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Lal Bahadur Yadav v. State Of U.P. & Others - HABEAS CORPUS WRIT PETITION No. 28984 of 2003 [2003] RD-AH 288 (22 August 2003)


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Court No.32

Habeas Corpus Writ Petition No.28984 of 2003

Lal Bahadur vs. State of U.P. & others

Hon'ble S. Rafat Alam, J.

Hon'ble K.K. Misra, J.

This petition is directed against the order of the District Magistrate, Gorakhpur dated 28.4.2003 detaining the petitioner  under Section 3(3) of the National Security Act, 1980 (hereinafter referred to as 'the Act').

Counter and rejoinder affidavits have been exchanged and are on record.

Heard Shri U.N. Sharma, learned counsel for the petitioner, Shri Arvind Tripathi, learned AGA appearing for respondent nos.1 to 4 and Shri Anil Kumar Singh, learned Additional Standing Counsel appearing for respondent no.5.

At the out set Shri U.N. Sharma, learned counsel for the petitioner submitted that the co-detenu, Brijesh Kumar Yadav had approached this Court through Habeas Corpus Writ Petition No.23622 of 2003, which has been allowed by another Division Bench of this Court vide order dated 15.7.2003 on the ground that the District Magistrate/detaining authority had not intimated the petitioner about his right to make representation to the detaining authority and as such in view of the judgment of the Apex Court in the case of State of Maharashtra Vs. Santosh Acharya, 2000 (41) ACC 704 the order of detention is vitiated.

We have perused the grounds of detention, a copy whereof is enclosed as Annexure 2 to the writ petition.  A perusal thereof shows that though the petitioner was informed in para 12 of the grounds that he has a right to make representation to the State Government but such right to make representation to the Central Government as well as to the detaining authority has not been conveyed to the petitioner by the impugned order of detention.  In para 13 of the grounds of detention it is stated that the detenu is being informed that, if he so desires, he can make representation to the Central Government also through the Secretary to Government of India, Home Department, North Block, New Delhi through the Superintendent, District Jail, Gorakhpur.  Nowhere in the grounds it has been stated that against the order of detention he can also make representation before the detaining authority. In the case of State of Maharashtra and others Vs. Santosh Shanker Acharya, reported in 2000 SCC (Crl.) 1400 the Hon'ble Apex Court while considering the provisions contained in Maharashtra Prevention of Dangerous Activities of Slumlords, Bottleggers, Drug-Offenders and Dangerous Persons Act, 1981, which is in para materia with the National Security Act, has held that non communication of the right to make representation of the detenu would constitute an infraction of the valuable constitutional right guaranteed under Article 22(5) of the Constitution of India  and such failure would vitiate the order of detention.

Learned AGA drew our attention to the statement made in para 4 of the counter affidavit filed by the Deputy Jailor of District Jail, Gorakhpur wherein it has been averred that while serving the order of detention on the petitioner he was also told about his right to make representation to the authorities concerned including the detaining authority.  In the swearing clause this statement has been shown to have been made on the basis of the record but no such record has been produced before us to substantiate the statement.  Besides that it is settled legal position that the fact, which is borne out from the order, cannot be supplemented by giving affidavit.

In the case of Ramveer Jatav versus State of U.P. & others reported in AIR 1987 SC page 63, wherein the order of detention under the provisions of the National Security Act, 1980 was under challenge, the Hon'ble Apex Court in latter part of para-2 of the judgment observed that it is well settled that the detaining authority cannot by an affidavit filed in Court supplement what is stated in the grounds of detention or add to it. Therefore, in view of the exposition of law by the Hon'ble Apex Court, the contention raised on behalf of the respondents cannot be accepted.  Besides that on similar accusation and similar grounds co-detenu, Brijesh Kumar Yadav has been directed to be released by another Division Bench of this Court vide order dated 15.7.2003 in Habeas Corpus Writ Petition No.23622 of 2003.  It is not disputed before this Court that the grounds of detention and allegations made against the present petitioner are identical to that of co-accused, Brijesh Kumar Yadav and, therefore, we do not find any reason to differ with it.  

Considering all aspects of the case and having considered the submissions made by the parties and also in view of the exposition of law, in our view, this petition deserves to be allowed.  

In the result, the writ petition is allowed.  The impugned order of detention is hereby set aside.  The respondents are directed to set the petitioner at liberty forthwith provided he is not wanted in any other case.  However, there shall be no order as to costs.




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