Delhi High Court
Jagprit Singh @ Damanjit Singh vs Union Of India And Ors. on 20 October, 1989
Equivalent citations: 41(1990)DLT664
JUDGMENT P.K. Babri, J.
(1) This writ petition has been filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure seeking quotient of the detention order dated September 2, 1988 passed by Shri K.L. Verma, Joint Secretary, Ministry of Finance, Govt. of India under Section 3(1) of the Cofeposa Act with a view to preventing the petitioner from smuggling of goods and the declaration issued under Section 9(1) of the Act dated October 4, 1988 passed by Additional Secretary, respondent No. 3.
(2) The facts of the case, in brief, are that on August 2, 1988 the detenu arrived at I.G.I. Airport New Delhi on Flight No. EK-702 from Dubai. On some secret information the officers of the Directorate of Revenue Intelligence intercepted the detenu when he was leaving the Customs Arrival Hall through Green Channel but nothing was recovered from the baggage of the detenu. However, he was interrogated and be stated that he had brought 20 gold biscuits of 10 tolas each of foreign original from Dubai and had kept the same on top of the wall separating the toilets near the Immigration Counter. The officers then seized the said gold biscuits which were in a packet wrapped with adhesive tape. The detenu had admitted that he had brought those gold biscuits with a view to smuggle them and he was to be paid a commission of Rs. 2,000.00 by one Rafathankhan of Dubai and a Visiting Card was recovered from detenu which contained a telephone number and name of one Goldey of Dubai whom he was to contact in case of any problem regarding confirmation of seat. Petitioner also admitted that he was traveling on a .Passport issued in the name of one Damanjit Singh.
(3) It has been also averred in the Grounds of Detention that inquiries were made and it was revealed that Raghbir Singh alias Goldey had financed the petitioner with a sum of Rs. 2,50,000.00 for purchasing gold from Dubai and he was to make a profit of Rs. 25.000.00 for every trip being made by the petitioner from Dubai to Delhi for carrying the contraband gold. Petitioner also confessed that he had made similar two trips to Dubai earlier and had smuggled 10 gold biscuits and 15 gold biscuits respectively on those two occasions and had paid Rs. 25.000.00 as profits to Goldey after selling the smuggled gold in India.
(4) Petitioner was arrested under the provisions of the Customs Act and was produced before the A.C.M.M, and he was remanded to judicial custody till August 17, 1988 and then further to September 14, 1988. The detaining authority after considering all these facts reached the subjective satisfaction that the detenu had been actively engaging himself in smuggling of good and thus he passed the detention order with a view to preventing the petitioner from engaging in smuggled goods in future.
(5) The counsel for the petitioner has urged that detenue has made two representations dated November 10, 1988, one addressed to the Officer who passed the detention order and the other addressed to the officer who had passed the declaration and those representations have not been considered by the appropriate authorities and instead have been disposed of by the specially empowered officers and communication in this respect was sent to the petitioner vide letter dated November 17, 1988. So, it is urged that as those two representations till today have not been considered by the Central Government, it has the effect of vitiating the impugned orders.
(6) It is now a settled law that the detenu has a right making a representation against the detention order and against the declaration and against the declaration and such a representation can be considered only by Central Government if the detaining authority is the Central Government itself. It is also not dissent disputed before me that these two communications sent by the detenu were considered by the Central Government but were considered by the two respective officers who had passed the impugned orders. So, the first question to be decided is whether these two communications addressed by the detenu could be treated as representations against the impugned orders ?
(7) The learned counsel for the respondents has vehemently urged that these two communications by no stretch of reasoning can be termed as representations against the impugned orders. He has pointed out that in these two representations the petitioner did not pray for revocation of the impugned orders at all. Copies of these two representations are Annexures 'F' and 'G' In the letter addressed to Shri K.L. Verma copy of which is Annexure 'F' the detenu mentioned that Along with declaration he has been served with a list of 40 documents and he enquired whether his detention has been reviewed by the detaining authority after examining the said 40 documents which inter alia included copy of the writ petition filed by Raghbir Singh and the order of the Calcutta High Court by which the stay of the operation of the detention order passed against Raghbir Singh had been granted. In the very opening para of the letter the petitioner mentioned as follows : "MAYI request for a very early reply so that, if need be, I can take recourse to representations to your goodself and the Central Government."
