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2005 DIGILAW 269 (GAU)

Gopal Boro @ Gwojen Boro v. Union of India

2005-03-31

AFTAB H.SAIKIA, D.BISWAS

body2005
JUDGMENT A.H. Saikia, J. 1. The detention order dated 16.6.2004 is sued by the District Magistrate, Barpeta under Sub-Section 3 of Section 3 of the National Security Act, 1980 (for short, 'the Act') has been impugned in this habeas corpus petition under Article 226 of the Constitution of India (hereinafter referred to as 'the Constitution'). 2. The correctness and legality of the detention order has been questioned precisely on the sole ground that the report dated 23.6.2004 with regard to the detention of the detenu/Petitioner, sent to the Central Govt. in terms of Section 3(5) of the Act has not yet been considered. Such inaction on the part of the Central Govt. has violated the procedural safeguards to the detenu and as such the impugned detention order is liable to be quashed. 3. Heard Mr. P.C. Dey, learned Counsel for the Petitioner. Also heard Mr. H. Rahman, learned Assistant Attorney General of India as well as Mr. B.J. Talukdar, learned State Counsel appearing for the official Respondents. 4. From a conjoint reading of the pleadings exchanged by and between the parties as well as on close perusal of the materials available on record, it appears that on 5.7.2004 the Central Govt. received the report dated 23.6.04 as required under Section 3(5) of the Act sent by the Govt. of Assam but no action has been taken for consideration of the same till date. Paragraph-4 of the affidavit-in-opposition filed on behalf of the Union of India speaks the said factual position as follows: That with regard to para 7, 9, 10, 11, 34 of the petition it is submitted that a report as envisaged under Section 3(5) of the National Security Act, 1980 about the detention of the Petitioner was made by the Government of Assam to the Central Government in the concerned desk in the Ministry of Home Affairs vide their letter No. PLA-392/2004/58 dated 23.06.2004. The said report was received by the Central Government in the concerned Desk in the Ministry of Home Affairs on 05.07.2004 and the position noted by the concerned Director who has been authorised to take note under Section 3(5). 5. Obviously, from the stand taken by the Union of India it is abundantly clear that the Central Govt. The said report was received by the Central Government in the concerned Desk in the Ministry of Home Affairs on 05.07.2004 and the position noted by the concerned Director who has been authorised to take note under Section 3(5). 5. Obviously, from the stand taken by the Union of India it is abundantly clear that the Central Govt. did not consider the report dated 23.6.04 received by them on 5.7.2004 which amounts to clear infringement of procedural safeguards provided in Section 3(5) and 14(1) of the Act resulting in violation of Article 21 of the Constitution. 6. For better appreciation of the limited point raised herein, it would be appropriate to refer to Sections 3(5) and 14(1) of the Act which run as under: 3. (5) When any order is made or approved by the State Government under this Section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order... 14. Revocation of detention orders-(1) Without prejudice to provisions of Section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified- (a) Notwithstanding that the order has been made by an officer mentioned in Sub-section (3) of Section 3, by the State Government to which that officer is subordinate or by the Central Government; (b) Notwithstanding that the order has been made by a State Government, by the Central Government. 7. A Full Bench decision of this Court in a case of Hitendra Nath Goswami v. State of Assam and Ors. reported in 1984 CRI. L.J. 1558 while dealing with the exercise of discretionaiy power of the Central Govt. under Section 14(1) in the context of Section 3(5) of the Act held that in consideration of the question of revocation of the detention order by exercising discretionary power, a duty was cast on the Central Govt. to consider the report received from the State Government with reasonable expedition which would depend on the circumstances of the particular case and any infringement of such procedural safeguard would vitiate the detention order. 8. to consider the report received from the State Government with reasonable expedition which would depend on the circumstances of the particular case and any infringement of such procedural safeguard would vitiate the detention order. 8. In paragraph 22 of the aforesaid Full Bench decision, this Court observed as follows: It is for the Central Government to revoke or not the detention order in exercise of its discretionary power under Section 14(1) of the Act, on receipt of the report from the State Government; but to borrow the words of Lord Pearce in Padfields case (1968-1 All ER 694), the Central Government cannot 'throw it unread into the waste paper basket'. The report is intended to be considered with reasonable expedition; any delay in the matter due to negligence, callous inaction, avoidable red-tapism and unduly protracted procrastination would defeat the intention of the Parliament. See Sabir Ahmed (1980-3 SCC 295) (supra). As such, non-consideration of the report by the Central Government with expedition would be a breach of the procedural safeguard provided by the Act, as an additional check against the improper exercise of power of detention by the detaining authority and thereby violate Article 21. It is a case where the Central Government may be considered to have failed to understand the object and scope of Section 14(1) read with Section 3(5) of the Act and of its function and duties thereunder. 9. In Anr. case of Somi Angkang v. Union of India reported in (1985) 2 GLR 1, relying on Hitendra Nath Goswami's case (supra), this Court reiterated that it was the duty of the Central Govt. to consider the report submitted to it under Section 3(5) read with Section 14(1)of the Act with reason able expedition and failure to consider this report violated procedural safeguard to the detenu and the order of detention was liable to be set aside. 10. Having regard to the established legal position as emerged from the above cited cases and also upon hearing the learned Counsel for the rival parties, this Court is of the firm view that since admittedly the Central Govt. did not consider the report sent to them by the State Govt. at all, the Central Govt. failed to perform their duty cast upon them and in the end result such action has violated the procedural safeguards to the detenu under Section 3(5) and 14(1) of the Act. did not consider the report sent to them by the State Govt. at all, the Central Govt. failed to perform their duty cast upon them and in the end result such action has violated the procedural safeguards to the detenu under Section 3(5) and 14(1) of the Act. Eventually it hits the right to life and liberty of the detenu guaranteed by Article 21 of the Constitution. 11. Consequently and in view of the above, the impugned detention order 16.6.2004 is bad in law and cannot be sustained and the same stands quashed. 12. In result, this habeas corpus petition is allowed and the detenu, namely, Sri Gopal Boro @ Sri Gwojen Boro be set at liberty forthwith if not required in connection with any other case. Petition allowed.