Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 454 (GAU)

Ananta Gogoi v. Union of India

2008-06-24

AFTAB H.SAIKIA, H.BARUAH

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. P.C. Dey and Mr. A. Ganguly, the learned Counsel appearing for the petitioner/detenue. Also heard Mr. H. Rahman, the learned Assistant Solicitor General of India ('ASGI') representing the Union of India and Mr. P.S. Deka, the learned State counsel, Assam representing the State of Assam/respondent Nos. 2 to 6. 2. The District Magistrate Kamrup (Metropolitan) District Guwahati, ('the detaining authority') by his order dated 24.8.2007 in exercise of power conferred upon him under Section 3(2) of the National Security Act, 1980 ('the Act'), ordered that the petitioner who was presently detained in the Central Jail, Guwahati, Assam be detained for a period of three months from the date of issue of that order. Such detention order was approved by the Government vide order dated 12.10.2007 whereby the detenu has been detained for a period of 12 months w.e.f. the date of his detention. 3. Both the orders dated 24.8.2007 and 12.10.2007 as referred to above are the subject-matters of challenge in this Habeas Corpus Petition so preferred by the detenue/petitioner. 4. Primarily the order of detention and its subsequent approval as indicated above have been challenged on the following three grounds: (a) The detaining authority himself has not filed affidavit rather the affidavit has been filed by the Additional District Magistrate, Kamrup (Metropolitan) District Guwahati who is not a competent authority to do so. (b) The representation dated 30.8.2007 submitted by the petitioner through the Jail Authority, the receipt of which was acknowledged by the State Government on 31.8.2007, was disposed of on 14.9.2007 by rejecting the same after 14 days of unexplained inordinate delay. (c) The impugned detention order was not placed before the Advisory Board within the stipulated three weeks' time from the date of detention of the detenu as contemplated under Section 10 of the Act, which provides : "Reference to Advisory Board. (c) The impugned detention order was not placed before the Advisory Board within the stipulated three weeks' time from the date of detention of the detenu as contemplated under Section 10 of the Act, which provides : "Reference to Advisory Board. - Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under Section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in Sub-section (3) of Section 3, also the report by such officer under Sub-section (4) of that section. 5. It is submitted on behalf of the detenue that when the impugned order of detention was passed by the detaining authority namely, Avinash Joshi, the affidavit has been filed by one Kumud Chandra Kalita who has been at the relevant period holding the post of Additional District Magistrate, Kamrup Metropolitan District, Guwahati. Although in paragraph-1 of the said affidavit filed on 14.5.2008 it was stated as under: 1. That the deponent is authorized and competent to swear this affidavit. there is nothing on record, according to the learned Counsel representing the detenu, to apparently show that this officer has ever been duly authorised to swear such response. Under such circumstances, refuting all the contentions made in the affidavit filed by the officer concerned not being competent to do so, it is contended that the impugned detention order is itself vitiated. 6. To bolster up his submission strong reliance has been placed on a decision of this Court in a case of Phukan Daimary @ Fungjarang v. State of Assam and Ors. 1998 (4) GLT 40. In the instant cited case this Court referring to a series of Supreme Court decision, namely, Khudiram Das v. State of West Bengal 1975 (2) SCC 81 ; Shalini Soni v. Union of India (1980) (4) SCC 544 and Prakash Chandra Mehta v. Commissioner & Secretary Govt. of Kerala 1985 Supp. SCC 144, in paragraph 8 held as under: 8....The Detaining Authority has not filed any affidavit. The affidavit is filed by the successor in office. of Kerala 1985 Supp. SCC 144, in paragraph 8 held as under: 8....The Detaining Authority has not filed any affidavit. The affidavit is filed by the successor in office. Ordinarily the affidavit-in-opposite must come from the Detaining Authority, more so in a case where mala fide is alleged and subjective satisfaction challenged as in the instant case. There is not even a whisper as to why the Detaining Authority who passed the impugned order, annexure-A could not file an affidavit. Assuming he was transferred, yet he was very much available for filing an affidavit. The affidavit filed by the District Magistrate Sri Ashish Kumar Bhutani, cannot say anything about the subjective satisfaction arrived at by the then District Magistrate, Nalbari