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2000 DIGILAW 284 (GAU)

Doli Chakraborty v. State of Assam

2000-09-04

BRIJESH KUMAR, D.N.CHOWDHURY

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D. N. Chowdhury, J.— These two writ petitions were taken up together for hearing as they involves common question of facts and law. In both the petitions, the petitioners assailed the legitimacy of the orders of detention bearing No.DC. 157/99/Pt IV/36 dated 4th December, 1999 and No. DC. 15/99/Pt III 69 dated 4th December, 1999 passed against Shri Kamal Roy alias Gopal Bhakat, son of Shri Kailash Chandra Roy, and Shri Raju Chakraborty alias Rajesh Chakraborty alias Ashim Hazarika alias Banerjee, son of Shri Dipesh Chakraborty, the detenus in Writ Petition (Criminal) Nos 41 and 40 of 2000, respectively, by the District Magistrate, Dhubri, under sub-section (2) of section 3 of the National Security Act,1980, herein after referred to as the Act, 1980, for preventing them from acting in a manner prejudicial to the maintenance of public order. Writ Petition (Criminal) No.40 of 2000 pertains to the detention of Shri Raju Chakraborty alias Rajesh Chakraborty alias Ashim Hazarika alias Banerjee, while Writ Petition (Criminal) No.41 of 2000 pertains to detention of Shri Kamal Roy alias Gopal Bhakat. 2. The validity of the grounds of detention accompanied by the basic materials are not seriously under challenge. In our view also, we do not have any misgiving in holding that the grounds are proximate in point of time, having relevance and nexus with the objects sought to be achieved by passing the order of detention. Shri DK Mishra, learned senior counsel appearing on behalf of the petitioners attacked on the continued detention of the detenus on the ground of breach of h the safeguards guaranteed by Article 22 (5) of the Constitution of India. The learned counsel built up his argument mainly on the ground that the detenus not being apprised of their right to make a representation to the Central Government under section 14 of the Act, 1980, it vitiated the continued detention of the detenus. The grounds of detention furnished to the detenus clearly intimated the detenus about their right to make a representation to the State Government, but those grounds did not indicate the right of the detenus to make a representation to the Central Government under section 14 of the Act, 1980, submitted the learned counsel for the petitioners. The grounds of detention furnished to the detenus clearly intimated the detenus about their right to make a representation to the State Government, but those grounds did not indicate the right of the detenus to make a representation to the Central Government under section 14 of the Act, 1980, submitted the learned counsel for the petitioners. The aforesaid remiss on the part of the detaining authority, submitted the learned counsel, amounted to constitutional breach of the right of the detenus to make an effective representation before the Central Government and, therefore, there cannot be any justification for continued detention of the detenus. The aforesaid contention of the learned counsel for the petitioners was seriously contested by Shri BC Das, the learned Additional Senior Govt Advocate appearing on behalf of the State/respondents. The learned Addl Senior Govt Advocate, in support of his argument mainly referred to the Full Bench decision of the Allahabad High Court in the case of Raj Bahadar Yadav vs. State of UP & others, reported in 1998 Crl LJ 103. 3. The orders of detention in the cases in hand, were passed under section 3 (2) of the Act, 1980. Under the aforesaid Act, 1980 when any order is made under section 3 by an officer as mentioned in sub-section (3), he is required to report forthwith the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars, as in his opinion, have a bearing in the matter and no such order shall remain in force for more than twelve days after making of the order unless it is approved by the State Government. When any order is made or approved by the State Government under sub-section (5) of section 3 of the Act, 1980 the State Government is required within seven days to report 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. Section 8 of the Act, 1980 envisage that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. Section 9 of the Act, 1980 provides for constitution of Advisory Boards and under section 10, a duty is cast on the appropriate Government to place before the Advisory Board within three weeks from the date of detention of a person under the order, the grounds of detention 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/The Advisory Board after considering the materials placed before it and after calling for such further information, as it may deem necessary, from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if in any particular case it considers it essential so to do, or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks a from the date of