KULDEEP SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This petition styled as Habeas Corpus petition is filed by one Kuldeep Singh on behalf of his brother Parmindra alias Kaka, who has been detained under the provisions of the National Security Act, 1980 (hereinafter referred to as 'the Act') by the respondents. Undisputed facts necessary for just and proper disposal of this petition stated briefly are that on 25-9-98 Parmindra alias Kaka (hereinafter referred to as 'the detenue') was called by the police and was detained in Central Jail, Udaipur. The order of detention passed by the District Magistrate, Udaipur (respondent No. 2 herein) was served on the detenue in jail on the same day. On the next day i.e. 26-9-98 respondent No. 3 communicated to the detenue the grounds on which he was being detained, a copy of the grounds being supplied to the detenue on the same day. He was also given list of documents on the basis of which the grounds of detention were framed. A complaint was then made by the detenue regarding the language of the documents, which were in Gujarati and he claimed inability to make effective representation to such documents. Later on, on 5-10-98 the order of detention passed by the District Magistrate, Udaipur was approved.

(2.) On 6-11-98 the Advisory Board as constituted under the provisions of the National Security Act met Shri Kalla, Advocate along with the present petitioner represented the detenue before the Board and claimed that on several reasons mentioned in the representation, the detention of the detenue is liable to be quashed as it is illegal and unsustainable in law being violative of the fundamental rights guaranteed by the Constitution of India. Several other questions within the framework of the Act purporting to violation of safeguards provided by the Act, were also raised. The opinion of the Advisory Board is called under the Act opining that the detention of the detenue was justified. On receipt of this opinion, the State Govt. passed an order of confirmation presumably u/S. 12 of the Act. However, without waiting for these proceedings before the Advisory Board to culminate, a writ petition was filed styled as Habeas Corpus petition on 8-10-98 before this Court wherein it was alleged that the detention of the detenue is illegal as whereabouts are not known and, therefore, a writ of Habeas Corpus is liable to be issued. This was presumably done to seek indulgence of this Court in issuing a writ of Habeas Corpus when factually the people concerned knew that the detenue has been detained under the provisions of the Act and is in Udaipur Jail. There also was no question regarding production of body of the detenue, which is the intention of the writ of Habeas Corpus. In fact, the detenue was detained under the provisions of an Act validly made by the legislature i.e. National Security Act and was continued in detention under the provisions of that Act. Strictly speaking, there is no question of issuance of any writ of Habeas Corpus in the present case. It is in pith and substance a petition for issue of writ of Certiorari for quashing the order of detention as it violates the basic safeguard provided by the fundamental rights as also of the statute under which it is passed. However, the nature of the petition need not detain us in adjudicating upon the merits of the case as canvassed before us by the counsel for the petitioner.

(3.) The first contention raised on behalf of the petitioner in support of the petition is that the petitioner has been detained for a period of one year as mentioned in the order, this fixing of the period of detention is beyond the power of the District Magistrate u/S. 3 of the Act and is, therefore, illegal. It is alleged that such peremptory determination of the period of detention has positively prejudiced a fair consideration of the representation of the detenue and is also liable to influence the authority of the Advisory Board while it considered the representation. Reliance was placed on several decisions of the Supreme Court of India in support of this contention basically the judgment in Makhan Singh Tarsikka v. State of Punjab, AIR 1952 SC 27 : (1952 Cri LJ 321). Reliance is also placed on the following decisions : Dattatraya Moreshwar v. State of Bombay, AIR 1952 SC 181 : (1952 Cri LJ 955), Puranlal Lakhanpal v. Union of India, AIR 1958 SC 163 : (1958 Cri LJ 283) and Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51.