Debajyoti Mazumdar and Others vs State of Assam and Others

V.D. Gyani, J.—By these petitions under Article 226 of the Constitution of India the detenus Pranab Bora through the Petitioner Ranjit Bora and detenu Naren Neog through the Petitioner Debajyoti Mazumdar, seeks to challenge the fresh orders of detention dated 16.10.97 (Annexure-D) passed against them by the Respondent No. 4, the District Magistrate, Nagaon, resusciated and refurbished by the fresh grounds of detention as contained in Annexure-E.

Both these petitions were heard together as they involve common questions of law. The arguments advanced are common and even in respect of basic facts, there is a striking similarity. The detaining authority is common to both. Even the earlier order of detention as passed on 7.3.97 filed as Annexure-A, was passed by the same detaining authority on the same date and their respective petitions Civil Rule (HC)No. 57/97 and Civil Rule (HC)No. 56/97 were also decided by this Court on the same date i.e. 23.6.97 although by separate judgments. These judgments are filed as Annexure-C to the petitions. These judgments are also reported in the State Law Journal, Guwahati Law Times - Pranab Bora v. State of Assam reported in (1997) 3 GLT 164 and Naren Neog v. State of Assam reported in (1997) 2 GLT 374. Since the questions of law involved in both these petitions are common and it is essentially on these questions of law that the petitions are being decided (both these petitions are being disposed) by a common judgment.

The impugned order of detention dated 16.10.97 (Annexure-D) which is almost identical except for the change of names of the detenus, is reproduced hereunder for ready reference:

Perused the dossier and report of the S.P. Nagaon (Assam) as well as all supporting documents listed in the report of the S.P. Nagaon, Assam and whereas after careful perusal, I am satisfied that the person known as Sri Pranab Bora @ Swapnil Deka Raja s/o Mukunda Bora village Kacharigaon, Purana Kaki, PS. Kaki, Nagaon, Assam is acting in a manner prejudicial to the security of the State and maintenance of public order and that it is imperative to detain him under public order and that it is imperative to detain him under the National Security Act, 1980 in the interest of security of the State and maintenance of public order.

I, Shri S. Abbasi, IAS, District Magistrate, Nagaon, Assam therefore in exercise of the powers conferred under Sub-section (2) of the Section 3 of the National Security Act, 1980 direct that the said Sri Pranab Bora @ Swapnil Deka Raja s/o Mukunda Bora of village Kacharigaon, Purana Kaki, P.S. Kaki, Nagaon, Assam be detained in the special jail, Nagaon. This order is passed while the said Sri Pranab Bora is in custody as I am satisfied that there is every likelihood of his release and I am satisfied that he would continue his activities which are inimical to the security of the State and against public order as soon as he is released from custody.

Sri Pranab Bora @ Swapnil Deka Raja s/o Mukunda Bora is to be given a copy of the Grounds of Detention along with a copy of the Dossier and report of the Superintendent of Police, Nagaon, Assam as well as a copy of all supporting documents mentioned in the report of the Superintendent of Police.

Sd/- (S. ABBASI, IAS) District Magistrate, Nagaon, Assam.

Even the grounds of detention are identical to both, inasmuch as, the allegation of being a hard core member of the banned organisation ULFA is concerned, their indulgence in unlawful activities with a view to wage war against the Govt. of India and to secede the State of Assam from the Union of India is common and if there is any different it is in the year of joining the banned organisation, while detenu Pranab Bora joined ULFA in the year 1990, detenu Naren Neog had joined in 1983. The fact that a police team went to the Special Jail, Nagaon on 14.7.97 to check the security arrangement and welfare of the prisoners inside the jail and discovered some letters, is also common to both the detenu. The grounds of detention are in essence common except the materials recovered from respective possession of the detenu which is detailed below:

Detenue Naren Neog (in Civil Rule (HC) 12/98)

(i) One letter addressed to Das-Borada-Deka dated 8.S.97 relating to his bail (enclosed at Ext-3)

