PRAVIN LILADHAR DHOLAKIA Vs. C T A PILLAI

JUDGEMENT

(1.) THE petitioner is the elder brother of Lalit Liladhar Dholakia (hereinafter referred as to the detenu) who has been detained under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA ). Being amenable to the jurisdiction of the Bombay High Court at the time of his detention, the detenu's wife filed Criminal Misc. Application No. 23 of 1975 in the High Court of Bombay on 4-11975 challenging the provisions of the COFEPOSA (Maharashtra Conditions of Detention) Order, 1974 (hereinafter referred to as the Maharashtra Conditions Order ). On 7-1-1975 the petitioner also filed Habeas Corpus Petition in the Supreme Court being Writ Petition No. 3 of 1975 challenging the detention order pfss-ed against the detenu. On 9-2-1975 the detenu was transferred from Bombay to Agra and detained in Central Jail, Agra vide order of the Secretary to the Government of India passed under Section 5 (b) of the COFEPOSA, vide Annexure C-A-1 to the petition. The detenu is alleged to have been kept in solitary confinement in a small room on account of which he is on the verge of nervous breakdown. He is also not allowed food from outside or other basic facilities, He is not even allowed sufficient bedding and is alleged to be subjected to harsh and inhuman treatment. On 12th March, 1975 the petitioner withdrew Criminal Misc. Application No. 23 of 1975, which was till then pending in the Bombay High Court since the detenu had been transferred outside the State of Maharashtra. I am informed that the detenu is about 35 years of age. He has been kept in detention since 29th September 1974 and has been treated as ordinary class security prisoner. By an order dated 18th December, 1974 issued by the Governor of Uttar Pradesh under Section 5 of the COFEPOSA, vide Annexure C-A-2, the U. P. Security Prisoners Rules, 1972 have been made applicable in respect of persons in detention in so far as they related to the condition of detention including conditions as to maintenance, interviews or communication with others, discipline and arrangements for breaches of discipline. On 27-1-1975 the Governor of Uttar Pradesh was pleased to partially modify the order dated 18th December 1974 and to direct that the person detained under the COFEPOSA shall be treated as ordinary class prisoners and that interviews with lawyers, relatives and others shall be subject to prior approval of the State Government vide Annexure C-A-3 it was further directed that the detenu will remain in detention in Central Jail Agra. This writ petition has been filed by the elder brother of the detenu in this Court on 4th August 1975. Prior to the admission of this Writ Petition by the Court the counsel for the State contended that the petitioner has suppressed that the interim orders which were sought for in this petition had already been refused by the Supreme Court and as such this petition was not maintainable and no relief should be granted. This matter was however left open by the Bench which admitted the writ petition on 12th November, 1975. Certain interim orders with regard to the food requirements of the detenu have subsequently been passed by this Court, which shall be referred to at the appropriate stage. In this writ petition the first relief sought is for quashing the order of the State Government dated 18th December, 1974 Annexure 1 and the U. P. Security Prisoners Rules, 1972. The second relief is for the issue of an appropriate writ, order or direction for detaining the detenu in accordance with the conditions applicable to under-trial prisoners or civil prisoners in accordance with the Rules contained in the Jail Manual or the Rules made under the U. P. Prisons Act, 1894. The third relief claimed is for the issue of an appropriate writ, order or direction requiring the respondents (i) not to put the detenu in solitary confinement, (ii) to permit the detenu to supplement his diet at his own expense from outside the jail; (iii) to permit the detenu at his own expense an allowance of Rs. 200 per month; (iv) to permit the detenu all facilities for medical treatment by a physician or consultant of his own choice at his own expense; (v) to grant the detenu all the interviews including the additional interviews and special interviews provided for by the U. P. Security Prisoners Rules, 1972 and to permit him to correspond in connection with the business interest of the detenu; (vi) to give the detenu all books, periodicals and newspapers and to allow him to receive such books and periodicals through post subject to censorship; (vii) to allow the detenu to write letters and telegrams and receive the same to ensure the smooth working of his business and professional affairs.

(2.) THE State counsel contends that the petitioner has concealed certain material facts from this Court and as such the detenu is not entitled to the reliefs claimed on his behalf. It is urged that the petitioner failed to disclose that in the Supreme Court the petitioner had filed Misc. Application No. 728 of 1975 on 4th August 1975 on behalf of the detenu in which he claimed the same reliefs as are claimed by him in this writ petition, vide Annexure '1' filed along with the counter-affidavit of Sri L. J. Arora. The prayer in the application was to permit the detenu to get his food from outside the jail subject to usual routine check. On this application the Supreme Court on 30th April 1975 had directed the detenu to be examined by the U. P. Medical Board and had further directed that the detenu would be given the food prescribed by them. The food was to be supplied to the detenu by the state, vide Annexure '2' filed along with the counter-affidavit of Sri Arora. In obedience to the directions contained in the order dated 30th April, 1975 passed by the Supreme Court, the diet prescribed by the U. P. Medical Board was being supplied to the detenu at the cost of the State. Counsel for the State has submitted that even though there is reference in Paragraph 3 of the petition that he was granted interim relief on 8-1-1975 by the Bombay High Court which permitted the detenu to have his food from outside at his expense subject to routine check, yet the orders of the Supreme Court referred to above, have been concealed by the petitioner while claiming the interim relief from this Court. The argument is that the petitioner sought to make out a case that since the Bombay High Court had granted the interim relief to the detenu, this Court should also grant the relief to him. I have carefully perused the documents in connection with this preliminary objection, but, I am of the opinion that the alleged suppression, if any, is not of such a degree that it disentitles the petitioner to approach this Court for an appropriate remedy. From a perusal of the application filed in the Supreme Court it appears that it was on the ground of ill health of the detenu that the petitioner prayed for permission to supplement his food from outside. The Medical Board examined the detenu and prescribed some diet for him which was given to him. The habeas corpur petition challenged the vires of the detention order which was given up with the withdrawal of the petition. The interim order passed by the Supreme Court also exhausted itself with the withdrawal of the Supreme Court petition. The petitioner's counsel has submitted that he did not consider it necessary to mention about the interim order in the petition as it was passed on humanitarian grounds. Be that as it may, it cannot be said that the omission to mention the above facts would in any way affect the merits of the decision of this writ petition. These questions have been raised afresh in this Court end have to be decided in accordance with law. In my view, therefore, this preliminary objection has no legs to stand on and will not deter the petitioner from claiming adequate relief for the detenu.

(3.) RELIANCE has been placed on behalf of the detenu on a Division Bench decision of the Bombay High Court reported in (1975) 77 Bom LR 599 : 1976 Cri LJ 534, Bhanudas Krishna Gavde v. K. G. Paranjpe. On the basis of this decision it is urged that the restrictions which had been placed upon the detenu have no nexus with the object of COFEPOSA, 1974. It is therefore urged that the conditions of detention which have been placed upon the detenu are ultra vires Section 5 of the COFEPOSA. The impugned conditions go beyond what is necessary for the preventive detention of the detenu. Punitive conditions cannot be imposed to deprive a detenu of ordinary amenities of life. As such these conditions are ultra vires the object of the Act and must be struck down.