Judgment:
S.V. Savant, J.
1. Heard both the learned counsel.
2. This is a petition by the detenu himself challenging his detention under the order dated 11th August, 1995 issued by the first respondent Commissioner of Police, Greater Bombay in exercise of his powers under sub-section (1) of Section 3 of the National Security Act, 1980. Under the said order the petitioner was ordered to be detained for a period of one year. The order dated 11th August, 1995 was served on the detenu on 14th August, 1995. It appears that a report under sub-section (5) of S. 3 of the said Act was made on 22nd August, 1995 on which day the State Government had approved the order of detention. A reference to the Advisory Board under Section 10 of the Act was made on 24th August, 1995. The Advisory Board held its meeting on 15th September, 1995 where the detenu was produced. The report and opinion of the Advisory Board was submitted on 28th September, 1995 on which day itself it was received by the State Government. The representation dated 15th September, 1995 which was presented to the Advisory Board was placed before the Deputy Chief Minister on 20th September, 1995 after receipt of the report of the Advisory Board. The Deputy Chief Minister considered the said representation and rejected the same on 4th October, 1995. The order of confirmation under Section 10 of the Act was made on 5th October, 1995.
3. The grounds of detention which were served along with the order of detention disclosed the criminal record of the petitioner who is described as a criminal having no ostensible means of subsistence and having no ostensible means of subsistence and having taken to crime for the sake of easy money by becoming an active member of the notorious gang formed by Shahuji Bhosle (now deceased) from Sion Chunabhatti area in Bombay. The grounds of detention disclosed that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. It is not necessary for us to refer to the said grounds in detain in view of the short point on which we are inclined to allow the petition.
4. Shri Tripathi for the petitioner has raised several contentions but the only contention which we need to discuss is the one taken by way of amendment in the grounds and which is ground No. 6(f) which reads as under :
'6(F). The petitioner says and submits that he made a representation to the Honourable Advisory Board in which a specific request was made that he may please be allowed to produce some witnesses who were present outside the interview hall, in order to present his evidence in rebuttal of the allegations made against him. The petitioner submits that even though he made a specific written request he was not allowed to produce witnesses. Which is recognised as a right of a detenu before the Advisory Board. The petitioner submits that as a result of not permitting him to examine witnesses his rights are violated. The petitioner submits that if he would have allowed to produce his witnesses, he could have pursuaded the Hon'ble Advisory Board that there are no sufficient cause for detention and ultimately the appropriate Government could have revoked the order of detention. The order of detention is illegal and bad in law, ought to be quashed and set aside.'
In short what is contended is that the detenue had kept his witnesses present outside the Board Room on the date on which he was interviewed by the Advisory Board, namely, 15th September, 1995. Despite a specific written request made to the Advisory Board, the Advisory Board did not permit the petitioner to examine those witnesses. The said ground is in respect of the specific written request made by the petitioner that he wanted to produce some witnesses who knew him and who were taken to the Advisory Board to speak about him and to enable the petitioner to rebut the allegations made against him. The grievance is that despite the said specific written request being made, the Advisory Board did not permit the petitioner to examine the said witnesses and this violated the principles of natural justice and infringed the right of the petitioner as recognised by the Supreme Court in the case of A. K. Roy v. Union of India reported at : 1982CriLJ340 .
5. In reply to the petition, as far as this contention is concerned, affidavit has been filed by Shri Sharad Yadav, who at the relevant time, was Assistant to the Home Department Special Branch, Government of Maharashtra, and was working as the Secretary to the Advisory Board constituted under National Security Act. He is respondent No. 4 in this petition. All that he has stated in para 3 of his affidavit dated 4th June, 1996 is as under :
'3. .............. I say that on 15-9-1995 the detenu did not make any written/specific request for the purpose of production of permission to examine witnesses before the Advisory Board. I say that from the abovementioned facts it is clear that the representation dated 15-9-1995 personally submitted by the detenu to the Advisory Board was duly and carefully considered by the Advisory Board giving him all the opportunities of hearing and, therefore, detenu's/petitioner's contention that the (sic) not permitting the petitioner to examine the witnesses inspite of specific request has resulted into violation of his rights is not true and correct.'