Sri B. Bhattacharjee who passed the impugned order on 5.4.1997. Now let us examine the affidavit as sworn and filed by Sri Ashish Kumar Bhutan. The verification appended to reads as follows: That the statements made in this affidavit and in paragraphs 1, 2, 8, 10, 16, 17, 18 and 19 are true to my knowledge while those made in paragraphs 3, 4, 5, 6, 7, 8, 11, 12, 13, 14,15 and 20 are true to my information derived from the records which I believe to be true and the rest are my humble submission before this Hon'ble court. The deponent Ashish Kumar in his affidavit in paragraph 8 states: The District Magistrate duly applied his mind to the facts of the case and was satisfied to pass the detention order on the basis of the grounds. The deponent denies that the order of detention is fraud on power an has been made for ulterior purpose. How can he say about the subjective satisfaction of some one else ? There is a glaring discrepancy. The impugned order of detention speaks of the activities that are prejudicial to the maintenance of public order whereas the ground of detention referred to security of State and maintenance of public order. But the order does not refer to Security of State, but it could only be explained by the authority who passed the detention order. It is significant to note that the Successor in office is a step ahead. But the order does not refer to Security of State, but it could only be explained by the authority who passed the detention order. It is significant to note that the Successor in office is a step ahead. What the District magistrate who passed the Detention Order does not even claim, is claimed by the successor in office as quoted above is speaks about the satisfaction of the Detaining Authority, the impugned order as quoted above merely states "whereas it has been made to appear to me". There is not remotest suggestion that the then District Magistrate was satisfied about the necessity of passing the detention order. The order does not anywhere say the detaining authority was satisfied on the basis of materials placed before him that a detention order should be passed. It was a compulsive necessity. This cannot be allowed to be substituted by proxy. The subjective satisfaction of B. Bhattacharjee cannot be approved by the affidavit of Ashish Kumar, more so in face of the discrepant nature of the impugned order which has been passed on mere appearance and not satisfaction.... 7. According to Mr. P.O. Dey, in view of the view expressed in the above judicial authority it may be held that there is total non-application of mind at galore on the part of the detaining authority in filing this affidavit, in such a case where a person's liberty granted as fundamental rights has been curtailed. 8. Coming to second point as regards inordinate delay, the learned Counsel has urged that it is admitted by the State respondents in their affidavit filed by the Joint Secretary to the Govt. of Assam, Political (A) Department on 4.6.2008 that though they received the representation dated 31.8.2007 they asked for parawise comments from the detaining authority and accordingly the said parawise comments were received by the State Government on 7.9.2007 and immediately thereafter the representation was rejected on 14.9.2007. But no reason whatsoever has been assigned by the State Government in causing such delay of 14 days in disposal of the representation. 9. So far non-placement of the grounds of the detention order before the Advisory Board is concerned, according to the learned Counsel, there was no whisper made in the affidavit filed on behalf of the State Government in this context to indicate such grounds of detention have ever been placed before the Advisory Board. 10. 9. So far non-placement of the grounds of the detention order before the Advisory Board is concerned, according to the learned Counsel, there was no whisper made in the affidavit filed on behalf of the State Government in this context to indicate such grounds of detention have ever been placed before the Advisory Board. 10. On the other hand, countering the averments made in the affidavit as well as arguments so placed on record by the learned Counsel for the detenu, Mr. Deka, the learned State counsel has stated that the officer concerned, i.e., Sri Kumud Chandra Kalita who was at the relevant period holding the post of Additional District Magistrate, Kamrup Metropolitan District, Guwahati was duly authorised and competent to swear this affidavit. To substantiate such submission, he has placed on record a communication dated 18.4.2008 by which Mr. Prateek Hajela, IAS, Deputy Commissioner, Kamrup Metropolitan District, Guwahati ordered that as he would be leaving Headquarter on 19th April, 2008 for attending Phase-IV of Mandatory Mid-Career Training programme of IAS officers to be conducted at Lalbahadur Shastri National Academy of Administration, Mussoorie with effect from 21st April, 2008 to 11th June, 2008, during that period of his absence from headquarter Sri Kumud Chandra Kalita, ACS, Additional Deputy Commissioner, Kamrup Metropolitan District, Guwahati would remain in charge of his current duties till his return to Headquarter. 