Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 600 (GAU)

Nurul Hussain v. Union of India

2004-12-03

ANIMA HAZARIKA, D.BISWAS

body2004
JUDGMENT D. Biswas, Actg. C.J. 1. Heard Mr. AC Borbora, learned senior counsel for the petitioner, Mr. D. Baruah, learned Addl. CGSC and Mrs. A. Aier, learned State counsel. 2. The detention of the petitioner Shri Nurul Hussain under Section 3 of the National Security Act, 1980 is in challenge in this petition. 3. The Chief Secretary (Home), Govt. of Nagaland in exercise of the powers conferred upon him under Sub-sections (1) and (2) of Section 3 of the Act of 1980 ordered that the petitioner be detained and kept in Central Jail, Dimpaur. The order has been passed after being satisfied that the petitioner has been acting in a manner prejudicial to the defence of India, security of the State of Nagaland and maintenance of public order. 4. Along with the detention order the grounds of detention have been furnished. A recital of the grounds of detention indicates that the petitioner was informed of his right to prefer representation to the detaining authority and the State Government through the concerned jail authority. He was also informed of his right of hearing before the Advisory Board constituted under the provisions of the Act of 1980. Obviously, the petitioner was not informed of his right to make representation before the Central Government. 5. It is in this context Mr. Borbora, learned counsel relying upon the decision of a Division Bench of this Court in Hemanta Nath, Petitioner v. State of Assam and Ors., Respondents 1998 (2) GLT 344 argued that the omission on the part of the authority to apprise the detenue of his right to make representation before the Central Government would vitiate the order of detention. The Division Bench, in that judgment, noticed that the detenue was not apprised of his right to make representation to the Central Government against his detention. It was held that the detenue ought to have been informed of his right to make representation to the Central Government since the Central Government has the power to revoke any order of detention passed or confirmed by the State Government under Section 14 of the Act of 1980. 6. It was held that the detenue ought to have been informed of his right to make representation to the Central Government since the Central Government has the power to revoke any order of detention passed or confirmed by the State Government under Section 14 of the Act of 1980. 6. By the judgment and order dated 14.10.2004 passed in W.P. (Crl) 39/2004, a Division Bench of this Court quashed an order of detention under Section 3 of the Act of 1980 on the ground that right to make representation to the Central Government was not communicated to the detenue. The Division Bench held that the effect of transgressing the rights under Article 22(5) of the Constitution would vitiate the order of detention. 7. In the instant case as well, there is no dispute that the detenue was not communicated about his right to make representation to the Central Government. In para 11 of the petition, a specific averment has been made by the petitioner that he was not informed of his right to make representation to the Central Government. In the affidavit-in-opposition, in para 9, the State of Nagaland only denied the averments made in the writ petition. No document has been submitted to show that the petitioner was informed of his right to make representation before the Central Government. The affidavit filed by the Central Government also indicates that they have not received any representation from the detenue. Therefore, this Court has no option but to conclude that there has been transgression of petitioner's fundamental rights guaranteed under Article 22(5) of the Constitution. 8. We, therefore, allow this petition, quash the order of detention dated 30th July, 2004 and direct the detenue Shri Nurul Hussain be set at liberty forthwith if his detention is not required in connection with any other case. 9. No costs.