the first incident has been construed as indicated above. It is not as if
the demand and the threat following it were made against Ashok Kumar in an
isolated manner. On the other hand, the demand had been made as part of a
scheme to extort money from all the shopkeepers under a threat that their
continuance of business and even their lives would be in danger if chauth was
not paid. This demand would have certainly made all the shopkeepers in that
locality feel apprehensive that they too would be forced to make payments to
the petitioner. and that otherwise they would not be allowed to run their
shops.
[265G-H;
266A-B] l.(c) In so far as the incident in the third ground is concerned, the
petitioner is stated to have taken a revolver with him and threatened all the
shopkeepers in the market, that if anyone failed to pay 'chauth' he would not
be al- lowed to open his shop and he would have to face the conse- quences.
This incident cannot be considered as merely caus- ing disturbance to the law
and order situation but must be viewed as affecting the even tempo of life in
the market.
[266B-D]
l.(d) Whether an act relates to law and order or to public order depends upon
the impact of the act on the life of the community. In other words if the reach
and effect and potentiality of the act disturb or dislocate the even tempo of
the life of the community, it will be an act which will affect public order.
[266E, G] In the instant case, it cannot be said that the demands made and
threats given by the petitioner to the contractors and shopkeepers as mentioned
in the three grounds would have its reach only to the limited extent of
affecting the law and order situation, and not go so far as to affect the
maintenance of public order. [267E] Dr. Ram Manohar Lohia v. State of Bihar, [1966] 1 SCR 709; Arun Ghosh v.
State of West Bengal, [1970] 3 SCR 288; Nagendra Nath Mondal v. State of West Bengal, [1972] 1 SCC 498; Nandial Roy v.
State of West Bengal, [1972] 2 SCC 524 referred to and Gulab
Mehra v. State of U.P., [1987] IV SCC 302, distinguished.
2. It
is not possible to accept the contention that third incident referred to in the
grounds of detention is a concocted altair. The records go to show that H.C. Khajan
Singh had promptly reported the incident at the police station and the truth of
his report had been verified by Inspector R.C. Verma. [267H; 268A] 260 State of
U.P. v. Kamal Kishore Saini, AIR 1988 SC 208 at 213 referred to.
3.
Though the Advisory Board had permitted the detenu to appear along with a
friend the detenu had failed to take a friend with him. He did not also
represent to the Advisory Board that he did not have adequate time to get the
services of a friend and that he required time to have the services of a
friend. Such being the case, he cannot take advantage of his own lapses and
raise a contention that the detention order is illegal because he was not
represented by a friend at the meeting of the Advisory Board. He did not also
choose to represent to the Advisory Board that he was not given sufficient time
to secure the service of a friend. [271C-D; 272B] 4.(a) The Central Government
had in fact considered the report sent by the State Government under section
3(5) of the Act, and saw no reason to revoke the detention order in exercise of
its powers under s. 14. [272D] 4.(b) The petitioner was absconding and
proclamations were made under sections 82 and 83 Cr.P.C. and it was only
thereafter the petitioner had surrendered himself in Court.
The
challenge to the detention order on ground of delay in arrest is not
sustainable. This is not a case where the petitioner was freely moving about
but no arrest was effect- ed because his being at large was not considered a
hazard to the maintenance of public order. [272F]
CRIMINAL
ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 359 of 1988.
(Under
Article 32 of the Constitution of India. ) R.K. Jain, R.K. Khanna and A.S. Pundir for the Petitioner.
Yogeshwar
Prasad, Mrs. Rachna Gupta, Mrs. Rachna Joshi, Dalveer Bhandari, Ms. C.K. Sucharita
and Ms. A. Subhashini for the Respondents.
