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2011 DIGILAW 138 (GAU)

Islammuddin Khan v. District Magistrate

2011-02-18

MAIBAM B.K.SINGH, T.NANDAKUMAR SINGH

body2011
JUDGMENT T. Nandakumar Singh, J. 1. Petitioner-detenue, Mohammed Islammudin Khan @ M.I. Khan, is assailing (i) detention order being No. Crl/NSA/29 of 2010 dated 22.6.2010 passed by the District Magistrate, Imphal East District. Manipur in exercise of the power conferred upon him by Sub-section (3) of Section 3 of the National Security Act, 1980 ('NSA') read with Home Department's order No. 17(1)/49/80-H(Pt-D dated 11.5.2010 directing the Petitioner-detenue, who is now in judicial custody, to be detained under Section 3(2) of the NSA, 1980 until further orders; (ii) the order of the Government of Manipur being No. 17(1)133/2010-H dated 1st July, 2010 for approving the detention order passed by the District Magistrate, Imphal East District, Manipur dated 22.6.2010 and also (iii) the confirmation order of the Government of Manipur dated 4.8.2010 thereby fixing the period of detention for 12 months from the date of detention. 2. Heard Mr. Ch. Ngongo, learned Counsel appearing for the Petitioner-detenue, Mr. R.S. Reisang, learned G.A. appearing for the Respondents 1 to 3 as well as Mr. C. Komal, learned CGSC appearing for the Respondent No. 4-Union of India. Factual background 3. The Petitioner-detenue was arrested by a team of Imphal East Police and Karnataka Police from Azam Nagar, Belgaun District, Karnataka and brought back to Imphal on 23.5.2010 in connection with his involvement in FIR No. 57(6)2009 IBG PS under Section 307/400/34, IPC and 25(1C)A. Act and the concerned Magistrate remanded the Petitioner-detenue to the police custody till 8.6.2010. While the Petitioner-detenue was in judicial custody in connection with the above FIR, the Respondent No. 1, District Magistrate, Imphal East District, issued the impugned detention order dated 22.6.2010. 4. It is stated that copy of the impugned detention order dated 22.6.2010 was furnished to the Petitioner-detenue by the Respondent No. 1, District Magistrate, Imphal East Manipur. The Respondent No. 1, District Magistrate, Imphal East District, Manipur, in accordance with the provisions of Section 8 of the NSA, 1980, under his letter being No. Crl/ NSA/29 of 2010 dated Porompat, 23rd June, 2010, furnished the grounds of detention and also the copies of the documents which form the basis of the grounds of detention to the Petitioner-detenue. The Respondent No. 1, District Magistrate, Imphal East District, Manipur, in accordance with the provisions of Section 8 of the NSA, 1980, under his letter being No. Crl/ NSA/29 of 2010 dated Porompat, 23rd June, 2010, furnished the grounds of detention and also the copies of the documents which form the basis of the grounds of detention to the Petitioner-detenue. In the said letter of the District Magistrate, Imphal East District, Manipur dated 23.6.2010 for furnishing the grounds of detention to the Petitioner-detenue, it is clearly stated that the Petitioner-detenue has the right to make representation to the detaining authority within 12 days from the date of detention or till the order is approved by the State Government whichever is earlier. The representation is to be sent to the District Magistrate, Imphal East District, Manipur through the Addl. Superintendent Central Jail, Sajiwa. The representation, if any, would be placed before the Advisory Board within three weeks' time from the date of detention as the Government is bound by law to produce it before the Advisory Board for its consideration. For easy reference para 6 of the said letter of the District Magistrate, Imphal East dated 23.6.2010 is quoted below: 6. You are hereby informed that you have a right to make representation to the Government of Manipur as well as to the Central Government against this order of detention passed against you and you are hereby given the earliest opportunity for making such representation if you wish to do so. Your representation is to be sent through the Additional Superintendent of Manipur Central Jail, Sajiwa 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-110 001" in respect of representation to the Central Government and should be submitted within 3 weeks time from the date of detention. Further, you are hereby informed that you have to make representation to the detaining authority within 12 days from the date of detention or till the order is approved by the State Government, whichever is earlier. The representation is to be sent to the District Magistrate, Imphal East District, Manipur through the Additional Superintendent of Manipur Central Jail, Sajiwa. Further, you are hereby informed that you have to make representation to the detaining authority within 12 days from the date of detention or till the order is approved by the State Government, whichever is earlier. The representation is to be sent to the District Magistrate, Imphal East District, Manipur through the Additional Superintendent of Manipur Central Jail, Sajiwa. The representation, if any would be placed before the Advisory Board within 3 weeks time from the date of your detention as the Government is bounded by the law to produce before the Board for its consideration. 