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Babu Son of Mohammad Ismail Vs. Delhi Administration Through Home Secretary and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Misc No. 756-D of 1964
Judge
Reported inAIR1967P& H409; 1967CriLJ1184
ActsDefence of India Rules, 1962 - Rule 30, 30A(5) and 30A(6)
AppellantBabu Son of Mohammad Ismail
RespondentDelhi Administration Through Home Secretary and ors.
Appellant Advocate C.L. Sareen, Adv.
Respondent Advocate P.C. Khanna, Adv.
DispositionPetition dismissed
Cases ReferredMakhan Singh v. State of Punjab
Excerpt:
.....carefully scrutinised each and every allegation, but i am satisfied that law has been properly observed. this sub-rule clearly shows that what is required to be confirmed under clause (b) of sub-rule (6) is the detention order. in the circumstances the petition must fail and is dismissed......of abdullah showkat son of karamat ali khan who has been detained under rule 30 of the defence of india rules. 1962. the petitioner alleges that in november, 1963, some persons were arrested for smuggling of gold and abdullah showkal (hereinafter referred to as the detenu) was suspected of having a hand in the said smuggling. his house was. therefore, searched but nothing incriminating was recovered. on november, 14. 1963, another search was made on the house of the detenu but again nothing was recovered. he was then taken to the court of mr. kakar, magistrate 1st class, delhi, and was arrested under section 104 of the customs act. 1962. thereafter he was enlarged on bail and on march. 10. 1964, he went to pakistan under a passport issued by the indian authorities. the petitioner.....
Judgment:
ORDER

S.K. Kapur, J.

1. This is a petition under Section 491 of the Code of Criminal Procedure by Babu son of Mohd. Ismail for the issue of a writ of Habeas Corpus. He has filed this petition as next friend seeking the release of Abdullah Showkat son of Karamat Ali Khan who has been detained under Rule 30 of the Defence of India Rules. 1962. The petitioner alleges that in November, 1963, some persons were arrested for smuggling of gold and Abdullah Showkal (hereinafter referred to as the detenu) was suspected of having a hand in the said smuggling. His house was. therefore, searched but nothing incriminating was recovered. On November, 14. 1963, another search was made on the house of the detenu but again nothing was recovered. He was then taken to the Court of Mr. Kakar, Magistrate 1st Class, Delhi, and was arrested under Section 104 of the Customs Act. 1962. Thereafter he was enlarged on bail and on March. 10. 1964, he went to Pakistan under a passport issued by the Indian Authorities. The petitioner further alleges that the detenu had gone to Pakistan because most of his relatives were there and he wanted to see them. On July 15, 1964, the impugned order of detention was passed by the District Magistrate. Delhi, and on August 6, 1964, the detention case of the detenu was reviewed in pursuance of Rule 30-A (6) (b) of the Defence of India Rules. 1962, by the Administrator, who confirmed the detention order. On September 3, 1964, the detenu returned from Pakistan and on October 29, 1964, he made an application for reduction in the bail amount. On November 7, 1964, the above-mentioned application was fixed for hearing and on that day it was slated in Court by certain Officer of the Customs Department who was present there that the detenu was in Pakistan and should be ordered to be produced in Court. According to the petitioner that statement by the Custom Officer was incorrect and as a matter of fact the detenu had gone to Kanpur. On November 17, 1964, the detenu appeared in Court and the bail amount was reduced. As soon as he came out of the Court room the detention order dated July 25, 1964, was served on him and he was taken in custody. The order of the Administrator reviewing the detention order was served on the detenu on November 23. 1964.

2. Mr. C.L. Sareen, learned counsel for the pettioner has submitted that (1) the order of detention is mala fide and (2) that under Sub-rule 6(b) of Rule 30 A of the Rules the Administrator could only confirm the detention or cancel the detention order. Since the detenu was not in custody on August 6, 1964. when the detention order was reviewed there has been no valid review as required under Rule 30-A

3. In support of the first point Mr. Sareen contends that (a) the detaining authority has not applied its mind to the facts of the case but has merely signed a cyclostyled Order: (b) the affidavit of the District Magistrate does not disclose any proper details about the objectionable activities of the detenu. Nothing has been said in the affidavit as to how and in what manner was the detenu involved in the smuggling; (c) even according to the affidavit of the District Magistrate it was known to the authorities as early as October 1963 that the detenu was acting as the Agent of the gang of smugglers but still nothing was done to apprehend him till November 19, 1964, in spite of the fact that the order of detention had been passed in July 1964, and the detenu had returned to India from Pakistan on Sepetember 3, 1964 and (d) the object of Rule 30 of the Defence of India Rules. 1962. is to prevent a person from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order. India's relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the Community Since the detenu was not in country from March to September. 1964, an order for detention of July 25. 1954. could either be justified nor bona fide.