The
Judgment of the Court was delivered by NATARAJAN, J. This petition under
Article 32 of the Constitution of India has been filed by the petitioner to
seek the issue of appropriate writs for quashing an order of detention passed
against 261 him under Section 3(2) of.-the National Security Act (here- inafter
the 'Act') by the State of Uttar Pradesh and for his release from custody. On April 5, 1988 an order of detention was passed
against the petitioner under Section 3(2) of the Act but the petitioner could
not be served the order of detention and taken into preventive custody as he
was ab- sconding. Consequently he was treated an absconder and resort was had
to Section 7(2) of the Act and a proclamation was obtained against him under
Sections 82 and 83 of the Criminal Procedure Code on May 4, 1988 and the said
order was executed on May 4, 1988. Thereafter the petitioner surrendered
himself in Court on July
4, 1988 and he was
sent to the District Jail at Meerut where
he was served the detention order and the grounds of detention on July 5, 1988.
In the
grounds of detention three grounds were set out for the detention of the
petitioner and they read as fol- lows:
1. On
8.7.87 at about 9.30 P.M. in the night at Kasba Sardhana, Police Station Sard- hana
(Meerut) you alongwith your other compan- ions went to the garden of Lala Om Prakash
Jain which is in the possession of Yusuf S/o Ismail on contract. You said to Yusuf
etc. who were present there that they do not pay the (CHAUTH) fee for
GUNDAGARDI of the Mango, therefore, you using abusive language said "Kill
the Salas, so they may vanish for ever and you people with an intention to kill
Yusuf etc. assaulted them. On the information of Shri Yusuf a case has been
registered against you as Crime No. 211 under Sections 307, 323 I.P.C., which
is under consideration of the Court. Due to your aforesaid misdeed terror in Sardhana
and in District Meerut terrorism has spread and in this way you have acted in
such manner which is against the Maintenance of Public Law and order situation.
2. On
11-2-88 at about 11.00 A.M. in the day at the Binauli Road in Kasba and Police
Station Sardhana you alongwith your companion Vinay Kumar went to the Shop of Shri
Ashok Kumar and you threatened Shri Ashok Kumar that he should pay Rs. 10,000
(Ten thousand) by tomorrow or day after tomorrow otherwise he will be killed.
On the basis of information of Shri Ashok Kumar Crime No. 48 under Section 506
I.P.C. has been diarised which is under consideration. Due to your aforesaid
indecent terror in Kasba Sardhana and in the District of Meerut terrorism has
prevailed and in this way you have acted in such manner which is against the
maintenance of the Public Law and Order situation. 262
3. On
3.3.88 in the Kasba of Sardhana, Police Station Sardhana, District Meerut, you
taking a Revolver in your hand in the market of Sardhana said to the
Shopkeepers that who so-ever will not pay money (CHAUTH), he cannot open the
shop in the market, due to which the shops were closed in the market. H.C. Khajan
Singh with the help of other employ- ees when tried to arrest you then you ran
away on the Motor Cycle alongwith your companion while firing in the air.
Information
to this effect has been got diarised by HC. Khajan Singh at Police Station in
G.D. No. 14 at 10~10 hours and investigation to this effect has been done by
the Inves- tigation Inspector Shri R.C. Verma and on investigation the
aforesaid incidents were found correct and entry to this effect has been
carried out at G.D. No. 33. By your afore- said indecent activity in Sardhana
and in District Meerut terrorism has prevailed and in this way you have acted
in such manner which is against the provisions of Maintenance of Public law and
Order situation.
The
grounds of detention also set out the following:
(1)
The petitioner if he so desires could make repre- sentation under Section 8 of
the Act to the Home Secretary, Ministry of Home, State Government through the
Superintend- ent of Jail at the earliest possible;
(2) That
the papers relating to the petitioner's detention would be submitted under
Section 10 of the Act to the Advisory Board within three weeks from the date of
detention and that if the representation is received late it would not be
considered by the Advisory Board;
(3)
That if the petitioner so desired he could also make representation to the
Government of India by addressing the representation to the Secretary,
Government of India, Ministry of Home (Internal Security Department), North
Block, New Delhi through the Superintendent of the Jail, and
(4)
That if under the provisions of Section 11(1) the petitioner desired to have a
personal hearing by the Adviso- ry Board he should specifically make mention of
it in his representation or he should inform the State Government of his desire
through the Jail Superintendent.
