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Lachit Bordoloi Vs. State of Assam and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantLachit Bordoloi
RespondentState of Assam and anr.
Excerpt:
.....two of the grounds it was stated that the petitioner issued some 'press statements'.in one of the grounds the press statement was for extending full support to the proposed call of twenty four hour assam bandh on 27-10-1980 given by the aasu/aagsp and calling upon the employees to make the bandh a success. on this factual situation it was held by the division bench that the 'press statements' ingrained therein were integral part of the grounds contemplated under article 22(5) as well as under section 8 of the national security ordinance, 1980. it was held that non-furnishing of the aforesaid statements deprived the detenu's constitutional right under article 22(5) to make an effective representation against the order of detention. 7. in this case the non-communication of the statement..........it is contended that the alleged statement must have necessarily weighed with the mind of the detaining authority in the formation of its satisfaction in passing the detention order. mr ghoudhury has drawn our attention to para 9 of the petition where it has been stated that it is incorrect that the petitioner admitted his guilt in the aforesaid statement, it is stated that if there is any such statement the same being part of the ground 4. it ought to have been forwarded to the petitioner as required by law and as it is not go communicated, the said ground is not full and complete and as such prejudicially affected the petitioner. it is submitted that the action of the authority in not furnishing the statement purported to have been made by the petitioner before the police has.....
Judgment:

Pathak, Ag. C.J.

1. This is petition under Article 226 of the Constitution challenging the order dated 2nd July, 1981, passed by the District Magistrate, Nowgong, in the purported exercise of power Under Section 3 of the National Security Act, (for brief 'the Act', by which the petitioner has been detained with a view to preventing him to act in any manner prejudicial to the security of the State and in any manner prejudicial to the maintenance of public order.

2. The grounds of detention were served on the petitioner against which he made representation. The detention order has also been confirmed by the competent authority.

The grounds of detention are five in number, annexed to the petition as Annexure II, They read as follows:

Grounds of detention of Shri Lachit Bordoloi.

1. You planted an explosive at the bus stand of Dhing Syndicate at Nowgong on 20-12-1980 at about 8.15 P. M.

2. You planted borribs in the residence of Shri Bharat Bhuyan and Shri Lakhi Hazarika, president and Secretary of District Congress Committee (I) at Nowgong on 22-12-1980.

3. On 10-12-1981 at 8.30 p. m. you along with Shri Dulu Hazarika and 3/4 others assaulted Shri Bhadreswar Hazarika with gun at Raidingia in his shop. You were arrested by the police in that connection and released on bail.

4. You along with Kandarpa Saikia, Digen Bora, Putul Teran. Kukul Bairagl, Debajjt Bordoloi, Jyoti Gayan, Mukul Bora and few others blasted the oil pipe line at Puranigudam on 13-2-1981 with high power explosives. You have admitted this in your statement before the police.

5. On 19-6-1981 at about 6 p. m. you along with Babul Bora, Dilip Bora, Prafulla Bora, Gubindra Hazarika, Siva Bora, Biren Bora, Suren Bora and another 16/17 persons attacked Nalia Saikia. Priyaram Saikia and Bujin Saikia at Baidingia with deadly weapons. Your further shot Nalia Saikia and his party with a pistol causing bullet in jury to NaUa Saikia. You were arrested by the police in this connection.

Sd/- S. Kabilan.

District Magistrate,

Nowgong.

3. Mr. J. M. Choudhury, the learned Counsel for the petitioner does not make any submission as to the nature of grounds for which the petitioner has been detained. His challenge centres round ground No, 4. It is contended that the petitioner's fundamental right guaranteed under Article 22(5) of the Constitution has been infringed in not furnishing certain statement purported to have been made by the petitioner before the police as ingrained in the aforesaid ground. It is submitted that thus the petitioner has been deprived of even the minimal procedural safeguard provided by the Act for making any effective and purposeful representation. It is contended that the alleged statement must have necessarily weighed with the mind of the detaining authority in the formation of its satisfaction in passing the detention order. Mr Ghoudhury has drawn our attention to para 9 of the petition where it has been stated that it is incorrect that the petitioner admitted his guilt in the aforesaid statement, it is stated that if there is any such statement the same being part of the ground 4. it ought to have been forwarded to the petitioner as required by law and as it is not go communicated, the said ground is not full and complete and as such prejudicially affected the petitioner. It is submitted that the action of the authority in not furnishing the statement purported to have been made by the petitioner before the Police has clearly deprived the petitioner to make full and effective representation before the authority and hence it was violative of Article 22(5) of the Constitution.

