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Gautam Saikia and Etc. Vs. District Magistrate and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantGautam Saikia and Etc.
RespondentDistrict Magistrate and ors.
Excerpt:
.....4. that these documents were not furnished to the detenus and, as such, failure on the part of the detaining authority has deprived the detenus of making effective representation in exercise of fundamental right under article 22(5) of the constitution and on that count alone it is submitted, the detenus are entitled to be released forthwith. 1981crilj1825 .learned counsel however cannot give a reply in respect of the failure to supply copies of the f. 5. the only question for our consideration is whether it is obligatory on the part of the detaining authority to supply copy of the seizure memo as well as copies of f. whether such failure violated the mandatory provision of article 22(5) of the constitution. there is no particular charm in the expressions 'relied on, referred to' or..........under custody in jail. the grounds of detention were furnished to the detenus on 29-3-83 and the detaining authority reported the fact of detention to the state government on 26-3-83 with particulars having bearing on the matter, in compliance with section 3(41) of the act. the state government approved the detention order on 2-4-83. the state government on the same date i.e. on 2-4-83 communicated the factum of detention together with the grounds on which the order has been made, in compliance with section 3(51) of the act to the central government.3. the grounds of detention in both the cases are identical. there are four grounds as mentioned in annexure 'ii' to each of the petitions. there are several grounds on which the detention of the detenus is challenged. but it is not.....
Judgment:

N.I. Singh, J.

1. These two Civil Rules in which common questions of fact and law are involved are heard together and disposed of by this common judgment

2. Detenu Gautam Saikia is the petitioner in Civil Rule (HC) 156 of 1983 and detenu Chakren Saikia is the petitioner in Civil Rule (HC) 157/83. The petitions are for Writ of Habeas Corpus challenging the detention order made on 25-3-83 by the District Magistrate. Sibsagar. Jorhat. The detention order was passed under Section 3(2) read with Section 3(3) of the National Security Act, 1980 (hereinafter called 'the Act'), on his being satisfied that it was necessary to detain them with a view to preventing them from acting in a manner prejudicial to the maintenance of public order. Both of them were under arrest at the time when the order of detention was passed in connection with some police cases. The order of detention was served on them while they were under custody in jail. The grounds of detention were furnished to the detenus on 29-3-83 and the detaining authority reported the fact of detention to the State Government on 26-3-83 with particulars having bearing on the matter, in compliance with Section 3(41) of the Act. The State Government approved the detention order on 2-4-83. The State Government on the same date i.e. on 2-4-83 communicated the factum of detention together with the grounds on which the order has been made, in compliance with Section 3(51) of the Act to the Central Government.

3. The grounds of detention in both the cases are identical. There are four grounds as mentioned in Annexure 'II' to each of the petitions. There are several grounds on which the detention of the detenus is challenged. But it is not necessary for us to refer to all the grounds, since one contention, in our opinion, will invalidate the order of detention in both the cases.

4. Learned counsel for the petitioners confines herself to ground No. 4 in Annexure II and submits that the seizure memo of the incriminating articles said to have been seized from the possession of the detenu Gautam Saikia in connection with Mariani P. S. Case No. 47/83 under Section 25(1) of Arms Act read with Section 122, I.P.C. and Case No. 48/ 83 under Section 5 of Explosive Substances Act read with Section 122. I.P.C. as well as the two F.I.Rs. in two cases above, formed an integral part of the ground No. 4. That these documents were not furnished to the detenus and, as such, failure on the part of the detaining authority has deprived the detenus of making effective representation in exercise of fundamental right under Article 22(5) of the Constitution and on that count alone it is submitted, the detenus are entitled to be released forthwith.

Learned counsel for the respondents 1 and 2 submits that as a copy of seizure memo had been supplied to the detenus Under Section 100(6) of the Criminal P. C. 1973. the detenus were fully aware of the contents thereof and. therefore, there was no need to supply a copy of the same over again. In support of it. learned Counsel has placed reliance on a decision in Wasi Uddin Ahmed v. District Magistrate, Aligarh. U.P. : 1981CriLJ1825 . Learned counsel however cannot give a reply in respect of the failure to supply copies of the F.I.Rs. of two Police cases, which are still under Police investigation.

