Dorje Wangchuk Vs. Union of India and Others - Court Judgment

Excerpt:
constitution of india - article 21--in his representation to the advisory board the detenu requested permission to examine witnesses who were present outside but the advisory board failed to examine them.;that the detenu has been denied his constitutional right which by itself is sufficient to vitiate the detention. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - on failure of the driver to stop the bus the customs officers gave a chase. it is, however, stated that the advisory board did not grant this request and failed to examine the witnesses other than the detenu himself and in this manner he was deprived of a valuable right resulting in the invalidity of the detention order.order1. rule in this petition was issued on 19th december, 1986. the respondents have neither appeared nor have they filed a return despite service. under these circumstances i have heard mr. n. s. mathur on behalf of the petitioner. 2. the husband of the petitioner, dorje wangchuk (detenu in this case) was detained in pursuance of an order dated 9th august, 1986. the order was passed by the government of uttar pradesh under s. 3(1) of conservation of foreign exchange and prevention of smuggling activities act, 1974. the detention was ordered with a view to preventing the detenu from smuggling of goods and engaging in transporting, concealing and keeping smuggled goods. 3. before i take up for consideration the contentions raised by mr. mathur, a brief reference may be made to the incident that ultimately culminated in the passing of the said detention order. on 22nd june, 1986 at about 4.30 hours the customs officers of basti signalled a tourist bus number dep 7788 to stop near the bridge over river karachi on basti-naugarh road. the bus was coming from nepal. on failure of the driver to stop the bus the customs officers gave a chase. since the barrier of the bridge was closed the bus came to stop. the detenu is said to have jumped from the driver's window and thereafter it is stated that various kinds of foreign made goods valuing at rs. 3,28,420/- were recovered from the possession of the detenu. similar goods were also recovered from some other persons. on investigation it was found that the detenu was associated with the smuggling of foreign made goods. it is this event which is made the basis for passing of the detention order. the case of the detenu is that he was taken into custody on 22nd june, 1986 while that of the other side is that he was actually taken into custody on 27th june, 1986. 4. mr. mathur has detailed a number of contentions before me. his main contention is that he was denied his constitutional right of examining witnesses in rebuttal of the grounds of detention by the advisory board and that this is sufficient to vitiate the order of detention. his second contention is that even though he was in custody right from 22nd june, 1986 and was in judicial custody right from 27th june, 1986 and no bail had been granted till 14th august, 1986 in his favor, this fact was suppressed by the sponsoring authority from the detaining authority resulting in not showing any awareness about it by the detaining authority and in not taking into consideration this fact while passing the detention order. mr. mathur states that this is a vital matter for the simple reason that if the detaining authority this might have affected its decision authority this might have affected its decision to pass the detention order. in this regard reliance is placed on s. k. nizamuddin v. state of west bengal, : 1975crilj12 . 5. next, mr. mathur contended that the detenu is a tibetan and is not properly educated and the only language he understands is tibetan while the material supplied to him is all in hindi and english. the contention is that in this way he has been deprived of making an effective and purposeful representation. it is submitted that this matter was taken up on 5th september, 1986 when he first made the representation to the detaining authority. 6. adverting to the first contention it may be stated that the advisory board met on 23rd september, 1986. the detenu made a written representation to the board on the same date. in that representation the detenu gave a list of six witnesses namely, dorje wangchuk, tpsi risht, thondup dorejee, dandul teering, smt. thering tandon and smt. dochia risht and had brought to the notice of the board that his witnesses are present outside the room where the advisory board was giving hearing and that they may be examined in rebuttal of the grounds of detention. it is, however, stated that the advisory board did not grant this request and failed to examine the witnesses other than the detenu himself and in this manner he was deprived of a valuable right resulting in the invalidity of the detention order. that a detenu has a right to be represented by a friend of his choice and that he has a right to examine witnesses to rebut the allegations made against him has been held in a. k. roy v. union of india, : 1982crilj340 . in criminal appeal no. 55 of 1986 decided by the supreme court on 14th january, 1986 (surinder kumar arora v. union of india) the supreme court has gone a little further in observing that if a request has been made in writing in the representation, there is no question in this regard. in that case the high court had held that there was nothing on record to show that the detenu made an oral request before the advisory board. in the presence of a mention of this fact by the detenu in the written representation the supreme court did not approve of this approach. in the present case the respondents have chosen not to contest and i take it that the advisory board despite a written request for examination of his witnesses in rebuttal has not examined the witnesses. in this manner the detenu has been deprived of his constitutional right which by itself is sufficient to vitiate the detention order. since the petition is to be allowed on this ground, there is no need for me to go into the other contentions. the petition is allowed and the detention order is quashed. the detenu shall be released forthwith unless required in some other case. 7. petition allowed

Judgment:
ORDER

1. Rule in this petition was issued on 19th December, 1986. The respondents have neither appeared nor have they filed a return despite service. Under these circumstances I have heard Mr. N. S. Mathur on behalf of the petitioner.