11. Amazingly this is an office order issued by Mr. Prateek Hajela, IAS, Deputy Commissioner, Kamrup Metropolitan District, Guwahati who was never a detaining authority as it was only Sri Avinash Joshi, District Magistrate, Kamrup Metropolitan District who issued the impugned detention order. More interestingly this above referred order dated 18.4.2008 did not reflect any sort of authorisation or competency of Sri Kumud Chandra Kalita, ACS, Additional Deputy Commissioner, Kamrup Metropolitan District, Guwahati, for filing the affidavit in a case of preventive detention under the Act. Such action, in our" firm view, demonstrates total non-application of mind on the part of the detaining authority. The office order dated 18.4.2008 so produced by the learned State Counsel be kept herewith to form part of the records. 12. Such action, in our" firm view, demonstrates total non-application of mind on the part of the detaining authority. The office order dated 18.4.2008 so produced by the learned State Counsel be kept herewith to form part of the records. 12. As regards the delay in question in disposing of the representation dated 30.8.2007, it is stated on behalf of the State Government that delay was basically for seeking parawise comments from the detaining authority which was sought and received by the State Government on 7.9.2007 and immediately thereafter on 14.9.2007 the representation of the detenu was disposed of by rejecting the same and the same was, therefore, a reasonable delay which would hot vitiate the detention itself. 13. Referring to the issue of non-placement of the grounds of detention to the Advisory Board within three weeks in terms of Section 10 of the Act, Mr. Deka, on pointed query has contended that it was on record that such grounds of detention were placed immediately before the Advisory Board, however, he has failed to produce such communication before the court from the records available. 14. We have given our thorough consideration to the arguments canvassed representing the parties. Also meticulously scanned the entire materials available on record including the pleadings so exchanged by and between the parties along with the relevant records filed on behalf of the detaining authority, the State Government and the Central Government. 15. Having perused the affidavit filed by the Central Government it is found in paragaph-6 as follows: 6. That with regard to paras 8, 19 and 28 of the petition, it is submitted that the representation dated 30.8.2007 made by the petitioner alongwith the parawise comments on the said representation were received by the Government in the concerned section of Ministry of Home Affairs on 17.9.2007 through State Government of Assam vide their letter No. PLA.595/07/321 dated 10.9.2007. This representation was carefully examined and processed for consideration and the case of the detenu was put up before the Under Secretary, Ministry of Home Affairs on 18.9.2007. The Under Secretary carefully considered the case and with her comments put up the same before the Director (Security), Ministry of Home affairs on 18.9.2007. The Director (security carefully considered the case and with his comments put up the same before the Joint Secretary, Ministry of Home affairs on 19.9.2007. The Under Secretary carefully considered the case and with her comments put up the same before the Director (Security), Ministry of Home affairs on 18.9.2007. The Director (security carefully considered the case and with his comments put up the same before the Joint Secretary, Ministry of Home affairs on 19.9.2007. The Joint Secretary carefully considered the case forwarded the same before the Union Home Secretary, on 19.9.2007. 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 24.9.2007 and the file has received back in the section on 25.9.2009. 16. It appears from the perusal of the above paragraph that while disposing of the representation dated 24.9.2007 by the Central Government, it has, in explaining the delay, put forward a reasonable and adequate explanation and according to us, the same needs to be accepted. 17. However, we are not at all satisfied the manner in which the case of the detenu has been dealt with by the detaining authority as well as the State Government. 