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Niren Sarma and anr. Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantNiren Sarma and anr.
RespondentState of Assam and ors.
Excerpt:
.....about observance of 36 hours road blockade programme from 5 a. strong reliance has been placed by shri bhattacharjee in this regard on a bench decision of this court in samir das v. on the other hand the movement leaders have for the present given call for constructive activities, like cleaning the educational and religious institutions, construction of roads in interior villages, etc. it may as well be that the petitioners after their release will desist from the activities which the authorities regard as prejudicial. 10 of 1982. the same is that in the history sheet it was stated that by issuing a statement in dainik janambhumi of 25-6-1981 this detenu had condemned those government employees who had attended office on 24-6-1981 and had termed them as betrayer and threatened them that..........of essential supplies and services and public order.3. in assailing the impugned orders, shri bhattacharjee has urged inter alia that as the activities to prevent which the petitioners were detained have ceased to exist by the time the returns were filed, the grounds do no longer exist to keep the petitioners in continued detention. by referring to a large number of decisions, to wit, naranjan singh v. state of punjab : 1952crilj656 ; ram narayan singh v. state of delhi : 1953crilj113 . in re madhu limaye air 1969 sc 1014; and b. ramachandra rao v. state of orissa : air1971sc2197 , it is urged that the material date in this connection is the date of return. in a. k. gopalan v. govt. of india : 1966crilj602 , it was held that the detention on the date of the application has also.....
Judgment:

B.L. Hansaria, J.

1. Preventive detention is an anathema to the cherished concept of liberty enshrined in Article 21 of the Constitution. Nonetheless the framers of the Constitution made provision for the same in Article 22. It has therefore been regarded as a necessary evil. But evil as it is, its operation has to be kept confined to the strict requirements of the law, and if two views on a matter be reasonably possible, the one beneficial to the detenu has to be adopted. When the courts are confronted with cases of this nature, they have to keep in forefront the upholding of the cherished freedom of the individual as far as possible, of course, by not putting the larger public interest of an orderly society in jeopardy.

2. In these two cases, the petitioners came to be detained in pursuance of orders passed by the learned District Magistrate, Sibsagar, on 28-12-1981 (in Civil Rule No. 9/82) after the Superintendent of Police had approached him by forwarding the history sheet (dossier). In the other case the detention order was passed on 30-12-1981 in pursuance to the history sheet made available on the same day. The history sheet as well as the grounds clearly show that these two detenus had inter alia participated in secret discussion held on 29-11-1981 on the eve of 'Rasta Roka' programme scheduled on 30-11-1981. Thereafter it is alleged that the petitioners took part in a secret meeting held on 10-12-1981 which was to discuss about observance of civil disobedience movement on 14th and 15th December, 1981. The last activity attributed to them is what had taken place on 27-12-1981 when there were discussions about observance of 36 hours road blockade programme from 5 A.M. of 31-12-1981 and 36 hours civil disobedience movement on 10th and 11th January, 1982 and imposition of 'curfew' on 26-1-1982. On knowing about these reported activities of the petitioners, the District Magistrate passed the order of detention to prevent them from acting in any manner prejudicial to the maintenance of essential supplies and services and public order.

3. In assailing the impugned orders, Shri Bhattacharjee has urged inter alia that as the activities to prevent which the petitioners were detained have ceased to exist by the time the returns were filed, the grounds do no longer exist to keep the petitioners in continued detention. By referring to a large number of decisions, to wit, Naranjan Singh v. State of Punjab : 1952CriLJ656 ; Ram Narayan Singh v. State of Delhi : 1953CriLJ113 . In re Madhu Limaye AIR 1969 SC 1014; and B. Ramachandra Rao v. State of Orissa : AIR1971SC2197 , it is urged that the material date in this connection is the date of return. In A. K. Gopalan v. Govt. of India : 1966CriLJ602 , it was held that the detention on the date of the application has also to be legal if nothing more has intervened between that date and the date of hearing. In Kanu Sanyal v. Dist. Magistrate. Darjeeling : 1974CriLJ465 , it was observed that the date of return is the more accepted date in this regard though date of the hearing can also be regarded as relevant. As the returns had been filed in these cases after 26th January, 1982, Shri Bhattacharjee submits that the grounds of detention must be held to have spent their force by that time. Strong reliance has been placed by Shri Bhattacharjee in this regard on a Bench decision of this Court in Samir Das v. The District Magistrate, Kamrup 1974 Assam LR 221 : 1975 Cri LJ 315. in which the order of detention was also to prevent the petitioner from acting in any manner prejudicial to the maintenance of services essential to the community. But that was grounded on some speeches by the petitioner relating to-indefinite strike with effect from 8-5-1974. But as by the time the return had been filed that period was over, this Court held that the ground had become non-existent and being of this view the order was set aside.

