Dineshkumar Hublal Jaiswal vs Commissioner of Police and Others

K.J. Vaidya, J.—The petitioner who came to be detained (as a ''bootlegger'' on various allegations as stated in detail in the grounds of detention dated 16-3-1994-Annexure-C) u/s 3(1) of the Gujarat Prevention of Anti -Social Activities Act, 1985, by an order dated 16-3-1994, passed by the Commissioner of Police, Ahmedabad, has challenged the same by filing this petition.

Mr. S. R. Patel, the learned advocate for the petitioner while challenging the impugned order of detention has voiced a serious grievance saying that the representation of the petitioner dated 11-4-1994 addressed to the Chairman P. A. S. A. Advisory Board, Ahmedabad, wherein it was specifically requested to send the same to the State Government appeared to have been not considered by the State Government till today and hence in that view of the matter, to the said extent, the statutory safe-guard provided under Article 22(5) of the Constitution of India stands infringed, violated and accordingly it clearly vitiates and invalidates the further continued detention of the petitioner as illegal and unconstitutional. According to Mr. Patel, once he satisfactorily drives home the point, the petitioner shall have to be released forthwith.

Countering the above submission, Mr. R. P. Solanki, the learned A. P. P. vehemently submitted that there is indeed no question of the State Government considering and/or not considering the representation in question arises in the matter since no such representation as alleged by the petitioner was either submitted to the jail authorities or addressed to the State Government and accordingly ultimately received by the State Government. When such is the questionable fact-situation, no right of the petitioner as alleged under Article 22(5) of the Constitution of India has been violated to render the continuous detention illegal and unconstitutional.

Having heard the learned advocates for the respective parties quite at length on the point involved, it appears that the submission made by Mr. Patel has substance and therefore deserves to be accepted. In the fact-situation of the present case, two material questions arise for consideration viz. in the first instance, whether the jail authorities was duty bound to forward a copy of the representation in question to the State Government though neither extra copies were given to it for the purpose, nor, in the second instance, the representation in question was specifically addressed to the State Government? To find answer to the first question, it is indeed necessary first of all to look at the relevant provision in the said regard made in Gujarat Conditions of Detention (P. A. S. A.) Order, 1985 (for short-order of 1985). To start with, Rule 17, of the Order of 1985 pertains to the ''correspondence and Censorship'' of the letters etc. addressed by the detenu. Accordingly, in view of Rule 17(4) every letter forwarded to or from any detenu shall be initialled and dated by the officer who handled the letter. In view of Rule 17(3) every letter (representation included) is subject to the censorship of the jail authorities. Thereafter, on perusing Rule 19 and in particular Rule 19(2), it appears that where any detenu makes a representation, the Jail Superintendent shall forwith forward it direct to the Government etc. etc. In view of Rule 17(3) &(4) the representation in question being in nature of correspondence, must have been perused which contained a request to forward the same to the State Government. This aspect, the jail authorities could not have overlooked, rather this means that the jail authorities were aware about the request of the petitioner to send a copy of the representation in question to the State Government and yet has failed to forward the same to the Government. Thereafter, if we refer to Rule 19(2), the same in unmistakable terms enjoins upon the jail authorities to forewith forward the representation direct to the State Government etc. Bearing in mind the aforesaid provisions in the aforesaid Order of 1985, in order to appreciate and decide the contention raised by Mr. Patel, it is necessary first of all to have a look at the actual fact-situation available on the record, which is found to be (1) that when Regd. A. D. letter Ref. No. 1004/1994, District Jail Office, Junagadh, dated 15-3-1994, addressed to S. R. Patel, advocate, signed by the jail authorities was shown to the learned A. P. P., he has not disputed the same; (2) this letter clearly mentioned that the jail authorities had received two copies of the representation by the petitioner addressed to the Hon. Chairman, P. A. S. A. Advisory Board, Ahmedabad; (3) that the said representation also contained a request to forward the same to the State Government for information, action and relief; (5) the fact that both the copies were specifically addressed to the Chairman, P. A. S. A. Advisory Board only and no separate representation to the State Government was there. Thus, moment we take into consideration Rule 19(2) of the Order of 1985, it is quite clear that it casts a duty on the jail authorities to forward a copy of the representation in question to the State Government irrespective of the fact whether the detenu has supplied sufficient number of copies or not. The reason is that, when a detenu makes a representation from the jail, at that point of time, he may not be immediately in a position to have the extra copies of the same. Under the circumstances, when a person who is detained without trial, if he can be helped-out by preparing the extra copies of the representation in question by the jail authorities, it is not only advisable, but in a way, would be fair play and duty on the part of the jail authorities to see that such extra copies are prepared and forwarded to the State Government. This having not been done in the instant case, and as a result, the representation dated 11-4-1994, not came to be despached to the State Government, and in this view of the matter, whatever benefit that arises out of this unfortunate situation, has got to be resolved in favour of the petitioner. In dealing with the preventive detention matters, all concerned who are involved in the process must know that the person who is detained without any trial and that too in cases under P. A. S. A. where the period for detention is for as many as 12 long months. In this view of the matter, whatever fair, just and reasonable is required to be done at the appropriate level must be done in order not only to help out the detenu, but ultimately to prevent the impugned order of detention rendered invalid. The law which empowers the competent authority to pass the order of detention, also in turn enjoins upon all the concerned officers involved in the process of detention to see that the detenu is provided all the reasonable help. This prescisely is not done in the instant case.

In view of the aforesaid discussion, since we are quite satisfied that the jail authority has not discharged its statutory duty as much it is expected of it under the detention jurisprudence and thereby having come in the way of considering the representation made by the petitioner, the same invariably renders the further detention illegal and unconstitutional and accordingly shall have to be quashed and set aside having infringed Article 22(5) of the Constitution of India. Nothing further was pointed out by the learned A. P. P.

In the result, this petition is allowed. The impugned order of detention is hereby quashed and set aside. The petitioner is ordered to be released forthwith unless his presence in jail is required in connection with any other case. Rule made absolute.

The office is directed to toward a copy of this judgment to the Director General of Prisons for appropriate circulars to be issued to the Superintendents of jails of the State.