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Ratneswar Das Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantRatneswar Das
RespondentState of Assam and ors.
Excerpt:
.....and narendra purshotam 1979crilj469 ,that the detenu had the right 'to be furnished with the grounds of detention along with the documen in thakor mulchandani 1982crilj1730 the court held that where a list of smuggled goods was recovered from a detenu and it was relied on in the grounds of detention it was a 'material documents' and the same therefore should have been supplied to the detenu pari passu the 'grounds' and failure to do so rendered the detention order void. in his return the detaining authority has averred that he was 'fully aware' of the detention order in connection with the criminal cases and that he had passed the detention order after perusing the records of those cases and being satisfied of the 'compelling' necessity to do so. it is desirable that the final..........of one iboyaima singh was furnished to the detenu which was held to be fatal because the relevant ground of detention carried the conclusion that the said iboyaima singh was subjected to 'extortion' by the detenu and therefore, though no specific reference was made to the said statement in the ground, it was held to be 'material1' and its non-supply was held violative of article 22(5). in icchu devi : [1981]1scr640 (supra) the court evaluated khudiram (supra) to measure the width and depth of the right under article 22(5). after extracting a passage therefrom, which was also referred in wasiuddin 1981 cri lj 1825 (supra), the court proceeded to observe that 'if there are any documents, statements or other materials relied upon in the grounds of detention,' they must also be communicated.....
Judgment:

T.N. Singh, J.

1. On 11.7.1983 the petitioner was arrested at his home at Kurua in connection inter alia with Mangaldoi P.S. Case Nos. 403 and 404 of 1983 and lodged in Jail After he was released on bail the Police rearrested him on 16.9.83 in front of the Jail gate. This was done pursuant to an order passed on 14.9.83 by the second respondent District Magistrate, Mangaldoi; under Section 3 of the National Security Act, 1980 for short the Act The grounds of detention were served on him on 18.9.83. Thereafter the petitioner came to this Court and obtained Rule nisi on 5.10.83. The detaining authority (Respondent No. 2) filed a return on 8.11.83 but on 7.11.83 the first respondent (State of Assam) also, through its Under Secretary in the Political 'A' Department filed an affidavit in opposition. After the third respondent (Union of India) filed its affidavit in opposition on 21.12.83, a counter affidavit, in reply to all three returns, was filed on behalf of the detenu on 30.1.1984.

2. The detention order shows that it was passed with a view to preventing the petitioner from acting in any manner prejudicial to maintenance of public order. It is bottomed on four grounds of which we extract below the last and the fourth ground which is the focal point of challenge in this petition.

On 11.7.83 the Police recovered several arms and explosives from the residence of Shri Ratneswar Das and also from Upper Kurua Club house to which Shri Ratneswar Das led the police party. This activity of collecting arms and explosives by Shri Ratneswar Das is highly prejudicial to public order.

Learned Counsel for the petitioner has raised several contentions but we propose to deal first with the challenge to the above ground which is based on the violation of constitutional mandate of Art 22(5).

3. At para 9 of the petition as grievance is made that the grounds were vague because the basic facts and material particulars 'including the documents and statements' were not furnished to the detenu. At para 15 it is averred that no explosive was recovered from his house and that he was not in any way connected, directly or indirectly, with the Upper Kurua Club. At para 28 it is submitted that 'the documents and statements in-built in the grounds not having been furnished to the petitioner along with the grounds of detention or at any time thereafter', the petitioner was deprived of the constitutional rights and safeguards guaranteed under Article 22(5). It is necessary, therefore, to refer to the return of the second respondent the detaining authority, to see how these facts and submissions are travessed. As to the para 9 statement the short reply is that the grounds were 'based on factual materials' and the order was issued only 'after due application of mind.' Similarly, para 15 statement is similarly shortly answered stating that ground No. 4 was 'based on factual material'. At para 18 of the return 'contentions made in paragraphs 25 to 30 are denied and are stated to be. 'untenable'. Affidavits filed on behalf of the first and third respondent could not obviously, and did not in fact add anything to what the detaining authority had to, and did say on this aspect But in the affidavit-in-reply filed on behalf of the petitioner a specific averment was made that the 'seizure lists' of alleged recovery of arms etc. from his residence and from the glob in question mentioned in ground No. 4 had not been furnished to him. Indeed, no document at all in connection with the connected criminal cases so it is averred supplied to him. On 4.2.84 an affidavit sworn by the Investigating Officer of Mangaldoi, P.S. Case Nos. 403/83/, 404/83, 199/83 and 84/83 was filed to establish the position that at the time of seizure the 'seizure lists' were supplied to the detenu which he had received on 11.7.83 and that the police did not forcibly take his signatures, when he was in police custody, on any blank paper, as averred in the affidavit-in-reply.

