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Gauhati High Court · body

2000 DIGILAW 108 (GAU)

K. Ngalawon v. Union of India

2000-03-14

A.K.PATNAIK, BRIJESH KUMAR

body2000
Brijesh Kumar, C. J.-This petition has been preferred by the petitioner Smti K. Ngalawon challenging the detention of Shri Ningkhalam Khamarang Shimray, who has been detained under the orders passed by the State Govt of c Nagaland under sub-sections (1) and (2) of section 3 of the National Security Act, 1980. The petitioner is the wife of the detenu. The prayer has been made to quash the order of detention. 2. We have heard Shri DK Mishra, learned counsel appearing for the petitioner and Shri AR Borthakur, learned Advocate General for the State of Nagaland. 3. The order of detention passed under sub-sections (1) and (2) of section 3 of the National Security Act, 1980 dated 7th December, 1999 has been annexed as Annexure 2 to this petition. A copy of the grounds of detention of the same date has also been annexed along with the petition. The ground on which the order of detention has been passed is that the activities of the detenu as contract man, collaborator and sympathiser of NSCN (an unlawful association) were prejudicial to the defence of India, security of the State of Nagaland and maintenance of public order. The particulars hawing bearing on the ground have also been attached with the Schedule. The facts which are enumerated in the Schedule are to the effect that the Nagaland Police has registered a criminal case under different sections of the Penal Code and the Anns Act, namely, under section 302/307/120B IPC etc. It further indicates that in connection with the above case search operations were carried out in which incriminating material was recovered showing that the detenu had been involved in abetting conspiracy, committing subversive activities and criminal activities and making collection for banned unlawful association. The detenu was served with the order and the ground of detention in jail on 8.12.99. 4. The detenu preferred a representation dated December, 20, 1999 addressee! to the Secretary to the Govt of Nagaland, and another representation dated 21.12.99 addressed to the Home Commissioner, Govt of Nagaland with a copy to the Joint Secretary (NSA), Govt of India, Ministry of Home Affairs, New Delhi. There is no dispute about the fact that those representations preferred by the detenu, as indicated above, have been disposed of on 27.12.99. There is no dispute about the fact that those representations preferred by the detenu, as indicated above, have been disposed of on 27.12.99. The grievance, however, is that the representation of the detenu was not forwarded to the Advisory Board as a result of which the same was not considered by the Advisory Board, which is a clear violation of the provisions contained under Article 22 (5) of the Constitution of India. The other ground on which, it is submitted the order of detention is bad is that the material relevant for the purposes of arriving at the satisfaction by the detaining authority has not been supplied to the detenu. Another submission which has been advanced is that it is not clear as to whether (he representation preferred by the detenu was considered by the same authority, who took decision for detention of the detenu or it was a considered by some other authorities. It is submitted that the order of detention has been passed by the State Govt but which functionary had taken the decision to detain the detenu under the provisions of the National Security Act is not clear. 5. We may now consider the first submission made on behalf of the petitioner. As indicated earlier the detention order was passed on 7.12.99 and was served upon the detenu in jail on 8.12.99. The detenu made two representations one on December 20, 1999 and the other on 21.12.99 addressed to the Secretary to the Govt of Nagaland and the other one to the Home Commissioner, Govt of Nagaland. Both the representations had been disposed of on 27.12.99. The respondents had referred the matter to the Advisory Board on 15.12.99. By that time the representation of the detenu was not preferred by him, it was received by the Govt on 21.12.99. Hence the representation could not be forwarded to the Advisory Board on 15.12.99. The Advisory Board in its turn considered the matter on 11.01.2000. On behalf of the detenu, it is emphatically urged that there being no representation before the Advisory Board as preferred by the detenu, the same was not considered; it violates the right of the detenu about his representation liable to be considered by the Advisory Board. The Advisory Board in its turn considered the matter on 11.01.2000. On behalf of the detenu, it is emphatically urged that there being no representation before the Advisory Board as preferred by the detenu, the same was not considered; it violates the right of the detenu about his representation liable to be considered by the Advisory Board. Learned counsel for the respondents has put forth the same plea as indicated earlier that since the representation of the detenu was received after the matter had already been e forwarded to the Advisory Board, there was no occasion for placing the repre­sentation before the Advisory Board. The fact as to whether the representation of the detenu was before the Advisory Board or not, we may refer to the report of the Advisory Board, a copy of which has been annexed along with the additional affidavit filed on behalf of the petitioner. A perusal of the report of the Advisory Board indicates that the detenu had informed the Advisory Board about having preferred the representation but had complained that he was not aware of the fate of his representation. The Advisory Board in that context thus observed. Representation, if any, was-not placed before us. Therefore, the fact that the representation preferred by the detenu was not placed before the Advisory Board cannot be disputed. As a matter of fact no dispute has been raised in that regard on behalf of the respondents. On the other hand, as indicated above, the plea is 8 that it could not be forwarded to the Advisory Board since it was received after the respondents had referred the matter to the Advisory Board. 