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2010 DIGILAW 683 (GAU)

R. K. Subadam Devi v. State of Manipur & Ors.

2010-09-03

MUTUM B.K.SINGH, T.NANDAKUMAR SINGH

body2010
T. Nandakumar Singh, J.;- The only issue called for decision in the present case is:- Is it obligatory on the part of the State Government (appropriate Gover­nment) under Section 10 of the National Security Act, 1980 (for short 'NSA 1980') to refer/place the representation filed by the detenu against the detention order addressed to the Union o f India within three weeks from the date of detention of the detenu to/before the Advisory Board constituted under Section 9 of the NSA? 2. Heard Mr. Ph. Sanajaoba Sharma, learned counsel appearing for the detenu and also Mr. R.S. Reisang, learned GAappearing for the respondents-1 and 2 as well as Mr. Amarjit Naorem, learned CGSC appearing for the respondent No.3. 3. Since the issue involved in the present writ petition is to be decided by referring to Section 10 of the NSA, it would be apposite to quote Section 10 of the NSA: "10. Reference to Advisory Board-Save as otherwise provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted under Section 9, the grounds on which the order is made and the representation, if any. made by the person affected by the order, and in case where the order has been made by an officer mentioned in sub-section (3) of Section 3, also the report by such officer under sub-section (4) of the section.1' FACTUAL BACKGROUND: 4. Present petitioner is the mother of the detenu, Ms. R.K. Sushitra Devi. It is stated that on 20.01.2010 while the detenu reach Imphal Police Station, the police officer concerned asked her lots of questions irrelevant with her which she was not at all related with. Later on she was informed that she had been detained in connection with FIR case No. 9(1) 10 IPS under Section 307/ 326/34 IPC, 3 Expl. Subs. Act & 16/19/20 UA(P) A. Act In connection with the said FIR case, the detenu was produced before the learned Additional Chief Judicial Magistrate at Lamphelpat who remanded the detenu into police custody till 30.1.2010. 5. Subs. Act & 16/19/20 UA(P) A. Act In connection with the said FIR case, the detenu was produced before the learned Additional Chief Judicial Magistrate at Lamphelpat who remanded the detenu into police custody till 30.1.2010. 5. While she (detenu) was in police custody, it is stated, she was tortured and as a result of unbearable pain she had stated some unreasonable words in her state of unconscious mind; that statement of her was recorded by the I.O. of the case. 6. On 30.01.2010 the detenu was produced before the learned Addl. CJM, Imphal at Lamphelpat, on that day, the copy of the impugned detention order dated 29.01.2010 for detaining her under NSA was furnished to her. 7. On 02.02.2010 the detenu was served with several documents purported to be the grounds of detention under the letter of the District Magistrate, Imphal West District being No. Oil. /NSA/No. 10 of 2010, Imphal the 1st February, 2010. Vide para 5 of the said letter of the District Magistrate, Imphal West dated 01.02.10, it is clearly slated that the detenu has the right to make representation to the Government of Manipur as well as to the Central Government against the order of detenti on passed against her and also that the detenu is afforded earliest opportunity of making such representation. By the very para the detenu had been informed that the representation is to be sent through the Superintendent of Manipur Central Jail, Imphal to the Chief Secretary, Government of Manipur in respect of the representation to the Government of Manipur and to, "The Secretary to the Government of India, Ministry of Home Affairs, (Department of Internal Security) North Block, NewDelhi-110001" in respect of representation to the Central Government and should be submitted within 3(three) weeks from the date of detention. For easy reference, para 5 of the said letter of the District Magistrate, Imphal West dated 01.02.2010 is quoted below: "5. That, you are hereby informed that you have the right to make representation to the Government of Manipur as well as to the Central Government against the order of detention passed against you and you are hereby afforded the earliest opportunity for making such representation if you wish to do so. That, you are hereby informed that you have the right to make representation to the Government of Manipur as well as to the Central Government against the order of detention passed against you and you are hereby afforded the earliest opportunity for making such representation if you wish to do so. The representation is to be sent through Superin­tendent of Manipur Central Jail, Imphal to the Chief Secretary, Government of Manipur in respect of representation to the Government of Manipur, and to the Secretary to the Govern­ment of India, Ministry of Home Affairs, (Department of Internal Security) North Block, New Delhi-110001" in respect of representation to the Central Government and should be submitted within 3 (three) weeks from the date of detention. Further, you are informed that you have a right to make representation to the detaining authority within 12 (twelve) days from the date of detention or till the order is approved by the State Government whichever earlier. The representation is to be sent to the District Magistrate, Imphal West. Representation, if any, would be placed before the Advisory Board within 3 (three) weeks time from the date of your detention and such other documents/papers in connection with your detention as the Government is bound under the law to produce before the Board for its consideration." 