Skip to content


Joynath Sharma Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantJoynath Sharma
RespondentState of Assam and ors.
Prior history
T.N. Singh, J.
1. The detenu has approached this Court to secure his liberty from detention made under Section 3(2) of the National Security Act, 1980 (shortly 'the Act') by the Govt. of Assam. By this application for a writ of Habeas Corpus the legality of the order is challenged. We heard the matter at length and by a short order passed on 1-3-1983 allowed the petition holding the detention order to be illegal and without jurisdiction and directed release of the detenu. This judgment contai
Excerpt:
- - has failed to discharge its duty enjoined under section 14 of the act. preventive detention is a preventive action and unless this requirement, which is implicit in the language of section 3(2) of the act, is satisfied the authority concerned shall not acquire the jurisdiction to exercise its power to pass the order. firstly, he has to apply his mind to the fact as to whether the person against whom an order is contemplated is a man at large on that date or even if he is under some restraint for the time being he is likely to be freed therefrom so as to pose a possibility of indulging in prejudicial activities which the law empowers the detaining authority to prevent and that it is necessary for that purpose to effectively interdict him by detaining him under the act. secondly, the..... t.n. singh, j.1. the detenu has approached this court to secure his liberty from detention made under section 3(2) of the national security act, 1980 (shortly 'the act') by the govt. of assam. by this application for a writ of habeas corpus the legality of the order is challenged. we heard the matter at length and by a short order passed on 1-3-1983 allowed the petition holding the detention order to be illegal and without jurisdiction and directed release of the detenu. this judgment contains the reasons for our order.2. ii is stated in the petition that on 28-11-1982 the detenu was attending with others a meeting of the state committee of the ah assam gana sangram parishad. the detenu along with others, was 'gheraoed' by the police at 11 a. m. when the meeting was in session and.....
Judgment:

T.N. Singh, J.

1. The detenu has approached this Court to secure his liberty from detention made under Section 3(2) of the National Security Act, 1980 (shortly 'the Act') by the Govt. of Assam. By this application for a writ of Habeas Corpus the legality of the order is challenged. We heard the matter at length and by a short order passed on 1-3-1983 allowed the petition holding the detention order to be illegal and without jurisdiction and directed release of the detenu. This judgment contains the reasons for our order.

2. II is stated in the petition that on 28-11-1982 the detenu was attending with others a meeting of the State Committee of the AH Assam Gana Sangram Parishad. The detenu along with others, was 'gheraoed' by the police at 11 a. m. when the meeting was in session and eventually at 10.30 p.m. he was arrested and taken to Tezpur Police Station. Next day, on 29-11-1982, at 11 a. m. he was produced before the Sub-Divisional Judicial Magistrate and on his inquiry he was told by the learned Magistrate that the following cases had been registered against him :

(1) G. R. Case No. 1428 of 1982 of Mangaldoi Police Station, under Section 3(A), E. S. Act.

(2) G. R. Case No. 1431 of 1982 of Mangaldoi Police Station under Section 5, E.S. Act.

(3) G. R. Case No. 382/75 under Section 342/34, IPC.

(4) G. R. Case No. 822/75 under Section 34(5), D.I.R., 1971.

The learned Sub Divisional Judicial Magistrate allowed the detenu to be taken into police custody for 72 hours. Thereafter, on 30-11-1982, at about 3 a. m. the was moved from Tezpur and brought to Gauhati jail where he was served with the impugned detention order at 4.45 a. m. He was detained in Gauhati jail until 3-12-1982 but was eventually brought back to Mangaldoi.

3. It appears that a representation against the detention was made by the detenu to the State Govt. on 24-12-1982 which was rejected on 1-1-1983. It is averred in the petition that a specific request was made by the detenu to forward a copy of his representation to the Central Govt. and it appears that the representation was in fact forwarded to the Central Govt. on 3-1-1983 although the stand taken by the detaining authority in the return filed in this Court was that it was not the duty of the State Government to forward the representation; all that the State Government had to do under Section 3(5) of the Act was to make a report of the detention to the Central Government and to send therewith a copy of the grounds of detention as contemplated under Section 3(5) of the Act, which it had, done on 29-11-1982 in due compliance with the said provisions.