263 It
is common ground that the petitioner made a represen- tation to the Government
against his detention and the order passed therefore. Therein he had set out
that he wished to have the services of a friend at the time of the meeting of
the Advisory Board to make representations on his behalf.
The
representation was received by the District Magistrate, Meerut on July 15, 1988. After receipt of the comments of the SSP, Meerut the representation along with the
comments of the District Magistrate were sent to the State Government on July 21, 1988. Even prior to it the copies of the
repre- sentation were forwarded to the State Government and the Advisory Board
on July 19, 1988. The representation was considered
and rejected by the State Government on July 28, 1988 and the petitioner was informed of
the same through the Jail Superintendent, Meerut.
The
meeting of the Advisory Board to consider the case of the petitioner was fixed
on August 2, 1988 and a Radio- gram was sent by the State Government to the
District Magis- trate and the Superintendent District Jail, Meerut informing
the date of the meeting of the Advisory Board. The Radio- gram further set out
as follows:
"Board
further directs that either District Magistrate or Superintendent of Police to
appear before the Board on the date of hearing with.all relevant records and on
request of the detenu his best friend (non-advocate) may also be allowed to
appear with him." A copy of the Radio-gram was sent to the Jail
Superintendent and it was shown to the petitioner and his acknowledgement was
obtained. The Adviso- ry Board considered the written and oral representations
of the petitioner and gave a report that there was sufficient cause for the
detention of the petitioner. The State Govern- ment accepted the report of the
Advisory Board and passed a further order on August 17/18, 1988 confirming the
detention of the petitioner. Thereafter the petitioner has come for- ward with
this petition under Article 32 of the Constitu- tion.
In his
petition, the petitioner has raised several grounds to assail his detention,
one of them being the non- furnishing of the investigation report of Shri R.C. Verma,
Inspector of Police who had verified the truth and correct- ness of the report
of HC 1057 Khajan Singh about the inci- dent which took place on March 3, 1988.
However, during the hearing of the writ petition no arguments were advanced in
respect of this ground of objection.
Mr.
Jain, learned counsel for the petitioner assailed the order of detention on the
following grounds:
264
(1) All the three grounds set out in the grounds of detention even if true, are
not incidents which would affect the maintenance of public order and at best
they can be con- strued only as offences committed against individuals or
incidents which are likely to affect the law and order situation.
(2)
The third ground is a concocted incident in order to give credibility to the
detention order by making it appear that the petitioner was indulging in
anti-social acts which affected the maintenance of public order.
(3)
The petitioner was denied opportu- nity to have the assistance of a friend when
he appeared before the Advisory Board on August 2, 1988.
Besides
these contentions Mr. Jain also raised a fourth contention that under Section
3(5) of the Act the State Government is enjoined to send a report within seven
days to the Centre Government, of the detention of any detenu under the Act
together with the grounds on which the order had been made and on receipt of
such a report the Central Gov- ernment is bound to consider the matter and
either approve the detention or revoke the same in exercise of its powers under
Section 14 of the Act. In this case there was no material to show that the
Central Government had performed its duty under the Act.
Since
this contention was not raised in the petition and since the Central Government
had not been impleaded a party respondent, the petitioner's counsel filed a
petition and sought leave of Court for raising an additional ground and for impleading
the Central Government as a party respondent.
These
prayers were acceded and on notice being issued to the Central Government, the
Central Government made its repre- sentation through counsel.
The
contentions of the petitioner in his petition have been refuted by the
respondents in their counter affidavits, one by the second respondent, District
Magistrate, Meerut and the other filed by Shri P.N. Tripathi, Upper Division
Assistant, Confidential Section-8 of U.P. (Civil), Secre- tariat, Lucknow on
behalf of the first respondent, the State of U.P.
We
will now examine the merits of the contentions of the petitioner in seriatum.
