Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 195 (GAU)

Jagadish Debbarma @ Jester v. State of Tripura

2004-03-18

I.A.ANSARI, T.VAIPHEI

body2004
T. VAIPHEI, J.— This writ petition is filed by the detenue, Jagadish Debbarma @ Jester, under Article 226 of the Constitution of India seeking issuance of a writ of Habeas Corpus and other writ(s) for quashing the order of detention, dated 02.04.2003 (Annexure-P/1) passed by the respondent No.2 in exercise of powers conferred under Section 3(3) of the National Security Act, 1980 (hereinafter referred to as "the Act") with a view to preventing him from indulging in any activities in a manner prejudicial to the public order within the local limits of the jurisdiction of the District Magistrate, West Tripura. 2. Since we decide to dispose of this writ petition on a narrow campus, we straightway record the undisputed material facts as emerged from the writ petition and the counter affidavit filed by the State respondents. The respondent No.2 issued the detention order, dated 2.4.2003 (Annexure-P/1) of the petitioner, which was approved by the State Government on 8.4.2003 (Annexure-R/2) on which date it also reported to the Central Government the fact of its approval of the said detention with the grounds of detention and other relevant papers sent by speed post subsequently. Though the order of detention was issued and "served" upon the petitioner on 2.4.2003, he was actually detained by executing the impugned order of detention only on 30.9.2003 vide para 15 of the counter affidavit and the letter dated 20.10.2003 of the respondent No.2 at Annexure-R/3. By the letter dated 17.10.2003 (Annexure-R/5) and the order dated 17.10.2003 (Annexure-R/5), the matter was placed before the Advisory Board for its consideration. By the letter dated 7.11.2003 (Annexure-R/6), the report of the Advisory Board approving the detention was sent to the State-respondents. Thereafter, the State Government confirmed the impugned detention order vide the order dated 12.11.2003, at Annexure-A/8. The counter affidavit of the State-respondents was not sworn by the detaining authority, i.e. the District Magistrate, but by the Under Secretary to the Government of Tripura, Home Department. There has been a delay of about 6 months in executing the detention order against the petitioner. 3. Mr. The counter affidavit of the State-respondents was not sworn by the detaining authority, i.e. the District Magistrate, but by the Under Secretary to the Government of Tripura, Home Department. There has been a delay of about 6 months in executing the detention order against the petitioner. 3. Mr. S. Deb, learned counsel for the petitioner, submits that since there has been a delay in executing the detention order i.e., from 2.4.2003 to 30.9.2003, in the absence of any satisfactory explanation to that effect, the subjective satisfaction of the detaining authority in issuing the detention order has been vitiated by reason of non-execution of the detention order within a reasonable time. Strong reliance is placed by him upon the decisions of the Apex Court in A. Mohammed Farook Vs. Jt. Secy, to G.O.L and Others, (2000) 2 SCC 360 and SMF Sultan Abdul Kader Vs. Jt. Secy, to the Govt. of India and Others, (1998) 8 SCC 343 . Next, he contends that since the period of 12 days required for approval by the State Government is to be reckoned from the date of execution of the (Retention order, the approval of such detention order by it on 8.4.2003, when the detention order had not even been factually executed, is non-est thereby rendering the detention of the petitioner illegal. Alternatively, he submits, if the detention order was actually executed on 30.9.2003, which is the case here, the detention order is not sustainable in law since the detention order was approved by the State Government only on 12.11.2003 i.e., after 42 days. To buttress his contention, Mr. Deb refers to Navalshankar Ishwarlal Dave and Another Vs. State of Gujarat and Others, 1993 Supp(3) SCC 754; Kamleshkumar Ishwardas Patel Vs. Union of India and Others, (1995) 4 SCC 51 ; State of Maharashtra and Others Vs. Santosh Shankar Acharya, (2000) 7 SCC 463 . He further submits that from30.9.2003 to 12.11.2003 i.e., from the date of execution of the detention order till the date of approval given by the State Government to the said detention order, the petitioner was never given the right to make representation to the detaining authority or to the State Government and that the so-called approval of the State Government given on 8.4.2003 before execution of the detention order was non-est and could not validly cure such a fundamental defect. Mr. Mr. D. Sarkar, learned Public Prosecutor appearing for the State-respondents, however, submits that there is no infirmity in the detention order since the requirements of all the safeguards provided in Sections 3(4), 8 and 11 of the Act have been substantially complied with by the State Government. According to him, the approval of the State Government accorded on 8.4.2003 to the detention order has obviated the necessity to give further approval thereafter.. 4. In order to appreciate the rival contentions of the parties, we may reproduce hereunder the provisions of Sections 3(4), 8 and 10 of the Act: "3(4) When any order is made under this Section by an officer mentioned in Sub-section (3), he shall forthwith report 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 on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government: Provided that where under Section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this Sub-section shall apply subject to the modification, that, for the words "twelve days", the words ''fifteen days" shall be substituted. 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 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 (2)Nothing in Sub-section (1) shall require the authority to disclose facts, which it considers to be against the public interest to disclose. 10. 