18. Firstly if we take the issue of filing the affidavit on behalf of the detaining authority by the officer Sri Kumud Chandra Kalita, Additional Deputy Commissioner, Kamrup Metropolitan District, Guwahati, we have no hesitation to say that this officer is not competent to put on record the subjective satisfaction of the detaining authority himself. How can the officer, assuming that he was duly authorised, say about the subjective satisfaction of someone who personally issued the impugned detention order. It would be pertinent herein to notice that the statements and averments made by the officer who claimed to have been authorised and competent to swear, in paragraphs 16, 18, 19 and 20 which are as follows ; 16. That with respect to the statements made in paragraph 18 of the writ petition there are sufficient grounds for detention of the petitioner under NSA, 1980 and the statement and allegations made by the detenue/petitioner are not correct and the same are hereby denied. That with respect to the statements made in paragraph 18 of the writ petition there are sufficient grounds for detention of the petitioner under NSA, 1980 and the statement and allegations made by the detenue/petitioner are not correct and the same are hereby denied. The detaining authority having formed the satisfaction that the detention of the petitioner/detenu was necessary with a view to preventing him from acting in a manner prejudicial to the maintenance of public peace and order and prejudicial to the security of the State as well as the Country, the detention is legal and lawful. The grounds of detention has proximate nexus to the object of detention. 18. That with respect to the statements made in paragraph 20 of the writ petition the deponent states that the State Government has validly empowered the detaining authority under Section 3(3) of the National Security Act, 1980 and the detaining authority thus was competent to pass the detention order. The detention order is within the jurisdiction and passed within the authority of law. 19. That the humble deponent begs to state that all mandatory - requirements of law has been complied and none of the rights of the petitioner has been affected and/or denied to the petitioner. The detention order is legal and valid and this Hon'ble court, therefore may not by please dot interfered with the order of detention. 20. That with respect to the statements made in paragraph 28 not true, the representation submitted by the detenue/petitioner was disposed off on the same day itself and no delay was caused. The order of rejection was also forthwith communicated to the petitioner. 19. An ordinary reading of the above paragraphs of the affidavit would go to clearly depict that the deponent is not competent to speak about the subjective satisfaction of the detaining authority. It is accepted that the affidavit-in-opposition must come from the detaining authority. Surprisingly, there is not even a whisper as to why the detaining authority who issued the impugned detention order could not file the response. That apart, how can the office order dated 18.4.2008 issued by another officer, not being the detaining authority, be accepted as being authorisation letter to file the affidavit by the Additional Deputy Commissioner. There cannot be a better example of non-application of mind, mechanical approach and cavalier attitude shown by the state than the case at hand. 20. That apart, how can the office order dated 18.4.2008 issued by another officer, not being the detaining authority, be accepted as being authorisation letter to file the affidavit by the Additional Deputy Commissioner. There cannot be a better example of non-application of mind, mechanical approach and cavalier attitude shown by the state than the case at hand. 20. The State Government has taken the stand that the delay of 14 days, being a reasonable time, in disposing of the representation was caused due to obtaining parawise comments from the detaining authority. Such type of plea has been rejected outrightly in a catena of decisions both from the Apex Court as well as this Court. The delay in disposing the representation on the ground of time taken in receiving the parawise comment from the detaining authority could not be accepted. Further there was no proper explanation in withholding the early disposal of the representation. When a representation is sent for disposal, it must accompany with the complete dossier, i.e., all necessary parawise comments including other materials from the authority. Non-sending of parawise comments by the detaining authority when the representation was dispatched to the State Government on 31.8.2007 and its consequential rejection on 14.9.2007 causing unexplained 14 day's delay in disposal of the said representation, in our considered view, has resulted in the violation of the procedural safeguard granted to the detenu under Article 22(5) of the Constitution of India. 