5. The only question for our consideration is whether it is obligatory on the part of the detaining authority to supply copy of the seizure memo as well as copies of F.I.Rs. in two cases as referred to in the grounds to the detenus: if so. whether such failure violated the mandatory provision of Article 22(5) of the Constitution.

6. To appreciate the contentions of the counsel for the parties, it is necessary to reproduce ground No. 4 which reads as:

4. On 20-3-83 night Police recovered 2(2) hand grenade one country made rifle, one detonator. 7 rounds of ammunitions marking P.O.F. from the possession of Gautam Saikia at Silikha T. E. This refers to Mariani P. S. Case No. 47/ 83 Under Section 25(11(a). Arms Act read with Section 122. I.P.C. and Mariany P. S. Case No. 48/83 Under Section 5 of Explosive Substances Act read with Section 122. I.P.C.

7. It may be noted that the concluding part of recital of the ground which reads as:

The procurement of Arms, ammunitions and explosives as indicated is a part of a plan to kill any 'Bidhayaks' (Members of Legislature) their supporters and- workers at opportunate time and place and continue such activities even if election is somehow held till it is cancelled' governs both the grounds 3 & 4.

8. The Supreme Court in Smt. Icchu Devi v. Union of India : [1981]1SCR640 . has held that if there are any documents, statement 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 he complete without them. It would not. therefore, be sufficient to communicate to the detenu a bare recital of the grounds of detention in order to constitute compliance with Clause (5) of Article 22 of the Constitution. It has been held also by the Supreme Court in Kirit Kumar Chamanlal Kundaliva v. Union of India : [1981]2SCR718 . that the subjective satisfaction could only be ascertained from or reflected in the grounds of the order of detention passed against the detenu otherwise without giving the grounds the mere subjective satisfaction of the detaining authority would make the order of detention incomplete and ineffective. It was further held (para 12):

Once the documents are referred to in the grounds of detention it becomes the bound en duty of the detaining authority to supply the same to the detenu as part of the grounds or Pari passu the grounds of detention. There is no particular charm in the expressions 'relied on, 'referred to' or 'based on' because ultimately all these expressions signify one thing, namely, that the subiective satisfaction of the detaining authority has been arrived at on the documents mentioned in the grounds of detention. The question whether the grounds have been referred to relied on or based on is merely a matter of describing the nature of the grounds....

Thus, it is absolutely clear to us that whether the documents concerned are referred to, relied upon or taken into consideration by the detaining authority/ they have to be supplied to the detenu as part of the grounds so as to enable the detenu to make an effective representation immediately on receiving the grounds of detention.

9. In Khudiram v. State of West Bengal : [1975]2SCR832 , the Supreme Court while dealing with Article 22(5) of the Constitution observed (para 13):

It is therefore, not only the right of the Court but also its duty as well, to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction, The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though some other basic facts and materials were before it. it has not allowed them to influence its satisfaction. The Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts or materials, apart from those admitted by it, which could have reasonably influenced the decision of the detaining authority and for that purpose the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it.

10. This branch of law has further been developed in Yumnon Mangi Babu Singh v. State of Manipur : 1983CriLJ445 , and from the decisions of the cases referred to. it becomes clear that the basic facts and materials which influenced the detaining authority in reaching the subjective satisfaction must be furnished to the detenu so as to enable him to make an effective representation as envisaged under Article 22(5) of the Constitution. We have applied this principle in number of cases which came up before this Court.

11. Learned counsel for the detenus cited a number of decisions of the Supreme Court in support of her contention. They are:

(1) : 1976CriLJ630 Golam v. The State of West Bengal (2) : 1980CriLJ1263 Ganga Ramchand Bharvani v. Under-Secretarv to the Govt. of Maharashtra (3) : 1981CriLJ1283 (1) Mehrunissa v. State of Maharashtra (4) : 1982CriLJ1730 Thakur Mulchftndani. v. Asst. Secretary to the Govt. of Maharashtra.