4. The order of detention states that it was necessary to detain him 'with a view to prevent him from acting in a manner pre judicial to the maintenance of public order'. The order is bottomed on three grounds but challenge is made against the order mainly with respect to ground No. 2 and it is submitted that, as the settled law is, the order is liable to be struck down if even this singla ground is found to be invalid. The ground is as follows:

Some arms and explosives were supplied to Shri Mahendra Mohan Choudlhury, a known extremist of Mangaldoi by you just before August 15, 1982 for subversive/sabotage activities. These arms and explosives were kept concealed in a jungle situated in between the residential quarters of the Principal of Mangaldoi High School and Mandal Officer of Mangaldoi town. On receipt of the information a search was conducted in the night of Sept. 24, 1982 and a tin slab fitted with detonator and fuse wire were recovered from inside an abandoned latrine in the said jungle. The detonators were obviously supplied by you to cause explosions and thereby disturb public order.

5. Several contentions were raised to substantiate the challenge to the order but those which are material for the purpose of disposal of this application are as follows :

(1) The facts of Ground No. 2 are subject matters of a criminal prosecution in G. R. Case No. 1428/82 of Mangaldoi Police Station in respect of which F. I. R. was lodged on 25-9-1982. The detention order is, therefore, vitiated as a result of non-application of mind for twin reasons, namely-

(a) neither the order nor the return reveal the awareness of the detaining authority either of the pendency of the criminal prosecutions or of the fact that the detenu was already in confinement on the date when the detention order was passed.

(b) the detaining authority has not applied its mind to the F. I. R. lodged which was a vital fact to be considered before detention order could be passed.

(2) Great emphasis is laid on the fact that the right of the detenu to have the detention revoked by the Central Govt. under Section 14 of the Act has been infringed as a result of the inaction of the Central Govt. in respect of the report made to it under Section 3(5) of the Act and also of the representation forwarded to it for its consideration by the State Govt.

6. We propose to deal first with the second contention because in our opinion, the continued detention of the detenu is violative of Article 22(5) of the Constitution as a result of breach of the provisions of Sections 3(5) and 13(1) of the Act in view of the law laid down in this respect by the Supreme Court. Sub-section (5) of Section 3 is in the following term:

When any order is made or approved by the State Govt. under this section, the State Govt. shall, within seven days, report the fact to the Central Govt. together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Govt., have a bearing on the necessity for the order. Sub-section (1) of Section 14 of the Act is as follows:

(1) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897(10 of 1897), a detention order may, at any time, be revoked or modified-

(a) notwithstanding that the order has been made by an officer mentioned in Sub-section (3) of Section 3, by the State Govt. to which that officer is subordinate or by the Central Govt.;

(b) notwithstanding that the order has been made by a State Govt., by the Central Govt.

7. Before dealing with this contention we consider it appropriate to dispose of the preliminary objection of Mr. Khader, the learned Counsel appearing for the State Govt. in this case. It is submitted by him that although the Central Govt. has been impleaded as a party it was necessary to have a copy of the application and the rule served on it and that service thereof on the Standing Counsel of the Central Govt. was not sufficient in law. Accordingly, he pleads with us that this contention should be disallowed as no decision on the point can be rendered in the absence of return or appearance in this case on behalf of the Central Govt. This objection was taken on 23-2-1983 and the learned Counsels appearing for the State Govt. were given time to ascertain from the Central Govt. the factual position in order to deal with the contention on merits. We were informed on 1-3-1983 by the learned Counsel that in spite of the fact that the matter was referred to the Central Govt. in specific terms no reply was received from that end on this particular point

8. In our opinion the preliminary objection is untenable in law in view of the provisions of Order 27, Rule 4 of the C. P. C. In this connection reference may also be made to the relevant rules of this Court. Chapter V-A of the Rule are applicable to writ petitions. It is true that these rules do not apply proprio vigore in the case of applications for Habeas Corpus as it appears from the heading of the Chapter but in the absence of any specific rule on any matter governing these writs we do not see any reason why such of these rules should not mutatis mutandis apply in case of petitions for Habeas Corpus also as may be fair and just for the expeditious disposal of such applications. Our attention has been drawn to the proviso to Rule 3 of the Chapter which is in the following terms :

Provided that service on. the Govt. Advocates and/or Public Prosecutors, Assam, Nagaland, Meghalaya, Manipur, Tripura and the Union Territories of Mizoram and Arunachal Pradesh and on the Standing Counsel of the Union of India or of any of its Departments will be sufficient service on the parties represented by them for the purpose of this Rule.

We hold that when a liberty of a person is in jeopardy such procedure will be evolved, adopted or accepted by the Court as will be conducive to the expeditious disposal of the matter and therefore Rule 3 of Chapter V-A is applicable in the case of Habeas Corpus petitions. In this case we accept the position on facts that after rule nisi was issued copies of the applications and notice of the rule were duly served on the Standing Counsel for the Central Govt. and therfore it should be deemed to be sufficient service in so far as the Central Govt. (respondent No, 2) is concerned. The rule in this case was made returnable within 2 weeks and it was the duty of the counsel who accepted the notice to communicate the order of the Court to the appropriate authority and to obtain instructions to enter appearance in the case. If the counsel or even the respondent chose to let their case go by default they have only to blame themselves. The Court shall presume that the respondent has no case to answer in the circumstances in a matter where the liberty of a citizen is concerned.

