HARICHARAN SARMA v. STATE OF ASSAM — 1985 DIGILAW 20 (GAU)

JUDGEMENT Das, J.:- In this Habeas Corpus petition Mr. A. K. Bhattacharyya, the learned counsel for the petitioner has raised a substantial question of law relating to the mandatory provisions of S. 3(5) read with S. 14 of the National Security Act, 1980 (for short, 'the Act'). The learned counsel has further urged that if on this substantial legal point the petitioner succeeds it would not be necessary for us to enter into other matter relating to the grounds of detention. 2. At the outset we would like to note that the petition was moved in this Court on 9-4-1985 and the Rule was made returnable within 3 weeks. On 1-5-85 two separate affidavits-in-opposition on behalf of respondents No. 1 and 3 respectively, were filed. On 20-5-1985 respondent No. 2 submitted their affidavits-in-opposition in Court. While the case was posted on 20-5-1985 for hearing Mr. Ali, the learned Standing Counsel, Central Government, prayed for time to produce the record. He was allowed 2 days' time to produce the record. However, Mr. Ali has submitted before us that it was not possible for him to procure the records within such a short period. Therefore, the learned counsel insisted to consider the affidavit-in-opposition filed by respondent No. 2 on the points as raised by Mr. Bhattacharyya, the learned counsel for the petitioner. In para 22 of the petition the petitioner has stated- "(22) That your petitioner states that the Central Government has failed to take any decision even after receipt of knowledge of the petitioner's detention under the 'NSA' and, as a result, the constitutional mandate of Art. 22(5) has been violated, which renders the continued detention of the petitioner illegal, inasmuch as, the Central Government has failed to discharge its duty enjoined under S. 14 of the NSA". The contentions made in para 22 by the petitioner has not been replied to by respondent No. 2. The learned counsel has, however, drawn out attention to para 3 of the affidavit-in-opposition filed by the Union of India. It is submitted by Mr. Ali that the contentions raised by the petitioner in para 22 has been replied in para 3 while replying to the contentions made in paras 18, 19, 20 and 21 of the writ petition. 3. The main thrust of argument of Mr. It is submitted by Mr. Ali that the contentions raised by the petitioner in para 22 has been replied in para 3 while replying to the contentions made in paras 18, 19, 20 and 21 of the writ petition. 3. The main thrust of argument of Mr. Bhattacharyya, the learned counsel for the petitioner is that while considering the order of detention under S. 14 of the Act, it is obligatory on the part of the Central Government to consider the report as regards the detention of the detenu, the grounds for such detention and other necessary particulars connected thereto. It is also obligatory on the part of the detaining authority to send the report together with the grounds of detention and otter necessary particulars connected thereto to the Central Government under S. 3(5) of the Act within the time bound period as prescribed therein and the Central Government must consider the report, the grounds of detention and other necessary papers, if there be any, and to pass appropriate order under S. 14 of the Act. The Central Government may, after consideration of those, consider the representation, if made by the petitioner, and pass an order under S. 14 of the Act either to confirm, vary or revoke the order of detention. To appreciate the contention of Mr. Bhattacharyya, we feel it necessary to quote the relevant provisions of S. 3(5) as well as S. 14 of the Act. "3(5). When any order is made or approved by the State Government under this section the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. 14. Revocation of detention order-(1) Without prejudice to the provisions of S. 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified,- (a) Notwithstanding that the order has been made by an officer mentioned in sub-sec. (3) of S. 3, by the State Government to which that officer is subordinate or by the Central Government; (b) Notwithstanding that the order has been made by a State Government, by the Central Government. (3) of S. 3, by the State Government to which that officer is subordinate or by the Central Government; (b) Notwithstanding that the order has been made by a State Government, by the Central Government. (2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order under S. 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer mentioned in sub-sec. (3), or S. 3 as the case may be, is satisfied that such an order should be made." Referring to the provisions of S. 3(5) of the Act Mr. Bhattacharyya, the learned counsel for the petitioner has laid stress that the report together with the grounds of detention and other particulars must be sent by the State Government to the Central Government for consideration of the detention order and to pass appropriate order in view of the provision of S. 14 of the Act. If that has not been complied with, the order of detention must be set aside. 