4. On these facts Mr. P.K. Goswami, learned Counsel for the petitioner, contended that the constitutional mandate of Article 22(5) was violated and continued detention of the petitioner was illegal. On the admitted facts, it was contended, the detaining authority has failed to satisfy the court that the basic documents which constitute essential parts of the b sic facts of Court ground No. 4 were furnished to the detenu pari passu the 'grounds'. Indeed, even the fact that the 'seizure lists' were supplied,. albeit earlier, was itself doubtful Learned Counsel cited before us a large number of decisions of the apex court and also two-decisions of this Court to submit, 'what was, according to learned Counsel the settled law. However, this position was contested by the learned Advocate General, Assam, Mr. S.N. Bhuyan who placed reliance on the decision reported in : 1981CriLJ1825 , Wasiuddin v. District Magistrate Aligarh. His contention is that the 'seizure lists' were supplied earlier to the detenu and need not be furnished once again. His further contention is that the 'seizure lists'' might have been only casually perused He also submitted that 'grounds' were prepared from dossier and that the records of the criminal cases were before the detaining authority at the time of preparing the grounds but he had no answer to the grievance made by the petitioner's counsel that the copy of the alleged statement of the detenu leading to the discovery of the seized arms etc (under Section 27 of the Evidence Act) was admittedly not supplied to the detenu.

5. The core question in the instant case, therefore, is whether and when a document can be said to be an integral part of a 'ground' and has to be supplied pari passu the 'grounds' to fulfil the constitutional mandate of Article 22. To answer this question we propose first to look at Wasiuddin (supra) because learned Advocate General's contention is that law on this point has been laid down therein decisively.

6. It is true that in Wasiuddin at para 19 of the report, to which we were referred by learned Advocate General the Court held that there was no need to supply copies of the first information reports referred to in the grounds of detention over again as the same had been supplied earlier to the detenu under Section 173(5) Cr.P.C. But the court, it is to be carefully noticed, did not reach the conclusion after finding that the said documents were Integra part of the grounds. Indeed, there is no finding to that effect On the other hand, the court took the view that the grievance on the score of non-supply thereof was an after-thought because it was linked with the objection that the detenu did not know Hindi and therefore, non-supply of documents in a language which he understood was, according to the detenu, violative of Article 22(5). This position is clearly borne out by the discussion in para 17 of the report In that case, therefore, their lordships were apparently not called upon to answer the question as to whether the said documents had to be supplied pari passu the grounds and failure to do so incurred violation of Article 22(5). On the other hand, a discussion, of the relevant legal position on this point is to be found spread out between paras 13 and 16. The court held, referring to Khudiram : [1975]2SCR832 and Narendra Purshotam : 1979CriLJ469 , that the detenu had the right 'to be furnished with the grounds of detention along with the documents relied on (emphasis added). Further on, referring to a plethora of other decisions, including those rendered in Icchu Devi : [1981]1SCR640 , Shalini Soni : 1980CriLJ1487 and Umtnusaleema : [1981]3SCR647 , their lordships reiterated that in the said decisions it was recognized that 'right of making an effective representation carried with it the right to copies of documents relied upon in the grounds of detention'. Their lordships further observed that 'factual' contents of the grounds of detention on which the subjective satisfaction of the detaining authority was based have to be disclosed to the detenu 'though it was' not necessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of events and which are not relied upon the detaining authority in making the order of detention.' (Emphasis added)

