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2002 DIGILAW 144 (GAU)

Sukh Ram Rava v. Union of India and Ors.

2002-03-26

AMITAVA ROY, J.N.SARMA

body2002
AMITAVA ROY, J.- By this application under Article 226 of the Constitution of India , the detenu/ petitioner, Sukh Ram Rava seeks for an appropriate writ to set aside and quashed the order of detention dated 23.7,2001 (Annexure -1) as well as the grounds of detention dated 23. 7.2001 ( Annexure -II) and further to release and set him at liberty forthwith. 2. This Court by order dated 1.2.2002 issued notice after hearing the learned counsel for the petitioner, the learned Central Govt. Standing Counsel and the learned Govt. Advocate, Assam. The Central Govt. Standing Counsel accepted notice on behalf of the respondent No. 1 and the learned Govt. Advocate, Assam on behalf of the respondent Nos. 2, 3, 4, and 5. On 18.2.2002 time was granted to the learned Additional Senior Govt. Advocate, Assam to file reply as prayed for. When the matter was taken up hearing today as fixed earlier, the learned Additional Senior Govt. Advocate, Assam produced the records pertaining to the impugned detention. However none of the contesting respondents had filed their affidavit -in-opposition. As the Case relates to the preventive detention and the detenu/petitioner had been arrested on 2.1.2001 and is in detention since then , this Court was not inclined to further postponed the hearing. Accordingly the petition was heard on merits. 3. We have heard Mr. S. Bharali, learned counsel for the detenu as well as Mrs. A. Hazarika, learned Additional Senior Govt. Advocate , Assam for the respondent No. 2 to 5. None appeared on behalf of the respondent No. 1. 4. The case of the detenu as set out in the petition is that he is a citizen of India having his parmanent residence at village Batabari in the district of Bongaigaon, Assam. He was arrested by the police on 2.1.2001 and thereafter on 23.7.2001 while he was in jail, he was served with an order of detention dated 23.7.2001 (Annexure - I to the petition) along with the grounds of detention dated 23.7.2001 (Annexure - II to the petition). Both issued by the District Magistrate, Barpeta detaining him under the National Security Act 1980 (hereinafter referred to as the Act.). Both issued by the District Magistrate, Barpeta detaining him under the National Security Act 1980 (hereinafter referred to as the Act.). The impugned order of detention mentioned above suggested that the said order was passed in exercise of powers conferred under Section 3 (2) of the Act and the order of the Governor of Assam contained in the Notification No PLA.326/97/50/A dated 22.5.2001. In the said order it was inter-alia mentioned that the detaining authority was satisfied that the detenu had been conducting himself in a manner prejudicial to the security of the State and the life and liberty of the citizens and that with a view to prevent from acting in any manner prejudicial to the security of the State and Maintenance of Public order it was necessary to detained him in custody. Thereafter by order dated 4.8.2001 (Annexure - IV ) the Governor of Assam approved the order of detention. 5. It is the case of the detenu/ petitioner that he submitted a representation against the oder of detention before the National Security Advisory Board (Annexure - III). Thereafter he submitted another representation on 23.11.2001 before the District Magistrate, Barpeta District (respondent No. 4), the Government of Assam, (respondent No. 2), the Central Government, New Delhi (respondent No.l). and the Chairman of the Advisory Board. In the earlier representation (Annexure -111) he categorically denied the correctness of the grounds dated 23.7.2001 and contended that the same were totally baseless and unfounded. He therefore averred therein that he had not made any statement before the police implicating himself and asserted that his remaining at-large was not at all prejudicial to the security of the State and maintenance of law and Public order contending that his detention under the Act was illegal. He prayed that he be released from detention immediately. In his subsequent representation, he contended , while denying the correctness of the grounds that the same were in any way extremely vague and devoid of material particulars and relevant facts. He asserted that the documents and other materials referred to in the grounds on which the same were purportedly founded had not been furnished to him and therefore he was denied his constitutional right under Article 22(5) of the Constitution of India thus rendering his continued detention under the Act wholly illegal. He asserted that the documents and other materials referred to in the grounds on which the same were purportedly founded had not been furnished to him and therefore he was denied his constitutional right under Article 22(5) of the Constitution of India thus rendering his continued detention under the Act wholly illegal. He further asserted that without the above mentioned relevant facts, materials and particulars being furnished to him together with all other supporting documents, he was not in a position to submit an effective representation against the order of detention except making a general denial thereof. While denying the correctness of the grounds he categorically contended that those have no nexus with the object sought to be achived by passing the order of detention and that the same had been passed most mechanically on (sic) irrelevant and extraneous considerations. He reiterated that his detention under the Act was illegal and had requested the authorities to whom the representation was addressed to consider the same appropriately and dispose of the same and further prayed for an opportunity of personal hearing by the Advisory Board in support of his representation. As it appears from the said representation it was submitted through the Suprintendent of District Jail, Barpeta, respondent No 5, the said representation is at Annexure - 5 to the petition. 