So, it is evident that detenu himself did not treat this letter as a representation against the impugned orders. In Para 2 the detenu wanted the detaining authority to clarify as to whether he had right to make a representation to the officer concerned in addition to his right to make a representation to the Central Government as according to him the words used in the grounds of detention in that respect were not very clear. In Para 3 he had mentioned that in the List of Documents at Page 2 SI. No. 51 and 52 appear to be'typed in a manner differently from the typing appearing in SI. No. I to 50 and he wanted information whether these two documents were amongst the documents which had been considered by the detaining authority for passing the detention order and he mentioned that according to his view it did not appear so. In Para 4 he mentioned that the grounds of detention are dated September 2, 1988 and the said date is very bold and bright type impression than the rest of the grounds of detention and he wanted to know the date on which the order of:detention was made on the file and the date on which the draft grounds were signed by the detaining authority and whether the draft grounds,, whether or not signed were exactly the same as the grounds of detention served on. the petitioner. And lastly he prayed that he may be informed if the originals of the list of documents and the documents themselves were signed by the officer so as to en sure that they had been seen by him and also intimate the nature of proceedings that had taken place at Calcutta in the case of Raghbir Singh.
(8) In the communication, copy of which is Annexure 'C' addressed to Shri K.J. Raman, he wanted the information as to whether he had any right to make any representation against the declaration and if so, before which authority and then be mentioned that documents at SI. No. 38 to 40 of the List of Documents enclosed with the declaration appear to have been added later as in the photo copy they are in a very faint print than the writings against SI. No. I to 37 and he wanted to know whether these three documents had been placed before the said officer and whether the List of Documents and the documents had been signed by him and whether the originals have been seen and signed by the officer. He categorically mentioned that he needed this information for making a representation to the detaining authority as well as to the Central Government and also for making a representation against declaration if be was so advised.
(9) So, the perusal of the contents of these two letters make it evident that these two communications were not seeking revocation of the impugned orders and were in the nature of seeking certain information with regard to certain matters. The learned counsel for the petitioner has further contended that as in the communication addressed to the officer who has passed the detention order, the detenu had made a query as to whether the said officer had reviewed the detention order or not in the light of the documents served on the detenu Along with the declaration and thus it would mean that the detenu was seeking revocation of the detention order and therefore at least these representation should have been considered and decided by the Central Govt. It is one thing to say that whether the officer who .had passed the detention order should on his own review the order and if deemed fit, revoke the order on his own level but it is another thing to say that detenu had made a representation against the order of detention which should be considered by the Central Government. The contents of these two communications detailed out above clearly indicate that these were not the representations made against the impugned orders seeking their revocations; rather in both these letters the detenu clearly mentioned that he needed the information to enable him to make necessary representations to the Central Government against the impugned orders. So, the same could not be deemed to be representations which were required to be considered by the Central Government.
(10) I hence negative this contention.
(11) The learned counsel for the petitioner has then contended that it was incumbent upon the authority es to have supplied him the information sought in Para 4 of each of these representations and authorities have not cared to supply such information which had the effect of prejudicing the right of the detenu to make purposeful and effective representations against the impugned orders. He has then made reference Kirit Kumar v. Union of India, 1981 Crl. L.J. 1267. One of the points raised in this case was that certain materials relied upon or referred to in the order of detention were not supplied to the detenu and thus the detenu was not in a position to make an effective representation and secondly that the two of the documents which were referred to in the order of detention were not supplied to the detenu because the Secretary thought that they were not relevant documents. It was argued before the Supreme Court that it was for Central Government (the Hon'ble Minister concerned) to decide whether the documents demanded by the detenu were relevant and not by the Secretary. The Supreme Court held that whether the documents concerned are the referred to or relied upon are taken into consideration by the detaining authority have to be supplied to the detenue as parts of grounds so as to enable the detenu to make an effective representation and as it was not done in the said case, the continued detention of the petitioner was held to be void. It was also held by the Supreme Court that the detention order was made by the Home Minister whereas the representation against the detention order has been rejected by the Secretary and this also has the effect of rendering the continued detention of the petitioner as void. However, nothing said in this judgment is of any help to the petitioner as already held by me above that the two letters in question could not be termed as representations against the impugned orders and thus they were not liable to be considered and decided by the Central Government.
