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2004 DIGILAW 539 (GAU)

Rongjam Momin v. Union of India

2004-10-01

D.BISWAS, RANJAN GOGOI

body2004
JUDGMENT R. Gogoi, J. 1. The writ Petitioner Shri Rongjam Momin has been detained in custody by an order dated 17.05.2004 passed by the learned District Magistrate, East Garo Hills District, William Nagar under Section 3(1) of the Meghalaya Preventive Detention Act, 1985. At the time of his detention, the Petitioner was already in judicial custody in connection with certain specific Criminal Cases. Therefore, the order of detention dated 17.5.2004 along with the grounds therefore were served on the Petitioner in Jail on 17.05.2004 itself together with a forwarding letter of the same date, i.e., 17.05.2004. The following contents of the forwarding letter dated 17.05.2004 being relevant for the purposes of the present case, are being reproduced herein below: The following matters have a bearing on your detention and you please make note of the same. (a) You have the right to make representation (s) to the state government against the order of detention and your representation should be addressed to the Principal Secretary to the Government of Meghalaya, Political Department, Shillong through the Superintendent of District Jail, Jaintia Hills, Jowai. (b) You have the right to claim for personal appearance before the Advisory Board which is going to decide the validity of the order of detention. (c) Your representation (Sic) or counsel may inspect the documents pertaining to your detention in the office of the undersigned, if desired. This is for information and necessary action. 2. Against the detention made by order dated 17.5.2004, the Petitioner submitted a representation to the State Government on 1.6.2004, which was rejected by an order dated 15.7.2004. The aforesaid order of rejection of the Petitioner's representation though not brought on record by the writ Petitioner, is available in the original records placed before the Court on behalf of the official Respondents. It must also be noticed herein that in the meantime, the case of the Petitioner was considered by the Advisory Board as per the provisions of the Meghalaya Preventive Detention Act, 1995 (hereinafter referred to as the Meghalaya Act) and the Advisory Board had recommended to the State Government that there were sufficient grounds for the detention of the Petitioner under the provisions of Section 3(1) of the Act. 3. 3. Assailing the detention order dated 17.5.2004, Shri N. Dutta, learned Senior Counsel appearing for the Petitioner has submitted that the Petitioner, at no stage, was informed of his right to submit a representation to the detaining authority as well as to the Central Government and, therefore, the fundamental rights of the Petitioner guaranteed under Article 22(5) of the Constitution of India has been infringed, thereby vitiating the impugned detention order. In support, reliance has been placed on a judgment of this Court in the case of Thanglenmang Hangsing v. District Magistrate, Senapati District and Ors. reported in : 2004 (1) GLT 646. A decision of the Apex Court in the case of Kamleshkumar Ishwardas v. Union of India and Ors. reported in : (1995) 4 SCC 51 , has also been placed, Shri Dutta has argued that under Section 15 of the Meghalaya Act, the power of revocation of a detention order being without prejudice to the provisions of Section 35 of the Meghalaya Interpretation and General Clauses Act, 1972, the District Magistrate would be competent to vary or resent an order of detention passed by him till such time that the order remains in force. A detenu, therefore, would have aright to submit a representation to the detaining authority for revocation of the detention order, it is submitted. In the present case, the Petitioner was not informed of his right to file any such representation to the detaining authority. Neither was any such representation filed by the Petitioner. In so far as the right of the Petitioner to submit a representation to the Central Government is concerned, Shri Dutta, learned Senior Counsel has argued that the right of the detenu to submit a representation to the Central Government, in cases where the initial detention is made by the District Magistrate, will arise as soon as such a detention order passed by the District Magistrate is approved by the State Government under the provisions of the Meghalaya Act. Placing reliance on the judgment of the Apex Court in the case of Kamlesh Kumar (supra), learned Counsel has argued that upon approval of an order of detention passed by the District Magistrate by the State Government, the State Government becomes the detaining authority and the detention order becomes revocable by the Central Government under Section 15 of the Meghalaya Act. A right of representation to the Central Government, therefore, accrues to a detenu under the Meghalaya Act. In the present case, admittedly, the Petitioner was not informed of his right to make a representation to the Central Government nor was any such representation filed by the Petitioner. The impugned detention is, therefore, contended to be vitiated in law. 4. Arguing further, Shri Dutta has contended that in the present case, consideration of the representation of the Petitioner filed before the State Government was inordinately delayed. The aforesaid representation filed on 1.6.2004, was disposed of by the competent authority of the State Government on 15.7.2004. According to the learned Counsel, the period of 45 days taken to consider and dispose of the Petitioner's representation to the State Government has not been adequately and satisfactory explained. Shri Dutta has also argued that in the forwarding letter dated 15.7.2004 served on the Petitioner, it has been clearly mentioned that the authorized representative of the Petitioner may inspect the relevant documents in the Office of the District Magistrate. The aforesaid fact, according to the learned senior counsel for the Petitioner would go to show that the documents relevant to the detention of the Petitioner were not served on the Petitioner and, therefore, even his right to file a representation to the State Government has been materially affected by such omission, thereby vitiating the impugned order of detention. 