(ii) 12 (twelve) Nos. of documents relating to ULFA organisation (Ext-4)

(iii) 2 (two) Nos. of diaries (Ext-5)

(iv) One photograph of Swahid Vedi of ULFA with symbol of "19th Raising Day of ULFA" (enclosed at Ext-6)

(v) One "Samabedana Patra" (Consolation letter) in connection with condolence of Late Tilak Mazumdar on reverse side of which is written as "Long Live ULFA" (Enclosed at Ext-7)

Detenu Pranab Bora (in Civil Rule (HC) 13/98

(i) One letter written by Achintya Baruah of Puranigudam addressed to Deka Raja relating ULFA organisation in which Achintya Baruah mentioned about the recent killing of Lakhi Deka and Prabin Bora both ULFA activists and he asked the subject to be careful about one Raju of Kaliabor whom he suspected had surrendered before the administration (copy enclosed at Ext-2).

(ii) One letter written by Nilamani addressed to one Binodda relating to ULFA organisation in which Nilamoni asked him to be careful about Police so that he does not get arrested (copy enclosed Ext-3)

(iii) One letter written by Abhinash Baruah addressed to one Bora dated 2.6.97 mentioning that Dharamtul P.S. has recently registered another case against him and asked him (Bora-da) to meet him on 7.6.97 when he would appear before the Court (copy enclosed at Ext-4).

Admittedly the detenus were in jail at the time of passing of the impugned order of detention, Annexure-"D" dated 16.10.97, as is also evident from the endorsement made on the order itself. They were not released despite the quashing of their earlier order of detention vide judgment dated 23.6.97 delivered in Civil Rule (HC) 56/97 and 57/97, allowing the Habeas Corpus petitions. It may be noted here at this stage that on 23.6.97 three writ petitions were decided, the third petition was by detenu-Petitioner Bolaram Kalita. This judgment has also been reported in Gauhati Law Times as Bolaram Kalita v. State of Assam and Ors. 1997 2 GLT 384.

Now coming to the grounds of challenge, Mr. N. Dutta, learned Counsel for the Petitioners assisted by Mr. Konwar has challenged the fresh orders of detention, Annexure-D, inter alia, on the grounds that:

(i) despite the judgments dated 23.6.97 delivered by this Court in writ petitions No. 56 and 57 of 1997, quashing the earlier detention orders, the detenus were not set at liberty forthwith, possibly in view of the pending criminal case/cases registered against them. The impugned orders of detention have been passed with a view to frustrate the writ issued by this Court. There is both malice in fact as well as law in passing the orders of detention.

(ii) no new facts constituting fresh grounds were in existence, or available to the detaining authority, once and after the earlier order of detention dated 7.3.97 filed as Annexure-"A" to these petitions was quashed vide judgment dated 23.6.97 filed as Annexure-C to these petitions ;

(iii) there was absolutely no application of mind on the part of the detaining authority while passing the impugned orders of detention. The subjective satisfaction is vitiated by non-application of mind to vital relevant facts, such as, non-consideration of the fact that earlier detention order dated 7.3.97 (Annexure-A) was quashed by this Court, the grounds used and availed for basing the earlier orders have also been made use of while passing the impugned orders of detention (Annexure-D), thus vitiating the requisite subjective satisfaction to be arrived at before making an order of detention ;

(iv) the impugned orders of detention (Annexure-D) as made by Respondent No. 4, the District Magistrate and confirmed by the State and Central Government suffers from the vice of both malice in law and malice in fact. Representation submitted by the detenus were mechanically disposed of as rejected without giving any thought and consideration to the requirements of law ;

(v) the grounds of detention relied upon by the Detaining Authority as contained in Annexure-E are vague, irrelevant and not germane to or having any nexus with the object sought to be achieved by passing the impugned detention orders ;

(vi) the action of both the State as well as the Central Government suffers from vice of non-application of mind, in confirming the detention orders on grounds wholly untenable in law;