6. In the petition which is supported by an affidavit by one Shri Powal Ch. Das claiming to be a friend of the detenu and conversant with the facts and circumstances to the case, it has been specifically stated that the detaining authority did not at any point of time supply, to the detenu a copy of the Notification dated 22.5.2001 on the strength of which the impugned order of detention was passed. It has been further stated that the detaining authority and the State of Assam bad not forwarded his representation to the Central Government as required under the law. The further grievance of the detenu/ petitioner is that the grounds of detention and the documents pertaining to the said grounds which are mandatorily required to be served on him, have not been so served within the stipulated time thereby grossly violating his constitutional right as well as his statutory right under the Act. The further grievance of the detenu/ petitioner is that the grounds of detention and the documents pertaining to the said grounds which are mandatorily required to be served on him, have not been so served within the stipulated time thereby grossly violating his constitutional right as well as his statutory right under the Act. Reiterating his contention that the grounds of detention are extremely vague, he has further stated that the basic facts and material particulars including the documents and statements supporting each ground along with the dossier have not been furnished to him so as to enable him to make an effective representation thus denying him is constitutional right guaranteed under Article 22 (5) of the Constitution of India. It has been further alleged that the grounds on which the detention order was passed are irrelevant and non-existent. The petition further discloses that the grounds have been assailed as false, non-existent and not relatable to the maintenance of public order. It has also been contended that the said grounds have no proximity to the order of detention and have no nexus with the objection of detention. The impugned order of detention has been assailed of being based on purported satisfaction having been passed in mechanical exercise of power. The petitioner has dealt with each ground of detention, categorically denying the correctness thereof. He has specifically stated that because of withholding of the basic facts and material particulars and the documents on which the grounds were structured, he had been seriously prejudiced in submitting his representation and thus his valuable right safeguarded under Article 22(5) of the Constitution of India has been infringed. He has also challenged the impugned order of detention on the ground that the District Magistrate, Barpeta had no authority to pass such order under Section 3 (3) of the Act has no such authority had been conferred on the District Magistrate of any District in Assam by the Government of Assam. Alternatively, it has also been contended that in case any such order has been passed by the Government of Assam it was not validly made under Section 3 (3) of the Act and therefore in any case, the detaining authority lacked competence of and authority in passing the impugned order of detention. He further asserted that the approval of the order of detention by the Government of Assam is also not within the stipulated time. He further asserted that the approval of the order of detention by the Government of Assam is also not within the stipulated time. The detenu/ petitioner, in the petition had further contended that though it was incumbent on the Advisory Board to forward to the Government of Assam the entire records of its proceedings and though similarly it was obligatory on the part of the confirming authority to take into account all these particulars before passing the order of confirmation, the Advisory Board, in the present case failed to forward the records of the said proceedings to the Government of Assam and the latter, in turn passed the order of detention most mechanically without applying its mind. The further ground of attack of the detenu/ petitioner is that the District Magistrate, Barpeta and the Secretary to the Govt. of Assam, Political (A) Department, Dispur did not report about the fact of the detention to the State Government and the Central Government respectively nor did they furnish the grounds of detention and other basic facts materials and documents having a bearing on the same within the statutory period fixed under Section 3 (4) and Section 3 (5) of the Act. Another significant grievance of the petitioner is that he is not conversant with the english language and as such the detaining authority was required under the law to furnish him with the relevant document and translated copy of the dossier in a language understood by him, (mother to gue) but it was not done thus denying him his precious right under Article 22 (5) of the Constitution of India, rendering the impugned detention illegal. The petition also discloses that the detenu/pwtitioner had contended that no order under Section 3 (3) or 3(4) of the Act had been passed by the State Government and in any case no such order had been Communicated to him. It has also been contended that in the present case the detaining authority and the State Government had failed to discharge their statutory obligation to forward the representation of the detenu to the Central Government and the Central Government though aware of the detention had failed to perform its statutory duty under Section 14 of the Act. The detenu therefore in the above premises prayed for his release as mentioned herein above. 7. As mentioned above , Mrs. A. Hazarika, learned Additional Senior Govt. The detenu therefore in the above premises prayed for his release as mentioned herein above. 