Virsa Singh vs Union of India and others

Swatanter Kumar, J.

In this petition the petitioner challenges the detention order dated 22.6.1995 Annexure P/1 to the petition mainly on the ground that the said order is vitiated being violative of principles of natural justice.

The petitioner claims that he is a law abiding citizen and carries on business honestly for earning his livelihood. According to the petitioner he was illegally and wrongly taken into custody by the officials of D.R.I. Zonal Unit, New Delhi and Regional Unit, Amritsar and thereafter he was falsely involved in the recovery of some foreign exchange with which the petitioner had nothing to do. The petitioner while in custody was falsely implicated in this recovery. He was badly beaten and tortured and made to sign certain blank papers. On 26th of June, 1995 while the petitioner was in custody he was served with the order or detention dated 22.6.1995 directing his detention under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, hereinafter referred to as the COFEPOSA Act. The grounds were also served upon the petitioner along with the order of detention. As per the grounds the petitioner is stated to have been intercepted by the D.R.I. officials at about 11.30 hours while they were on the two scooters and one Contessa car. The petitioner was one of the occupants of the Contessa car and they were intercepted while they were trying to hand over and take over the currency. Statements were recorded. The petitioner was arrested at 23.45 hours on 11.6.1995. According to the petitioner he was already in custody and has been falsely implicated in the case and the story put forward by the detention order is unbelievable and unthinkable. The petitioner has challenged the order on various grounds including nonapplication of mind, delay in passing and implementation of the order and violation of principles of natural justice as the petitioner was not given any opportunity of being heard by the Board inspite of his requests.

Separate replies have been filed on behalf of Government of India and Superintendent of Jail. The stand taken therein is that the facts stated in the grounds of detention accompanying the detention order are correct. The petitioner is really involved in such activities which justifies his detention under the provisions of the Act. The respondents submitted that the petitioner on 25th of July, 1995 gave in writing that he does not wish to appear in person or even through Advocate before the Advisory Board. They further say that an order was passed by the Court in Criminal Writ Petition No. 633 of 1995 on 26.6.1995 that before the petitioner is taken out of jail to be produced for any purpose before the Magistrate the investigating agency shall seek permission from the High Court. Thus, they claim that there is no violation of principles of natural justice and the order of detention have been passed in accordance with settled principles of law. The other grounds urged by the counsel for the petitioner do not have any merit. What really needs to be considered in this case is whether there is violation of principles of natural justice and such violation is of the nature that it would vitiate the detention order. According to the petitioner he has been falsely implicated in this case and one Mr. Khanna who is a jail official had got blank papers signed from him. When has wife went to see the detenu in jail the interview was not permitted and she was informed that the detenu had given a letter that he did not want to be heard personally or through Advocate by the Advisory Board. The date of hearing before the Advisory Board was 28.7.1995. The representative on behalf of the petitioner, namely, Nirmaljit Kaur addressed telegram to the Chairman of COFEPOSA on 27.7.1995. The telegram contained all these allegations and unsigned representation which in fact the representative of the detenu had taken to jail for being signed by the detenu was also sent along with the telegram. According to the petitioner both the telegram and unsigned representations were received by the Board but the Board without affording any opportunity to the petitioner passed the order confirming the order of detention. These allegations which have been made in the writ petition and as well as an additional affidavit was filed on behalf of the petitioner, has not been disputed by the respondents in the counter affidavit, filed by them.

With regard to specific allegations of Mr. Khanna this Court had passed orders on 18.12.1995 granting liberty to the respondents to file any additional affidavit if so desired within a period of two days as the matter was part heard at that time. The respondents did not comply with the order and on the personal grounds of the counsel further time was granted for a period of two weeks vide order dated 22.12.1995. The matter was again listed on 5.1.1996 and 12.1.1996 when the arguments were concluded and the matter was reserved for orders. No additional affidavit has been filed on behalf of the respondents to clarify the position on record.

During the course of hearing I had also called for the records of the respondents. The file was produced by the counsel for Union of India. He fairly conceded and it is also supported from the record that the telegram as well as unsigned representation on behalf of the detenu was received by the Advisory Board. The learned counsel for the respondents have argued that in the representation which was submitted on behalf of the detenu to the Advisory Board, this ground had not been taken by him. As such the whole argument of the counsel for the petitioner is without merit. This submission on behalf of the respondents is misplaced inasmuch as if the stand taken by the petitioner is correct that a representation was prepared and was taken to the jail for being signed by the detenu and the meeting was not permitted and on the contrary Mr. Khanna had informed the relative of the detenu that the detenu had given in writing that he does not wish to be produced before the Advisory Board personally or even be represented through a counsel. Further that a telegram was given immediately. If this is true, the question of this ground being taken up in the representation does not arise because the telegram had supplemented the representation and had categorically stated that the detenu wishes to be heard. The representation which was received by the respondents bears the month of July but the date was not typed as it was supposed to be filled in after signatures of the detenu.

The liberty of an individual has been given paramount consideration in our Constitution, and any invasion on this right and personal liberty of a citizen and especially without following due procedure of law has been held to be of serious consequences and such orders affecting the liberty of an individual have been held to be illegal. The respondents having failed to even controvert the allegations raised in the petition inspite of repeated opportunities having been granted to them, the case of the petitioner appears to be true and there is nothing improbable or unreasonable in the facts averred by the petitioner in the petition. It is improbable that a person who has already engaged counsel and had prepared a detailed representation would give up the valuable right available to the detenu of being heard in person or at least through his counsel. Rather waiving of such a right may sound improbable. The representative of the detenu had given a telegram a day before the date of hearing and immediately upon having come to know of the fact that the detenu had given in writing that he does not want to be heard in person or through counsel. As noticed above the telegram was received by the Board and even the unsigned representation was submitted. This conduct on behalf of the petitioner shows his concern for seriously pursuing his legal remedies and rights and is not indicative of any suggestion which would be in line with the stand by the respondents before this Court.

