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2005 DIGILAW 74 (GAU)

Samina R. Marak v. State of Meghalaya

2005-02-01

AMITAVA ROY, D.BISWAS

body2005
JUDGMENT Amitava Roy, J. 1. The validity of the order of detention dated 15.4.2004 passed by the District Magistrate, South Garo Hills District, Baghmara in exercise of powers under Section 3(1) of the Meghalaya Preventive Detention Act, 1995 (hereinafter referred to the Act) and the continued detention of the detenue Sri Tokyo R. Marak is in question. 2. We have heard Mr. A.K. Das, learned counsel for the petitioner, Mr. U. Bhuyan, learned State counsel and Mr. H. Rahman, teamed senior Central Government Standing counsel for the Union of India. 3. The indispensable facts can be located in a short compass. The detenu named hereinabove, a Lower Primary school teacher in a Government L.P. School in the State of Meghalaya who was already lodged in custody being arrested on 3.4.2004 in connection with some criminal cases, was slapped with the above order of preventive detention. The grounds of detention were served on him on 15.4.2004 whereafter on 27.4.2004 the State Government approved the detention order. The detenu submitted a representation on 13.5.2004 before the Commissioner & Secretary, Political Department, Govt. of Meghalaya and the Secretary, Ministry of Home Affairs, Government of India. His representation before the State Government came to be rejected on 17.8.2004. In the meantime, he had submitted another representation before the State Government on 26.6.2004. On 28.6.2004 acting on the recommendation of the Advisory Board, his detention was confirmed by the State Government. It has been, inter alia, contended that though the order of detention was passed on 15.4.2004, the detenu was not informed about the authorities before whom he could represent against the same for which there was an undue delay in submitting the representation eventually on 13.5.2004. The grievance is also on the count that though the representation was addressed to the Central Government, the same was not forwarded to it for consideration. The omission to inform the detenu of his right to make representation before the detaining authority before the detention order was approved by the Government has also been taken as a ground, assailing the preventive detention. 4. The omission to inform the detenu of his right to make representation before the detaining authority before the detention order was approved by the Government has also been taken as a ground, assailing the preventive detention. 4. While supporting the State action in their counter, the State respondents have taken a stand that along with the grounds of detention served on the detenu on 15.4.2004, the detenu was also furnished with the information about his right to make a representation against the order of detention and that in any case the detenu could have ascertained about the authorities before whom such representation was required to be submitted. The answering respondents asserted that the representation dated 13.5.2004 was rejected and the decision was communicated to the detenu on 15.6.2004. In reply to the contention that the detenu's representation addressed to the Central Government was not forwarded to it, it has been contended that the detention being under the Act, the decision of the State Government was sufficient. The State respondents have denied the plea that the detaining authority had the power to revoke the detention order till the same was approved by the Government. No counter has been filed by the Union of India. 5. Reiterating the contentions raised in the petition, Mr. Das. learned counsel for the petitioner has emphatically urged that the impugned detention is on the face of the record constitutionally invalid. He maintained that the failure on the part of the State respondents in apprising the detenu about the authorities before whom the representation was to be filed and their omission to forward the representation to the Central Government amounted to an incurable infraction of his right to represent as enshrined in Article 22(5) of the Constitution of India as well as the Act. The continuation of such illegal detention being impermissible, the detenu is entitled to be released forthwith, he argued. In support of his contention, Mr. Das placed reliance on a decision of this Court rendered in Shri Rongjam Momin vs. Union of India and other WP (Crl.) 37 of 2004. Mr. U. Bhuyan, learned State counsel argued that as there were sufficient grounds justifying the order of detention and as the detenu's representation addressed to the State Government had been disposed of without undue delay, there has been no transgression of any procedural safeguards rendering his detention unsustainable in law. Mr. U. Bhuyan, learned State counsel argued that as there were sufficient grounds justifying the order of detention and as the detenu's representation addressed to the State Government had been disposed of without undue delay, there has been no transgression of any procedural safeguards rendering his detention unsustainable in law. The learned senior Central Govt. Standing counsel endorsed the above submission. 6. On a plain reading of the State respondents counter, it is more than apparent that the detenu's representation addressed to the Central Government had not been forwarded to it. A bare look into the grounds of detention makes it abundantly clear that the detaining authority did not specify as to before which authority the representation could be submitted. We are indeed dismayed to notice the stand of the State respondents casting the obligation on the detenu to ascertain the above fact. No explanation whatsoever is also forthcoming to explain the delay of one month in disposing of the detenu's representation dated 13.5.2004 (even if the State respondents' stand is accepted that the representation dated 13.5.2004 was disposed on 15.6.2004). 7. This Court in Rongjam Momin (supra) being almost similarly placed and taking note of the decision of the Apex Court in Kamlesh Kumar Ishwardas vs. Union of India and other had ruled after a details analysis of the relevant provisions of the Act that till such time the order of detention passed by the District Magistrate under Section 3 of the Act is in force, he would be competent to revoke the same and that a detenu under the 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. It was further held that once the detention is approved by the State Government, the Central Government is competent to revoke the detention order and as a corollary the detenu is entitled in law to be informed of his right to file a representation to the Central Government. It was further held that once the detention is approved by the State Government, the Central Government is competent to revoke the detention order and as a corollary the detenu is entitled in law to be informed of his right to file a representation to the Central Government. In other words, the statement of law recorded in the reported decision is that a detenu has to be informed of his right to represent before the District Magistrate against the order of detention passed by him under the Act at any time before the same is approved by the State Government and also of his right to represent before the Central Government in case the detention is approved by the State Government. Any failure on the part of the appropriate authorities on one of these counts would indubitably render the preventive detention unconstitutional. It would be axiomatic that once the detenu's right to represent as above is recognised, the obligation of the appropriate authorities to consider and dispose of the same with utmost alacrity and expedition would be an essential concomitant thereof. In other words, not only the appropriate authorities are obliged to inform the detenu about his right to represent as above, but they are also constitutionally obliged to duly consider and dispose of the same without undue and unexplained delay. This indeed is the spirit of the mandate guaranteed under Article 22(5) of the Constitution and Section 8 of the Act. This right has not only to be meaningful and efficacious, it has to be jealously guarded as well and no compromise even minimal can be countenanced. 8. The facts of the present case unmistakably disclose that the authorities concerned have miserably failed not only to inform the detenu about the authorities before whom the representation could be filed, but they also omitted to apprise him in particular that he could represent before the District Magistrate passing the detention order before the approval thereof by the State Government. The authorities also failed without any explanation to forward the detenu's representation to the Central Government. No explanation as noticed hereinabove for the delay in disposal of the representation by the State authorities has also been furnished. 9. In the above premises, the irresistible conclusion is that the detenu's right to make an effective representation before the authorities concerned has been denied to him without any justification whatsoever. No explanation as noticed hereinabove for the delay in disposal of the representation by the State authorities has also been furnished. 9. In the above premises, the irresistible conclusion is that the detenu's right to make an effective representation before the authorities concerned has been denied to him without any justification whatsoever. The order of detention, approval and confirmation thereof, therefore, cannot be sustained in law and on facts. 10. In the result, the petition succeeds. The preventive detention of the detenu is hereby adjudged unconstitutional, null and void. Consequently, we direct that the detenu be released forthwith, if he is not required to be detained in connection with any other case.