7. As mentioned above , Mrs. A. Hazarika, learned Additional Senior Govt. Advocate, Assam had placed before this Court the relevant records pertaining to the impugned detention of the detenue / petitioner. While submitting the records the learned Govt. Advocate, in addition to drawing the attention of this Court to the relevant documents had also submitted that the stand of the Government of Assam had been recorded in the para-wise comments furnished to her vide the official communication No. PLA. 76/2002/37 dated Dispur 14.2.2002. She therefore prayed that along with the records the parawise comments duly signed by the Deputy Secretary to the Government of Assam, Political (A) department be also considered by this Court while disposing of the petition. 8. Keeping in view the fact that the case relates to preventive detention, we have felt inclined to accede to the request of the learned Govt. Advocate and have therefore duly considered the said parawise comments in support of the stand of the Government of Assam in addition to the records so produced. 9. On a perusal of the said parawise comments, it transpires that the defences of the State Government to the allegations, made to the petition are that the order of detention together with the grounds for such detention and other relevant documents were furnished to the detenue in time and that the same were received by him. Contending, that the District magistrate, Barpeta was duly authorised by the State Government vide Notification dated 22.5.2001 under the Act to exercise the power under Section 3 (2) of the Act, it has been mentioned in the parawise comments that the grounds of detention are clear, specific and related to the security of the State and maintenance of public order. It has been further mentioned that as required under the Act the matter was referred to the advisory Board within the prescribed period and the Board on a consideration of all relevant documents and upon hearing the detenu submitted its report to the State Government also within the time prescribed and thereafter the State Government on a careful consideration thereof confirmed the order of detention.. The further stand of the State Government is that the order of detention had been passed upon due application of mind to the relevant materials and after the detaining authority was satisfied that the order of detention was called for in the facts and circumstances of the case. With regard to the representations submitted by the detenue, it has been mentioned that the same were duly considered by both the State Government and the Central Government and on such consideration the same had been rejected. 10. On a perusal of the records produced by the learned Govt. Advocate as mentioned above, the following facts emerge by a communication dated 29.6.2001, the dossier of the case relating to the detenu along with the certified copy of supporting documents were forwarded by the Superintendent of Police, DSB, Barpeta, Assam to the respondent No. 4. for the perusal of the latter in connection with the detention of the petitioner, for obvious reasons it is not felt advisable to record in details the particulars of the documents referred to above. It would however be sufficient to mention that the said documents included several first information reports, sezure list statement of the petitioner and other witnesses etc. Relating to alleged activities of the detenu. It would be pertinent to notice at this stage that a mere look at the grounds of detention would clearly indicate that those referred to several police cases, source reports, seizure list etc. relatable to the said cases. Thereafter the order of detention was passed on 23.7.2001. The grounds of detention are also signed by the respondent No. 4 on 23.7.2001. Memo No. DSB/ BPTA/32-B/2001/552 dated 24.7.2001 issued by the Superintendent of Police, DSB, Barpeta show that a copy of the detention order had been served on the detenu at Barpeta District Jail. It transpires from Memo No. DSB/BPTA/SECTT-1/ 2001P550 dated 23.7.2Q01 that a copy of the detention order and the grounds of detention in English and Assamese were forwarded to the officer-in-charge, Barpeta .P.S.for service of the same on the detenu. It further transpires from the records that the order of detention and the grounds were served on the detenu on 24.7.2001. Thereafter by order dated 4.8.2001 the Government approved the order of detention. The matter was referred to the Advisory Board on 7.8.2001 and the sitting of the Advisory Board was fixed on 13.8.2001. It further transpires from the records that the order of detention and the grounds were served on the detenu on 24.7.2001. Thereafter by order dated 4.8.2001 the Government approved the order of detention. The matter was referred to the Advisory Board on 7.8.2001 and the sitting of the Advisory Board was fixed on 13.8.2001. In the meantime on 12.8.2001 the detenu had submitted a representation (Annexure-III to the petition) before the Advisory Board , Assam. The said representation was placed before the Advisory Board and the Advisory Board on 6.9.2001 submitted its report expressing its opinion that there were sufficient materials to support the order of detention under the Act. In the meantime , by an order dated 30.8.2001 the State Government, on a consideration of the representation dated 12.8.2001 submitted by the detenu, rejected the same. Before we proceed further , it will be apposite to mention, that the Advisory Board before submitting the report as mentioned above had explained the grounds of detention to the detenu and had considered his written representation, his oral submission and other materials available in the records produced by the State Government. As noticed above, the records disclosed that the detenu was furnished on 24.7.2001, only the order of detention and the grounds of detention. No other document or materials on which the grounds of detention were formulated was furnished to him. The grounds of detention as already noticed contained clear references of police cases, source report seizure list etc. Before the order was passed the dossier relating to the petitioner