# Najar Quraishi (In Custody) v. Superintendent, Distt. Jail, Muzaffarnagar & Ors

- **Citation:** (2020) 2 ILRA 48
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-09-19
- **Case number:** Habeas Corpus Writ Petition No. 3293 of 2018
- **Bench:** Bala Krishna Narayana, Ravindra Nath Kakkar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/najar-quraishi-in-custody-v-superintendent-distt-jail-muzaffarnagar-ors-44353
- **Pages:** 5

## Headnote

A. Constitution of India,1950 - Article
226- Habeas Corpus petition - National
Security Act, 1980 - Section 3(2) -
Detention
-
ground
of
challenge
-
petitioner not given any opportunity by
the Advisory Board to be represented
through a legal ractitioner/counsel of his
choice before the Board - the impugned
order legally unsustainable. (Para - 5,14)
In this petition, the validity of the detention of
petitioner (detenu) has been challenged. He
has been detained by the District Magistrate,
Muzaffar Nagar under Section 3 (2) of the
National Security Act, 1980 (Para-2)

Held:- The detenu must be allowed the facility
of appearing before the Board through a legal
practitioner. If it is denied to him then a clear
case of breach of Article 14 is made out in
favour of detenu.(Para-14)

Impugned order set-aside. (E-7)

List of cases cited:-

## Text

48 INDIAN LAW REPORTS ALLAHABAD SERIES
aspect of the case and also taken note of
several guidelines issued in several cases
by Hon'ble Apex Court and these citations
were discussed in paragraph no.11 of the
judgment impugned in this appeal.

14. As per the settled law, the
testimony of the prosecution witnesses
regarding commission of offence is
sufficient for convicting a person but in
case where doubt is generated because of
testimony and circumstances of the case
regarding
trustworthiness
of
the
prosecution witnesses then right course
open is to have some independent
corroboration, which is missing in this
case. In this regard we are in agreement
with the finding so recorded by the trial
court.

15. Before parting with judgment, it
would be relevant to take note of fact that
we after careful scrutiny of the impugned
judgment discover no perversity in the
judgment of trial court. We are fully
conscious of fact that presumption of
innocence is available to the accused even
up to this appellate stage which got
strengthened by order of acquittal in
favour of accused by the trial court. Thus
the view taken by the trial court in
recording finding of acquittal is just and
reasonable. Even if other view is possible
it would not be proper to substitute our
own view in place of finding recorded by
the trial court. This approach is to be
avoided and the view as taken by the trial
court has got to be affirmed. This
rationale/principle has been enunciated in
detail in Bhadragiri Venketa Ravi Vs.
Pubic Prosecutor High Court of A.P.,
Hyderabad 2013 (4) Supreme 450.

16. Similarly, in Kanhaiya Lal and
others Vs. State of Rajasthan AIR 2013
SC 1940, Hon'ble Apex Court has
observed that while dealing with an appeal
against acquittal the court should keep in
view the presumption of innocence in
favour of the accused as the same gets
fortified by his acquittal if the view taken
by the trial court is well grounded and
based on material on record.

17. In view of the discussion made
hereinabove, we see no infirmity latent or
patent in the judgment of acquittal
recorded by the trial court. We are,
accordingly, not inclined to interfere with
the judgment and the order of acquittal
recorded by the trial Judge in respect of
the
accused-respondents.
The
instant
appeal is liable to be dismissed. Leave to
appeal is thus refused.

18. Accordingly, the instant appeal is
dismissed.

19. Let a copy of this order be
certified to the court concerned.
----------

(2020)02ILR A48
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2018

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAVINDRA NATH KAKKAR, J.

