Full Judgment Text
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PETITIONER:
KAVITA W/O SUNDER SHANKARDAS DEVIDASANI ETC.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & ORS. ETC. ETC.
DATE OF JUDGMENT28/07/1981
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SEN, A.P. (J)
ISLAM, BAHARUL (J)
CITATION:
1981 AIR 1641 1982 SCR (1) 138
1981 SCC (3) 558 1981 SCALE (3)1117
CITATOR INFO :
R 1981 SC1753 (2)
RF 1981 SC2041 (10)
RF 1981 SC2084 (1)
D 1983 SC 181 (5)
R 1983 SC 311 (7)
RF 1988 SC 109 (5)
R 1988 SC2090 (22)
R 1989 SC 389 (7)
R 1990 SC 231 (23)
ACT:
Constitution of India 1950, Articles 21 and 22 and
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974-S. 8(b), (c), (e) and (f).
Order of detention under Act-Specification of period of
detention-To be done at final stage after consideration of
report of Advisory Board.
Representation of detenu-Whether to be considered by
the same individual who made the initial order of detention.
Detenu-Whether has a right to be represented by lawyer
before Advisory Board.
Maharashtra Government Rules of Business, Rule 6 and
Conservation of Foreign Exchange and Prevention of Smuggling
Activities-Maharashtra Detention Order 1974.
Representation of Detenu-Minister of State for Home
Affairs-Whether competent to deal and dispose of
representation.
HEADNOTE:
The husband of the petitioner was detained by the State
Government under section 3(1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act 1974
with a view to prevent him from smuggling goods and abetting
the smuggling of goods. His representation to the State
Government was rejected. The Advisory Board informed him by
a letter that the Board had reported to the Government
advising them that there was sufficient material to justify
his detention.
In the writ petition filed in this Court it was
contended on behalf of the detenu: (1) although it was the
Government that was required by section 8(b) of the COFEPOSA
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to make the reference to the Advisory Board, it was not the
Government but one of its subordinate officer that had made
the reference, and that this departure from the prescribed
procedural requirement had made the continued detention of
the detenu for any period longer than the five weeks
mentioned in section 8(b) illegal; (2) the representation
was disposed of by the Minister of State of Home Affairs of
the State Government without any authority to do so; (3) the
detenu was not permitted to be represented by a lawyer
despite his request that he might be allowed to engage the
services of a lawyer before the Advisory Board; (4) there
was a non-application of the mind of the detaining authority
first in making the
139
order of detention and later in considering the
representation of the detenu; and (5) that it was the
Assistant Secretary to the State Government who signed at
the bottom of the grounds that he thought it was against the
public interest to disclose the source of intelligence and
the facts contained therein.
In the connected writ petition, only the first two of
the aforestated contentions were raised.
Dismissing the writ petitions,
^
HELD: 1.(i) The order of detention has not to specify
the proposed period of detention at that stage. Within five
days of the detention, detenu is required to be furnished
with the grounds of detention so as to enable him to make a
representation to the detaining authority. (Article 22(5) of
the Constitution and section 3(3), COFEPOSA). Thereafter,
within three months from the date of detention, the Advisory
Board has to report on the sufficiency of cause for such
detention. This is a constitutional mandate (Article 22(4)
of the Constitution). In order to enable the Advisory Board
to discharge its constitutional obligation the Government is
required to make a reference to the Advisory Board within
five weeks from the date of detention. (Section 8(b) of
COFEPOSA). The Advisory Board in its turn is charged with
the task of submitting a report within eleven weeks from the
date of detention, specifying its opinion as to whether or
not there is sufficient cause for the detention of the
person concerned (Section 8(c) COFEPOSA). The period of
eleven weeks is to enable compliance with the Constitutional
time-limit of three months. On receipt of the report the
Government has to revoke the detention, if the Board has
reported that there is no sufficient cause for the detention
or, to confirm the order of detention and specify the period
of detention if the Board has reported there is sufficient
cause for the detention. (Section 8(f) COFEPOSA). In the
meanwhile at any time the Central Government in any case,
and the State Government if the order of detention was made
by the State Government or by an Officer of the State
Government, are entitled to revoke the order of detention.