with all supporting documents supposed to be contains the materials on which the detaining authority had formed its satisfaction were forwarded by the Superintendent of Police DSB, Barpeta to the respondent No.4. None of these documents were furnished to the detenu. Accordingly the representation which was submitted by him before the Advisory Board and which , as it appears, had also been purportedly considered by the State Government was submitted by him in absence of such material documents and particulars. None of these documents were furnished to the detenu. Accordingly the representation which was submitted by him before the Advisory Board and which , as it appears, had also been purportedly considered by the State Government was submitted by him in absence of such material documents and particulars. The State Government rejected his representation and the Advisory Board submitted its report expressing its opinion that there were sufficient grounds to support the order of detention not only by referring to the order of detention and the grounds of detention but also all other relevant materials contained in the records in support thereof though the same were with -held from the detenu/ petitioner. The question is as to whether the order of rejection of the representation of the detenu by the Government and the opinion of the Advisory Board as mentioned above can be said to be in conformity with the constitutional mandate contained under Article 22 (5) of the Constitution and the procedural safeguard prescribed by Section 8 of the Act. 11. However continuing with the chain of events as disclosed by the records the State Government vide order dated 21.9.2001, going through the report of the Advisory Board, confirmed the order of detention date 23.7.2001 and directed that he be detained for a period of twelve (12) months from the date of detention. By a communication dated 24.9.2001 the Central Govt. conveyed its decision rejecting the representation dated 12.8.2001 addressed to the Advisory Board, Assam, copy whereof was sent to the Central Govt. for consideration under the Act. The said letter however does not disclose as to when the said representation was placed before the Central Govt. for its consideration. It is however noticeable that though the representation was dated 12.8.2001 the decision rejecting it was communicated only on 24.9.2001 the detenu had submitted another representation dated 23.11.2001. (Annexure-V to the petition) the respondent No. 4 while fowarding his comments on the said representation and dealing with the contentions of the detenue, that the grounds of detention were extremely vague and devoid of materials particulars, referred to "specific report" of the Superintendent of Police Barpeta which according to the respondent No. 4 justified the involvement of the detenu in various crimes. He further commented that the detenu had been furnished with the necessary documents on 24.7.2001. He further commented that the detenu had been furnished with the necessary documents on 24.7.2001. We have already noted above that the documents was served on 24.7.2001 are only the order of detention and the grounds of detention. The Central Government thereafter by communication dated 21.12.2001 communicated its decision rejecting the said representation and the State Government by order dated 24.12.2001 rejected the same as well. 12. What therefore surfaces from a survey of the records produced on behalf of the State Govt. is that the detaining authority had furnished* the order of detention and the ground of detention to the detenue on 24.7.2001. No other document or particulars on which the detaining authority had based its satisfaction was furnished to the detenu though there are specific references of several Police cases, source report, seizure list etc. in the grounds of detention which had indubitably contributed to the formation of the satisfaction of the detaining authority which is the condition precedent for passing such an order of detention under the Act. The detenu in his representation dated 23.11.2001 had categorically contended that the grounds of detention were vague and devoid of any material particulars and that without all relevant materials, facts and particulars he was not in a position to submit any effective representation against the order of detention save and except putting forward a general denial of the allegations as mentioned above. While rejecting the representations submitted by the detenu the State GovUhe Central Govt. and the Advisory Board had considered not only the grounds of detention but also other materials on record in support thereof. Without however making those available to the detenu. Can it be said that in such circumstances either the detenu was afforded a real opportunity of submitting an effective representation against his detention or whether his representations were disposed of in a manner required under the law ? 13. We have carefully considered the submissions advanced by'the learned counsel for the parties in support "of their respective cases. 14. Can it be said that in such circumstances either the detenu was afforded a real opportunity of submitting an effective representation against his detention or whether his representations were disposed of in a manner required under the law ? 13. We have carefully considered the submissions advanced by'the learned counsel for the parties in support "of their respective cases. 