7. We may now refer to some of the recent decisions of the apex court on which reliance has been placed by Mr. Goswami. In Thakor Mulchandani : 1982CriLJ1730 the court held that where a list of smuggled goods was recovered from a detenu and it was relied on in the grounds of detention it was a 'material documents' and the same therefore should have been supplied to the detenu pari passu the 'grounds' and failure to do so rendered the detention order void. Reliance was also placed on' Yumnam Mangibabu : 1983CriLJ445 . What document could be considered 'material' to form part of a 'ground' was indicated in that case. Such a document as was likely to influence the mind of the detaining authority in reaching requisite subjective satisfaction ought to be considered as 'material' and not 'source information'. No copy of the statement of one Iboyaima Singh was furnished to the detenu which was held to be fatal because the relevant ground of detention carried the conclusion that the said Iboyaima Singh was subjected to 'extortion' by the detenu and therefore, though no specific reference was made to the said statement in the ground, it was held to be 'material1' and its non-supply was held violative of Article 22(5). In Icchu Devi : [1981]1SCR640 (supra) the court evaluated Khudiram (supra) to measure the width and depth of the right under Article 22(5). After extracting a passage therefrom, which was also referred in Wasiuddin 1981 Cri LJ 1825 (supra), the court proceeded to observe that 'if there are any documents, statements or other materials relied upon in the grounds of detention,' they must also be communicated to the detenu 'because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them'. This decision was referred to in Shalini Soni 1980 Cri LJ 487 (supra) and the views expressed therein were but tressed. The court reiterated that 'grounds' mentioned in Article 22(5) do not mean 'mere factual inferences but mean factual inferences plus factual material which led to such factual inferences'. This was pithily put as 'grounds must be self-sufficient and self explanatory'. The court further observed that what was stated in Icchu Devi (supra) was a 'further development and elaboration' of what was said earlier in Khudiram 1975 Cri LJ 446 (supra). Reliance was also placed by Mr. Goswami on an unreported decision of this Court in Lalit Rajkhowa v. State of Assam (Civil Rule No. HC 133/83 decided on 2.5.83) Since reported in 1984 Cri LJ 1869 wherein one of us (Lahiri, J), speaking for the court, also indicated what should be considered as 'the material document' to be supplied to the detenu pari passu 'grounds'. In that case grievance was made about non-supply of the copy of a local daily (Assam Tribune) of a particular date in which there was a reference to a certain 'resolution'. The court held that the detaining authority had taken into consideration the report about the resolution published in the said paper and as such it became a ' material document' and therefore it had to be supplied pari passu the grounds of detention, though, indeed, no reference at all to the said paper was made in the relevant 'ground'.

8. We have no doubt, therefore, about the settled law that grievance can be made about non-supply of a document pari passu the ground in those cases in which the document is connected or concerned with a fact which can be regarded as a basic fact of the 'ground.' Indeed, unless there is reference to factual inference in the 'ground' based on a document grievance cannot be made for non-supply thereof. This position was made clear by the apex court in Ummu Saleema 1981 Cri LJ 889 (supra) wherein it was held that 'it is unnecessary to furnish copies of documents to which a casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention'. Whether or not, therefore, a reference is made to a document in the 'ground' is immaterial for this purpose. In those cases in which no factual inference based on a document is stated in a 'ground' nonsupply of a document even if referred to in the ground does not come within the purview of the constitutional imperative. The very fact that 'a casual or passing reference' is made to a document and that too 'in the course of narration of events' will show that it is made only to state the connected events merely to complete the sequence. It serves that purpose only it does not form an integral part of the 'ground'. Therefore, even if a document is referred to in any of the 'grounds' and it was so done to achieve the purpose stated, then non-supply thereof would not attract Article 22(5). On the other hand, even if no reference is made to a document in a 'ground' and yet a factual inference is based on the document and such inference was a basic fact of the ground it becomes an integral part of the ground and non-supply of such document would invariably fall foul of Article 22(5). Indeed, the expression underlined above, which is extracted from Wasiuddin (supra) from para 15 of the report projects this legal position. Further, it also bears emphasis that in all decisions the apex court has invariably and constantly stressed the words 'relied upon' in relation to such a document to indicate the position that factual inference must be such as may be necessary for reaching at the requisite subjective satisfaction, or, in other words, acquire the complexion of a basic fact to form an integral part of the 'ground'. In such cases, therefore, the requirement of supply parii passu the 'grounds' of such documents invariably attracts Article 22.