(12) The counsel for the petitioner has then placed reliance on Khudiram Das v. State of West Bengal, . In this judgment the Supreme Court highlighted the two safeguards culled out in Article 22(5) of the Constitution of India. It has been held that in the first place the requirement of communication of grounds of detention acts as a check against arbitrary and capricious exercise of power and secondly the detenu has to be afforded an opportunity of making a representation against the order of detention and if the grounds of detention were not communicated to the detenu, how can the detenu make an effective representation. It was emphasised that the communications of the grounds of detention therefore also entitled to sub-serve the purpose of enabling the detenu to make an effective representation, and the grounds consists of the basic fact and materials which have been taken into consideration by the detaining authority in making the order of detention on which the order of detention is based. I do not understand how anything said in this judgment helps the case of the petitioner. The question to be decided is whether these two letters should have been placed before the Central Government or not? When these two letters are not in the nature of representations seeking revocations of the impugned orders, the question of placing them before the Central Government, in my opinion, did not arise. It has been brought to my notice that these two letters were considered by the respective two officers and a joint communication was sent to the detenu and the copy of the said communication is Annexure 'H' dated November 17, 1988. It was clarified in this letter that there was no question of detaining authority reviewing the detention order on the basis of the additional documents taken into consideration by the declaring authority copies of which have been supplied to the detenu by the detaining authority. It was also informed that the detenu has a right to make a representation against the detention order as well as against the declaration to the Central Government and the Central Advisory Board if the detenu so desired. In respect of the information sought by the detenu in Para 4, it was mentioned that the said information is not relevant for the purpose of enabling the detenu to make an effective representation. The learned counsel for the petitioner has pointed out that it is not clear from this letter as to Para 4 of which two letters has been referred. So, he has argued that the authorities have not cared to apply their minds on the request of the petitioner for supply of a requisite information which could have enabled the detenu to make an effective and purposeful representation.
(13) The learned counsel for the respondents however contended that information sought in Para 4 of both these letters was not at all necessary to enable the detenu to make an effective and purposeful representation. I have already re-produced the contents of Para 4 of these letters and I agree with the learned counsel for the respondents. Coming to Para 4 of the letter addressed to Shri K.L. Verma, the detenu wanted the dates on which the order of detention has been made and the date on which the draft has been signed and whether the draft grounds at all have been signed or not and whether the original documents have been seen by the detaining authority or not. In the ground of detention the detaining authority has already indicated to the detenu that the said authority had perused and relied upon the documents mentioned in the list and that list was supplied to the detenu Along with the grounds of detention. The order of detention and grounds of detention bear the necessary dates. So, the question of supplying any more information to the detenu on this aspect of the matter was totally uncalled for. In case the detenu wanted to make any ground for seeking revocation of detention order the detenu had the necessary grounds of detention with him. The learned counsel for the petitioner has contended that it was not for the said two officers to decide whether the information sought is relevant or not. I agree with this contention. However, the Court has to keep in the view the facts of the case in order to decide whether the information sought by the detenu was of any consequence or not. The detenu was not to be supplied with draft grounds of detention or the information whether those draft grounds of detention have been signed or not by the detaining authority. The order of detention is based on the grounds of detention communicated to the detenu and not on the draft grounds. The draft grounds do not figure anywhere in the grounds of detention or in the documents relied upon. There is not even a casual reference in the grounds of detention with regard to the draft grounds. So, it is not understood how any duty was cast on the authorities to supply any information to the detenu with regard to the draft grounds.