21. It is a constitutional obligation on the part of the authority to consider the representation of the detenu as soon as it is received. It is correct that the Constitution has not enacted any time frame for disposing of the representation but it is requirement under the preventive detention law and constitutional mandate in granting procedural protection to the detenu that he must be given the earliest opportunity of making a representation against any detention order and his such representation needs to be considered with utmost expedition. In a case in Lala Paite v. State of Manipur and Ors. (1999) 3 GLR 236 this Court held that expeditious disposition was the rule and delay in disposal defeated the mandate of Article 22(5) of the Constitution. It was also ruled thereof that the authority was obliged to explain every day's delay. In a case in Lala Paite v. State of Manipur and Ors. (1999) 3 GLR 236 this Court held that expeditious disposition was the rule and delay in disposal defeated the mandate of Article 22(5) of the Constitution. It was also ruled thereof that the authority was obliged to explain every day's delay. In making such observation the court was guided by the judicial authority of the Apex Court in a case of Prabhu Dayal Deorah v. District Magistrate AIR 1974 SC 183 . In paragraph 10 of Lala Paite's case (supra), it was observed as under: 10. A right to make representation is not only a Statutory right under the National Security Act, it is a Constitutional rights as well. The words "as soon as may be" as enjoined in Article 22(5) of the Constitution reflects the concern of the makers of the Constitution for individual liberty which made in incumbent on the authority to act with promptitude, diligence and responsibility without the least possible delay. Expeditious disposition is the rule and delay in disposal defeats the mandate of Article 22(5) of the Constitution. Therefore, the authority is obliged to explain every day's delay. The framers of Constitution being alive to the fact that preventive detention involves serious inroads on the right of personal liberty, took care in incorporating clauses 4 and 5 in Article 22 of the Constitution and provided the minimal safeguards for the protection of persons sought to be detained on preventive ground. Its rigorous cannot be softened on the basis of the nature of the activities of a particular person. In this connection, we may recall the following observations made by Hon'ble Mr. Justice K.K. Mathew in the case of Prabhu Dayal Deorah, etc. v. District Magistrate, Kamrup and Ors. AIR 1974 SC 183 (para 67, p. 199) which reads as follows: The facts of the cases might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measures to secure the maintenance of supplies and services essential to the community has been frustrated by what is popularly called a technical error. AIR 1974 SC 183 (para 67, p. 199) which reads as follows: The facts of the cases might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measures to secure the maintenance of supplies and services essential to the community has been frustrated by what is popularly called a technical error. We say and we think it necessary to repeat, that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. And observance of procedure has been the bastion against wanton assaults on person liberty over the years. Under our Constitution, the only guarantee of personal liberty of a person is that he shall not be deprived of it except in accordance with the procedure established by law.... 22. Having regard to the judicial authorities above and also upon hearing the learned Counsel for the parties, we are of the considered view that this impugned detention order deserves to be interfered with on the following three reasons: (i) Affidavit on behalf of the detaining authority has been filed by an officer of the rank of Additional Deputy Commissioner, Kamrup Metropolitan District, Guwahati who was not the right and competent person to file the response. (ii) Delay of 14 days has not at all been properly and adequately explained. (iii) There is nothing on record and not even mentioned in any of the affidavits filed by the State respondents/authority indicating the compliance of Section 10 of the Act. The grounds of detention as alleged on behalf of the detenu, it appears, has not been sent within the stipulated period of three weeks' to the Advisory Board. 23. For the foregoing observation and reasons delineated above, we are of the view that both the impugned detention orders and subsequent approval order are liable to be set aside and quashed. It is ordered accordingly. 24. In the result this appeal succeeds and stands allowed. 25. The detenu/petitioner be set at not liberty forthwith, if he is required in any other case. 26. However there shall be no order as to costs. Appeal allowed.