4. According to Mr. Sareen the above circumstances show that the order is mala fide. Mr. Sareen contends that in view of the suspension of fundamental rights in the country the life and liberty of every subject is being held at the will and pleasure of the Administrative authorities constituted under the Defence of India Act which is a very long armed statute In view of this, says Mr. Sareen. it is absolutely necessary that the spirit and letter of law must be carefully observed and any violation of disrespect of the statute should be viewed seriously and held to render the detention order illegal.

5. I have carefully considered the allegations made in the petition and the affidavit filed on behalf of the District Magistrate and I am afraid I do not agree with Mr. Sareen that the order is mala fide. The District Magistrate has set out in detail the activities of Abdullah Showkat and the grounds which rendered it necessary to detain him. The District Magistrate has inter alia stated in his affidavit that--

'It is on record that Abdullah Showkat is a member of a gang of Indo-Pakistan smugglers of contraband gold from Pakistan and of currency from India and is a potential danger to the economy of the country and a risk to the security of State and hazardous to public order'.

No doubt, according to the affidavit of the District Magistrate, it was on October 28. 1963, that the Amritsar police recovered 30 kilograms of gold which according to their information had been smuggled from Pakistan on behalf of a smuggling syndicate but enquiries and investigation into who was responsible and / or concerned with the said smuggling must have taken some time and that must be the reason why detention order was not passed immediately after October 29. 1963. The authorities would have acted rashly if they had deprived any person of his liberty on mere surmise and without being fully satisfied about the identity of the person involved in prejudicial activities. The fact that the order is a cyclostyled one or the affidavit does not mention the details as to how the smuggling activities were carried on, in my opinion, makes no difference. Again the fact that the detenu was out of the country does not render the detention order invalid. Mr. Sareen relying on Makhan Singh v. State of Punjab, AIR 1964 S. C. 1120 submits that before an authority can detain a person under Rule 30 it must be shown that when the order of detention is served on him he was in a position to carry out his prejudicial activities. I am afraid there is no force in this contention. The fact that a person is out of India temporarily does not mean that he is not in a position to carry out any prejudicial activity. Prejudicial activities may be carried on by a person even from outside the country. After all the detenu had admittedly gone out of India for a short while merely because the detention order was passed on a day when the person concerned was out of India, cannot make the order per se either illegal or mala fide. In Makhan Singh's case the detention order was served on a person who was in jail custody. It was in view of this fact that their Lordships of the Supreme Court held the order to be bad. The case is therefore of no assistance to the petitioner. I am not unmindful of what Mr. Sareen has asked me to bear in mind namely that the liberty of the subject cannot be taken away except strictly in accordance with law. No doubt all persons who are members of a civilized society have certain inherent and inalienable rights and one of the most important if not the most important is the right of enjoying and defending life and liberty. It is in view of this that I have carefully scrutinised each and every allegation, but I am satisfied that law has been properly observed. There is also no force in the second contention of Mr. Sareen. He submits that under Sub-rule 6 (b) of Rule 30-A, the Administrator is required to confirm 'the detention' According to Mr. Sareen unless the person is in custody the Administrator is not competent to confirm the detention. Mr. Sareen compares the language of this sub-rule with Sub-rule 6(a) and contends that whereas Sub-rule 6(a) talks of confirmation of the detention order, Sub-rule 6(b) requires the detention to be confirmed.

6. Mr. P. C. Khanna for the respondent on the other hand contends that under Sub-rule (5) of Rule 30-A as soon as the detention order is made, the detaining authority is required to report the fact forthwith to the reviewing authority. Even in cases, according to Mr. Khanna, where the person has not been taken in custody the authority passing the detention order would still be required to report the fact to the reviewing authority. Under Sub-rule (6), the Administrator on receipt of the report under Sub-rule (5) is required to either confirm the detention order or cancel the order taking into account all the circumstances of the case. This according to Mr Khanna shows that under Sub-rule (6)(b) the Administrator has to confirm the detention order and the steps to be taken under Sub-rules (5) and (6) of Rule 30-A are not suspended till the person sought to be detained is actually taken in custody. I am in agreement with the submission of Mr. Khanna Reference to Sub-rule (8) of Rule 30 A also lends support to the contention put forth on behalf of the respondent. Sub-rule (8) provides that every detention order made by an officer empowered by the Administrator and confirmed by him under Clause (b) of Sub-rule (6) ...... shall be reviewed at intervals of not more than six months by the Administrator who shall decide upon such review whether the order should be continued or cancelled. This Sub-rule clearly shows that what is required to be confirmed under Clause (b) of Sub-rule (6) is the detention order. In the circumstances the petition must fail and is dismissed.


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