(14) Similarly, in Para4ofAnnexure'G'the detenu wanted information whether the three documents appearing at SI. No. 38 to 40 of the List of documents were placed before the declaring authority and whether the list of documents and the documents had been signed by the declaring authority. I do not understand how this information could not be deemed to have already been supplied to the detenu when in the declaration it has been clearly indicated that the declaring authority has not only relied upon the material considered by the detaining authority but also on the additional documents of which copies were duly furnished to the detenu. So, I hold that the impugned orders could not be considered vitiate on account of inability of the authorities to supply the information to the detenu in respect of Para 4 of each of these communications.
(15) Another contention urged by the learned counsel for the petitioner is that the order of detention is vitiated in as much as the detaining authority has taken into account some prejudicial activities which are not supported by any material indicated in the grounds of detention. As already mentioned by me above, the petitioner has been detained with a view to preventing him from smuggling of goods. In Ground Xxix of the Writ Petition a plea was taken that as the detenu's passport has been impounded there was no justification for passing an order of detention. In the counter in reply to this particular ground it was pleaded that mere impounding of the passport is not full proof process of preventing a person from indulging in smuggling activities. It was averred that a person can very well indulge in smuggling activities being in the country through his contacts and associates and moreover the smuggling should be understood in its broader sense which includes keeping, transporting, concealing and indulging in the smuggling of goods which is possible even without going abroad. The learned counsel for the petitioner has argued that no such prejudicial material exists on the basis of which this subjective satisfaction had been arrived at as culled out in the counter-affidavit in response to Ground No. Xxxix and thus the order of detention is vitiated. He has relied upon Shaik Hanif and others v. State of West Bengal, . In this judgment it was held that where the order of detention is challenged, it is incumbent upon the State to satisfy the Court whether detention of the petitioner was legal and inconformity not only with the mandatory provisions of the Act but also in accord with Article 22(5) of the Constitution and in response to rule nisi the counter affidavit on behalf of the State should be sworn to by the authorities on whose subjective satisfaction the detention order was passed. The facts in the cited case, in brief, are that petitioner Along with his associates had kept concealed 20 bundles of Telegraph Copper Wire in his court-yard which were recovered on the basis of some confession of the associates of the detenu. However, it was mentioned in the affidavit filed by the Deputy Secretary (Home) in the Criminal Writ Petition that the petitioner was a veteran copper wire stealer. It was found that no such ground has been conveyed to the detenu that he was a veteran copper wire stealer. So, in the light of these facts the Supreme Court held that it is clear as day light that all material particulars of the ground of detention which were necessary to enable the detenu to make an effective representation, were not communicated to the detenu and thus the detention order was quashed on that score. In the present case it is to be clarified that in the counter-affidavit only a general opinion had been expressed that in case a passport of a person is seized such a person is not precluded from indulging in smuggling activities in the country itself. It it not pleaded in the counter-affidavit that there was any material available with the authorities which could show that petitioner can indulge in any other sort of smuggling activity in the country itself. The mere fact that a general argument has been raised in the counter-affidavit does not mean that there was' any other ground of detention weighing in the mind of the authorities while the impugned orders were passed. In the aforesaid judgment given by the Supreme Court the facts were totally different. The prejudicial specific activity was imputed to the detenu which was not part of the grounds of detention and thus the Supreme Court held that order of detention was based on extraneous material and thus could not be sustained. Such is not the case here.