Habeas Corpus Writ Petition No. 3293 of 2018

Najar Quraishi ...Petitioner (In Custody)
Versus
Superintendent, Distt. Jail, Muzaffarnagar
& Ors. ...Respondents

Counsel for the Petitioner:
Sri Daya Shankar Mishra, Sri Chandrakesh
Mishra
4 All. Najar Quraishi Vs. Superintendent, Distt. Jail, Muzaffarnagar & Ors.
49
Counsel for the Respondents:
G.A., A.S.G.I., Sri Pawan Kumar Srivastava

A. Constitution of India,1950 - Article
226- Habeas Corpus petition - National
Security Act, 1980 - Section 3(2) -
Detention
-
ground
of
challenge
-
petitioner not given any opportunity by
the Advisory Board to be represented
through a legal ractitioner/counsel of his
choice before the Board - the impugned
order legally unsustainable. (Para - 5,14)
In this petition, the validity of the detention of
petitioner (detenu) has been challenged. He
has been detained by the District Magistrate,
Muzaffar Nagar under Section 3 (2) of the
National Security Act, 1980 (Para-2)

Held:- The detenu must be allowed the facility
of appearing before the Board through a legal
practitioner. If it is denied to him then a clear
case of breach of Article 14 is made out in
favour of detenu.(Para-14)

Impugned order set-aside. (E-7)

List of cases cited:-

1. A. K. Roy V. Union of India , (1982) 1 SCC
271 : 1982 SCC (Cri) 152

2. Choith Nanikram Harchandani V. State of
Maharashtra and Others , (2018) 2 SCC (Cri)
403

3. Bittu Choith Harchandani V. State of
Maharashtra and Others, (2015) 17 SCC 688

(Delivered by Hon'ble Bala Krishna
Narayana, J.)

1. The argument of this case was
concluded on 19.09.2018. We then made
the following order :-

"Heard
Sri
Daya
Shankar
Mishra, learned counsel for the petitioner,
Sri Jitendra Prasad Mishra, learned
counsel for Union of India, Smt. Manju
Thakur, learned A.G.A.-I and Sri J. K.
Upadhyay, learned A.G.A. for the State.

We will give reasons later. But
we are making the operative order here
and now.

This habeas corpus writ petition
is allowed. The impugned detention order
dated 13.04.2018 passed by respondent
no. 2, District Magistrate, Muzaffar Nagar
detaining the petitioner u/s 3 (2) of the
National Security Act, 1980 is hereby setaside.

The petitioner Nazar Quraishi
(detenu) is set at liberty.''

2. Here are the reasons :- In this
petition, the validity of the detention of
petitioner Najar Quraishi (detenu) has
been challenged. He has been detained by
the District Magistrate, Muzaffar Nagar by
an order dated 13.04.2018 made under
Section 3 (2) of the National Security Act,
1980 (hereinafter referred to as the NSA).

3. The impugned order of preventive
detention was passed against the petitioner
while he was confined to District Jail,
Muzaffar Nagar on account of his being
accused in following cases namely :-

(a) Case Crime No. 1175 of
2017 u/s 3/5/8 of U.P. Prevention of Cow
Slaughter Act.

(b) Case Crime No. 1176 of
2017 u/s 147, 148, 149, 307, 323, 332,
336, 353, 427, 201, 224 I.P.C. & Section 7
of Criminal Law Amendment Act.

(c) Case Crime No. 2663 of
2017 u/s 429 I.P.C. & Section 3/11 of
Prevention of Cruelty to Animals Act.

(d) Case Crime No. 118 of 2018
u/s 3/5/8 of U.P. Prevention of Cow
Slaughter
Act
&
Section
3/11
of
Prevention of Cruelty to Animals Act.
50 INDIAN LAW REPORTS ALLAHABAD SERIES

(e) Case Crime No. 151 of 2018
u/s 3/5/8 of U.P. Prevention of Cow
Slaughter
Act
&
Section
3/11
of
Prevention of Cruelty to Animals Act.

(f) Case Crime No. 497 of 2017
u/s 382 I.P.C.

4. Upon being served with the
impugned detention order, the petitioner
filed representations before the detaining
authority,
State
Government,
Central
Government as well as the Advisory
Board. The Advisory Board approved the
detention order.

