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Brindaban Goswami Vs. Dist. Magistrate and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantBrindaban Goswami
RespondentDist. Magistrate and anr.
Excerpt:
- - as such we cannot predicate that the para 1 was the ground for his order of detention dated 18-4-1980. be that as it maw abscondence of a detenu does not terminate the effect of ,an order of dentention under 'the ordinance of 1980.'the deletion order dated 18-4-1980 as well as the grounds of detention were taken into consideration by the detaining authority who formed the subjective satisfaction'.as such the grounds of detention and the order of detention formed integral parts of the grounds. 5. the allegations in paras 3 & 4 read as a whole may at best be a question of law and order neither the activities nor the effect entered into the second concentric circle namely 'public order' drawn by hidayatullah c. in the result we hold that the grounds are vague as well as irrelevant......authorities in making the order of detention must be supplied to the detenu 'pari passu' the ground of detention. as, such documents or materials form integral part of the grounds. we rely or ram-chandra 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 . m. m. patel v. state of maharashtra : 1981crilj331 ; shalini soni v. union of india : 1980crilj1487 : s. gurdin singh v. union of india : 1981crilj2 ; lallubhai v. union of india : 1981crilj288 . in view of the pronouncements of the supreme court we are constrained to hold that non-furnishing of the documents and materials referred to in the ground was violative of the procedural safeguards.....
Judgment:

K.M. Lahiri, J.

1. The petitioner has been detained under Section 3(2) of the National Security Act. for short 'the Act', with a view to preventing him from acting in any manner urejudicial to the maintenance of public order/ thf maintenance of supolv and services essential to the community.

2. We set forth the grounds of detention :—

Sri Brindabon Goswami. aged about 31 years S/o Sri Tulshi Goswami of Chandmari, Tezpur Town is a Graduate but he is without employment. He is an Ex-president of all Assam Students' Union, He has been closely associating himself with the current agitaLon in Darrane district and organising 'bundh' picketing, 'Satyagraha' has been causing a serious disturbance to public order besides disrupting the oupply and services essential to the community.

For his prejudicial activities, order for his detention under the Assam Preventive Detention Ordinance 1980 was issued on 18-4-1980. He could not however be detained as he went underground. Subsequently, he came over ground and continued his prejudicial activities. He has been instigating the people to continue the agitation.

On 18-11-1980 a crowd prevented an Army School Bus carrying students to central School at Tezpur town. The crowd was declared unlawful and ordered to disperse. They however defied the order and became violent. Police had to resort to use of tear gas. lathi charge and firing to disperse the crowd.

Sri Goswami was in the crowd and he was instigating the people to defy the order and to become violent. This a serious case of disturbance of public order and Shri Goswami was one of the persons responsible for such a situation.

The AASU and the AAGSP gave a call for 'mass satvacraha' in the office of the Deputy Commissioner etc. from 18-12-1980 to 31-12-1980. Sri Goswami has been taking a leading part in organising such 'Satyagraha' in Tezpur and other places. At ais instigation people are defying tile orders under Section 144 Cr.P.C. prohibiting assembly of five or more persons processions etc. in public places, issued for maintenance of public order.

The activities of Sri Goswami are thus prejudicial not only to the maintenance of public order but- also to the maintenance of supply and services essential to the community. In order to prevent him from doing any such act. it is essential to detain him under the National Security Ordinance 1980.

3. Paragraphs 1 and 2 are the grounds which have link with 'supply and services'. Let us test whether the activities referred to in paras 1 & 2 support the detention for preventing him from doing any act prejudicial to the maintenance of supply and sei vices essential to the community. A bare perusal of the said paragraphs shows that the said activities were the grounds for his alleged detention older said to have been issued on 18-4-1980. It may be stated that the grounds of detention and/or the order of detention dated 18-4-1980 were not supplied to the detenu. As such we cannot predicate that the para 1 was the ground for his order of detention dated 18-4-1980. Be that as it maw abscondence of a detenu does not terminate the effect of ,an order of dentention under ' 'the Ordinance of 1980.' The deletion order dated 18-4-1980 as well as the grounds of detention were taken into consideration by the detaining authority who formed the subjective satisfaction'. As such the grounds of detention and the order of detention formed integral parts of the grounds. Non-supply of the documents to the detenu was violative of Article 22(5) of the Constitution. The detenu was disabled to make an effective representation against the ground. On the authority of Kamala Kanvalal Khushalani v. State of Maharashtra : 1981CriLJ353 we hold that the procedure adopted by the detaining authority was neither just nor fair nor reasonable. As such, the order of detention is invalid on this score alone. Copies of documents to which reference is made in the grounds must be supplied to a detenu. The documents or materials referred to in the grounds and taken into consideration by the detaining authorities in making the order of detention must be supplied to the detenu 'pari passu' the ground of detention. As, such documents or materials form integral part of the grounds. We rely or Ram-chandra 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 . M. M. Patel v. State of Maharashtra : 1981CriLJ331 ; Shalini Soni v. Union of India : 1980CriLJ1487 : S. Gurdin Singh v. Union of India : 1981CriLJ2 ; Lallubhai v. Union of India : 1981CriLJ288 . In view of the pronouncements of the Supreme Court we are constrained to hold that non-furnishing of the documents and materials referred to in the Ground was violative of the procedural safeguards under Article 25(5) of the Constitution.

4. The allegations contained in paragraphs 1 & 2 of the grounds read together are vague by any standard. Particulars as to the date, time and place of the activities have not been disclosed to the detenu. Unhesitatingly we hold that the detenu was disabled to make an effective representation.

5. The allegations in paras 3 & 4 read as a whole may at best be a question of law and order Neither the activities nor the effect entered into the second concentric circle namely 'public order' drawn by Hidayatullah C. J. in Ram Manohar Lohia v. State of Bihar : 1966CriLJ608 .

6. The last ground is based on 'Mass Satyagraha'. The term Satyagraha has been defined in Webster's 'Twentieth Century Dictionary' (Unabridged Second Edition) as 'lit grasping for truth; sans. Satya, truth and graphs, grasping the political doctrine of Mohandas K. Gandhi which favoured passive resistance and non-co-operation in opposing British Rule in India. 'Mere passive resistance in the line preached by Gandhi-cannot be a ground for detention under the head 'public order' or 'supply and services'. We have clearlv set forth the law touching satyagraha in Civil Rule Nos. 47. 48, 49. 59 and 60 (HC) of 1981 Krishna Barua v. District Magistrate where inter alia, we observed: 'However the detention law should not be allowed to be taken by their smooth handle to subjugate legitimate and demoratic common will which do not affect the supplies and services essential to the community. The extra ordinary law should not be a pretext or pretence to handle ordinary or run of the mill incidents.'

7. We are constrained to observe that the petitioner has been detained for 'run of the mill' incidents which were of ordinary nature where there was no question of affecting 'public order' in any form arose. In the result we hold that the grounds are vague as well as irrelevant. The activities mentioned in the grounds are not relevant for the purpose of detention under the heads.

8. For the foregoing discussions we hold that the order of detention is void and invalid. The petition is allowed. The rule is made absolute. We direct that the petitioner shall be set at liberty forthwith, unless he is required in connection with any other case.


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