(16) The learned counsel for the petitioner alias then referred to Mohd. Alam v. State of West Bangal, Air 1975 S.C. 719. In this case the detenu had alleged that he had been wrongfully arrested and detained for 22 days in the police station and thereafter the detention order under the Act was foisted on him on the basis of charges which were totally false and had been concocted by the police and the detaining authority from ulterfor motives to cover up his initial wrongful detention. The Supreme Court held that when such allegations of mala fide have been made, the best informed person to rebut the same on oath was the District Magistrate against whom they were levelled and thus affidavit in opposition to the writ should have been scorned by the District Magistrate and not by the Deputy Secretary. The affidavit of the Deputy Secretary had disclosed that there was reliable information and other material, in addition to what was communicated to the detenu, present before the detaining authority in regard to the anti-social and prejudicial activities of the petitioner showing how he was a veteran copper wire criminal. The Supreme Court held that what has been quoted above shows that the detaining authority must have been greatly influenced in ordering the detention by this undisclosed material, not the whole of which was germane to the grounds on which preventive detention can be ordered under the Act and in any case, omission to communicate this material to the detenu must have seriously prejudiced him exercising his right of making an effective representation. The judgment is based on completely different facts which have no similarity to the facts of the present case. Here no other prejudicial activity has been imputed to the petitioner in the counter filed by the respondents. Only a general opinion has been expressed that person whose passport stood seized could always indulge in smuggling in the country itself. That does not mean that any other prejudicial material was being taken into consideration by the officers who passed the impugned orders in reaching the subjective satisfaction that the petitioner is to be detained with a view to preventing him from smuggling of goods.
(17) The counsel for the petitioner also made reference to Mohd. Saleem v. Union of India-, 1989 (3) Delhi Lawyer 77 which lays down in case the passport of a person is seized then grounds of detention should indicate the material which could enable the detaining authority to reach the subjective satisfaction that inspite of the fact that the passport of the detenu has been seized, still there is possibility of the detenu indulging in smuggling of goods in future, if no order of detention is passed against him. There is no two opinions regarding the ratio laid down by the Full Bench in that judgment. The question which needs consideration is whether the impugned orders could be sustained or not in the present case on the mere ground that despite the fact that a passport had been seized still the subjective satisfaction could be reached or not that the petitioner should be detained to prevent him from smuggling of goods in future. It is to be emphasised here that petitioner had not travelled on any passport in his name. He travelled on a passport in the name of some other person. So, no passport of the petitioner in fact had been seized in the present case. So, the judgment given in the case of Mohd. Saleem (supra) is not applicable to the facts of the present case. Here the petitioner had been indulging in smuggling of the gold on two occasions earlier and was found to have travelled on the passport which was in the name of some other person. So, the said material by itself was sufficient to enable the detaining authority to reach the subjective satisfaction that if order of detention is not made against the petitioner, there was every possibility of his indulging in similar prejudicial activity in future.
(18) It is well settled that it is not for the Court to question whether the grounds given in the order are sufficient or not for the subjective satisfaction of the authority (See Mrs . Saraswathi Seshagiri v . State of Kerala &. another, , Smt. Asha Keshavrao Bhosa1e v. Union of India and another-, So, in the present case the material appearing in the grounds of detention could lead the detaining authority to reach the subjective satisfaction that the order of detention should be made against the petitioner to preventing him from indulging in smuggling in gold in future inspite of the fact that a fictitious passport had been seized from the petitioner. Hence, I negative this contention of the learned counsel for the petitioner as well.
(19) The learned counsel for the petitioner has then pointed out that the petitioner was already in jail so he was effectively prevented from indulging in any smuggling and thus there was no compelling necessity for passing the detention order. He has relied upon Kirpal Mohan Virmani v. Tarun Roy and Others, 1988 (2) Crimes 196. In the said case the detenu was already in judicial custody as under-trial prisoner and his bail application stood rejected and it was found that there was no compelling necessity indicated by the detaining authority to pass the order of detention and hence the continued detention of the petitioner was held not justified. The facts are distinguishable. In the present case it is true the petitioner was already in judicial custody yet there was every possibility of petitioner getting bail and moreover the nature of the prejudicial activity indulged by the petitioner on the face of it indicated his propensity to indulge in such activities in future when the antecedents of the petitioner as have been indicated in the grounds of detention are taken into consideration, they are self evident that there was compelling necessity for passing the detention order despite the fact that petitioner was already in judicial custody. In the present case the facts are different from the case of Kirpal Mohan Virmani (supra). In the case of Kirpal Mohan Virmani (supra) the bail application had been moved and rejected by Court. Such is not the case here.