5. Before the impugned detention order dated 22.6.2010 issued by the detaining authority, i.e., District Magistrate, Imphal East District, was approved by the State Government vide order dated 1.7.2010 the Petitioner-detenue, within 12 days from the date of issuing the detention order. Filed the representation dated 28.6.2010 through the Superintendent of Manipur Central Jail, Sajiwa to the detaining authority/District Magistrate. Imphal East District, Manipur, for revoking the detention order dated 22.6.2010. On 1.7.2010 by an order of the Government of Manipur being No. 17(1)133/2010-11 Imphal the 1st July, 2010 approved the detention order dated 22.6.2010. On the same day, i.e., 1.7.2010 the Petitioner-detenue had been furnished with the copy of the letter of the District Magistrate, Imphal East district. Manipur that the said representation dated 28.6.2010 filed by the Petitioner-detenue had been considered and prayer for revocation of the detention order dated 22.6.2010 had not been acceded to by the District Magistrate, Imphal East District. 6. The Advisory Board, duly constituted under Section 9 of the NSA had, in its sitting held on 24.7.2010 and 25.7.2010, opined that there was/is sufficient cause for detention/continued detention of the Petitioner-detenue under the NSA. The Governor of Manipur, after consideration of the case of the Petitioner-detenue and also opinion expressed by the Advisory Board, in exercise of the power conferred by Section 12(1) of the NSA, was pleased to order that the impugned detention order dated 22.6.2010 issued by the District Magistrate, Imphal East is confirmed and further fixed the period for detention for 12(twelve) months from the date of detention. 7. 7. The case of the Petitioner-detenue for challenging the detention order is solely relied on the ground that the appropriate Government in violation of the mandate under Section 10 of the NSA did not place the representation dated 28.6.2010 filed by the Petitioner-detenue to the District Magistrate within three weeks from the date of detention order, before the Advisory Board in its sitting held on 24.7.2010 and 25.7.2010. As the sole ground for assailing the detention order in the present writ petition is that the representation dated 28.6.2010 filed by the Petitioner-detenue within three weeks from the date of detention and also before the impugned detention order dated 22.6.2010 was approved by the appropriate Government, i.e., the State Government of Manipur, was not placed before the Advisory Board duly constituted under Section 9 of the NSA in clear violation of the mandate under Section 10 of the NSA and also the conditions mentioned in para 6 of the said letter of the District Magistrate Imphal East dated 22.6.2010, which has been quoted above, it would be convenient to quote Section 10 of the NSA hereunder: 10. Reference to Advisory Boards. - Save as otherwise expressly 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 by it under Section 9, the grounds on which the order has been made and the presentation, 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 that section. 8. The main ground taken for assailing the detention order in the writ petition reads as follows: (a) For that, the Petitioner submits that though he filed representation address to District Magistrate Imphal East on 28.6.2010 for revocation of detention order and the same was rejected on 1.7.2010 but the Respondent No. 1 and Respondent No. 2 did not place the same representation address to Respondent No. 1 before the Advisory Board for consideration and revocation of detention order. It is further submitted that non-placing of representation addressed to Respondent No. 1 and Respondent No. 2 before Advisory Board is contrary to the mandate of Section 10 of NSA, 1980 which is mandatory. It is well settled while interpreting the word "representation if any" mention in Section 10 of NSA, 1980 many decisions of this Hon'ble court and Apex Court settled down that if the detenue filed a representation to Respondent No. 1 and Respondent No. 2 all the representation should be placed before Advisory Board. In this ground court always struck down the order of detention order and confirmation order. 9. The Respondent No. 1, District Magistrate, Imphal East District filed affidavit in-opposition in the present writ petition and also the State-Respondent, i.e., Respondent No. 2, also filed separate affidavit in-opposition. In the affidavit in-opposition filed by the Respondent No. 2, the Respondent No. 2 is not denying the said ground for assailing the detention order quoted above. As such it is clear that the appropriate State Government did not place the representation dated 28.6.2010 filed by the Petitioner-detenue to the District Magistrate, Imphal East before the Advisory Board in its sitting held on 24.7.2010 and 25.7.2010. 