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2015 DIGILAW 1183 (GAU)

Nikunja Kathar @ Ramsing Engti v. State of Assam

2015-09-14

UJJAL BHUYAN

body2015
JUDGMENT : Ujjal Bhuyan, J. Heard Mr. M Sarania, learned counsel for the petitioner and Mr. N Upadhyay, learned Government Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 10.11.2014, passed by the District Magistrate, Karbi Anglong, detaining him in custody, under Section 3(2) of the National Security Act, 1980. 3. Impugned order dated 10.11.2014 reads as under:- "Order Whereas, it has been reported to me by the Superintendent of Police (DSB) Hamren Police District, Hamren, Karbi Anglong (Assam) vide his letter No. DSB/HRN/DSB/NSA/01/101/2014/ 7947 dated 31.07.2014 that Sri Nikunja Kathar (32) @ Ramsing Engti, S/o Sri Sing Kathar, Vill.- Punja Borpathar, PS-Baithalangso, Dist.- Karbi Anglong (Assam) is acting in a manner prejudicial to the security of the state and maintenance of public order; And Whereas, on perusal of the said report, it reveals that said Sri Nikunja Kathar (32) @ Ramsing Engti, S/o Sri Singh Kathar, Vill. - Punja Borpathar, PS-Baithalangso, Dist.-Karbi Anglong (Assam) is an active member of an extremist outfit, namely, United Peoples Liberation Army (UPLA) and is actively involved in various subversive activities which are prejudicial to the security of the state and maintenance of public order as laid down in Sub-Section (2) of Section 3 of the National Security Act, 1980; And Whereas, the said Sri Nikunja Kathar (32) @ Ramsing Engti, S/o Sri Singh Kathar, Village-Punja Borpathar, PS-Baithalangso, Dist. - Karbi Anglong (Assam) is now in judicial custody, Hamren Jail, Hamren and he will act or likely to act in a manner indulge in prejudicial to the security of the State and maintenance of public order if he is enlarged on bail at any time as per law; And Whereas, it is considered and satisfied that said Sri Nikunja Kathar (32) @ Ramsing Engti, S/o Sri Singh Kathar, Vill.- Punja Borpathar, PS-Baithalongso, Dist. - Karbi Anglong (Assam) be detained under Sub-Section (2) of Section 3 of the National Security Act, 1980, with a view to prevent him from acting in any manner prejudicial to the security of the State and maintenance of public order; Now, Therefore, I, Shri P K Buragohain, District Magistrate, Karbi Anglong, Diphu (Assam), in exercise of the powers conferred upon me under Sub-Section (3) of Section 3 of the National Security Act, 1980, read with Govt. Notification No. Pl.A. 326/97/111 dated 30.08.2014, issued by Home and Political (A) Department, Govt, of Assam, do hereby order that the said Nikunja Kathar (32) @ Ramsing Engti, S/o Sri Singh Kathar, Vill-Punja Borpathar, Baithalangso, Dist. - Karbi Anglong (Assam) be detained in the Hamren Jail, Hamren U/S 3(2) of the National Security Act, 1980, with immediate effect and until further orders with a view to prevent him from acting in any manner pre-judicial to the security of the State and maintenance of public order who is already in judicial custody at Hamren Jail, Hamren. The detenue may submit his representation against this detention order to Central Govt./State Govt./Advisory Board within 10 (ten) days from the date of detention. The grounds of detention and other relevant materials based on which this order is made are being furnished herewith to the detenue as per Section 8(1) of the National Security Act, 1980. Given under my hand and seal of the Court on this 10th day of November 2014." 4. A perusal of the impugned order would show that Superintendent of Police (DSB), Hamren Police District, Hamren, Karbi Anglong, had submitted a letter dated 31.07.2014 to the District Magistrate, Karbi Anglong. Diphu, reporting that petitioner is an active member of an extremist outfit called United Peoples Liberation Army (UPLA) and actively involved in various subversive activities. He is, therefore, acting in a manner prejudicial to the security of the State and maintenance of public order. It was stated that petitioner was in judicial custody in Hamren jail. In the event of his enlargement on bail, apprehension expressed is that he would act in a manner prejudicial to the security of the State and maintenance of public order. 5. The impugned order was accompanied by ground of detention, which gives details of petitioner's involvement with UPLA. It was stated that petitioner was in judicial custody in Hamren jail. In the event of his enlargement on bail, apprehension expressed is that he would act in a manner prejudicial to the security of the State and maintenance of public order. 