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2008 DIGILAW 354 (GAU)

Ajit Hagjer @ Lambu Dimasa v. Union of India

2008-05-15

AFTAB H.SAIKIA, P.K.MUSAHARY

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. A.M. Mazumdar, learned Sr. Counsel assisted by Mr. J. Payeng and Mr. A. Medok, learned Counsel for the petitioner. Also heard Mr. D.C. Chakravorty, learned Central Government Counsel (for short, 'C.G.C.') representing the Union of India and Mr. P.S. Deka, learned State Counsel representing all the State official respondents. 2. The legality and correctness of the detention order dated 3.8.2007 issued by the District Magistrate, N.C. Hills, Haflong detaining the detenu/petitioner under Section 3(2) read with Section 3(3) of the National Security Act, 1980 (for short, "the Act") have been questioned in this Habeas Corpus Petition. 3. It is alleged that the detenu while was in custody on being arrested in connection with Mahur P.S. Case No. 19/06 under Sections 147/148/149/435/506 IPC read with Section 27 of the Arms Act the impugned order of detention was issued. However, the impugned order along with the grounds for detention were not served upon the detenu till 24.8.2007 when the copy of the order dated 10.8.2007 approving his detention in terms of detention order dated 3.8.2007 as mentioned above was served upon him who duly acknowledged the receipt of the said order on 24.8.2007. 4. It is also complained that though he submitted representation dated 22.11.2007 before the State Government as well as the Central Government through the jail authority (Annexure-D and D-l to the Habeas Corpus Petition), both the authorities disposed of the said representations on 5.1.2008 and 14.1.2008 respectively by causing an inordinate delay of 43 days and 53 days respectively. 5. Save and except the admission of the dates of disposal of the petitioner's representations by the respective Governments, all the allegations made in the instant Habeas Corpus Petition have been refuted and denied by both the Central Government and the State Government by filing their respective response. 6. The Central Government in their affidavit filed on 10.4.2008 in paragraphs 4 and 6 averred as under: 4. As regard to para 15 of the petition, consideration of report of the detenu is submitted that a report as envisaged under Section 3(5) of the National Security Act. 1980 about the detention of the petitioner was made by the Government of Assam to the Central Government in the Ministry of Home Affairs vide their letter No. PLA 564/2007/23 dated 10.08.2007. 1980 about the detention of the petitioner was made by the Government of Assam to the Central Government in the Ministry of Home Affairs vide their letter No. PLA 564/2007/23 dated 10.08.2007. The said report was received by the Central Government in the concerned Desk in the Ministry of Home Affairs on 24.08.2007. A case file was prepared and the report received from the State Government was carefully examined and case was put up before the Under Secretary, Ministry of Home Affairs on 24.08.2007. The Under Secretary considered the case and put up the same to the Competent Authority i.e. Deputy Secretary (Legal), who has been delegated powers by the Union Home Minister to take note of such cases. The Deputy Secretary (Legal) completed the examination of the report in the Ministry of Home Affairs on 24.08.2007 and found the detention order justified. The State Government is informed of the decision of the Central Government on the report received under Section 3(5) of the Act only when the detention order is revoked or modified by the Central Government. ... ... 6. That with regard to paras 7, 8 & 9 of the petition, it is submitted that no representation from or on behalf of the detenu, which is dated 22.11.2007 has been received in this Ministry. However, a representation dated 23.11.2007 made by the petitioner was received by the Central Government in the concerned desk of Ministry of Home Affairs on 17.12.2007 through State Government of Assam vide their letter No. PLA 564/07/06 dated 05.12.2007. It is stated that alongwith the representation dated 23.11.2007 the parawise comments on the representation were not received from the State Government. Therefore, the Central Government vide this Ministry's Wireless Message dated 18.12.2007 requested the State Government to send the parawise comments on the representation. The Government of Assam furnished the parawise comments vide their letter No. PLA 564/07/198 dated 29.12.2007 and the same was received by the Central Government in the concerned desk of Ministry of Home Affairs on 10.01.2008. This representation was immediately processed for consideration and the case of the detenu was put up before the Under Secretary, Ministry of Home Affairs on 11.01.2008. The Under Secretary considered the case and with her comments put up the same before the Director (Security), Ministry of Home Affairs on 11.01.2008. This representation was immediately processed for consideration and the case of the detenu was put up before the Under Secretary, Ministry of Home Affairs on 11.01.2008. The Under Secretary considered the case and with her comments put up the same before the Director (Security), Ministry of Home Affairs on 11.01.2008. The Director Security carefully considered the case and with his comments put up the same before the Joint Secretary, Ministry of Home Affairs 11.01.2008. The Joint Secretary carefully considered the case and forwarded the same before the Union Home Secretary on 11.01.2008. The Union Home Secretary (who has been delegated powers by the Union Home Minister to decide such cases) considered the case of the detenu and rejected the representation of the detenu on 14.01.2008 and the file has received back in the Section on. 16.01.2008. It is also submitted that a final decision to reject the said representation was taken by the Central Government in the Ministry of Home Affairs within 3 days (excluding 12th and 13th January, 2008 Saturday being holidays) of its effectively becoming available for consideration. There was no delay in taking the decision on the representation on the detenu. 