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2006 DIGILAW 392 (GAU)

Tongbam Balahari Singh v. Union of India and Ors.

2006-04-26

D.BISWAS, T.NANDA KUMAR SINGH

body2006
T.Nandakumar, J. Heard Mr.M.I Sharma, learned counsel for the petitioner as well as Mr.K.Kumar, learned Addl.CGSC appearing for respondent No.1 and Mr.Jalal Uddin, learned GA appearing for respondent nos.2 and 3. [2] By this petition, the petitioner/detenu is assailing the order of District Magistrate, Imphal West being Cril/NSA/No.103 of 2005, Imphal dated 21.9.2005 for detaining the petitioner/detenu under Section 3(2) of the National Security Act, 1980 in exercise of his power conferred under Sub-Section (3) of Section 3 of the NSA read with Home Department's order No.17(1)/49/80-H(Pt) dated 6.9.2005, order of the Government of Manipur being No.17(1)/948/2005-H Imphal 7.11.2005 for confirming the said order of the District Magistrate dated 23.9.2005 and also for fixing the period of detention for 12 (twelve) months from the date of detention mainly on the ground that there is inordinate delay on the part of the Central Government as well as the State Government in disposing the representation filed by the detenu/petitioner dated 5.10.2005 for revocation of his detention order to the Chief Secretary (Home), Government of Manipur and also to the Central Government through the Superintendent, Imphal Central Jail, who forwarded the said representation on 6.10.2005 to the Government of Manipur. The said representation of the petitioner/detenu was disposed of only on 8.11.2005. [3] The petitioner alleged that there is a delay of 34 (thirty four) days in disposing the said representation of the detenu by the Central Government. It is also further case of the petitioner that since the detenu/petitioner had been detained under the NSA, the State Government is bound to report the fact of the detention of the petitioner 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 have a bearing on the necessity for the order. [4] The State Government in compliance with the sub Section (5) of Section 3 of the NSA had communicated all the facts relating to the detention of the petitioner/detenu under the NSA 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. For easy reference Sub Section (5) of Section 3 of the NSA is quoted hereunder: (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 particular as, in the opinion of the State Government, have a bearing on the necessity for the order.” [5] “The question whether on the report from the State Govt. under sub-section (5) of Section 3 of the NSA 1980, the Central Govt. has the discretion coupled with duty to consider the question of revocation of detention order expeditiously, irrespective of the fact that there is no representation or/ petition from the detenu to the Central Govt. for the purpose” had been referred to the Five Judges' Bench of this Court in Civil Ref. No.203 of 1983 from Civil Rule (H/C) 17 of 1993 between Hitendra Nath Goswamy -vrs - State of Assam & Ors: 1984 Cril L.J. 1558. The majority view of this court in Hitendra Nath (Supra) is that since the Central Govt. had all the relevant materials regarding the detention of a detenu under the NSA inasmuch as the Central Govt. had been informed all the particulars and materials about the detention of the detenu under the NSA in compliance with sub-section (5) of section 3 of the NSA by the State Govt., the Central Govt. has to take a decision as to whether the detention order is required to be revoked or not even without any representation from the detenu. Corollary of the decisions of the Five Judges of this court in Hitendra Nath Goswamy (Supra) is that “calling of para-wise comments from the State Govt. to the representation filed by the detenu or the filing of representation by the detenu is not the essential requirements for the Central Govt. for taking decisions as to whether the detention order under the NSA is to be revoked or not. The fact of the case is spelt out in para-2 which reads as follows: “2. In the case out of which the question above has arisen, the detenu, Sri Hitendra Nath Goswami, was detained by order dated 5.1.83 of the State Government passed, in pursuance of S. 3(2) of the Act. The fact of the case is spelt out in para-2 which reads as follows: “2. In the case out of which the question above has arisen, the detenu, Sri Hitendra Nath Goswami, was detained by order dated 5.1.83 of the State Government passed, in pursuance of S. 3(2) of the Act. The State Government reported the fact of detention to the Central Government together with the grounds on which the order has been made, within 7 days of the order of detention, in compliance with sub-s.