10. The Apex Court (Constitution Bench) in Jayanarayan Sukul v. State of West Bengal, AIR 1970 SC 675 held that appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenue's representation to the Advisory Board. If the appropriate Government will release the detenue, Government will not send the matter to the Advisory Board. If, however, Government will not release the Petitioner-detenue, Government shall send case along with the detenue's representation to the Advisory Board. It is the clear ratio of the Jayanarayan's case (supra) that the Government will send the case along with Petitioner's representation to the Advisory Board if the appropriate Government will not release the detenue. Para 20 of the AIR in Jayanarayan's case (supra) read as follows: 20. Broadly stated, four principles are to be followed in regard to representation of detenue's. First, the appropriate authority is bound to give an opportunity to the detenue to make a representation and to consider the representation of the detenue as early as possible. Para 20 of the AIR in Jayanarayan's case (supra) read as follows: 20. Broadly stated, four principles are to be followed in regard to representation of detenue's. First, the appropriate authority is bound to give an opportunity to the detenue to make a representation and to consider the representation of the detenue as early as possible. Secondly, the consideration of the representation of the detenue by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenue by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenue's representation to the Advisory Board. If the appropriate Government will release the detenue the Government will not send the matter to the Advisory Board. If, however, the Government will not release the detenue, the Government will send the case along with the detenue's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenue the Government will release the detenue. If the Advisory Board will express any opinion against the release of the detenue the Government may still exercise the power to release the detenue... (emphasis supplied) 11. In Prof. Khaidem Ibocha Singh v. State of Manipur, AIR 1972 SC 438 , the Apex Court (3-Judge Bench) through Justice Vaidialingam observed, "this Court again reiterated that under Article 22(5) of the Constitution, there was dual obligations on the appropriate Government a dual rights in favour of the detenue, namely, (i) to have his representation, irrespective of the length of detention, considered by the appropriate Government, (ii) to have once again the representation in the light of the circumstances of the case considered by the Advisory Board before it gives its opinion. It would also emphasize that two obligations of the Government to refer the case of the detenue to the Advisory Board and to obtain its report on the one hand, to give an earliest opportunity to the detenue to make a representation, consider the representation on the other, are two distinct obligations, independent of each other". The Apex Court in State of Utter Pradesh v. Mahant Singh, AIR 1986 SC 207 in a clear term, held that Section 10 of the NSA provides that the State Government has the obligation to cause the papers relating to detention to be placed, along with the representation, if made, within three weeks from the date of detention before the Advisory Board. It is the clear decision of the Apex Court in Mahant Singh's case (supra) that if the representation, if made, within three weeks before the date of detention should be placed before the Advisory Board. 12. On bare perusal of Section 10 of the NSA, it is clear that the Legislature had clearly mentioned that the representation made by the person affected by the order, i.e., the detention order, within three weeks from the date of detention of the detenue under the detention order is to be placed before the Advisory Board constituted under Section 9 of the NSA. On plain perusal of Section 10of the NSA, three things are clear - (i) representation means the representation made by the person affected by the detention order; (ii) that representation should be made by the person affected by the detention order, i.e., the detenue, within three weeks from the date of detention; and (iii) it is the appropriate Government who shall place the said representation before the Advisory Board constituted under Section 9 of the NSA. Save and except the above three clear conditions, Legislature intentionally did not mention in Section 10 of the NSA as to whom the representation should be addressed for the purpose of placing it before the Advisory Board by the appropriate Government. 