4. We have heard Mr. A. K. Choudhury, the learned counsel appearing on behalf of the State. Mr. Choudhury has referred to us the two affidavits filed by the detaining authority as well as by the Joint Secretary to the Government of Assam, Political Department. We have perused the contentions raised in the affidavits and we are satisfied that due compliance was made as envisaged under the provisions of Sec. 3(5) of the Act by the State Government. The report, the grounds of detention and other particulars were all sent to the Central Government for a decision under Sec. 14 of the Act. Therefore, according to us there cannot be grievance of the petitioner against the State Government as regards non-compliance of the provisions of law under Sec. 3(5) of the Act. Therefore, the only grievance raised by Mr. Bhattacharyya, the learned counsel for the petitioner is as regards non-consideration of the report, grounds of detention and other particulars by the Central Government. The learned counsel has further submitted that a decision must be rendered by the Central Government while considering the detention order of a detenu. In support of the contention Mr. Bhattacharyya, the learned counsel for the petitioner is as regards non-consideration of the report, grounds of detention and other particulars by the Central Government. The learned counsel has further submitted that a decision must be rendered by the Central Government while considering the detention order of a detenu. In support of the contention Mr. Bhattacharyya has placed before us several decisions of their Lordships of the Supreme Court as well as the decisions of this Court on this point. Reliance is sought to be placed on a recent decision of this Court in Civil Rule (HC) No. 40/84 (Somi Angkang v. Union of India) and other connected Civil Rules disposed of on 30-1-85.* In Hitendra Nath Goswami v. State of Assam as reported in 1984 Cri LJ 1558, a Full Bench of this Court had to deal with the similar problem as has been raised in this case by Mr. Bhattachrayya relating to the provisions of Sec. 3(5) read with Sec. 14(1) of the Act and also the constitutional rights of the detenu under Arts. 21 and 22(5) of the Constitution. In Hitendra (supra) a catena of decisions of this Court as well as the decisions of other High Courts including the context of the decisions rendered by their Lordships of the Apex Court and few English cases were thoroughly discussed. The next important case referred to us by Mr. Bhattacharyya is the case of Sabir Ahmed v. Union of India as reported in.( 1980) 3 SCC 295. Referring to Sabir Ahmed, Mr. Bhattacharyya has pinpointed the observations of their Lordships in para 12 of the judgment. This was a case under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, 'COFEPOSA'), The provisions are almost similar. In Sabir Ahmed their Lordships while dealing with the provisions of Secs. 11 and 3 of COFEPOSA observed : - Reported in (1985) 2 Gauhati LR 1. ".................The power under Sec. 11 may either be exercised on information received by the Central Government from its own sources including that supplied under S. 3 by the State Government, or, from the detenu in the form of a petition or representation. Whether or not the Central Government on such petition/representation revokes the detention is a matter of discretion. But this discretion is coupled with a duty. That duty is inherent in the very nature of the jurisdiction. Whether or not the Central Government on such petition/representation revokes the detention is a matter of discretion. But this discretion is coupled with a duty. That duty is inherent in the very nature of the jurisdiction. The power under Sec. 11 is a supervisory power. It is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government. If this statutory safeguard is to retain its meaning and efficacy, the Central Government must discharge its supervisory responsibility with onstant vigilance and watchful care. The report received under S. 3, or any communication or petition received from the detenu must be considered with reasonable expedition. What is ‚reasonable expedition is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inaction, avoidable redtapism and unduly protracted procrastination." Reference has also been made to a decision rendered by their Lordships of the Supreme Court in Smt. Raziy a Umar Bakshi v. Union of India as reported in AIR 1980 SC 1751 . 5. However, what has been urged by Mr. Bhattacharyya in this case for our consideration is as regards non-consideration of the detention order relating to the grounds of detention of the petitioner by the Central Government in compliance with the provisions of Sec. 3(5) read with S. 14 of the Act. We have perused the relevant para 3 of the affidavit-in-opposition filed by the Union of India. It is stated in the affidavit that the Report of detention of the petitioner as sent by the Government of Assam to the Central Government on 29th Jan., 1985 was received by the Central Government in the Ministry of Home Affairs on 31st Jan., 1985 and the said report was immediately attended to and considered by the Central Government in the Ministry of Home Affairs on 4-2-85. Though one technical point was raised by Mr. Bhattacharyya that it is not clear who considered the report as it has not been stated in the affidavit in so many words, we are unable to agree with Mr. Though one technical point was raised by Mr. Bhattacharyya that it is not clear who considered the report as it has not been stated in the affidavit in so many words, we are unable to agree with Mr. Bhattacharyya that it would be incumbent on the part of the Central Government to mention the name of the particular officer or the particular authority who considered the detention order of the detenu on receipt of the report and other connected materials from the State Government. What we have noticed is that though the State Government strictly complied with the provisions of Sec. 3(5) of the Act but it was not considered in a manner it ought to have been considered by the Central Government. It is not even mentioned in the affidavit that the authority which considered the detention order also considered the grounds of detention. As it appears from the affidavit that the consideration was made only on the basis of the report or the facts of detention and not on scrutiny of the grounds of detention and other particulars as sent by the State Government. We wanted Mr. Ali to assist us from the records as to whether the grounds of detention was also considered by the authority of the Central Government. We also wanted to examine the records maintained by the Central Government in connection with the detention of the petitioner. But the learned counsel could not produce the records of the case. Therefore, we are not in a position to say or to hold that the report along with grounds were considered (along with the grounds of detention) by the Central Government. If that be the position, can it be held that the Central Government applied its mind properly to consider the order of detention passed on the petitioner? The decisions cited before us by Mr. Bhattachrayya are on the point that it is obligatory on the part of the Central Government to consider the order of detention on the basis of the report, the grounds of detention and other connected materials. We are not in a position to draw any inference from the affidavit on this point which is conspicuously missing in para 3 of the affidavit being the reply made by the Central Government to the contentions raised by the petitioner. 