Bombay High Court
Fatmabi Sheikh Bhikan Alias Sunabi vs Commissioner Of Police, Pune And Ors. on 17 August, 1992
Equivalent citations: 1993(1)BOMCR43, (1992)94BOMLR348
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
JUDGMENT M.F. Saldanha, J.
1.Would a detention order be vitiated if, in the grounds of detention, the concerned authority communicates to the detenu that he has a right to represent against the order but fails to specify the authority to whom such representations are required to be addressed ? Would such a lacuna be fatal to the detention order on the ground that it frustrates the detenu's right to represent against the order of detention in so far as it has not been indicated to him as to who is the officer concerned to whom he should apply for redressal ? This, in essence, is the issue canvassed in this petition where it is pleaded that the prejudice to the detenu in such circumstances is manifest and that the order is necessarily vitiated. The right to make an effective representation has to be construed meaningfully and realistically and is not to be regarded as being illusory or to be taken lightly.
2. The petitioner before us is the mother of one Gulam Jilani Bhikan Shaikh (detenue) and she has challenged the detention order passed by the Commissioner of Police, Pune. The order in question, dated 10-3-1992 has been passed under the provisions of the National Security Act, 1980, on a series of grounds being the basis on which the Detaining Authority was of the view that it was essential to place the petitioner's son under detention.
3. The petition makes out several grounds of challenge and the respondents before us have filed their affidavits in reply to the challenges raised in the petition. At the hearing, Mr. Gupte learned Counsel appearing on behalf of the detenu, has concentrated on only one ground which to our mind is liable to be upheld. Mr. Gupte has canvassed the proposition that it is essential not only to communicate to the detenu the grounds on which he is placed under detention and the material in support thereof, but that it is also a requirement of law that the detenu be afforded a full and adequate opportunity of representing against the order of detention. Mr. Gupte submits that such an opportunity presupposes the fact that the detenue will have to be informed of the authority to whom the representation is to be addressed and that the manner in which the representation is to reach that authority.
4. Briefly stated, Mr. Gupte has canvassed the grievance that a perusal of the concluding part of the grounds of detention refers to the fact that the detenu is entitled to represent against the order but that the authority to whom the representation is to be directed and the address of the authorities in question have not been indicated. Mr. Gupte elaborates on this contention by pointing out that as far as the present case is concerned, the detenu would have most certainly been desirous of representing against his retention in custody but unfortunately, since neither was the authority named nor the address provided in the grounds of detention served on him, that he was only able to forward a representation to the Advisory Board through the Jailor thereby frustrating his right of representation vis-a-vis the Central and State Governments. He further states at the Bar that it was only at a subsequent point of time that the detenu's sister addressed a representation to the Chief Minister of the State of Maharashtra. Under these circumstances, Mr. Gupte submits that the order of detention itself is vitiated on the ground of non communication of these material particulars. He also emphasises that the ground canvassed is not a technical one because on the facts of the present case real prejudice has resulted as far as the present detenu is concerned. We need to however add, that Mr. Page, has hastened to clarify that the State Government did independently consider the representation sent to the Advisory Board and that it is incorrect to complain that the detenue's right vis-a-vis the State Government was frustrated on this scope. That still leave out the Central Government.
5. It is essential, as far as this aspect of the matter is concerned, for us to reproduce the relevant portion of the grounds of detention which appears at pages 45 and 46 of the paper book:
" I am directed to communicate to you as required under section 8 of the N.S. Act, 1980 r/w Article 22(5) of the Constitution of India, the aforesaid grounds on which the detention order is made by me, copies of the documents placed before me with their translation in vernacular as well as Urdu language. You are further informed that you have a right to make the representation to the State Government and/or Central Government against the order of detention and that you will be afforded the earliest opportunity to make such representation."
6. We have also perused the translations supplied to the detenu which are substantially a correct reproduction of the paragraph that has been set out by us above. It is therefore undisputed that the authorities had not been specified nor were their addresses given.