9. In the instant case, on a reading of ground No. 4, it becomes apparent that for reaching a reasonable conclusion about the fact of seizure of arms by the Police in order to forming its subjective satisfaction in regard to the said ground, consideration of, or reliance on, 'seizure lists', which had to be invariably and indispensably prefaxed to fulfill the statutory requirement of Section 100(5) Cr.P.C. and also the statement of the detenu which is required to be recorded to invoke Section 27 of the Evidence Act was indispensable as the factum of seizure of the arms etc. was the basic fact of the ground. Thus, being connected inextricably with the factum of seizure these documents acquired the complexion of the basic fact of the ground and formed an integral part, thereof. If the documents were not relied upon in fact in forming the requisite subjective satisfaction in regard to this ground the detaining authority could say so but it said nothing in the instant case. Reliance, unfortunately, has been placed on an. irrelevant fact sworn by an investigating officer who stated in his affidavit merely that the 'seizure lists' were supplied, indeed, not pari passu the 'grounds', but earlier This cannot be accepted as a valid substitute for, or satisfactory evidence of, fulfilment of the mandate of Article 22(5). Indeed, in Merugu Satyanarayana : 1982CriLJ2357 the court held the District Magistrate 'completely abdicating his responsibilities' because reliance was placed in that case on an affidavit filed by a police officer who was the investigating officer in some criminal cases implicating the detenu. Indeed, the same position obtains in the instant case also.

10-11. In this view of the matter we have no hesitation to hold that the continued detention of the petitioner is illegal as non-supply to him of the 'seizure lists' and the statement of the petitioner leading to discovery under Section 27 of the Evidence Act pari passu the grounds of detention is an admitted and established fact in this case and violation of the constitutional mandate of Article 22(5) is writ large on the face of the impugned order.

12. To be fair, however, to Mr. Goswami, we feel it necessary to observe further that besides some other challenges he also took considerable pains to impugn the detention order on the score of violation of the rule of awareness but in view of the detaining authorities specific averment in the return we thought it would be futile to allow him to pursue the challenge. In his return the detaining authority has averred that he was 'fully aware' of the detention order in connection with the criminal cases and that he had passed the detention order after perusing the records of those cases and being satisfied of the 'compelling' necessity to do so.

13. On the question of consideration of the representation of the detenu by the State Government and of the 'report' by the Central Govt, from the returns filed in this behalf, we tee! inclined to hold that no grievance on that score could be validly made though the point was urged at some length by Mr. Goswami.

14. In the result the application is allowed for the foregoing reasons which we had reserved while quashing the detention and directing the petitioner to be set at liberty by our short order passed on 17.2.84 at the conclusion of the hearing as one of us (Dr. Singh, J) had to leave for Imphal to hold court there.

15. This reasoned judgment could not be delivered earlier as we could not reassemble and deliberate. Indeed, one of us (Lahiri, J) had to be away for some time holding court in Shillong.

K. Lahtri, Acting C.J.

16. In the instant case the final order was pronounced on 17.2.84 without a reasoned judgment to which I was a party and I own the entire responsibility. I had a premonition that the final order should not be passed until a reasoned judgment was ready for pronouncement and, accordingly, continued to adopt the procedure. However, in due course I noticed that the practice of the court was changed I also noticed that many of the High Courts were pronouncing final order pending delivery of a reasoned order. Situated thus, notwithstanding my doubts, I became a party to the final order reserving the pronouncement of a reasoned judgment I was wrong and I realised it on perusal of a recent decision of the Supreme Court in State of Punjab v. Jagdev Singh 1984 Cri LJ 177 February Issue : : 1984CriLJ177 wherein their Lordships have expressed:

It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement

17. It is thus seen that the practice of delivery of the final order without a reasoned judgment has been deprecated by their Lordships, clearly explaining the difficulties of the Supreme Court and the High Courts, when such orders are rendered This is why I said that I had committed an error in following an incorrect procedure of announcing the final order without a reasoned judgment However, I draw strength from the observations of the Supreme Court in Umed v. Raj Singh : [1975]1SCR918 which run thus:

To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this we derive contort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter. A Judge ought to be wise enough to know that he is fallible and therefore ever ready to learn: great and honest enough to discard all mere pride of opinion, and follow truth wherever it may lead: and courageous enough to acknowledge his errors....

18. I would add that State of Punjab v. Jagdev Singh (supra) has shown new lights, which perhaps I could have utilised with profit, if instead of delivering the final order I would have reserved the reasoned judgment. I add this far and no further.


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