JUDGMENT D. Biswas, J. 1. The Petitioner is the brother of Abhijit Kalita @ Anol Kakoti who was allegedly picked up by the Army personnel on 08.06.1997 at about 9.30 AM from Sialmari Village near Tihu in the District of Nalbari. The detenue was not produced before the police station or the Court, as is required under law. Apprehending that the detenue might have been liquidated, the present petition was filed for issuance of a writ of Habeas Corpus and/or such other directions, as this Court may deem fit and proper. 2. The Respondents Nos. 1, 2, 3 and 4 in their affidavit in opposition as well as in supplementary affidavit denied the above allegation. According to them, there was no operation on 08.09.1997 by any Unit of the Army and as such the alleged picking up of Abhijit Kalita on that day does not arise. It is further submitted that some interested people in order to malign the Army and to extract money has filed this petition. It is submitted that the District Magistrate had to issue prohibitory orders to prevent extremist elements from moving freely armed with automatic weapons in army uniform. Therefore, there is always a confusion about the identity. That apart, there is also positive evidence to show that the alleged detenue was seen by another ULFA activist, namely Aftab Ali, in Sakuni hills in Bhutan in the month of September and October, 1997. 3. At the initial stage of the proceedings, by the order dated 30th July, 1997, this Court directed the State Government to cause a Magisterial enquiry into the matter. Accordingly, the Sub-Divisional Officer (Civil), Nalbari submitted the report dated 27.10.97 where from it appears that a boy was picked up by Army on 08.06.97 from Sialmari, but the identity of the boy was not established. The Court, by the order dated 27th February, 1998, directed the Respondents to produce the boy who was so picked up on 08.06.97 from the village Sialmari on 09.03.98. The Respondents failed to produce the boy so picked up. The Court thereafter directed the Union of India to deposit a sum of Rs. 1,00,000/- in a Nationalized Bank at Tezpur and allowed the mother of the detenue to withdraw the interest accrued thereon subject to adjustment towards the final compensation that may ultimately be determined. The Respondents failed to produce the boy so picked up. The Court thereafter directed the Union of India to deposit a sum of Rs. 1,00,000/- in a Nationalized Bank at Tezpur and allowed the mother of the detenue to withdraw the interest accrued thereon subject to adjustment towards the final compensation that may ultimately be determined. By the order dated 8th September, 1998, the District Judge, Nalbari was directed to enquire into the matter and submit a report within 6 months. Accordingly, the District Judge, Nalbari submitted a report. The findings of the learned District Judge is that Abhijit Kalita, an ULFA activists was picked up by the Army at 9.30 A.M. on 09.06.1997 from Sialmari village and since then he is k untraceable. 4. It is on the above background, we have heard at length Shri AC Borbora, learned senior Counsel for the Petitioner; Mr. D. Baruah, learned Central Government Counsel and also Mr. BJ Talukdar, learned State Counsel. Mr. Borbora submitted that Abhijit has not been heard of since the day he has been picked up by the Army and therefore, a legal presumption may be drawn that he is no more. A Writ of Habeas Corpus at this stage would be of no consequence. Mr. Borbora urged that the Court may consider payment of compensation to the wife and the minor child of Abhijit. Mr. D. Baruah, learned Counsel for the Union indicted the report of the District Judge on the ground that it suffers from a number of infirmities besides being based on inadequate evidence contrary to record. 5. On the above background, we propose to determine the acceptability of the report submitted by the learned District Judge. For this purpose, it would be necessary at the first instance to have a look at the Magisterial Enquiry Report submitted by the S.D.O. (Civil) pursuant to this Court's order dated 30.07.1997. The findings of the learned Magistrate are as follows: On 24.10.97, I went to village Sialmari for preliminary enquiry of the incident. I questioned some of the villagers regarding the incident. Shri Prativa Pathak D/o Shri Adit Pathak verbally stated that on 08.06.97 at about 9 a.m. two young boys accompanied by a newly married woman came to their residence. They asked for drinking water and she asked about their identity of the strangers. I questioned some of the villagers regarding the incident. Shri Prativa Pathak D/o Shri Adit Pathak verbally stated that on 08.06.97 at about 9 a.m. two young boys accompanied by a newly married woman came to their residence. They asked for drinking water and she asked about their identity of the strangers. One of the young man stated that he is known as Anal Kakaty. Just then Army personnel came and followed them and arrested one of the Youngman and others fled away. When she was interrogated whether she previously knew Abhijit Kalita alias Anal Kakoty and whether the boy arrested by the Army personnel was Abhijit Kalita. She replied negatively. Shri Aditya Pathak, S/o (L) Senaram Pathak, Shri