detention of the person (s) concerned. Section 12 of the Act, 1980 speaks of the action to be taken upon the report of the Advisory Board. Section 14 of the Act, 1980 which is relevant for the purpose of determination of the issue raised before the Court, is reproduced herein below : “14. Section 12 of the Act, 1980 speaks of the action to be taken upon the report of the Advisory Board. Section 14 of the Act, 1980 which is relevant for the purpose of determination of the issue raised before the Court, is reproduced herein below : “14. Revocation of detention orders: Without prejudice to the provisions of section 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-section (3) of section 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 expiry or revocation of a detention order (hereinafter in this sub-section referred to as the earlier detention order) shall not whether such earlier detention order has been made before or after the commencement of the National Security (Second Amendment) Act, 1984 bar the making of another detention order (hereinafter in this sub-section referred to as the subsequent detention order) under j section 3 against the same person : Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order.” The provisions mentioned above makes it clear that these provisions are intended to satisfy the constitutional requirements and provided for the enforcement of the rights conferred on a detenu to represent against his/her detention order Article 22 of the Constitution of India provides safeguards against arrest and detention. Under clause (4) of Article 22 of the Constitution, it is provided that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless the detenu's case is referred to an Advisory Board for its opinion. Under clause (4) of Article 22 of the Constitution, it is provided that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless the detenu's case is referred to an Advisory Board for its opinion. Under clause (5) of Article 22 of the Constitution, a constitutional duty is entrusted on the authority making the order of detention to communicate to such person the grounds on which such order has been made, as soon as may be, and to afford him the earliest opportunity of making a representation against the order. Article 22 (5) of the Constitution casts dual obligations on the detaining authority, viz., (i) to communicate to the detenu the grounds on which the detention order has been made; and (ii).to afford the detenu the earliest opportunity of making a representation against the order of detention. Deficiency to commune and transmit the grounds of detention along with the basic facts promptly or in its failure to afford the earliest opportunity of making a representation to the appropriate authority against the order of detention, will amount to contravention of the constitutional rights guaranteed under clause (5) of Article 22 of the Constitution. As per the mandate of Article 22 (5) of the Constitution, the detaining authority is required to inform the detenu of his right to make a representation to the authority who is charged with the duty to rescind or revoke the order of detention. 4. Shri DK Mishra, learned senior counsel appearing on behalf of the detenus, has forcefully argued that the detaining authority is duty bound to inform the detenus of their rights to make a representation to all concerned including their right to make a representation under section 14 of the Act, 1980; else, it would amount to breach of Article 22 (5) of the Constitution. The learned counsel in support of his contention, referred to three decisions of this Court in the cases of Hokuto Sema vs. Union of India & others, reported in 1997 (2) GLT 518; Kamal Gogoi @ Bhaiti Gogoi vs. State of Assam & others, reported in 1997 (3) GLT 111; and in Hemanta Nath vs. State of Assam & others, reported in 1998 (2) GLT 344 (1998 (2) GLJ 598), all of which have all along took a consistent view on the matter, holding that the failure to inform the detenu his right to make a representation before the Central Government, amounted to denial of the right of the person detained to make a representation. Shri Mishra, the learned senior counsel for the petitioners, in support of his contentions, also referred to the decisions of the Supreme Court in Kamalesh Kumar Iswar Das Patel vs. Union of India & others, reported in (1995) 4 SCC 51 ; Sabir Ahmed vs. Union of India, reported in (1980) 3 SCC 295 : AIR 1980 SC 1751 ; Smti Raziya Umar Bakshi vs. Union of India & others, reported in 1980 Supp SCC 195; Shyam Ambalal Siroya vs. Union of India & others, reported in AIR 1980 SC 789 ; and in Satpal vs. State of Punjab & others, reported in AIR 1981 SC 2230 . 