(vii) that the grounds as communicated to the detenus were not contemporaneously prepared along with the detention order, the detention was not reported to the State Government forthwith. The detenus were not apprised of their right to make representation to the Advisory Board. The State Govt. and the Central Govt. which, as claimed by the Petitioners has seriously prejudiced them in making effective representations. The representations submitted by the detenus were not immediately forwarded to the concerned authorities and were illegally withheld by the Respondent No. 4 before being forwarded to the concerned authorities ;

(viii) relations and the family members of the detenus were not informed of fresh detention order passed against them which again resulted in prejudices to the detenus in making effective representation against the detention ;

(ix) there was undue, unreasonable, unexplained delay in disposing of the respective representation of the detenus.

The detenus have denied the alleged recovery of letters, material documents from their possession and also their alleged connection with the banned organisation, ULFA, but we are not going into this factual controversy. According to detenus fresh orders of detention, Annexure-D, have been passed solely with a view to defeat the writ issued by this Court and the bail orders that have already been passed prior to the passing of the fresh detention order. The fresh detention order has been passed with a view to frustrate the judgments (Annexure-C) delivered by this Court quashing the earlier detention order, Annexure-A.

Mr. Dutta while decrying the lackadaisical attitude and approach of the executive, who continue to behave in their old lethargic fashion, questioned the very propriety, legality and ethics of passing the fresh detention orders, that too by an authority like Respondent No. 4, who has no authority in law to pass such orders of detention u/s 3(2) of the Act, a plea specifically taken by the detenus in their earlier petitions 56 and 57/97 by this Court even while allowing the petitions and quashing the detention orders on other grounds bailed him out on the point of inherent lack of authority. It is this authority of Respondent No. 4, who has passed the fresh detention orders (Annexure-"D") not only in defiance of all the law laid down by the Supreme Court over the past four decades but also the writs issued by this Court vide judgment dated 23.6.97 (Annexure-C), pooh poohing the very idea and its ready gratuitous acceptance by the detaining authority without the slightest demur that the police team had gone to the Special Jail on 14.7.97 to check the ''welfare'' of the prisoners which was nothing but an ingenuous device to dig out some fresh facts to refurbish and resuscitate the dying detention order. The term ''welfare'' itself is not there either in the Prisons Act, 1894 or the Police Act, 1861 both of 19th Century vintage. Let us make it clear that we are not at the moment on jail reforms.

The Respondents in their respective affidavits have denied the allegations made and claimed that order of detention (Annexure-D) was passed on the fresh grounds as specified in Annexure-D. It has also been contended and claimed that all the procedural requirements have been followed and fully complied with. The allegations of malice as made by the detenue have also been emphatically denied. So far as disposal of representation is concerned, the Respondents have claimed and maintained that the same has been disposed of without any delay as such on their part. The detaining authority, Respondent No. 4, denied the allegations made by the Petitioner and claimed that the impugned orders of detention have been passed on due application of mind, on finding of new materials constituting fresh grounds of detention and having complied with all the requirements of Section 3 of the Act.

Learned Additional Advocate General, Mr. Bora, appearing for the Respondent-State and the Detaining Authority, contended that it is futile to say that the impugned orders have been passed without any application of mind or that the subjective satisfaction of the detaining authority was vitiated in any manner. The grounds of detention as contained in Annexure-E, fully justify the impugned orders of detention, Annexure-D. According to him the grounds contained in Annexure-E are fresh grounds and have nothing to do with the grounds of detention availed and relied upon by the detaining authority, Respondent No. 4, while passing the earlier order of detention dated 7.3.97, Annexure-A. It was argued that the detaining authority in face of the unlawful seditious activities carried out and indulged in by the detenus have to face tough times and situations. He, therefore, urged that a pragmatic realistic view should be adopted by the Courts in such matters.

Mr. P.N. Choudhury, learned Additional C.G.S.C. submitted that there was no delay on the part of the Central Government in considering the detenus'' representation, the time consumed and delay, if any, has been amply explained in paragraphs 6 and 7 of the counter affidavit filed by an Under Secretary in the Ministry of Home Affairs.