13. It is fairly settled law that when the Legislature has spoken, Judges cannot afford to be wiser and also when a procedure is prescribed by the Legislature, it is not for the court to substitute a different one according to its notion of justice. 13. It is fairly settled law that when the Legislature has spoken, Judges cannot afford to be wiser and also when a procedure is prescribed by the Legislature, it is not for the court to substitute a different one according to its notion of justice. Regarding this well settled law, we may refer to a decision of the Apex Court in Shri Mandir Sita Ramji v. Governor of Delhi and Ors., AIR 1974 SC 1868 . The Constitution Bench of the Apex Court in Hukam Chand Shyam Lal v. Union of India and Ors., AIR 1976 SC 789 in a clear term held that when a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. 14. It is well settled principles of interpretation that the court must proceed on the assumption that legislation did not make a mistake and that it did what it intended to do. The court must, therefore, as far as possible adopt a construction which will carry out the obvious intention of the legislation. Undoubtedly if there is a defect and an omission in the words used by the Legislature, the court would not go to its aid to correct or make up the deficiency. The court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The court cannot aid the Legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there. Regarding this settled law, reference may be made to the decision of the Apex Court in Dadi Jaganaimadhum v. Jamimilu Ramulu and Ors., (2001) 7 SCC 71 (para 13) 15. From the above ratio laid down by the Apex Court in the cases discussed above, we are afraid of observing that the representation mentioned in Section 10 of the NSA should only be the representation addressed to the appropriate Government in the absence of such word that the representation should be the representation addressed to the appropriate Government in Section10 of the NSA. 16. 16. This Court (incidentally one of us, Justice T.NK Singh, was the party) in Laishram Shyamjai Singh v. District Magistrate and Ors., 2010 (2) GLT 423 held (para 17 of the GLT) as under: 17. This Court is of the view in Pabansaloi (c)Babul Choudhury v. Union of India and Ors., 2000 (2) GLT 135 that under Section10 of the NSA the appropriate Government is required to place the matter before the Advisory Board within three weeks of the order of detention and in the meantime, if any representation has been received, the same may also be sent to the Advisory Board. The appropriate Government is not allowed to sleep over the matter or to place the matter before the Advisory Board after the expiry of three weeks on the plea that they were awaiting the receipt of representation. In the instant case, the representation dated 5.8.2009 addressed to the detaining authority was filed by the detenue within the time limit mentioned in Section 10 of the NSA but it was not placed before the Advisory Board simply for the reasons mentioned above by the Respondent Nos. 1 and 2. 17. In the given case, in para 6 of the said letter of the District Magistrate, Imphal East District dated 23.6.2010 which has been quoted above, it is clearly mentioned that the representation, if any, filed by the detenue within three weeks from the date of detention would be placed before the Advisory Board for its consideration. Over and above, it is not denied by the Respondent No. 2, State Government in their affidavit in-opposition, that the representation dated 28.6.2010 addressed to the District Magistrate filed by the Petitioner-detenue within 12 days from the date of detention and also before approval of the detention order by the appropriate Government and also within three weeks from the date of the detention order, was not placed before the Advisory Board in its meeting held on 24.7.2010 and 25.7.2010. 18. For the foregoing reasons, we are of the firm view that in the given case for the failure on the part of the appropriate Government to place the representation dated 28.6.2010 before the Advisory Board in its meeting held on 24.7.2010 and 25.7.2010 the continued detention of the Petitioner under the NSA is illegal. 18. For the foregoing reasons, we are of the firm view that in the given case for the failure on the part of the appropriate Government to place the representation dated 28.6.2010 before the Advisory Board in its meeting held on 24.7.2010 and 25.7.2010 the continued detention of the Petitioner under the NSA is illegal. Accordingly, the detention order dated 22.6.2010, the approval order dated 1.7.2010 and the confirmation order dated 4.8.2010 are hereby set aside. The Petitioner, Mohammed Islammudin Khan (a), M.I. Khan, shall be released forthwith if he is not requited in connection with any other case. Writ petition is disposed of.