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2008 DIGILAW 233 (GAU)

Anjana Dhekial Phukan v. Union of India

2008-03-20

HRISHIKESH ROY, J.CHELAMESWAR

body2008
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. B.K. Mahajan, learned Counsel appearing for the petitioner. Also heard Ms. B. Goyal, learned Govt. Advocate representing the detaining authority. Mr. H. Rahman, learned Asstt. Solicitor General of India apears for the Central Government. 2. Petitioner, who is the wife of Robin Dhekial Phukan has filed the present petition to challenge the detention order dated 13.12.2007 issued against her husband, hereinafter referred to as "the detenu", whereby the District Magistrate, Tinsukia in purported exercise of power under Section 3read with Section 3(3) of the National Security Act, 1980, hereinafter referred to as the NSA, ordered detention of the detenu for a period of 3 months. The substance of the detention order is extracted as below : ORDER Perused the report submitted by the Superintendent of Police, Tinsukia vide No. DSB/TSK/2007/7426 dt. 12.12.2007 and enclosed dossier of Sri Robin Dhekial Phukan S/O. Lt. Dhoneswar Dhekial Phukan, resident of village Kakapathar near forest Gate under Kakapathar P.S., District Tinsukia, Assam. Whereas, I Dr. K.K. Dwivedi, IAS, District Magistrate, Tinsukia District, Tinsukia, Assam, am satisfied that Sri Robin Dhekial Phukan S/O. Lt. Dhoneswar Dhekial Phukan, resident of village Kakapathar near forest Gate under Kakapathar P.S., District Tinsukia, Assam, is working for ULFA which is an unlawful organization notified by the Govt. of India and he has been involved in subversive activities which are prejudicial to maintenance of peace and public order and is a threat to security and integrity of the country. He is presently in the custody of the Central Jail, Dibrugarh and is likely to be enlarged at bail at any moment. If he is allowed to live at large it is most likely that he will again indulge in unlawful activities which will cause threat to peace, public order, safety and security and integrity of the Country; therefore, it is essential to detain him to debar him to act in any prejudicial manner. Therefore, I, Dr. K. K. Dwivedi, IAS, District Magistrate, Tinsukia District, Tinsukia, Assam, in exercise of the powers conferred upon me under Section3(2) read with Section 3(3) of the National Security Act, 1980 do hereby order that the said Sri Robin Dhekial Phukan S/O. Lt. Therefore, I, Dr. K. K. Dwivedi, IAS, District Magistrate, Tinsukia District, Tinsukia, Assam, in exercise of the powers conferred upon me under Section3(2) read with Section 3(3) of the National Security Act, 1980 do hereby order that the said Sri Robin Dhekial Phukan S/O. Lt. Dhoneswar Dhekial Phukan, resident of village Kakapathar near forest Gate under Kakapathar P.S., District Tinsukia, Assam, presently under judicial custody at Central Jail, Dibrugarh, be detained and kept in Central Jail, Dibrugarh with immediate effect for a period of three months. Given under my hand and seal on this 13th day of December, 2007. At the time of serving of this impugned detention order, the detenu was in custody in Central Jail, Dibrugarh in connection with Doomdooma Police Station Case No. 141/07. It may further be noticed that the impugned detention order was the second detention order issued against the detenu, following the earlier detention order dated 11.9.2007 which on being challenged by filing Writ Petition (Crl.) No. 32/07, came to be quashed by this Court by its judgment and order dated 11.12.2007 on the ground that detenu has not been informed of his right to make a representation, also before the detaining authority. 3. It is contended on behalf of the detenu that the impugned detention order dated 13.12.2007 is liable to be interfered with in view of the fact that the detaining authority was not conscious of the fact and accordingly there was non-application of mind to relevant fact that an earlier detention order passed on 11.09.2007 and that this Court quashed the said detention order on 11.12.2007. In support of the said submission, the learned Counsel relies upon the Supreme Court's decision reported in 1987 (30) ELT 37 (SC), Union of India and Ors. v. Manoharlal Narang. The next contention raised by the learned Counsel for the petitioner is that detention order is vitiated on account of the fact that the second detention order cannot be passed in the event of quashing of the earlier detention order passed against the detenu. The detention order is also challenged on the ground that the second detention order has been passed without any fresh materials and records and the existing facts and materials, which were relied upon to pass the first detention order dated 11.9.2007 has also been relied on for passing the impugned detention order. The detention order is also challenged on the ground that the second detention order has been passed without any fresh materials and records and the existing facts and materials, which were relied upon to pass the first detention order dated 11.9.2007 has also been relied on for passing the impugned detention order. It is also contended that at that time of passing the impugned detention order dated 13.12.2007, the detenu was already lodged in Jail in connection with Doomdooma Police Station Case No. 141/07 and no bail application on behalf of the detenu was filed or pending on that date seeking release from custody and there was no possibility of imminent release of the detenu and accordingly the detention order was not legally justifiable. 