(20) The learned counsel for the petitioner has then placed reliance on Abdal Razak Abdul Wahab Sheikh v. Shri S.N. Sinha, , In the said case also the detenu was already in jail at the time the detention order was passed. The bail application moved by the detenu had already been rejected. It was held by the Supreme Court that the principle that emerges is that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of order of detention on him and cogent relevant material and facts have been disclosed which necessitate the making of an order of detention. The case is distinguishable on facts. The counsel for the petitioner has argued that counter affidavit should have been sworne by the detaining authority itself in order to show whether there was any compelling reasons for passing the detention order when the petitioner was already in judicial custody. He has cited Jagdish Prasad v. The State of Bihar and another-, 1974S.C.C. (Cri.) 491, Mohinuddin @ Moin Master v. The District Magistrate, Beed and Others', 1987 (3) Crimes I, Gulab Mehra v. State of U.P. and Others', ; Rajinder Singh @ Raju v. Union of India 1989 (3) Delhi Lawyer 213. However, it is not necessary that in every case the detaining authority must file the affidavit in opposition to the habeas corpus writ. It will depend upon facts of each case in order to see whether the affidavit of detaining authority should have been filed or the affidavit sworne in by some other officer based on the material appearing on the record would suffice. In Smt. Poonam Lata v. M.L.Wadhawan and another, which was also a case of double detention, the Supreme Court held in the facts of the said case that there was sufficient material to show that the detaining authority was aware of the fact that the petitioner was in custody when the order was made yet he was satisfied that his preventive detention was necessary. It was held that what is necessary in a case of this type is to satisfy the Court when the detention is challenged on that ground that the detaining authority was aware of the fact that detenu was already in custody yet the detaining authority was subjectively satisfied that his order of detention became necessary. In this very judgment a There Judge Bench judgment given in the case of Suraj Pal Saha v. State of Maharashtra, was referred to and it is useful to re-produce the observations made in that case : "IN Ramesh Yadav v. District Magistrate, Etah it was held that merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail, an order of detention under the National Security Act should not ordinarily be passed. If the apprehension of the detaining authority was true, court observed, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. We respectfully agree with this conclusion. But this principle will have to be judged and applied in the facts and circumstances of each case. Where a person accused of certain offences whereunder he is undergoing trial or has been acquitted, the appeal is pending and in respect of which he may be granted bail may not in all circumstances entitle an authority to direct preventive detention and the principle enunciated by the aforesaid decision must apply but where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardise the security of the State, then subject to other conditions being fulfillled, a man being in detention would not detract from the order being passed for prevention detention..."
Same principle was laid down in Bal Chand Bansal v. Union of India- 1.1. 1988 (2) S.C. 65. In the said case it was found that the offences in respect of which the detenu was accused were so interlinked and continuous in character and were of such nature that they fully justified the detention order although detenu was already in jail. So, it will depend upon the facts of each case in order to determine whether there was compelling necessity of passing the detention order or not inspite of the fact that a particular detenu is already in jail. In Vijay Kumar v. Union of India-, it was held that when a detenu is already under detention for an offence whether bailable or non-bailable, the detaining authority will take into consideration the fact of detention of the detenu and there must be compelling reason to justify his preventive detention inspite of the fact that he is already under detention on a charge of criminal offence and there must be material for such compelling reason and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu. In other words, two facts must appear from the grounds of detention namely (1) awareness of the detaining authority of the fact that the detenu is already in detention and (2) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention. It was observed that it is not necessary that in the order of detention such awareness of the detaining authority has to b", indicated. It is enough if it appears from the grounds of detention that the detaining authority is aware of the fact that the detenu is already in detention. Applying these principles to the facts of the present case it must be held that the detaining authority was aware of the fact that petitioner was in jail as an under-trial prisoner and there was material enough to pass the detention order in view of the prejudicial activities already indulged in by the petitioner on three separate occasions.