14. Article 22 (5) of the Constitution of India mandates that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order should as soon as may be, communicate to such person the grounds on which the order has been made and should afford him the earliest opportunity of making a representation against the order. The Act is a law made under Article 22 of the Constitution of India and Section 8 thereof reads as hereunder: "8. Grounds of order of detention to be disclosed to persons affected by the order - (1) 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 latter than ten days from the date of detenion, 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. (2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose," 15. The salutory purpose of the above provision of law is to provide a meaningful opportunity to the detenu to submit an effective representation against the order of detention. The said opportunity, to be real and purposeful, the detenu has to be furnished with all necessary relevant materials so as to submit a self contained reply against the order of detention. If the materials supplied to him are in sufficient and lacking in materials facts and particulars, he would not be in a position to submit an effective representation as contemplated under Article 22 (5) of the Constitution of India and Section 8 of the Act and in such an eventuality the purpose of providing such procedural safeguard would be frustrated. If the materials supplied to him are in sufficient and lacking in materials facts and particulars, he would not be in a position to submit an effective representation as contemplated under Article 22 (5) of the Constitution of India and Section 8 of the Act and in such an eventuality the purpose of providing such procedural safeguard would be frustrated. Can the expression "grounds" referred to above be thus confined only to the bare grounds in support of the order of detention or should be interpreted and understood to include within its sweep all other relevant materials and documents which essentially were taken into consideration by the detaining authority in forming its satisfaction in sup Sort of the order of detention. 16. The Apex Court in a decision reported in (1999) 2 SCC 646 State of T.N. Vs. Senthil Kumar and another) was seized with a situation where additional materials in support of the grounds already conveyed to the detenu was furnished to him but such additional materials were sent to the detenu without a covering letter and without it disclosing to him for what purposes those were sent to him and also without mentioning that those would be placed before the Advisory Board as well as the Government in connection with the confirmation of the order of detention. The Apex Court observed, that in such circumstances the detenu was deprived of his right to make an effective representation to the Government. Referring to the nature of the preventive detention being one without any trial, the Apex Court observed that the courts should adhere to strict compliance of the procedural safeguard in every case of preventive detention. It further observed that a casual or random approach in complying with procedural safeguards v more often result in infringement of the said safeguards and vitiates the detention. (The Apex Court in the said case up-held the order of the High Court quashing the order of detention. A similar question arose before this Court in a case reported in (2000) 3GLT 208: (2002) 1 GLR 155 (Bhaba Tahu @ Anjol Payng @ Nibaran Gogol Vs. Union of India and others) where it was contended on behalf of the detenu that no materials supporting the grounds or otherwise, relied upon by the detaining authority was furnished to him and therefore his right to make a representation was denied. Union of India and others) where it was contended on behalf of the detenu that no materials supporting the grounds or otherwise, relied upon by the detaining authority was furnished to him and therefore his right to make a representation was denied. This Court held that "grounds" mean communication thereof along with all relevant materials and facts constituting the grounds and not mere narration of facts or conclusions. This Court further observed that failure to furnish the copies of documents in support of the grounds together with other relevant materials and facts on the basis of which the detaining authority formed his subjective satisfaction negates the right of the detenu to make a real and effective representation. The order of detention on that ground was declared to be illegal in that case. In a series of judgments of the Apex Court the above view has been reiterated time out of number and therefore I do not wish to further burden this judgment by referring to the same. 17. In the case in hand as well , the detenu has not been furnished with essential facts, particulars and supporting documents in addition to the grounds in order to enable him to make a real and effective representation against the order of detention. On the other hand the Central Govt. the State Govt. and the Advisory Board have rejected his representation (s) on a consideration of the grounds of detention as well as other supporting materials on record which were not furnished to him. In the opinion of this Court not only has the detenu been denied his constitutional as well as statutory right to submit an effective representation against the order of detention, the authorities mentioned herein above in rejecting his representations overlooked this vital aspect of the matter and they have acted in derogation of the mandates of the constitution and the provisions of the Act in this regard. The commission on the part of the authorities in furnishing the essential facts and particulars and the supporting documents as indicated above has grossly infringed the constitutional as well as the legal right of the detenu/petitioner as indicated above. His continued detention pursuant to the impugned order of detention dated 23.7.2001 and subsequent confirmatory orders is therefore illegal. 18. For the forgoing reasons we are inclined to allow the petition which we hereby do. His continued detention pursuant to the impugned order of detention dated 23.7.2001 and subsequent confirmatory orders is therefore illegal. 18. For the forgoing reasons we are inclined to allow the petition which we hereby do. The continued detention of the detenu Is held to be vitiated. The detenu Sukh Ram Rava be set at liberty forthwith, unless he is wanted in connection with any other cases.