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R.K. Robindra Singh Vs. District Magistrate (Central Dist.) and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantR.K. Robindra Singh
RespondentDistrict Magistrate (Central Dist.) and ors.
Excerpt:
- - hence the undersigned is compelled to order your detention under section 3(2) of the national security act, 1980. i am satisfied that with a view to prevent you from acting in any manner prejudicial to the maintenance of public order and security of the state, i have made this detention order. accordingly, the most important grounds fail and along with them falls the order of detention. ' 6. for the foregoing reasons we are clearly of the view that in the facts and circumstances of the case, the constitutional safeguards alluded were clearly breached by the detaining authority and, therefore, the impugned order deserves to be quashed, which we hereby do......and affirmative rights have been given to the detenu under the constitution and 'the act' and the detaining authority cannot snatch away the liberty of a citizen without faithfully and deligently complying with the said mandatory provisions of the law. one of the mandates, which the detaining authority is bound to comply with is to make a clear revelation of all the basic facts and other materials to the detenu which were taken into consideration by the detaining authority in making the order of detention. the basic facts must be in existence at the time of recording the order of detention. the documents and materials on the basis of which the grounds were settled or drawn up by the detaining authority or relied upon in the grounds which had had to be taken into consideration by the.....
Judgment:

K. Lahiri, J.

1. This is a Habeas Corpus application by the petitioner who is in detention since 2-2-1982. Of course, he was kept in prison as an under-trial prisoner in connection with criminal cases filed consecutively against him, on the same allegations which form the backbone of the grounds of detention of the petitioner. He was apprehended by the Army on 2-2-1982, allegedly while a combing up operation was going on. An Ezahar was lodged on 27-2-1982 against the petitioner. On 27-2-1982, the petitioner was handed over to the civil authorities by the Army, wherein allegations were made that the petitioner was a member of an outlawed organisation styled as 'P.L.A.' The police filed a case alleging that he was a member of the outlawed organisation, styled as Peoples Liberation Army, for short 'PLA' and that on 21-9-1980 he took part in the attack of the SSB camp at Mongsangei, which assault was organised at the instance of the PLA members; there was a number of casualties. The case went on merrily. The accused pined inside the jail. However, according to the counsel for the petitioner, when there was no material found against the detenu and he was about to be enlarged on bail then another FIR was lodged against him on the same allegations which are the basis of the present grounds of detention and he continued in prison as a U.T.P. Thereafter, the petitioner was prosecuted, detained and kept in custody in connection with other criminal cases, the allegations were also substantially the same with those contained in the grounds of detention. According to the petitioner, no charge-sheet could be submitted against him in any of these cases, as there was none. Then as late as on 2-9-1982 the present order of detention was served on him under Section 3(2) of the National Security Act, 1980. The order of detention was prepared on 2-9-1982, On 5-9-1982 he was served with the grounds of detention.

2. The learned Counsel for the petitioner has made various submissions showing infirmity of the order of detention. However, in the instant case, we propose to consider only one ground, namely, whether the petitioner's statutory rights under Section 8 of 'the Act' read with Article 22(5) of the Constitution were violated inasmuch as the basic facts and materials of the grounds were not furnished at all to the detenu.

3. The detention under the Act takes away the most cherished right of a human-being, namely, his liberty. Human life without liberty is no life. Under 'the Act', the said liberty has been permitted to be taken away without any trial, but at the same time certain positive and affirmative rights have been given to the detenu under the Constitution and 'the Act' and the detaining authority cannot snatch away the liberty of a citizen without faithfully and deligently complying with the said mandatory provisions of the law. One of the mandates, which the detaining authority is bound to comply with is to make a clear revelation of all the basic facts and other materials to the detenu which were taken into consideration by the detaining authority in making the order of detention. The basic facts must be in existence at the time of recording the order of detention. The documents and materials on the basis of which the grounds were settled or drawn up by the detaining authority or relied upon in the grounds which had 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 grounds of detention as they form an integral part of the grounds. We rely in this regard on Ramchandra A. Kamat v. Union of India : [1980]2SCR1072 ; Hansmukh v. State of Gujarat : 1980CriLJ1286 ; Icchu Devi v. Union of India : [1981]1SCR640 ; Prittam Nath Hoon v. Union of India : 1980CriLJ1340 , Mangalbhai Motiram Patel v. State of Maharastra : 1981CriLJ331 , Smt. Shalini Soni v. Union of India : 1980CriLJ1487 . S. Gurdip Singh v. Union of India : 1981CriLJ2 ;

