Boloram Kalita v. State of Assam — 1997 DIGILAW 112 (GAU)

V. Dutta Gyani, C.J. (Acting)— By this petition under Article 226 of the Constitution, the detenu-petitioner seeks to challenge the detention order dated 10.4.97, Annexure A, passed by the District Magistrate, Kamrup, Guwahati, the respondent No. 4, in exercise of power conferred under section 3 (2) of the National Security Act 1980, for short the Act, and prays for issuance of a writ of Habeas Corpus. 2. The detention order, Annexure A, is supported by the grounds of detention annexed to the detention order. 3. Mr. N. Dutta, learned counsel for the petitioner has assailed the detention and challenged the detention order on the following grounds : (i) that the subjective satisfaction arrived at by the detaining authority is vitiated for non application of mind to basic vital relevant facts, such as, the detenu being in jail and the feasibility of his successful prosecution; (ii) that there was delay in disposal of representation submitted by the detenu and the same has not been explained by the respondents in their affidavit-in-opposition; (iii) that the basic facts, material and documents constituting the grounds of detention having not been furnished to the detenu, he has been deprived and denied of his valuable right of making an effective representation against his detention. 4. Learned Additional Advocate General appearing for the respondent State has, on the other hand, maintained that the order of detention was passed by the detaining authority after due application of mind or considering vital facts. In face of the amount of time taken for disposal of the representation, firstly, there was no delay and secondly, the time consumed for such disposal is amply explained, thirdly, as for basic facts constituting the grounds, it was urged that all mat material considered by the detaining authority were in fact supplied to the detenu. There was no violation of section 8 of the Act and all other procedural safeguards were also complied with. Therefore, the impugned order of detention does not call for any interference. 5. Learned Standing Counsel for the Union of India submitted that the report of detention as made by the State Govt under sub-section (5) of section 3 of the Act was promptly attended to and there was no ground found for interference with the detention order. The representation made by the detenu was received and promptly attended to and there was no delay in its disposal. 6. The representation made by the detenu was received and promptly attended to and there was no delay in its disposal. 6. It is an admitted position that the detenu submitted representation on 22.4.97 against the impugned order of detention to the detaining authority. In paragraph 15 of the petition he has complained of undue delay. Now adverting to the affidavit sworn by the detaining authority, all that he has stated is that the representation of the detenu was received by him through Superintendent of District Jail and was sent to the State Govt forthwith without specifying the date of receiving the same, and it was placed before the Advisory Board on 26.4.97. The Deputy Secretary, Political Department to the Govt of Assam in his affidavit in paragraph 4 has stated: "That a copy of the representation dated 22.4.97 was received by the State Govt on 26.4.97 and after due consideration at the appropriate level rejected the same. A copy of the rejection order was sent to the Superintendent, Dist Jail, Kamrup for service on the detenu, and it was also sent to the Ministry of Home Affairs, New Delhi vide Memo No.PLA 242/97/44A dated 7.5.97. The State Govt vide PLA.242/97/37 dated 30.4.97 forwarded a copy of the representation to the Ministry of Home Affairs, New Delhi." According to him, the representation was sent to the Central Govt on 7.5.97, the date on which it was rejected by the State Govt. A copy of the rejection order dated 7th May, 1997 has been filed to the affidavit as Annexure 2. There is not a word by way of explanation as to why this delay has been caused in disposal of the detenu's representation admittedly submitted on 22.4.97. It is not the actual number of dates taken for disposal, what really matters is, the concerned shown by the authorities for disposal of such representation, how it was processed from stage to stage. In absence of any explanation whatsoever on the part of the respondents, the grievance made by the petitioner about delay in disposal of the petition, cannot be lightly brushed aside. 7. Another ground raised by the learned counsel which relates to subjective satisfaction. In absence of any explanation whatsoever on the part of the respondents, the grievance made by the petitioner about delay in disposal of the petition, cannot be lightly brushed aside. 