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2008 DIGILAW 634 (GAU)

Debolal Gorlosa @ Daniel Dimasa v. Union of India

2008-08-28

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. B.K. Mahajan, learned Counsel appearing on behalf of the Petitioner/detenue (hereinafter referred to as 'the detenue') and also heard Mr. N. Baruah, learned Central Government Counsel (for short, 'CGC') as well as Mr. RS. Deka and Mr. R. Adhikary, learned State counsel, Assam, representing the official Respondents. 2. The detention of the detenue vide order dated 10.6.2008 issued by the District Magistrate, N.C. Hills, Haflong under Section 3 of the National Security Act, 1980 (for short, 'the Act') has been challenged in this Habeas Corpus petition basically on two grounds- (i) The Petitioner’s right to make representation to the detaining authority has not been informed by the detaining authority in its impugned detention order dated 10.6.2008. Even the grounds of detention do not disclose any such right to make any representation, to the detaining authority; and (ii) There was an inordinate delay in disposing the two representations dated 30.6.2008 and 4.7.2008 presented by the detenue to the Government of Assam as well as the Central Government. 3. From a careful perusal of the impugned order as well as grounds of detention, it is found that in the impugned detention order, the detenue has been informed that he has right to make a representation against the order of detention and if he wishes to make any representation, he should address it to the State Government, the Central Government (Home and Political Departments) and Chairman, NSA Advisory Board, Guwahati. Nonetheless no such right to make representation to the detaining authority has been mentioned in the impugned detention order. Moreso, the ground of detention even does not reflect any such information as regards his right to make any representation to any authority as mentioned above. 4. It is settled law that non-furnishing of the information about the detenue's right to make representation to the detaining authority itself vitiates the detention order (See Konsam Brojen Singh @ Basam @ Sekhar @ Suraj @ Sainhel @ Basanta @ Inaotomba v. State of Manipur and Ors. reported in 2006 1 GLT 375 (FB). 5. Having gone through the affidavit filed on behalf of the State of Assam/Respondents Nos. 2 and 3, in paragraph 7, we find that the representations dated 30.8.2008 and 4.7.2008 filed before the State Government have been disposed of on 5.8.2008 and 16.8.2008 respectively causing an unexplained inordinate delay of 36 and 46 days respectively. 5. Having gone through the affidavit filed on behalf of the State of Assam/Respondents Nos. 2 and 3, in paragraph 7, we find that the representations dated 30.8.2008 and 4.7.2008 filed before the State Government have been disposed of on 5.8.2008 and 16.8.2008 respectively causing an unexplained inordinate delay of 36 and 46 days respectively. That apart, amazingly, in the said paragraph 7 it is contended that representation dated 4.7.2008 furnished by the detenue through the Superintendent of Jail was forwarded by the learned District Magistrate, N.C. Hills, Haflong to the State Government on 1.8.2008 which goes to show that there was also apparently 27 days delay. Even the representations dated 30.8.2008 and 4.7.2008 were sent by the State Government to the Central Government on 5.8.2008 without any explanation of such delay. 6. The relevant paragraph i.e. para-7 of the State's affidavit may be notice as under: 7. That the deponent that the detenue Shri Debolal Gorlosa @ Daniel Dimasa has furnished 2(two) representations dated 30.6.2008 and 4.7.2008 addressed to the Govt., of Assam and Central Govt., through the Superintendent, Special Jail, Nagaon. The detaining authority, i.e., District Magistrate, N.C. Hills has forwarded the representation dated 30.6.2008 along with his para-wise comments on the representation on 17.7.2008. Govt, has received the same on 30.7.2008 and processed the same for disposal and also rejected his representation on 5.8.2008 and communicated the same to concerned authority on the same day. Another representation dated 4.7.2008 was furnished by the detenue through the Superintendent, Special Jail, Nagaon addressed to the State Govt., and Central Govt. The District Magistrate, N.C. Hills has forwarded the representation dated 4.7.2008 along with his para-wise comments on 1.8.2008 and which was received by the Govt., on 2.8.2008. The Govt., has rejected his representation on 16.8.2008. Govt., has forwarded both the representation dated 30.6.2008 and 4.7.2008 along with para-wise comments on the representations to the Central Govt., and Advisory Board, NSA on 5.8.2008. 7. Law has already been established on the point of inordinate disposal of the representation furnished by the detenue under the Preventive Detention Law. The Law requires that under the Preventive Detention Law, the representation submitted by the detenue must be considered with reasonable expedition and delay which is not adequately and properly explained in disposal of the representation would result in violation of the Article 22(1) and 22(5) of the Constitution of India. 8. The Law requires that under the Preventive Detention Law, the representation submitted by the detenue must be considered with reasonable expedition and delay which is not adequately and properly explained in disposal of the representation would result in violation of the Article 22(1) and 22(5) of the Constitution of India. 8. As already noticed above, we are of the view that the inordinate delay in disposing both the representations has not been properly and adequately explained. 9. That being so, we are of the considered opinion that the impugned detention order warrants interference of this Court and accordingly the same stands quashed and set aside. 10. The detenue be set at liberty forthwith, if he is not required in any other case. 11. In the result, this Habeas Corpus petition succeeds and stands allowed. However, there shall be no order as to cost. 12. Send down the LCR forthwith. Appeal allowed.