The first contention is that the three grounds 265 mentioned in the grounds of
detention could by no stretch of imagination be construed as acts which would
affect the maintenance of public order or the even tempo of life of the
community. Mr. Jain, learned counsel for the petitioner referred to Gulab Mehra
v. State of U.P., [1987] IV SCC 302 and urged that the first ground of
detention in that case also pertained to the detenu therein threatening to
shoot the shopkeepers of Khalasi Line locality if they failed to give money to
him and the shopkeepers becoming terror stricken and closing their shops. This
Court had construed the ground as only affecting law and order and not the
maintenance of public order. Mr. Jain argued that grounds 1 and 2 were threats
meted out to individual persons regarding which criminal cases have been registered
and the 3rd ground was identical to the one noticed by this Court in Gulab Mehra's
case. Consequently, it was argued that we should also hold, as was done in Gulab
Mehra's case that the grounds set out against the petitioner would at best
affect only the law and order situation and would not pose a threat to the
maintenance of public order. We have given the matter our careful consideration
but we find ourselves unable to agree with the contention of Mr. Jain. In
ground No. 1, the petitioner had gone with his associates and threatened one Yusuf,
the contractor of a mango grove that fees for goonda- gardi (Chauth) should be
paid to him and the petitioner and his associates assaulted Yusuf saying that
they will "Kill the salas". On Yusuf reporting the matter to the
police a case was registered under Sections 307 & 323 I.P.C. against the
petitioner and his associates. The demand for chauth from the contractor and
the attack launched on him would show that it was not a case of singling out a
particular contractor for payment of chauth but a demand expected to be
complied with by all owners or contractors of mango groves in the locality. In
such circumstances the demand made and the attack launched would undoubtedly
cause fear and panic in the minds of all the owners and contractors of mango
groves in that area and this would have affected the even tempo of life of the
community. Similarly, the second ground pertains to the petitioner going to the
shop of one Ashok Kumar and making a demand of Rs. 10,000 and threatening him
that unless the money was paid on the following day or the day after the
shopkeeper would be killed. The shopkeeper had reported the matter to the
police authorities and a case has been registered against the petitioner u/s
506 I.P.C. This incident must also be viewed in the same manner in which the
first incident has been construed. It is not as if the demand and the threat
following it were made against Ashok Kumar in an insolated manner. On the other
hand, the demand had been made as part of a scheme to extort money from all the
shopkeepers under a threat that their continuance of business and even 266
their lives would be in danger if chauth was not paid. The demand made on Ashok
Kumar would have certainly made all the shopkeepers in that locality feel
apprehensive that they too would be forced to make payments to the petitioner
and that otherwise they would not be allowed to run their shops.
It so
far as the 3rd incident is concerned, it is seen that the petitioner had taken
a revolver with him and threatened all the shopkeepers in the market of Sardhana
that if anyone failed to pay "chauth" he would not be al- lowed to
open his shop and he would have to face the conse- quences. On account of this
threat the shop owners downed the shutters of their shops and at that point of
time H.C. Khajan Singh happened to reach the market. Seeing what was happening
H.C. Khajan Singh attempted to apprehend the petitioner but he managed to
escape on his motor cycle after firing several shots in the air with his
revolver. H.C. Khajan Singh had at once returned to the station and made an
entry in the general diary about this incident.
This
incident cannot be considered as merely causing disturbance to the law and
order situation but must be viewed as one affecting the even tempo of fife in
the mar- ket. The shopkeepers had closed their shops and they as well as the
public in the market area would have felt terrified when they saw the
petitioner moving with a revolver and demanding 'chauth' payment by the
shopkeepers.