8. Within three weeks from the date of detention, the detenu filed the representation to the Secretary to the Government of India, Ministry of Home Affairs (Department of Internal Security) North Block New Delhi dated 16.02.10. Admittedly, the said representation dated 16.02.10 addressed to the Secretary to the Government of India, Ministry of Home Affairs (Department of Internal Security) North Block, New Delhi was promptly forwarded by the appropriate Government to the Union of India, but the said representation dated 16.02.2010 addressed to the Secretary to the Government of India, Ministry of Home Affairs was not placed before the Advisory Board constituted under Section 9 of the NSA. 9. As stated above, the only ground for assailing the detention order is that non place of the said representation addressed to the Government of India, Ministry of Home Affairs dated 16.02.10 by the appropriate Government before the Advisory Board constituted under Section 9 of the NSA vitiated the detention order. 9. As stated above, the only ground for assailing the detention order is that non place of the said representation addressed to the Government of India, Ministry of Home Affairs dated 16.02.10 by the appropriate Government before the Advisory Board constituted under Section 9 of the NSA vitiated the detention order. The detenu had been clearly informed by the District Magistrate, Imphal West under his letter dated 01.02.2010 that the representation addressed to the Union of India shall be sent through Superintendent of Manipur Central Jail to the Secretary to the Government of India, Ministry of Home Affairs, North Block, New Delhi by the appropriate Government. 10. Mr. Ph. Sanajaoba, by referring to Section 10 of the NSA, contents that the words, "if any" mentioned just after the word 'representation' in Section 10 the NSA would mean that any representation either to the Union of India or to the detaining authority or to the appropriate Government, shall be placed before the Advisory Board constituted under Section 9 of the NSA within three weeks. 11. The Apex Court in Prof. Khaidem Ibocha Singh Vs. State of Manipur : AIR 1972 SC 438 held that under Article 22 (5) of the Constitution of India there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely to have his representation considered by the appropriate Government and to have once again that representation considered by the Advisoiy Board before it gives its opinion. From the ratio laid down by the Apex Court in Prof. Khaidem Ibocha Singh (supra), it is clear that under Article 22 (5) of the Constitution of India, there is an obligation on the part of the concerned authority to whom the representation is addressed to discuss and dispose of as expeditiously as possible. 12. In the present case, the said representation dated 16.02.2010 addressed to the Union of India is to be considered and disposed of by the Union of India, who has the right to take its own decision as to the revocation or otherwise of the detention order under Section 14 of the NSA irrespective of decision or opinion of the appropriate Government regarding the detention of the detenu. This being the situation we are of the considered view that the Advisory Board constituted under Section 9 of the NSA has nothing to do with the said representation dated 16.02.2010 filed by the detenu addressed to the Union of India, On the other hand, it is the mandate of the Constitution under Article 22(5) on the appropriate Government to send the said representation dated 16.02.2010 addressed to the Union of India as expeditiously as possible to the Union of India. 13. For the sake of argument, if the submission of Mr. Sanajaoba that the representation dated 16.02.2010 addressed to the Union of India is to be "placed within three weeks from the date of detention as provided under Section 10 of the NSA before the Advisory Board constituted under Section 9 of the NSA is accepted, there shall be delay in sending the representation dated 16.02.2010 to the Union of India as the Advisory Board constituted under Section 9 of the NSA has to take decision and submit its report to the appropriate Government within 7 weeks from the date of detention of the detenu. If there be such delay in sending the said representation dated 16.02.2010 addressed to the Union of India, the detenu shall certainly assail the detention order only on the ground that there is delay in sending the said representation dated 16.2.2010 to the Union of India and therefore the continued detention of the detenu is vitiated inasmuch as his/her right guaranteed under Article 22(5) of the Constitution of India is infringed. In such circumstances, the appropriate Government shall be trapped on both sides for no fault of theirs. 14. It is fairly well settled that while construing certain provisions of the statute, it is required to see the aim and object to be achieved by that particular provision. In the present case in hand, on conjoined reading of the Article 22 (5) of the Constitution of India and Section 10 of the NSA, 1980, it is crystal clear that the detenu should be afforded earliest opportunity to file effective representation against the detention order and the authority to whom the representation had been addressed has to consider and dispose of the representation by passing appropriate order as expeditiously as possible. Section 10 of the NSA contemplates the rights of the detenu to have his/her representation considered by the Advisory Board under Section 10 of the NSA by placing it by the appropriate authority within the period mentioned in Section 10 of the NSA. 15. As discussed above, it is our considered view that the representation, if any, mentioned in Section 10 of the NSA to be placed before the Advisory Board constituted under Section 9 of the NSA shall be the representation addressed to the appropriate Government and also to the detaining authority. Our views has support from judgment and order dated 04.02.2010 this Court (incidentally one of us was the party) passed in W.P.(Cril) No. 96 of 2010 and Pabansaloi@ Babul Choudhury Vs. Union of India & Ors., 2002 (2) GLT 135. 16. For the foregoing reason, we cannot convince ourselves to accept the submission of Mr. Sanajaoba, learned counsel appearing for the petitioner and accordingly the only issue involved in the present case is answered against the detenu. In the result, this Writ petition is devoid of merit, accordingly, dismissed.