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2000 DIGILAW 126 (GAU)

Paban Saloi @ Babul Choudhury v. Union of India

2000-03-24

J.N.SARMA, P.G.AGARWAL

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P. G. Agarwal, J.-By this petition under Article 226 of the Constitution, the detenu-petitioner has challenged the order of detention dated 21.8,99, Annexure A to this petition, passed by the District Magistrate, Kamrup, the respondent No. 4, in exercise of his power conferred under sub-section (2) and (3) of section 3 of the National Security Act, 1980, for short, the Act. 2. On perusal of the order of detention and the records produced before us it is seen that the detention of the detenu in the instant case was made on the basis of a dossier prepared by the Superintendent of Police, Kamrup. It was submitted that the copy of the said dossier was not furnished to the detenu and as such it violates the safeguard given under Article 22 (5) of the Constitution. It is well settled that the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu. During the course of the arguments, the learned Govt Advocate, Assam produced the record to show that the copy of the dossier was furnished to the detenu along with the order of detention and the grounds of detention and these were duly received by the detenu and there is an acknowledgment also to that effect. In view of the above, learned counsel for the petitioner has not pressed for the above submission. 3. Shri N. Dutta, learned counsel for the petitioner has submitted that in the instant case there is contravention of the provision of section 10 of the National Security Act, 1980, for short, the Act. Section 10 of the said Act reads as follows: “10. 3. Shri N. Dutta, learned counsel for the petitioner has submitted that in the instant case there is contravention of the provision of section 10 of the National Security Act, 1980, for short, the Act. Section 10 of the said Act reads as follows: “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.” It is stated that the order of detention was passed on 21.8.99 and as required under section 10 of the Act the matter was placed before the Advisory Board on 7.9.99. However, the representation submitted by the detenu on 6.9.99 was not forwarded or sent to the Advisory Board as required under section 10 of the Act. The representation was sent to the Advisory Board only on 22.9.99. Learned Govt Advocate has submitted that the representation was duly considered by the Advisory Board and it approved the order of detention. It is submitted on behalf of the detenu that although the order of detention was passed on 21.8.99 and the representation was filed on 6.9.99 the same was forwarded to the Advisory Board on 22.9.99, ie after more than 3 (three) weeks from the date of detention. Learned counsel has placed reliance on the two decisions of the Apex Court in the case of Sher Mohammad vs. State of West Bengal, (1975) 2 SCC 2 and in the case of Abdul Ladf Abdul Waheb vs. BK Jha & another, (1987) 2 SCC 22 . In the case of Abdul Latif (supra), the Apex Court held : “In a Habeas Corpus proceeding, it is not a sufficient answer to say that the procedural requirements of the Constitution and the statute have been complied with before the date of hearing and therefore, the detention should be upheld. In the case of Abdul Latif (supra), the Apex Court held : “In a Habeas Corpus proceeding, it is not a sufficient answer to say that the procedural requirements of the Constitution and the statute have been complied with before the date of hearing and therefore, the detention should be upheld. The procedural requirements are the only safeguards available to a detenu since the Court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be Attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. If a reference to an Advisory Board is to be made within three weeks, it is no answer to say that the reference, though not made within three weeks, was made before the hearing of the case. If the report of the Advisory Board is to be obtained within three months, it is no answer to say that the report, though not obtained within three months, was obtained before the hearing of the case. If the representation made by the detenu is required to be disposed of within a stipulated period, it is no answer to say that the representation, though not disposed of within three months, was disposed of before the hearing of the case.” 4. The question that arises for consideration is whether the period of three weeks provided under section 10 of the Act is in respect of placing of the grounds on which the order has been made or for placing the representation also within a period of three weeks before the Advisory Board ? So far the detention order and the grounds on which the order has been made are concerned, the appropriate Govt is bound to place the matter before the Advisory Board within three weeks from the date of detention. However, we find no justification in computing this period of three weeks for the purpose of forwarding the representation also for the simple reason that the representation may not have been filed or received by the State Govt within the said period of three weeks. The appropriate authority but is not allowed to sit over the matter on the plea that they are awaiting receipt of the representation. The appropriate authority but is not allowed to sit over the matter on the plea that they are awaiting receipt of the representation. It is for this purpose that after the word 'representation' the section provides the word 'if any'. Thus in our view the appropriate Govt is required to place the matter before the Advisory Board within three weeks of the order of detention and hi the meantime, if any representation has been received, the same may also be sent to the Advisory Board. The appropriate Govt is not allowed to sleep over the matter or to place the matter before the Advisory Board after the expiry of three weeks on the plea that they were awaiting the receipt of representation. In the instant case the representation filed by the detenu was received by the State Govt on 15.9.99 along with parawise comments from the District Magistrate, whereas the matter was already referred to the Advisory Board on 7.9.99 itself on which date the representation was not pending or available before the appropriate Govt Under Section 10 of the Act no time limit has been provided for sending the representation to the Advisory Board. 5. In view of our discussion, we are of the opinion that in the instant case there was no violation of the provisions of section 10 of the Act. 6. Learned counsel for the petitioner has submitted that the impugned orders whereby the authorities have rejected the representation, do not reflect that the concerned authorities had applied their minds to the representation. It is fairly submitted that in such cases speaking orders are not required to be passed. Learned counsel has further relied on the observations of the Apex Court in the case of Bhut Nath Mete vs. State of West Bengal, (1974) 1 SCC 645 . The Apex Court observed : “The bare bones of natural justice in this context need not to be clothed with the ample flesh of detailed hearing and elaborate reasoning. It must be self evident from the order mat the substance of the charge and the essential answers in the representation have been impartially considered. We do not think that a speaking order like a .regular jutted performance is either necessary of feasible. Article 22 (5) h also does not compel us to reach a different conclusion. It must be self evident from the order mat the substance of the charge and the essential answers in the representation have been impartially considered. We do not think that a speaking order like a .regular jutted performance is either necessary of feasible. Article 22 (5) h also does not compel us to reach a different conclusion. After all, we must remember that a harmonious reconciliation between the claims of security of the nation and the liberty of the citizen through the process of effective representation before deprivation and fair consideration by the Executive and the Advisory Board are the necessary components of natural justice.” In the instant case, we find that representations were duly considered. In the result, we find no illegality in the order of detention and accordingly the petition is dismissed.