Bhaskar Bora @ Rajubora vs State of Assam and Others

V.D. Gyani, J.—Sri Bhaskar Bora alias Raju Bora, Son of Bakul Chandra Bora, resident of Balisatra, Police Station Dhing, District Nagaon, has filed this writ petition praying for issuance of writ of Habeas Corpus and quashing the detention order dated 6.5.97, as passed by the District Magistrate, Nagaon, filed as Annexure-A to the petition.

The impugned order of detention, Annexure-A, has been challenged on several grounds, such as non-application of mind, vitiating subjective satisfaction of the detaining authority who passed the impugned order of detention, Annexure-A, unexplained delay in disposal of his representation by the Central Government and non-compliance of in-built procedural requirements of the National Security Act, 1980.

Mr. N. Dutta, learned Counsel appearing for the Petitioner, has pressed into service the ground of delay in disposing of the representation, admittedly, submitted by the detenue on 1.6.97. To appreciate this argument, a few dates need be noted. The representation was submitted on 1.6.97, it was received in the Political Department of the State from the District Magistrate, Nagoan on 10.6.97 and placed before the Deputy Secretary on 12.6.97. According to the affidavit filed by the Respondent/State, the representation was processed by the Additional Chief Secretary on 12.6.97 and placed before the Chief Minister for consideration, who rejected the same on 12.6.97. Thus, it would appear that so far as the State of Assam is concerned, it cannot be said that there was any undue delay in disposing of the detenue''s representation.

So far as the Central Government is concerned, the representation dated 1.6.97, as submitted by the detenue, was received in the Ministry of Home Affairs on 18.6.97 through the Govt. of Assam although it is claimed by the Central Government that the representation was immediately processed and most expeditiously considered (see paragraphs 6 and 10 of the affidavit filed by the Central Government). This claim stands belied by the fact that it was pending till 8.8.97, when it was rejected by the Minister of State for Home affairs. From 1.6.97 to 8.8.97, two months and eight days were taken in disposing of the representation by the Central Government.

Mr. R.P. Kakati, learned Standing Counsel for Union of India, refering to paragraphs 6 to 9 of the Affidavit, submitted that the delay caused in disposal of the representation stands amply explained. Firstly, some vital information was required from the State Government for further consideration of the representation which was received by the Central Government on 18.6.97. The State Government was informed on 18.6.97 itself and subsequently reminded on 4.7.97 and 23.7.97 for sending the vital information. Although the affidavit as filed by the Central Government is silent on the point as to what information was really required, the same is available with the State Government and on being requested, the learned Addl. Advocate General appearing for the State of Assam, made it available to us for our perusal. The so called vital information sought by the Central Government related to:

(a) The date on which the detenue was actually detained or taken into custody.

(b) The date of supplying the grounds of detention to the detenue and the information of the Advisory Board.

Apart from the above information, parawise comments on the representation was also sought. So far as the first three points are concerned, really speaking, there was no need for any such information. It is an admitted position that a report of the fact detention as required u/s 3(2) of the Act was in fact made to and received by the Central Government as back as 20th May, 1997 and it is the pleaded case of the Central Government that the report was completely examined on 27th May, 1997. It is not the Respondent''s case that the said Report was lacking in any particulars, A mere reading of Sub-section (5) of Section 3 of the Act would go to show that all that so called vital information sought from the State Government was handy and readily available to the Central Government in the shape of the Report made by the State Government u/s 3(5) of the Act. Even otherwise, a cursory glance of the detention order, Annexure-A, would have convinced anyone that the detenue even at the time of passing and serving of the impugned order of detention, Annexure-A, was in the Special Jail, where was the question of seeking information of the date of taking the Petitioner into custody. The fact is amply borne out from the impugned order itself.

So far as seeking opinion of the Advisory Board is concerned, it is a settled principle of law settled by several judgments of the Supreme Court that a representation is to be disposed of quite independent of the opinion of the Advisory Board. The disposal of a representation does not depend on the opinion of the Advisory Board. There was no point in calling for the opinion of the Advisory Board before disposing the representation. The other information as sought by the Central Government relates to the date of furnishing the grounds of detention to the detenue. Here again, the impugned order, Annexure-A, itself states that two copies of grounds of detention -one for service and return and the other copy for the detenue ''residing'' in Special Jail being forwarded to the Superintendent of Special Jail. Over and above the information sought, the Report was already available and the fact of detention had been confirmed by the Central Government. Seeking parawise comments in a routine manner and thereby causing delay in disposing a representation, does not explain the delay so actually caused. The affidavit, as filed by the Central Government, is again silent on the point.

If it was really doubted that the grounds of detention were furnished to the detenue, which were furnished to the detenue along with the detention order, subsequent thereto as permissible under the law, it hardly makes any difference so far as the disposal of the representation is concerned. A mere reading of Section 8 of the Act would have revealed to the authority concerned that the law permits five days'' time for supplying grounds of detention and in exceptional circumstances ten days to the detaining authority to supply the grounds of detention. Sub-section (2) of Section 8 of the Act further provides that the detaining authority may not disclose facts which it considers to be against the public interest to disclose. But such is not the situation obtaining in the instant case. There is no such reservation made in the impugned order of detention. The grounds of detention as furnished to the detenue, are contained in Annexure-B.

The Supreme Court has pointed out as to what should be the approach of the authorities in dealing with a representation made by a detenue in the following words:

Thus when it is emphasised and reemphasised by a series of decisions of this Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5) of the Constitution.

Aslam Ahmed Zahire Ahmed Shaik Vs. Union of India and Others,

Following the above principle, it cannot be said the authorities evinced that live concern and promptness in disposal of the detenue''s representation as was expected of them. There is an apparent delay right from 18.6.97, when, admittedly, the representation was received in the Home Ministry, upto 8.8.97, when it was rejected and the delay has not been duly explained and the explanation offered for this delay has already been dealt with above. Such explanation cannot be accepted.

In the result, this petition deserves to be allowed and impugned order of detention of the detenue/Petitioner liable to be set aside. It is accordingly set aside. He be released forthwith unless otherwise wanted in connection with some other case or cases.

The Respondent/State of Assam shall carry out this order without any loss of time.

The petition is allowed.

If the detenue has been shifted to some other Jail outside the State of Assam, it is entirely the responsibility of the State to see that he is brought back to the place of his residence, Balisatra under Dhing Police Station in the District of Nagaon, as already mentioned.