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2009 DIGILAW 206 (GAU)

Chumatho Pochury v. Union of India

2009-03-25

C.R.SARMA, RANJAN GOGOI

body2009
JUDGMENT Ranjan Gogoi, J. 1. Certain common features of the writ petitions had permitted analogous hearing of the same. Accordingly, the same here being disposed of by this common order. 2. The facts of W.P.(Crl.) No. 4/2009 may be noticed for an illustrative exposition of the factual matrix of the cases under consideration. The Petitioner in the said writ petition was detained by an order dated 6.12.2008 passed by the District Magistrate, Dimapur. Through the said order recites Sections 3(1) and 3(2) of the National Security Act, 1980 (hereinafter referred to as 'the Act') as the source of its power, the Court will have to understand the reference to the said provisions of the Act as Section 3(3) of the Act. Admittedly, the grounds for detention were not furnished to the detenu along with the detention order dated 6.12.2008. In two of the cases i.e. W.P.(Crl.)Nos. 4/2009 and 7/2009, the said grounds were not furnished even within the maximum time contemplated by Section 8 of the Act. As a matter of fact, the District Magistrate did not formulate or prepare the grounds for detention at all in any of the present cases. The same was done by the Special Secretary to the Govt. of Nagaland, Home Department at the time of approval of the detention orders. The said approval was accorded in W.P.(Crl.) Nos. 4/2009 and 7/2009 beyond the time stipulated by Section 3(4) of the Act though in W.P.(Crl.) Nos. 6/2009 and 8/2009, the approval order was passed within the said period. The common question that, therefore, arises is whether in the absence of the grounds of detention prepared by the detaining authority and formulation and preparation of the same by the approving authority would vitiate the detention orders which are the subject matter of the challenge in each of the cases under consideration. 3. Sri. D.K. Mishra, learned senior counsel for the Petitioners has placed before the Court two decisions of the Apex Court in the case of Krishna Murari Aggarwala v. Union of India and Ors. reported in (1975) 4 SCC 481 and in the case of Dhananjay Das v. District Magistrate, Darrang and Anr. reported in (1982) 2 SCC 521 . On the basis of the aforesaid authorities, Sri Mishra tried to persuade the Court that the question arising in the writ petitions need to be answered in the affirmative and in favour of the detenus. reported in (1982) 2 SCC 521 . On the basis of the aforesaid authorities, Sri Mishra tried to persuade the Court that the question arising in the writ petitions need to be answered in the affirmative and in favour of the detenus. Sri Mishra has further contended that the writ petitions have been structured on other available grounds which he may be allowed to urge, if required. 4. Ms. T. Khro learned Govt. Advocate, Nagaland does not dispute the position that though the detention orders were passed by the District Magistrate, under Section 3(3) of the Act, the said authority had not prepared or formulated the grounds of detention and that the same was done by the approving authority at the time of approval of the detention orders under Section 3(4) of the Act. In fact, the said position has been admitted in the affidavits filed on behalf of the State Government in each of the cases under consideration. 5. In para 7 of the judgment in Krishna Murari Aggarwala (supra), the Apex Court has laid down that the provisions of Section 3 of the Act contemplate that: Only one authority and one authority alone can pass such order of detention. It was further observed that: .... The Statute does not contemplate a sort of composite or a joint order passed by several authorities. In the instant case the original order of detention passed by Mr. S.K.D. Mathur bears his signature and even the grounds mentioned bear his signature. In these circumstances we are unable to accept the affidavit of Mr. S.K.D. Mathur that the ground framed by him were merely draft grounds prepared by him, which were signed by the permanent District Magistrate later. It is obvious that unless the order made and the grounds prepared are signed by the authority concerned, the order is not made as contemplated by Section 3 of the Act. Furthermore, since the order is based on grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory.... 6. In para 22 of the judgment in Dhananjay Das (supra), the Apex Court observed as follows: 22. Furthermore, since the order is based on grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory.... 6. In para 22 of the judgment in Dhananjay Das (supra), the Apex Court observed as follows: 22. There is no denying the fact that the grounds of detention must be in existence on the date when the order was passed and the authority concerned has to be 'satisfied about the grounds of detention on the date of the order and the satisfaction of the detaining authority must be clear on the facts of it from the grounds of detention and no extraneous evidence is admissible to prove what actually weighed with the detaining authority while passing the order of detention. 7. In the present cases, there is no dispute or controversy as regards the fact that the District Magistrate who had passed the detention orders had not prepared or formulated the grounds for detention. In view of the above, there will be little hesitation for the Court to arrive at the conclusion on the basis of the law laid down by the Apex Court in the above noted two decisions that the detention orders passed by the District Magistrate, Dimapur in each of the cases and the approval thereof by the Special Secretary to the Govt. of Nagaland, Home Department are wholly without any authority of law. 8. Notwithstanding the conclusion reached above, there are two other connected or ancillary matters which may require a brief mention. In each of the orders approving the detention orders which coincidentally are identical in language and content, there is a reference to Sections 3(1) and 3(2) of the Act as if the orders in question are fresh orders of detention passed by the State Government. No such conclusion in law does follow in view of the language used with reference to the order of detention which would go to show that what has been done by the orders passed by the Special Secretary to the Govt. of Nagaland, Home Department is a mere approval of the initial detention orders passed by the District Magistrate. No such conclusion in law does follow in view of the language used with reference to the order of detention which would go to show that what has been done by the orders passed by the Special Secretary to the Govt. of Nagaland, Home Department is a mere approval of the initial detention orders passed by the District Magistrate. That apart, as laid down by the Apex Court in the case of Krishna Murari Aggarwala (supra), multiple detaining authorities are not contemplated by the provisions of the Act. Fortunately, the above is not the specific stand in the affidavits filed on behalf of the State Government and the issue has been dealt with only to make the discussions complete. 9. In view of the conclusions reached above, it will not be necessary for the Court to grant any leave to the Petitioners to advance any other argument. However, what must be noticed by the Court is that in the affidavits filed on behalf of the Central Government on 16th, 20th and 24th March, 2009, it has been stated that the Central Government is yet to receive copies of the representations filed by the detenu. The averments made in the writ petitions indicated that the detenus had filed representations to the Special Secretary to the Govt. of Nagaland, Home Department with a copy to the Under Secretary, Ministry of Home Affairs, Government of India after receipt of the grounds of detention in November/December, 2008 alongwith the approval orders. Admittedly, the said representations are yet to reach the Central Government. No explanations are forthcoming from the State Government as to why the representations have not yet reached the Central Government. The above therefore, is too significant a fact for the Court to ignore. 10. For the aforesaid reason, all the writ petitions have to be allowed, which we hereby do. The orders of detentions as well as the approval thereof in the case of each of the detenus are set aside. The detenus are directed to be released forthwith unless their custody is required in connection with any other case.