Whether
an act would amount to a breach of law and order or a breach of public order
has been considered by this Court in a number of decisions and we may only
refer to some of them viz. Dr. Ram Manohar Lohia v. State of Bihar, [1966] 1
SCR 709; Arun Ghosh v. State of West Bengal, [1970] 3 SCR 288; Nagendra Nath Mondlal
v. State of West Bengal, [1972] 1 SCC 498 and Nandlal Roy v. State of West
Bengal, [1972] 2 SCC 524. In Gulab Mehra's case (supra) after noticing all
these decisions, it was set out as follows:
"Thus
from these observations it is evident that an act whether amounts to a breach
of law and order or a breach of public order solely depends on its extent and
reach to the socie- ty. If the act is restricted to particular individuals or a
group of individuals it breaches the law and order problem but if the effect
and reach and potentiality of the act is so deep as to affect the community at
large and/or the even tempo of the community then it becomes a breach of the
public order." 267 In State of U.P. v. Hari Shankar Tewari, [1987] 2 SCC
490 referring to S.K. Kedar v. State of West Bengal, [1972] 3 SCC 816 and Ashok
Kumar v. Delhi Administration, [1982] 2 SCC 403 it was held as follows:
"Conceptually
there is difference between law and order and public order but what in a given
situation may be a matter covered by law and order may really turn out to be
one of public order. One has to turn to the facts of each case to ascertain
whether the matter relates to the larger circle or the smaller circle.
Thus
whether an act relates to law and order or to public order depends upon the
impact of the act on the life of the community or in other words the reach and
effect and potenti- ality of the act if so put as to disturb or dislocate the
even tempo of the life of the community, it will be an act which will affect
public order." Viewed in this perspective, it cannot be said that the
demands made and threats given by the petitioner to the contractors and
shopkeepers as mentioned in the grounds would have its reach only to the
limited extent of affecting the law and order situation and not go so far as to
affect the maintenance of public order. We are therefore, unable to sustain the
first contention urged on behalf of the peti- tioner.
Learned
counsel for the petitioner then contended that no credence should be given to
the last mentioned ground because the names of the shopkeepers who had closed
their shops out of fear for the petitioner or the names of the witnesses to the
incident have not been set out in the grounds.
It was
further contended that the 3rd incident has been concocted in order to give a colour
of credibility to the detention order. The counsel argued that in the report
made by Inspector R.C. Verma for an order of detention being passed against the
petitioner, a number of instances were given but in spite of it the police
authorities felt diffi- dent about the adequacy of the materials and had
therefore concocted the third incident given as ground no. 3. We do not find
any merit in this contention because the records go to show that H.C. Khajan
Singh had promptly reported the incident at the police station and the truth of
his report had been verified by Inspector R.C. Verma.
268 It
is not therefore possible to accept the contention that the 3rd incident
referred to in the grounds of detention is a concocted affair.
In Gulab
Mehra's case upon which reliance was placed by Mr. Jain, we find that the facts
therein were quite differ- ent. The first ground of detention in that case pertained
to the detenu demanding money from the shopkeepers of Khalasi Line but no
shopkeeper had come forward to complain about the detenu and only a picket
employed at the police station had made a report. The second ground related to
the detenu lobbing a comb at a police party when it tried to effect his arrest.
It was in those circumstances, this Court deemed it appropriate to quash the
order of detention. In the present case, it may be seen that specific reports
had been given by Yusuf and Ashok Kumar about the incidents forming grounds 1
and 2 and cases had been registered against the petitioner.
In so
far as the 3rd ground is concerned, H.C. Khajan Singh was himself a witness to
the threats given by the petitioner to the shopkeepers with a revolver in his
hand and the firing of the revolver by the detenu while leaving the place. The
report of H.C. Khajan Singh has been verified by Inspector R.C. Verma and found
to be true. It is thus seen that the facts in the two cases have no similarity
whatever.
On the
other hand the observation in State of U.P.
v. Karnal Kishore Saini, AIR 1988 SC 208 at 213 would be of relevance in this
case. It was held in that case that if firing is made in a public street during
the day time, the incident would undoubtedly. affect public order as its reach
and impact would disturb public tranquility and it would affect the even tempo
of the life of the people in the locality concerned. Therefore the decision in Gulab
Mehra's case (supra) cannot be of any avail to the petitioner.
In so
far as the 3rd contention is concerned, it was urged that in spite of the
petitioner having specifically asked for the assistance of a friend at the time
he was heard by the Advisory Board, he was denied opportunity to have such
assistance. The petitioner has averred in his petition as follows:
"The
petitioner orally as well as in writing requested the Chairman of the Advisory
Board to allow him to engage a counsel or atleast a person who is acquainted
with the law to represent him before the Advisory Board, as the petitioner was
illiterate and was not capable of representing his case before the Advisory
Board. Unfortunately, the Advisory Board rejected the request of petitioner and
did not allow him to engage a legal counsel or atleast a person 269 who is
acquainted with the provisions of the National Security Act and forced the
petition- er to appear before the Advisory Board without any defence helper.