[144 C-G]
(ii) There is no constitutional or statutory obligation
on any one, until after the report of the Advisory Board is
received to decide finally or tentatively upon the period of
detention. The initial compulsion on the detaining authority
before making an order of detention is to arrive at the
satisfaction that it is necessary to detain the person
concerned with a view to preventing him from acting in a
certain manner or with a view to preventing him from
committing certain acts. The obligation to specify the
period of detention is upon the appropriate Government and
that has to be done at the final stage, after consideration
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of the report of the Advisory Board. There is no
intermediate stage at which any tentative conclusion is to
be arrived at by the Government regarding the period of
detention though, at any and every stage, the Government has
the full liberty to revoke the order of detention.
[144 H-145 C]
(iii) The act of making a reference to the Advisory
Board is a mechanical or ministerial act involving no
exercise of discretion, though of course the Government is
at the stage, as at all other stages at liberty to revoke
the order of detention. The prescription of five weeks in
section 8(b) of the
140
COFEPOSA for the making of a reference to the Advisory Board
is with a view to enable the fulfilment of the
constitutional requirement of Article 22(4) and not with a
view to imposing an obligation upon the Government to
consider the question of the length of detention and arrive
at a tentative conclusion even at that stage. [145 D]
2.(i) The Maharashtra Government Rules of Business made
by the Governor in exercise of the powers conferred by
Article 166(2) and (3) of the Constitution provides by Rule
6 that the Chief Minister and a Minister in consultation
with the Chief Minister may allot to a Minister of State or
a Deputy Minister any business appertaining to a Department
or a part of a Department. The Standing Order made by the
Chief Minister of Maharashtra and Minister for Home directs
allotment of the business appertaining to "All cases of
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 and the Conservation of Foreign
Exchange and Prevention of Smuggling Activities
............... Maharashtra Detention Order, 1974 and all
other matters arising under the provisions of the said Act
and the said Order.....and any other orders issued under
this Act, except....." to the Minister of State for Home.
The Minister of State for Home Affairs was therefore
entitled to deal with the representation of the detenu. [145
H, F-G; 146 A]
(ii) Governmental business can never get through if the
same individual has to act for the Government at every stage
of a proceeding or transaction, however, advantageous it may
be to do so. Nor can it be said that it would be to the
advantage of the detenu to have the matter dealt with by the
same individual at all stages. It may perhaps be to the
advantage of the detenu if fresh minds are brought to bear
upon the question at different stages. There is therefore no
substance in the suggestion that the representation of the
detenu should have been considered by the very individual
who had exercised his mind at the initial stage of making
the order of detention. [146 D, B]
3. While section 8(e) disentitles a detenu from
claiming as of right to be represented by a lawyer, it does
not disentitle him from making a request for the services of
a lawyer. The importance of legal assistance can never be
over-stated and adequate legal assistance may be essential
for the protection of the Fundamental Right to life and
personal liberty guaranteed by Article 21 of the
Constitution and the Right to be heard given to a detenu by
section 8(e) of COFEPOSA. These rights may be jeopardised
and reduced to mere nothings without adequate legal
assistance. That would depend on the facts of each
individual case, in the light of the intricacies of the
problems involved and other relevant factors. Therefore,
where a detenu makes a request for legal assistance, his
request would have to be considered on its own merit in each
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individual case. [146 H-147 C]
In the instant case, the State Government merely
informed the detenu that he had no statutory right to be
represented by a lawyer before the Advisory Board. Since it
was for the Advisory Board and not for the Government to
afford legal assistance to the detenu the latter, when he
was produced before the Advisory Board, could have, if he
was so minded, made a request to the Advisory Board for
permission to be represented by a lawyer. He preferred not
to do so. The detenu was, therefore, not wrongfully denied
the assistance of
141
counsel as to the conclusion that procedural fairness, a
part of the Fundamental Right guaranteed by Article 21 of
the Constitution was denied to him. [147 D-E]
4. A reading of the grounds of detention reveals that
all that was said was that the documents received by post at
the time of search pertained to an order dated 29.11.1980
and not that there was any admission by the detenu that
there was ever an order dated 29.11.1980. [147 H]
5. The mistake that it was only the Assistant Secretary
of the State Government who signed at the bottom of the
grounds that it was against the public interest to disclose
the source of intelligence was explained by the respondents
as a clerical mistake, and was later rectified by making
suitable corrections. [148 C-E]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Criminal) No.
