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1981 DIGILAW 158 (GAU)

Harendra Kr. Bharau v. District Magistrate Sibsagar & Ors.

1981-12-22

B.L.HANSARIA, T.C.DAS

body1981
Hansaria, J.- By an order passed on 9.11.81 the petitioner was detained under the National Security Act, 1980, because the learned District Magistrate, Sibsagar felt that the same was necessary "with a view to preventing him from acting in a manner prejudicial to the maintenance of public order and secu­rity of the State." 2. Let us see the grounds which had led the detaining authority to come to his satisfaction. These read : 1. The subject is an active member of Karmachari Parishad, Jorhat and closely connected with all the agita­tional programme launched by the All Assam Karmachari Parishad at Jorhat. 2. Due to his active participation in the movement on foreigners' issue a case vide Jorhat P. S. case No. 1 & (4) 80 U/s 5/6 Essential Services Maintenance (Assam) Ordinance was registered against the subject and h.3 was arrested in connection with the case. 3. As per call of A.A.S.U/A.A.G.S.P. while Assam Bandh was observed on 17th/18th Nov. 80 the subject instigated the State, Central and Semi-Govt. employees not to attend office duty during the Bandh days. The subject also instigated the student youths not to allow any officer even the Magistrate who were performing law and order duty to enter into Court compound and if necessary by means of violence activities. Due to such instigation on 17.11.80 about 200/250 members of AASU/GSP obstructed the District & Session Judge, Jorhat and other Executive/Judicial Magistrate from entering into Court compound and the agitated mob pelted stones on Police and Magistrate who were on duty. As a result Police had to chase them away by chasing and bursting tear gas shells near Police Office, Jorhat. The subject fled away from the plea to evade arrest. 4. The subject along with two other leaders of Karmachari Parishad, Jorhat circulated a Lethotyped 'Appeal' amongst the Govt. employees and others which inter alia criticised the Govt. for taking repressive measures against the Govt. employees, deployment of Army/C.R.P.F. inside Oil installations, Pumping Stations etc. and urging upon the employees to take active part in all agitational programme and to get ready for supreme sacrifice for the motherland. Due to such instigation all the Govt. and Semi-Govt. emplo­yees of Jorhat did not attend their office/duty from 24.11.80 to 10 12.80 in support of the indefinite non-co-operation movement of the State/Central and Semi-Govt. employees. 5. and urging upon the employees to take active part in all agitational programme and to get ready for supreme sacrifice for the motherland. Due to such instigation all the Govt. and Semi-Govt. emplo­yees of Jorhat did not attend their office/duty from 24.11.80 to 10 12.80 in support of the indefinite non-co-operation movement of the State/Central and Semi-Govt. employees. 5. It is secretly learnt that the subject instigated the member of A.S.S.U/AAGSP of Jorhat to take action against the Govt. officers/employees who are against the movement on foreigners, issue and specially those who attended their office/duty during non-co-operation movement on 6th/7th Feb/81. Due to such instigation of the subject some threatening leaflets published in the name of Jorhat Anchalik Chatra Santha were found circulated in Jorhat town mentioning the names of Govt. employees who attended office during non-co-operation movement on 6th/7th Feb/81. 6. On 5.4.81 evening an executive meeting of Karma-chari Parishad Jorhat was held at Jorhat Theatre Hall under the Presidentship of the subject. In the meeting Dr. Kushal Kr. Saikia submitted his resignation from General Secretaryship of Karmachari Parishad, Jorhat and in his place the subject was entrusted with the job of General Secretary of the Karmachari Parishad, Jorhat. Since the subject secretly instigated Govt. employees to be in readiness to join in the next phase of movement on foreigners, issue when AASU/GSP will announce the programme. 7. The subject attended a discussional meeting on 1.11.81 at Jorhat Sihitya Sabha Bhawan along with Jogananda Goswami/Inamul Mazid Bora where the sub­ject discussed for arranging about 20 private buses of Jorhat for carrying about 1000 people from Jorhat for the Central rally to be organised on 10.11.81 at Gauhati as per call given by A.S.S.U./A.A.G.S.P. 8. Confidential information indicates that the subject is secretly mobilising among the students/AAGSP/Karm-achari Parishad members to participate in the Central rally to be held at Gauhati on 1-11-81. The subject also instigated them to go and participate in the rally violating prohibitory order under Section 144 Cr.P.C. with large members and if obstruction given by the authority they will take the path of violence to reach Gauhati and to make the rally a success.'' 3. A perusal of the grounds makes it clear that none of them has any nexus with the maintenance of security of the State, which was one of the objectives sought to be achieved by detaining the petitioner. A perusal of the grounds makes it clear that none of them has any nexus with the maintenance of security of the State, which was one of the objectives sought to be achieved by detaining the petitioner. Not only this, some of the grounds, to wit-1, 2 and 7 are not related even to the maintenance of public order. This in itself has introduced a serious infirmity in the order. 4. This apart, though ground No. 4 is based on a 'Letho-typed Appeal' which is said to have been circulated by the petitioner along with two others, a copy of the same had not been supplied to the petitioner part passu the grounds. Simi­lar is the position as regards the 'threatening leaflet' menti­oned in ground No, 5. It is a settled position that if some documents are relied on while detaining a person, copies of the same must be made available to the detenu to enable him to make an effective representation. 5. The above two infirmities are sufficient to kill the order. In taking this view we are amply fortified by the decision of this Court in civil Rules 47 to 49 (HC) 81 disposed of on 9.3.81 and many others emanating from the highest Court of the land. We do not propose to burden the judgment by traversing the legal ground, as the learned Public Prosecutor did not fairly contest this legal position. 9. In view of the above, the impugned order is set aside and the petition stands allowed. The petitioner is ordered to be released forthwith, if not needed in connection with any other case.