This part of the act of the members of the Advisory Board is illegal,
unconstitutional and violative of Articles 14, 19, 21 and 22 of the
Constitution of India." In the counter affidavit of the District
Magistrate, this allegation has been refuted as follows:
"Averments
made in para No. 2 are wrong and denied. The petitioner was detained on 5.7.88 in
Distt. Jail, Meerut and his detention is absolutely
legal and constitutional. It is wrong to say that the petitioner was not
provided an opportunity by the Advisory Board to defend himself. On the
contrary, he was heard by the Advisory Board on 2.8.89 and the detaining
authority had no objection to his case being represented by a person who is not
an advocate. The fact that his request was rejected by the Advisory Board is
not in the notice of detaining authority. As per the Tele. dated 26.7.88 of the
Home Deptt. of Government of U.P., Lucknow, the petitioner was allowed to appear before the Advisory Board through
non-advocate next friend. A copy of the said message is annexed hereto and
marked as annexure R-I.
However
the petitioner's assertion that he is illiterate is wrong because he knows
English and has submitted detailed representation.
According
to information available, petitioner is an Intermediate. The ratio of the
decision in A.K. Royal v. U.O.I., (reported in AIR 1982 SC 709) has not been
contravened in any manner in the instant case." In the counter affidavit
on behalf of the State of U .P. it has been stated as follows:
"But
it is evident from the record that the Advisory Board had directed the State
Govt.
through
its letter dated 2 Ist July, 1988 that since the petitioner Shri Sharad Tyagi
had requested to appear alongwith his next friend, he may be informed to attend
the Board's meeting alongwith his next friend (non-advo- cate) on the date of
hearing. The State Gov- ernment complied with the instructions of the Advisory
270 Board and had sent the necessary directions to the District Authorities
through its radiogram message dated 26 July, 1988, a copy of which is annexed
hereto and marked as Annexure R-I".
Besides
the specific averment made in the counter affi- davit, Shri Yogeshwar Dayal,
learned counsel for the State of U.P.
also drew our attention to the radiogram sent by the Government to the District
Magistrate wherein it has been clearly stated that "on request of detenu
his next friend (non-advocate) may also be allowed to appear with him."
Mr. Yogeshwar Dayal also made available to us the file contain- ing the
original records relating to the detention of the petitioner. We find from the
records that the radiogram had been served on the petitioner through the
Superintendent of the Meerut District Jail. The petitioner has affixed his
signature in English therein and also written the word "date" but he
has not filled up the date. (It is stated in the counter affidavit that the
petitioner is not an illiter- ate but has studied upto Intermediate). This
would falsify the averment in the rejoinder affidavit filed by the peti- tioner's
wife Smt. Shobha Tyagi "that the copy of the tele- gram annexed to the
counter affidavit of the respondent No. 2 was not served upon the detenu; the detenu
was never informed that he was entitled to be represented by a friend who is
not an advocate."
Mr.
Jain's contention was that even if the radiogram had been shown to the
petitioner, it must have been done belatedly and there would not have been time
for the petitioner to contract anyone and make arrangements for a non-advocate
friend appearing along with him at the meeting of the Advisory Board. We are
unable to countenance this argument because of several factors. In the first
place, the petitioner has not raised such a plea in his petition. His specific
contention was that he had requested the Chairman of the Advisory Board in
writing as well as orally to permit him to have the services of a counsel or a
person acquainted with the law to represent his case before the Advisory Board
but the Advisory Board rejected his request. It was not therefore his case that
he was shown the radiogram belatedly and he did not have time to make ar- rangements
for anyone to appear along with him before the Advisory Board. Another
circumstance which militates the contention of Mr. Jain is that there is no
material to show that the petitioner had orally represented to the Chairman of
the Advisory Board that he wanted the services of a friend and that he had been
shown the radiogram very late.