2690 of 1981.
(Under article 32 of the Constitution of India)
AND
Writ Petition (Criminal) No. 3241 of 1981.
(Under article 32 of the Constitution of India)
Ram Jethmalani and M.S. Ganesh for the Petitioner in
W.P. No. 2690/81.
O.P. Rana and R.N. Poddar for the Respondents in W.P.
No. 2690/81.
Ram Jethmalani and Miss. Rani Jethmalani for the
Petitioner in W.P. No. 3241 /81.
Hardyal Hardy, S. Narayanan and Miss A. Subhashini for
the Respondents in W.P. No. 3241/81.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. These two Writ Petitions (Criminal)
may be disposed of by a single judgment as some of the
questions raised are common to both. To begin with, we may
refer to the facts in Writ Petition (Criminal) No. 2690 of
1981. The Government of Maharashtra, in exercise of the
powers under Sec. 3(1) of the COFEPOSA, directed the
detention of Sunder Shankardas Devidasani by an order dated
March 9, 1981, with a view to prevent him from smuggling
goods and abetting the smuggling of goods. The
142
grounds of detention, also of the same date, were duly
served on the detenu. The detenu made a representation on
April 14, 1981 and this was rejected by the Government on
April 25, 1981. A further representation made by the detenu
on April 25, 1981 was also rejected on May 2, 1981. In the
mean-time the Advisory Board met on April 29, 1981 and
considered the case of the detenu. By a letter dated May 6,
1981 the detenu was informed by the Advisory Board that the
Board had reported to the Government of Maharashtra advising
them that there was sufficient material to justify his
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detention.
In this application for the issue of a Writ of Habeas
Corpus, the first submission of Shri Jethmalani, learned
counsel for the detenu, was that although it was the
Government that was required by Sec. 8(b) of the COFEPOSA to
make the reference to the Advisory Board, in the instant
case, it was not the Government but one of its subordinate
officers that had made the reference. There was thus,
according to Shri Jethmalani, a departure from the
prescribed procedural requirement and for that reason the
continued detention of the detenu for any period longer than
five weeks mentioned in Sec 8(b) was illegal. Shri
Jethmalani’s contention was that Sec. 8 (b) required the
Government to make a reference to the Advisory Board within
five weeks from the date of detention and this meant that
the Government had first to decide that it was necessary to
detain the person for more than five weeks and then to
forward the reference to the Advisory Board. The learned
counsel would have it that the making of a reference to the
Advisory Board necessitated a decision to detain the detenu
for more than five weeks and this decision could be taken by
the Government only and none else.
We are unable to agree with the submission of Shri
Jethmalani. Art. 22 (4) (a) of the Constitution prescribes
that no law providing for preventive detention shall
authorise the detention of a person for a longer period than
three months unless an Advisory Board consisting of persons
who are, or have been, or are qualified to be appointed as,
Judges of a High Court has reported before the expiration of
the said period of three months that there is in its opinion
sufficient cause for such detention. Art. 22 (7) (c)
empowers Parliament, by law, to prescribe the procedure to
be followed by an Advisory Board in an enquiry under Art. 22
(4) (a). Sec. 3 (1) of the COFEPOSA authorises the Central
Government, the State Government an officer of Central
Government, not below the rank of a Joint Secretary
specially empowered in that behalf, or an Officer
143
of a State Government not below the rank of a Secretary
specially empowered in that behalf to make an order
directing that a person be detained, if satisfied, with
respect to that person, that it is necessary to detain him
with a view to preventing him from acting in any manner
prejudicial to the conservation or augmentation of foreign
exchange or with a view to preventing him from smuggling
goods, etc. etc. Sec. 3 (3) provides for the communication
of the grounds of detention to the detenu to enable him to
make a representation. The communication has to be
ordinarily not later than five days of the date of detention
though in exceptional circumstances, for reasons to be
recorded in writing, it may be fifteen days. Sec. 8 provides
for the constitution of Advisory Boards and the procedure to
be followed by them. Sec. 8 (b) obliges the appropriate
Government, within five weeks from the date of detention of
a person under a detention order, to make a reference in
respect of the detention to the Advisory Board to enable the
Advisory Board to make the report under Art. 22 (4) (e) of
the Constitution. Sec. 8 (c) prescribes the procedure to be
followed by the Advisory Board and requires the Advisory
Board to submit its report within eleven weeks from the date
of detention of the person concerned. Sec, 8 (f) stipulates
that the appropriate Government shall revoke the detention
order and cause the person to be released forthwith if the
Advisory Board has reported that there is in its opinion no
sufficient cause for the detention of the person concerned.