5. The only ground on which the
learned counsel for the petitioner has
challenged the impugned detention order
is that the petitioner was not given any
opportunity by the Advisory Board to be
represented
through
a
legal
practitioner/counsel of his choice before
the Board so as to enable him to place his
case effectively before the Board. He next
submitted that the Board had allowed
participation and assistance of officials at
the time of hearing of case against the
petitioner and in view of the above, it was
all the more necessary rather obligatory on
the part of the Board to have granted
opportunity to the petitioner to engage any
legal practitioner to have represented his
case. He further submitted that since the
petitioner was denied the opportunity to
represent his case effectively before the
Board, the impugned order is not legally
sustainable and deserves to be quashed on
this ground alone. In support of his
submissions, learned counsel for the
petitioner has place reliance on two
decisions of this Court in A. K. Roy V.
Union of India reported in (1982) 1 SCC
271 : 1982 SCC (Cri) 152 and Choith
Nanikram Harchandani V. State of
Maharashtra and Others with Bittu
Choith
Harchandani
V.
State
of
Maharashtra and Others reported in
(2018) 2 Supreme Court Cases (Cri) 403,
(2015) 17 Supreme Court Cases 688.

6. In reply, learned counsel for the
respondents supported the impugned order
and prayed for its upholding, contending
that the petitioner is not entitled to any
indulgence. Moreover, no prayer was
made by him before the Advisory Board to
allow him to be represented through a
counsel and hence, the impugned detention
order is not liable to be set-aside on the
aforesaid submissions made by the learned
counsel for the petitioner.

7. We have heard learned counsel for
the parties present and very carefully
scanned the impugned order and the
grounds of detention and also the counter
affidavits filed on behalf of the respondent
nos. 1 to 4 in this writ petition and the law
reports cited before us by the learned
counsel for the petitioner.

8. The issue is to whether the detenu
has right to appear through a legal
practitioner in the proceedings before the
Advisory Board remains no more res
integra and stands settled by the decision
of the Constitution Bench of the Apex
Court in A. K. Roy (supra). Y.V.
Chandrachud, C.J. Speaking for the Bench
succinctly dealt with this issue and held in
para 93 as under : (SCC pp. 334-35)

"93. We must therefore hold,
regretfully though, that the detenu has no
right
to
appear
through
a
legal
practitioner in the proceedings before the
Advisory Board. It is, however, necessary
to add an important caveat. The reason
behind the provisions contained in Article
22 (3) (b) of the Constitution clearly is that
a legal practitioner should not be
4 All. Najar Quraishi Vs. Superintendent, Distt. Jail, Muzaffarnagar & Ors.
51
permitted to appear before the Advisory
Board for any party. The Constitution does
not
contemplate
that
the
detaining
authority or the Government should have
the facility of appearing before the
Advisory Board with the aid of a legal
practitioner but that the said facility
should be denied to the detenu. In any
case, that is not what the Constitution says
and it would be wholly inappropriate to
read any such meaning into the provisions
of Article 22. Permitting the detaining
authority or the Government to appear
before the Advisory Board with the aid of
a legal practitioner or a legal adviser
would be in breach of Article 14, if a
similar facility is denied to the detenu. We
must therefore make it clear that if the
detaining authority or the Government
takes the aid of a legal practitioner or a
legal adviser before the Advisory Board,
the detenu must be allowed the facility of
appearing before the Board through a
legal practitioner. We are informed that
officers
of
the
Government
in
the
departments
concerned
often
appear
before the Board and assist it with a view
to justifying the detention orders. If that be
so, we must clarify that the Boards should
not permit the authorities to do indirectly
what they cannot do directly; and no one
should be enabled to take shelter behind
the excuse that such officers are not 'legal
practitioners' or legal advisers. Regard
must be had to the substance and not the
form since, especially, in matters like the
proceedings
of
Advisory
Boards,
whosoever assists or advises on facts or
law must be deemed to be in the position
of a legal adviser. We do hope that
Advisory Boards will take care to ensure
that the provisions of Article 14 are not
violated in any manner in the proceedings
before them. Serving or retired Judges of
the High Court will have no difficulty in
understanding this position. Those who
are merely 'qualified to be appointed' as
High Court Judges may have to do a little
homework in order to appreciate it."