6. Copy of the representation dated 15th September, 1995 is annexed to the petition at Exh. D. Para 7 of the said representation reads as under :
'7. I also pray that I may also be allowed to produce some witness who know me and brought here to speak about me to enable me to rebut my allegations.'
7. Shri Tripathi appearing for the petitioner has placed strong reliance no the observations of the Supreme Court in the case in the case of A. K. Roy v. Union of India reported at : 1982CriLJ340 . Relevant observations on which reliance was placed are to be found in para 105 at page 751 (of AIR) : (at p 381 of Cri LJ of the report as under :
'105. The last of the three rights for which Shri Jethmalani contends is the right of the detenu to lead evidence in rebuttal before the Advisory Board. We do not see any objection to this right being granted to the detenu. Neither the Constitution nor the National Security Act contains any provision denying to the detenu the right to present his own evidence in rebuttal of the allegations made against him. The detenu may therefore offer oral and documentary evidence before the Advisory Board in order to rebut the allegations which are made against him. We would only like to add that if the detenu desires to examine any witnesses, he shall have to keep them present at the appointed time and no obligation can be cast on the Advisory Board to summon them. The Advisory Board like any other tribunal, is free to regulate its own procedure within the constraints of the Constitution and the statute. It would be open to it, in the exercise of that power to limit the time within which the detenu must complete his evidence. We consider it necessary to make this observation particularly in view of the fact that the Advisory Board is under an obligation under Section 11(1) of the Act to submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned. The proceedings before the Advisory Board have, therefore, to be completed with the utmost expedition.'
8. Shri Tripathi then invited our attention to a decision of the Supreme Court in the case of Surinder Kumar Arora v. Union of India being Criminal Appeal No. 55 of 1986 (arising out of Special Leave Petition (Cri) No. 3540 of 1985) decided on 14th January, 1986. Since we are told at the bar that the said decision has not been reported and since we are basing our conclusion on the decision of the Supreme Court in the case of Surinder Kumar Arora, we think it proper to reproduce that short order here.
'Special leave granted. The principal complaint of Mr. Ram Jethmalani, learned counsel for the appellant is that at the hearing before the Advisory Board the detenu's request to be assisted by his friend who was waiting outside and to examine his witnesses who were also waiting outside was not considered by the Advisory Board. According to the detenu he mentioned this request in the representation which he made to the Advisory Board and which he presented in person to the Advisory Board on the 20th of August, 1985. That the detenu has a right to be represented by a friend of his choice and that he has the right to examine witnesses to rebut the allegations made against him has been held by this Court in A. K. Roy v. Union of India, : 1982CriLJ340 . It dose not appear from the record placed before us that the written request of the detenu was ever considered. The High Court glosses over this fact with the statement that there was nothing in the record to indicate that the detenu had orally made any request that he wanted his friend to represent his case to the Advisory Board and that the request contained in the written representation was brought to the notice of the Board. We do not think that this approach of the High Court is correct. The request was made in writing and was made in the representation which was presented by him in person to the Advisory Board at the time of the hearing by the Advisory Board. He specifically mentioned in the representation that his friend and his witnesses were waiting outside. We do not think that the High Court was justified in brushing aside the submissions made on behalf of the detenu on the ground that he record does not indicate that any request was made. In these circumstances, we have no option but to allow the appeal and direct the detenu to be set at liberty. No orders in Writ Petition No. 1647 of 1985 in view of the order in this appeal.' New Delhi. Sd/- O. Chinnappa Reddy, J. January 14, 1986 Sd/- V. Balakrishna Eradi, J.
9. We may incidentally mention that similar view has been taken by Delhi High Court in two cases to which our attention was invited. The said cases are as under :
(i) S. Venkataraman v. Union of India reported at : 1987(13)DRJ276 . This is a decision dated 22nd May, 1987 in Criminal W. No. 113 of 1987. In para 10 of the decision the Delhi High Court has relied upon the observations of the Supreme Court in the case of Surinder Kumar Arora which judgment is reproduced above.
