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2008 DIGILAW 397 (GAU)

Rakhi Phukan @ Deep Gogoi v. Union of India

2008-05-30

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. P.C. Dey, learned Counsel appearing on behalf of the petitioner and Mr. H. Rahman, Assistant Solicitor General of India (for short, 'ASGI') representing the Union of India as well as Mr. P.S. Deka, learned State counsel representing the Respondents Nos. 2 to 6. 2. The challenge to the order dated 16.10.07 issued by the District Magistrate, Kamrup (Metropolitan) District, Guwahati, detaining the detenu/petitioner under Section 3(2) of the National Security Act, 1980 (in short, 'the Act') and the subsequent order dated 16.11.07 confirming such detention of the petitioner, has been made on the sole ground that the representations so preferred by the petitioner, admittedly received by the State Government on 8.11.07, before the competent authorities i.e., the State Government as well as Central Government have been disposed of rejected on 22.11.07 and 6.12.07 by the competent authorities causing -an unexplained inordinate delay of 14 days and 20 days respectively by the State Government and the Central Government. 3. The State Government in its affidavit dated 16.5.08 in paras-9 & 10 has averred asunder: 9. That the humble deponent begs to state that the State Government received the representation of the detenu on 8/11/07. On receipt of the representation on 8.11.07, the same was put up before the concerned officer on 9.11.07 who sent the same to the Advisory Board on 12.11.07. On 12.11.07 the representation was sent to the Central Government as well. Subsequently, after collecting the relevant particulars, para wise comments were also sent to the Central Government vide letter dated 17.11.07. The Central Government ultimately vide message dated 11.12.07 informed that the representation of the detenu was rejected. The said fact was communicated to the detenu immediately. 10. That the humble deponent begs to state that the State Government after due consideration of the representation of the detenu as well considering all relevant materials, rejected the representation vide order dated 22.11.07. 4. The statements and contentions so noticed hereinabove would explicitly reflect that the representation so received by the State Government on 8.11.07 was disposed of on 22.11.07 by rejecting the same causing a delay of 14 days. However, such delay has not been properly explained, as evident from the above quoted paragraphs. Even, no attempt has been made by the State Government to explain such delay by making any other statement in the said affidavit itself including paras 9&10. However, such delay has not been properly explained, as evident from the above quoted paragraphs. Even, no attempt has been made by the State Government to explain such delay by making any other statement in the said affidavit itself including paras 9&10. 5. On the other hand, the response filed on behalf of Union of India in para-6 demonstrates as under: 6. That with regard to para 3, 8, 19 & 28 of the petition, it is submitted that the representation dated Nil made by the petitioner along with the parawise comments on the said representation were received by the Government in the concerned Section of Ministry of Home Affairs on 21.11.2007 through State Government of Assam vide their letter No. PLA. 763/07209 dated 12.11.2007. The State Government vide this Ministry's wireless message dated 21.11.2007 was requested to sent the parawise comments on the representation. The Government of Assam had furnished the parawise comments vide their letter No. PLA. 763/07/227 dated 17.11.2007 and same was received by the Central Government in the concerned desk in the Ministry of Home Affairs on 03.12.2007. 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 04.12.2007. The Under Secretary carefully considered the case and with her comments put up the same before the Director (Security), Ministry of Home Affairs on 04.12.2007. The Director (Security) carefully considered the case and with his comments put up the same before the Joint Secretary, Ministry of Home Affairs on 05.12.2007. The Joint Secretary carefully considered the case forwarded the same before the Union Home Secretary, on 05.12.2007. 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 06.12.2007 and the file has received back in the section on 07.12.2007. 6. As per statements and contentions made in the above paragraph, it transpires that the Central Government received the representation on 21.11.07 and since no parawise comment was accompanying with the said representation, the Central Government by wireless message dated 21.11.07 requested the State Government to send parawise comments. 6. As per statements and contentions made in the above paragraph, it transpires that the Central Government received the representation on 21.11.07 and since no parawise comment was accompanying with the said representation, the Central Government by wireless message dated 21.11.07 requested the State Government to send parawise comments. However, parawise comment vide letter dated 17.11.07 was sent by the State Government which was received by the Central Government on 3.12.07 and immediately thereafter they processed for disposal of the said representation and ultimately the same was disposed of on 6.12.07. 7. Averments made on behalf of the Central Government as reflected in the above quoted paragraph-6 have been corroborated by the State Government in their affidavit in paragraphs 9 & 10. It appears from both the affidavits of the State Government as well as the Central Government that though the representation was received by the State Government on 8.11.2007, the same was sent to the Central Government on 12.11.2007 without the parawise comments. Nonetheless vide order dated 17.11.07, such parawise comments were also sent to the Central Government. Such action on the part of the State Government appears to be not in conformity with the settled principle of law pertaining to the procedural safeguard granted to a detenu who was deprived of early disposal of his representations. 8. Since, on the face of the record, the representation so received by the State Government on 8.11.07 was disposed of only on 22.11.07 causing the delay of 14 days without any reasonable or cogent explanation for such delay and also as there was accepted delay in sending the parawise comments to the Central Government for disposal of the representation of the detenu, as already discussed above, we are of the considered view that the delay in disposal of the representation has been hit by Article 22(5) of the Constitution of India. 9. In a plethora of decisions, the Apex Court as well as this Court have reiterated the law settled as regards the consequence of delay in disposal of the detenu's representation. It is the requirement of law that the representation submitted by detenu is required to be disposed of with utmost expedition and promptness. It would, of course, depend on the facts of each case where the delay in disposal of the representation has been properly explained or not. It is the requirement of law that the representation submitted by detenu is required to be disposed of with utmost expedition and promptness. It would, of course, depend on the facts of each case where the delay in disposal of the representation has been properly explained or not. What is indeed required is that there should not be any apathy, callousness or cavalier attitude in disposal of the representation. If not sufficient, cogent and satisfactorily explanation has been given or delay is found to be wilful or one turned or negligence, it would amount to impeachment of the Constitutional mandate of Article 22(5) of the Constitution. Life and personal liberty are the basic rights to which the person is born free. A person cannot be deprived of such rights as enshrined under Article 22(5) of the Constitution save and except in accordance with the procedure of law. (See-1) Durga Pada Ghosh v. State of West Bengal AIR 1972 SC 2420 , (2) Aslam Ahmed @ Zahire Ahmed Sheikh v. Union of India and Ors. 1989 CriLJ 1447, (3) B. Alamelu v. State of Tamil Nadu and Ors. 1995 ECR 8 (SC), (4) Balaram Kalita v. State of Assam and Ors.1997(2) GLT 384, (5) Joel Goriosa @ Barman v. State of Assam and Ors. 1999 (1) GLT 492, (6) Bhaskar Bora @ Raju Bora v. State of Assam and Ors. 1998 (1) GLT 282 and (7) Md. Monisur Islam v. Union of India and Ors. [2002] SUPP 3 SCR 19. 10. Having meticulously scrutinized the factual situation as has been unfolded by the pleadings so exchanged by and between the parties as well as having regard to the established principles of law and also upon hearing learned Counsel for the parties, this Court is of the clear view that the delay in disposal of the representation without any acceptable explanation, has violated the procedural safeguard guaranteed to the petitioner under Article 22(5) of the Constitution of India being fundamental right. Accordingly, we hold that the impugned detention of the detenu can not be sustained. Consequently, the impugned detention order stands quashed and set aside. 11. In the result, the writ petition succeeds and stands allowed. The appellant be set at liberty forth-with if she is not required in any other case. Send down the records forthwith. Petition allowed.