6. We are not in a position to draw any inference from the affidavit on this point which is conspicuously missing in para 3 of the affidavit being the reply made by the Central Government to the contentions raised by the petitioner. 6. While dealing with the present case we would like to observe that we are bound by the Full Bench decision of this Court rendered in Hitendra (1984 Cri LJ 1558) (supra). From the aforesaid observation of the Supreme Court in Sabir Ahmed it is clear that the report received under Sec. 3 of the Act together with the grounds of detention and other particulars or any communication received from the detenu must be considered with reasonable expedition. In Civil Rule (HC) No. 40/84 disposed of on 30-1-85 : (Reported in (1985) 2 Gauhati LR 1) this Court held : - "................. In our opinion, the term 'consideration' in the present context means perusal with a purpose followed by a decision. In so far as the decision is concerned, the Central Government may take any one of the four possible courses i.e., either to revoke, or modify, or not to revoke or modify the order. No reason may be required to be given in taking a decision." However, casual or mechanical exercise of ower is no exercise of the power of the Central Government under Sec. 3(5) read with Sec. 14(1) of the Act. Relying on the observation of the Supreme Court in Sat Pal v. State of Punjab : AIR 1981 SC 2230 : 1981 Cri LJ 1867), we may conclude that the Central Government is duty bound to examine the report together with the grounds of detention and other particulars, if there be any, and deliberate over the question as to whether the detaining authority of the State Government exercised the power of detention properly or improperly. There is no averment in the affidavit of respondent 2 as to whether report together with the grounds of detention, etc. were considered by the Central Government while it mentioned only about the report but not about grounds of detention or other material particulars, if there were any. There is no averment in the affidavit of respondent 2 as to whether report together with the grounds of detention, etc. were considered by the Central Government while it mentioned only about the report but not about grounds of detention or other material particulars, if there were any. It is stated specifically in para 11 of the affidavit-in-opposition filed by respondents 1 and 3 that "the said order of approval to the detention order accorded by the State Government along with the copies of the detention order and the grounds of detention were forwarded to the under Secretary to the Government of India, Ministry of Home Affairs N.D. vide Memo No. PIA. 40/85/12A dated 29-1-85 within 7 days as required under Sec. 3, sub-sec. (5) of the National Security Act. The deponent is confirmed that the order of detention is passed as per law and as such the same order is valid." Therefore, it is clear that the State Government did comply with the procedural requirement and followed the provision's of Sec. 3(5) of the Act truly and faithfully. In absence of record it would not be possible to conclude from bare perusal of the affidavit of respondent 2, which has not been made very clear on this point, that due consideration was given by the Central Government to come to conclusion as required under Sec. 14 of the Act, in the case of the petitioner. As observed in Hitendra (supra) the Court is sentinel qui vive of freedom of the individual; it is an ensuring observance with the requirements of law, and even where requirement of a law is breached in the slightest measure, the Court will not hesitate to strike down the order of detention or to direct release of the detenu even though detention may have been valid till the breach occurred. This was what exactly observed by their Lordships of the Supreme Court in Icchu Devi Choraria v. Union of India, AIR 1980 SC 1983 . 7. The learned Central Government Standing Counsel could not produce the record for our perusal and as such it would not be possible for us to presume anything without going through the record. It is not a case where a benefit of doubt can be granted to the Central Government against the detenu. 7. The learned Central Government Standing Counsel could not produce the record for our perusal and as such it would not be possible for us to presume anything without going through the record. It is not a case where a benefit of doubt can be granted to the Central Government against the detenu. It is an executive action and one must feel that there has been a due exercise of power as required under Sec. 14(1) of the Act. For the foregoing reasons we are constrained to hold that in view of the failure of the Central Government to exercise its power properly on the basis of the report, grounds of detention and other particulars sent to it under Sec. 3(5) read with Sec. 14(1) of the Act, the procedural safeguards of the detenu were breached and the detention order is liable to be set aside on this ground alone in view of the decision in Hitendra, (1984 Cri LJ 1558) (Gau.) (FB) (supra). In the result the petition is allowed and the impugned order of detention is quashed. The detenu is set at liberty forthwith, if not required in any other case. R.K. MANISANA SINGH, J.:- I agree. Petition allowed.