JUDGMENT Brojendra Prasad Katakey, J. 1. The Petitioner who is the elder brother of Hari Chandra Deka @ Kiriti Kalita, a physically handicapped person, by the present writ petition is seeking a writ in the nature of Habeas Corpus directing the Respondents more particularly the Army authorities to produce his physically handicapped brother allegedly picked up by the Army personnel on 21.7.2003 at about 11 p.m. from village Ganakpara while he came to the residence of the writ Petitioner. The case of the Petitioner as set up in the writ petition is that this younger brother Had Chandra Deka @ Kiriti Kalita, a physically handicapped person with leg partially disabled, while coming to his house in village Ganakpara was picked up by the Army personnel on 21.7.2003 at about 11 p.m. in presence of his family members. According to the Petitioner on that day one Tata Sumo was parked at about 50 meters away from his residence and the Army personnel after picking his brother took him in the said vehicle in presence of the Petitioner as well as his mother and also in presence of the villagers. According to the Petitioner since than nobody received any information regarding the whereabouts of his younger brother and though they informed the Army camp as well as the nearest police station, they unable to get any information about Sri Hari Chandra Deka @ Kiriti Kalita. It has further been contended in the writ petition that on 22.7.2003 the vehicle in which his brother was taken away by the Army personnel was recovered by the police and seized in connecting with Kalaigaon P.S. Case No. 56 of 2003 registered under Section 365/34 of IPC on the basis of the First Information Report submitted by the Petitioner before the Officer-in-Charge of the said police station. The Petitioner also stated in the writ petition that on 23.7.2003 he approached the Deputy Commissioner, Darrang as well as the Superintendent of Police and submitted the representation for taking necessary action for handing over of his brother to the civil authority but in spite of such representations as well as the public petition submitted by the villagers on 25.7.2003 his brother has not been handed over by the Army to the civil authority or produce before any court of law as required under the provision of Armed Forces (Assam and Manipur) Special Powers Act, 1958. 2. 2. The Respondent No. 1 to 4 i.e. the Army authorities on receipt of the notices filed their affidavit-in-opposition on 2.1.2004, sworn by Major Suresh Kumar, denying picking up of Hari Chandra Deka @ Kiriti Kalita on 21.7.2003 and taking the stand that no Army party from Kalaigaon Army camp went to village Ganakpara on that date therefore there is no question of picking up any person on that day from that village. It has further been contended that Hari Chandra Deka was an active member of a banned organization namely United Liberation Front of Assam (ULFA), but stopped working for that organization for last four/five years and in fact as per their information Hari Chandra Deka, was picked up by two/three armed and masked person in a Tata Sumo vehicle, who are suspected to be the extremist, since said Deka had stopped working for them. 3. This Court initially vide order dated 25.8.2003 directed the Army authorities to produce said Hari Chandra Deka @ Kiriti Kalita to the nearest police station forthwith, if he is in their custody, but as in their affidavit the Army authorities have denied picking up of said Hari Chandra Deka, this Court vide order dated 28.9.2004 directed the learned District and Session Judge, Darrang, Mangaldoi to cause an inquiry into the allegation of disappearance of Hari Chandra Deka @ Kiriti Kalita and to submit the report within a period of three months. The report has ultimately been submitted by the learned District and Session Judge on 8.4.2006 after the order dated 29.3.2006 passed by this Court taking exception for not submitting the report by the learned District Judge in time, pursuant to the direction issued vide order dated 28.9.2004. This Court also vide order dated 10.4.2006 having perused the report and explanation submitted by the learned District and Session Judge for not submitting the inquiry report as directed vide order dated 28.9.2004 directed registration of suo moto contempt case against the officer-in-charge of Kalaigaon Police Station for his failure in rendering requisite assistance to the learned District and Session Judge, to complete the inquiry. 4. 4. In the written statement filed before the learned District Judge in the said inquiry the Respondent No. 1 to 4 denied the allegation of picking up of Hari Chandra Deka stating inter alia that they came to know from the Petitioner that his brother was taken away by six armed and masked men in civil dress in a white Tata Sumo which had no number plate from Ganakpara village and since than he is missing. It is further been stated in the said written statement that no Army party from the Kalaigaon camp was sent to Ganakpara village on 21.7.2003 and therefore there is no question of picking up Sri Hari Chandra Deka by the Army personnel. According to the Army on further inquiry it is learnt that Hari Chandra Deka was an active member of ULFA, but stopped working for the said organization since four/five years. It has further been stated that they came to know from the Officer-in-charge of Kalaigaon police station that an FIR has been lodged and matter was under investigation. The Deputy Commissioner, Darrang, Respondent No. 6 in the writ petition also filed the written statement contending that on 21.7.2003 at about 11.30 p.m. the Petitioner verbally reported the Kalaigaon police station that on that date about 11 p.m. some militant kidnapped his brother from his house in a white Tata Sumo and on the basis of which the police tried to trace out