9. Similarly by the Apex Court in the
case of Choith Nanikram Harchandani
(supra) in paragraph 15 as held as
hereunder :-

"In our considered opinion,
since
the
detaining
authority
was
represented by the officers at the time of
hearing of the petitioner's case before the
Advisory Board, the petitioner too was
entitled to be represented through legal
practitioner. Since no such opportunity
was afforded to the petitioner though
claimed by him, he was denied an
opportunity of a fair hearing before the
Advisory Board, which eventually resulted
in passing an adverse order."

10. Applying the aforesaid principle
to the facts of this case, we find in
paragraph 20 of the writ petition in which
the petitioner has categorically stated on
oath that while the detaining authority was
represented by officials, by legal advisers
and legal officers before the Advisory
Board, the petitioner was not allowed to be
represented through legal practitioner
despite request made by him before the
Board in this regard. The petitioner was
thus, denied the opportunity of a fair
hearing before the Advisory Board which
eventually resulted in passing of adverse
order against him.

11. The reply to the contents of the
paragraph 20 of the writ petition having
been given by the respondent no. 2 in
paragraph 22 of his counter affidavit in
which he has failed to categorically deny
the contents of the paragraph 20 of the writ
52 INDIAN LAW REPORTS ALLAHABAD SERIES
petition and has merely deposed that the
petitioner was heard before the Advisory
Board.

12. In paragraph 9 of the counter
affidavit sworn by one Padmakar Shukla,
Under
Secretary,
Home
(Confidential)
Department, U.P. Civil Secretariat, Lucknow
and filed on behalf of the State of U.P., has
merely stated that the petitioner was informed
by the State Government vide letter dated
03.05.2018 that he could attend the hearing
before the U.P. Advisory Board, Lucknow
along with his next friend (non-advocate).

13. Thus, there is no denial in the counter
affidavit of either of the respondents that at the
time of hearing of the case before the U.P.
Advisory Board, Lucknow, officers of the
detaining authority were present and heard in
the course of proceedings.

14. This infirmity being fatal renders the
impugned order legally unsustainable as held
in A. K. Roy (supra) :-

"If the detaining authority or the
Government takes the aid of a legal
practitioner or legal adviser before the
Advisory Board, the detenu must be allowed
the facility of appearing before the Board
through a legal practitioner. If it is denied to
him then a clear case of breach of Article 14 is
made out in favour of detenu. Since the
expression "legal practitioner" was interpreted
in A. K. Roy (supra) to include even the
officers of the Government when they appear
before the Board to assist the proceedings
against the detenu, the detenu too has to be
provided with equal facility of appearing
before the Board through legal practitioner."

15. In view of the above, the impugned
order cannot be sustained and is liable to be
set-aside.

16. These are the reasons upon which we
had set-aside the impugned order dated
13.04.2018 passed by the respondent no. 2,
District Magistrate, Muzaffar Nagar.
----------
(2020)02ILR A52
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2020

BEFORE
THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 1383 of 2020

Raghvendra Tiwari ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Dilip Kumar Pandey, Akhilesh Kumar

Counsel for the Respondents:
C.S.C., Dilip Kumar Pandey

A. U.P Essential Commodities (Regulation of
Sale & Distribution Control) Act-sec. 13(1)-
challenging-order-cancelling his candidaturefor allotment of-fair price shop-on the ground
that-violation of principles of Natural Justicefound to be ineligible-as he is brother of gram
pradhan-a disqualification-it would-revive-an
illegal order-opposed to public policy-petition
dismissed.

B. Held, Writ jurisdiction is a discretionary
jurisdiction and a writ of certiorari would not
ordinarily be issued as a matter of course. It
has been settled by the Hon'ble Supreme Court
that an order impugned does substantial justice
between the parties, even if it does not strictly
follow niceties of law, may still not be set aside
on mere showing of irregularity in procedure,
or want of jurisdiction. Reference can be made
to the judgment rendered by the Hon'ble
Supreme Court in the case of J.P. Builders V. A.
Ramadas Rao, Civil Appeal Nos.9821-9822 of
2010 decided on 22.11.2010. The Hon'ble
Supreme Court has also held in the case of
Chandra Singh and Others Vs. State of
Rajasthan and Another reported in 2003 (6)