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If the Advisory Board reports that there is in its opinion
sufficient cause for the detention of the person, the
appropriate Government may confirm the detention order and
continue the detention of the person concerned for such
period as it thinks fit. Sec. 11 empowers the State
Government to revoke an order of detention made by an
Officer of the State Government, and the Central Government
to revoke an order of detention made by a State Government,
an officer of a State Government or an Officer of the
Central Government. The power of the State Government and
the Central Government, under Sec. 11 of the COFEPOSA, to
revoke orders of detention is in addition to the power under
Sec. 21 of the General Clauses Act to revoke their own
orders.
The first important factor to be noticed here is that
the period for which a person is to be detained under the
COFEPOSA is not to be determined and specified at the time
of making the original order of detention under Sec. 3(1).
It has to be determined and specified at the time of
confirming the order of detention under Sec. 8 (f), after
receiving the report of the Advisory Board. The second
factor
144
of importance which calls for attention is that while an
order of detention may be made by the State Government, the
Central Government or an Officer of either Government
specially empowered in that behalf, an order of detention
may only be confirmed by the appropriate Government. Keeping
in mind these two factors, we may now examine the time-
scheme under the COFEPOSA. First the detaining authority,
who may be the Central Government, the State Government or
an Officer of either Government, specially empowered in that
behalf, must be satisfied that it is necessary to detain a
person with a view to preventing him from acting in a
certain manner or doing certain things, and if so,
satisfied, an order of detention may be made (Sec. 3 (1),
COFEPOSA). The order of detention has not to specify the
proposed period of detention at that stage. Within five days
of the detention, the detenu is required to be furnished
with the grounds of detention so as to enable him to make a
representation to the detaining authority (Art. 22(5) of the
Constitution and Sec. 3(3), COFEPOSA). Thereafter, within
three months from the date of detention, the Advisory Board
has to report the sufficiency of cause for such detention.
This is a constitutional mandate (Art. 22(4) of the
Constitution). In order to enable the Advisory Board to
discharge its constitutional obligation, the Government is
required to make a reference to the Advisory Board within
five weeks from the date of detention (Sec. 8(b) of
COFEPOSA). The Advisory Board in its turn is charged with
the task of submitting a report within eleven weeks from the
date of detention, specifying its opinion as to whether or
not there is sufficient cause for the detention of the
person concerned (Sec. 8(c), COFEPOSA). Quite obviously the
period of eleven weeks from the date of detention prescribed
for the submission of the report of the Advisory Board is to
enable compliance with the Constitutional time-limit of
three months. On receipt of the report the Government has to
revoke the detention, if the Board has reported that there
is no sufficient cause for the detention or, to confirm the
order of detention and specify the period of detention if
the Board has reported that there is sufficient cause for
the detention (Sec. 8(f) COFEPOSA). In the meanwhile, at any
time, the Central Government in any case, and the State
Government if the order of detention was made by the State
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Government or by an Officer of the State Government, are
entitled to revoke the order of detention. Thus there is no
Constitutional or Statutory obligation on anyone, until
after the report of the Advisory Board is received to decide
finally or tentatively upon the period of detention. The
initial compulsion on the detaining authority before making
an order of detention is
145
to arrive at the satisfaction that it is necessary to detain
the person concerned with a view to preventing him from
acting in a certain manner or with a view to preventing him
from committing certain acts. The obligation to specify the
period of detention is upon the appropriate Government and
that has to be done at the final stage, after consideration
of the report of the Advisory Board. There is no
intermediate stage at which any tentative conclusion is to
be arrived at by the Government regarding the period of
detention though, at any and every stage, the Government has
the full liberty to revoke the order of detention. We are,
therefore, of the view that the act of making a reference to
the Advisory Board is a mechanical or ministerial act
involving no exercise of discretion, though of course the
Government is at that stage, as at all other stages, at
liberty to revoke the order of detention. The prescription
of five weeks in Sec. 8(b) of the COFEPOSA for the making of
a reference to the Advisory Board is with a view to enable
the fulfilment of the Constitutional requirement of Art.
