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Gauhati High Court · body

1981 DIGILAW 43 (GAU)

BHARAT NARAH v. COMMISSIONER & SECRETARY TO THE GOVT. OF ASSAM

1981-04-21

K.LAHIRI, S.M.ALI

body1981
JUDGEMENT Lahiri, J. :- This habeas corpus application has been projected against the order of detention passed by the State Government on 20-2-81, against the detenu, a college student in exercise of power under S.3 National Security Act, 1980, Mr. A.K. Bhattacharyya learned counsel for the petitioner puts his best foot forward and has urged that the order of detention is void and unsustainable on twofold grounds, First, the counsel submits that the acts and activities attributed in Grounds 1 and 2 are not relevant for detention under the head "maintenance of public order". They do not contain any basic fact and/or relevant fact to detain a person for "the purpose". Counsel submits that if the two grounds fail as irrelevant the entire order of detention must fail. Counsel for the detenu has relied on a number of decisions of the Supreme Court which shall be referred to in due course. Secondly, counsel submits that documents referred to in Ground No, 1 as well as Ground No. 5, namely, the news item released and purportedly published in the Assam Tribune dated 23-6-1980 and the press statement allegedly published in Dainik Asom dated 17-12-1980 referred to in Ground No. 5 respectively, were not furnished to the detenu along with the grounds and/or thereafter, which was violative of Article 22(5) of the Constitution. 2. We have heard the learned Government Advocate Mr. P. Prasad at length. 3. We quote herein below Grounds 1 and 2 "1. On 21-6-1980 from 2 P.M. to 9 P.M. you along with S/Shri Bhrigu Phukan, Gagan Dutta, Nagen Sarma, Joynath Sarma, Arun Das, Channakya Das, Atul Koch and Dhruba Baishya attended a meeting of AASU at Gauhati University Students Day Home, Jalukbari with Shri Prafulla Kumar Mahanta in the Chair and you were instrumental in arriving at a decision to observe "Assam Bundh" for 24 hours from 6 A.M. of 26-8-1980 to 6 A. M. of 27-6-1980 and to stop movement of train and air services to and from Gauhati from 14-7-1980 to 16-7-1980. However, the said programme was slightly changed later on by the decision of the Joint Steering Committee meeting of AASU and AAGSP as announced through a news item published in the "Assam Tribune" dated 23-6-1980 and it was decided to observe 24 hours' Assam Bundh from 6 A.M. of 26-6-1980 to 6 A.M. of 27-6-1980 and to force movement of air and passenger trains services to be kept suspended from 4-7-1980 to 6-7-1980 and to launch picketing in front of all Central, State and Semi Government Offices in Assam from 7-7-1980 to 20-7-1980. Accordingly from 6 A.M. of 26-6-80 to 6 A.M. of 27-6-1980, Assam Bundh was observed which seriously disturbed the normal life of the communities throughout the State. From 4-7-1980 to 6-7-1980 movement of all passenger trains to and from Assam were affected, picketing was launched in front of the airport and Air Lines Offices which disrupted the normal functioning of the air services. On 4-7-1980 at Borjhar airport police had to fire 3 tear gas shells and chase away the picketers as they did not allow 15 passengers coming from Calcutta to proceed to Gauhati, From 7-7-80 to 20-7-80, picketing was launched in front of all the Government and non-Government offices throughout the State (Brahmaputra Valley) thus seriously affecting the normal functioning of those offices. Thus you along with your associates mentioned above instigated the students and the people of Assam to observe 'Assam Bundh' on the dates mentioned above thereby seriously disturbing the normal life of the community, to force air service and train service to be suspended on the days mentioned above thereby disturbing the even tempo of the normal life of the community and to do picketing in front of all the Central, State, Semi Government offices is Assam on the dates mentioned above, thereby seriously affecting the normal functioning of these offices. These acts of yours are prejudicial to the maintenance of public order. 2. These acts of yours are prejudicial to the maintenance of public order. 