Detention order quashed!!

The Government can pass the detention order in PITNDPS, COPEFOSA etc on the basis of the secret information received and with the recorded reasons. But the detenu will have the opportunity to quash the said order. The grounds on which the order has been quashed are as follows:   

There can be no addition to the grounds of detention:

In State of Bombay vs. Athmaram Sridhar Vaidya, AIR 1951 SC 157

The basis of detention being the main ground from which the Government was satisfied that it was necessary to pass the order of detention, there can be no addition to those grounds because such additional grounds will be the grounds which were not elements to bring about the satisfaction of the Government. If at all there were such grounds there has been a breach of the provision of the first part of Article 22(5) as those grounds were not conveyed to the detained person "as soon as may be".  It is thus clear that if by supplementary grounds it is meant additional grounds, the furnishing of any such additional grounds, the furnishing of any such additional grounds at a later stage will amount to an infringement of the Constitutional rights.   

After service of the grounds there can be no addition:

In Khudiram Das vs. State of West Bengal, AIR 1975 SC 550

One thing is clear from the wording of this clause and that is that after the grounds are once conveyed to the detenu there can be no addition to the grounds. The grounds being the heads, from which the Government was satisfied that it was necessary to pass the order of detention, there can be no addition to those grounds because such additional grounds will be either the grounds which were not elements to bring about he satisfaction of the Government or if they were such grounds there has been a breach of the provision of the first part of Art. 22(5) as those grounds for the order of detention were not conveyed to the detained person “as soon as may be.

Documents sent to the detenu in a casual manner:

In State of Tamil Nadu vs. Senthil Kumar, 1999(1) Crimes 46 SC

The detention order was passed on 16.6.1997 and served on 23.6.1997. Advisory Board met on 8.7.1997. 

(i) Anticipatory bail application of co-accused, filed on 27.6.1997.

(ii) counter affidavit dated 30.6.1997 filed in the High Court by co-accused.

(iii) application filed by the detenu before C.M.M., as further developments were given to the detenu and the State Government, before confirmation of detention order, on the opinion of Advisory Board, were not placed before the Advisory Board.

Held: The documents in question given to the detenu are not supplemental or additional grounds but additional material in support of the grounds already conveyed to the detenu. The documents were sent to the detenu in a casual manner without a covering letter and without being told for what purpose they were sent to him and without mentioning that they would be placed before the Advisory Board as well as to the Government in connection with the confirmation of the order of detention.  Consequently, he was deprived of his right to make an effective representation to the Government.

Appeal against the order of Madres High Court quashing the detention order dismissed.

Detenu to be informed about the date of hearing in the language known to him:

In Qasim Ali vs. U.O.l., 1996(1) Crimes 291 Delhi (DB)           

The petitioner was informed in English that he was to be produced before the Advisory Board and his thumb impression was obtained in token of having received the notice where there was no mention that the important things mentioned therein were explained to the detenu in a language known to him.

Held: "Considering practical aspect of the matter, it would be noticed that even if the detenu was informed that he was to be brought before the Advisory Board on a particular date, unless he was informed in his own language the various aspects contained in the above extract, the detenu would not be able to avail of those rights. The notice above referred contained an intimation that the department’s representative will be present at the time of hearing by the Advisory Board.  Once such facility is given to the department, the detenu will be entitled to have a counsel before the Board. This is clear from Article 22(1) read with decision of Supreme Court in A.K. Roy V. U.O.I.[1] This right is based on Article 14 of the Constitution unless there is material on record placed by the respondents that the contents of the notice in English language have been translated in a language known to the detenu and explained to him, it will be difficult to hold that the detenu was made aware of his rights and he did not avail of the same in the language known to him and understood to him. Therefore, on the facts of the present case we do not find that the detenu had proper opportunity to engage counsel as he was not informed of his right in a language known to him."

Detention order was quashed.

Detenu to be given sufficient time to present his case:

In Muniappan vs. District Magistrate, 1999 Crl.L.J. 723 Madras (DB)

It is important for laws and the authorities that they not only be just, but also appear to be just, on a perusal of the materials on record, it is seen that the detenu had been informed about the Advisory Board meeting at a very late stage i.e. a day before the date of meeting without giving sufficient time to make effective representation.  It is also seen in the facts of the given case that the detenu was not given reasonable opportunity to put forth an effective and reasonable representation before the Advisory Board. Order quashed.

The author can also be reached at Advocate.kapilc@gmail.com

 

Kapil Chandna 
on 22 February 2017
Published in Criminal Law
Views : 165
Other Articles by - Kapil Chandna
Report Abuse









×

  LAWyersclubindia Menu

web analytics