6. The main question that falls for consideration is as to whether the detenu could be deprived of his right of consideration of his representation by the Advisory Board merely on the ground that the representation was received by the State Govt after it had forwarded the matter to the Advisory Board, or not. So far .the factual position is concerned, there is no denial that the representation was received by the respondents on 21.12.99. The Advisory Board considered the matter on 11.01.2000. So far .the factual position is concerned, there is no denial that the representation was received by the respondents on 21.12.99. The Advisory Board considered the matter on 11.01.2000. There was enough time for the respondents to forward the representation of the petitioner to the Advisory Board, before the Advisory Board had considered the matter; But that was not done under the impression that the representation was not to be forwarded to the Advisory Board after the matter had already been referred by the State Govt to the Advisory Board. So far the nature of the right of the detenu in having his representation considered by the Advisory Board is concerned, it has been held in several cases by the Apex Court that it is independent of the right of the representation being considered by the detaining authority. The dual right is there to get the representation considered by the detaining authority as well as by the Advisory Board independent of each other. In this connection certain decision as referred to by the learned counsel for the petitioner may be cited (1969) 3 See 400 (Pankaj Kumar Chakraborty & others vs. the State of West Bengal) wherein it has been observed that clauses (4) and (5) of Article 22 clearly provide that there is a dual obligation on the appropriate Govt and a dual right in favour of the detenu, namely, (I) to have his representation irrespective of the length of detention considered by the appropriate Govt, and (2) to have once again that representation in the light of the circumstances considered by the Board before it gives its opinion. This observation made in paragraph 10 of the judgment clearly indicates that where a representation is preferredby the detenu, it vests dual right of consideration of the representation one by the Govt and the other by the Advisory Board. It also comes out from the observation made by the Hon'ble Supreme Court that the representation is to be considered by the Board before it gives its opinion. In the present case, that the Board met to consider the case of the detenu on 11.01.2000, The representation was received on December 21,1999. It was obviously to be considered fey the Board before it gave its opinion. In (1970) 1 SCC 219 . In the present case, that the Board met to consider the case of the detenu on 11.01.2000, The representation was received on December 21,1999. It was obviously to be considered fey the Board before it gave its opinion. In (1970) 1 SCC 219 . (Jayanarayan Sukul vs. State of West Bengal) it has been clearly held in paragraph 20 of the judgment that first, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the same as early as possible. Secondly, the consideration of the representation (if the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the considera­tion of the representation of the detenu by the Advisory Board. In AIR 1972 SC 438 (Prof Khaidem Ibocha Singh vs. The State of Manipur), it has been held that under Article 22 (5) of the Constitution there is a dual obligation on the appropriate Govt and a dual right in favour of the detenu, namely, to have his representation considered by the appropriate Govt and to have once again that representation considered by the Advisory Board before it gives its opinion: These two have been held to be two distinct obligations of the State Govt and this right to have the representation considered by the Advisory Board is governed by Article 22 (5) of the Constitution. In this connection, we may also refer to the case reported in (1989) 4 SCC 751 (Ahmed Hussain Shaikh Hussain @ Ahmed Kalio vs. Commissioner of Police). In this case the Court made certain observations in regard to the procedural safeguard which are made available to the detenu in the matters of detention. Paragraph 8 of the judgment may be quoted below: “8. The satisfaction of the detaining authority is not open to judicial review but as has been pointed out by several Constitution Bench decisions of this Court a citizen is entitled to protection within the meaning of Article 22 (5) of the Constitution a of the procedural guarantees envisaged by law. The Court frowns upon any deviation or infraction of the procedural requirements. That in fact is the only guarantee to the citizen against the State's action of preventive detention.” This case was however considered in a bit different back ground. The Court frowns upon any deviation or infraction of the procedural requirements. That in fact is the only guarantee to the citizen against the State's action of preventive detention.” This case was however considered in a bit different back ground. It appears that one day's delay occurred in forwarding the representation of the detenu to the Advisory Board. The High Court took it as infraction of the mandatory provision that the representation should have been forwarded within 21 days. The order of the High Court was set aside and the-fact which was noticed was that the detaining authority had to place the matter before the Advisory Board within 3 weeks and the Advisory Board had to submit its report within 7 weeks. Obviously there was still time for the Advisory Board to consider the representation. By way of analogy or inference, it clearly emerges from that decision that even though the representation may not have been forwarded by the State Govt to the Advisory Board within 3 weeks along with the reference made by the Govt, the right of the detenu would still be there for consideration of his representation by the Advisory Board which had still four weeks time beyond three weeks to consider the matter referred to it, along with the representation. 