The
respondents have filed a copy of the letter sent by the Additional Registrar of
the High Court to confirm that the Advisory Board had accorded permission to
the petitioner to appear before the Board 271 alongwith a non-advocate friend
but in spite of it no one appeared along with the petitioner on the date of
hearing, and hence no mention was made in the report of the Advisory Board
about the non-appearance of a friend on behalf of the petitioner. Mr. Jain
argued that in a number of decisions commencing from A.K. Roy v. Union of
India, [1982] 1 SCC 27 1 it has been consistently held that even though a detenu
will not be entitled to have legal assistance, he does have a right to have the
assistance of a friend at the time his case is considered by the Advisory Board
and hence denial of opportunity to have the assistance of a friend would
vitiate the detention. This principle is undoubtedly a well-stated one. It has
however to be noticed that though the Advisory Board had permitted the detenu
to appear alongwith a friend the detenu had failed to take a friend with him.
He did not also represent to the Advisory Board that he did not have adequate
time to get the services of a friend and that he required time to have the
services of a friend. Such being the case, he cannot take advantage of his own
lapses and raise a contention that the detention order is illegal because he
was not represented by a friend at the meeting of the Advisory Board. This
position is a settled one and we may only refer to the observation of this
Court in Vijay Kumar v. Union of India, AIR '1988 SC 934 at 939:
"It
appears from the observation made by the High Court that the appellant, without
making any prayer before the Advisory Board for the examination of his
witnesses or for giving him assistance of his friend, started arguing his own
case, which in all probability, had given an impression to the members of the
Advisory Board that the appellant would not examine any witness. The appellant
should have made a spe- cific prayer before the Advisory Board that he would
examine witnesses, who were standing outside. The appellant, however, did not
make any such request to the Advisory Board. There is no reason for not accepting
the statement of the detaining authority that the appellant was permitted by
the Advisory Board to have the assistance of an advocate or friend at the time
of hearing, but the appellant did not avail himself of the same. In the circum-
stances, we do not think that there is any substance in the contention made on
behalf of the appellant that the Advisory Board acted illegally and in
violation of the principles of natural justice in not examining the wit- nesses
produced by the appellant at the meet- ing of the Advisory Board and in not
giving permission to the appellant to have the as- sistance of his
friend." 272 From the materials on record, we are satisfied that the
appellant was accorded permission to have the services of a friend and the
radiogram sent by the Government was duly communicated to him but for some
reason he had not availed the services of a friend. He did not also choose to repre-
sent to the Advisory Board that he was not given sufficient time to secure the
services of a friend. Consequently, the third contention also fails.
We are
only left with the fourth and last contention. No grievance was made in the
petition that the Central
Govern- ment had not
considered the petitioner's case when the State Government sent a report under
Section 3(5) of the Act and the non-application of mind by the Central
Government viti- ates the detention of the petitioner. This ground of objec- tion
was raised only during the arguments and consequently the Central Government
was permitted to be impleaded as a party respondent. Learned counsel appearing
for the Central Government has stated that the Central Government had infact
considered the report sent by the State Government and saw no reason to revoke
the order in exercise of its powers upon Section 14. There is no reason to
doubt the correctness of this statement.
One
other argument advanced before us was that even though the order of detention
had been passed on April
5, 1988, no steps were
taken to take the petitioner into custo- dy till he surrendered himself in
Court on July 4, 1988.
This
contention is on the face of it devoid of merit because it has been
specifically stated in the counter affidavits that the petitioner was
absconding and hence proclamations were made under Sections 82 and 83 Cr. P.C.
and it was only thereafter the petitioner had surrendered himself in Court.
It is
not therefore a case where the petitioner was freely moving about but no arrest
was effected because his being at large was not considered a hazard to the
maintenance of public order.
In the
result we do not find any ground for quashing the order of detention passed
against the petitioner. The writ petition is accordingly dismissed.
N.V.K.
Petition dismissed.
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