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2008 DIGILAW 318 (GAU)

Ramjan Ali v. Union of India and Ors.

2008-04-30

AFTAB H.SAIKIA, H.BARUAH

body2008
Aftab H. Saikia, J.:- 1. Heard Mr. M.G. Singh, learned counsel appearing on behalf of the petitioner and Mr. H. Rahman, Assistant Solicitor General of India CASGI',) representing the Union of India as well as Mrs. B. Goyal and Ms. S. Sharma, learned State counsel representing the State of Assam/Official respondents. 2. The legality and correctness of the order dated 27.9.2007 issued by the District Magistrate, Kamrup Metropolitan District, Guwahati, detaining the detenue/petitioner under section 3(2) of the National Security Act, 1980 ('the Act') has been assailed in the instant writ proceeding. 3. A challenge to the impugned detention order has been made on the sole ground that the procedural safeguard stipulated under section 3(5) read with section 14 of the Act has not been complied with either by the State of Government or the Central Government and as such, the impugned detention of the petitioner is illegal and the same is hit by the provisions of articles 21 and 22 of the Constitution of India. 4. For the sake of convenience, it would be appropriate to quote the relevant portion of section 3(5) and section 14 of the Act, which run as under: "3. Power to make orders detaining certain persons. - .., (5) Whey any order is made or approved by the State Government under this section, the State Government shall, within seven days, reports the fact 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 necessary for the order. 14. Revocation of detention orders. - (1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 (10 of 1987), a detention order may, at any time, be revoked Or modified, - (a) notwithstanding that the order has been made by an officer mentioned in sub-section (3) of section 3, by the State Government to which that officer is subordinate or by the Central Government; (b) notwithstanding, that the order has been made by a State Government, by the Central Government. (2) The expiry or revocation of a detention order (hereafter in this sub­section referred to as the earlier detention order) shall not [whether such earlier detention order has been made before or after the commencement of the National Security (Second Amendment) Act, 1984] bar the making of another detention order (hereafter in this sub-section referred to as the subsequent detention order) under section 3 against the same person : Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order." 5. On meticulous perusal of the pleadings exchanged by and between the parties, made available before this court, it appears that the detenue/petitioner has preferred a representation dated 5.10.2007 before both the Central Government as well as State Government. 6. I insofar as the representation dated 5.10.2007 made to the State Government is concerned, the same was disposed of on 17.10.2008 whereas the representation dated 5.10.2007 sent to the Central Government was disposed of on 1.11.2007. 7. On the other hand the detention order of the detenue was approved by the Government of Assam vide order dated 1.10.2007, which reads as under : "GOVERNMENT OF ASSAM POLITICAL (A) DEPARTMENT, DISPUR NO. PLA. 725/07/196 Dated, Dispur 5th October, 2007 ORDERS BY THE GOVERNOR The Governor of Assam after considering all the facts is pleased to approve on 1.10.2007 the detention order No. X/07/NSA/130/CA(A) dated 27.9.2007 passed by the District Magistrate, Kamrup (Metro) detaining Shri Ramjan Ali @ Amir @ Romeo @ Ranjan Saikia, S/o Mahammad Ali, Vill-Dheknabari, PS-Chaygaon-Dist-Kamrup,.... Assam under sub-section (3) of Section 3 of the National Security Act, 1980 and further orders that the said detenue be detained in the Central Jail, Guwahati for a period of 3tthree) months from the date of issue of detention order in the first instance. By Order And In The Name Of The Governor Sd/- Rajib Kumar Bora Commissioner & Secy, to the Govt. of Assam Home & Political Department" 8. By Order And In The Name Of The Governor Sd/- Rajib Kumar Bora Commissioner & Secy, to the Govt. of Assam Home & Political Department" 8. Now question that needs to be decided herein is that whether such order of detention dated 27.9.2007 or the approval order dated 5.10.2007 has ever been sent to the Central Government within the period of 7(seven) days in compliance of section 3(5) of the Act. Although the State Government has filed as many as 3 affidavits against this Writ Petition so preferred by the detenue/petitioner, there is no whisper whatsoever in any of those responses that the State Government has made any attempt to comply with the provisions of section 3(5) read with section 14 of the Act. 9. On pointed query made by this court, Mrs. Goyal, learned State counsel has tried to impress jupon the court by asserting to the effect that both the orders dated 27.10.2007 as well as dated 5.10.2007 have been sent to the Central Government within the stipulated time frame so contemplated under section 3(5) of the Act. To bolster up her submission, she has drawn our attention to the order dated 5.10.2007 and submitted that the copies of the detention order along with the grounds of detention have been forwarded by Speed Post to the Secretary, Ministry of Home Affairs, C/o Deputy Secretary, Security Division, New Delhi, for favour of information. According to her this communication was sent by Speed Post as reflected in the bottom of order dated 5.10.2007 itself and the same is sufficient to indicate the compliance of the provision of section 3(5) of the Act. 10. We are really surprised and astonished by such submission. It is amazing to note that that when the affidavits and the relevant records so made available before us are silent as regards sending of any communication to the Central Government in terms of section 3(5) of the Act, how this communication as noted above is expected to be the reporting of the facts to the Central Government. 11. Be that as it may, the Central Government, in their Affidavit made categorical statement that they received only representation of the petitioner dated 5.10.2007 and the same was disposed of on 1.11.2008. 11. Be that as it may, the Central Government, in their Affidavit made categorical statement that they received only representation of the petitioner dated 5.10.2007 and the same was disposed of on 1.11.2008. However, the said Affidavit so filed on behalf of the Central Government is silent as regards receipt of any report in terms of section 3(5) of the Act. 12. At this stage, Mr. Singh, learned counsel for the petitioner has submitted that, if the communication dated 5.10.2007 sent by the State Government itself to the Central Government is accepted to be the report of the fact of detention to the Central Government in terms-of section 3(5) of the Act, the Central Government, on receipt of the same has not yet disposed of till date. 13. Against such submission Mr. Rahman, learned ASGI contended that the Central Government has not yet received any copy of the detention order as well as the grounds of detention and as such the question of disposal of the same does not arise. 14. In view of what has been stated, observed and discussed above, we are of the considered view that section 3(5) of the Act has not been complied with either by the State Government or the Central Government. Even if we accept the order dated 5.10.2007 as to be the report submitted by the State Government to the Central Government as the copy of the same was sent to the Central Government as evident from the said order itself, we find that such report has also not yet been attended to by the Central Government. 15. That being the factual situation, we have no hesitation to hold that non-compliance of section 3(5) of the Act has vitiated the detention of the detenue/petitioner. Accordingly, the detention order against the petitioner stands dismissed. 16. In the result, the writ petition succeeds and stands allowed. 17. The appellant be set at liberty forthwith, if he is not connected in any other case. 18. Send down the records.