SUMAR KHAN Vs. STATE

JUDGEMENT

(1.) By way of this habeas corpus petition, the petitioner Sumar Khan has challenged the detention of his brother Beebuda alias Birbal Langa resident of 6-Dhani Mohangarh, Police Station Mohangarh, District Jaisalmer. The District Magistrate, Jaisalmer in exercise of powers conferred by Sec. 3(2)(3) of National Security Act, 1980 (hereinafter referred to as NSA) having satisfied that with a view to prevent Beebuda from acting in any manner prejudicial to the security of the State, directed to detain him by order dated 28th August, 1999. He was arrested and the order of detention as well as grounds of detention were served on him on the same day. It appears from the ground of detention that the detenu was found indulged in anti- national activities including sending of information to I.S.I. through I.S.D./P.C.O. and his activities were prejudicial to the national security. He was also found indulged in the smuggling of arms, ammunitions and drugs. The first respondent-State of Rajasthan confirmed the detention by order dated 6-9-99 vide Annexure/3. The first respondent-State of Rajasthan by order dated 30-10-99 in exercise of powers under Sec. 12(1) of the N.S.A. has ordered to keep him under detention for the period 29-8-99 to 28-8-2000. The representation made to the State Govt. was rejected and the decision was communicated vide letter dated 29-9-99 Annexure/6. The detention has been challenged mainly on the following grounds:

(2.) We shall deal with each contention in seriatim :

(3.) In the instant case the representation Annexure/13 has been drafted by a lawyer Shri Gulam Mustafa, who has regular appearance before this Court in detention matters. Learned counsel instead of sending the representation to the concerned Ministry has chosen to send it to his Excellency the President. It is significant to notice that it is only the copy of the representation addressed to the District Magistrate, Jaisalmer which has been sent to his Excellency the President of India. It clearly appears that the copy has been endorsed to his Excellency the President of India with oblique motive to make a ground for quashing of detention, keeping in view the law in this regard. If there was any seriousness in early disposal of the representation, the lawyer would have definitely addressed the representation to the Ministry of Home. We disapprove this sort of practice adopted by the lawyers practising in the detention matters. They must clearly understand that such sort of strategy is not going to help them. We are not prepared to put our common sense in cold storage in the name of Rule of law. While dealing with the cases of preventive detention, a balance has to be struck with regard to constitutional safeguards because the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law and at the same time care has to be taken that the purpose and object of the Act is not to defeat on the basis of hyper-technical approach to observance of procedure. It is also to be remembered that constitutional safeguards and the rights under Articles 21 and 22 of the Constitution of India cannot be sacrificed at the altar of preventive detention under the Act. Thus the delay designed by the legal adviser of the detenu must be excluded. Thus, in the instant case the time till representation reached to the Ministry for effective consideration is held to be satisfactorily explained i.e. the period between 25-9-99 to 12-11-99. The letter Annexure/15 from President's Secretariate simply speaks that the representation has been forwarded to Home Ministry. It does not say when it was actually dispatched and when it was received in the Home Ministry. As soon as the representation was received in the Ministry of Home on 12-11-99, the same was decided in the shortest possible time i.e. by 16-11-99. Thus, in our opinion the delay has been properly explained and the detenu's detention cannot be quashed on this ground.