9. Coming to the merit of the contention we find that it has substantial force in view of the decisions of their Lordships of the Supreme Court to which we shall presently advert. There cannot be any doubt about the proposition, that the right of making representation against the order of detention guaranteed under Article 22(5) of the Constitution is directed generally to be availed against all authorities who have the power to take any action thereon and a consequent duty to consider the same and to take a decision thereon. It does not also appear to be doubtful that it is this right which has been given a meaning, content and purpose in Section 14 of the Act inasmuch as there is a remedy available to the detenu thereunder for the revocation of the detention either by the State, or by the Central, Govt. It has to be noted in this connection that a similar provision is also to be found in Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973(for short COFEPOSA). Indeed, the said Act also contains a provision in Section 3(2) thereof which is similar in terms to Section 3(5) of the National Security Act.

10. In Tarachand v. State of Rajasthan : 1980CriLJ1015 the import of Section 11(1) of the COFEPOSA was explained and it was held that the Central Govt. is duty bound to consider the representation made against detention, 'in order to exercise its discretion either in rejecting or accepting it', and further that if there is any inordinate delay in considering the same that would amount to a violation of Article 22(5) so as to render the detention unconstitutional and void. In that case the accepted position was, as in this case, that no order was passed on the representation and the plea of the respondent that the representation was not received by the Central Govt. was rejected. The factual position was similar in Sabir Ahmed v. Union of India : [1980]3SCR738 , inasmuch as it was found by the Court that the representation was not dealt by the Central Govt. under Section 11(COFEPOSA) till the date when the petition was taken up for hearing. It was held in that case that power under Section 11 was supervisory which could be exercised either on information received by the Central Govt. from its own source including report sent by the State Govt. under Section 3(2) or on the receipt of a petition or representation from the detenu for the revocation of the detention. It was further held that the discretion was coupled with the duty which was inherent in the very nature of the discretion and further that the decision either on the report received under Section 3 or the representation received from the detenu must be considered with reasonable expedition. In Lalubhai v. Union of India : 1981CriLJ288 the Court found that the Central Govt. did not file any counter affidavit in the case, as is the position in this case, to show that the representation made against the detention was considered and disposed of by it. It was held that there was a violation of the constitutional mandate and the detention was quashed. The Court speaking through Chandrachud, C. J. in Rattan Singh v. State of Punjab AIR 1982 SC 1 : 1982 Cri LJ 146, in dealing with the case in which the representation was not forwarded at all to the Central Govt. held that the power to revoke the detention under Section 11(1) of COFEPOSA ought to be construed and given a meaning which will make it 'real and effective'. It was further observed as follows (para 4 of AIR 1982 SC):

Some one tripped somewhere and the representation addressed to the Central Govt. was apparently never forwarded to it, with the inevitable result that the detenu has been unaccountably deprived of a valuable right to defend and assert his fundamental right to personal liberty... the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic setup, it is essential that at least those safeguards are not denied to the detenus.

11. The position at the end of the day in the present case is that there was in fact a report made to the Central Govt. under Section 3(5) of the Act and there was further a representation of the detenu duly forwarded to it but there is no counter affidavit in the case on behalf of the Central Govt. that the representation or the report were considered by it and a decision was taken on any of them. It is true that there is no appearance in this case on behalf of the Central Govt. but the fact is that an opportunity wag given on 23-2-1983 to the counsel appearing for the detaining authority to ascertain the factual position and on 1-3-1983 we were informed that although a reference in the matter was made to the Central Govt. the actual position could not be ascertained. We have no alternative than to hold that in this case no decision has been taken either on the report or on the representation, by the Central Govt. and as a result thereof the constitutional mandate of Article 22(5) has been violated which renders the continued detention of the detenu illegal inasmuch as the Central Govt. has failed to discharge its duty enjoined under Section 14 of the Act.

