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2009 DIGILAW 902 (GAU)

Juri Gogoi @ Chenimai Gogoi v. Union of India

2009-12-16

BIPLAB KUMAR SHARMA, J.CHELAMESWAR

body2009
JUDGMENT Jasti Chelameswar, C.J. 1. Heard Mr. B.K. Mahajan, learned Counsel for the Petitioner/detenu. Also heard Ms. B. Goyal, learned State Counsel and Mr. D. Das, learned Central Govt. Counsel. 2. The writ petition is filed praying for a writ of habeas corpus, aggrieved by an order of preventive detention dated 4.7.09 under the National Security Act, 1980 (for short "the NSA") passed by the 4th Respondent herein. 3. By the order dated 4.7.09 the District Magistrate, Tinsukia ordered that the Petitioner be detained in Central Jail, Dibrugarh with immediate effect for a period of three months. The said order alongwith the grounds of detention was received by the detenu. 4. The detention order alongwith the grounds of detention and all other materials, which the State Government thought were relevant, was forwarded to the Govt, of India on 10.7.09, obviously in compliance with the requirement of Section 3(5) of the Act. 5. On 18.7.09 the detenu submitted a representation against the detention. On 14.8.09 the representation of the detenu was rejected by the State Government. On 21.8.09 the State Government confirmed the detention for a period of twelve months. The Govt. of India rejected the representation by its order dated 24.8.09. 6. In the background of the above mentioned facts the present petition came to be filed challenging the order of detention. 7. All the Respondents are served. Affidavit-in-opposition is filed on behalf of the Union of India, the Respondent No. 1, by the Under Secretary, Ministry of Home Affairs dated 30.11.09. The District Magistrate, Tinsukia, the detaining authority, filed an affidavit dated 4.12.09. 8. Mr. B.K. Mahajan. learned Counsel for the Petitioner raised various grounds of attack. The first ground on which the detention is challenged is that there is inordinate delay on the pail of the Govt. of India in consideration of the representation made by the Petitioner and such an inordinate and unexplained delay is fatal to the detention order. 9. As already noticed, the detenu submitted a representation dated 18.7.09. Admittedly the representation was received by the Govt. of India in the Ministry of Home Affairs on 4.8.09 with a letter of the State of Assam dated 23.7.09. On receipt of the said representation the Govt. of India sought certain further information (parawise comments) from the State of Assam, initially by a wireless message dated 4.8.09 followed by reminders dated 13.8.09 to the State Government. of India in the Ministry of Home Affairs on 4.8.09 with a letter of the State of Assam dated 23.7.09. On receipt of the said representation the Govt. of India sought certain further information (parawise comments) from the State of Assam, initially by a wireless message dated 4.8.09 followed by reminders dated 13.8.09 to the State Government. Eventually the parawise comments dated 7.8.09 were received by the Ministry of Home Affairs, Govt. of India on 20.8.09. 10. There is a delay of 13 days in transit of the parawise comments from the Govt. of Assam to the Govt. of India. There is no explanation whatsoever for the delay except saying that the delay was a transmission delay. 11. The question is whether such a transmission delay is fatal to the order of preventive detention of the Petitioner. 12. The learned Counsel for the Petitioner relied upon a judgment of the Supreme Court reported in (1982) 2 SCC 43 : Vijay Kumar v. State of Jammu and Kashmir and Ors. wherein at para 12 the Supreme Court held as follows: The jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order. The intermediary authorities who are communicating authorities have also to move with an amount of promptitude so that the statutory guarantee of affording earliest opportunity of making the representation and the same reaching the Government is translated into action. The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit. If the Government enacts a law like the present Act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the Government and not the detaining authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as possible and it is considered by the authorities with equal promptitude. Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order. 13. Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order. 13. A Division Bench of this Court in a case reported in 2009 (1) GLT 657 : Dharmeswar Haloi and Bhaity v. Union of India and Ors. also opined that inordinate and unexplained delay is fatal to the order of preventive detention. 