Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 347 (GAU)

Abdul Latif v. Union of India

2009-05-22

I.A.ANSARI, J.CHELAMESWAR

body2009
JUDGMENT I.A. Ansari, J. 1. We have heard Mr. D.K. Mishra, learned Senior counsel, appearing on behalf of the petitioner, and Mr. T. Khro, learned Senior Government Advocate, Nagaland, appearing on behalf of respondent Nos. 2, 3, 4 and 5. We have heard also Mr. B. Sarma, learned Central Government counsel, appearing on behalf of respondent No. 1. 2. By making this writ application under Article 226 of the Constitution of India, the petitioner has, put to challenge the order, dated 24.2.2009, passed by respondent No. 4 herein, namely, Deputy Commissioner, Dimapur, Nagaland, placing the petitioner under preventive detention in exercise of powers under the National Security Act, 1980 (hereinafter referred to as 'the Act'), and has accordingly prayed for issuance of a writ of habeas corpus setting aside and quashing the impugned order of detention. 3. While considering the present writ petition, it is of paramount importance to note that in the present writ petition, the petitioner has averred that the Deputy Commissioner, who had passed the detention order did not communicate the ground(s) on the basis of which the order of detention was passed. It is further averred, in the writ petition, that the ground(s) had not been prepared, formulated and/or signed by the detaining authority and that it is the Special Secretary to the Government of Nagaland, who formulated the grounds and signed the same on 7.3.2009, while approving the impugned order of detention, though the order of detention was passed as far back as on 24.2.2009. The averments, so made, which appear at paragraph 7 of the writ petition, read as under: 7. That the petitioner/detenue hereby states that the Deputy Commissioner, who has passed the detention order, did not communicate the grounds on which the order of detention was made as required under Sub-section (1) of Section 8 of the Act. In fact, the grounds have not been prepared, formulated and signed by the detaining authority but the grounds were prepared and signed by the Special Secretary to the Government of Nagaland on 7th of March, 2009. Without the grounds being formulated, the Deputy Commissioner could not have reached the subjective satisfaction as required while passing detention orders. It be stated herein that subjective satisfaction is not divisible amongst different authorities of the State nor is it the collective satisfaction of several authorities. Without the grounds being formulated, the Deputy Commissioner could not have reached the subjective satisfaction as required while passing detention orders. It be stated herein that subjective satisfaction is not divisible amongst different authorities of the State nor is it the collective satisfaction of several authorities. Such action on the part of the detaining authority has violated the rights of the petitioner/detenue under Article 22(5)of the Constitution of India as well as under Section 8(1) of the Act. The detention order is, therefore, vitiated and liable to be quashed. 4. What is, now, of utmost importance to note is that the factual assertions, made in paragraph 7 of the writ petition, have not been disputed by the respondents. There is, therefore, no denial of the fact that the grounds of detention had not been formulated and/or prepared before the detention order was passed by the Deputy Commissioner; rather, the grounds were formulated and prepared much later by the authorities concerned, while approving the order of detention. It is, therefore, not difficult to conclude, and, in fact, it could not be disputed, that the Deputy Commissioner, Dimapur, passed the detention order on non-existent ground(s), though the factual materials as regard the grounds, which had been formulated subsequent to the passing of the detention order, might have been available. The scheme of the Act clearly envisages that the detaining authority, while passing the detention order, must prepare the grounds of detention and that the order of detention, to be passed by the detaining authority, must be based on the grounds, which have been formulated by the detaining authority. Unless the detaining authority, on the basis of the grounds, which it formulates, is satisfied that the grounds justify detention of detenue under the provisions of the Act, no detention order can be made. Mr. Mishra has, in support of his contention, referred us to the decisions in Krishna Murari Aggarwala v. Union of India and Ors. reported in (1975) 4 SCC 481 , and Dhananjoy Das v. District Magistrate, Darrang and Anr. reported in (1982) 2 SCC 521 . The Apex Court has laid down, in Krishna Murari aggarwala, (supra), at paragraph 7, that the provisions of Section 3 of the Act contemplate only one authority, as the authority, which can pass an order of detention. reported in (1975) 4 SCC 481 , and Dhananjoy Das v. District Magistrate, Darrang and Anr. reported in (1982) 2 SCC 521 . The Apex Court has laid down, in Krishna Murari aggarwala, (supra), at paragraph 7, that the provisions of Section 3 of the Act contemplate only one authority, as the authority, which can pass an order of detention. In fact, in Krishna Murari Aggarwala, (supra), the Apex Court has clearly held that the statute does not contemplate a composite or joint order to be passed by several authorities. The relevant observations, made in this regard, in Krishna Murari Aggarwala, (supra), read as under: ...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 grounds 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 make as contemplated by Section 3 of the Act. Furthermore, since the order is based on grounds to be served on the detenue, 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.... 5. In the case at hand, the grounds of detention had been prepared at the time of granting approval to the detention order; whereas the grounds of detention, as already indicated above, ought to have been prepared and formulated by the detaining authority at the time of making the detention order. The act of formulating grounds of detention by the authority, which has to approve the detention order, is in the light authorities cited above, wholly contrary to the scheme of the Act. When an order of detention is made, the ground(s) must be in existence. The scheme of the Act envisages passing of the order of detention based on the ground(s) of detention. Both the acts have to be, therefore, done contemporaneously. This becomes evident from the observations made in Krishna Murari Aggarwala, (supra). 6. When an order of detention is made, the ground(s) must be in existence. The scheme of the Act envisages passing of the order of detention based on the ground(s) of detention. Both the acts have to be, therefore, done contemporaneously. This becomes evident from the observations made in Krishna Murari Aggarwala, (supra). 6. Even in paragraph 22 of its decision, in Dhananjoy Das, (supra), the Apex Curt has 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 he grounds of detention of 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 case, it could not be disputed that the District Magistrate, who had passed the detention order, was not the one, who had prepared and/or formulated the grounds of detention. Thus, the order of detention is, in the light of the law, laid down in Krishna Murari Aggarwala, (supra), and Dhananjoy Das, (supra), contrary to the scheme of preventive detention, which the act envisages, and such detention could not have, therefore, been approved by the Special Secretary to the Government of Nagaland. There can, therefore, be no hesitation, and, in fact, we have no hesitation at all in taking the view, that the impugned order of detention is wholly illegal and needs to be set aside. In fact, in a similar situation, in WP (Crl) No. 4/2009 (Shri Chumatho Pochury v. Union of India and Ors.), decided on 25.3.2009, a Division Bench of this Court has taken the same view as we have taken. 8. In the result and for the foregoing reasons, this writ petition succeeds. The impugned order of detention is hereby set aside and quashed. The petitioner is directed to be set at liberty forthwith unless he is required to be detained in connection with any other case. 9. With the above observations and directions, this writ petition shall stand disposed of. 10. No order as to costs.