5. Shri BC Das, learned Additional Senior Govt Advocate, Assam, appearing on behalf of the State/respondents, on the other hand, submitted that section 14 of the Act, 1980 only conferred upon the Central Government a discretionary power to revoke an order of detention. Mr. Das, the learned counsel submitted that the power conferred under section 14 of the Act, 1980 is a statutory power reposed on the Central Government which is supervisory in nature. A wide discretion is conferred on the Central Government to revoke or modify an order of detention notwithstanding that the order has been made by an officer mentioned in section 3 (3) of the Act, 1980, by the State Government to which the officer is subordinate or by the Central Government. While countering the contention, those were raised on the issue by Shri Mishra, the learned counsel for the petitioners, Shri Das,'the learned Addl Senior Goyt. While countering the contention, those were raised on the issue by Shri Mishra, the learned counsel for the petitioners, Shri Das,'the learned Addl Senior Goyt. Advocate, drew our attention to the relevant schemes of the detention laws, more particularly to the provisions of the Conservation of the Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA for short) and Prevention of Illicit Trade in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS for short). The learned counsel in course of his argument, distinguished between the COFEPOSA and PITNDPS on the one hand and the National Security Act, 1980 and the erstwhile Maintenance of Internal Security Act (MISA in short) of the other. The learned counsel for the State/respondents submitted that since the scheme of the Acts are different, question of taking aid of Kamlesh Kumar Iswar Das Patel (supra) and the other connected cases will not arise. The learned counsel in support of his contentions, in the main, relied upon the Full Bench decision of the Allahabad High Court in Raj Bahadur Yadav (supra). In the aforementioned Full Bench decision of the Allahabad High Court, the Court took itself into studies of the relevant laws on preventive detention. After considering all the different aspects of the statutes, the Full Bench held that the power of revocation/modification provided by section 14 of the Act, 1980 is discretionary in nature and the same can be exercised by the Central Government suo motu or on receiving information from the State Government or that from the detenu. The Court indicated the difference between the COFEPOSA, PITNDPS as well as the MIS A. The Court took note of the facts of the case and held that the requirements of Article 22 (5) of the Constitution in the aforementioned case was fulfilled and the representation was disposed with reasonable expedition. The Court indicated the difference between the COFEPOSA, PITNDPS as well as the MIS A. The Court took note of the facts of the case and held that the requirements of Article 22 (5) of the Constitution in the aforementioned case was fulfilled and the representation was disposed with reasonable expedition. The Court was satisfied that the constitutional obligation cast on the detaining authority was fulfilled, and further held that it would be open for the detaining authority to state in the grounds of detention that the detenu may also make a representation to the Central Government invoking its power of revocation/modification of the order; but failure to do so itself will not be sufficient to render the detention order invalid and further detention illegal in view of the fact that the power under section 14 of the Act, 1980 is statutory, discretionary and supervisory in nature. The Court in the above case relied and referred to the case in Mohammad Dhana Ali Khan vs. State of West Bengal, reported in AIR 1976 SC 734 , in support of its conclusion that section 14 of the Act, 1980 does not confer any right or privilege on the detenu. Dhana Ali (supra) stands on its own peculiar footing, as was observed by the Supreme Court in Sabir Ahmed (supra). 6. With utmost deference, we could not persuade ourselves to subscribe to the view expressed by the Full Bench of the Allahabad High Court, more so on the face of the majority view of the Full Bench decision of this Court in Hitendra Nath Goswami vs. State of Assam & others, reported in (1984) 2 GLR (NOC) 17, rendered in Civil Reference Case No.203 of 1983 (arising out of Civil Rule (HC) No. 17 of 1983) disposed on 6.1.1984, and the decision rendered by the Supreme Court in Premlata (Smti) Sharma vs. District Magistrate, Mathura, reported in (1998) 4 SCC 260 . 