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Dhrubajyoti Bhuyan Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantDhrubajyoti Bhuyan
RespondentUnion of India (Uoi) and ors.
Prior history
K. Lahiri, J.
1. The focal points of attack, in this habeas corpus application, centre around Ground Nos. 4 and 5, which we extract hereinbelow:
4. The subject and his aforesaid associate hurled one of said explosive devices on 19-5-83 at about 7 P.M. on A.T. Road near truck stand at Jorhat town on the car of Dr. Tusheswar Dutta of Jorhat town while he was returning home after marketing, for the reason that Dr. Tusheswar Dutta a renowned physician of Jorhat town was advocating for holding of e
Excerpt:
- - failure to furnish basic facts and/or materials is to deter a detenu to make an effective representation or amounts to creative hurdle in the way of exercising his constitutional right. it follows, therefore, that non-furnishing of the basic facts and materials amount to non-furnishing of the ground, it amounts to failure to furnish 'ground' as contemplated under article 22(5) of the constitution as well, secondly, the effect of failure to furnish grounds amounts to preventing the detenu from exercising his constitutional right of making representation. failure to furnish the ground and/or the basic and materials on the basis of which a ground is made by the detaining authority is sufficient to declare an order of detention as invalid......of which a ground is prepared, amounts to supplying 'a half-baked ground' or 'a so-called ground'. furnishing a so-called ground cannot be equated with furnishing 'grounds', within the connotation of the term 'ground', as contemplated in article 22(5) of the constitution. the essential requirement of furnishing the basic facts and materials is to enable the detenu to make an effective representation. failure to furnish basic facts and/or materials is to deter a detenu to make an effective representation or amounts to creative hurdle in the way of exercising his constitutional right. it follows, therefore, that non-furnishing of the basic facts and materials amount to non-furnishing of the ground, it amounts to failure to furnish 'ground' as contemplated under article 22(5) of.....
Judgment:

K. Lahiri, J.

1. The focal points of attack, in this habeas corpus application, centre around Ground Nos. 4 and 5, which we extract hereinbelow:

4. The subject and his aforesaid associate hurled one of said explosive devices on 19-5-83 at about 7 P.M. on A.T. Road near truck stand at Jorhat town on the car of Dr. Tusheswar Dutta of Jorhat town while he was returning home after marketing, for the reason that Dr. Tusheswar Dutta a renowned physician of Jorhat town was advocating for holding of election and he is a treasurer of Jorhat D.C.I. This refers to Jorhat P. S. Case No. 449/83 Under Section 4 of Explosive Substances Act.

5. On 8-8-83 the subject and his aforesaid associate planted explosive devices on a seat wrapped up in a newspaper just before the first show of the Cinema Hall was over. It was detected at about 8.05 P.M. and it was brought out but the explosive devices exploded immediately after that outside the hall and as a result 2 persons sustained injuries. The motive of this act was to kill cinema goers or to terrorise them for witnessing Cinema in the said hall, in spite of social boycott call given by AASU against the proprietor of the Cinema hall in May, 1983 for his participation in last general election. This refers to Jorhat P.S. Case No. 449/83 Under Section 4 of the Explosive Substances Act.

2. It has been contended by Mrs. B. Dutta, Amicus Curiae for the petitioner that Ground No. 4 was non-existent at all relevant times, as Annexure-4 the sole basic material furnished to the petitioner in support of 'the ground' does not implicate the detenu directly, indirectly or in any form whatsoever. Insofar as Ground No. 5 is concerned, it has been urged that the ground suffers from vagueness, non-furnishing of the basic facts and materials, non-application of the mind of the detaining authority and the ground was non-existent. We had the advantage of hearing learned Advocate General, Assam on behalf of the State and Mr. S.N. Chetia, learned Addl. Standing Counsel, Central Government.

3. Let us turn to Ground No. 4. It will be seen that grave and serious allegations have been pictured therein against the detenu as the author of throwing of explosive on 19-5-83 at about 7 p. m. on A. T. Road at Jorhat town or he was at least an associate. Along with the grounds the document marked Annexure 4 was furnished to the detenu, which we extract -

Annexure -4. G. R. No. 390/83.