5. The impugned order was accompanied by ground of detention, which gives details of petitioner's involvement with UPLA. It also refers to 3 (three) police cases involving the petitioner, namely, 1) Baithalangso PS Case No. 49 of 2014, under Sections 120(B)/121/121(A)/302 of the Indian Penal Code, 1860, read with Section 25(1-A)/27 of the Arms Act, 1959; 2) Baithalangso PS Case No. 53 of 2014, under Sections 120(B)/121/121(A)/122 of the Indian Penal Code, 1860, read with Section 25(1-B) of the Arms Act, 1959, read with Section 5 of the Explosive Substances Act, 1908, and; 3) Hamren PS Case No. 13 of 2014, under Sections 120(B)/121/302/201/307/395 of the Indian Penal Code, 1860, read with Section 25(1-A)/27 of the Arms Act, 1959. The grounds of arrest also disclose various subversive acts attributed to the petitioner. 6. On the date of detention, petitioner was informed about his right to file representation. Accordingly, he submitted a detailed representation dated 19.11.2014, addressed to the Commissioner and Secretary to the Government of Assam, Home and Political Department, Chairman, Advisory Board and Secretary to the Government of India, Ministry of Home Affairs, seeking his release from detention. 7. Order dated 06.01.2015 was passed by the Commissioner and Secretary to the Government of Assam, Home and Political Department, rejecting the representation of the petitioner, a copy of which was served on the petitioner on 12.02.2015. 8. Another order was passed on 30.01.2015 by the said authority stating that on the basis of the report of the Advisory Board, detention of the petitioner has been confirmed and that petitioner be detained in District Jail, Hamren, for a period of 12 (twelve) months, w.e.f. from the date of detention or until further orders, whichever is earlier. The said order was served on the petitioner on 12.02.2015. 9. Aggrieved, the present writ petition has been filed assailing the order of detention. 10. Learned counsel for the petitioner has referred to Article 22 of the Constitution of India as well as various provisions of the National Security Act, 1980, and submits that since this is a case of preventive detention, the procedure prescribed will have to be followed strictly. Aggrieved, the present writ petition has been filed assailing the order of detention. 10. Learned counsel for the petitioner has referred to Article 22 of the Constitution of India as well as various provisions of the National Security Act, 1980, and submits that since this is a case of preventive detention, the procedure prescribed will have to be followed strictly. A bare perusal of the orders passed by the authority would go to show that the procedure prescribed under the law has not been followed, which has vitiated the preventive detention of the petitioner. He has also referred to several decisions of the Apex Court to contend that petitioner's fundamental right under Article 21 cannot be curtailed without following the due procedure. Since the procedure has not been followed in this case, detention of the petitioner has become illegal and cannot be sustained. 11. Mr. N. Upadhyay, learned State Counsel referring to the affidavit filed by respondent No. 5, submits that petitioner is involved in serious criminal and anti-State activities detrimental to the security of the State. The has been arrested in connection with the cases mentioned in the grounds of arrest and in the event of him being released on bail it would have a severe impact on the security scenario in the district of Karbi Anglong. Preventive detention of the petitioner has become essential for maintenance of public order and for prevention of subversive activities against the State. Mr. Upadhyay, however, submits that though he has been furnished with the record of the case the record does not contain details of the procedure relating to detention of the petitioner. It only contains materials gathered against the petitioner. 12. Though notice in this case was issued on 03.07.2015, except respondent No. 5 none of the other respondents have though it fit to file affidavit though sufficient opportunities were granted. Since this is a case of preventive detention Court cannot wait for an indefinite period for the respondents to file affidavit. To add to it, there is no representation on behalf of the Central Government on both the dates of hearing. 13. Be that as it may, submissions made at the Bar have been considered. Also perused the record produced. 14. Clause-4 to Clause-7 of Article 22 of the Constitution of India deals with preventive detention of a person. To add to it, there is no representation on behalf of the Central Government on both the dates of hearing. 13. Be that as it may, submissions made at the Bar have been considered. Also perused the record produced. 