5. Controverting the submissions advanced on behalf of the Petitioner, Shri U. Bhuyan, learned Government Advocate, Meghalaya has submitted that the Meghalaya Act does not confer the power of revocation on the detaining authority. The power of revocation of an order of detention is contained in Section 15 of the Meghalaya Act and the said power must be understood to be confined to only what has been expressly conferred by Section 15 of the Meghalaya Act. Learned Government Advocate, Meghalaya has further argued that the power of revocation conferred by Section 15 of the Meghalaya Act on the Central Government is available only where the initial order of detention is passed by the State Government, where the initial order is passed by the District Magistrate or by the empowered officer and subsequently approved by the State Government, no power of revocation of such orders can be read to have been vested in the Central Government by Section 15 of the Act. In so far as the time taken for disposal of the Petitioner's representation filed before the State Government is concerned, Shri Bhuyan has drawn the attention of the Court to the averments made in the affidavit of the official Respondents in this regard and has also relied on the records produced, in original, to show that the matter was processed at different levels and the period of 45 days was genuinely utilized to process, consider and finalize the Petitioner's entitlement for revocation of the detention order. In so far as the non-submission of requisite documents alongwith the grounds of detention is concerned, learned Government Advocate has contended that in the forwarding letter dated 17.5.2004, it has been clearly mentioned that the Petitioner could authorize his counsel or any other person to inspect the requisite documents in the Office of the District Magistrate, and therefore, no prejudice has been caused to the Petitioner in this regard, which could justify an interference of the order of detention. 6. We have given our deep and anxious consideration to all the arguments advanced on behalf of the rival parties. Though our acceptance of any one of the arguments raised on behalf of the Petitioner would enable us to interfere with the impugned order of detention, yet in view of the elaborate arguments advanced and particularly as the provisions of the Meghalaya Act has certain special features, we have considered it appropriate to give our views on all the questions raised by the rival parties. 7. Section 3 of the Meghalaya Act, which confers the power to detain and Section 15 which deals with the power of revocation of an order of detention passed under Section 3 of the Act may be usefully extracted herein below: 3.(1). The State Government or a District Magistrate may, if he is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or to the maintenance of public order or of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained. (2) The powers under Sub-Section (1) may also be exercised by such officer of the State Government not below the rank of a Secretary (hereinafter referred to as empowered officer) as may be specially empowered in this behalf. (2) The powers under Sub-Section (1) may also be exercised by such officer of the State Government not below the rank of a Secretary (hereinafter referred to as empowered officer) as may be specially empowered in this behalf. (3) When a detention order is made under this Section by a District Magistrate or officer, as the case may be, shall forthwith report the fact 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 twelve days after the making thereof unless in the meantime it has been approved by the State Government: Provided that where the grounds of detention are communicated under Section 8 to the person detained after five days not later than ten days from the date of detention, this such Section shall apply subject to the modification that for words "twelve days" the words "fifteen days" shall be substituted. 15.(1) Without prejudice to the provisions of Section 35 of the Meghalaya Interpretation and General Clauses Act, 1972 a detention order made by a District Magistrate or by the empowered officer may, at any time, he revoked or modified by the State Government and, in case of a detention orders made by the State Government, by the Central Government. (2) The revocation or expiry of a detention order shall not bar making of a fresh detention order against same person in any case where fresh facts have arisen after the date of such revocation or expiry and on which the State Government a District Magistrate or empowered officer, as the case may be, is satisfied that such an order should be made. Section 35 of the Meghalaya Interpretation and General Clauses Act, 1972 is in following terms: 35. Power to make Rules, etc. includes Power to Add, Amend, Vary or Rescind Rules, etc. -- Where, by any enactment, a power to issue rules, notifications, orders, schemes, forms or bye-laws is conferred, then, unless a different intention appears that power includes a power to add. to amend, vary or rescind any rules, notifications, Orders, Schemes, forms or bye-laws so issued in the same manner and