Dandi Bora @ Ashim Bora vs State of Assam and Others

J.N. Sarma, J.—This writ application has been filed by the detenu challenging the legality and validity of the order dated 6th September, 1999 passed by the District Magistrate, Golaghat under sub-section 2 of Section 3 of the National Security Act, 1980 detaining the petitioner. The grounds of detention were furnished vide Annexure-B. The order of detention is at Annexure-A.

That is quoted below ;

"GOVERNMENT OF ASSAM OFFICE OF THE DEPUTY COMMISSIONER ..GOLAGHAT.

No. CCA/23/99/154

Dated Golaghat, the 6th Sept/99

DETENTION ORDER

WHEREAS, I Dr. Ravi Kota, IAS, District Magistrate, Golaghat, am satisfied after fully applying the mind to all relevant materials provided to me and the facts constituting the grounds of detention that this detention of Shri Danda Bora alias Ashim Bora alias Digahta Saikia son of Moheswar Bora of Deopani Village P.S. Bokajan district Karbi-Anglong, Assam u/s 3(2) of the National Security Act, 1980 is necessary.

WHEREAS, I, therefore, in exercise of power conferred upon me by the State Government Notification No. PLA.213/96/203 dtd. 21-06-1999 do hereby order that the said Danda Bora S/o Shri Moheswar Bora of Deopani Village falling under Bokajan Police Station of Karbi-Anglong District, Assam be detained in District Jail, Diphu U/s 3(2) of the National Security Act, 1980 with immediate effect and until further orders with a view to prevent him from acting in any manner prejudicial to the security of the State and the maintenance of Public order in the event of release of the subject on bail. It is, therefore, necessary to keep him under detention.

The detenue may submit this detention order representation, if any, against this detention order to Government of India and to the State Government as well within 10(ten) days from the date of detention. The grounds of detention and other relevant materials based on which the order is made, are furnished herewith to the detenu as per Section 8(1) of the National Security Act, 1980.

Sd/- Ravi Kota District Magistrate, Golaghat"

The petitioner herein was detained in connection with a large number of cases as enumerated paragraph 4 of the writ application. That paragraph is quoted below :

"(i) Bokajan P. S. Case No. 33/94 U/S 3/4 of the TADA (P) Act.

(ii) Bokajan P. S. Case No. 197/94 U/S 384/511 I.P.C. R/W Sec 3/4 TADA (P) Act.

(iii) Bokajan P. S. Case No. 132/95 U/S 122/120 I.P.C. R/W Section 13 UA (P) Act. R/W Sec. 25(1)(B) of the Arms Act.

(iv) Jorhat P.S. Case No. 248/98 U/S 365/302/34 I.P.C. R/W 27 of the Arms Act.

(v) Sarupathat P.S. Case No. 59/98 U/S 121/121(A)/122/123/124-A I.P.C. R/W Sec 10/12 UA(P) Act R/W Sec. 25(1)(A) of the Arms Act, R/W Sec. 4/5 E.S. Act.

(vi) Golaghat P.S. case No. 184/96 U/S 302/395/427/120(B) I.P.C. R/W Sec. 27 Arms Act.

The detenu submitted a representation on 28.9.1999 addressed to the Detaining authority, State Government, Central Government as well as to the Advisory Board. That representation is at Annexure-C. An Affidavit-in-opposition on behalf of the State of Assam has been filed.

An additional affidavit on behalf of the Respondents No. 2, 3 and 4 was filed. The only argument advanced by the learned Advocate for the petitioner is non-disposal of the representation in time. In the additional affidavit in paragraph 2 it has been stated as follows :

That with reference to the avernments made in paragraph 4 of the affidavit-in-opposition, it is stated that the detenu made the representation addressed to the Dist. Magistrate, Golaghat. The Govt. of Assam, Dispur, the Central Govt. of India. New Delhi and the Chairman of the Advisory Board. But such representation was made on 28.9.99 and was handed over to the Superintendent, District Jail, Diphu. The Superintendent, Dist Jail Diphu, sent the aforesaid representation directly to the aforesaid concerned authorities by his letter no. 538-541 dated 29.9.99.