Lallubhai Jogibhai v. Union of India : 1981CriLJ288 , Kamla Kanhaiyalal Khushalani v. State of Maharashtra : 1981CriLJ353 . These are some of the cases in point. However, we also heavily rely on a recent decision of the Supreme Court from Manipur, Y. Mangibabu Singh v. State of Manipur : 1983CriLJ445 , wherein their Lordships observed that the constitutional safeguard of making effective representation against the detention, which was available to the detenu under Article22(5). had been breached inasmuch as copies of certain statements, which were material and which were taken into consideration by the detaining authority in arriving at its subjective satisfaction, were not supplied to the detenu and thereby the detenu was prevented from making an effective representation.

4. Now, let us turn to the grounds of detention, the relevant portions of which are extracted below:

1(a) That you are an active member of the outlawed organisation namely Peoples Liberation Army (PLA, for short) since June, 1979.

(b) That on 21-9-80 at night you took part in the attack on the SSB Camp at Mongshangei by the PLA members, killing two SSB personnel and causing bullet injuries to another three,

(c) That on 2-2-82 at about 11-30 a. m. you were apprehended by the Army on the Kangchup road near Lamshang during combing operation.

2. In view or the circumstances mentioned above and also of your being an active member of an outlawed organisation there is every likelihood that you shall continue to indulge in similar subversive and anti-national activities. Hence the undersigned is compelled to order your detention under Section 3(2) of the National Security Act, 1980. I am satisfied that with a view to prevent you from acting in any manner prejudicial to the maintenance of public order and security of the state, I have made this detention order.

XXX XXX XXX

Along with the said grounds of detention no paper, document or material, which the detaining authority had taken into consideration in arriving at its subjective satisfaction was furnished to the detenu. Let us turn our attention to ground No. 1(a). It brands the detenu as a member of an outlawed organisation. This was a serious imputation. The ground was not built up in the air. There was some material before the detaining authority in forming the subjective satisfaction that the detenu was a member of the said outlawed organisation. However, no material was supplied to the detenu.

5. Similarly in respect of the allegations in Ground No. 1(b), no material was supplied to the petitioner. The learned Advocate General has candidly admitted before us that there were materials in respect of Grounds 1(a) and (b) but the detenu was not supplied with them. The grounds contained serious allegations. If the detaining authority had formed the opinion on the basis of the material it is the constitutional obligation of the detaining authority under Article 22(5) of the Constitution to furnish the detenu with the said 'basic materials' relied upon in the said grounds of detention. Accordingly, the most important grounds fail and along with them falls the order of detention. Let us now turn to Ground No. 1(c). It shows that the detenu was apprehended by the Army during 'combing up operation' on 2-2-1982. it cannot, by itself, be a ground of detention at all. The said apprehension cannot give handle to the State to detain a person to prevent him 'from acting in any manner prejudicial to the security of the State and the maintenance of public order'. It has been fairly conceded by the learned Advocate General that Ground 1(c) cannot be a ground of detention under Section 3(2) of 'the Act.'

6. For the foregoing reasons we are clearly of the view that in the facts and circumstances of the case, the constitutional safeguards alluded were clearly breached by the detaining authority and, therefore, the impugned order deserves to be quashed, which we hereby do. In the result, the petition is accepted. The impugned order of detention is quashed and the detenu is directed to be released forthwith unless he is wanted in connection with any other case.

T.C. DAS, J.

7. I agree.


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