10. Reference to Advisory Board - Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government 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." 5. Sub-section 4 of Section 3 says that when any order of detention is made under sub-section (1) thereof by any authorised officer, he shall forthwith report the fact of detention to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and no such order shall remain in force for more than 12 months after making thereof, unless, in the meantime, it has been approved by the State Government. In Navalshankar Ishwarlal Dave case (supra), the Apex Court, in the context of another preventive detention law, namely, Gujarat Prevention of Anti-Social Activities Act, 1985, has held that if an order of detention was made by the authorised officer, he shall report the same as early as possible without any delay and the State Government shall approve the same within 12 days from the date of its making. In other words, the effect would be that the authorised officer should report as early as possible from the date of execution of the order of detention to the Government and the order remains valid and in force for 12 days from the date of its execution. If the order of detention is not approved by the State Government within 12 days of its execution, the order of detention shall stand lapsed. For valid continuance of the detention order after 12 days, approval is mandatory and remains in force till it is approved by the Advisory Board. If the Board disapproves, the State Government shall release the detenue forthwith. It is a condition precedent. If the Board approves it, then, the State Government shall confirm it. For valid continuance of the detention order after 12 days, approval is mandatory and remains in force till it is approved by the Advisory Board. If the Board disapproves, the State Government shall release the detenue forthwith. It is a condition precedent. If the Board approves it, then, the State Government shall confirm it. Whether a detenue under preventive detentive law has the right to make representation before the detaining authority and the State Government, independent of his right to make representation before the Advisory Board, is no longer res integra. The Apex Court in Kamleshkumar Ishwardas Patel (supra) at para 14, observed:- "14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e. the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation." 6. The aforesaid paragraph thus shows that Article 22(5) of the Constitution of India confers upon the detenu the fiindamental right to make representation against his detention to the detaining authority and the State Government and thereby casts corresponding obligation upon the detaining authority to inform the detenue of his right to make a representation against the order of detention to the authorities, who are required to consider such a representation. In Santosh Shankar Acharya (Supra), the Apex Court towards the end of paragraph 5 of the judgment (page 470) held:- "......... In Santosh Shankar Acharya (Supra), the Apex Court towards the end of paragraph 5 of the judgment (page 470) held:- "......... This being the position, non-communication of the fact to the detenu that he could make a representation to the detaining authority so long as the order of detention has not been approved by the Government in a case where an order of detention is issued by an officer other than the State Government under sub-section (2) of section 3 of the Maharashtra Act (Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers. Drug Offenders and Dangerous Persons Act 1981) would constitute an infraction of a valuable right of the detenue under Article 22(5) of the Constitution and the ratio of the Constitution Bench decision of this Court in Kamleshwar case would apply notwithstanding the fact that in Kamleshwar case the Court was dealing with an order of detention issued under the provisions of the Cofeposa Act." (Emphasis ours) 7. At the end of its judgment in Santosh Shankar Acharya, the Apex Court held, "This being the position, ft goes without saying that even under the Maharastra Act a detenue will have a right to make representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently noncommunication of the fact to the detenu that he has a right to make a representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would take the order of detention invalid." 8. From the aforesaid three judgments of the Apex Court, the following principles may be deduced: - a) The right to make representation before the detaining authority by a detenue against an order of detention is in addition to, and independent of, his right to make such representation before the State Government and the Advisory Board. b) The detaining authority has the corresponding obligation to inform the detenu of his right to make such representation not only before the State Government but also before the detaining authority itself. b) The detaining authority has the corresponding obligation to inform the detenu of his right to make such representation not only before the State Government but also before the detaining authority itself. c) Since the State Government has necessarily to approve such detention order within a period of 12 days, the detaining authority must communicate such fact of detention along with the grounds of detention and other materials to the detenu well ahead in time, much prior to the expiry of 12 days time, so as not to render illusory the obligation of the detaining authority to consider detenu's representation forthwith. d) The ruling of the Apex Court under Cofeposa is held applicable to a situation under a statute relating to preventive detention. e) If the State Government does not approve the order of detention wfthin a period of 12 days from the date of execution of the detention order, the same becomes non-est and the subsequent confirmation by the Advisory Board or the State Government does not blow life into the corpse and in either case, the order of detention becomes illegal. f) The order of detention must be approved by the State Government within 12 days of the order of detention and failure to do so would render the detention illegal. 