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2013 DIGILAW 49 (MEG)

Henrol M. Marak v. State Of Meghalaya

2013-11-15

S.R.SEN

body2013
JUDGMENT : S.R. Sen, J. 1. The instant Writ Petition is directed against the Impugned Detention Order passed by the District Magistrate, West Garo Hills, Tura dated 16.10.2012. The petitioner's case in a nutshell is that: The Writ petitioner herein is the brother of the detenue who is booked under the Meghalaya Preventive Detention Act. The State Respondents under the suspicion that the detenue belongs to some unauthorized antisocial militant group has booked him under the above said Act detaining him for a period of three years. The detenue was arrested by the Tura police without warrant on the 12th October 2012 and was kept under the Judicial custody and in the meanwhile on 16th October 2012 the District Magistrate, West Garo Hills, Tura passed the Impugned Detention Order detaining the petitioners brother under the Act. The detenue is a young boy of 20 years studying in class XI and will be appearing in the forthcoming examinations. The Impugned Detention Order suffers from various lapses as the Detaining Authority failed to follow the procedure laid down to be followed in the Preventive Detention Law. The petitioner herein being aggrieved by the said detention order dated 16th October 2012 file this instant petition challenging the same on various grounds. 2. The learned counsel, Ms. S.G. Momin appearing for and on behalf of the petitioner argued that, in this instant case the petitioner was not informed about his right to make Representation to Detaining Authority, the State Government and Central Government. Inspite of the fact, the Accused made a Representation on 19.10.2012 addressed to the District Magistrate, West Garo Hills, Tura, Political Department, Government of Meghalaya, Principal Secretary/Commissioner & Secretary, Meghalaya Secretariat, Shillong and to the Advisory Board at Gauhati High Court, Assam. 3. The learned counsel further contended that though District Magistrate has disposed of the Representation rejecting the plea of the Accused, however, the State Government and Central Government did not response to the Representation forwarded by the Accused. Therefore, the Accused person may be released from the custody. 4. On the other hand, Addl. P.P., Mr. R. Gurung appearing for and on behalf of the State submits that, disposal of Representation by the Central Government and State Government independently further not required as District Magistrate has already disposed of the Representation. 5. Therefore, the Accused person may be released from the custody. 4. On the other hand, Addl. P.P., Mr. R. Gurung appearing for and on behalf of the State submits that, disposal of Representation by the Central Government and State Government independently further not required as District Magistrate has already disposed of the Representation. 5. After hearing the submissions advanced by the learned counsel as quoted above, and after going through the Annexure-I, the Detention Order, it appears that the Accused Goodman M. Marak S/o Shri Alonsing A. Sangma R/o Magalpara, P.O. & P.S. Dadenggre, West Garo Hills District, Meghalaya has been booked under Meghalaya Preventive Detention Act, 1995. In short referred herein below, MPDA Act, 1995. 6. On perusal of the said Detention Order, it appears that there were many allegations which have come in the notice of the learned District Magistrate, and considering his activities, he has been booked under MPDA Act, 1995. 7. I have also perused the grounds of Detention, and I did not find anything wrong in the Detention Order, however, I don't agree with the submission made by the learned counsel for the petitioner that Accused was not informed about his right to make Representation, as because last para. of the Detention Order specifically states that he has been informed about his right to make Representation in accordance with the Article 22(5) of the Constitution of India read with section 8(1) of the MPDA Act, 1995. 8. It is also not a disputed fact as appeared from the submissions advanced by the learned counsel that, Representation was not disposed of by the Detaining Authority. MPDA Act, 1995 has been notified on 12.05.1995 in Gazette of Meghalaya and section 15(1) speaks as follows: Without prejudice to the provisions of Section 35 of the Meghalaya Interpretation and General Clauses Act, 1972 a detention order made by a District Magistrate or by the empowered officer may, at any time, be revoked or modified by the State Government and in case of a detention order made by the State Government, by the Central Government. 9. So on bare perusal of the said sections, it appears that, Detention Order issued by the District Magistrate or empowered authority may be revoked by the State Government. In case, Detention Order is by the State Government, then, it is to be modified or revoked by the Central Government. 9. So on bare perusal of the said sections, it appears that, Detention Order issued by the District Magistrate or empowered authority may be revoked by the State Government. In case, Detention Order is by the State Government, then, it is to be modified or revoked by the Central Government. There-fore, it appears that it has got 2(two) segments. Firstly, if the order is passed by District Magistrate, it may be revoked or modified by the State Government, in case if the order is passed by the State Government, then it can be revoked or modified by the Central Government. Therefore, there is no scope to make a Representation by the Accused to the Central Government when he is detained under the Act by the District Magistrate. However, it is also an admitted fact, though, Representation was made to the State Government, but it remained un-disposed. 10. It is a serious lapse on the part of the State Government. Article 22 of the Indian Constitution makes a specific provision for protection against arrest and detention in certain cases. On perusal of the Article 22 inference can be drawn easily that, mere information to the detenue about his right to make Representation is not enough. Representation needs to be addressed judiciously and need to be disposed of. Since in this case, inspite of the Representation made by the Accused, State Government remains silent to address his Representation. I find the rights of the detenue has violated. Therefore, this Court has no other way, but to direct the Chief Secretary, Government of Meghalaya to release the detenue from the custody forthwith, in case if he is not required in connection with any other case or cases. 11. With this observation and direction, this instant Writ Petition is allowed and hereby stands disposed of. Registry to send the copy of this order to the Government immediately for compliance.