2. On 22-10-1980 from 12 Noon to 8.30 P.M. you along with S/Shri Lalit Rajkhowa, Nagen Sarma, Joynath Sarma, Deba Bora, and some others attended the meeting of the Executive Committee of AASU which was held at Gauhatz University Law College Students Union Office, Jalukbari under the Presidentship of Shri Prafulla Kumar Mahanta and you were instrumental in arriving at the decisions to observe 24 hours "Assam Bundh" from 0600 hours of 27-10-1980 to 0600 hours of 28-10-80 and to gherao the Members of the Legislative Assembly and members of Parliament of the State who were not supporting the current agitation on foreigners' issue for an indefinite period with effect from 28-10-1980. Again, on 23-10-1980 from 4.30 P.M. to 5 P.M. you along with S/Shri Prafulla, Kr. Mahanta, Chandra Mohan Patdwary Pabindra Deka, Atul Bora and some others attended a discussional meeting of the steering committee of All Assam Gana Sangram Parishad at Bhagabati Prasad Baruah Bhaban, Gauhati in which you were instrumental in arriving at the decisions to observe 'Assam Bundh' from 0600 hours of 27-10-1980 to 0600 hours of 28-10-1980 and to Gherao the Members of Legislative Assembly and Members of Parliament of the State with effect from 28-10-1980 till they announce their support towards the demand for detection of foreigners on the basis of 1951 NRC and 1952 Electoral Rolls. Accordingly, Assam Bundh was observed on the dates mentioned above which seriously affected the normal life of the community throughout the Brahmaputra valley. From 28-10-1980 the programme of 'Gherao' of Members of Legislative Assembly continued thus seriously affecting public order. Thus you along with the persons mentioned above instigated the people of the State particularly the students to observe 'Assam Bundh' on the dates and 'Gherao' the Members of Legislative Assembly thereby disturbing seriously the even tempo of the normal life of the community. These acts of yours are prejudicial to the maintenance of public order." There is no wisper of violence in any of the grounds alluded, either preached or practised by the petitioners or his colleagues. These acts of yours are prejudicial to the maintenance of public order." There is no wisper of violence in any of the grounds alluded, either preached or practised by the petitioners or his colleagues. We quote a pertinent observation of Chandrachud, J. (as his Lordship then was), in Ram Bahadur v. State of Bihar, AIR 1975 SC 223 : (1975 Cri LJ 269) (At p. 273 of Cri LJ) : "If the charge was that the petitioner had preached violence, the grounds of detention must have stated so. Such a serious accusation ought not to be left to mere speculation. And if there was not a whisper of violence in the grounds of detention or in the affidavit of the District Magistrate, the Court could not conclude that the petitioner exhorted the student community to take to the path of violence in the pursuit of its demands". (Emphasis added) It was a case in which similar allegations were brought against student leader and the purpose of detention was for preventing the detenu from acting in any manner prejudicial to the maintenance of "public order". We have scanned, scrutinised, had a short and long look at the grounds; we are taken to the grounds by the learned Government Advocate, however, we do not find any "whisper of violence" in the grounds. True, there is a collocation of the words "to force movement of air and passenger trains'' in para 1 of the ground. Was it a physical force or moral force, active or passive force ? Nothing can and should be left to speculation. Grounds must be firm and alternative. We are constrained to hold that the present squarely falls within the four corners of Ram Bahadur (supra). In a number of cases including Ram Bahadur, their Lordships observed that where one of the grounds of detention is found to be vague or irrelevant, the entire order must fall. The satisfaction of the detaining authority being subjective it is well nigh impossible to predicate whether the order would have been passed in the absence of the irrelevant grounds. In the instant case the statement of facts incorporated in Paragraphs 1 and 2 are irrelevant for the purpose of detention of a person to act in a manner prejudicial to the maintenance of public order. We also rely, on the principles of law "dealing with public order" in Mohd. In the instant case the statement of facts incorporated in Paragraphs 1 and 2 are irrelevant for the purpose of detention of a person to act in a manner prejudicial to the maintenance of public order. We also rely, on the principles of law "dealing with public order" in Mohd. Yusuf v. State J. and K., AIR 1979 SC 1925 in order to arrive at the conclusion that Grounds and 2 are irrelevant for the purpose of detention of the petitioner under the head "public order". We are constrained to hold that the detention of the petitioner under the head "maintenance of public order" on Grounds 1 and 2 is not sustainable. 