Delhi High Court
Mohd. Idris vs Union Of India And Anr. on 23 March, 2012
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23.03.2012
+ W.P.(CRL) 773/2011 and Crl.M. (Bail) 6372/2011
MOHD. IDRIS ..... Petitioner
Through Mr. Nikhil Jain, Adv.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through Mr. Pavan Narang, Mr. Anish
Dhingra, Mr. Pushkar Gogoi and Ms. Akriti Jain,
Advocates.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE S.P.GARG
MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
%
1. The petitioner seeks a direction to quash and set aside an order for
detention under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988 (PITNDPS), issued by the
second respondent against Mohd. Ayub, S/o Abdul Rahim Chippa, his
brother-in-law.
2. It is argued that the detention order is patently illegal and violative of
Article 21 of the Constitution. Several grounds were urged in support of the
W.P. (CRL) 773/11, CRL.M. (BAIL) 6372/11 Page 1
contention that the claim has to be allowed. The petitioner submits that this
proceeding falls within the acceptable categories crafted out in the judgment
reported as Addl. Secretary to Govt. of India and Ors. vs. Alka Subhash
Gadia, 1992 (Suppl.) 1 SCC 496.
3. Counsel for the writ petitioners argued primarily that the detention
order remained unserved for a considerable period of time and, therefore,
has lost its efficacy and relevance. In support of this proposition, reliance is
placed on Rajinder Arora v. Union of India and Ors (2006) 4 SCC 796 and
subsequent decisions of the Supreme Court.
4. The writ petitioner argues that he had been detained by the Rajasthan
Police for alleged offences committed under the local State Excise Act and
taken into custody on 21.04.2011. It was claimed that by a representation (a
copy of which has been produced in support of the petition) the present
respondent, i.e., the detaining authority was made aware of the detention by
the State Excise authorities. The petitioner's argument led to this Court
directing on 26.05.2011, to renotify the matter on 31.05.2011 .
5. After hearing submissions of the parties on 01.06.2011, an interim
order was made requiring the respondent not to serve the detention order
upon the detenue Mohd. Ayub. In the meanwhile, in response to petitioner's
allegations, the detaining authority had filed an affidavit dated 20.11.2010.
The subsequent proceeding in Court revealed that controversy was as to
what happened to the original detention order. The order of this Court dated
22.12.2011 reveals that the Court was made aware of Annexure P-9 to the
writ petition which was a typed copy of the detention order of 14.03.2005.
6. The learned counsel for the petitioner was, therefore, required to file a
copy of the said order which formed basis of that typed copy. The same was
W.P. (CRL) 773/11, CRL.M. (BAIL) 6372/11 Page 2
brought on the record. It is evident from a bare reading that the photocopy
produced later was attested on 27.5.2011. The affidavit filed, however, states
that a photocopy was handed over to petitioner's family in March, 2005. It
does not elaborate when the said copy was received and why the attestation
of the photocopy was made on 27.05.2011 just a day after the notice was
issued by Court. Furthermore, the attestation is by the Director, PITNDPS.
7. The learned counsel for respondents, therefore, submits that in these
circumstances, the Court should not exercise its writ jurisdiction, since the
petitioner's grievance is not that the Detention Order with grounds was not
served. Furthermore, subsequent pleadings on behalf of the writ petitioner
are silent as to whether such order was served along with grounds. Even in
the absence of such claim, the Court normally would have been justified in
interfering and allowing petitioner's claim since Sec. 3(3) of the Act
mandates that the order of detention should contain the grounds when it is
served to the detenue by the concerned authority. Not furnishing such
grounds would have vitiated the order. However, there is another subsequent
development which this Court cannot lose sight of. The detenue Mohd.
Ayub escaped the custody of Rajasthan Police on 24.12.2011 when he was
in the process of his production before the concerned court at Ratlam in
connection with offences under Sections 365/347/120/34 IPC. Having regard
to these facts, we are of the opinion that this is not appropriate case for the
Court to intervene in exercise of writ jurisdiction. We are also mindful that
the detenue did not approach the Court and his brother-in-law is the writ
petitioner. There is no denial of the fact that the detenue escaped the
custody.
8. In the present case, the fact that the petitioner was made aware of the
W.P. (CRL) 773/11, CRL.M. (BAIL) 6372/11 Page 3
order, at least on 27.05.2011, when the necessary papers were given to him,
and he did not represent against the grounds, or even specifically make out
any grievance, cautions the Court against exercising jurisdiction.
9. We, however, clarify that if the detenue has any remedy available in
law in respect of this detention order, the same shall not be prejudiced in any
manner by the present order.
The writ petition is disposed of accordingly.
S. RAVINDRA BHAT
(JUDGE)
S.P.GARG
(JUDGE)
MARCH 23, 2012
'raj'
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