7. In the said Affidavit of the Union of India, it is emphatically mentioned that a report as envisaged under Section 3(5) of the Act about the detention of the detenu was sent by the Government of Assam to the Central Government in the Ministry of Home Affairs vide their letter No. PLA 564/2007/23 dated 10.08.2007 which was received by the Central Government in the concerned Desk in the Ministry of Home Affairs on 24.08.2007 and as regards the disposal of the representation, the stand of the Central Government is that though they received the representation dated 23.11.07 filed by the detenu in the concerned desk of Ministry of Home Affairs on 17.12.2008 through the State Government of Assam vide their letter No. PLA/564/07/06 dated 05.12.2007, the para-wise comments on the said representation were not received from the State Government and accordingly, the Central Government vide this Ministry's Wireless Message dated 18.12.2007 requested the State Government to send the para-wise comments on the said representation. The Central Government received the para-wise comments on 10.1.08 furnished by the State Government vide their letter No. PLA 654/07/198 dated 29.12.2007 and thereafter having considered the case, the Joint Secretary placed the matter before the Union Home Secretary and eventually the said representation was rejected on 14.1.08, virtually admitting the allegations so made by the detenu that there was a delay of 53 days in dispensing the representation by the Central Government of India. 8. Rejecting the contentions so made by the detenu, the State Government has filed two affidavits on 14.5.08, one by the State Government itself and the other by the Extra Assistant Commissioner (for short, 'the EAC), N.C. Hills, Haflong on behalf of the District Magistrate, N.C. Hills,' Haflong, Assam by stating to the effect that all the relevant documents including the order of detention along with the grounds of detention were supplied to the petitioner along with dossier immediately and the same were duly served and received by the detenu himself. As regards the disposal of the representation dated 22.11.2007, the State Government admitted that the representation which was received on 23.11.07 by the jail authority and forwarded to the State Government as well as the Central Government on 24.11.07, was disposed of only on 5.1.2008. Apparently, it is seen, delay of such disposal was 43 days. In explaining such delay, it is averred on behalf of the State Respondents that the undated representation was forwarded by the Jail Superintendent Special Jail, Nagaon on 24.11.07 and the same received by the State Government on 3.12.07 copies of which were forwarded to the Central Government on 5.12.07 as well as to the State Advisory Board. Thereafter, the State Government asked the detaining authority vide their letter dated 5.12.07 to furnish its parawise comments on the representation submitted by the detenu and the detaining authority submitted para-wise comments vide its letter dated 26.12.07 which was received by the detenu on 28.12.07 and having considered the contents made herein, representation was rejected on 5.1.08. 9. It would be pertinent to quote in this context, the relevant paragraphs i.e. 3, 4, 5, 6, 9, 10, 11, 12, 13, 14 and 15 of the affidavit in opposition so filed by the State Government which are as follows: 3. 9. It would be pertinent to quote in this context, the relevant paragraphs i.e. 3, 4, 5, 6, 9, 10, 11, 12, 13, 14 and 15 of the affidavit in opposition so filed by the State Government which are as follows: 3. That the humble deponent begs to state that the order of detention was received by the State Government on 09.08.07 who in turn reported the fact of detention to the Central Government immediately. 4. That the humble deponent begs to state that all relevant documents relating to the detention along with the grounds of detention were supplied to the petitioner along with dossier which was received by the detenu. 5. That the humble deponent begs to state that vide order dated 10.8.2007 the detention order was approved by the Governor of Assam and the order of approval was communicated to the detenu as well as to the Central Government immediately on 10.8.07 itself. The detenu acknowledged the receipt of the order of approval on 24.08.07. 6. That the humble deponent begs to state that on 17.8.07 the Advisory Board was informed of the detention and all materials were forwarded to the Advisory Board. ... ... 9. That the humble deponent begs to state that the detenu submitted an undated representation addressed to the State Government which was forwarded by the Superintendent Special Jail, Nagaon on 24.11.07 and was received by the State Government on 3.2.07. 