12. We may now deal with the first contention which challenges the subjective satisfaction of the detaining authority on the score of non application of mind. In our opinion the rule of awareness of a pending criminal prosecution has two aspects and both can be related to the jurisdictional requirement of satisfaction of the conditions precedent for the exercise of the power. Indeed, it is for this reason that the Courts insist on strict compliance with the requirements of this Rule. Awareness postulates a conscious act and this is exemplified in the ingredients of the Rule. Preventive detention is a preventive action and unless this requirement, which is implicit in the language of Section 3(2) of the Act, is satisfied the authority concerned shall not acquire the jurisdiction to exercise its power to pass the order. Firstly, he has to apply his mind to the fact as to whether the person against whom an order is contemplated is a man at large on that date or even if he is under some restraint for the time being he is likely to be freed therefrom so as to pose a possibility of indulging in prejudicial activities which the law empowers the detaining authority to prevent and that it is necessary for that purpose to effectively interdict him by detaining him under the Act. Secondly, the detaining authority must be satisfied that notwithstanding any criminal prosecution being pending against the person sought to be detained, whether he is for the time being under restraint or not, he has to be detained for effectively preventing him from indulging in prejudicial activities although those or similar activities may be the subject-matter of the criminal prosecution because it may not be expedient in the particular facts of the case to allow the ordinary law to take its own course. That the detaining authority has applied its mind to these matters must appear either on the face of the order or from the return riled so that the Court is satisfied that the jurisdictional requirement was duly fulfilled before the order was passed. It is settled law that the Court cannot substitute its own satisfaction for that of the subjective satisfaction of the detaining authority. Therefore, when the order is challenged on the score of non-application of mind the Court must insist on the fulfilment of the jurisdictional requirement being satisfactorily explained to ensure that the liberty of a person is not taken away without due compliance with the requirements of law. This is the mandate of Article 21.

13. We may now refer in this connection to the conspectus of decisions of their Lordships of the Supreme Court on this point which has impelled us to take the view indicated above. In Biru Mahato v. District Magistrate : 1982CriLJ2354 it was held as follows (para 8):

Conceding that in a given case a preventive detention order is required to be made even against a person who is already in jail or under detention and that the detaining authority shows its awareness of the fact situation and yet passed the detention order, the detention order must show on the face of it that the detaining authority was aware of the situation. Otherwise the detention order would suffer from vice of non-application of mind ...This would show that such a person is not a free person to indulge into a prejudicial activity which is required to be prevented by a detention order. And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged.

(Emphasis added)

14. In Shaik Nizamuddin v. State of West Bengal : 1975CriLJ12 the detenu was involved in a criminal prosecution but there was an order of discharge in bis favour in that case. The detention order was made on the assumption that he was about to be discharged but he was not arrested pursuant thereto for about two and half months. The Court held as follows (para 3):

It would be reasonable to assume that if the District Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to prevent from acting in a prejudicial manner he would have acted with greater promptitude in securing the arrest of the petitioner immediately after making of the order of detention, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities.

15. In Kanchanlal v. State of Gujarat : 1979CriLJ1306 , it was held (para 8):

The failure of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of the case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention (emphasis supplied by their Lord-ships) ...the detaining authority must satisfy the Court that that question too was borne in mind before the order of detention was made.

Indeed, what is the 'vital question' to be considered in such case was indicated by their Lordships themselves by supplying the emphasis but in Hemlata's case : 1982CriLJ150 the rationale of the rule was further explained in detail. However, the observations made in Ummu Saleema's case : [1981]3SCR647 are noteworthy. It was found by the Court as a fact that a 'reading of the entire counter-affidavit makes it clear that in the opinion of the detaining authority prosecution or no prosecution, the only effective way of preventing Jahaubar Moulana from indulging himself in objectionable activities was to detain him.

16. In support of the proposition that the rule of awareness is related to the jurisdictional requirement reference may be made to the decision of their Lordships in the cases of Vijay Kumar : [1982]3SCR522 ; Merugu Satyanaranana : 1982CriLJ2357 and Devilal Mahato : 1982CriLJ2363 but the following extract from the second case appositely illustrates the proposition:

In other words, unless the activity is interdicted by a preventive detention order the activity which is being indulged into is likely to be repeated. This is the postulate of the section. And this indubitably transpires from the language employed in Sub-section (2)... Now, if it is shown that the man sought to be prevented by preventive detention order is already effectively prevented, the power under Sub-section (2) of Section 3 of the Act if exercised would imply that one who is already prevented is sought to be further prevented which is not the mandate of the section ...(See : 1982CriLJ2357 ).