7. Another ground raised by the learned counsel which relates to subjective satisfaction. The petitioner has taken a specific ground in paragraph 13 that the impugned order of detention was passed in a most casual and mechanical manner without any application of mind to the vital fact that the detenu was already in jail when the detention order was passed. Both the impugned order of detention as well as the grounds of detention, Annexure A and B are totally silent on the point although a feeble attempt has been made by the detaining authority to show that he was aware of the fact, so as to save his subjective satisfaction from the vice of non application of mind. 8. The District Magistrate in reply to paragraph 23 to quote in his own words has stated - "That with regard of the statements made in para 23 of the writ petition the deponent states that it was in the knowledge of the detaining authority that the detenu was already in jail and therefore, the order of detention was served upon the detenu hi jail." 9. What does the above statement indicate ? Even if hd knew the fact that the detenu was in jail, it was only for the purpose of service of order of detention that he considered the fact not for his subjective satisfaction to $ass an order under section 3 (2) of the Act. Of what good such awareness is when it is not used for the purpose it ought to have been used. 10. Learned Additional Advocate General however invited attention to para 9 of the affidavit sworn by the District Magistrate, which reads as under : "That with regard of the statements made in para 29 of the writ petition the deponent states that the order of detention was passed after due application of mind and after considering carefully all the aspects of the matter on clear specific and definite grounds based on materials on record. After consideration of the facts and materials the deponent was satisfied that in case the detenu was released on bail in connection with the criminal cases there is every possibility that the detenu may continue to indulge in such kind of activities referred to in the grounds prejudicial to the maintenance of public order." 11. Let me turn to para 29 of the petition, what does it contain ? It is quoted below: "That your petitioner states and contends that the action of the Union of India, the respondent No.2, suffers from the vices of non application of mind and/or non consideration of the report of the State Government which makes the order of detention illegal and invalid. The petitioner states that the action of the respondents in detaining him on the basis of such grounds of detention violates the fundamental right under Article 19 (1) (d) of the Constitution of India." 12. The allegations as made concern Union of India and the non application of mind relates to non consideration of report of the State Govt which render the v order of detention illegal. It is in reply to this allegation that the District Magistrate who has absolutely nothing to do with the consideration of the report by Union of India, is making a statement as he did in para 9 of the affidavit. Is there any application of mind on his part while swearing the affidavit, let alone while passing the impugned order. It merely shows with what seriousness the affidavits are filed even in such matters like Habeas Corpus. 13. Ignoring the above infirmities yet taking the above quoted statement as made in para 9 of the affidavit on its face value, what does it indicate ? The detaining authority considering the eventuality that the detenu might be released on bail, and might indulge in activities prejudicial to the maintenance of public order, he passed the impugned order of detention. Does it indicate that there was an overwhelming compelling necessity to pass the impugned order of detention ? in face of the fact that the detenu was already in jail and was this compelling necessity present to the mind of the detaining authority at tide time of passing the impugned order ? Does he say so in his affidavit ? In fact, it should be reflected in the order or grounds of detention itself. in face of the fact that the detenu was already in jail and was this compelling necessity present to the mind of the detaining authority at tide time of passing the impugned order ? Does he say so in his affidavit ? In fact, it should be reflected in the order or grounds of detention itself. Even the affidavit sworn, does not reflect the compelling necessity of passing the detention order in face of the fact that the detenu was already in jail. Had he move for grant of bail ? Was there any material before the detaining authority to suggest that he was likely to move for grant of bail. In that event taking into consideration the seriousnes of charges and the number of cases as many as seven as enumerated by the District Magistrate in the grounds of detention, Annexure B registered at different Police Stations against the detenu under section 365, 392, 447, 506, 302, 379, 147, 148, 302-149, 396, 120B, 121, 122, 364, 302 IPC coupled with other offences punishable under section 25, 27 of the Arms Act, under section 10, 13 of Prevention of Unlawful Activities Act, howsoever liberally construed, the provisions relating to bail, was there any remote chance of the detenu being released on bail ? The matter does not rest here. Just have a look at the verification of the affidavit sworn by the District Magistrate. It is quoted below : "That the statements made in this affidavit and in paragraphs 1,2,3,4 and 8 and 9 are true to my knowledge and those made in paragraphs 3, 5, 6 and 7 are true to my information derived from records and the rest are my humble submissions before this Hon'ble Court." 14. It is significant to note that after 'paragraphs 1, 2, 4 and 8, 'and 9' is introduced and added with but surprisingly enough the deposed has not even bothered to initial it the ink is apparently different from mat of his signature. It is this very paragraph 9 of the affidavit which is of crucial importance to the point under discussion. 15. Although the typed portion of the affidavit reads 'Magistrate First Class', the affidavit in fact has been sworn before an Executive Magistrate, Guwahati on 16.5.97 although filed m the Court on 21.5.97. It is this very paragraph 9 of the affidavit which is of crucial importance to the point under discussion. 15. Although the typed portion of the affidavit reads 'Magistrate First Class', the affidavit in fact has been sworn before an Executive Magistrate, Guwahati on 16.5.97 although filed m the Court on 21.5.97. This affidavit contains five sheets while the first four sheets bear serially typed page No., the last sheet does not bear any such manner and it is this last sheet containing the verification paragraph 10, which is attested by the Executive Magistrate. As a matter of fact all the pages must be duly attested and bear the round seal, which in the instant case is only on the last page. Even the name of the deponent is inserted in the blank space left on the front page. 16. Substance apart, what is the sancity of such an affidavit ? Whether the Executive Magistrate who attested the affidavit was aware of the crude insertion of 'and 9', in the verification ? If so why did he not ask the deponent to put his initials there ? Whether the deponent was in fact present before him ? Such affidavits hardly carry any conviction. It is not a mere formality. The affidavits to be used in the Court must invariably be sworn and attested in the Court, unless for some justifiable reason it is impracticable to do so. What prevented the District Magistrate who hardly at distance of a furlong or two from the High Court, to swear the affidavit in this Court ? We do not approve of such practice although in the instant case we have considered the affidavit for whatever worth it is. What prevented the District Magistrate who hardly at distance of a furlong or two from the High Court, to swear the affidavit in this Court ? We do not approve of such practice although in the instant case we have considered the affidavit for whatever worth it is. It is with such a faulty and discrepant affidavit both in form and substance that a very vital point, is sought to be substantiated goes to the root of the matter, the subjective satisfaction based on due application of mind to relevant facts, including the fact that detenu was already in jail in connection with very serious charges, like murder, dacoity, sedition, waging war against the established Govt, rioting and unlawful activities, criminal conspiracy and unlawful possession of Arms, not in one or two cases but in seven, what was the chance for such an accused being released on bail, as a matter of law and fact, this application of mind must be reflected in the detention order itself at any rate in the grounds of detention itself, whereas in the case at hand it is missing from both and the attempt made at explaining the same in the counter affidavit, as seen above, is too laconic and discrepant to inspire any confidence, it must be held that there was no application of mind on the part of the District Magistrate passing the impugned order of detention, therefore, the subjective satisfaction claimed stands vitiated, rendering the resultant order of detention bad in law. The Supreme Court in M. Ahmed Jutty vs. Union of India, (1990) 2 SCC 1 , has held that, if the detenu is already in jail the grounds of detention are to show that awareness of the fact, otherwise there would be non application of mind and the detention order would be vitiated. A mere apprehension of detenu's release on bail, and his resort to anti-national, anti-social activities again has been held to be not enough in Sheikh Hussain vs. Commissioner of Police, Ahmadabad, AIR 1989 SC 2274 . 17. A mere apprehension of detenu's release on bail, and his resort to anti-national, anti-social activities again has been held to be not enough in Sheikh Hussain vs. Commissioner of Police, Ahmadabad, AIR 1989 SC 2274 . 17. Following the principles laid down by the Constitution Bench, in Rameshwar Shaw vs. District Magistrate, Burdwan, AIR 1964 SC 334 as reiterated and relied on by the Supreme Court in N. Meera Rani vs. State of TN, AIR 1989 SC 2027 , it can safely be held that the impugned detention order was passed without any application of mind to the vital fact that the detenu was already in jail, the impugned order is liable to be quashed on this short ground alone. 18. The other points as raised relate to delay in disposal of representation and non supply of basic material facts constituting the grounds of detention to the detenu. 19. As for delay in disposal of representation it is an admitted position that it was submitted on 22.4.97. The District Magistrate is as vague as could be in his counter affidavit para 6 which reads as under: "That with regard to me statements made in para 12 and 15 of the writ petition the deponent states that the representation of the detenu which was received by the District Magistrate through the Superintendent of District Jail, Guwahati was sent to the State Govt forthwith and the State Govt in turn forwarded the representation to the Central Govt, and the representation was also placed before the Advisory Board in its sitting on 26.4.97." 20. It is significant to note that no date of its receipt, forwarding, consideration and rejection is given by the detaining authority. 21. The position that emerges from the affidavit sworn and filed by the Deputy Secretary, Political Department, Govt of Assam is that it was received by the State Govt on 26.4.97 (see para 4) and was rejected on 7.5.97 vide Annexure II filed along with the counter affidavit. What is significant to be noted here is that the representation was considered by the State Govt, only after the Advisory Board gave its report on 28.4.97 (see para 5 of the affidavit). 22. The law is very clear on the point. Consideration of the representation by the appropriate Government, or authority is independent of reference to Advisory Board. What is significant to be noted here is that the representation was considered by the State Govt, only after the Advisory Board gave its report on 28.4.97 (see para 5 of the affidavit). 