Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 473 (GAU)

Teputhe Angami v. Union of India

2009-07-18

H.N.SARMA, J.CHELAMESWAR

body2009
JUDGMENT H.N. Sarma, J. 1. The subject matter of challenge in this writ petition is an order of detention passed by the 4th respondent dated 4.3.2009 which was approved and confirmed by the 3rd respondent respectively on 7.3.2009 and 22.4.2009 detaining the petitioner at Central Jail, Dimapur in exercise of powers as contemplated under the National Security Act, 1980. 2. We have heard Mr. D.K. Misra, learned senior Counsel for the petitioner and Mrs. T. Khro, Learned Government Counsel appearing on behalf of the respondents. 3. The pleaded case of the petitioner, inter, alia is that the petitioner was arrested on 1.3.2009 in connection with the Medziphima PS Case No. 014/09 registered under Section 25(1)(1A) of the Arms Act, R/W Section 7 / 8 of the National Security Regulation. While the petitioner was in judicial custody, on 4.3.2009 an order of detention under the provision of Section 3(1)(2) of the National Security Act, 1980 (hereinafter referred to as 'the Act') was passed by the Deputy Commissioner, Dimapur, respondent No. 4. On 7.3.2009 the Special Secretary, Government of Nagaland, respondent No. 3 passed an order to the effect that the State Government was satisfied with the view taken by the Deputy Commissioner and in exercise of the power under Section 3(1)(2) of the Act, the respondent No. 3 ordered the detention of the petitioner for a period of one year inclusive of the period already ordered by the Deputy Commissioner. It is further pleaded that on 7.3.2009 the detenue was served with the alleged grounds of detention prepared by the respondent No. 3, i.e., particulars in support of the grounds of detention in the form of Schedule, copy of the order of approval of detention dated 6.3.2009, copy of the order of detention dated 4.3.2009 and some other documents as mentioned in paragraph 5 of this writ petition. It is also pleaded that the order of detention was passed casually and without any authority of law and an order under Section 3(1)(2)of the Act can be passed only by the central or State Government and not by the Deputy Commissioner. The Deputy Commissioner and the Commissioner of Police can pass the order of detention only when so authorized by the order of State Government under Section 3(3) of the Act. The Deputy Commissioner and the Commissioner of Police can pass the order of detention only when so authorized by the order of State Government under Section 3(3) of the Act. The further case of the petitioner is that the Deputy Commissioner while passing the detention order, did not communicate the grounds on which the order of detention was made in compliance of Section 8(1) of the Act as well as under Article 22(5) of the Constitution of India. The petitioner pleaded that no grounds have been prepared and signed by the detention authority but those were done only by the Special Secretary to the Government of Nagaland, on 7.3.2009 and lack of such statutory satisfaction on the part of the Deputy Commissioner has also been alleged. It is further pleaded that the petitioner was not informed about his right to make his representation against the order of detention to the State Government as well as to the detaining authority itself thereby depriving his right conferred upon him under Article 22(5) of the Constitution of India. Petitioner though submitted his representation to the Special Secretary, Government of Nagaland on 23.3.2009 and a copy of such representation was endorsed to the Secretary, Government of India, Ministry of Home Affairs, the said representation was rejected by the State Government on 27.3.2009 and the central Government has not yet disposed the same. An order of confirmation of the detention order was served to the petitioner on 22.4.2009 and the said confirmation is stated to have been made on the basis of the opinion of the Advisory Board to the effect that there was sufficient grounds for detention of the petitioner. 4. No counter has been filed by the State Government although this writ petition was admitted on 15.5.2009 granting six weeks time for filing counter. Today when the case is listed, no counter affidavit is forthcoming and taking note of the subject matter of controversy as raised in this writ petition, the matter was taken up for hearing. No records have also been produced by the State respondents. 5. Mr. D.K. Misra, learned senior Counsel appearing for the petitioner submits that the Deputy Commissioner vide order dated 4.3.2009 passed the impugned order of detention allegedly under Section 3(1)(2) of the Act. In fact, the power to issue such an order of detention is provided by the District Magistrate under Section 3(3) of the Act. 5. Mr. D.K. Misra, learned senior Counsel appearing for the petitioner submits that the Deputy Commissioner vide order dated 4.3.2009 passed the impugned order of detention allegedly under Section 3(1)(2) of the Act. In fact, the power to issue such an order of detention is provided by the District Magistrate under Section 3(3) of the Act. A bare perusal of the impugned order of detention discloses that the grounds for detention was not furnished to the detenue along with the order. Such grounds of detention can be found only from the order passed on 7.3.2009 by the Special Secretary to the Government of Nagaland respondent No. 3. In fact, the Deputy Commission, neither prepared nor formulated the grounds for detention but it was signed by the Special Secretary, Government of Nagaland, respondent No. 3 on 7.3.2009 after passing the order of detention. Mr. Misra submitted that the action of the respondents are vitiated in the absence of preparation of grounds at the time or prior to passing of the order of detention, and such action would not validate the order which is invalidated for such lapses even though it is approved subsequently by the approving authority. 6. In support of his submission Learned Counsel refers to the decision of the Apex Court Krishna Murari Aggarwala v. Union of India and Ors. (1975) 4 SCC and the case of Dhananjoy Das v. District Magistrate, Darang and Anr. (1982)2 SCC 521 , as well as the decisions rendered in WP (Criminal) Nos. 4, 6, 7 and 8 of 2009 (Sri Chumatho Pochury v. The Union of India and Ors.) disposed of on 25.3.2009. Supporting the above mentioned ratio, the learned senior Counsel contended that the impugned order of detention and subsequent approval thereof are illegal, unjust, improper and it is violative of Article 22(5) of the Constitution of India and provision of NSA Act, 1980. 7. Learned State Counsel Mrs. T. Khro has not disputed the fact that at the time of passing the impugned order of detention, the authority has not prepared or formulated the grounds of detention but the same was done by the approving authority, respondent No. 3. 8. 7. Learned State Counsel Mrs. T. Khro has not disputed the fact that at the time of passing the impugned order of detention, the authority has not prepared or formulated the grounds of detention but the same was done by the approving authority, respondent No. 3. 8. In Krishna Murari is case (supra), the Apex Court dealing with an order of detention passed under the Maintenance of Internal Security Act, 1971 containing the similar provisions has ruled to the effect that the statute does not contemplate a sort of composite or a joint order passed by several authorities and unless the order impugned and the grounds prepared are signed by the authority concerned, the order is not made as contemplated under Section 3 of the Act. It is further held in that case that since the order is based on grounds to be served to 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. 9. In the case of Dhananjoy 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. 10. In the instant case, on the face of materials available before us, we find that the Deputy Commissioner, who has passed the detention order, had not prepared or formulated the grounds for detention. In view of the aforesaid infraction of the provision contained under Section 3 of the NSA Act, 1980, the subsequent action of approval accorded by the Special Secretary to the Government of Nagaland, respondent No. 3, would not validate the order of detention and such order of detention adversely affects the liberty of a citizen and is passed in violation of the provision of law as contained under Section 3 of the Act. 11. 11. In view of the findings reached above, we feel it not inclined to address on the other points such as not informing the petitioner about his right to file representation before the authority and non-disposal of the representation filed by the petitioner by the central Government inasmuch as the impugned order is liable to be set aside and quashed on the sole ground as indicated above. Considering all aspects of the matter, the impugned order of detention as well as approval thereof cannot be sustained and liable to be set aside and quashed, which we hereby do. 12. In the result, this writ petition stands allowed. The detenue is directed to be released forthwith unless he is wanted in connection with any other case. Petition allowed.