10. That the humble deponent begs to state that a copy of the aforesaid representation addressed to the Central Government was forwarded to the Central Government by the Superintendent, Special Jail, Nagaon vide letter dated 24.11.07. 11. That the humble deponent begs to state that after receipt of the representation on 3.12.07, the State Government, vide its letter dated 5.12.07 forwarded the representation to the Central Government as well as the State Advisory Board. The State Government also asked the detaining authority vide letter dated 5.12.07 to furnish its para-wise comments on the representation submitted by the detenu. 12. That the humble deponent begs to state that the detaining authority vide its letter dated 26.12.07 forwarded its parawise comments to the State Government which was received by the State Government on 28.12.07. 13. That the humble deponent begs to state that on receipt of the para-wise comments aforesaid, the State Government sent the same to the Central Government on 29.12.07. 14. 13. That the humble deponent begs to state that on receipt of the para-wise comments aforesaid, the State Government sent the same to the Central Government on 29.12.07. 14. That the humble deponent begs to state that vide order dated 5.1.08 the representation of the detenu was rejected by the State Government and the said fact was communicated immediately on the same day to the Central Government, State Advisory Board and to the Superintendent, Special Jail, Nagaon to effect service of the order to the detenu. The detenu acknowledged receipt of the rejection order on 11.01.08. 15. That the humble deponent begs to state that vide W.T. Message dated 17.1.08', the Central Government communicated the order dated 14.1.08 whereby the representation of the detenu was rejected. 10. The basic challenge to the impugned detention order as emerged from the extensive arguments of Mr. Mazumdar, learned Sr. Counsel is three fold: (1) That the detention order dated 3.8.08 served upon the detenu only on 24.8.07 manifestly causing a delay of 21 days which is hit by Section 8 of the Act.; (2) The Central Government took 53 days delay in disposing the representation dated 24.11.07 accepting the date as 24.11.07 as quoted by the Central Government in their affidavit; and (3) There was an inordinate delay of 43 days on the part of the State Government in disposing of the representation so furnished to the State Government by the Jail authority on 24.11.07. 11. Denouncing the delay as alleged, in furnishing the impugned detention order along with the grounds of detention, Mr. Deka, learned State Counsel relying on the affidavits as quoted above, has contended that there was no such delay in serving the detention order as both the impugned detention order and the grounds of detention were served upon the detenu immediately vide annexure-C to this Habeas Corpus Petition. 12. Amazingly this submission of Mr. Deka does not get any support either from the affidavit itself or from the relevant record placed before us. There is no record to show that impugned order along with the detention order was ever served upon the petitioner. Even Annexure-C to this Habeas Corpus Petition, would candidly project that the order dated 10.8.07 approving his detention order dated 3.8.07 was only received by the detenu on 24.8.07 and that too after 14 days. There is no record to show that impugned order along with the detention order was ever served upon the petitioner. Even Annexure-C to this Habeas Corpus Petition, would candidly project that the order dated 10.8.07 approving his detention order dated 3.8.07 was only received by the detenu on 24.8.07 and that too after 14 days. This would certainly go to indicate that the detention order along with the grounds of detention and approval order dated 10.8.07 were served upon the detenu only on 24.8.07; meaning thereby the detention order dated 3.8.07 was served upon the detenu after 21 days delay i.e. on 24.8.07. 13. Coming to the explanation set out for causing delay in disposal of the representation by the State Government, on meticulous scanning of the entire materials placed on record including the affidavits so exchanged by and between the parties, we find that the basic reason for delay is due to the receipt of the representation dated 24.11.07 only on 3.12.07 and the time taken in seeking and getting the para-wise comments from the detaining authority and in this process delay was effected and representation was admittedly disposed of on 5.1.08. In so far as disposal of the representation dated 24.11.07 by the Central Government is concerned, it transpires that the Central Government also took the same stand to the effect that the delay was due to non-placement of parawise comments along with the representation and after receipt of the parawise comments, the representation was disposed of only on 14.1.08. 14. Relevant provisions of law in this context may be noticed. Section 8 of the Act with provides for order of detention to be disclosed to persons affected by the order, contemplates as under: 8. Grounds of order of detention to be disclosed to persons affected by the order: (1) When a person is detained in pursuance of detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than 10 days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. (2) Nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. 