Nilambar Pathak S/o Sri Adit Pathak, Shri Umakanta Pathak S/o Nareswar Pathak of the same village were questioned and all of them replied that a young boy who was never seen in the village beforehand was arrested by the Army personnel. When they were asked about the identity of the arrested boy they could not reply definitely. A written statements submitted by the above mentioned persons are also enclosed herewith for ready reference. Then, I issued notices to the interested persons for recording their statements and hearing Date was fixed on 13.11.97. Accordingly I recorded statements of Bambaru Talukdar S/o (L) Gararam Talukdar, Shri Bharat Ch. Pathak, S/o Shri Khargeswar Pathak (GB), S/o Nivirkha Ram Pathak who responded the notice. But from their statements it is not clear that the arrested boy was Abhijit Kalita. Even, from their statements it is also not clear that the 5-Dogra Regiment camping at Nathkuchi arrested the boy. From the statements, of the Officer-in-Charge, Tihu P.S. it is not known whether the Army conducted any operation or arrested anyone from the village Sialmari on that day. No FIR from anybody regarding the incident was lodged to the Tihu P.S. uptil now. (The recorded statements of the above mentioned persons are enclosed herewith). Notice was also served to the Commanding Officer, 5-Dogra Regiment, Nathkuchi (Tihu). But they did not responded to it. Notice was also served to Shri Amitav Kalita of village Pithakhowa of Sonitpur District. But he did not appear. Examining the written statements and recorded statements of the above mentioned persons and circumstances it cannot be definitely conclused that Shri Abhijit Kalita alias Anal Kakoty was arrested by 5-Dogra Regiment. But they did not responded to it. Notice was also served to Shri Amitav Kalita of village Pithakhowa of Sonitpur District. But he did not appear. Examining the written statements and recorded statements of the above mentioned persons and circumstances it cannot be definitely conclused that Shri Abhijit Kalita alias Anal Kakoty was arrested by 5-Dogra Regiment. But, it can be inferred and logically concluded that a young boy was captured by some persons in Army Uniform on that day from the field of Shri Adit Pathak S/o Lt. Senaram Pathak. But, it could not be ascertained that the arrested boy was actually Abhijit Kalita. Again, it also could not be established that the person in Army Uniform who arrested the boy, actually belongs to 5-Dogra Regiment camping at Nathkuchi, (Tihu). From above report, it would appear that the Magistrate interrogated a number of witnesses and all of them affirmed that a young boy who had identified himself as Anal Kakoty was captured by some persons in Army uniform. The Magistrate could not ascertain the identity of the boy as well as the persons in uniform. 6. The District Judge, Nalbari in his report submitted after appreciation of the evidence adduced by the parties, recorded the following findings: 16. In view of the above discussions, my findings are: i) The ULFA activist Abhijit Kalita was picked up by the army on 08.06.97 at about 9.30 A.M. from Sialmari village under Tihu Police Station. ii) The detenue Shri Abhijit Kalita was in the army custody on 08.06.97 and thereafter he became untraced and the army filled to produce him at the nearest police station or Court as per direction of the Hon'ble Gauhati High Court. iii) There is no cogent and reliable evidence to show that Shri Abhijit Kalita alias Anal Kakoti was in Sakuni hills in Bhutan in the month of September and October 1997. 7. Between the two reports, there is a variation. The learned Magistrate observed that a young boy was captured from the field of Aditya Pathak on that day. The learned District Judge recorded the finding that it was Abhijit Kalita who was picked up by the Army on 08.06.1997 at 9.30 A.M. from Sialmari Village. 7. Between the two reports, there is a variation. The learned Magistrate observed that a young boy was captured from the field of Aditya Pathak on that day. The learned District Judge recorded the finding that it was Abhijit Kalita who was picked up by the Army on 08.06.1997 at 9.30 A.M. from Sialmari Village. The learned District Judge did not rely upon the affidavit sworn in by Aftab Ali who claimed to have seen Abhijit @ Anal Kakoty in Sakuni hills in Bhutan during his stay there from March 1996 to March 1998. 8. P.W. 2 Shri Nilambar Pathak, P.W. 3 Miss Prativa Pathak and P.W. 4 Shri Prahlad Haloi made specific statements that army personnel had picked up Abhijit Kalita on 08.06.1997. P.W. 2 Shri Nilambar Pathak stated that on that day at about 9.30 A.M., two boys came running towards his field through his homestead. They were chased by the Army. One of the two boys was captured by the army. The boy disclosed his name as Abhijit Kalita before the Army. He was taken way by the Army. P.W. 3 Miss Prativa Pathak stated that two boys came to her house on that day and asked for water. One of them identified himself as Anal Kakoty. She offered a glass of water, but by then Army personnel arrived. One of the boys ran towards the backside of the house where his brother Nilamber Pathak was tilling their land. After sometime, the Army brought back the boy into their courtyard, slapped him and asked this witness whether she knew this boy from before. She replied in negative. Thereafter, the boy was taken away by the Army. P.W. 4, Shri Prahlad Haloi was witnessing T.V. serial in the house of Ananta Haloi. At that time, some Army personnel went there and called him and asked him to identify the boy. He answered in negative. The boy disclosed his identity as Abhijit Kalita and also told that the other one who ran away was Tutu Saikia. 