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2011 DIGILAW 890 (GAU)

Lodorin D Marak v. Union of India

2011-11-15

ANIMA HAZARIKA, PRASANTA KUMAR SAIKIA

body2011
JUDGMENT Hazarika, J. 1. Heard Mr. SP Mahanta, learned counsel appearing for the petitioner. Also heard Mr. SC Shyam, learned Central Govt. counsel appearing for respondent No.1 and Mr. ND Chullai, learned senior Government Advocate for the respondent Nos.2 to 5. 2. The detention of Shri Daplin S Sangma (hereinafter in short referred to as "detenu') was detained by the impugned order dated 19.1.2009 passed by the District Magistrate, East Garo Hills District, Williamnagar, in exercise of power under Section 3(1) of the Meghalaya Preventive Detention Act, 1995 (for short the Act). 3. By the aforesaid order, it was ordered that the detenu who was already in police custody be detained with immediate effect until further orders at District Jail, Jowai. Along with the detention order, the detenu was also served with the grounds of detention. Hence, this Habeas Corpus (hereinafter for short to be referred as the Petition) has been moved by the wife of the detenu. 4. The detenu was arrested by the police on 17.12.2008 in connection with Mendipathar PS Case No.54(9)/2008 under Section 365/34 IPC and was sent to police custody and thereafter he was also implicated in connection with Mendipathar PS Case No.69(12/2008 under Section384/511/34 IPC read with Section 5 of the Explosive Substances Act and also Rongjeng PS Case No.2(1)/2009 under Section 384/506/34 IPC. While he was in police custody, the aforementioned detention order was passed. 5. The detention order has been challenged mainly on two grounds; (i) non-supply of relevant documents relied upon in the grounds of detention so as to enable the detenu the earliest opportunity to make effective and meaningful representation against his detention, (ii) there is no mention in the detention order about the detenu's right of making representation before the concerned detaining authority and Central Government, thereby attempting to keep the detenu in the dark about his right to make an effective representation against the impugned detention order. 6. 6. Regarding the first ground of challenge, learned counsel for the petitioner has submitted that the detenu was not supplied with the copies of the FIR, Police Report, statement of witnesses recorded under Section 161 CrPC in connection with the Police Station cases mentioned hereinabove and other relevant documents along with the grounds of detention, as a result of which he was unable to make an effective representation against the detention order and on that ground alone, the detention order is liable to be set aside and quashed. 7. Per contra, Mr. Chullai, learned Government Advocate has submitted that all the requisite documents in connection with the detention of the detenu have been supplied to him. However, to substantiate his submission, neither affidavit-in-opposition on behalf of the respondents nor any record has been produced before the Court. Therefore, we are of the firm opinion that the documents were not supplied to the detenu along with the grounds of detention as submitted by the learned counsel for the petitioner. 8. In the absence of those documents, we agree with the contention raised by the learned counsel for the petitioner that the detenu could not make effective representation. 9. In a catena of decisions, the Hon'ble Supreme Court has held that the detenu must be supplied with the copies of all the documents, statements and other materials relied upon in the grounds of detention without any delay and the predominant object of communicating the grounds of detention is to enable the detenue at the earliest opportunity to make effective and meaningful representation against his detention. 10. Though the learned State counsel has submitted that the relevant documents were supplied to the detenu but he has failed to produce some proof wherein the detenu acknowledges the receipt of those documents. Having not done so, we have no other alternative but to draw the conclusion that those documents were not supplied to the detenu. 11. In support of his submission, learned counsel for the petitioner has relied upon the decision of the Hon'ble Supreme Court rendered in the case of Thahira Harish and others Vs. Government of Karnataka reported in (2009) 11 SCC 438 . In Thahira Harish (supra), the Hon'ble Supreme Court at paragraphs 30, 32 and 33 has held as thus: 30. 11. In support of his submission, learned counsel for the petitioner has relied upon the decision of the Hon'ble Supreme Court rendered in the case of Thahira Harish and others Vs. Government of Karnataka reported in (2009) 11 SCC 438 . In Thahira Harish (supra), the Hon'ble Supreme Court at paragraphs 30, 32 and 33 has held as thus: 30. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has the right to be supplied with copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention. 32. In the instant case, admittedly, the relied upon document, the detention order of Anil Kumar was not supplied to the detenu and the detenu was prevented from making effective representation which has violated his constitutional right under clause (5) of Article 22 of the Constitution. 33. Consequently, we accept these appeals. The impugned detention order is quashed and the detenu is directed to be released forthwith, if not required in any other case. 12. With regard to the second ground of challenge i.e. non-mentioning about the detaining authority as well as the Central Government in the detention order, the law is well settled that when a detenu is detained he has a fundamental right under Article 22(5) of the Constitution of India to make representation before the detaining authority in addition to his right to file a representation before the Central Government or an appropriate State Government. In the case of Konsam Brojen Singh @ Basan @ Sekhar @ Suraj @ Sainthel @ Basanta @ Inaotomba ovs-State of Manipur and Ors reported in 2006 (1) GLT 375 (FB), this Court has held that the detenu has a right under Article 22(5) of the Constitution, to be informed to make representation to the detaining authority in addition to his right to make representation to the appropriate Government. The Court further held that the detaining authority is under the constitutional obligation to enable the detenu of such right and failure to do so shall vitiate the order of detention. 13. The Court further held that the detaining authority is under the constitutional obligation to enable the detenu of such right and failure to do so shall vitiate the order of detention. 13. In the present case at hand, while perusing the detention order, it would reveal that in the impugned detention order, there is no mention as to the right of the detenu to submit representation before the detaining authority as well as Central Government. 14. Having meticulously scrutinized the factual situation as has been unfolded by the petitioner in the instant petition as well as having regard to the established principles of law and also upon hearing the learned counsel for the parties, this Court is of the view that : (1) the documents relying upon which the detention order was passed were not supplied to the detenu, (2) the detenu was not informed of his right to submit representation to the detaining authority as well as the Central Government. Accordingly, we hold that the impugned detention order cannot be sustained. Consequently, the detention order dated 19.1.2009 passed by the District Magistrate, East Garo Hills District, Williamnagar, as well as the approval order dated 17.3.2009 passed by the Government of Meghalaya, are hereby set aside and quashed. 15. In the result, the petition succeeds and stands allowed. 16. The detenue Shri Daplin S Sangma be set at liberty forthwith, if he is not wanted in any other case.