Asadullah Akhtar vs Govt. Of Delhi & Ors.
2018 Latest Caselaw 4524 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Decided on: 3rd August, 2018
+                     W.P.(CRL) 2306/2018
       ASADULLAH AKHTAR                                  ..... Petitioner
               Represented by:         Mr.Shariq Iqbal, Advocate
                                       versus
       GOVT. OF DELHI & ORS                               ..... Respondents
                Represented by:        Ms.Jyoti Babbar, Advocate for
                                       Mr.Rajesh Mahajan, ASC for the
                                       State with SI Alok, PS Special Cell

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

Crl.M.A.No.29231/2018 Allowed subject to just exceptions.

Crl.M.A.No.29232/2018 For the reasons stated in the application, delay of 30 days in re-filing the petition is condoned.

Application is disposed of.

W.P.(Crl.) No.2306/2018

1. By this petition, the petitioner who is involved in six FIRs wherein in one FIR, charge sheet has been filed by the National Investigating Agency and in the others, charge sheets have been filed by the local Police claims that the petitioner is suffering from a genetic disorder including asthma, atopic dermatitis of both upper and lower limbs, seborrhoeic dermatitis and lumbar back pain among other ailments. Copy of the medical certificate is

annexed as Annexure 'A' to the present petition. Petitioner states that despite the fact that the petitioner is suffering from atopic dermatitis of both upper and lower limbs, the petitioner is not being allowed to wear appropriate clothing among other things in the jail. Petitioner states that it is his fundamental right to wear the dress of his own choice and in view of the circulars issued by the Jail Authorities, no convict or an under-trial can wear jeans with any sport shoes though ordinary PT shoes are permitted. Petitioner thus claims that the petitioner's fundamental right to wear dress of his choice i.e. jeans and sport shoes is violated.

2. As per circular dated 14th March, 2012 list of prohibited articles inside the jail are as under:-

"1. Spirituous liquors of every description, ganja, bhang, opium, smack and other intoxicants.

2. All explosives, intoxicating dangerous, drugs or poisonous substances and chemicals, whether fluid or solid of whatever descriptions.

3. All arms, ammunition and weapons knives and cutting implements of any kin and articles which are capable of being used as a weapon of any description.

4. All bullion, metal, coin, jewellery, ornaments currency notes, securities and articles of value of every description.

5. All books, printed or written matter and materials and appliances for printing or writing of whatever description unless the same is allowed by the Superintendent Jail.

6. String, rope, chains and all materials which are capable of being converted into string or rope or chains, of whatever description.

7. Wood, bamboo, club, stick, ladder, bricks, stones and earth of every description.

8. Cell phones, wireless or any other telecommunication electronic gadget.

9. Playing cards or other implements for gambling.

10. Tape Recorders, type writers and other equipment that can be misused.

11. All tobacco items, Pan Masala or anything similar.

12. Sports shoes (Ankle with spongy padding which may be used for concealing prohibited items). However, ordinary PT shoes permitted.

13. Polythene bags, fruit, curried vegetables etc.

14. Any article of whatever description which has not been issued by the prisons administration or not permitted inside the jail by the Jail Superintendent or the Dy.Supdt./Incharge on his behalf."

3. On 8th December, 2013, an additional list of prohibited articles was circulated which is as under:-

"All type of jeans fabric.

Dry fruits."

4. The rationale behind not permitting the under-trials or convicts to wear sports shoes with spongy/padded ankles is that there are chances of concealment of prohibited materials therein. Further, the metal buttons in the jeans evade detection of other metallic substance in the possession of the convict/under-trial making it easy to smuggle prohibited articles.

5. Supreme Court in AIR 2018 SC 1933 Shafin Jahan Vs. Asokan K.M. & Ors. recognized the constitutional guarantee of right to live under Article 21 of the Constitution of India and held that the Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. The Constitution Bench in Common Cause (A Regd. Society) Vs. Union of India also emphasized the autonomy as persons being founded on the ability to decide on what to wear and how to dress, on what to eat and the food that we share, on when to speak and what to speak on the right to believe or not to believe, on whom to love and whom to partner and to freely decide on innumerable matters of consequence and detail to our daily lives. However, it is trite law that all fundamental rights for a prisoner are enforceable reality, though restricted by the fact of imprisonment. [See AIR 1978 SC 1675 Sunil Batra Vs. Delhi Administration & Ors.)]

6. In AIR 1978 SC 1514 Charles Sobraj Vs. Supdt. Central Jail, Tihar, New Delhi the Supreme Court recognizing the rights of the prisoners held that the courts are reluctant to intervene in the day-to-day operation of the State penal system; but undue harshness and avoidable tantrums, under the guise of discipline and security, gain no immunity from court writs. The reason being prisoners retain all rights enjoyed by free citizens except those lost necessarily as an incident of confinement.

8. Grievance of the petitioner is not that he has not been given dignified food to eat or clothes to wear or there was any misbehaviour violating his fundamental rights but he seeks to wear clothes specifically of his own choice particularly the jeans and sports shoes, which are prohibited in jail.

Though the petitioner's fundamental rights are guarded but being in the prisons, the said rights are subject to reasonable restrictions. The rationale behind not permitting convicts/under-trials to wear sports shoes with ankle sponging and padding or the jeans has already been noted above.

9. Further, Atopic dermatitis, a chronic eczematous skin disease is a condition of the skin where the skin is dry and causes ruptures in the skin in acute phases. Thus doctors who treat atopic dermatitis prescribe the patient to wear loose cotton dresses. Therefore, the claim of the petitioner that jeans makes him feel more comfortable is totally baseless and unfounded.

8. Considering the nature of request of the petitioner and his grievance confined only to the fact that he is not permitted to wear jeans and sports shoes which have been prohibited for reasons as noted above, this Court finds no reason to pass directions to the respondent to permit the petitioner to wear the jeans and sports shoes.

7. Petition is dismissed.

(MUKTA GUPTA) JUDGE AUGUST 03, 2018 mamta