17. Mr. Khader appearing for the State Govt. has sought to make a distinction between cases where there was a mere possibility of a prosecution and those in which prosecution was actually pending. But in view of the case law discussed and the proposition enunciated earlier on the basis thereof we do not find this contention to be of any substance. He has referred to certain decisions in support of his contention which does not apparently support the proposition stated by him. Reliance is placed by him in the observation extracted above from the Kanchanlal's case 1979 Cri LJ 1306(SC) (supra) which, in our opinion, does not obviously support his contention that the rule of awareness was to be considered in a different manner in a case where there was a mere possibility, and not a pendency of criminal prosecution, as their Lordships themselves supplied the rationale of the ratio by emphasizing the word 'necessary' in that case which has to be read with the further observation that 'the detaining authority must satisfy the Court....' Reliance is placed on an extract from Hemlata's case 1982 Cri LJ 150 (SC) (supra) quoted in : AIR1982SC1165 , Saraswati v. State of Kerala, where a reference is made to the 'possibility of prosecution' to say that it was not an absolute bar to an order of preventive detention. Relying on this observation it was submitted that in this case 'possibility of prosecution' was not pleaded by the detenu in this case and therefore there was no onus on the detaining authority to satisfy the Court that it was not aware of such possibility but this contention is also apparently without substance as will be evident from the above extract from Kanchanlal's case.

18. It was further submitted by Mr. Khader that the ground No. 2 revealed on its fact that the detaining authority was aware of the possibility of prosecution. However, we find it difficult to accept this submission inasmuch as the gist of the ground is a mere reproduction of the allegations which were made in the FIR as per Annexure D of the petition and it does not satisfy the test of the Rule. We, therefore, referred to the return filed in the case to examine this point to further satisfy ourselves that the detaining authority also applied its mind to the fact that notwithstanding the facts stated in the ground it was necessary to detain the petitioner under the Act for the reason that it was not expedient in the facts of the case to allow the ordinary law to take its normal course. The relevant statements on this point from the counter may be extracted in this connection:.the grounds of detention in respect of the petitioner are self contained and as such the question of reference to the copy of the ejahar of G. R. Case No. 14-20/82 does not arise.

The order of detention under the National Security Act is independent of any criminal case in which the applicant might have been involved.

(Emphasis added)

There is not a whisper of awareness of the detaining authority of either the petitioner being in actual confinement on the date when the order was passed against him or of the 'compelling necessity' to detain him notwithstanding prosecution or investigation, of cases, pending against him. On the contrary a complete unawareness of the legal requirements is displayed. We, therefore, hold that the detention order has been passed in violation of the rule of awareness which has vitiated the subjective satisfaction of the detaining authority rendering the detention illegal.

19. The second limb of the second contention of the detenu may now be dealt with. It is based on the decision in Asha Devi's case AIR 1979 SC 447 : 1979 Cri LJ 203 in which it was held that the formation of subjective satisfaction in passing the detention order will be vitiated 'if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or other are ignored and/or not considered by the detaining authority before issuing detention order.' Their Lordships referred to the decision in Nizamuddin's case 1975 Cri LJ 12(SC) (supra) and also to certain observations made in Suresh Mahatoo : 1975CriLJ607 and observed as follows (para) 6 of AIR 1979 SC:

After all the detaining authority must exercise due care and caution and act fairly and justify in exercising the power of detention and if taking info account matters extraneous to the scope and purpose of the statute vitiate the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the detaining authority one way or the other would equally vitiate the subjective satisfaction....

(Emphasis added)

There is thus an implied duty not only on the detaining authority but on the machinery of detention to act fairly and justly and the agency responsible for supplying the materials to the detaining authority for exercising powers under Section 3(2) of the Act must behave in a responsible manner and bring all relevant facts which have a bearing on the issue to the notice of the detaining authority. It cannot pick and choose and hold back such facts or materials from the detaining authority which may affect the decision of the authority to the prejudice of the detenu. It is submitted that in this case the FIR did not implicate the detenu which was a vital fact and which, if considered, was likely to influence the mind of the detaining authority before he passed the order of detention against the detenu. We find that on the facts of this case there is much substance in this contention which should be upheld in view particularly of the statements made in the return which have been extracted above. We, therefore, find on this account also the subjective satisfaction of the detaining authority is tainted.

20. For the reasons stated above we find that the subjective satisfaction of the detaining authority is tainted by reason of non-application of mind. On the facts of this case we further find that violation of the rule of awareness has afflicted the jurisdiction of the authority to pass the order inasmuch as the relevant conditions for the exercise of the power under Section 3(2) of the Act have not been satisfied. We have already held that continued detention of the detenu is also illegal in view of the fact that the Central Govt. has not taken any decision on the representation forwarded to it and also on the report made to it, by the State Govt.

21. We, therefore, hold that the detention order passed in the case is invalid and is without jurisdiction and the same is accordingly quashed. The application is allowed and the rule is made absolute.

N.I. SINGH, J.

22. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //