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1999 DIGILAW 297 (GAU)

Lipika Roy v. State of Assam and Ors.

1999-09-01

BRIJESH KUMAR, D.N.CHOWDHURY

body1999
D. N. Chowdhary, J.- The impugned order of detention dated 10.4.99 passed by the District Magistrate, Dhubri in exercise of powers conferred under sub-section (2) of section 3 of the National Security Act, 1980, has been assailed in this Habeas Corpus petition. The detenu Shri Prasanta Kumar Roy @ Jitu Sankar @ Samsul Haque @ Jayanta Sirigh was ordered to be detained by the District a Magistrate, Dhubri in exercise of powers under section 3 (2) of the National Security Act, 1980 by the aforesaid order. The order of detention states that the above order is passed with a view to prevent the detenu from acting in any manner prejudicial to the maintenance of public order. At the time of his detention the detenu was lodged at Dhubri Jail in connection with number of criminal cases against the detenu. The grounds of detention as required under the law were & furnished to the detenu. The detenu submitted his representation to the State Govt on 26.4.1999 through the Superintendent of District Jail, Dhubri. The detenu in his representation raised numerous grounds of attack against his order of detention. In the affidavit of the respondent No.l the State of Assam and the respondent Nd4 the Superintendent of District Jail, Dhubri it was stated that on the same day the respondent No.4 forwarded the representation to the Govt by registered post. The representation reached the State Govt on 3.5.99. The representation was finally rejected by the appropriate authorities on 12th May, 1999. The formal notification of the rejection of the representation was issued on 14.5.99. The State Govt also forwarded a copy of the representation to the Central Govt by Speed Post on 4.5.99 which was also rejected by the Central Govt on 4.6.99. 2. On behalf of the detenu Mr. DK Mishra, learned Senior Advocate has raised various grounds of attack against the order of detention. The counsel very strenuously urged that the grounds of detention are vague, nonexistent and suffers from the vice of non application of mind. The counsel further urged that there has been inordinate delay in disposing of the representation made by the detenu and as such there has been a breach of Article 22 (5) of the Constitution. Mr. Mishra, the learned senior counsel urged that the detention order is liable to be struck down on this short ground alone. 3. The counsel further urged that there has been inordinate delay in disposing of the representation made by the detenu and as such there has been a breach of Article 22 (5) of the Constitution. Mr. Mishra, the learned senior counsel urged that the detention order is liable to be struck down on this short ground alone. 3. The respondents on the other hand, pleaded and contended that the detenu as a member of ULFA, an organisation declared as unlawful, indulged in violent activities and directly involved in bomb explosions, killing of police personnels and others. The respondents also urged that the full particulars regarding date, time and place and a few of the instance of anti-national activities were clearly cited in the grounds of detention. The respondents further stated that respondents were fully aware of the fact that the detenu was in custody at the time of passing of the detention order and despite that the said order of detention was passed keeping in mind all aspects of the matter. 4. Numerous grounds have been raised in this writ petition assailing the said order of detention. We are, however, not inclined to go into all these questions raised since this petition can be disposed of on the limited ground of violation of the rights guaranteed under Article 22 (5) of the Constitution of India. 5. We are of the view that the contention raised by Mr. Mishra that there has been a delay in disposal of the representation of the petitioner and the said delay has not been properly explained and therefore the continuous detention of the detenu should be held to be illegal as violative of Constitutional guarantee under Article 22 (5). In that view of the matter we are not inclined to refer in detail the other contentions raised by the petitioner. We, however, make it clear that prima facie we are satisfied that the grounds are neither vague nor devoid of particulars nor the same can be said to be non-existent. As we are striking down the orders for the reasons stated herein below, we feel it unnecessary to probe this aspect of the matter. From the admitted facts it transpires that the detenu made his representation to the State Govt on 22.4.99 through the Superintendent of District Jail, Dhubri. As we are striking down the orders for the reasons stated herein below, we feel it unnecessary to probe this aspect of the matter. From the admitted facts it transpires that the detenu made his representation to the State Govt on 22.4.99 through the Superintendent of District Jail, Dhubri. The said representation was forwarded to the Govt by registered post on the same day which was ultimately received by the Govt on 3.5.99. The State Govt on receipt of the representation forwarded the copy of the representation to the Govt of India on 4.5.99 as well as to the Advisory Board which was scheduled to be held on 7.5.99. After meeting of me Advisory Board held on 7.5.99 the file was put up before the Deputy Secretary to the Govt of Assam, Political (A) Department and it was placed before the Secretary on the same day. The Secretary put up the matter before the Chief Minister and on consideration of the same the representation was rejected on 12.5.99. From the affidavit of the State Govt it transpires that the representation of the detenu was forwarded to the Central Govt which was disposed of by the Central Govt on 8.6.99. The Central Govt did not prefer to file any affidavit nor any record has been produced before this Court. Learned Senior Central Govt Standing Counsel has, however, supported the order of detention. 6. The Supreme Court in Jaynarayan Sukul vs. State of West Bengal, reported in AIR 1970 SC 675 , after reviewing its earlier decision observed: 18. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Govt is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is, too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities. 19. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities. 19. No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a Constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Govt has disposed of the case as expeditiously as possible for otherwise in the words of Shelat, J, who spoke for the Court in the case of Khairul Haque, WP No. 246 of 1969. D. 10.9.1969 (reported in 1969 (2) SCWR 529) (supra) “it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purposes and meaning.” 20. Broadly stated, four principles are to be followed in regard to representationof detenu. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation by the Advisory Board, Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but it has to be remembered that the Govt has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Govt is to exercise Us opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Govt will release the detenu the Govt will not send the matter to the Advisory Board. If however the Govt will not release the detenu the Govt will send the case along with the detenu's representation to the Advisory Board. If the appropriate Govt will release the detenu the Govt will not send the matter to the Advisory Board. If however the Govt will not release the detenu the Govt will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Govt will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Govt may still exercise the law laid down in the aforementioned decision still holds the field. 7. From the facts as indicated above, it appears that it took seven days to traverse 295 kilometers from Dhubri to Dispur for the representation to arrive at the Secretariat table. Neither the District Administration nor the State Govt has indicated as to why the representation against the order of detention could not be sent to the State Govt promptly by any other means except relying on postal service. The representation was received on 3.5.99 which awaited disposal till 12.5.99. Forwarding of a copy of the representation to the Advisory Board ought not to have prevented the authority in its disposal of the representation which is required to be disposed of at the earliest instance in conformity with the provisions of Article 22 (5) of the Constitution. Similarly, there is no justifiable reason assigned by the Central Govt in not disposing of the representation of the petitioner dated 22.4.99 prior to 18.6.99. 8. Mr. BC Das, learned Additional Senior Govt Advocate appearing on behalf of the respondent however, referring to the grounds of detention as well as the fact situation urged the Court to take note of the gravity of the situation. We are, however, unable to take serious note of the submissions since the matter pertains to individual liberty of a citizen which has been guaranteed by the Constitution of India. History of personal liberty is largely the history of insistence of performance of the procedure. The only guarantee of personal liberty of a person is that a person can only be deprived of his liberty by adhering to a procedure established by law. Public order is one of the facet of the social existence. There are also some other precious and significant standards and principles which are equally valued by our Constitutional system. The only guarantee of personal liberty of a person is that a person can only be deprived of his liberty by adhering to a procedure established by law. Public order is one of the facet of the social existence. There are also some other precious and significant standards and principles which are equally valued by our Constitutional system. Personal liberty is one of this aspect of life which has been given adequate importance in our system, which can only be taken away by the procedure established by law. Article 22 (5) of the Constitution envisages that the appropriate authority is duty bound to give opportunity to the detenu to make representation and consideration of the representation of the detenu as early as possible. A representation submitted to the authority is required to be considered with utmost despatch. The explanation submitted by the authorities are far from satisfactory. We accordingly hold that the detention of the petitioner is illegal. 9. In the result, the writ petition is allowed. We accordingly order release of the detenu Sri Prasanta Kumar Roy @ Jitu Sankar @ Samsul Haque @ Jayanta Singh, unless he is required in connection with any other case. 10. The rule is made absolute. We make no order as to cost.