4. Ms. B. Goyal, learned Govt. Advocate in support of the detention order submits that merely because the detaining authority had not referred to the earlier detention order and the quashing of the said detention order by the High Court would not vitiate the second detention order in as much as the said fact cannot be construed to be "the most vital fact" and the detention order has been passed with due application of mind to all the relevant facts. It is also contended that since this Court quashed the first detention order dated 11.9.2007 on the ground of not informing the detenu of his right to make a representation particularly to the detaining authority and the said quashing order was not passed by the Court on the merit of the materials against the detenu, it was competent for the detaining authority to pass the second detention order. Learned Govt. Advocate also contends that although there are similarities in the grounds and materials for passing the two detention orders but such similarities are on account of the similar nature and activities of the detenu and accordingly on this score, the detention order cannot be said to be vitiated in law. 5. Representing the Central Government, Mr. H. Rahman, learned Asstt. Solicitor General of India submits that the competent authority of the Central Government, i.e. the Director (Security) had examined the Assam Government's Report submitted under the provision of Section 3(5) of the NSA and on such examination, the detention order is found to have been justified by the competent authority of the Central Government. 6. H. Rahman, learned Asstt. Solicitor General of India submits that the competent authority of the Central Government, i.e. the Director (Security) had examined the Assam Government's Report submitted under the provision of Section 3(5) of the NSA and on such examination, the detention order is found to have been justified by the competent authority of the Central Government. 6. In matters of preventive detention, the procedural safeguards put in place by statutory enactments as well as judicial pronouncements are the only protection for a detenu and Courts have time and again insisted on scrupulous compliance of the requirement of law. One such important safeguards is the examination by the Court as to whether there was proper application of mind by the detaining authority. Pre-requisite for proper application of mind by a detaining authority is to make available all the relevant materials and information on the person sought to be detained. Only when all relevant materials are made available to the detaining authority it can be expected that all relevant information and materials have been taken into account, before a preventive detention order is passed. In the instant case it is clear from the materials on record that the detaning authority was not appraised of the fact that earlier the detenu was subjected to an order of preventive detention on 11.9.2007 and that the said detention order was quashed by the Court on 11.12.2007. How the detaining authority would have reacted to the aforesaid information is not very relevant, but what is of relevance is making available all such information to the detaining authority to consider one way or the other on the necessity of passing a preventive detention order. The requirement of furnishing the relevant information cannot be judged by examining what might be the effect of such material on the decision of the detaining authority. But since the vital and relevant fact of earlier detention order against the detenu was not made available and accordingly the detaining authority could not have applied its mind with this aspect at the time of passing the order of detention, we are of the view that there was non-application of mind to relevant and vital information which according to us would vitiate the impugned order of detention. This view is consistent with the decision of the Supreme Court in Manoharlal Narang (supra) which was followed by our High Court in the case of "Debajyoti Mazumdar v. State of Assam" reported in 1998 (1) GLT 514. 7. On the challenge made to the order of detention on the ground that second detention order cannot be passed when the first order is quashed by the Court, we find that Section 14(2) of the NS A makes it dear that there is no bar to making of another detention order against the same person on expiry or revocation of an earlier detention order. But this submission is resisted by the learned Government Advocate by submitting that the quashing of the first order was on a technical ground and not on merit. Interpreting a similar provision like Section 14(2) of NSA but under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), the Supreme Court in Ibrahim Bachu Padhiyar v. State of Gujarat and Ors. reported in have held that where an earlier order of detention is quashed by a court in