The said representation dtd. 28.9.99 was received by the State Government on 8.10.99 directly from the Superintendent, District Jail, Diphu. The said representation was placed before the Deputy Secretary to the Govt. of Assam, Political A Department on 11.10.99. It may be stated that on 9.10.99 and 10.9.99 were holidays being Second Saturday and Sunday. On 11.30.99 the Deputy Secretary passed the necessary order for submitting the copy of the representation before the Advisory Board to be held on 12.10.99.

A copy of the aforesaid representation alongwith the records of the case was sent to the Advisory Board for its consideration on its meeting held on 12.10.99. On 13.10.99, the representation of the detenu was placed before the Jt. Secretary to the Govt. of Assam, Political A Department and on the same day it was placed before the Additional Chief Secretary. On 14.10.99 the said representation was placed before the Chief Minister and on 14.10.99 after due consideration the same was rejected by the Chief Minister. Thereafter, vide Notification No. PLA 348/99/158 dtd. 26.10.99 necessary Notification was issued rejecting the representation of the detenu. It may further be stated that the representation of the detenu was also considered by the Advisory Board on its meeting held on 12.10.99."

The representation of the petitioner was disposed of by the Central Government and that finds place in paragraph 7 of the affidavit-in-opposition filed by the Union of India. That paragaph 7 it quoted below:

"7. The allegations made in the para Nos. 6, 12, 15, 24, 29 and 41 of the petition are denied being incorrect. It is stated that a representation dated 28.9.1999 from the detenu was received by the Central Government in the concerned Desk of Ministry of Home Affairs on 13.10.99 through Superintendent, District Jail, Diphu on behalf of State of Assam vide letter No. 538-541-A dated 29.9.99. That with regard to averment made in para 6, it is submitted that the supply of material and other documents is the concern of the State Government and the detaining authority. On its receipt, this representation was immediately processed for consideration and the case of the detenu was put up before the Under Secretary, Ministry of Home Affairs on 13.10.99 who carefully considered the same and put up the same before the Deputy Secretary, Ministry of Home Affairs on 13.10.99. The Deputy Secretary considered the case and with her comments forwarded the same before the Joint Secretary on 14.10.99. The joint Secretary considered the case of the detenu and forwarded the same before Union Home Secretary on 14.10.99. The Union home Secretary (who has been delegated powers by the Union Home Minister to decide such cases) considered the case of the detenu and rejected the representation of the detenu on 14.10.99. A decision was taken after due application of mind."

The learned Advocate for the petitioner places reliance in 1993 (3) GLT 173 (Lipika Roy v. State of Assam & Ors) and from paragraph 5 of that judgment the facts will be evident. That is quoted below :

"5. We are of the view that the contention raised by Mr. Mishra that there has been a delay in disposal of the representation of the petitioner and the said delay has not been properly explained and therefore the continuous detention of the detenu should be held to be illegal as violative of Constitutional guarantee under Article 22(5). In that view of the matter we are not inclined to refer in detail the other contentions raised by the petitioner. We, however, make it clear that prima facie we are satisfied that the grounds are neither vague nor devoid of particulars nor the same can be said to be non-existent. As we are striking down the orders for the reasons stated hereinbelow, we feel it unnecessary to probe this aspect of the matter. From the admitted facts it transpires that the detenu made his representation to the State Govt. on 22.4.99 through the Superintendent of District Jail Dhuhri. The said representation was forwarded to the Government by registered post on the same day which was ultimately received by the Government on 3.5.99 The State Government on receipt of the representation forwarded the copy of the representation to the Government of India on 4.5.99 as well as to the Advisory Board which was scheduled to be held on 7.5.99. After meeting of the Advisory Board held on 7.5.99 the file was put up before the Deputy Secretary to the Govt. of Assam, Political (A) Department and it was placed before the Secretary on the same day. The Secretary put up the matter before the Chief Minister and on consideration of the same the representation was rejected on 12.5.99. From the affidavit of the State Government it transpires that the representation of the detenu was forwarded to the Central Government which was disposed of by the Central Govt. on 8.6.99. The Central Government did not prefer to file any affidavit nor any record has been produced before this Court. Learned Sr. C.G.S.C. has, however, supported the order of detention."

