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2009 DIGILAW 686 (GAU)

Arun Saikia v. Union of India & Ors.

2009-09-20

HRISHIKESH ROY, RANJAN GOGOI

body2009
Ranjan Gogoi, J.- Heard Sri. B. K. Mahajan, learned counsel for the petitioner/detenu; Sri R. K. Adhikary, learned Government Advocate, Assam and Sri N. Baruah, learned Central Government counsel. 2. The challenge in this habeas corpus petition is against an order dated 07.08.2009 passed by the District Magistrate, Tinsukia under Section 3(2) read with Section 3(3) of the National Security Act, 1980 detaining the petitioner under the provisions of the said Act with immediate effect. The said order of detention has, in the meantime, been approved by the State Government as required under the provisions of Section 3(4) of the Act. 3. Sri Mahajan, learned counsel for the petitioner/detenu has unfolded a three dimensional challenge to the detention of the petitioner. It has been contended that there has been inordinate delay in disposal of the representation by the petitioner by the State Government as well as Central Government, thereby infringing the rights of the petitioner guaranteed by Article 22(5) of the Const­itution The second contention urged before the Court is that the report of the Superinten­dent of Police, Tinsukia dated 07.07.2009 referred to in the order of detention which has been relied upon by the detaining authority had not been furnished to the petitioner. Lastly, it is contended that though the detention is based on the satisfaction that the petitioner, who was already in judicial custody, may be released on bail, there is no material indicated in the detention order for formation of the said opinion. 4. Of the three grounds urged, the first needs to be taken up for consideration as in the event the same is held in favour of the petitioner the other grounds urged may become redundant. The relevant facts with regard to the aforesaid first contention i.e.delay in disposal of the representation has, therefore, to be noticed. 5. The petitioner who was detained under the provisions of the Act on 07.08.2009 was furnished with the grounds for detention on the same day. On 21.08.2009, he filed a representation seeking his release and for revocation of the detention order, inter alia, to the State Government as well as the Central Government. The said representation was also addressed to the detaining authority and was submitted through the Superintendent, Central Jail, Dibrugarh. On 21.08.2009, he filed a representation seeking his release and for revocation of the detention order, inter alia, to the State Government as well as the Central Government. The said representation was also addressed to the detaining authority and was submitted through the Superintendent, Central Jail, Dibrugarh. The materials on record indicate that the representation was received by the office of the District Magistrate, Tinsukia on the very day itself i.e. 21.08.2009, Thereafter, it was sent to the State Govern­ment and was received by the competent authority of the State Government on 27.08.2009. The State Government forwarded a copy of the representation to the Central Government on 29.08.2009 and was received by the competent authority of the Central Government on 07.09.2009, whereafter, parawise comments were sought by the Central Government which were received on 15.09.2009. While the State Government disposed of the representation by an order of rejection dated 28.09.2009, the Central Government had rejected the representation on 18.09.2009. 6. The affidavit of the Central Government indicates that the parawise comments were sought for on 09.09.2009 after receipt of the representation on 07.09.2009. The parawise comments were received on 15.09.2009, whereafter, the matter was examined at different levels i.e. at the level of Under Secretary, Deputy Secretary and Secretary. The petitioner's representation was disposed of on 18.09.2009. The time taken by the Central Government for diposal of the representation of the detenu after receipt thereof on 07.09.2009, in our considered view, stands satisfactorily explained and the detenu cannot have any grievance in this regard. 7, This will bring the Court to a consideration of the question as to whether the disposal of the petitioner's representation by the State Government on 28.09.2009, after receipt of the same on 27.08.2009, is acceptable to the Court. A priod of 31 days for disposal of the representation of the detenu detained under the provisions of the Preventive Detention Law cannot be considered to be a acceptable period unless, of course, cogent reasons are available to explain the delay. In the present case, in the affidavit of the State Government there is no explanation, whatsoever, forthcoming for the period of 31 days that was taken to dispose of the petitioner's representation. In the absence of any such explanation the period in question has to be viewed by the Court as too long a period for disposal of the representation filed by the the detenu. 8. In the absence of any such explanation the period in question has to be viewed by the Court as too long a period for disposal of the representation filed by the the detenu. 8. Time and again the judicial verdict has held that there can be no hard and fast rule while considering the question of the timeframe within which a detenu's representation is required to be disposed of. All would depend on the facts of the case and the explanations offered. In a given case a longer period may be considered acceptable in the light of the explanations offered whereas in another case a shorter period may be held to be unacceptable in the absence of any explanation. 9. The authority empowered to revoke the detention, at whatever level it may be i.e. the State Government or the Central Government is obliged to act with utmost promptitude and expedition in the matter of disposal of a detenu's representation, inasmuch as, it is one of the safeguards that has been provided to a detenu under the provisions contained in Article 22(5) of the Constitution. 10. In view of the above discussions, there is no escape from the conclusion that the disposal of the petitioner's representation by the State Government after 31 days of its receipt without any explanation has to be construed by the Court to be wholly unacceptable and therefore, to be in infringement of the detenu's right under Article 22 (5) of the Constitution. The above conclusion of ours would entitle the detenu to his release forthwith. Accordingly, we do not deem it necessary or proper to go into any other question that has been raised or that arise in this writ petition. 11. The writ petition, consequently, is allowed. The detenu be set at liberty forthwith unless his detention is required in connection with any other case.