To, The Officer-in-charge, Jorhat Police Station.

Ref: Jorhat P. S. G. D. N. No. 610 dt. 19-5-83.

Sir,

I have the honour to report that during the course of enquiry into the above noted G. D. entry of Jorhat P. S. it is found that 1986 Cri. L. J./8 today on 19-5-83 at about 7 p. m. some unknown persons or persons from an Ambassador car threw a hand made bomb on A. T. Road near New market, Jorhat town and the car fled away towards Sibsagar side. The bomb was blasted at the spot.

I therefore request you kindly register a case under Section 4 of Explosive Substances Act.

Y. F.

Sd/- A.K. Dasgupta 19-5-83.

Received and registered Jorhat P. S. Case No. 449/83 dt. 19-5-83 under Section 4 of Explosive Substances Act.

Sd/- A.K. Dasgupta

Insp. Officer-in-charge,

Jorhat P. S. 19-5-83.

4. It would thus appear that this was the material, which was before the detaining authority when he drewup Ground No. 4, as the existence of no other document or material could be placed before us which was germane for drawal of the said ground by the detaining authority. The aforesaid letter of the 'Insp-in-charge' of Jorhat Police Station shows this far and no further that 'some unknown person or persons threw a hand made bomb and fled away from the place.' The material does not in any way connect the detenu in any form whatsoever, either as an author of hurling of bomb or as an associate of the bomb thrower. • We are of the opinon that no reasonable person, on the basis of the material document extracted above, could have drawn reasonable conclusion that the detenu was involved in the incident as alleged in Ground No. 4. It follows, therefore, that there was no existing words, the ground is non-existent insofar as the complicity of the detenu is concerned. The material a marked Annexure -4 which was relied upon by the detaining authority and on the basis of which the ground was prepared do not spell out the existence of the allegations against the detenu as contained in ground No. 4. On this score alone the order of detention is liable to be set aside. However, we pass it over as we find the attack on Ground No. 5 is much more severe, fatal and lethal.

5. It is no longer res integra that the power of detention under the National Security Act is subject to the limitation imposed by and under Article 22(5) of the Constitution, read with the other safeguards spelt out by their Lordships in the Supreme Court. It has not been disputed, as it cannot be disputed, that the obligation of the detaining authority to furnish the basic facts and materials is to enable the detenu to make 'an effective representation' at the earliest opportunity. Conversely it is a right of the detenu to be furnished with the basic facts and materials. The right of the detenu and the obligation of the detaining authority indeed flow from the National Security Act, but in the ultimate analysis we find that these rights and obligations have been created by the Constitution, which breaths life into the Parliamentary Act, namely, the National Security Act. It is Article 22(5) of the Constitution which enjoins duties on the authorities making an order of detention to afford the detenu the earliest opportunity of making representation, against the order of detention. The basic facts and materials constitute a ground. However, it may contain inference drawn by the detaining authority from the basic facts and materials. A ground furnished without basic facts and/or materials, therefore, does not amount to furnishing a ground. The basic facts and/or, materials being sine qua non of ground, nonfurnishing of either, the basic fact or material on the foundation of which a ground is prepared, amounts to supplying 'a half-baked ground' or 'a so-called ground'. Furnishing a so-called ground cannot be equated with furnishing 'grounds', within the connotation of the term 'ground', as contemplated in Article 22(5) of the Constitution. The essential requirement of furnishing the basic facts and materials is to enable the detenu to make an effective representation. Failure to furnish basic facts and/or materials is to deter a detenu to make an effective representation or amounts to creative hurdle in the way of exercising his constitutional right. It follows, therefore, that non-furnishing of the basic facts and materials amount to non-furnishing of the ground, it amounts to failure to furnish 'ground' as contemplated under Article 22(5) of the Constitution as well, secondly, the effect of failure to furnish grounds amounts to preventing the detenu from exercising his constitutional right of making representation. Failure to furnish the ground and/or the basic and materials on the basis of which a ground is made by the detaining authority is sufficient to declare an order of detention as invalid.

