HIRA LAL PANDEY Vs. STATE OF UTTARPRADESH

JUDGEMENT

(1.) The petitioner has filed the present habeas corpus petition under Article 226 of the Constitution of India against the detention order dated 16.11.1984 (Annexure I to the petition) passed under section 3 (2) of the National Security Act (for short the Act) and the order dated 26.11.84 (Annexure T9T) confirming the order of detention.

(2.) The facts of the case need not detain much. According to the case of the State the petitioner, immediately after passing the order of detention dated 16.11.1984, absconded and could not be arrested till 22.5.86, when the detention order was served on him along with nine grounds of detention coupled with other materials on which reliance was placed. The Advisory Boards opinion was received under Section 10 to this effect that there was sufficient cause for detention of the petitioner. Thereafter the detention order was confirmed by the State Government vide its order dated 26.11.84 (Annexure 9). The petitioner has challenged these two order dated 16.11.84 and 26. 11.84.

(3.) Sri D.S. Misra, the learned counsel for die petitioner, urged before us that even though the order of detention was passed on 16.11.84 but the petitioner was actually arrested on 21/22.5.86 and before that according to the case set up by the State, the petitioner was absconding. In that event the procedure prescribed for a person who has absconded, as provided under Section 7 of the Act ought to have been followed, and a report must have been made to the Metropolitan Magistrate or the Judicial Magistrate, First Class, having jurisdiction over the place, there the petitioner ordinarily resided and the order must have been published in the Official Gazette and the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 must have been complied with. But no such report was made. There is no explanation as to wby the order of detention passed on 16.11.1984 could not be served on the petitioner till 21/22.5.1986, particularly when he was Pradhan and also a Block Pramukh of Pahari. During that period he has presided or attended a number of meetings, which were attended by some Govt. Officials or the other (vide Para 5 and Annexures 1 to 17T of Rejoinder Affidavit). The grounds disclosed have no nexus to the order of detention and a number of grounds are stale, and the remaining grounds do .not raise a question of Public Order. The First Information Reports and other materials forming the basis of the grounds were not supplied to the petitioner and he was deprived of the right of hearing. The proceedings before the Advisory Board were held in violation of the principles of natural justice. The petitioner fell seriously ill as he has serious anginapector is pain. According to Jail Doctor he was unable to undertake journey. He wanted to be represented through his next friend Sri Ram Nath Dubey, Advocate. But on 7th July, 1986, on the date fixed for hearing before the Advisory Board at Lucknow, neither the petitioner was present nor heard. His next friend Sri Dubey was not heard on the ground that he was a practising lawyer. Sri Dubey did not represent the petitioner as a lawyer but as a next friend.