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2004 DIGILAW 290 (GAU)

Krishna Kanta Hazarika v. Union of India

2004-04-27

AMITAVA ROY, P.G.AGARWAL

body2004
JUDGMENT Amitava Roy, J. 1. The constitutional validity of the preventive detention of the petitioner under the National Security Act, 1980 (hereinafter referred to as the Act) has been questioned in the instant proceeding. The petitioner has been detained by the order dated 1.11.2003 and is presently lodged in the District Jail (Central Jail), Guwahati, Assam. 2. We have heard Mr. A.M. Buzarbaurah, learned counsel for the petitioner and Mr. S. Ali, Additional Advocate General, Assam, assisted by Miss G. Deka Govt. advocate, Assam for the respondents. 3. The relevant facts lie in a short compass. The petitioner who was arrested on 2.9.03 in connection with Dispur P.S. Case No. 903/03 came to be detained thereafter under the Act by the order passed on 1.11.03 in exercise of powers under Sub-sections (2) and (3) of Section 3 thereof. The grounds of detention were furnished to the petitioner on 9.11.03 and he submitted a representation on 10.12.03 before the Government of Assam as well as the Central Government. The detention has been assailed inter alia on the ground that the order of detention is in contravention of the Act. The ground of detention are vague and have no nexus with the object of detention and that there has been undue delay in disposal of the representation. 4. The Union of India in its counter has pleaded that the report of the detention was made to it by the Government of Assam on 13.11.03 and that the representation was considered and rejected by order dated 30.12.03. The State respondents while refuting the contentions of the petitioner have maintained that there were sufficient and convincing grounds to pass the order of detention which were furnished to the detenu on the date of his detention. The Government approved the order of detention on 29.12.03 and the decision was communicated to the detenu immediately thereafter. According to them the order of detention was confirmed by the Government on 7.1.2004 after receiving the opinion of the Advisory Board. 5. The main thrust of the arguments on behalf of the petitioner has been that the order of detention passed in the purported exercise of powers under Sub-sections (2) and (3) Section 3 of the Act is ex facie illegal and not sustainable inasmuch as, the same does not mention any period of detention and reads "until further orders". According to Mr. According to Mr. Bazarbaruah this order being per se in contravention of Section 3(2) and 3(3) of the Act, the same is liable to be quashed and the continued detention of the petitioner is to be adjusted, illegal and unconstitutional. 6. The learned Additional Advocate General, Assam on the basis of the materials on record as well as the relevant provisions of the Act could not effectively controvert the above contention. 7. In a recent decision of this court in WP (Crl) No. 27/2003 (Amrit Ballav Goswami @ Mizu Phukan v. The Union of India and Ors.) relying on the decision of the Apex court in (1988) SCC 568 (Commissioner of Police and Ors. v. Gurbox Anandram Bhiryani), it has been held that the provision of Sub-section (3) of Section 3 is mandatory in nature and is to be compiled with for the detention to be valid. This view has been reiterated in a later judgment rendered in WP (Crl) 22/03 (Sunil Brahma v. Union of India and Ors.). In those cases as well in the orders of detention passed under Section3(3) of the Act no period was mentioned and the detention was ordered until further orders as in the case in hand. 8. Article 22 of the Constitution of India authorizes preventive detention strictly in terms of a law made by the Parliament. The detention essentially, therefore has to be in compliance of the provisions of such law. Any breach thereof or departure therefrom would impinge upon the constitutional and statutory rights of the person concerned invalidating the order of detention. As preventive detention involved deprivation of the civil liberty of a person without trial or a prior notice to represent against the same, no deviation from the mandate of the law authorizing such detention even in the minimum is permissible and the administrative authorities are to be held rigorously to the prescriptions of the enactment. Any order of detention passed in derogation of any provision of the preventive detention law renders it void ab initio and the illegality cannot be cured by any subsequent actions. 9. Section 3(3) of the Act permits detention of a person to start with for a period not more than 3 months. The mandate is clear and unequivocal. Any order of detention passed in derogation of any provision of the preventive detention law renders it void ab initio and the illegality cannot be cured by any subsequent actions. 9. Section 3(3) of the Act permits detention of a person to start with for a period not more than 3 months. The mandate is clear and unequivocal. The impugned order of detention which does not spell out the period thereof but mentions that the petitioner be detained "until further orders" is on the face of it in contravention of the said provision of the Act. The order therefore, is still born and non est. Hence subsequent approval and confirmation thereof cannot salvage it in law. We have thus no hesitation in returning the finding that the impugned order of detention is illegal and unconstitutional and so is the continued detained of the petitioner. The impugned order is therefore quashed. The petitioner would be set at liberty forthwith if he is not required in connection with any other case. 10. We feel it pre-eminently essential to record a few observations of ours at this juncture. We have noticed the grounds on which the detention had been ordered. We have marked, as the impugned order discloses, that the purpose of detaining the petitioner had been to prevent him from acting in any manner prejudicial to the maintenance of the public order and the security of the State. If that be so, we are surprised, to say the least, by the irresponsible and casual approach displayed by the concerned District Magistrate in passing the impugned order of detention-being blissfully unaware of the basic requirements prescribed by the Act. We have come across a good number of orders which because of the same legal infirmity had to be quashed. It is high time that the State Government takes immediate steps to alert and acquaint the concerned authorities about the mandates of the various provisions of the Act, more particularly, Section 3 thereof and the consequences of the contraventions relating thereto so that the orders claimed to be passed in public interest are not set at naught on such preliminary objections. We hope and trust that the learned Advocate General, Assam would take necessary initiative in this regard.