JUDGMENT
P.K. Bahri, J.
(1) The Petitioner-detenu has filed this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, seeking quashment of the detention order dated February 17, 1989, passed by Respondent No. 2 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988,with a view to preventing the petitioner from engaging in possession, concealment and abetting in the export from India of narcotic drugs.
(2) Various grounds have been urged in support of the petition but it is not necessary to refer to all those grounds because this petition is liable to succeed on a very short ground.
(3) It has been pleaded in para 12 in ground ‘M’ that the petitioner bad made a written representation dated April 7, 1989, to the Advisory Board wherein he had made a request that his co-detenus who were to appear also before the Board on that day be examined as witnesses in rebuttal but the Board has not acceded to the said request. In the affidavit filed by Smt. Nisha Sahai Achuthan, Joint Secretary to the Government of India. Ministry of Finance, Department of Revenu, New Delhi, it has been averred in the corresponding para that she has no comments in regard to the representation made by the petitioner to the Advisory Board.
(4) However, counsel for the respondents has produced the record and I have gone through the same and find that the representation was given by the detenu on the date of hearing fixed by the Advisory Board and in that representation a written request had been made requiring the Board to examine the co-detenus in rebuttal but unfortunately the proceedings of the Advisory Board or the report sent by the Advisory Board do not give any indication as to how the said request of the detenu was dealt with. It appears that this written request made by the detenu. who appeared in person before the Advisory Board, due to inadvertence escaped the notice of the Advisory Board. It is settled law that if a request is made by the detenu to the Advisory Board for examining any person as a witness who is present on the date the Hearing takes place before the Board, the Board is bound to examine such a witness in rebuttal of the case set up against the detenu and the failure to examine such a witness by the Board has the effect of vitiating the order of detention (See Surinder Kumar Aroray v. Union of India, Criminal Appeal No 55/86, decided by the Supreme Court on January 14, 1986).
(5) In Criminal Writ No. 618/88, jatinder Singh v. Union of India & Others, decided on August 1, 1989, by a Division Bench of this Court, a similar question arose for consideration. In the said case also, the detenu had made a request in writing to the Advisory Board for examining the co-detenus as witnesses. A plea was taken that as detenu had not made any oral request before the Advisory Board, thus it should be deemed that the detenu had given up the request for examining the co-detenus as his witnesses. It was found that in the counter-affidavit no such averment has been made by the respondents. The Division Bench also held that it is not the requirement of law that such an oral request should be made by the detenu to the Advisory Board when once a request in writing has been admittedly made by the detenu in this respect. So, in the present case, I hold that the request made by the detenu to the Advisory Board for examining the co-detenus as his witnesses remained undecided by the Advisory Board which had the effect vitiating the detention order. Similar view has been taken by me in Rakesh Kapoor v. Union of India & Others, Criminal Writ No. 458/89, decided on November 16, 1989.
(6) For parity of reason, I allow this writ petition, make the rule absolute and quash the detention order and direct that the petitioner be released from Jail, if not required to be detained in any other case. Petition allowed.