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2014 DIGILAW 147 (MEG)

Silleynish Ch. Sangma v. Union of India

2014-06-10

S.R.SEN

body2014
Judgment Sudip Ranjan Sen, J. 1. This Judgment & Order is directed against the impugned Detention order dated 21.11.13 as well as the Grounds of Detention dated 21.11.13. 2. The petitioner's case in nut shell is that, "on 21.11.13, the husband of the petitioner namely; Shri. Salim M. Sangma, the detenue was booked under MPDA, 1995 by the respondent District Magistrate. The Detention Order as well as the Grounds of Detention were issued and the detenue was kept in District Jail, Jowai until further orders. The Detention Order was approved by the orders of the Governor through the Under Secretary to the Government of Meghalaya, Political Department and subsequently confirmed by the Governor of Meghalaya (Annexures-1, 2, 3 & 4). The detenue was granted bail by the Court of CJM (K), Guwahati in connection with Kheri P.S. Case No. 131(6) 2012 on 09.12.13 (Annexures 5 and 5A) and was also granted bail by the Court of Additional Magistrate, Resubelpara in connection with Mendipathar P.S. Case No. 42 (5) 2013 on 23.10.13 (Annexure-6). The Governor of Meghalaya had issued guidelines for detention under MPDA through the Officer on Special Duty to the Govt. of Meghalaya, vide Guidelines dated 17.10.08. The detenue could not file any representation as he was never explained about his right to make representation before the Detaining Authority, the State Respondent, the Advisory Board and the Central Government and thereby denied of his right and was also not supplied with the necessary documents supporting the grounds of detention and being aggrieved by the impugned Detention Order (Annexure-I) prefers to file this Writ Petition through his wife praying for setting aside and quashing the impugned Detention Order, Grounds of Detention, Approval Order as well as Confirmation Order at Annexures-1, 2, 3 & 4 respectively and also praying for releasing him from detention". 3. At the outset, it has been noted that the petitioner herein namely; Silleynish Ch Sangma is the wife of the detenue. 4. Mr. 3. At the outset, it has been noted that the petitioner herein namely; Silleynish Ch Sangma is the wife of the detenue. 4. Mr. SP Mahanta, the learned counsel appears for on behalf of the petitioner argued that in this instant case, no document has been furnished to the detenue, as a result, the detenue failed to make any representation before the District Magistrate as well as to the Principal Secretary, Political Department, Government of Meghalaya which is his right as required under Article 22(5) of the Constitution of India r/w Section- 8 of MPDA, 1995 and prayed that he should be released immediately as there is cross-violation of mandate of law. 5. Further, the learned counsel for the petitioner also relied on Judgment passed by the Apex Court (Division Bench) in the case of Thahira Haris & Ors. Vrs Government of Karnataka & Ors reported in (2009) 11 SCC 438 . 6. Mr. Sen Gupta, the learned State counsel submits that, all necessary documents have been furnished to the accused but perhaps proper receipts may have not been obtained from the detenue. 7. I have also perused the Addl. Affidavit filed by the Government at Para-2 which reflects that "as stated in my affidavit-n-opposition the answering respondent begs to submits that as required under law, the detenue has been supplied with all the relevant documents along with the detention order dated 21.11.13". 8. After perusal of the records produced by the learned State counsel, I could not satisfy myself with certainty that, copies of necessary documents were supplied to the detenue as on the top of the documents, nowhere found mentioned that the detenue has received copies of the documents but only one page wherein it has (Dak Challan) mentioned one closed cover received by the detenue, hence, it is not clear and also could not be accepted that documents were supplied by the prosecution to the detenue. 9. In my considered view under MPDA, since the accused has been confined without trial, he should be given an opportunity to get all the documents so that he can make proper and effective representation. But in this instant case, doubts remained about the supply of documents, therefore, I am not in a position to accept the version of the prosecution that they have supplied all the required documents in a closed cover. 10. But in this instant case, doubts remained about the supply of documents, therefore, I am not in a position to accept the version of the prosecution that they have supplied all the required documents in a closed cover. 10. The Judgment of the Hon'ble Apex Court referred to above, it is made clear at Para-15 the Court observed that Article 22(5) insists that all basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenue. Section- 8(1) of the Act, which merely re-enacts the constitutional requirements of Article- 225(5) insists that all basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenue, so that the detenue may have an opportunity of making an effective representation against the order of detention. It is, therefore, not only the right of the Court, but also its duty as well, to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that is has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction. The Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts or materials, apart from those admitted by it, which could have reasonably influenced the decision of the detaining authority and for that purpose, the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it. That is the lease the Court can do to ensure observance of the requirements of law by the detaining authority. 11. In this case in hand, since from record it could not ascertain with certainty that requisite documents on the basis of which Grounds of Detention or influenced the detaining authority to come to a conclusion to place the detenue under detention. 11. In this case in hand, since from record it could not ascertain with certainty that requisite documents on the basis of which Grounds of Detention or influenced the detaining authority to come to a conclusion to place the detenue under detention. Besides that, the learned Deputy Commissioner/District Magistrate, East Garo Hills, Williamnagar as well the Superintendent of Police, East Garo Hills, Williamnagar are present and also admitted that due to oversight, they failed to obtained the signature on each and on every page of the documents that were supplied to the detenue and apologized for the same. 12. After hearing the submissions advanced by the learned counsel for the parties at bar and after examining the records placed before me as well as keeping in mind the observations made by the Hon'ble Apex Court, I am to order to release the detenue from custody. 13. Further, before I part with the case record, I observed that the Government of Meghalaya should immediately arrange a training programme for the Deputy Commissioners, the Superintendent of Police as well as the others who are handling with the Prevention & Detention matter by some expert lawyers and by some retired judges. 14. The Chief Secretary to the Government of Meghalaya is directed to release the detenue forthwith provided if he is not required in any other cases. 15. Registry is further directed to send a copy of this Judgment & Order to the Chief Secretary to the Government of Meghalaya as well to the Director General of Police, Meghalaya for immediate necessary instructions. 16. The personal appearance of the learned Deputy Commissioner/District Magistrate, East Garo Hills, Williamnagar, as well the Superintendent of Police, East Garo Hills, Williamnagar, are hereby dispensed with. 17. Mr. S. Sen Gupta, the learned State counsel is also directed to return the records to the concerned authorities immediately. 18. With these observations and directions, this instant petition is allowed and the matter stands disposed of.