15. It would be pertinent to mention herein also the related constitutional procedural safeguards guaranteed to a detenu as enshrined as the fundamental rights under Article 22 of the Constitution of India and those are as under: 22. Protection against arrest and detention in certain cases: (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. ... ... (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. 16. A conjoint reading of the provisions of law under the Act as well as Article 22 of the Constitution of India above noted would go to show that a detenu must be provided with the detention order along with the grounds of detention within a stipulated time frame and non-compliance of the same would result in vitiating such detention order under Article 22 of the Constitution of India as indicated above. 17. Given facts and circumstances as narrated above, we find that this statutory and constitutional procedural safeguards have not beer, followed. In the case in hand as discussed above, there is no second opinion that the detention order was not served upon the detenu as required under the provision of law and the same was served after 21 days delay and as such we have no hesitation to hold that such action is hit by Section 8 of the Act as well as Article 22 of the Constitution of India. 18. 18. As regards the delay in disposal of the representation dated 24.11.07 filed by the detenu before the Central Government as well as the State Government, the grounds of delay for seeking and in getting parawise comments from the concerned authority at a belated stage have already been negated by a catena of judicial pronouncements; amongst those to cite in the case of Subrata Paul v. Union of India and Ors. reported in wherein this Court had the occasion to deal with an identical issue of explaining the delay in disposal of the representation on the ground of non-receipt of para-wise comments and in paragraphs 24 and 25 it was held as under: 24. From the affidavit submitted by the Under Secretary, Ministry of Home Affairs, Govt. of India, we find that the representation could not be considered for non-receipt of para-wise comments from the detailing authority. Strangely, the Central Government I had to remind the detaining authority for submitting its comments on 26.10.2006, we have given our anxious consideration whether this could have been a proper explanation for withholding the representation. In our considered opinion both the State Government and the Central Government were at fault. We have already held earlier that the report from the State Government to the Central Government should be a complete one. It is true that in the present case, the detenu had submitted a representation, albeit only in the name of the detaining authority and the same was forwarded to the Central Government. However, the same could not be considered with prompt dispatch by the Central Government due to incomplete dossiers, that is, without comments from the State. This procedural lacuna resulted in loss of 35 days in considering the representation by the Central Government. Accordingly, there was 66 days cumulative delay in disposal of the representation by the State and the Central Government. Having regard to the nature of detention and rigor of the law, we hold that there was disproportionate delay at both the ends. 25. Mrs. B. Goyal, learned State Counsel appearing for the State submitted that in the case of Shetty Zuraina Begum v. Union of India and Ors. 2002 (84) ECC 712 the Hon'ble Supreme Court has held that if the delay is explained, the preventive detention need not be interfere with. In the said case only 20 days', time was taken for considering the representation. 2002 (84) ECC 712 the Hon'ble Supreme Court has held that if the delay is explained, the preventive detention need not be interfere with. In the said case only 20 days', time was taken for considering the representation. Even this delay took place to translate the representation from Tamil to English. However, in the case before us, the representation was submitted in English and despite that both the State Government as well as the Central Government took long periods in considering the representation, above all, both these authorities have failed to account for the time taken in disposing the representation. 19. It is settled law that fundamental right enshrined under Articles 22(1) and (5) as indicated above and Section 8 of the Act impose Constitutional and legal obligation upon the competent authority issuing the detention order, to communicate the detention order along with the grounds of detention to the detenu with a express time limit informing him his sacred right of earliest opportunity for making a representation against such detention order. Once such right has been guaranteed of making such effective representation, the authority is duty bound and is incumbent upon it to dispose of the same without any delay. 20. In view of what has been stated, discussed and observed above, we are of the considered view that the action on the part of the State Government as regards the serving of the impugned order after 21 days of delay and disposal of the representation after 43 days of delay by the State Government and after 53 days delay by the Central Government has vitiated the detention of the detenu and under such factual situation, we have no hesitation to interfere with the impugned detention order. 21. Consequently, the impugned order stands set aside and quashed. 22. The detenu be set at liberty forthwith, if he is not connected with any other case. 23. In the result, this Habeas Corpus Petition stands allowed. Petition allowed.