(5) of S.3 of the Act. The detenu, Sri Hitendra Nath Goswami, made no representation to the Central Government (Sic) received the report on 28.1.83, considered and found it prima facie valid. As a result, the order of detention has not been revoked by the Central Government in exercise of its power under S. 14(1)(b) of the Act. As such a question arose whether the discretion of the Central Government under S. 14(1) is coupled with duty to consider the report made by the State Government, in pursuance of sub-s. (5) of S.3 of the Act with expedition, where no representation has been made by the detenu to the Central Government to exercise its power of revocation under S.14 of the Act; and if not, its legal effect. In Joynath Sarma v. State of Assam (1983) 1 Gauhati LR 289: (1984 Cri LJ 92), a Division Bench held that where no decision has been taken either on the report or on the representation of the detenu by the Central Government, the constitutional mandate under Art. 22(5) has been violated, which renders the continued detention illegal, inasmuch as the Central Government has failed to discharge its duty enjoined under S.14 of the Act. In Bikash Narayan Sarma v. State of Assam (1983) 1 Gauhati LR 431: (1984 Cri LJ 81), a case which arose in another Bench of this Court, the Court found on the materials before it that the State Government sent its report to the Central Government, in compliance with sub-s.(5) of S.3 of the Act, but the Central Government had not applied its mind to such a report. The Division bench held the view that though it was open to the Central Government to revoke an order if it thought fit to do, a question of discretion coupled with duty mention of which has been made in Sabir Ahmed would arise only when petiton/representation has been made. The Division Bench observed: “Indeed, Sabir Ahmed has used this expression in the context of dealing with the petition/ representation; otherwise it would be a case of 'complete discretion' and not reviewable by a Court of law.” and the finding is spelt out at para-33 which reads as follows: “33. I have discussed at length the question under reference, and for reasons given above, my answer is that the discretionary power of the Central Government under S. 14(1) of the Act in the context of S.3(5) of the Act is coupled with duty to consider the report received from the State Government with reasonable expedition, notwithstanding that no representation/petition has been made by the detenu to the Central Government; what is reasonable expedition depends on the circumstances of the particular case; and in case of breach of such procedural safeguard, the detention order is liable to be set aside and the detenu set at liberty.” 6. This court has to keep a balance between the requirements for detaining a detenu under the NSA by the competent authority on the one hand and right and liberty of the Citizen of India on the other. Neither party should have the impression that its case has been prejudiced by the order of this court. [7] In the present case, the Central Government, i.e respondent no.1 filed their Affidavit-in-opposition. In the Affidavit-in-opposition it is stated that there is no legal obligation to call for representation for the detenu. In this case, the representation dated 5.10.2005 made by the detenu was received by the Central Government on 27.10.2005 and in the concerned Section in the Ministry of Home Affairs on 31.10.2005. The State Government vide wireless message of the Central Government dated 31.10.2005 was requested to send the parawise comment on the representation. And the Government of Manipur furnished parawise comment which was received by the Central Government only on 7.11.2005. The State respondents had admitted that the representation of the petitioner/detenu dated 5.10.2005 had been received on 6.5.2005. The State Government vide wireless message of the Central Government dated 31.10.2005 was requested to send the parawise comment on the representation. And the Government of Manipur furnished parawise comment which was received by the Central Government only on 7.11.2005. The State respondents had admitted that the representation of the petitioner/detenu dated 5.10.2005 had been received on 6.5.2005. But nothing is mentioned in the Affidavit-in-opposition of the State respondents as to when the said representation of the petitioner/detenu had been sent to the Central Government. The Central Government also in their Affidavit-in-opposition simply stated that the said representation of the petitioner/detenu dated 5.10.2005 was received by the Central Government only on 27.10.2005. In such circumstances, this court is of the considered view that there is no proper explanation and reason as to how the representation of the petitioner/detenu dated 5.10.2005 which was