BAL MUKUND JAISWAL Vs. SUPERINTENDENT DISTRICT JAIL VARANASI

JUDGEMENT

(1.) A Division Bench of this Court has referred the following question to be decided by the Full Bench :-

(2.) It may be mentioned here that the petitioner filed the present petition challenging his detention in Varanasi Jail in Crime No. Nil of 1993/Special Trial No. 273 of 1993 u/Ss. 8/21/22/25/27 of Narcotic Drugs and Psychotropic Substances Act of Police Station N.C.D. Varanasi. It was alleged that when the petitioner was arrested in the said crime he was not informed the grounds of his arrest with the result that his detention being in violation of the provisions of Section 50(1) of the Code of Criminal Procedure as also under Articles 21 and 22 of the Constitution was illegal particularly as his arrest was not in pursuance of any warrant of arrest. It is further mentioned in the petition that a complaint was filed against the petitioner with the result that Case No. 273 of 1993 Union of India v. Bal Mukund Jaiswal was registered against him under the provisions of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act) in the Court of the Sessions Judge, Varanasi which was at the time of filing of the petition, pending before the VI Additional Sessions Judge, Varanasi. It was also mentioned in the petition that no order of remand was passed while sending the petitioner to jail in the above mentioned case nor was there any warrant directing detention of the petitioner in connection with the said case and if at all there was any such warrant or order the VI Addl. Sessions Judge had signed it like a rubber stamp without due application of mind in a mechanical manner. It was specifically pleaded that on 3-3-1994 while directing detention of the petitioner in jail the VIth Additional Sessions Judge had not signed the order sheet and had just completed a mere formality of putting his initial like a rubber stamp for which the relevant order sheet was annexed with the petition as Annexure 1. It was also alleged in the petition that the complaint before the Special Judge giving rise to Case No. 273/1993 was filed before the Sessions Judge on 12-2-1993 which, after being registered, was transferred to the Court of VI Additional District and Sessions Judge, Varanasi on the same day but neither the Sessions Judge nor the Additional Sessions Judge passed any order to detain the petitioner in custody. It was asserted that even on subsequent dates i.e. 24-2-1993, 12-3-1993, 27-3-1993, 10-12-1993, 14-4-1993, 15-4-1993, 30-4-1993, 19-5-1993, 21-6-1993, 20-7-1993, 13-8-1993, 9-9-1993, 29-9-1993, 26-10-1993, 11-10-1993, 10-12-1993, 7-1-1994, 25-1-1994, 11-2-1994, 3-3-1994 and 8-3-1994 also there was no order directing detention of the petitioner in the above mentioned case nor was there any warrant of remand directing detention of the petitioner on the said dates and in any case the concerned Sessions Judge has only put his signatures as a rubber stamp in a mechanical manner on the order sheets of the said date. Accordingly it was prayed that the detention of the petitioner being not in accordance with law the petitioner was liable to be set at liberty.

(3.) On this petition a Bench of this Court on 16-5-1994 granted two weeks 'time to state counsel to file the counter-affidavit. Consequently a counter-affidavit was filed by the Dy. Jailor of District Varanasi who stated that in pursuance of a warrant of jail custody dated 27-11-1992 which was received together with the petitioner in jail on the said date the petitioner has been confined in jail. It is further mentioned that thereafter from time to time warrants of jail custody in respect of the petitioner having been received the petitioner was in jail custody in pursuance of the said warrants of remand. The counter-affidavit which was sworn on 24-3-1994 said that last warrant of remand was passed on 19-3-1994 directing petitioner's custody in jail upto 1-4-1994. The allegations that there was no warrant of remand were denied. The warrant as received in jail from the Court of the Sessions Judge, Varanasi bearing his initials was filed with various dates mentioned on the reverse authorising detention of the petitioner up to 1-4-1994. The petitioner thereafter filed the Rejoinder Affidavit. Thereafter the matter came up before a bench of Hon. R.B. Mehrotra, J. and Hon. S.K. Phaujdar, J. It was argued before the division bench by learned counsel for the petitioner that when the petitioner was arrested on 12-2-1993 he was not informed the grounds of his arrest and as such the arrest being in contravention of the rights guaranteed to a citizen under Article 22(1) of the Constitution the detention of the petitioner was rendered bad and on this ground alone the petitioner was entitled to be released. It was apparently contended that even if for argument's sake the subsequent orders of remand directing detention of the petitioner were passed, the petitioner could not be detained in jail in pursuance of those orders of remand as the initial defect of illegal detention on account of Article 22(1) being violated could not be cured. In support of this contention the petitioner relied on the case of Vimal Kishore Mchrotra v. State of U.P., AIR 1956 All 56 (DB) as also on the case of Raghvendra Singh v. State, 1983 All LJ 611. The petitioner also relied on the case of Ashok Kumar Singh v. State of U.P., 1987 Lucknow LJ 273 and on the case of Hazari Lal v. State of U.P., 1971 Lucknow LJ 230, and it was argued that the non-fulfilment of the requirement of the provisions of Article 22(1) of the Constitution results in an incurable illegality with the result that subsequent orders could not validate detention of the petitioner. In other words it was argued that the doctrine of curability could not be extended to a person whose initial order of detention was in violation of the provisions of Article 22(1) of the Constitution.