and recover the kidnapped person. It has further been stated that the village defence party of Ganakpara village while on duty at night also saw a Tata Sumo on Balipara Makenji Road proceeding towards Tangla in a high speed without having any number plate. The Deputy Commissioner in his written statement has further contended that the vehicle i.e. the Tata Sumo was subsequently seized on being produced by the owner Sri Sushanta Saha, who informed the police that the vehicle was taken away by Army personnel of 16th Punjab Regimant and was handed over to him on 22.7.2003 at about 5.30 p.m. it has further been stated in the written statement that the Superintendent of Police was directed to take necessary action for tracing out the brother of the Petitioner and even contacted the local Army Unit Tangla who denied picking up of Sri Hari Chandra Deka. The Respondent No. 7 in the writ petition i.e. Superintendent of Police, Darrang, Mangaldoi, also in his written statement has stated whatever has been stated by the Deputy Commissioner in his written statement. 5. It appears from the report submitted by the learned District and Session Judge, Mangaldoi that in course of the inquiry conducted pursuant to this Court's order, ten witnesses from the side of the writ Petitioner and two witnesses on behalf of the Respondent No. 1 to 4 were examined. The Petitioner Rebo Kanta Deka, P.W. 1, Smti Ahalya Deka, the mother of Sri Hari Chandra Deka P.W. 2, Karun Chandra Deka P.W. 3, a villager Tilak Baruah P.W. 4, Deepak Baruah P.W. 5, Anandi Ram Saikia P.W. 6, Purna Deka P.W. 8 other co-villagers all uniformly stated in their evidence about taking away of Hari Chandra Deka by the Army personnel. P.W. 6 and P.W. 7 Mahendra Chandra Deka in the categorical terms stated that they saw the Army personnel dragging Hari Chandra Deka towards a white Tata Sumo parked by the side of the road and saw them taking away the brother of the Petitioner. Purna Deka, who was examined as P.W. 8 also supported the version of the P.W. 6 as well as the version of P.W. 5 Deepak Baruah who has also stated that he saw the Army personnel taking away the brother of the Petitioner in the white Tata Sumo vehicle. The owner of the vehicle, who was examined as P.W. 10, in categorical terms has stated that the army hired his vehicle on 21.7.2003 as before without any requisition slip and payment of any money and returned the vehicle on the following day. The deposition of the P.W. 10 lent support to the case of the Petitioner that the Army personnel on 21.7.2003 taken away his brother Hari Chandra Deka from village Ganakpara in the white Tata Sumo vehicle. Though these witnesses were extensively cross-examined by the Respondents, no material contradictions could be brought out by the Respondents. The officer-in-charge of Kalaigaon police station was also examined as P.W. 9 who in his deposition stated about registration of the police case on receipt of the FIR from the Petitioner and also submission of final report. 6. The Respondent No. 1 to 4 also examined two witnesses namely Lt. Col. Raman Golati as D.W. 1 and Maj. The officer-in-charge of Kalaigaon police station was also examined as P.W. 9 who in his deposition stated about registration of the police case on receipt of the FIR from the Petitioner and also submission of final report. 6. The Respondent No. 1 to 4 also examined two witnesses namely Lt. Col. Raman Golati as D.W. 1 and Maj. Saurabh Kalgaonkar as D.W. 2 Lt. Col. Raman Golati, D.W. 1 in his deposition has stated that on 22.7.2003 he was in-charge of Kalaigaon Army Camp and on that day around 7 a.m. in the morning a group of villagers from Ganakpara approached him and informed about abduction of Hari Chandra Deka and accordingly he went to the spot along with his staff to investigate and found that Hari Chandra Deka, who was an ULFA activist left the banned organization being injured in an encounter and was leading a normal life for four/five years, but on 21.7.2003 at about 11 p.m. six masked persons coming in a Tata Sumo without any registration number took away Hari Chandra Deka. During cross examination this witness has admitted that he has no relation with Tangla Army Camp but on enquiry came to know that no person was picked up by patrolling party from Army Camp, Tangla. It has further been stated that no Army operation was carried out in that area on that day. D.W. 2 also denied requisition of any vehicle belonging to P.W. 10. The gist of deposition of both the witnesses is that they denied picking up of Hari Chandra Deka. 7. The learned District and Session Judge after elaborate consideration of the matter and upon appreciation of entire evidences on record has recorded the finding that Hari Chandra Deka was picket up by Army on 21.7.2003 from Ganakpara village at about 11 p.m. in the white Tata Sumo car belonging to the P.W. 10 and disbelieved the version of D.W. 1 and 2. In fact D.W. 1 admittedly being not in charge of Tangla Army camp cannot, say what has happened on the fateful day. The learned District Judge has found that except making oral statement the Army personnel could not prove that there was no army operation conducted in that area on 21.7.2003, by producing the official records, as naturally they have to maintain some records regarding conduct of any operation in any area. The learned District Judge has found that except making oral statement the Army personnel could not prove that there was no army operation conducted in that area on 21.7.2003, by producing the official records, as naturally they have to maintain some records regarding conduct of any operation in any area. The learned District and Session Judge therefore, came to the finding that Hari Chandra Deka was picked up by Army personnel of Tangla Army camp i.e. the 16 Punjab Regimant without any just and reasonable ground and failed to produce before the nearest police station or Magistrate and since than Hari Chandra Deka is missing. 