9. We shall, now, proceed to examine the instant case in the light of the above principles. It is the case of the State-respondents that even though the order of detention of the petitioner was, admittedly, executed on 30.9.2003, the other equally admitted fact that the impugned order, which already stood approved by the State Government on 8.4.2003, rendered further approval of the detention order after 30.9.2003 unnecessary. This submission of the State Government is to be noted only to be summarily rejected for the simple reason that when the order of detention in respect of the petitioner was not even executed, the question of giving approval to the detention order does not arise. After all, it is the detention of the petitioner, which needs to be approved and not the piece of paper reciting the order of detention. After all, it is the detention of the petitioner, which needs to be approved and not the piece of paper reciting the order of detention. If this contention is accepted, then, on the admitted facts of this case, the petitioner was not even given the right to make representation against the order of detention by the State Government before giving its approval to the order of detention thereby violating his fundamental right guaranteed under Article 22(5) of the Constitution. As pointed out earlier, the order of detention was actually executed on 30.9.2003. The case of the State-respondents is that the fact of detention of the petitioner alongwith the grounds for detention and other particulars were placed before the Advisory Board for confirmation of his detention vide the letter 17.10.2003 at Annexure-R/5 and that the Board, in its report, at Annexure-R/6, approved the detention of the petitioner. According to the State-respondents, it was on the basis of the report of the said Board that the order confirming his detention was issued by the letter, dated 12.11.2003, at Annexure-R/8. 10. The State-respondents have also made available to us the entire records in connection with the detention of the petitioner. On going through the said record and also the counter-affidavit of the State-respondents, we do not find any materials to show that the detaining authority i.e. the respondent No.2 informed the petitioner of his right to make representation before him against the detention order within 12 days of the execution of the detention order. No materials are available from the record either to show that the petitioner was given the right to make representation to the State Government before giving its approval to the detention order; indeed, no such approval was given at all by the State Government to the detention order till the detention order was considered and approved by the Advisory Board on 7.11.2003. As adverted to earlier, the contention of the State-respondents is that once the approval was given by the State Government in respect of the order of detention on 8.4.2003, no further approval was necessary after the execution of the detention order on 30.9.2003. Having held that such approval must be made after execution of the order of detention and not before, this submission does not survive for consideration. Having held that such approval must be made after execution of the order of detention and not before, this submission does not survive for consideration. In view of our findings that the petitioner was denied of his right to make representation before detaining authority after execution of the order of detention and that no approval was given by the State Government to the order of detention within 12 days of the execution of the same, we hold that the valuable right guaranteed to the petitioner under Articles 22(5) of Constitution has been violated and such omission or failure render the impugned detention order unconstitutional. 11. It is also contended by Mr. D. Sarkar, the learned Public Prosecutor, that the petitioner is a member of All Tripura Tiger Force, a banned terrorist outfit, and that it was with a view to preventing him from indulging in offences such as murder, kidnapping, extortion etc. that he has been preventively detained. Therefore, it is submitted, the petitioner is not entitled to be released in public interest and for reasons of the security of the State. A somewhat similar submission was made by the Union of India in the context of preventive detention under Cofeposa Act in Kamleshkumar Case (supra) but this is what the Apex Court has to say at para 49 of the judgment: "49. At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenus have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti-national activities which are very harmful to the national economy. He has urged that having regard to the nature of the activities of the detenue the case do not justify interference with the orders of detention made against them. We are not unmindful of the harmful consequences of the activities in which the detenus are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "zealously watched and enforced by this Court". Their rigor cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by this Court while rejecting a similar submission (SCC para 4)." "May be that the detenue is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralyzed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus." (See Rattan Singh V. State of Punjab, [(1981)4SCC481]" 12. The aforesaid observations of the Apex Court furnish a complete answer to the said submission of the learned Public Prosecutor. For the view that we have taken that the impugned detention order is invalid on the ground referred to earlier, we do not think it necessary to decide the remaining submissions of the learned counsel for the petitioner. 13. The offshoot of the above discussion is that the impugned detention order, dated 2.4.2003 at Annexure-P/1 is hereby quashed. The petitioner is, accordingly, ordered to be set free forthwith.