22(4) and not with a view to imposing an obligation upon the
Government to consider the question of the length of
detention and arrive at a tentative conclusion even at that
stage. We, therefore, reject the first submission of Shri
Jethmalani.
The second submission of the learned counsel for the
detenu was that the representation was disposed of by the
Minister of State, Home Affairs, Government of Maharashtra
without any authority to do so. It is somewhat strange that
this contention should have been raised before us. We
understand that this very contention was previously raised
in another Writ Petition and that the relevant standing
order was produced before the Court at the hearing of the
Writ Petition and that it was also shown to the learned
counsel. The standing order is made by Shri A.R. Antulay,
Chief Minister of Maharashtra and Minister for Home and it
directs allotment of the business appertaining to "All cases
of Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 and the Conservation of
Foreign Exchange and Prevention of Smuggling Activities.
Maharashtra Detention Order, 1974 and all other matters
arising under the provisions of the said Act and the said
order ......... and any other orders issued under this Act,
except. ......." (We are not concerned with the exceptions)
to the Minister of State for Home, Shri Abhey Singh Maharaj
Raje Bhosale. Rule 6 of the Maharashtra Govt. Rules of
Business made by the Governor of Maharashtra in exercise of
the powers conferred by Article 166 (2) and (3) of the
Constitution provides that the Chief Minister and a
146
Minister in consultation with the Chief Minister may allot
to a Minister of State or a Deputy Minister any business
appertaining to a Department or a part of a Department. It
is, therefore, clear that the Minister of State, Home
Affairs, Government of Maharashtra was entitled to deal with
the representation of the detenu. It was suggested that it
would have been more appropriate if the representation had
been considered by the very individual who had exercised his
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mind at the initial stage of making the order of detention,
namely the Secretary to the Government, Shri Samant. There
is no substance in this suggestion. The order of detention
was not made by Shri Samant as an Officer of the State
Government specially empowered in that behalf but by the
State Government itself acting through the instrumentality
of Shri Samant, a Secretary to Government authorised to so
act for the Government under the Rules of Business.
Governmental business can never get through if the same
individual has to act for the Government at every stage of a
proceeding or transaction, however, advantageous it may be
to do so. Nor can it be said that it would be to the
advantage of the detenu to have the matter dealt with by the
same individual at all stages. It may perhaps be to the
advantage of the detenu if fresh minds are brought to bear
upon the question at different stages. It is unnecessary to
pursue the matter any further as we find no constitutional
or legal infirmity in the representation having been
considered by the Minister of State, Home Affairs,
Government of Maharashtra.
