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2001 DIGILAW 74 (GAU)

Vilaheu v. Union of India and Ors.

2001-03-22

H.K.SEMA, RANJAN GOGOI

body2001
Ranjan Gogoi, J. — We have heard Mr. DK Mishra, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned counsel for the respondent No.l and Mr. Dasgupta, learned counsel assisted by Mr. R. Goswami for the respondents 2, 3 and 4. 2. Rule was issued on 19.2.2001 and counter on behalf of the respondents have been filed. This being a Habeas Corpus petition challenging the order of detention passed under section 3 (2) of the National Security Act, 1980, we have decided to hear the parties on merit. 3. In exercise of power under section 3 (2) of the Act the detenu was detained by order dated 3.1.2001. Along with the order of detention ground of detention has also been served upon the detenu on the same day, i.e. 3.1.2001. Thereafter the appropriate Govt by order dated 19.1.2001 approved the detention order passed by the learned District Magistrate, Karbi Anglong on 3. 1. 2001. This letter has an important bearing and it is extracted: "Orders By The Governor The Governor of Assam after considering all the facts is pleased to approve on 16.1.2001 the detention order No.KMJ.IO/Pt-XI/2000/ 59 dated 3.1.2001 passed by the District Magistrate Karbi Anglong hi detaining Shri Seleu Angami @ Nilake Angami son of late Yaleu Angami village Chiechamo PS Chephobojo, Dist Kohima, Nagaland under sub-section (2) of section 3 of the National Security Act, 1980 (No.65 of 1980) and further orders that the said detenu be detained in the District Special Jail, Nagaon. By order and in the name of the Governor..." 4. From the aforesaid letter it shoes that approval was given on 16.1.2001. although it was communicated on 19.1.2001. The detention has been challenged on many grounds. However. Mr. DK Mishra confined his arguments only on one ground. It is contended by Mr. Mishra that when an order of detention is passed by exercise of power under sub-section (2) of section 3 of the Act the said order of detention cannot be remained in force for more than 12 days, unless in the meantime it has been approved by the State Govt. As it would appear from the order of approval dated 19.1.2001 that the approval has been accorded by the State Govt on 16.1.2001. As it would appear from the order of approval dated 19.1.2001 that the approval has been accorded by the State Govt on 16.1.2001. The order of detention was passed on 3.1.2001 and therefore reckoning from 4.1.2001 upto 16.1.2001 the approval of the State Govt was accorded after more than 12 days had elapsed. 5. It is however, contended by Mr. Dasgupta that the case in hand is covered by proviso to sub-section (4) and not under the provision of sub-section (4). Proviso to sub-section (4) is a provision to take care of the situation where under section 8 the ground of detention are communicated by the officer making the order after 5 days and not later than 10 days. Such a situation 12 days is substituted by 15 days. In the case at hand, as already stated that along with order of detention on 3.1.2001 the ground of detention has also been supplied to the detenu on the same day and therefore, the proviso to sub-section (4) of section 3 would not be attracted in the case at hand. 6. The procedure prescribed under Article 22 (5) of the Constitution is a procedural safeguard and when curtailing the liberty of a citizen the appropriate authority was bound to follow the procedural safe guard prescribed under Article 22 (5) of the Constitution. 7. In the instant case, admittedly the approval of the State Govt was accorded after more than 12 days which is contrary to the mandate of the provision of sub­ section (4) of section 3. The point of law has been set at rest by the Apex Court in Ranbir Singh vs. T. George Joseph, District Magistrate, Meerat & another reported in 1988 (Supp) SCC 425. In that case, the Apex Court was considering the approval given by the State Govt under the proviso to sub-section (4) of section 3 of the Act. There it has been held by the Apex Court that confirmation/approval having been made beyond the period of 15 days prescribed by section 3 (4) of the National Security Act, 1980, the continued detention of the detenu has been held illegal. Although it was a case of proviso to sub-section (4) of section 3, the principle laid down by the Apex Court is clearly attracted in the case at hand inasmuch as in the present case the approval of the Govt was obtained after 12 days. Although it was a case of proviso to sub-section (4) of section 3, the principle laid down by the Apex Court is clearly attracted in the case at hand inasmuch as in the present case the approval of the Govt was obtained after 12 days. Solely on this ground the detention order dated 3.1.2001 is vitiated. We accordingly quash and set aside the order of detention dated 3.1.2001. The detenu shall be set at liberty forthwith if he is not required in connection with any other case. With the aforesaid direction this petition is allowed. No costs.