12. We have extracted ground No. 4 as well as the concluding part of the recital of the ground which is to be read along with the ground No. 4 above. In our opinion, the contention of the learned Counsel for the detenus is well founded. We do not consider it necessary to refer to all the cases cited by the learned Counsel, but we shall refer to three of the decisions which have direct bearing on the question before us.

13. In Golam 1976 Cri LJ 630 (SC) (supra), the only ground of detention was (para 2):

That on 10-9-72 in between 06.30 hrs. and 07.30 hrs. you and your associates broke open Wagon Nos. PC 12799 NR. 35424 and ERC 97048 loaded with food-Brain (wheat) and committed theft in respect of the same from Canning Railway Yard. You were named in the F.I.R. and subsequently arrested.

14. It was contended on behalf of the detenu that neither the contents of the F.I.R nor the vital particulars of the incident of theft on which the subjective satisfaction of the District Magistrate was based were communicated to the detenu. In that context it was held that the contents of the F.I.R. which evidently weighed with the detaining authority in making the order of detention, were not communicated to the detenu and as such the detention order was held invalid.

15. In Mehrunissa 1981 Cri LJ 1283(1) (SC) (supra). it was a case for non-supply of material document, referred to in the ground of detention. The grievance was made on behalf of the detenu that the panchanama dated 15-1-80 said to have been recorded at the time of seizure of the silver and statement said to have been made by the detenu in the enquiry under Section 108 of the Customs Act on 15-1-80 were not furnished to the detenu. It was argued on behalf of the detaining authority that copies of documents were not required to be supplied to the detenu, as the detenu was already aware of the contents of the documents. The Supreme Court observed that that was hardly an answer to the submission made on behalf of the detenu and held that the detenu was entitled to be supplied with the copies of all material documents and failure of the detaining authority to supply copies of such documents vitiated the detention. The detenu was ordered to be released forthwith,

16. In Thakor Mulchandani 1982 Cri LJ 1730 (SC) (supra), one of the grounds of detention was:

You have admitted in your statement that you had brought some foreign currency for being handed over to Naresh and that you were taking the account given by Naresh for being handed over to Vishnu at Dubai.

In that case, it was submitted on behalf of the detenu that the most important document which was the sheet-anchor of the allegations against the detenus had not been supplied to them, though it was relied upon in the order of detention. That document in the nature of a slip was recovered from detenu. Gulab Gopaldas Manghnani and was said to have been written and handed over to him by the other detenu Naresh Harkishandas Manghnani. In one of the grounds of detention it was clearly stated that a summary made by detenu Gulab Gooaldas Manghnani of the account in respect of the articles smuggled was recovered from him and was admitted by him before the Customs Officer during the adjudication proceedings. The contention of the counsel for the State was, that it was not necessary to supply a copy of the same to them, because in the statement which the detenu made before the Customs Authorities the details of articles being smuggled were already given there.

The Supreme Court repelled the argument and held that it was not sufficient to meet the requirements of law because the statement made by the detenu was not admitted and in absence of the detailed account, the statement itself was not quite intelligible and that the slip containing the accounts was a material document which was undoubtedly relied on and should have been supplied to the detenus pari passu the grounds of detention. As the same was not supplied, the detention was held invalid.

17. The principle laid down by the Supreme Court in the cases discussed above squarely applies to the case before us. The decision in Wasi Uddin 1981 Cri LJ 1825(SC) (supra) relied on by the counsel for the respondents is not applicable to the facts of the case on hand. In that case, the detenu made a grievance that the copy of the F.I.R of the criminal case in which he had been convicted and F.I.Rs. of the three other criminal cases pending against him were not. furnished to the detenu so as to enable him to make an effective representation under Article 22(5) of the Constitution. The Supreme Court did not accept the contention of the detenu and held that the contention was misconceived. Under Sub-section (5) of Section 173 of the Criminal P. C. the detenu had already been supplied with all the documents on which the prosecution relied.