6. Is Ground No. 5 vague? There is a total omission of furnishing the name of 'the cinema hall'. Is it possible for a person languishing in jail to make a probing enquiry to find out the cinema hall? Indeed, the name of the cinema hall was a 'basic fact' which should have been disclosed by the detaining authority. The detenu was kept in dark as to the actual place where the incident had taken place. It was not disclosed. How could he submit his say in that regard except making a vague reply and a vague reply is surely not an effective representation. But the causation of the vague reply is the effect of furnishing vague ground and/or vague basic fact. In our opinion non-furnishing of the material fact as to the exact place where the incident had taken place amounted to non-furnishing of the ground or the basic fact on which the ground was drawn up. It appears from the affidavit of the detaining authority that the name of the cinema hall was 'Shankar Cinema Hall'. In his affidavit the detaining authority claims that the said incident refers to the happening at 'Shankar Cinema Hall.' But this, 'basic fact' which was known to the detaining authority was not furnished to the detenu. This vital omission of non-furnishing the basic fact amounted to non-furnishing of the ground itself which prevented the detenu from making any effective representation. The second crucial and vital omission was the name of the proprietor of the cinema hall. The importance of the name of the proprietor assumed as it was stated in the ground that the motive for the attack was to take revenge on the proprietor for his alleged participation in the last general election. The name of the proprietor so withheld, if furnished could have enabled the detenu to show that the person was not the object of such attack or he did do nothing as alleged in ground for which anybody could have taken any revenge on the ground set forth. Furnishing of the name of the proprietor of the cinema hall was essential. We, therefore, hold that non-supply of the name of the proprietor of the cinema hall on the facts and circumstances of the case, amounted to holding back a vital basic fact which prevented the detenu from making an effective representation.

7. The next salvo is far more lethal. It has been contended by learned Counsel for the detenu that he was misled by the detaining authority in giving a wrong case number and as such his constitutional right of making representation was taken away. The detaining authority fairly conceded that there was an error in giving the case number referred in Ground No. 5 as Jorhat P. S. Case No. 449/83. It was a comedy of error for the detaining authority but it was a costly tragedy of error for the detenu. Admittedly, the aforesaid case has had no conncetion with the statement of allegation made in Ground No. 5. What follows? The detaining authority furnished to the petitioner the reference of a case which had nothing to do with the allegations contained in Ground No. 5. In our opinion, it amounted to casualness-cum-non-application of the mind of the detaining authority to reach the vital subjective satisfaction. When the detaining authority admits that wrong data has been furnished to the detenu, it must be held that the detenu was prevented from making an effective representation.

8. Last but not the least, the question is whether there was at all any material to prop up or support ground No. 5 before the detaining authority. The original foundation of ground No. 5 was Jorhat P. S. Case No. 449/83, that is Annexure -4. However, now it is found that it had nothing to do with ground No. 5. No material or document could be placed before us by learned Counsel for the respondents to show that there was any other material in support of Ground No. 5. Of course there is the affidavit of the detaining authority wherein he states that mistakenly he had furnished Jorhat P. S. Case No. 449/83 but he received information regarding the allegation contained in Ground No. 5 from 'one police report'. We record that we are delivering the judgment in presence of learned Advocate General. We afforded time to the State to produce records. However, no record could be produced by the State to show the existence of any material and/or the said 'police report', supporting the allegations contained in Ground No. 5 was at the disposal of the detaining authority on the date of drawal of the ground. Under the circumstances, we are constrained to hold that the ground was non-existent.

9. It follows, therefore, that Ground No..5 is as vague as anything and it is misleading. Casualness and non-application of the mind of the detaining authority is writ large. The ground was non-existent.

10. These are the reasons for which we accepted the writ petition and declared the order of continued detention of the detenu as invalid and directed that he should be released, unless wanted in connection with any other case. The reason for delivery of the oral judgment is that one of us (T.N. Singh, J.) is leaving for Imphal and will return after more than 2 weeks.


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