2. The husband of the petitioner, Dorje Wangchuk (detenu in this case) was detained in pursuance of an order dated 9th August, 1986. The order was passed by the Government of Uttar Pradesh under S. 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detention was ordered with a view to preventing the detenu from smuggling of goods and engaging in transporting, concealing and keeping smuggled goods.

3. Before I take up for consideration the contentions raised by Mr. Mathur, a brief reference may be made to the incident that ultimately culminated in the passing of the said detention order. On 22nd June, 1986 at about 4.30 hours the Customs Officers of Basti signalled a tourist bus number DEP 7788 to stop near the bridge over river Karachi on Basti-Naugarh road. The bus was coming from Nepal. On failure of the driver to stop the bus the Customs Officers gave a chase. Since the barrier of the Bridge was closed the bus came to stop. The detenu is said to have jumped from the driver's window and thereafter it is stated that various kinds of foreign made goods valuing at Rs. 3,28,420/- were recovered from the possession of the detenu. Similar goods were also recovered from some other persons. On investigation it was found that the detenu was associated with the smuggling of foreign made goods. It is this event which is made the basis for passing of the detention order. The case of the detenu is that he was taken into custody on 22nd June, 1986 while that of the other side is that he was actually taken into custody on 27th June, 1986.

4. Mr. Mathur has detailed a number of contentions before me. His main contention is that he was denied his constitutional right of examining witnesses in rebuttal of the grounds of detention by the Advisory Board and that this is sufficient to vitiate the order of detention. His second contention is that even though he was in custody right from 22nd June, 1986 and was in judicial custody right from 27th June, 1986 and no bail had been granted till 14th August, 1986 in his favor, this fact was suppressed by the sponsoring authority from the detaining authority resulting in not showing any awareness about it by the detaining authority and in not taking into consideration this fact while passing the detention order. Mr. Mathur states that this is a vital matter for the simple reason that if the detaining authority this might have affected its decision authority this might have affected its decision to pass the detention order. In this regard reliance is placed on S. K. Nizamuddin v. State of West Bengal, : 1975CriLJ12 .

5. Next, Mr. Mathur contended that the detenu is a Tibetan and is not properly educated and the only language he understands is Tibetan while the material supplied to him is all in Hindi and English. The contention is that in this way he has been deprived of making an effective and purposeful representation. It is submitted that this matter was taken up on 5th September, 1986 when he first made the representation to the detaining authority.

6. Adverting to the first contention it may be stated that the Advisory Board met on 23rd September, 1986. The detenu made a written representation to the Board on the same date. In that representation the detenu gave a list of six witnesses namely, Dorje Wangchuk, Tpsi Risht, Thondup Dorejee, Dandul Teering, Smt. Thering Tandon and Smt. Dochia Risht and had brought to the notice of the Board that his witnesses are present outside the room where the Advisory Board was giving hearing and that they may be examined in rebuttal of the grounds of detention. It is, however, stated that the Advisory Board did not grant this request and failed to examine the witnesses other than the detenu himself and in this manner he was deprived of a valuable right resulting in the invalidity of the detention order. That a detenu has a right to be represented by a friend of his choice and that he has a right to examine witnesses to rebut the allegations made against him has been held in A. K. Roy v. Union of India, : 1982CriLJ340 . In Criminal Appeal No. 55 of 1986 decided by the Supreme Court on 14th January, 1986 (Surinder Kumar Arora v. Union of India) the Supreme Court has gone a little further in observing that if a request has been made in writing in the representation, there is no question in this regard. In that case the High Court had held that there was nothing on record to show that the detenu made an oral request before the Advisory Board. In the presence of a mention of this fact by the detenu in the written representation the Supreme Court did not approve of this approach. In the present case the respondents have chosen not to contest and I take it that the Advisory Board despite a written request for examination of his witnesses in rebuttal has not examined the witnesses. In this manner the detenu has been deprived of his Constitutional right which by itself is sufficient to vitiate the detention order. Since the petition is to be allowed on this ground, there is no need for me to go into the other contentions. The petition is allowed and the detention order is quashed. The detenu shall be released forthwith unless required in some other case.

7. Petition allowed