The right of the detenu to such hearing is well recognised. Keeping in view the functions which are discharged by the Advisory Board, the detenu is certainly entitled to claim a hearing and even to produce evidence before the Advisory Board. Once the detenu claims hearing before the Board, the Board is under obligation to provide such right of hearing to the detenu and give him a reasonable opportunity of being heard. The concept of reasonableness is not a mere formality and must be complied with or atleast appear to have been complied with effectively. In the order dated 22.9.1995 it was admitted that the telegram and representation on behalf of the detenu had been received. The telegram which has admittedly been despatched is dated 27.7.1995, while the date of hearing before the Board was 28.7.1995. In the telegram the petitioner had requested for personal appearance before the Board and the right of hearing. He had also indicated with regard to the fraud played upon him by Mr. Khanna and the officials of the jail. Counsel for the petitioner has placed reliance on the case of Ashok Kumar alias Shoki v. Union of India, 1994(2) Recent C.R. 708 , in support of his contention.

The Supreme Court of India in the case of Dr. R.K. Bhardwaj v. State of Delhi and others, 1953 S.C.R. 708 : A.I.R. 1953 S.C. 318 impressed the need for zealously watching and enforcing the safeguards which are provided in the Constitution against preventive detention, which is a serious invasion on personal liberty.

Further, in a case where the detenu had prayed for an adjournment because of his sickness and who was detained under the preventive detention laws, the Board without affording the adjournment to the detenu and hearing him passed the order in question, the Supreme Court held that such an order of detention would be illegal (State of Punjab v. Sukhpal Singh, A.I.R. 1990 SC 231) and held as under :

"The protection of personal liberty is largely through insistence on observance of the mandatory procedure. In cases of preventive detention observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Social security is no doubt the most important goal of the State but it is not the only goal of a good society. There are other important values in a society. One of the foremost and fundamental rights guaranteed in the Constitution is personal liberty and one cannot be deprived of it except by the procedure prescribed by law. Libertas inestimbilis res est. Liberty is an inestimable thing above price. Libertus omnibus rebus favorbilier est. Liberty is more favoured than all things (anything). It would be ironic if, in the name of social security, we would sanction the subversion of this liberty. When a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that procedure is strictly observed. As long back as in N.P. Umrao v. B.B. Gujral, 1979(2) SCR 315 at p. 321 : AIR 1979 SC 420 at p. 423, it was held to be well settled that in case of preventive detention of a citizen, the Constitution by Article 22(5) as interpreted by this Court, enjoins that the obligation of the appropriate Government is to afford the detenu the opportunity to make a representation and to consider that representation and there is the Government''s obligation to constitute a Board and to communicate the representation, amongst other materials, to the Board to enable it to form its opinion and to obtain such opinion. It was also reiterated that when liberty of the subject is involved under a preventive detention law it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law. Two of these safeguards under Article 22 which relate to the observance of the principle of natural justice and which a fortiori are intended to act as a check on the arbitrary exercise of power, are to be found in Article 22(5) of the Constitution. These safeguards might be designated as a regulative postulate of respect, that is respect for the intrinsic dignity of the human person.......The Advisory Board, like any other Tribunal, is free to regulate its own procedure within the constraints of the Constitution and the statute. If report is submitted by the Advisory Board without hearing the detenu who desired to be heard it will be violative of the safeguards provided under Article 22 of the Constitution and Sections 10 and 11 of the Act. Failure to produce the detenu, unless it is for wilful refusal of the detenu himself to appear, will be equally violative of those provisions. In State of Rajasthan v. Shamsher Singh, 1985 Suppl.(1) SCR 83 : AIR 1985 SC 1082 the importance of the proceedings before the Advisory Board was highlighted. In fact it is the only opportunity for the detenu of being heard alongwith his representation for deciding whether there was sufficient cause for his detention".

The procedural protections provided to a detenu under the unwritten rules of law and infringement of such protection have been consistently considered by the Court as fatal to the orders of detention. The procedural protection adopted by such statutory authorities includes the right of hearing. The right of hearing is an effective right and cannot be permitted or faulted on flimsy grounds which would not appear to be acceptable on basic principle and would be protected to the conduct of normal reasonable man. Signifying the importance of these procedural protections the Supreme Court in the case of Smt. Shalini Soni v. Union of India and others, AIR 1981 Supreme Court 431 observed as under :

"Since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by Article 22(5) read with Article 19, the Courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed. A breach of the procedural imperative must lead to the release of the detenu".

Applying these principles to the facts of the present case, it is clear that the accused/detenu was not granted personal hearing and the reason for such noncompliance does not appear to be just and fair.

In view of the above discussion and unrebutted allegations made by the petitioner against the respondents, the petitioner was certainly denied the right of hearing in person or though lawyer and, thus, the order of detention is violative of basic principles of natural justice and is contrary to the settled procedures. In fact such an order would also be violative of Article 22 of the Constitution of India and Sections 10 and 11 of the Act.

In the result, the order of detention dated 22.6.1995 is hereby set aside and the petitioner is directed to be set at liberty forthwith, if not required in any other case.