9. The evidence of these three witnesses who are not in any way connected with Abhijit Kalita evidence that the Army had taken a boy on that day into their custody. He answered in negative. The boy disclosed his identity as Abhijit Kalita and also told that the other one who ran away was Tutu Saikia. 9. The evidence of these three witnesses who are not in any way connected with Abhijit Kalita evidence that the Army had taken a boy on that day into their custody. D.W. 2 Shri Apurba Jiban Barua and D.W. 3 Shri Dwijamani Singha relying upon the confessional statement of ULFA activist Aftab Ali stated that Abhijit Kalita was in Sakuni Hills in Bhutan in September/October, 1997. The evidence of these witnesses are apparently based on the confessional statement. In the confessional statement, Aftab Ali claimed that during the month of September/October, 1997 he had seen Abhijit Kalita in Sakuni Hills in Bhutan. Aftab Ali made his confessional statement on 22.04.1998 i.e. long after the alleged arrest of Abhijit Kalita. A careful examination of his confessional statement would show that in the month of September/October, 1997 there were about 100 persons in the ULFA camp at Sakuni Hills. Aftab Ali was in the said camp from March, 1996 to March, 1998. During that long period he might have seen Abhijit Kalita at Sakuni Hills. But his statement is not specific that he had seen Abhijit in September/October' 1997. As against the evidence of the witnesses examined on behalf of the detenue, the statement of Aftab Ali, who is otherwise interested in Abhijit Kalita as they belong to ULFA cadre cannot get precedence over the evidence of independent villagers, namely P.Ws. 2,3 and 4. That apart, the statement of Aditya Pathak made before the Magistrate is significant. He had stated that on 8th June, 1997 at 9.45 A.M. armed army personnel of 5-Dogra Regiment numbering about 15-20 suddenly entered his house and chased one Abhijit Kalita, a member of ULFA cadre. He also heard a sound of gun shot. After sometime, they came back to their courtyard and he saw Abhijit Kalita in the custody of Army with his hands tied behind. He specifically stated that an army major was there alongwith the jawans. 10. The report of the Magistrate and the learned District Judge affirm that a boy was picked up on 08.06.1997, as alleged. The boy could not be produced despite orders of this Court. The report submitted by the District Judge is based on independent evidence. He specifically stated that an army major was there alongwith the jawans. 10. The report of the Magistrate and the learned District Judge affirm that a boy was picked up on 08.06.1997, as alleged. The boy could not be produced despite orders of this Court. The report submitted by the District Judge is based on independent evidence. The Magistrate appears to have totally ignored the statement of Shri Aditya Pathak made before him. Considering the evidence as a whole, we find no reason to discard the report submitted by the learned District Judge. Copies of the documents submitted by Mr. D. Baruah, learned Counsel for the Union shows that the Army made attempts on different occasions to trace out Abhijit. But the attempts made do not prove that Army did not pick up Abhijit, as alleged. The plea of the Army that at the relevant time extremist elements were moving around in Army uniform is suggestive of probable involvement of the extremists in the disappearance of Abhijit This is a mere probability. Probability cannot obliterate the evidence of independent witnesses like P.Ws. 2, 3, 4 and Aditya Pathak. 11. In the given circumstances, we find no reason but to act upon the report of the learned District Judge. We, therefore, accept the report of the learned District Judge. Having accepted the report, we have also taken note of the decisions in, Robindra Nath Chetia and Anr. v. Union of India and Ors., reported in (1994) 2 GLR 359 and in Rajen Gogoi v. Union of India and Ors, reported in 1995(2) GLT 384 relied upon by Mr. Borbora, learned senior Counsel. Award of adequate compensation in the instant case appears to be unavoidable. This is permissible under Article 226 as a remedy available in public law. 12. Since Abhijit is not being heard of since his disappearance in the manner as highlighted above, it would be just and proper to compensate the next kith and kin. Mr. Borbora submitted that Abhijit has his wife and a minor child. His mother expired on 08.07.2004. We, therefore, order that the Union shall pay compensation of Rs. 2,00,000/- to the wife and minor child of Abhijit @ Anal Kakoty. The amount of Rs. 1,00,000/- already in deposit be released and another sum of Rs. 1,00,000/- be paid to them within three months. 13. This petition is accordingly allowed. Petition allowed