KARIM YUSUF ALIAS SUNIL Vs. M L WADHAWAN

JUDGEMENT

(1.) I have heard Mr. Jethamalani in respect of Criminal Misc. Application No. 3 of 1987 by which he has sought to raise an additional ground and in that regard filed a copy of the remand application. Since this is a Habeas Corpus petition, there can be no serious objection to the raising of additional ground, particularly, in view of the fact, that the contents of the remand application, are not something new to the other side. Relying on the case of Smt. lcchu Devi Choraria v. Union of India and others (AIR 1980 SC 1983), I allow this petition. In the case supra, the Supreme Court has clearly held that it would be no argument on the part of the detaining authority to say that a particular ground is not taken in the petition and the burden of proving that the detention is in accordance with the procedure laid down by law has always been placed by the court on the detaining authority. This is because Article 21 of the constitution provides in clear and explicity terms that no one shall be deprived of his life or personal liberty except in accordance with the procedure laid down by law.

(2.) The petitioner was detained in pursuance of the written order dated 28/4/1986 passed by Mr. M.L. Wadhawan, Additional Secretary, to the Government of India. The detention order was passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and was with a view to prevent the petitioner from abetting the smuggling of goods, engaging in transporting, concealing and keeping: smuggled goods and dealing in smuggled goods. This order was confirmed by the Central Government.

(3.) There is no necessity for me to detail the grounds of detention. The principal contention of Mr. Jethamalani is that the detention order is vitiated for the simple reason that there has been totally non-applicant of mind by the detaining authority and the grounds of detention as conveyed to the petitioner are verbitam copy of the remand application that had gone from the Officer of the Revenue Authorities to the Court of the Magistrate and on which the petitioner was remanded to the judicial custody. I have gone through the grounds of detention as well as the contents of the remand application. Excepting the change in paragraph numbers the contents of the grounds of detention are verbitam copy of what is stated in the remand application. Mr. Jethamalani has also invited my attention to certain paragraphs in the grounds of detention where Karim Yusuf is mentioned as Karim @ Sunil. In one of the paragraphs namely, paragraph No. 4, he is however, mentioned as Shri Karim. The detaining authority has gone to the extent of evea copying this from the remand application. Throughout in the grounds of detention the petitioner has been addressed as ShriKarim alias Sunil or 'Shri Karim' instead of addressing him as 'you'. This was necessary to convey it to him that the allegations mentioned in these paragraphs related to him. The grounds conveyed to the detenu must always be clear, specific and further they must clearly tell the detenu all the allegations attributed to him and which form the basis for his detention.