8. The Respondent No. 1 to 4 filed an objection before this Court against the report submitted by the learned District and Session Judge contending that the learned Session Judge has recorded the finding without appreciating evidences on record in its proper perspective and contrary to the evidences on record. It has further been contended that the kidnapping of Hari Chandra Deka might be an act of reprisal by the ULFA and Army had no role in the incident as the operation by the armed forces are strictly counter-insurgency related. The further objection is that the learned District and Session Judge failed to appreciate the fact that the Tata Sumo vehicle which was allegedly used for picking up of the brother of the Petitioner was seized by the police only after being produced by the owner, who though divulged before the police that the vehicle was taken by the Army and was handed over to him on the next day i.e. 22.7.2003, but could not even produce any document relating to requisition of such vehicle. The Respondents in the said objection has further contended that P.W. 1 during his cross examination stated that the Army personnel entered their house by wearing 'Khaki' dress which has raised serious doubt about the credibility of the witness. In the objection it has further been stated that the learned District Judge has failed to summon the main suspect of the incident i.e. one surrendered ULFA namely Tritha Deka, for which according to the Respondents, the inquiry proceeding stands vitiated. 9. We have duly considered the objections raised by the Respondent Nos. 1 to 4 against the report submitted by the learned District and Session Judge. 9. We have duly considered the objections raised by the Respondent Nos. 1 to 4 against the report submitted by the learned District and Session Judge. Keeping in view the evidences adduced before the learned District and Session Judge, we find that the objections raised by the said Respondents are untenable and unsustainable in law as well as in facts. The learned District and Session Judge has discussed the entire evidences on record elaborately and disbelieved the version of the Respondents. The learned District and Session Judge has in fact held that the Respondents could not produce any supporting evidence as well as any record to show that there was no army operation in village Ganakpara on 21.7.2003. On the other hand it has been found that all the witnesses examined on behalf of the writ Petitioner in one voice have deposed taking away of Hari Chandra Deka by Army in the white Tata Sumo vehicle without having the number plate. The owner of the vehicle also deposed before the learned District and Session Judge about taking away his vehicle i.e. white Tata Sumo by the Army on 21.7.2003 and return of the same on the next day. This witness though was thoroughly cross-examined no material contradiction could be brought out. One of the objection taken by the Respondents against the report is that Tirtha Deka, who was suspected to be involved in the kidnapping was not examined. We do not see any reason for raising such objection as nobody prevented the Respondents to produce such witness before the learned District and Session Judge in support of their case, which the Respondents have failed to do. Even the Respondent No. 1 to 4 could not bring out any contradiction or anything from the officer-in-charge of Kalaigaon police station who was also examined as witness on behalf of the writ Petitioner. 10. In view of the aforesaid reasons, we do not find any ground to reject the report submitted by the learned District and Session Judge and we are left with no option but to accept the report submitted by the learned District and Session Judge. 11. It is therefore, evident that Sri Hari Chandra Deka @ Kiriti Kalita, a physically handicapped person was picked up by the armed force on 21.7.2003 at about 11 p.m. and thereafter his whereabouts are not known. 11. It is therefore, evident that Sri Hari Chandra Deka @ Kiriti Kalita, a physically handicapped person was picked up by the armed force on 21.7.2003 at about 11 p.m. and thereafter his whereabouts are not known. The evidences on record requires drawing an adverse inference that the said individual might have been killed by the Army while in custody as he was never produced before any police station or before any court, as required under the provision of Armed Forces (Assam and Manipur) Special Powers Act, 1958. It is, therefore, a clear case of custodial death in the hands of the Respondents No. 1 to 4. 12. For the reasons recorded above, we held that the Respondent Nos. 1 to 4 are liable to pay compensation for causing disappearance or custodial death of Hari Chandra Deka @ Kiriti Kalita in view of the clear and categorical finding recorded by the learned District and Session Judge in the report. We therefore, direct the said Respondents to deposit a sum of Rs. 1.5 lakhs with the Registrar General of this Court within a period of three months from today, which amount shall be disbursed to the mother of Hari Chandra Deka @ Kiriti Kalita, on proper identification. 13. We have also considered whether an investigation by an independent authority like Central Bureau of Investigation is directed to be made to find out the person (s) responsible for such disappearance of the individual concerned, but because of long lapse of time i.e. about three years from the date of occurrence, we are not inclined to pass such order, as in our considered opinion no fruitful purpose will be served in directing such investigation after such lapse of time. 14. The writ petition is accordingly allowed to the extent indicated above. No cost. Petition allowed