In paragraph 7 of that judgment, the Division Bench of this Court pointed out as follows:

"7. From the facts as indicated above, it appears that it took seven days to treaverse 295 kilometers from Dhubri to Dispur for the representation to arrive at the Secretariat table. Neither the District Administration nor the State Government has indicated as to why the representation against the order of detention could not be sent to the State Government promptly by any other means except relying on postal service. The representation was received on 3.5.99 which awaited disposal till 12.5.99. Forwarding of a copy of the representation to the Advisory Board ought not to have prevented the authority in its disposal of the representation which is required to be disposed of at the earliest instance. In conformity with the provisions of Article 22(5) of the Constitution. Similarly, there is no justifiable reason assigned by the Central Government in not disposing of the representation of the petitioner dated 22.4.99 prior to 18.6.99."

That case stand on a different footing.

The law regarding delay in transmitting representation is that if the Legislature enacts a law empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the appropriate Government and not the detaining authority, of necessity the Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as possible and it is considered by the authorities with equal promptitude. The intermediary authorities who are communicating authorities have also to move with an equal amount of promptitude. The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit. Any slackness in this behalf not properly explained would be denial of protection conferred by the statute and would result in invalidation of the order. On the question of delay which may vitiated the detention order, no hard and fast rule can be laid down and it is a matter which falls for determination on the facts and circumstances of each case.

The learned Advocate for the petitioner to buttress his argument regarding delay places reliance on the following decision :

(i) Vijay Kumar Vs. State of Jammu and Kashmir and Others, where the Supreme Court in paragraph 11 inter alia pointed out as follows :

"The jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order. The intermediary authorities who are communicating authorities has also to move with an amount of promptitude so that the statutory guarantee of affording earliest opportunity of making the representation and the same reaching the Government is translated into action. The corresponding obligation of the State to consider the representation cannot be whilled down by merely saying that much time was lost in the transit. If the Government enacts a law like the present Act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the Government and not the detaining authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as possible and it is considered by the authorities with equal promptitude. Any slackness in this behalf not properly explained would be denial of the detention conferred by the statute and would result in invalidation of the order."

(ii) Aslam Ahmed Zahire Ahmed Shaik Vs. Union of India and Others, That case does help the petitioner inasmuch as in that particular case, the delay unexplained took 7 days to transmit the representation to the Central Government as a result of which the representation reached the Government 11 days after it was handed over to Jail Superintendent and it was in this background it was held that the order of detention was vitiated, by delay. Here in this particular case, the representation was sent by postal service with all promptitude on the next day itself. In paragraph 12 the Supreme Court pointed out as follows:

"In our view, the supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an Intermediary, had ultimately caused undue delay in the disposal of the appellant''s representation by the government which received the representation eleven days after it was handed over to the Jail Superintended by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention for the appellant illegal and constitutionally impermissible."

In this particular case there is no such avoidable and unexplained delay. Rather, the delay has been explained.

(iii) (1980) 3 SCC (Sabir Ahmed v. Union of India). In that particular case there was a delay of four months in considering the detenu''s representation by the Central Government u/s 11 of the COFEPOSA and it was in that background that the detention was held to be illegal. The Supreme Court in paragraph 19 pointed out that since a representation was made by the detenu to the Central Government and since it has been ignored and left unattended for a period of about four months, the detention cannot be justified as being according to procedure prescribed by law.

(iv) In the Matter of Durga Show and Others, In that particular case the representation was received on 18.6.1969 and it was considered and rejected by the Government on 11.8.1969 and the Supreme Court further pointed out that in none of the cases any attempt has been made in the counter affidavit to explain the delay. A delay of 16 days which is the minimum out of the three cases is a long delay where a person is being detained without trial under a special law relating to preventive detention. In the case in hand as quoted above from the paragraphs, the delay was properly explained and we do no find it to be a case unexplained delay.

That being the position, this writ application is liable to be dismissed which we hereby do. The learned Govt. Advocate produced the records. The records were returned to him on the date of hearing itself after perusing the same. We have heard Mr. A C Borbora, learned Advocate for the petitioner. Sir AM Buzarbaruah, learned GA, Assam and Mr. PN Choudhury, learned CGSC.