7. Mr. Page, learned Public Prosecutor appearing on behalf of the State has valiantly attempted to defend the validity of the order. Mr. Page stated that the paragraph in question as also the translation does convey to the detenu the fact that he has a right to represent against the order, to both the State and Central Government. We disapprove of the term and/or since it can equally be understood to mean one to the exclusion of the other. Mr. Page further contends that the detenu has also been informed that he is entitled to challenge the validity of the order both before the State Government and the Central Government. According to Mr. Page, it was open to the detenue, who was admittedly in jail at the relevant time, to have handed over his representation addressed to the two Governments to the jail authorities, or for that matter if he so desired, to have obtained the exact designation and address of each of the authorities of the respective Governments from them. This to our mind, virtually amounts to begging the question and would at the highest indicate how best the detenu could have tried to overcome the difficulty. It could never serve to overcome the error on the part of the detaining authority. He also sought to canvass the submission that it is common knowledge that the representations have to be addressed to the Home Secretaries of the respective Governments and that where the representations are drafted out with the help of legal assistance as they invariably are, that the detenu would not in fact in fact have faced any prejudice. It is essentially Mr. Page's defence that the ground canvassed is highly technical, that an insignificant error is being unduly capitalised, and that unless it is demonstrated that it resulted in an infraction of the detenu's right to make a representation, that the ground ought not to be upheld. We are all admiration for Mr. Page's great effort in defending an indefensible situation.
8. Unfortunately, in matters of detention it is not possible or permissible to make any allowances of this type. Where the liberty of the detenue had been curtailed through a detention order the constitutional provisions are quite explicit, and they specifically require of the detaining authority rigorously strict compliance with each and every procedural requirement which simply must be adhered to. It is well settled law that any departure from this role would vitiate the detention order. This is for good reason because there can be no presumption with regard to the status or state of mind of a detenu and one cannot overlook the fact that in cases of the present type, the law is unduly strict in so far as time is of the essence. It is for this reason that the detention order must very clearly specify to the detenu as to which are the authorities to whom the representation can be made. Secondly, the exact designation and address of the authority must be set out because it is then open to the detenu at the earliest point of time to address a representation directly from the jail to the authority concerned and whether he does so on his own or with the assistance of a lawyer is if little consequence. The object of specifying these details is also in order to ensure that the representation goes directly to the concerned authority and that time is not lost in the department if it reaches the wrong destination. There could be no compromise with regard to these requirements and under these circumstances, in so far as the present order of detention falls short of strict compliance we are constrained to hold that the detention order itself is vitiated and is liable to be set aside.
9. Strict adherence to procedural requirements is a sine qua non at all stages of an action for detention, and this is a branch of law which cannot admit to any degree of laxity or compromise. The requirement whereby grounds have to be communicated to a detenu has been interpreted to include such of the material on the basis of which the order has been passed and in furnishing to the detenu this material, it is not the mechanical compliance but real and effective compliance that has to be ensured. The requirement of law, for instance, that the communication has to be in the language intelligible to the detenu is because the person concerned has to be given a fair opportunity of being told as to what are the reason in support of the order that curtails his liberty. It is a parallel requirement that the detenu be afforded the immediate facility of registering his protest in such manner as the law permits against the order made against him. The judicial forums in this country have, with consistent regularity, enforced meticulous compliance with these provisions which are geared towards the elimination of any time-lag. The law does not permit a detaining authority to say that the detenu could have got the documents translated or interpreted through others or through legal assistance because all these secondary or intermediate functions are time-consuming and those facilities are not always available. A representation against an order of detention is the first and the only form of redress that is available to a detenu and it is, therefore, of paramount importance that the authority to whom such a representation is to be addressed must be clearly stated and the address of that authority must also accompany the name of the designated authority. In the absence of these, the detenu will be left groping in the dark and in all probability could be exposed to a situation of being misled, all of which would result in serious prejudice to the detenue.
10. The bottom-line of the whole issue revolves around the fundamental question as to whether in the circumstances of this case the rights of the detenu have been infringed upon the answer being an emphatic yes. It is true that Mr. Page, in a last bid also contended that had the representations addressed to the two Governments been handed over to the jailor, that they would have reached their rightful destinations because it is he who is the forwarding authority and is aware of where to send them. We are not as confident as Mr. Page is, in the abilities of the jailors, which is again leaving the matter to chance. In a serious situation of the present type, the only right approach would be by assessing as to whether the detaining authority has conformed to his legal obligations, and if he has not, as in this case, the inevitable must follow.
11. It is under these circumstances that we quash and set aside the detention order. The petition is allowed. Rule is accordingly made absolute. We direct that the detenue be set at liberty forthwith if not required in connection with any other case.