(21) The learned counsel for the petitioner has also made reference to N.Meera Rani v. Government of Tamil Nadu', . In this judgment also the same principles were enunciated but on facts it was found that no compelling necessity was indicated for passing the detention order. In the cited case there were no prejudicial previous antecedents of the detenu which could furnish the material for passing the detention order as a compelling necessity despite the fact that the detenu was in jail. In this very judgment it was held that the conclusion about the validity of detention order in each case has to be reached on the facts of the particular case and the observations made in each of the cases have- to be examined in the context in which they were made. So, keeping in view the facts of the present case it can safely be held that there was material enough in the shape of past antecedents of the detenu which could entitle the detaining authority to reach the subjective satisfaction for passing the detention order as a compelling necessity in the present case.
(22) The learned counsel for the petitioner has also made reference to certain case law on the point that grounds of detention cannot be supplemented by giving new material in the counter-affidavit. I need not refer to those cases because such is not the present case. There was no need for the defaming authority to have filed the affidavit in the present case because the facts and material disclosed in the grounds of detention are by themselves sufficient to indicate compelling necessity of passing the detention order. It is only where certain malafides are imputed to the detaining authority or certain grounds are vague that necessity may arise for the detaining authority to file the affidavit himself but where the averments in the counter-affidavit are based on the record which is self evident, there is no need to for the detaining authority to file its own affidavit.
(23) The learned counsel for the petitioner has then put forward the contention that it is not indicated that the additional documents which have been considered by the declaring authority had been placed before the Advisory Board. The learned counsel for the respondent on the other hand has contended that all the material and documents considered by the detaining authority as well as by the declaring authority have been placed before the Advisory Board and no such grievance has been made by the detenu by making any representation to the Advisory Board that any material had been kept back from the Advisory Board. The learned counsel for the petitioner has made reference to the copy of the communication addressed to the Advisory Board in support of his contention. I have gone through that communication and I do not find that it can be inferred from the same that the complete record including the additional documents relied upon by the declaring authority were not placed before the Advisory Board. I have also gone through the file of the Advisory Board and nothing could be culled out from that file in support of this contention of the learned counsel for the petitioner. I hence negative this particular ground as well.
(24) It has been next contended by the learned counsel for the petitioner that in the order of declaration served on the petitioner it was not indicated that petitioner has a right of representation against the declaration as well and thus the petitioner had not been afforded an earliest opportunity of making a representation against the order of declaration. He has cited Wasi Uddin Ahmed v. District Magistrate, Aligarh, U.P. in which it has been laid down that a duty is cast on the detaining authority to inform the detenu of his right to make a representation to the Advisory Board and failure to do so would vitiate the detention order. He has also cited Satar Habib Hamdani v. K.S. Dilip Sinhji and Others, . I have gone through this judgment. The same is on totally different proposition. It was held in this case that Advisory Board has to give opinion to the effect that there is sufficient cause for the continued detention oF the detenu. Unless such an opinion is rend .'red, the continued detention of the detenu would become bad. He has also cited Vijay Kumar v. Union of India, 1988 Cri. Law J. 1198 which lays down that detenu has the constitutional right to make an effective representation against the declaration issued under Section 9. This judgment does not lay down that there is any duty cast on the authorities to indicate in the order of declaration served on the detenu that the detenu has a right to make a representation against the order of declaration. The learned counsel for the petitioner has also placed reliance on Balbir Kumar v. Union of India and Others 1988 (2) Delhi Lawyer 33 in which it has been reiterated that it is the duty of the detaining authority to inform the detenu that he has a right to be heard by the Advisory Board. In the grounds of detention served on the detenu has already been apprised of his right to make a representation to the Central Government. This is in compliance with the constitutional provisions. It was not necessary in my opinion to inform the detenu again while serving the order of declaration that he can make a representation to the Central Government because the detenu is to make a representation to the Central Government against the factum of his being detained by virtue of the detention order. The declaration only extends the period of detention. So, the declaration cannot be considered vitiated on the ground that it was not indicated in the same that the detenu has a right to make a representation to the Central Government.
(25) No other point has been urged. So, in view of my above discussion I find no merit in this writ petition which I hereby dismiss.