4. The learned Government Advocate urges that the object of detention might not have been only related to the projected activities of the petitioners culminating in the 'curfew' on 26th January, 1982. According to the counsel, the detaining authority might have had in view the future activities also of the petitioners. That may be so, but from the facts as noted above it cannot be denied that the immediate object of the District Magistrate was to prevent the petitioners from taking part in the activities of 'Rasta Roka' or civil disobedience, or 'curfew' as mentioned in the grounds of detention. This immediate object having been fulfilled, we are of the view that further detention of the petitioners would not be in the spirit in which the order of detention must have been passed based on the grounds of the case. As alluded, recourse to preventive detention has to be confined to 'as few situations as possible' as has been emphasised by the Constitution Bench which had dealt with the constitutionality of certain provisions of the National Security Act.

5. In this context it is mentioned by Shri Bhattacharjee that there is no call at present for the type of movements which had led to the detention of the petitioners; on the other hand the movement leaders have for the present given call for constructive activities, like cleaning the educational and religious institutions, construction of roads in interior villages, etc. It may as well be that the petitioners after their release will desist from the activities which the authorities regard as prejudicial. If not. it would be open to the authorities to take recourse to such provisions of law as are available to them.

6. In support of his submission relating to the invalidity of the detention order in Civil Rule No. 9 of 1982. Shri Bhaltacharjee has also drawn our attention to the fact that though in the dossier it was stated that this petitioner was arrested on 21-8-1981 in connection with CBI Case No. 3 (8) 81 under Section 302/ 120B. I.P.C. read with Section 5 of the Explosive Substances Act (Commissioner's murder case) and was later released on bail, this does not find place in the grounds. The contention is that this activity of the petitioner had nexus with the maintenance of public order and this fact must have influenced the mind of the detaining authority, but the same was not reflected in the grounds. By referring to Khudiram : [1975]2SCR832 , it is urged that if there be materials except those mentioned in the grounds which could have reasonably influenced the detaining authority, non-disclosure of the same would be denial of the right under Article 22 (5) of the Constitution. It was observed in that case that it is the totality of impression which has to be borne in mind and what has to be seen is whether the materials having nexus to the object of detention was likely to have influenced the mind of the detaining authority. Now as to the nexus it is difficult to say that the above mentioned fact has no relation with the maintenance of public order inasmuch as a high official had been the victim in a bomb blast. Learned Government Advocate himself was fair that he could not contend that this has no nexus with the maintenance of public order. If that be so, it would be difficult to say that this might not have influenced the mind of the detaining authority,

7. A similar point had been urged by Shri Bhattacharjee relating to the petitioner in Civil Rule No. 10 of 1982. The same is that in the history sheet it was stated that by issuing a statement in Dainik Janambhumi of 25-6-1981 this detenu had condemned those Government employees who had attended office on 24-6-1981 and had termed them as betrayer and threatened them that they will keep watch on them for taking action in future. According to the learned Government Advocate this ground may be relatable to law and order only, and not public order. In the background of the situation prevailing in the State it is difficult to agree with the submission because this is not aimed at on any one or two employees but to the employees as a class who had not co-operated with the call of the movement leaders, This being so, we would also think that this fact might have also influenced the detaining authority.

8. In the above view of the matter, we are not addressing ourselves on further submissions made by Shri Bhattacharjee including the one relating to delay in disposing of the representation. From the records made available to us we find that the representations of these two detenus had reached the Government at least by 6-1-1982 and they were first processed on 13-1-1982. As this point had not been urged specifically in the petitions, we did not find any reply on this point in the return. According to the learned Government Advocate the delay however might have been due to the fact that 7th was a Bandh day, 8th being a holiday 9th was second Saturday and as such a non-working day in the Government offices, 10th fell on Sunday and 12th was a non-co-operation day. As we are not entering into this part of the controversy, we do not express any opinion, but we would like to observe that the law requires consideration of representations 'as early as possible' or 'as expeditiously as possible' and it must receive immediate consideration as observed in a large number of decisions of the apex court of the land.

9. In view of what has been stated regarding the first two submissions of Shri Bhattacharjee, we allow these petitions and set aside the orders of detention. The detenus would be released forthwith unless they are wanted in any other case.


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