18. The case in Wasiuddin 1981 Cri LJ 18251(SC) (supra) is distinguishable from the instant case. In that case as already referred to. copies of documents referred in the grounds had been supplied to the detenu as providerd under Section 173(5) of the Criminal P. C. 1973. Section 207 of the Criminal P. C. enioins that the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the documents referred therein. The documents referred to among others are Police Report and First Information Reports recorded under Section 154. Cr. P. C. There can be no doubt that these documents were in possesion of the detenu in the criminal case in which he had been convicted: and. in the three criminal cases, charge sheets had been submitted and so he was fully aware of the contents of the F.I.R. It was in that context that the Supreme Court held that it was not necessary to furnish over again those documents and as such no grievance could be made that the detenu was deprived of the right of making a representation as enjoined under Article 22(5) of the Constitution.

In the instant case, the three documents were relied on by the detaining authority in reaching the subjective satisfaction, namely (i) seizure memo of the incriminating articles - two hand grenades, one country made rifle, one detonator, seven rounds of ammunition marking P.O.F. said to have been recovered from the posesssion of the detenu Gautam Saikia at Hilikha T. E. The seizure referred to Mariani P. S. Case No. 47/83 under Section 25(1)(a). Arms Act read with Section 122. I.P.C. and Mariani P. S. Case No. 48/83 under Section 5 of Explosive Substances Act read with Section 122, I.P.C. and (ii) copies of the F.I.Rs. of the two Police cases. The part of the recital we have extracted:

The procurement of arms, ammunitions and explosives as indicated is a part of a plan to kill any Bidhayaks (members of legislatures) their supporters, proposers, workers etc. at opportunate time and place, and continue such activities even if election is somehow held till it is cancelled' suggests that the contents of the seizure memo and F.I.Rs. were relied on and taken into consideration and they formed integral part of the ground of detention. They formed as such basic facts and materials which influenced the detaining authority in reaching the reaui-site satisfaction. That being so. the documents referred to have to be furnished to the detenus pari passu the grounds of detention to enable them to make effective representation as envisaged under Article 22(5) of the Constitution. The mere fact that the copy of the seizure memo has been supplied to the detenu Gautam Saikia under Section 100(7) read with Section 102 of the Cr. P. C. will not absolve the detaining authority from its obligation to supply it, in view of the principles laid down by the Supreme Court in the cases referred to above.

19. Learned counsel for the State admits that the cases are under Police investigation and no charge-sheets have been submitted against them. Admittedly these documents have not been furnished to the detenus. Assuming for a moment that the copy of the seizure memo has been furnished to the detenu Gautam Saikia at the time of seizure, there can be no doubt that the copies of the F.I.R. in two cases have not been furnished to him. So far as the detenu Chakren Saikia is concerned, copy of the seizure memo has not been supplied since in the ground of detention, it was stated that it was seized from the possession of Gautam Saikia. In his case, copies of the documents were to be furnished to him. namely, seizure memo and F.I.R. of the two cases.

20. We are of the opinion that in view of the principles of law laid down by the Supreme Court in the cases above, the order of detention in both the cases is invalid being violative of Article 22(5) of the Constitution. The mere fact that the grounds are elaborate and statements are concise, does not absolve the detaining authority from its constitutional obligation to supply the documents referred to above which form an integral part of ground of detention and which influenced the detaining authority in reaching the subjective satisfaction. In Ganga Ramchand 1980 Cri LJ 1263 at p. 1267(supra) it was observed:

The mere fact that the grounds of detention served on the detenu are elaborate, does not absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the grounds to the detenu. In the instant case the grounds contain only the substance of the statements, while the detenu had asked for copies, of the full text of those statements.

21. In view of the foregoing discussions, we hold detention order in both the cases invalid and the detenus are entitled to be released forthwith. We order both the detenus to be released forthwith. They are set at liberty unless they are required in connection with other cases. Rule is made absolute.


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