exercise of extra ordinary jurisdiction, the power of making a fresh order is not available to be exercised. In this decision of the Supreme Court, no distinction has been made of quashing of detention order by the Court on merit of the relevant material or on some technical ground of breach of some procedural safeguard like not informing the detenu of his right to make a representation against the detention order specifically to the detaining authority. In view of the aforesaid Supreme Court decision in Ibrahim Bachu Padhiyar (supra), we cannot accept the contention raised on behalf of the State that since the earlier quashing order was on the ground of not mentioning of the right of the detenu to make a representation to the detaining authority himself, the second detention order is permissible. Accordingly we are constrained to hold that since this Court had quashed the first detention order dated 11.9.2007, the second detention order gets vitiated in law in view of the ratio laid down by the Supreme Court in Ibrahim Bachu Padhiyar (supra). 8. Accordingly we are constrained to hold that since this Court had quashed the first detention order dated 11.9.2007, the second detention order gets vitiated in law in view of the ratio laid down by the Supreme Court in Ibrahim Bachu Padhiyar (supra). 8. The challenge made to the detention order on the ground of absence of fresh material we find that under the provisions of Section 14(2) of the NSA, although it is permissible to pass a subsequent detention order, it is clearly laid down mat the materials which prompted the authority to pass the first detention order ought not to be made the basis for passing the second detention order. If the earlier materials are relied upon by the detaining authority, the detention order would get vitiated in law. The learned Counsel for the petitioner has relied upon the decision of the Supreme Court reported in 1989 CriLJ 1145, Chhagan Bhagwan Kahar v. N.L. Kalna and Ors. to also submit that there must be absolutely fresh materials, for passing a second detention order and even some part of the earlier material along with some fresh materials can not be made the basis for the second detention order, because once the court strikes down a earlier order it nullifies the entire order. In the instant case on examination of the materials on record which were made the basis for passing the impugned 2nd detention order, the detaining authority had also taken into account in substance the earlier materials, which were taken into account to pass the 1st detention order dated 11.09.2007. This was clearly impermissible in view of the ratio laid down by the Supreme Court in Chhagan Bhagwan Kahar (supra). Reliance on even a portion of the earlier materials by the detaining authority to make the second detention order, would vitiate the subsequent detention order and accordingly on this ground also the impugned detention order dated 13.12.2007 is liable to be interfered with. The competence of the State to pass a second detention order on the basis of fresh material cannot be disputed but while making such fresh order, the detaining authority must take into account only fresh materials and not be influenced by the earlier available materials which were relied upon to pass an earlier detention order which came to be quashed by Court. 9. 9. On the final submission made on behalf of the detenu about no possibility of imminent release from Jail custody, it can hardly be emphasized that the object of passing a detention order is to prevent the person from acting in any manner pre-judicial to maintenance of public order and such other allied ground. Normally when a person is already in custody in connection with a specific police case, there would be no need to pass a detention order against such person when there is no immediate possibility of him being released from custody while lodged in jail in connection with a specific criminal case. But if there is a imminent possibility of release of the detained person as he might have filed a bail application, the detaining authority on the basis of cogent materials which would indicate that the release of the detenu on bail is eminent, can pass preventive detention order. But in the instant case, at the time of issuing the impugned detention order, no bail application was filed on behalf of the detenu seeking release from jail custody, where he was detained in connection with Doomdooma Police Station case No. 141/07. Accordingly what was the reason for passing the impugned preventive detention order when detenu was already in custody and there was no possibility of him being released on bail, is not discernible from the materials on record. On this aspect also there appears to be non application of mind of detaining authority and on this ground too the impugned detention order is held to be vitiated. 10. In view of the above discussion, we are of the considered opinion that the impugned detention order dated 13.12.2007 is unsustainable in law on each, or either of the above rioted grounds and accordingly the same is quashed. 11. Accordingly, the detenu be released from custody forthwith, if he is not wanted in connection with any other case. Petition dismissed.