We have gone through the affidavit filed by the detaining authority.

4. Mr. P. Prosad, the learned Counsel appearing on behalf of the State submits that the aforesaid statement was not communicated to the petitioner on the ground of public interest and thereby such non-communication is protected under Article 22(6) of the Constitution. In the return filed by the detaining authority he does not say that the alleged statement was withheld in public interest, It is the detaining authority who is to justify the detention order. Mr. J. M. Choudhury, the learned Counsel for the petitioner draws our attention to para 4 of the affidavit filed by the detaining authority. In para 4, the District Magistrate has categorically stated that 'the statement so made by the petitioner and his associates could not be furnished due to the interest of investigation of Police cases registered against them. 'Not a single averment has been made that the non-communication of the statement purported to have been made by he petitioner before the police was due to any public interest involved. As a matter of fact we enquired of Mr. Prosad. what was the public interest involved in not communicating the alleged statement made by the petitioner. He was not in a position to show in what way the public interest would have affected by furnishing the statement purported to have been made by the petitioner before the police, in fact what the detaining authority has said is that non-communication was due to the interest of investigation of police cases registered against them. He does not say a word that the non-communication of the aforesaid statement was due to public interest, if the petitioner is arrested for any specific offence for which investigation is in progress, such investigation must proceed according to appropriate law and for that purpose detention under the Act is not envisaged.

5. It is well settled that the copies of documents and material to which reference is made in the grounds must be supplied to the detenu. The documents and material relied upon in the grounds which had to be taken into consideration by the detaining authority in making the order of detention must be supplied to 'the detenu pari passu'; the ground of detention as they form an integral part of the ground. In this case by ground 4 the detaining authority relied on the statement purported to have been made by the petitioner before the Police, That statement was not supplied to the petitioner. It is submitted by the learned Counsel that non-supply of the aforesaid statement deprived the petitioner to make any effective and meaningful representation and thereby deprives the fundamental right of the petitioner envisaged under Article 22(5) of the Constitution.

6. The learned Counsel in support of his submission refers to a Division Bench decision of this Court in Kamal Nayak v. District Magistrate, Kamrup (Civil Rule No. 49(HC) of 1981) decided on 19-3-1981:1981 Cri LJ NOC 175, in which one of us was a party. In that case in two of the grounds it was stated that the petitioner issued some 'Press statements'. In one of the grounds the Press statement was for extending full support to the proposed call of twenty four hour Assam Bandh on 27-10-1980 given by the AASU/AAGSP and calling upon the employees to make the Bandh a success. In the other ground it was stated that the petitioner along with others issued another Press statement demanding fulfilment of certain demands including immediate removal of the Principal, Adviser to the Governor and those officers belonging to I. A. S. and I. P.S. who were associating with him. On this factual situation it was held by the Division Bench that the 'Press statements' ingrained therein were integral part of the grounds contemplated under Article 22(5) as well as Under Section 8 of the National Security Ordinance, 1980. It was held that non-furnishing of the aforesaid statements deprived the detenu's constitutional right under Article 22(5) to make an effective representation against the order of detention. On the authority of the decision reported in ( : 1981CriLJ353 , Kamala Kaniayalal Khuslani, it was held that the procedure adopted by the detaining authority in not supplying the press statements was a procedure which was not just, fair and reasonable and as such the impugned order of detention was held to be invalid.

Recently in Abdul Aziz v. Delhi Administration. : 1981CriLJ1011 , it is held by the Supreme Court in no uncertain term that in cases of detention under the National Security Act it is necessary to supply documents on which the orders of detention are based. There it was the admitted fact that a copy of the statement of Md. Yamin on which the grounds of detention order were based was not supplied to the detenu. On these facts the order of detention was set aside.

7. In this case the non-communication of the statement purported to have been made by the, petitioner clearly infringes the fundamental right of the petitionerf guaranteed under Article 22(5) of the I Constitution.

8. In the result the detention order is not sustainable in law and the same is set aside. The petitioner is directed to be released forthwith, unless he is wanted in connection with any other case.

The petition is allowed and the Rule is made absolute.


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