4. The second leg of argument of Shri Bhattacharyya has strong force. In Ground No. 1 it has been stated inter alia : "However, the said programme was slightly changed later on by the decision of the Joint Steering Committee meeting of ASSU and AAGSP as announced through a news item published in the 'Assam Tribune' dated 23-6-80 and it was decided to observe 24 hours' Assam Bundh from 6 A.M. of 26-6-80 to 6 A.M. of 27-6-80..............." Similarly in para 5 of the grounds of detention it was stated inter alia : "You along with Shri Joynath Sarma as convener and Chief convener respectively of All Assam Students Union Volunteer Corps in statement published in 'Dainik Asom' dated 17-12-80 asked all the Anchalik Units of Volunteer Corps and its members to make the Satyagraha programme a success." (Emphasis added). 5. Neither "the news item" referred to para 1 (Ground 1) nor the press statement implicating the detenu was furnished to the detenu. The detaining authority in its affidavit has directly admitted that the press statement and news items were not furnished to the detenu. But the fact remains that the documents and materials were referred to by the detaining authority; the detaining authority applied his mind, perused the same and prepared the grounds. The documents formed a part of the grounds. On the authority of the decision of the Supreme Court we have held in Krishna Barua v. District Magistrate, Kamrup/Nowgong (Civil Rules Nos. 47(HC), 48(HC), 49(HC), 59(HC) and 60(HC) of 1981), disposed of on 19-3-1981 : (1981 Cri LJ NOC 175) that copies of documents and materials to which reference is made in the grounds must be supplied to the detenu. 47(HC), 48(HC), 49(HC), 59(HC) and 60(HC) of 1981), disposed of on 19-3-1981 : (1981 Cri LJ NOC 175) that copies of documents and materials to which reference is made in the grounds must be supplied to the detenu. The documents and materials relied on in the grounds which had to be taken into consideration by the detaining authority in making the order of detention must be supplied "to the detenu pari passu" the grounds of detention, as they formed an integral part of the grounds. In support we rely on the following decisions : Ramchandra A. Kamat v. Union of India, decided on 22-2-1980 per S.M. Fazal Ali, P.S. Kailasam and A.D. Koshal, JJ., AIR 1980 SC 765 (para 8); Hansmukh v. State of Gujarat, per R.S. Sarkaria and R.S. Pathak, JJ., decided on 4-8-1980, AIR 1981 SC 28 : (1980 Cri LJ 1286) (paras 17, 18) Cor. P.N Bhagwati, A.P. Sen, JJ.; Ichhu Devi v. Union of India, per P.N. Bhagwati and E.S. Venkataramiah, JJ. decided on 9-9-1980 : AIR 1980 SC 1983 (paras 6 and 7); Pritam Nath Hoon v. Union of India, per V.R. Krishna Iyer and A.D. Koshal, JJ. decided on 11-9-80. AIR 1981 SC 92 (para 9) : 1980 Cri LJ 1340; Mangalbhat Motiram Patel v. State of Maharashtra, Corr. P.N. Bhagwati, A.P. Sen and E.S. Venkataramiah, JJ, decided on 26-9-1980 : AIR 1981 SC 510 : (1981 Cri LJ 331); Smt. Shalini Soni v. Union of India, per R.S. Sarkaria and O.C. Reddy, JJ. decided on 24-10-1980 : AIR 1980 SC 431 (paras 7 and 8) : 1980 Cri LJ 1487; S. Gurdip Singh v. Union of India, per Corr. S.M. Fazal Ali and A.D. Koshal, JJ. decided on 13-11-80 : AIR 1981 SC 362 (paras 2 and 3) : 1981 Cri LJ 2; Lallubhai Jogibhai v. Union of India, per R.S. Sarkaria and O.C. Reddy, JJ. decided on 15-12-1980 : 1981 Cri LJ 288 (para 18); and Kamla Kanyalal Khushlani v. State of Maharashtra, per Corr. Fazal Ali and A. Varadarajan, JJ. decided on 6-1-1981 : (1981) 1 SCC 748 (paras 3 and 6) : (1981 Cri LJ 353 paras 3 and 6). decided on 15-12-1980 : 1981 Cri LJ 288 (para 18); and Kamla Kanyalal Khushlani v. State of Maharashtra, per Corr. Fazal Ali and A. Varadarajan, JJ. decided on 6-1-1981 : (1981) 1 SCC 748 (paras 3 and 6) : (1981 Cri LJ 353 paras 3 and 6). We would like to add that in Golam Malik v. State of West Bengal, AIR 1976 SC 754 : (1976 Cri LJ 630), non furnishing of documents referred to in the grounds was held to be violative of Article 22(5) of the Constitution. 6. In the result, we have no hesitation in arriving at the conclusion that the order of detention is void and the continued detention of the petitioner is invalid. We allow the petition and direct that the detenu be released forthwith unless wanted in connection with any other case. Petition allowed.