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Nangbuaia Vs. District Magistrate - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantNangbuaia
RespondentDistrict Magistrate
Excerpt:
- .....behalf of respondent no. 2 and when the matter came up forhearing on 25.1.83 before this court mr. tanti submitted that on 16.2.83 (sic) the detenu was already in custody and therefore the activity attributed to him on that day in the ground no. 2(c) made the ground non-existent. we passed an order on that date directing the respondents to ascertain the fact and file affidavit on this aspect of the matter. accordingly, an affidavit has been filed in this case on 9.2.83. the relevant statement at para 2 of the affidavit which is extracted below:2. that with regard to the allegations made by the petitioner through his counsel at the time of hearing of the present case that he was in judicial custody from 25.1.82 to 1.3.82 and as such the last part of ground no. (c) is non-existent; the.....
Judgment:

T.N. Singh, J.

1. In this matter the petitioner sent an application from his place of detention at Silchar Jail to this Court for his release challenging the validity of the order made under the National Security Act by the District Magistrate, Lunglei, Mizoram. Mr. B. Tanti, Advocate, was appointed by the Court as the counsel for the petitioner as it was a Habeas Corpus matter and upon hearing counsel for both sides a Rule Nisi was issued on 29.11.1982. Pursuant thereto no return was filed on behalf of respondent No. 2 and when the matter came up forhearing on 25.1.83 before this Court Mr. Tanti submitted that on 16.2.83 (sic) the detenu was already in custody and therefore the activity attributed to him on that day in the ground No. 2(c) made the ground non-existent. We passed an order on that date directing the respondents to ascertain the fact and file affidavit on this aspect of the matter. Accordingly, an affidavit has been filed in this case on 9.2.83. The relevant statement at para 2 of the affidavit which is extracted below:

2. That with regard to the allegations made by the petitioner through his counsel at the time of hearing of the present case that he was in judicial custody from 25.1.82 to 1.3.82 and as such the last part of ground No. (C) is non-existent; the deponent begs to state that the date 16.2.82 appearing in para (C) of the grounds of detention is a typing mistake and that the same should be read as 16.12.81 in place of 16.2.82. The deponent further begs to state that the said fact was also pointed out before the Advisory Board and that the said date was corrected as 16.12.81.

2. However, it is submitted by Mr. Tanti, the learned Counsel for the petitioner that the order is stili invalid because ground 2C is irrelevant and the order is liable to be struck down on that score alone. The ground No. 2(C) reads as follows:

2(C) that on 22.10.81, you helped the MNF elements to organize a meeting to celebrate MNF party raising day at Chandmary, Lunglei in which you also participated. On 16.2.82, you helped the outlawed MNF hostile to celebrate MNF Salvation day at the house of Sawngkhara, on the same day, you arranged dinner party at your residence for about 35 MNF hostites.

3. It is submitted by Mr. Tanti that between 6.7.8l and 19.1.82 of MNF was not an unlawful organization, which position is not disputed by Dr. M.K. Sarma, learned standing Counsel, Mizoram. It is submitted therefore that the activities attributed to the petitioner in the said ground on 22.10.81 and 16.12.81, which dates stand corrected by the affidavit for 16.2.82 as mentioned in the ground, cannot be the foundation of prejudicial activities for maintenance of the security of the State which was the objective mentioned in the order. In this connection, our attention has been drawn to a decision of this Court rendered in Civil Rule (HC) No. 50 of 1982 Shri Dohawla v. District Magistrate Lunglei Mizoram in which it was held that similar activities are innocent acts which if undertaken by the members and supporters of the organization which was not unlawful during the relevant period shall not render any persons liable to be punished inasmuch as these activities were not unlawful at the relevant time. We have to bear in mind that preventive detention is not punitive detention. We find that the position is the same in the present case and, therefore, this case is squarely covered by our aforesaid decision.

4. We, accordingly, hold that ground No. 2(C) being irrelevant; the detention order is invalid and is liable to be struck down. We quash and set aside the order and direct the detenu to be released forthwith. The Rule is made absolute and the petition is allowed.


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