subject to the same sanction and condition (if any) as the power to issue the rules, notifications, orders, schemes, forms or bye-laws. 8. to amend, vary or rescind any rules, notifications, Orders, Schemes, forms or bye-laws so issued in the same manner and subject to the same sanction and condition (if any) as the power to issue the rules, notifications, orders, schemes, forms or bye-laws. 8. This power of revocation of an order of detention passed by the District Magistrate or an empowered officer, undoubtedly, is not expressly conferred by Section 15 on the District Magistrate or the empowered officer, who may have passed the initial order of detention. The absence of an expressed conferment of power to revoke, however, must be considered in the context of the provisions of Section 35 of the Meghalaya Interpretation and General Clauses Act, 1972. Section 15having made it clear that the power conferred by the said provision of the Act being without prejudice to the provisions of Section 35 of the Meghalaya Interpretation and General Clauses Act, 1972, till such time that the order of detention passed by the District Magistrate or the empowered officer remains in force under Section 3(3) of the Meghalaya Act, the District Magistrate or the empowered officer, as the case may be, would be competent to vary, rescind or modify the detention order. As, till such time that an order of detention passed by the District Magistrate remains in force the District Magistrate would be competent to revoke the order, a detenu under the Meghalaya Act must be understood to have a right to file a representation to the detaining authority consistent with the provisions of Article 22(5) of the Constitution. This is the view taken by the Apex Court in the case of Kamlesh Kumar Ishwardas (supra) though the said view of the Apex Court was in the context of such a claimed right on the part of the detenu under the provisions of the COFEPOSA Act/PIT N.D.P.S. Act. In the aforesaid case, the Apex Court took the view that though under the aforesaid two Acts in question no power of revocation has been specifically conferred on any detaining authority other than the State and the Central Governments, yet such a power would be available as the power of revocation specifically conferred on the State and Central Governments, is without prejudice to the provisions of Section 21 of the General Clauses Act, 1897. The provisions of Section35 of the Meghalaya Interpretation and General Clauses Act, 1972 being pari materia with the provisions of Section 21 of the General Clauses Act, 1897, it is our considered view that the law laid down by the Apex Court in the case of Kamlesh Kumar Ishwardas (supra) would apply in all its vigour to a detention under the Meghalaya Act. In the present case, we have noticed that though the order of detention dated 17.5.2004 passed by the District Magistrate remained in force on its own strength till it was approved by the State Government on 27.5.2004, the Petitioner detenu was not informed of his right to file a representation to the detaining authority, i.e., the District Magistrate and no such representation was actually filed by the Petitioner. 9. The next point that would engage the attention of the Court is the right of the Petitioner-detenu to file a representation to the Central Government. Admittedly, the Petitioner was not apprised that he has any such right and no representation was filed by the detenu-Petitioner before the Central Government. The arguments advanced on this question by the rival parties have been elaborately noticed in a preceding paragraph of this order. In the case of Kamleshkumar (supra), the Hon'ble Supreme Court, inter alia, was required to consider the question as to whether an officer empowered by the State Government under the provisions of COFEPOSA/ PIT N.D.P.S. Act to pass an order of detention, becomes functus officio after passing of the order so as to denude any power in the said empowered officer to vary or revoke the detention made. While answering the aforesaid question, the Hon'ble Supreme Court exhaustively considered the provisions of the COFEPOSA/PIT N.D.P.S. Acts as well as the National Security Act and took the view that notwithstanding the fact that under the aforesaid Acts, there is no provision for approval by the State Government of the order of detention made by the officer empowered by the State Government as in the National Security Act, it cannot be said that an order of detention passed by such an empowered officer is so passed on the basis of a deemed approval by the State Government so as to denude the empowered officer of any power to revoke the detention order passed by him. While considering the provisions of the National Security Act in the above context, the following observations made by the Apex Court would be relevant to the point at issue in the present case: 34. In the National Security Act, there is an express provision (Section 3(4) in respect of orders made by the District Magistrate or the Commissioner of Police under Section 3(3) and the District Magistrate or the Commissioner of Police, who has made the order is required to forthwith report the fact to the State Government to which he is subordinate. The said provision further prescribes that 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. This would show that it is the approval of the State Government which gives further life to the order which would otherwise die its natural death on the expiry of twelve days after its making. It is also the requirement of Section 3(4) that the report should be accompanied by the grounds on which the order has been made and such other particulars as, in the opinion of the said officer, have a hearing on