(ii) Dorje Wandguchk v. Union of India reported at : 1989(41)ELT67(Del) . (Criminal Writ No. 464 of 1986 decided on 4-2-1987). In para 6 of the judgment the Delhi High Court has referred to the decision in A. K. Roy's case : 1982CriLJ340 and to the observations in Surinder Kumar Arora's case.
10. Relying upon the above decisions, Shri Tripathi contends that since a specific request was made in writing before the Advisory Board for permission to examine the witnesses who were kept waiting outside the Board room, it was enough and there was no need for the detenu to make a specific oral request during the interview that he wanted to examine the witnesses who were waiting outside.
11. On the other hand Smt. Tahilramani on behalf of the respondents has invited our attention to the decision of the Supreme Court in the case of Vijay Kumar v. Union of India reported at : 1988CriLJ951 . Reliance was placed on the observations in paras 17 to 21 appearing at pages 938 to 939 (of AIR) : (at p. 955 and 956 of Cri LJ) of the report. It appears that in Vijay Kumar's case the detenu had got the representation prepared on 23rd April, 1987 and submitted the same to the Advisory Board on 27th April, 1987 and the Advisory Board met on 29th April, 1987. In that representation the detenu had stated that he wanted to produce in rebuttal certain witnesses who were kept present and they may be examined in rebuttal in evidence. It appears that the detenu had also made a prayer for giving assistance of his friend before the Advisory Board. The Advisory Board appears to have permitted the detenu to have assistance of an Advocate or a friend at the time of hearing. The detenu did not avail of this facility and started arguing his case himself. This in all probability gave an impression to the members of the Advisory Board that the detenu did not want to examine any witnesses. It was in the light of these facts that in para 21 of the judgment in Vijay Kumar's case : 1988CriLJ951 , the Supreme Court observed as under :
'21. It appears from the observations made by the High Court that the appellant, without making any prayer before the Advisory Board for, the examination of his witnesses or for giving him assistance of his friend, started arguing his own case, which in all probability, had given an impression to the members of the Advisory Board that the appellant would not examine any witness. The appellant should have made a specific prayer before the Advisory Board that he would examine witnesses, who were standing outside. The appellant, however, did not make any such not make any such request to the Advisory Board. There is no reason for not accepting the statement of the detaining authority that the appellant was permitted by the Advisory Board to have the assistance of an Advocate or a friend at the time of hearing, but the appellant did not avail himself of the same. In the circumstances we do not think that there is any appellant that the Advisory Board acted illegally and in violation of the principles of natural justice in not examining the witnesses produced by the appellant at the meeting of the Advisory Board and in not giving permission to the appellant to have the assistance of his friend.'
12. In the light of the specific observations of the Supreme Court in Surinder Kumar Arora's case placing reliance on its earlier decision in A. K. Roy's case : 1982CriLJ340 holding that the detenu has a right to examine the witnesses to rebut the allegations made against him, we do not think that the ratio of the decision in Vijay Kumar's case can support the contention raised by Smt. Tahilramani. Her contention was that it was necessary for the detenu to have specifically made a request orally in addition to the request made in writing that he wanted to examine his witnesses who were kept present outside the Board room. It is clear to us that detenu had made a request in writing to the effect that he should be allowed to produce some witnesses who knew about him and who were brought to speak about him and to enable the detenu to rebut the allegations made against him. The Supreme Court in Surinder Kumar Arora's case has not approved of the approach of the Delhi High Court suggesting that there was nothing on record to indicate that the detenu had orally made any request and that request contained in the written representation ought to be brought to the notice of the board. The Supreme Court has stated that the request was made in writing and was made in the representation which was presented to the Advisory Board. The detenu had specifically stated that he wanted to examine the witnesses who were brought by him. In these circumstances, the Supreme Court came to the conclusion that the right of the detenu as recognised by the Constitution Bench in A. K. Roy's case was violated.
13. In this view of the matter, we are of the view that on account of failure to afford the petitioner the opportunity of examining the witnesses who were kept ready by him on 15th September, 1995 when he was interviewed by the Advisory Board his continued detention cannot be sustained.
14. In the result the petition succeeds. The continued detention of the petitioner is not permissible in law and hence we direct that the petitioner be set at liberty forthwith unless he is required to be detained under some other order. Rule made absolute accordingly.
15. Petition allowed.