7. According to the majority view in Hitendra Nath Goswami (supra), section 14 of the Act, 1980 envisions of a power and discretion conferred on the Central Government coupled with a duty. The discretion of the Central Government is not unlimited. It is for the Central Government to revoke or not to revoke a detention order in exercise of its discretionary power under section 14 (1) of the Act, 1980. The discretion of the Central Government is not unlimited. It is for the Central Government to revoke or not to revoke a detention order in exercise of its discretionary power under section 14 (1) of the Act, 1980. The High Court in the aforementioned case, was basically concerned with the report received from the State Government under sub-section (5) of section 3-of the Act, 1980. Justice N. Ibotombi Singh while delivering the judgment with Justice SM Ali (majority view), held that section 14 of the Act, 1980 cannot be read as an unfettered power enabling the Central Government not to consider the report at all. “The Central Government cannot” quoting Lord Pearce in Padifield case, 'throw it unread into the waste paper basket'. To consider the provisions otherwise, would attract the vice of arbitrariness and unfairness which are sworn enemy of the equality guaranteed under Article 14 of the Constitution of India. Dr. TN Singh, J., concurring with Justice N. Ibotombi Singh, observed : “I have no doubt that this object is fulfilled by the provision of revocation provided in section 14(1) and the purpose by the constitutional mandate of Article 21 and 22.” The learned Judge further held : “If the right available to the detenu under Article 22 (5) is to be made meaningful and effective then there must exist other suitable statutory machinery also besides the constitutionally entrenched Advisory Board, whose role is not made effective until the end of the three-month time bridge. The statutory machinery, in my opinion, must take care of the supervening events arising during the intervening period and indeed also beyond it after confirmation of detention on Board's report. Because the 'necessity' to detain may cease at anytime. The moment it ceases the detention will acquire a punitive character and will be violative of the constitutional injunction. Indeed, it is for this reason that in all successive preventive detention laws, enacted since 1950, provision is invariably made for revocation of the detention order. This provision, in my opinion, embodies the constitutional duty ingrained in Article 22 (5). I do not read Article 22 (5) to confine its scope of operation to the consideration merely of 'representation' made by the detenu. This provision, in my opinion, embodies the constitutional duty ingrained in Article 22 (5). I do not read Article 22 (5) to confine its scope of operation to the consideration merely of 'representation' made by the detenu. If what Article 22 (5) aims to achieve is also realised by a statutory provision, it must be said to be done in the performance of the same constitutional duty.” In Hokuto Sema (supra), Kamal @ Bhaiti Gogol (supra) and Hemanta Nath (supra), this Court held that failure to inform the detenu about his right to make a representation to the Central Government amounted to denial of opportunity to make a representation which vitiated the continued detention. 8. Article 22 (5) of the Constitution, as mentioned earlier, casts a dual obligation on the detaining authority, viz., (i) to communicate to the detenu the grounds on which the detention order has been made, and (ii) to afford the detenu the earliest opportunity of making a representation against the detention order. Therefore, under Article 22 (5) of the Constitution, a detenu is bestowed with the fundamental right to make a representation against his/her detention order. Section 14 of the Act, 1980 empowered the Central Government with the power to revoke or modify an order of detention without being controlled by the provisions of section 21 of the General Clauses Act, 1897. To revoke means to annul, rescinding and withdraw. It is an additional check or safeguard against improper exercise of the power of detention by 'the detaining authority or the State Government. Section 14 of the Act, 1980 vests a wider power than which the State Government may have possessed under the provisions of section 21 of the General Clauses Act, 1897. The language of the Act makes it clear that the power under section 14 of the Act, 1980 is not necessarily subject to the provisions of section 21 of the General Clauses Act. It means that the Central Government can exercise the power of revocation. It means that the State Government is authorised to make an order of revocation even without complying with the provisions of section 21 of the General Clauses Act. It means that the Central Government can exercise the power of revocation. It means that the State Government is authorised to make an order of revocation even without complying with the provisions of section 21 of the General Clauses Act. The statutory provisions including the power conferred under section 14 of the Act, 1980, are intended to satisfy the constitutional requirements and to provide for enforcement of the rights conferred on the detenu to make a representations against his detention order. Section 14 of the Act, 1980 also enables a detenu to make a representation to the Central Government to revoke the order of detention. In Premlata Sharma (Smti) (supra), the Hon'ble Supreme Court held that refusal on the part of the detaining authority to send the representation of the detenu to the Central Government resulted in denial of the right conferred on him under Article 22 (5) of the Constitution of India to persuade the Government to revoke the order of detention under section 14 of the Act, 1980. The statute, if construed in the aforesaid context, it cannot be said that the power conferred under section 14 of the Act, 1980 has no nexus with the constitutional obligation cast by Article 22 (5) of the Constitution of India. While construing the aforementioned provision, we took note of the fact that the Constitution is not to be construed as a mere law, but as a mechanism to attain the constitutional mandate. 