JUDGEMENT

S.B.MAJMUDAR - (1.)A Division Bench of this Court consisting of two of us (S. B. Majmudar and B. S. Kapadia JJ ) by an order dated January 1988 referred the following question for decision of a larger bench:
"Whether Rule 13(xi) of the Gujarat Conditions of Detention (PASA) Order 1985 as it stood at the relevant time to the extent to which it provided interview to the detenu by a legal practitioner subject to the permission of the State Government was unconstitutional and invalid on the ground that it violated Arts. 14 21 and 22(5) of the Constitution of India."
Accordingly papers of this matter were placed before the learned Chief Justice for making reference to the larger bench. This matter has now been placed before us for resolving the aforesaid question.
(2.)In order to appreciate the contours of controversy centering round the aforesaid question it will be necessary to have a quick glance at a few introductory facts leading to this reference.
(3.)Introductory facts: The petitioner who is the detenu under the provisions of the Gujarat Prevention of Anti-Social Activities Act 1985 (hereinafter referred to as PASA) has challenged the order of his detention dated 1-7-1987 passed by the Commissioner of Police Baroda city on diverse grounds. By an amendment granted to the petition at para 18A he has challenged the vires of Rule 13 sub-clause (xi) of the Gujarat Conditions of Detention (PASA) Order 1985 The said sub-clause which existed at the relevant time read as under:
"(xi) In addition to the interviews permissible under the preceding provisions of this clause a detenu may if he so desires with the permission of the Government be allowed to have only one interview with a legal practitioner or any other person of his choice and at his cost for the purpose of drafting a representation against the order of detention. Such interview shall be conducted in accordance with the provisions of this Clause as regards place duration and conditions of the interviews and the proceedings shall be strictly confined to the object for which the interview is granted. "
(Underlining ours) It may be mentioned at this stage that by a Government circular dated 26/11/1987 the said sub-clause has now been amended and the then existing provision regarding grant of interview to the detenu with legal Adviser or legal Practitioner has been liberalized. The relevant provision of the said circular reads as under:
"Under the existing provision of sub-clauses (ix) and (xi) of Rule 13 of the Gujarat Conditions of Detention (PASA) Order 1985 a detenu is allowed interview with the legal Adviser/legal Practitioner wIth the permission of the State Government. Government is pleased to direct that a detenu under the Gujarat Prevention of Anti-Social Activities Act 1985 may be granted interview with his legal adviser/legal practitioner at any reasonable hour during the day aftertaking the appointment from the Superintendent of Jail where the detenu is lodged. This interview should be granted for the purpose enumerated in sub-clauses (ix) and (xi) of Rule 13 of the Gujarat Conditions of Detention (PASA) Order 1985 Prior permission of the State Government or the detaining authority is not necessary for granting interview with the legal Adviser/legal Practitioner. The Jail authorities should grant such interviews without avoidable delay "
Despite this development the challenge to the vires of the then existing sub-clause (xi) of Rule 13 has been pressed in service by the learned Advocate for the petitioner for the simple reason that the order of detention has been passed prior to 26-11-1987 and according to him the detenu was not permitted by the jailor to consult his Advocate for the purpose of drafting representation on account of the provision of the then existing sub-clause (xi) of Rule 13 and that his Advocate was told to get permission of the State Government before he could get interview with the detenu for that purpose and that has affected the detenus right of effectively representing against the detention order at least for the purpose of getting it revoked. That is how this question survives for consideration in the present reference.
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