admittedly received by the State respondents on 6.10.2005 was received by the Central Government only on 27.10.2005. In the Affidavit-in-opposition of respondent no.1, the Central Government did not mention any cogent or sufficient reason as to why and for what reason the parawise comment of the State Government on the said representation of the petitioner/detenu are required even though they had all the facts and other particulars which are, in the opinion of the State Government have a bearing on the necessity for the order detaining the petitioner/detenu under NSA. There is no whisper in the Affidavit-in-opposition of the respondent no.1, Central Government that the State Government failed to discharge duty under sub-section (5) of Section 3 of the NSA, but on the other hand, the State Government had taken the plea that in compliance with sub-section (5) of Section 3 of the NSA had sent all the necessary facts and documents and particulars as, in the opinion of the State Government have a bearing on the necessity for the detention order. It is equally well settled that court can see the relevant file of the authority concerned to see as to how and under what circumstances, the concerned authority issued the detention order under NSA. In the present case, respondent no.1, i.e. the Central Government did not even care to place the relevant file to show the court as to how and under what circumstances the Central Government required to call the parawise comment on the said representation of the petitioner/detenu. In the present case, respondent no.1, i.e. the Central Government did not even care to place the relevant file to show the court as to how and under what circumstances the Central Government required to call the parawise comment on the said representation of the petitioner/detenu. [8] This court in Ksh Maipak Devi Vs State of Manipur: 2001 (2) GLT 168 held that for deciding the point as to whether or not there is inordinate delay in disposing the representation, the court can looked into the circumstances and reasons recorded in the relevant file of the concerned authority. [9] This court in Mahesh Basumatary Vs State of Assam & Ors: 2005 (1) GLT 264, while deciding as to whether the explanation made by the Central Govt. regarding the delay in disposal of the representation of the detenu/petitioner are reasonable or not, this court had perused the record in original, i.e. the relevant file of the Central Government, placed before this court by the learned CGSC. The relevant extract of the Judgment of this court in Mahesh Basumatary (supra) reads as follows: “The facts noted by us amply demonstrate that the Central Government had taken the requisite steps from time to time to dispose of the petitioner's representation and when the para-wise comments were received on 10.8.2004 decision was taken to reject the petitioner's representation on 6.8.2004. In this regard, we have perused the record in original placed before the court by the learned Sr. CGSC which would substantiate necessary steps as claimed, had been taken by the Central Govt. to obtain para-wise comments from the State Govt. On the above facts we are satisfied that time taken by the Central Government in disposing of the petitioner/detenu's representation has been explained to the satisfaction of the Court.” [10] In the instant case, as stated above, the Central Government has failed to place the relevant file before this court through the learned CGSC for perusal as to why the Central Government required to call parawise comment from the State Government on the said representation of the petitioner/detenu dated 5.10.2005 even if they had all the necessary materials and documents furnished by the State Government in compliance with sub-section (5) of Section 3 of the NSA. [11] For the reasons discussed above, we are of the considered view that respondent no.1, Union of India failed to give sufficient reason/explanation for the long delay in disposing the representation of the petitioner/detenu dated 5.10.2005 because of the delay due to calling the parawise comment from the State Government on the said representation of the petitioner/detenu. [12] In view of the above discussions, we are of the firmed view that there are supine indifference, slackness and callousness attitude in considering the representation of the petitioner/detenu by the respondents and delay in disposing of t he representation are not explained, as a result thereof, there is a breach of the constitutional imperative rendering the continued detention of the petitioner/detenu is impermissible and illegal. Accordingly detention orders are hereby quashed and the detenu/petitioner be set at liberty unless wanted in other cases. Writ Petition is allowed. No order as to costs.