7. In connection with the above, it would be relevant to have a look on the relevant provision. Section 10 of the National Security Act reads as under: “10. Reference to Advisory Boards- Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Govt shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board, constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in sub-section (3) of section 3, also the report by such officer under sub-section (4) of that section.” According to the above provision, the State Govt is obliged to place before the Advisory Board the grounds on which the order of detention has been made and the representation, if any, made by the detenu along with other requirements. Learned counsel for the respondents submits that according to the aforesaid provision the representation is to be forwarded to the Advisory Board 'if any', made by the detenu not otherwise. The further submission is that till the time when the matter was forwarded by the State Govt to the Advisory Board no representation was made by the detenu. Hence there was no occasion to forward the representation along with the grounds and other materials as required to be forwarded under section 10 of the National Security Act. We find that there is no limitation prescribed for filing a representation by the detenu. In case it has been made before the matter is referred to the Advisory Board by the State .Govt, it has also to be forwarded along with other material, namely, the grounds etc. But it does not mean that it takes away the right of the detenu of consideration of his representation by the Advisory Board in case it is made not before the matter was referred to the Advisory Board by the Govt but before the matter was considered by the Advisory Board. The right of representation being considered by the Advisory Board flows from Article 22 (5) of the Constitution which is quite evident from the decisions cited above. Such constitutional safeguard cannot be superseded merely on the ground that State Govt had already referred the matter to the Advisory Board. Otherwise it may lead to very awkward and untenable situation. In a given case the State Govt may choose to refer the matter to the Advisory Board on the very next date. In that event the right of the detenu to have his representation considered by the Advisory Board 'would stand defeated. The expression which has been used 'if any' under section 10 of the National Security Act is that at the time of forwarding the matter to the Advisory Board, if any, representation is made that has also to accompany the other documents, namely, grounds etc. It does not mean that it is not to be forwarded by the State .Govt if it is made after the matter is referred but before it is considered by the Advisory Board. The State Govt is obliged to refer the matter within 3 weeks. It cannot be said that the State Govt cannot refer the matter before expiry of 3 weeks. The State Govt is obliged to refer the matter within 3 weeks. It cannot be said that the State Govt cannot refer the matter before expiry of 3 weeks. If the contention as raised on behalf of the respondents is accepted in that event the period within which the detenu is to make his representation to be considered by the Advisory Board would fluctuate according to the choice of the State Govt making the reference to Advisory Board. The reference can be made by the State Govt any time from the date of service of order of detention within next 3 weeks thereafter. Since the Advisory Board is to submit its report within a period of 7 weeks, a representation even though submitted after expiry of 3 weeks, it is obligatory on the part of the State Govt to forward such representation as well to the Advisory Board so long the Advisory Board has not considered the matter. 8. On facts, however in the present case that situation does not arise since the detenu had made the representation on December, 20,1999 which was received in the Govt on 21.12.99, that is to say, within period of 3 weeks from the date of passing of the detention order and its service on the next date. As observed earlier the State Govt is not to wait for the representation of the detenu before making reference of the matter. Similarly it is obligatory on the part of the State Govt to forward the representation of the detenu even after it referred the matter to the Advisory Board before the matter is considered by the Advisory Board. 9. Since the respondents failed to forward the representation preferred by the detenu to the Advisory Board under the impression that since it was received 8 after the State Govt had referred the matter to the Advisory Board, it deprived the detenu of his right guaranteed under Article 22 (5) of the Constitution to have his representation considered by the Advisory Board. It is clear violation of the safeguard as provided constitutionally to the detenu, as a result of which the continued detention of the detenu is rendered in valid. 10. In view of the discussion held above, the petition is allowed and the continued detention of the detenu is held to be bad in law. It is clear violation of the safeguard as provided constitutionally to the detenu, as a result of which the continued detention of the detenu is rendered in valid. 10. In view of the discussion held above, the petition is allowed and the continued detention of the detenu is held to be bad in law. He shall be set at liberty forthwith unless wanted in any other case.