9. In the matter of detention, the Court is concerned with the fundamental rights and liberty of a citizen. The fundamental rights are to be interpreted in a broad and extensive spirit so as to invest it with significance and vitality which may secure the constitutional goals and the dignity of the individual and the worth of human values. The constitutional provisions are to be interpreted for availing j the rights guaranteed in the Constitution and not to deny and/or divest the citizen from their rights by the process of interpretation. Fundamental rights are to be interpreted broadly and liberally to enable the citizens to enjoy the rights guaranteed in Part III of the Constitution of India. 10. The makers of the Constitution though sustained the provision of preventive detention as a necessary evil, it also took necessary precautions by providing safeguards in Article 22 of the Constitution. Fundamental rights are to be interpreted broadly and liberally to enable the citizens to enjoy the rights guaranteed in Part III of the Constitution of India. 10. The makers of the Constitution though sustained the provision of preventive detention as a necessary evil, it also took necessary precautions by providing safeguards in Article 22 of the Constitution. As alluded earlier, one such protection is built in sub-clause (a) of clause (4) of Article 22 that requires that no law providing for preventive detention shall authorise the detention of a person longer than three months unless an Advisory Board, consisting of persons, who are, or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for detention. Another safeguard is mentioned in clause (5) of Article 22 of the Constitution imposing a dual obligation on the authority making the order of detention, (a) to communicate the grounds on which the order has been made at the earliest, and (b) to afford the detenu the earliest opportunity of making a .representation against the order.” The right guaranteed under the aforementioned clause is absolute, positive and real, enabling the detenu to attain the liberty at the earliest opportunity. The said exercise of making a representation by the detenu is to be made before the authority or authorities which can revoke or rescind the order. Under the scheme of the National Security Act, 1980, on such authority is the 'appropriate Government', as defined in clause (a) of section 2 of the Act, 1980, here in the case under reference the State Government. This right is in-built and can be perceived in section 21 of the General Clauses Act, T897. It is also open to the detenu to make a representation to the Advisory Board. That apart, a detenu is entitled to make a representation to any other authority that can revoke the order of detention. To give a meaningful content to clause (5) of Article 22, it should be construed that a person detained, has a right to make a representation to the Advisory Board, the appropriate Government that has made the order of detention or the order of enduring the order of detention, which can provide a speedy remedy by giving back the freedom of the detenu. In addition, the detenu is invested to any other authority (here the Central Government), which has been entrusted with the power to revoke the order of detention and thereby set at liberty the detenu. The very right to make a representation against the order of representation carries in its stride a reciprocal commitment to acquaint and notify the person detained his or her right to make a representation to the authorities who are authorised to and invested with the power to consider such representation. 11. In the aforesaid circumstances and in view of the discussions made above, we hold that failure on the part of the detaining authority in communicating the detenus their rights under section 14 of the Act, 1980 has amounted to denial of the rights guaranteed to a detenu under Article 22 (5) of the Constitution of India and accordingly, the continued detention of the detenus has become unlawful. We accordingly, allow the petitions and quash the impugned orders of detention d passed under No.DC.15/99/Pt.III/ 69 dated 4.12.1999 and No.DC.15/99/Pt.IV/ 36 dated 4.12.1999, by the District Magistrate, Dhubri, and direct that the detenus, viz, Shri Raju Chakraborty @ Rajesh Chakraborty @ Ashim Hazarika @ Banerjee, son of Shri Dipesh Chakraborty, and Shri Kamal Roy @ Gopal Bhakat, son of Shri Kailash Chandra Roy, be released forthwith unless wanted in connection with any other case.