14. Clause-4 to Clause-7 of Article 22 of the Constitution of India deals with preventive detention of a person. A combined reading of the aforesaid provisions would show that no law providing for preventive detention shall authorise detention of a person for a period longer than 3 (three) months unless the Advisory Board reports before expiry of 3 (three) months that there exists sufficient cause for such detention. A person taken in preventive detention is required to be communicated at the earliest the grounds on which the preventive detention order was made and to afford the detenue the earliest opportunity of making representation against such order. 15. Parliament has enacted the National Security Act, 1980 vesting power on the Central Government as well as on the State Government to take into custody certain persons on preventive detention. In a given case, the Central Government or the State Government has to be satisfied that preventive detention is necessary to prevent that person from acting in any manner prejudicial to the defence of India, relations of India with foreign powers or the security of India or preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order etc,. Under Sub-Section (3) of Section 3, if the State Government is satisfied that it is necessary so to do, it may be by order in writing, authorise the District Magistrate or Commissioner of Police to exercise powers conferred by Sub-Section (2). As per the proviso to Sub-Section (3), the period specified in an order of detention should not, in the first instance, exceed 3 (three) months, but the State Government may extend such period from time to time not exceeding 3 (three) months at a time, if it is satisfied that such extension is required. Section 8 provides that grounds of detention have to be disclosed to the person affected by the detention order within 5 (five) days of detention and in exceptional circumstances, within 10 (ten) days for which reasons have to be recorded in writing. Section 8 provides that grounds of detention have to be disclosed to the person affected by the detention order within 5 (five) days of detention and in exceptional circumstances, within 10 (ten) days for which reasons have to be recorded in writing. Section 9 provides for constitution of Advisory Board to examine validity of such detention and to report to the appropriate Government. Under Section 10, where a detention order has been made under the National Security Act, 1980, the appropriate Government shall, within 3 (three) weeks from the date of detention, place the case of the detenue before the Advisory Board. The procedure to be followed by the Advisory Board is laid down under Section 11. Advisory Board is required to submit its report to the appropriate Government, within 7 (seven) weeks from the date of detention of the person concerned. Under Section 12, where the Advisory Board has opined that detention is justified the appropriate Government may confirm the detention order, which shall be for a maximum of 12 (twelve) months as per Section 13. 16. Thus, as per the scheme of the National Security Act, 1980, read with Article 22(4) to (7) of the Constitution, an initial order for preventive detention can be for a maximum period of 3 (three) months. The grounds of detention are to be disclosed to the detenue ordinarily within 5 (five) days and in exceptional circumstances for reasons to be recorded in writing, within 10 (ten) days, affording the detenue the earliest opportunity of making representation against his detention. Within 3 (three) weeks from the date of detention, case has to be placed before the Advisory Board. Advisory Board has to submit its opinion to the appropriate Government within 7 (seven) weeks from the date of detention. 17. In the light of the aforesaid provisions, the detention of the petitioner followed by the sequence of events as noticed above may be examined. Date of detention is 10.11.2014. Neither the affidavit of respondent No. 5 nor the record discloses when the case of the petitioner was placed before the Advisory Board. However, representation of the petitioner is dated 19.11.2014. This was rejected by the Commissioner and Secretary to the Government of Assam, Home and Political Department, on 06.01.2015, copy of which was served on the petitioner on 12.02.2015. Neither the affidavit of respondent No. 5 nor the record discloses when the case of the petitioner was placed before the Advisory Board. However, representation of the petitioner is dated 19.11.2014. This was rejected by the Commissioner and Secretary to the Government of Assam, Home and Political Department, on 06.01.2015, copy of which was served on the petitioner on 12.02.2015. In the context of detention of the petitioner under the National Security Act, 1980, Court is of the view that the period consumed by the authority in rejecting the representation of the petitioner does not appear to be reasonable. It took a total of 48 (forty-eight) days (19.11.2014 to 06.01.2015) to dispose of the representation of the petitioner. Not only that, the rejection order was communicated to the petitioner on 12.02.2015, more