22. The law is very clear on the point. Consideration of the representation by the appropriate Government, or authority is independent of reference to Advisory Board. Postponing its consideration, like the Advisory Board considers the case and the representation submitted by the detenu and gives its opinion is wholly unjustified and improper. 23. The law enunciated by the Apex Court on the point is very clear. The requirement of prompt disposal of representation has been repeatedly reiterated by the Apex Court in umpteen cases. Of course, it would depend on the facts of each case whether the delay in disposal of the representation is properly explained or not. What is really required is that there should not be any indifference or callousness in consideration and disposal of the representation; if no satisfactory explanation has been given, or delay is found to be wilful or wanton or supinely indifferently, it would be in breach of constitutional mandate of Article 22 (5). Liberty of a person guranteed under Article 21 of the Constitution is a cherished right and it can be deprived only in accorance with law. (See l.Durga Pada Ghosh vs. State of West Bengal, (1972) 2 SCC 656 . 2. Aslam Ahmed Zahire Ahmed Shaik vs. Union of India & others, (1989) 3 SCC 277 .3. B. Alamely vs. State of Tamil Nadu & others, (1995) 1 SCC 306 . 24. So far as non supply of basic material facts, is concerned, it is not in dispute that the same had not been supplied to the detenu. There are as many as seven enumerated criminal cases registered in different police stations against the detenu. Indisputedly, the copies of FIRs and other documents relating to these offences have not been supplied to the detenu and they constitute the basic facts of the grounds of detention. Learned Additional Advocate General calling in aid section 5 A of the Act submitted that if the grounds are severally the order of detention can still be maintained and sustained on other grounds. This argument cannot be accepted for the simple reason that section 5 A is not intended to whital down the provisions of section 8 of the Act. Learned Additional Advocate General calling in aid section 5 A of the Act submitted that if the grounds are severally the order of detention can still be maintained and sustained on other grounds. This argument cannot be accepted for the simple reason that section 5 A is not intended to whital down the provisions of section 8 of the Act. In the circumstances, it cannot be said that the detenu was furnished with all the basic materials constituting the grounds of detention as contained in Annexure B. He has thus been deprived of the opportunity of making an effective meaningful representation. 25. The last point which goes to the root of the matter, hitting at the source of authority of the District Magistrate, in passing the impugned order, and probably the most important point, as taken in paragraph 7 of the petitioner's petition. The said paragraph 7 extracted below : "7. That the petitioner begs to state that no order has been passed by the State Government under section 3 (3) and 3 (4) of the Act and in any case no such order has been communicated to the petitioner." 26. Significatingly enough this has not been pontroverted by the State Govt nor the District Magistrate. A mere reading of section 3 of the Act would reveal that the right to exercise the power of detention under sub-section (3) vests either in the Central Govt or in the State Govt. Sub-section (3) merely enables and empowers the State Govt to delegate that power of detention to the District Magistrate or Commissioner of Police of a particular area, of course fulfillment of conditions enumerated therein, namely, (i) an evaluation of the prevailing circumstance or circumstances likely to prevail in any area, (ii) satisfaction of the State Govt that it is necessary to confer power on the District Magistrate, or the Commissioner of Police, and (iii) there must be an order in writing directing the District Magistrate or Commissioner of Police to exercise such power for a period as may be specified in the written order and the above period cannot in first instance exceed 3 months. These conditions must be fulfilled by the State before it confers power on the District Magistrate. These conditions must be fulfilled by the State before it confers power on the District Magistrate. What the petitioner has challenged that there was no such order in writing by the State Govt conferring power of detention on the District Magistrate, nothing was easier for the State Govt that to place the order in writing, but that has not been done. Let alone production of the documents even the averments made by the petitioner has not been controverted, although it goes to the root of the matter, Unless there is an order in writing, the District Magistrate, Kamrup could not have legally passed the impugned order which in absence of any pleading of denial on the part of the State-respondents must be held to be wholly without jurisdiction. It is unfortunate that both the State Govt as well as the District Magistrate have taken the allegation very lightly without realising the serious legal consequences of such apathetic omission. 27. In view of the foregoing discussions, the petition deserves to be allowed, it accordingly allowed. The impugned order of detention is liable to be set aside and quashed, it is accordingly quashed. The detenu be set at liberty forthwith, unless otherwise wanted in some other case or cases.