Suleman Shaikh vs District Magistrate, North Goa ...
2001 Latest Caselaw 385 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This Writ Petition under Article 226 of the Constitution of India seeks to challenge the Order dated 17th December, 2000 passed by the District Magistrate, North Goa District, in exercise of powers under Sub-section (2) of Section 3 of the National Security Act, 1980, with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order.

2. The petitioner was detained by the respondents pursuant to the aforesaid impugned Order. The short question that arises in the present Petition is: whether a person can be detained without serving a copy of the order of Detention on such a person at the time of his arrest/detention.

3. Briefly stated, the petitioner asserts in Para 4 of the Petition that at about 5.00 a.m. of 17th December, 2000, a posse of Police came to the petitioner's parental house at Ansabhat, Mapusa and arrested the petitioner without serving any papers on him and without informing why he was being taken in custody. It is further asserted that, thereafter, the petitioner was taken first to Mapusa Police Station and then to Panaji and thereafter, to Central Jail, Aguada on the same day where the impugned Order dated 17-12-2000 was served upon him along with the grounds of detention. In other words, the averments in the Writ Petition would indicate that neither the impugned Detention Order nor the Grounds of Detention were served upon the petitioner at the time of execution of the Detention Order.

4. In reply to the Writ Petition, Affidavit of Shri D.A. Hawaldar, Collector and District Magistrate of North Goa District, and Affidavit of Shri Adolf Mascarenhas, Under Secretary (Home), both dated 19th April, 2001, have been filed. The Affidavit of Shri D.A. Hawaldar clearly concedes the abovesaid position as it observes that it appears that the Detention Order dated 17-12-2000 (Exh, P-1) was not served on the petitioner, but the said Order of Detention was shown to the petitioner by Shri P.G. Vasta, Police Sub-Inspector of Panaji Police Station, on 17-12-2000 when the petitioner was brought to Panaji Police Station at Panaji and the contents were explained to the petitioner while lodging him in the Central Jail, at Aguada. The Affidavit further mentions that acknowledgment from the Jailor of the Central Jail, Aguada was obtained on the Detention Order.

5. In the light of the aforesaid stand, it needs to be examined as to whether the procedure adopted by the Detaining Authority while detaining the petitioner can be said to be in conformity with the mandate of law and the consequences therefor. The fact that the impugned Detention Order was not served on the petitioner when the same was allegedly executed, and the petitioner was taken in custody, is not in dispute at all. Section 4 of the National Security Act, 1980 provides that a detention order may be executed at any place in India in the manner provided for the execution of warrant of

arrest under the Code of Criminal Procedure, 1973. Part B of Chapter VI of the Code deals with the procedure of warrants of arrest. Section 73(3) of the Code provides that when the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer. Section 75 of the Code mandates that the police officer or other person, to whom the warrant is directed, executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant. In other words, the mandate of Section 4 of National Security Act, 1980 is that no person can be detained under this Act without following the abovesaid procedure. In the present case it is seen that the petitioner was arrested at his parental house at Ansabhat, Mapusa and then taken to Mapusa Police Station and then to Panaji Police Station. Even accepting the explanation offered by the respondents that the Detention Order was shown to the petitioner when he was brought to the Panaji Police Station at Panaji by Shri P.G. Vasta, Police Sub-Inspector of Panaji, however, it does not spell out that the mandatory procedure for execution of warrant of arrest (detention order in this case) was complied with. The fact remains that there is nothing on record that the persons who caused arrest of the petitioner made over the petitioner with the warrant (detention order) to the nearest police officer. Moreover, it is not the respondents' case that the persons who caused the arrest of the petitioner notified the substance of the warrant (detention order) to the petitioner or showed him the same. But the stand taken by the respondents is that the Order of Detention was shown to the petitioner only at Panaji Police Station and the contents thereof explained to him while he was being lodged in Central Jail, Aguada. In that sense the procedure of arrest of the petitioner was observed in breach of the mandate in Section 73(3) read with Section 75 of the Code. Thus the petitioner was deprived of his right of personal locomotion except according to the procedure established by law. Naturally, therefore, there has been blatant infraction of guarantee enshrined in Article 21 of the Constitution of India.

6. The present case is one of preventive detention. In such matters, at the time of arrest of the detenu, the law mandates that he is served at least with the detention order, if not the grounds of detention. In absence of service of the detention order at the time of arrest would only indicate that the arrest was illegal being not in conformity with the mandate of Section 4, for it provides for the execution of detention order. The detention order made available to the detenu at a later point of time is no justification at all. Non-furnishing of the Detention Order at the time of arrest may also have the inevitable effect of depriving the detenu of his right guaranteed under Article 22 of the Constitution of India, besides there being breach of the provisions of Section 4 of the National Security Act, Article 22(1) of the Constitution provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. Article

provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

7. In the present case, undeniably, there has been obvious infraction of Article 21 of the Constitution of India which guarantees to every person that he shall not be deprived of his right or personal liberty except according to the procedure established by law. By now it is well settled that petitioner can assail the detention on the touchstone of guarantee provided for under Article 21 of the Constitution of India. It would be apposite to refer to the decision of the Constitution Bench of the Apex Court in A.K. Gopalan's case . In the present case, it is more than obvious that there is breach in complying with the mandatory procedure provided for under Section 4 of the Act of 1980, and as a necessary corollary, it will have to be concluded that there is infraction of Article 21 of the Constitution of India.

8. In the circumstances, the petitioner's detention being illegal and without authority of law, the impugned order deserves to be quashed and set aside and the petitioner is directed to be released forthwith unless required in some other case.

ORDER

9. Petition allowed and the Order of detention is, hereby, quashed and set aside. The petitioner be released forthwith unless he is required to be detained in connection with some other case.

10. Petition allowed.