the matter which means that the State Government has to take into consideration the grounds and the said material while giving its approved to the order of detention. The effect of the approval by the State Government is that from the date of such approval the detention is authorized by the order of the State Government approving the order of detention and the State Government is the detaining authority from the date of the order of approval. In view of the aforesaid enunciation of the law under the provisions of the National Security Act and the provisions of Section 3(1) of the Meghalaya Act being perimateria with the relevant provisions of National Security Act, there can be no manner of doubt that after the approval was granted in the present case by the State Government by order dated 17.5.2004, the Central Government was competent to revoke the detention order of the Petitioner and, therefore, the Petitioner had a right under Article 22(5) of the Constitution to be informed of his entitlement to file a representation to the Central Government. The stage at which the Petitioner should have been apprised of the aforesaid right, a point on which much emphasis has been laid by Shri U. Bhuyan, learned Government Advocate, according to us, would be of no consequence. It is not difficult to visualize a situation where the stage at which such a right of detenu accrues can be appropriately transposed. For the aforesaid reasons, we unhesitatingly take the view that on both counts, i.e., the failure of the detaining authority to inform the detenu/Petitioner of his right to file a representation to the detaining authority as well as to the Central Government, the fundamental right of the Petitioner under Article22(5) of the Constitution has been infringed thereby vitiating, the impugned order of detention dated 17.5.2004 as well as the order approving the same passed by the State Government on 27.5.2004. 10. In so far as the time taken for disposal of the Petitioner's representation is concerned, we have noticed from the averments made in paragraph 14 of the affidavit of the official Respondents that the Petitioner's representation dated 1.6.2004 was forwarded by the Superintendent of District Jail, Jowai, to the Inspector General of Prisons at Shillong on 2.5.2004. The same was received by the Inspector General of Prisons on 8.6.2004 and was forwarded to the Principal Secretary to the Government of Meghalaya, Political Department on 14.6.2004. The official records produced show the manner in which the said representation was processed on and from 16.6.2004 leading to the order dated 15.7.2004 rejecting the said representation filed by the Petitioner. Even if we are to accept the case of the Respondents that the time taken was required for processing the Petitioner's entitlement at different levels of the State Government, we fail to comprehend as to why 7 days time was taken (from 2.6.2004 to 8.6.2004) for the representation of the Petitioner to reach the Inspector General of Prisons, though admittedly the distance between Jowai and Shillong can be covered in 2/3 hours. We also fail to see why it took another 7 days time from (8.6.2004 to 14.6.2004) for the Petitioner's representation to reach the table of the Principal Secretary to the Government of Meghalaya, Political Department. The aforesaid facts have not been satisfactory explained by the Respondents in the affidavit fled nor are the same explained by the official records. We also fail to see why it took another 7 days time from (8.6.2004 to 14.6.2004) for the Petitioner's representation to reach the table of the Principal Secretary to the Government of Meghalaya, Political Department. The aforesaid facts have not been satisfactory explained by the Respondents in the affidavit fled nor are the same explained by the official records. We, therefore, unhesitatingly take the view that the Petitioner's representation dated 1.6.2004 was not dealt with by the Respondents with utmost dispatch and expedition thereby infringing the Petitioner's fundamental right under Article 22(5) of the Constitution. 11. Before parting with the record, the point regarding non-supply of documents to the Petitioner as raised, may also be answered even if it be for the purpose of completing the catalogue of arguments raised. Article 22(5) of the Constitution confers on the Petitioner a fundamental right guaranteeing him every reasonable opportunity of making a representation against his detention made under a Preventive Detention Law. Furnishing of documents on the basis of which an order of preventive detention has been passed is a natural concomitant to the said guarantee. An opportunity of inspection to be carried out in the Office of the detaining authority by the representatives/counsel of a detenu will not satisfy the requirements imposed by Article 22(5) of the Constitution. Such an opportunity of inspection will be a legally unacceptable substitute for what has been mandated. We, therefore, again take the view that the non-supply of requisite documents along with the grounds of detention and a mere opportunity to inspect the documents as afforded in the present case infringes the Petitioner's fundamental rights guaranteed under Article 22(5) of the Constitution. 12. For all the aforesaid reasons, we consider the present to be a fit and appropriate case for interference. Accordingly, we set aside the impugned order of detention dated 17.5.2004 passed by the District Magistrate, Garo Hills District as well as the order of approval dated 27.5.2004 passed by the State Government and direct that the Petitioner/ detenu be set at liberty forthwith unless his detention or custody is required in connection with any other case. Petition allowed