The learned counsel next submitted that the detenu was
not permitted to be represented by a lawyer despite his
request that he might be allowed to engage the services of a
lawyer before the Advisory Board. In his representation to
the Government the detenu did make a request to be permitted
to be represented by a lawyer. The Government informed him
that under the provisions of Sec. 8(e) of the COFEPOSA he
was not entitled to be represented by a lawyer before the
Advisory Board and therefore, it was not possible to grant
his request. The complaint of the learned counsel for the
detenu was that while a detenu may not be entitled, as of
right, to be represented by a lawyer before the Advisory
Board, there was no bar against a lawyer being permitted to
appear before the Advisory Board and therefore, the request
of a detenu to be represented by a lawyer had to be
considered on the merits of each individual case. This the
learned counsel submitted had not been done in the present
case and the detenu’s request was never placed before the
Advisory Board. It is true that while Sec. 8(e) disentitles
147
a detenu from claiming as of right to be represented by a
lawyer, it does not disentitle him from making a request for
the services of a lawyer. We agree that the importance of
legal assistance can never be over-stated and as often than
nota dequate legal assistance may be essential for the
protection of the Fundamental Right to life and personal
liberty guaranteed by Article 21 of the Constitution and the
Right to be heard given to a detenu by Sec. 8(e), COFEPOSA.
These rights may be jeopardised and reduced to more nothings
without adequate legal assistance. That would depend on the
facts of each individual case, in the light of the
intricacies of the problems involved and other relevant
factors. Therefore, where a detenu makes a request for legal
assistance, his request would have to be considered on its
own merit in each individual case. In the present case, the
Government merely informed the detenu that he had no
statutory right to be represented by a lawyer before the
Advisory Board. Since it was for the Advisory Board and not
for the Government to afford legal assistance to the detenu
the latter, when he was produced before the Advisory Board,
could have; if he was so minded, made a request to the
Advisory Board for permission to be represented by a lawyer.
He preferred not to do so. In the special circumstances of
the present case we are not prepared to hold that the detenu
was wrongfully denied the assistance of counsel so as to
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lead to the conclusion that procedural fairness, a part of
the Fundamental Right guaranteed by Article 21 of the
Constitution was denied to him.
The last submission of the learned counsel was that
there was a non application of the mind of the detaining
authority, first in making the order of detention and later
in considering the representation of the detenu. It was
contended that the recital in the grounds of detention that
detenu had made a statement that certain documents received
at the detenu’s residence at the time of search pertained to
the order dated 29.11.1980 of Shri Abdullahi Amin, Attache,
Sudan Consulate was not correct and that the detenu’s
statement contained no such recital. It was said that the
grounds of detention read as if the detenu had admitted the
existence of the order dated 29.11.80 in the statement made
by him. We do not find any substance in this submission. A
reading of the document leaves no such impression. All that
was said was that the documents received by post at the time
of search pertained to an order dated 29.11.80 and not that
there was admission by the detenu that there was ever an
order dated 29.11.80. It was then contended that in the
course of communication of the grounds of detention the
detenu was informed that
148
it was against the public interest to disclose the source of
intelligence and the further facts contained therein. The
actual sentence by which privilege was claimed against
disclosure was as follows:
"I consider it against public interest to disclose
the source of intelligence referred to in the grounds
furnished above and further consider it against public
interest to disclose further facts contained therein".
The argument was that the grounds did not state that the
Government considered it against public interest to disclose
the source of intelligence and the further facts contained
therein but that it was the Assistant Secretary to the
Government of Maharashtra who signed at the bottom of the
grounds that though it was against the public interest to
disclose the source of intelligence and the facts contained
therein. The emphasis was on the use of the first person by
the Assistant Secretary. This was explained by the
respondents as a Clerical mistake and was later rectified by
making suitable corrections. It was contended that the
discovery of the mistake and its rectification was after the
Advisory Board had submitted its report, though the detenu
had even earlier, raised the question that it was the
Government and not the Assistant Secretary that could claim
privilege. It was not brought to the notice of the Advisory
Board at any time that the mistake was only clerical. We
have the least hesitation in rejecting the contention. The
mistake is so obviously clerical that we cannot permit the
detenu to take advantage of it. In the result W.P. No.
2690/81 is dismissed.
The first two questions raised in the previous Writ
Petition are common to Writ Petition No. 3241 of 1981 also.
An additional point was sought to be raised that the copy of
a certain document was not supplied to the detenu but after
verification the point was abandoned by the learned counsel.
This Writ Petition is also dismissed.
N.V.K. Petitions dismissed.
149