14. On the other hand Mrs. B. Goyal, learned State Counsel placed reliance upon (2002) 10 SCC 448 : Sitthi Zuraina Begum Vs. Union of India and Ors. wherein it was held that delay of 20 days in considering the representation made by the detenu was not fatal to the preventive detention in the said case. The learned Counsel also relied on a judgment of the Supreme Court reported in (1999) 8 SCC 250 : State of Manipur and Ors. v. Sanasam Ongbi and Anr. and argued that in view of the fact that the State put in transmission the materials sought for by the Union of India by 7.8.09. the State cannot be blamed for the delay which occurred in the transaction. 15. In our opinion both the decision relied upon by the learned State Counsel may not come to the rescue of the Respondents. Insofar as the decision in : (2002) 10 SCC 448 (supra) is concerned, the peculiar facts of the case are that a person, detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act), made a representation to the President of India in a regional language. The Secretariat of the President realized that the subject matter of the representation pertains to preventive detention and the representation was a statutory representation against the order of preventive detention only thereafter the representation was translated into English. In the process 18 day's time was taken. But after the President's Secretariat realised it was a representation against preventive detention, they immediately communicated it to the Govt. of India and the Govt. of India disposed of the representation within two days after the communication from the President's Secretariat. In the background of the above mentioned facts the Supreme Court was satisfied that the time taken in disposing of the representation was properly explained. of India and the Govt. of India disposed of the representation within two days after the communication from the President's Secretariat. In the background of the above mentioned facts the Supreme Court was satisfied that the time taken in disposing of the representation was properly explained. In fact a further question whether such a representation was deliberately made to the wrong authority, i.e., the President of India, instead of addressing it to the concerned Secretary, was left open by the Supreme Court in view of the decision of the Supreme Court that the representation was considered expeditiously. We are of the opinion that the said decision can have no application to the facts of the present case. 16. Coming to the second decision in (1999) 8 SCC 250 (supra), relied upon by the learned State Counsel, the question in that case is whether obligation imposed on the State Government under Section 3(5) of the NSA is discharged on the date the State Govt. puts in transmission the necessary information to the Govt. of India within the statutorily prescribed period of seven days or was it necessary that such information should also be received by the Govt. of India within the statutorily prescribed period of seven days. Section 3(5) of the NSA reads as follows: 3(5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. 17. The Supreme Court came to the conclusion, on consideration of the various authorities of the various High Courts, that the language of Section 3(5) did not justify a conclusion that the period of seven days is not the period prescribed for the receipt of the communication from the State Government and held that it is enough if the State Govt. puts in transmission the necessary information to the Govt. of India. 18. The issue of non-consideration or delayed consideration of the representation made by a detenu stands on a different footing. A person detained pursuant to any law, which authorises detention without trial (preventive detention), is entitled for a constitutional right of representation under Article22(5) of the Constitution. puts in transmission the necessary information to the Govt. of India. 18. The issue of non-consideration or delayed consideration of the representation made by a detenu stands on a different footing. A person detained pursuant to any law, which authorises detention without trial (preventive detention), is entitled for a constitutional right of representation under Article22(5) of the Constitution. By a catena of decisions the Supreme Court and the High Courts of this country have held that such an invaluable right must receive due consideration with utmost promptitude and any unexplained delay in consideration of the representation made by the detenu is fatal to the detention. 19. In the present case the delay of 13 days in transmission remains unexplained. In the circumstances we have no option but to hold that such a delay is fatal and on this ground alone the impugned order is required to be set aside and the writ petition is required to be allowed. 20. In view of our conclusion, we do not think it profitable to examine the other grounds of attack made by the Petitioner in the instant petition. 21. The writ petition is accordingly allowed, but in the circumstances without costs. The detenu shall be released forthwith, if not required in accordance with law in connection with any other case. Petition allowed