than after 30 (thirty) days of passing of the same. When the law requires communication of the grounds of detention ordinarily within 5 (five) days and in exceptional circumstances within 10 (ten) days, that too, for reasons to be recorded in writing to enable the detenue to make a representation at the earliest opportunity, the natural corollary would be that such representation is required to be attended to with utmost expedition. Failure to do so would be a breach of the detenue's fundamental right under Article 21. In such circumstances, Court is of the view that there was unreasonable delay in disposal of the representation which was further compounded by unexplained delay of more than 30 (thirty) days in serving a copy of the rejection order on the detenue. 18. In addition to the above, it is seen that by order dated 30.01.2015, Commissioner and Secretary to the Government of Assam, Home and Political Department, had accepted the report of the Advisory Board and confirmed the detention of the petitioner. A careful perusal of the detention order would show that petitioner was arrested under Section 3(2) of the National Security Act, 1980, with immediate effect and until further orders (emphasis supplied). Such preventive detention for an indefinite period is impermissible in the teeth of constitutional embargo under Article 22(4), which clearly prohibits framing of any law authorising detention of a person for a period longer than 3 (three) months, unless the Advisory Board expresses its opinion that there are sufficient cause for such detention before 3 (three) months. Such preventive detention for an indefinite period is impermissible in the teeth of constitutional embargo under Article 22(4), which clearly prohibits framing of any law authorising detention of a person for a period longer than 3 (three) months, unless the Advisory Board expresses its opinion that there are sufficient cause for such detention before 3 (three) months. This constitutional limitation finds its expression in the proviso to Sub-Section (3) to Section 3 of National Security Act, 1980, prohibiting the State Government from detaining any person under the said Act, in the first instance, for a period exceeding 3 (three) months. This is a serious lacuna in the detention order. 19. The order dated 30.01.2015 is also silent as to when the case of the petitioner was placed before the Advisory Board and when the Advisory Board submitted its report to the appropriate Government. But, as already noticed above, the Advisory Board has to submit its report to the appropriate Government, i.e., the State Government in this case, within 7 (seven) weeks from the date of detention. In this case, the date of detention is 10.11.2014. The period of 7 (seven) weeks commenced from 10.11.2014 and had expired on 28.12.2014. Even for the sake of argument, if it is accepted that the report of the Advisory Board was submitted to the appropriate Government on the last day of the period of 7 (seven) weeks, i.e., on 28.12.2014, it took the Government more than 33 (thirty-three) days, thereafter, to pass the confirmation order. This delay is also unexplained. 20. Thus, it is clearly evident that there has been gross procedural lapse involving the preventive detention of the petitioner and such procedural lapse has vitiated such detention. The approach of the appropriate Government has been rather casual considering that it is a case of preventive detention. 21. As is well known, nature of preventive detention is qualitatively different from detention under the normal criminal laws. As pointed out by the Apex Court in the case of Union of India v. Yumnam Anand M. reported in (2007) 10 SCC 190 , in case of preventive detention, no offence is proved, nor any charge is formulated. The justification of such detention is suspicion or reasonability. There is no criminal conviction which can only be warranted by legal evidence. Preventive detention requires an action to be taken to prevent apprehended objectionable activities. The justification of such detention is suspicion or reasonability. There is no criminal conviction which can only be warranted by legal evidence. Preventive detention requires an action to be taken to prevent apprehended objectionable activities. But since a person's personal liberty is deprived, the laws of preventive detention are strictly construed and a meticulous compliance with the procedural safeguards, however technical, is mandatory. 22. Consequently, such detention cannot be sustained in the eye of law. Accordingly and in the light of the above, detention order of the petitioner dated 10.11.2014 is set aside and quashed. Petitioner shall be set at liberty and released from custody forthwith, if not detained in any other case. 23. Writ petition is accordingly allowed, but without any order as to costs.