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2003 DIGILAW 175 (GAU)

Chubakumla v. Union of India (UOI)

2003-04-24

D.BISWAS, I.A.ANSARI

body2003
JUDGMENT 1. This habeas corpus petition has been filed against the order, dated 6th January, 2003 passed by the Special Secretary to the Government of Nagaland, Under Sub-sections (1) and (2)of Section 3 of the National Security Act 1980 detaining Srimati Yanger Ao @ yanager Ao, son of Late Takanung Sang Ao of Village Dibuia, P.O. and P.S. Mokokchung in the District of Mokokchung, Nagaland. 2. We have heard Mr. D.K. Mishra, learned Senior Counsel for the Petitioner, Sri C. Choudhury, learned CGSC for the Respondent No. 1, and Smti Tikho, learned Counsel appearing on behalf of the State Respondent. 3. The Petitioner is the wife of the detenue. On being aggrieved by order of detention passed by the Special Secretary, she has filed this writ petition challenging the legality and validity of the order of detention. The Union of India has not filed any affidavit in this case. An affidavit has been filed on behalf of the Respondent No. 2 and 3 by the Under Secretary, Government of Nagaland. 4. Mr. Mishra, learned senior Counsel for the Petitioner submitted that the order of detention cannot be maintained for the reason that the representation dated 15.1.2003 submitted by the detenue and meant for the Central Government was not at all forwarded by the Superintendent of Central Jail, Dimapur, Nagaland (Respondent No. 3). In support of this contention Shri Mishra referred to the averments made in paragraphs 20 and 24 of the writ petition and the reply thereto by the State Respondent in para-17 of the affidavit filed by them. According to Shri Mishra, learned senior Counsel, the State of Nagaland in their affidavit did not make any mention of the representation dated 15.1.2003 submitted by the detenue for onward transmission to the Central Government. According to him, the default on the part of the Respondent authority in forwarding the representation to the Central Government is apparent from the statements made in para-17 of the affidavit filed by the State. According to Shri Mishra, the failure on the part of the Respondent authority in forwarding the representation to the Central Government is violative of the provisions of Article 22(5) of the Constitution and this alone, according to the learned Counsel, is sufficient enough for setting aside the order of detention. According to Shri Mishra, the failure on the part of the Respondent authority in forwarding the representation to the Central Government is violative of the provisions of Article 22(5) of the Constitution and this alone, according to the learned Counsel, is sufficient enough for setting aside the order of detention. Shri Mishra, learned Counsel relied upon the decision of the Apex Court in Jai Prakash v. District Magistrate, Dulandshahar, U.P and Ors. reported in 1993 Supp. (1) SCC 392 B. Alamelu v. State of T.N. and Ors. reported in (1995) 1 SCC 306 and the judgment of this Court in Sri Puloto Kiho v. The State of Nagaland and Ors. reported in 1997 (2) GLT. 321 5. It would appear from para 20 of the writ petition that the detenue submitted representation to the Superintendent of Central Jail, Dimapur on 15.01.2003, both for the State Government and the Central Government. The Copies of the representation (Annexure-3 series) indicate that the Jail authority received the representation on the same date. Written acknowledgment on the copies of the representation show that the Jail authority received the same on 15.1.2003. The affidavit of the State Government and the documents annexed herewith do not suggest that the said representation was forwarded to the Central Government. In paragraph 24 of the writ petition, Petitioner expressed doubt as to whether the representation to the State as well as the Central Government were forwarded at all. In paragraph 17, the answering Respondents submitted that the representation submitted by the detenue was forwarded to the State Government by the A.I.G., Prisons, Central Jail, Dimapur by letter No. CJ-70/02-03/724, dated 16.01.2002. Copy of the aforesaid forwarding letter has also been annexed as Annexure-J. There is no mention as to what action has been taken by the Superintendent. Central Jail on the representation addressed to the Joint Secretary. NSA. Ministry of Home Affairs, Union of India. No mention of the said representation is available anywhere in the affidavit filed by the Respondent State. The irresistible conclusion, under the given circumstances, must be that the representation meant for the Central Government was not forwarded as is required under the law. This default on the part of the Respondent authority is unpardonable as it amounts to violation of the provisions of Article 22(5) of the Constitution. The irresistible conclusion, under the given circumstances, must be that the representation meant for the Central Government was not forwarded as is required under the law. This default on the part of the Respondent authority is unpardonable as it amounts to violation of the provisions of Article 22(5) of the Constitution. Needless to say that the Central Government have the powers under Section 14 of the NSA Act, 1980 to revoke or modify the order of detention. This default is in negation of the detenue's right of reconsideration of the order of detention as contemplated under the law and this alone, in our opinion, is sufficient enough for quashing the impugned order of detention dated 6.1.2003. 6. The judgment of the Apex Court as well as of this Court relied upon by Shri Mishra, learned Senior Counsel, as referred to above, also support the above view. The decision in Jai Prakash (supra) and B. Alamelu (supra) are decisive in the matter and this Court is left with no option but to interfere with the order of detention under challenge. 7. Hence, we allow the writ petition, quash the order of detention dated 6.1.2003 and direct that the detenue be release forthwith if not wanted in connection with any other case. 8. We are not inclined to address other grounds raised on behalf of the writ Petitioner in view of the above conclusion. 9. A copy of this order be furnished to the learned Counsel for the Petitioner during the course of the day. Petition allowed