Before proceeding to deal with the rival contentions advanced at the Bar by learned Counsel appearing for the parties, we would like to point out that these petitions are being heard day to day since yesterday. Every possible accommodation has been shown to the Respondents to meet the case as advanced and argued by the Petitioners. Since it was a case of fresh detention orders being passed by the detaining authority, we directed him yesterday to remain present with complete record of these two petitions. Accordingly he has appeared today with record. We are in agreement with the learned Additional Advocate General that as far as taking a realistic pragmatic view of the whole matter is concerned.

It is because of this perception that in all such cases without a single exception, this Court has been consistently holding mat the grounds of detention, relied upon by the detaining authority, not only in this case but also many others, have been held to be good grounds relevant and germane to, and even proximate in point of time, having nexus with the object sought to be achieved. If the detention orders have been quashed it is not because of the grounds not being relevant but because of serious lapses on the part of the authorities in not complying with the inbuilt procedural safeguards provided in the Act. Without going too far, the three cases noted above - 1997 (2) GLT 374 ; 1997 (3) GLT 164 and 1997 (2) GLT 384 , of which the first two relate to the present detenus, would bear testimony to our view, both these judgments are also available on record as Annexure-"C" to the petitions. Placing reliance on Prakash Chandra Mehta Vs. Commissioner and Secretary, Government of Kerala and Others, learned Addl. Advocate General submitted that strict adherence to procedure sacrificing larger social interest is neither justified nor should it be insisted upon by the Courts.

Keeping apart the legal position as reflected in subsequent judgments, we would like to make it clear that we are not on rigid adherence of some procedural requirements of non consequence so far as the petitions at hand are concerned. What we are on is of fundamental importance to the exercise of power u/s 3(2) of the Act.

Prakash Mehta (supra) itself has been distinguished along with Madan Lal Anand Vs. Union of India and others, which followed Prakash Mehta (supra) by the Supreme Court in subsequent judgment as reported in K. Satyanarayan Subudhi Vs. Union of India, and others, Going through Satyanarayan (supra) it would be seen that the question involved was comparatively of no consequence as compared to the points raised in these petitions. It was just a matter of non-placement of retracted confession before the detaining authority and non-consideration of the same, by the detaining authority, Prakash Mehta was cited in support of the detention order but the Supreme Court distinguishing Prakash Mehta, held that non-placement of retracted confession before the detaining authority rendered the order of detention invalid.

A grievance has been made about non-supply of these facts and materials. Grounds mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which therefore, the order of detention is based. It is the factual constituent of the ''grounds'' on which the subjective satisfaction of the authority is based. Therefore, nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu. See Khudiram Das Vs. The State of West Bengal and Others, Admittedly, the documents referred to in the Dossier have not been supplied and ad-verbatim reproduction of Dossier submitted by the Superintendent of Police is itself an indication of non-application of mind (see. Jai Singh and Others Vs. State of Jammu and Kashmir, All these factors vitiate the order of detention.

In contrast to non-placement of retracted confession, as in K. Satyanarayan (supra) what we are concerned with, is non-placement of judgment dated 23.6.97 delivered by this Court (Annexure-C) quashing the earlier order of detention dated 9.3.97 (Annexure-A), and the detaining authority just ignores the judgment Annexure-C, altogether there is not the remotest reference to it either in the order dated 16.10.97 or the grounds of detention, so much so even the affidavit filed by the detaining authority is totally silent about it. This cannot be ignored as mere procedural requirement of not much consequence. The detaining authority could still well have arrived at the same satisfaction and conclusion on consideration of the judgment Annexure-C, but to ignore it altogether has its own vitiating effect.

While we have already expressed our agreement with the learned Additional Advocate General, in taking a pragmatic view of the matter as a whole we cannot agree with him that even non-placement of vital material, should also be overlooked.

There is another side of the coin, while on one hand it is argued by the State that taking a realistic approach and rigid adherence to procedural requirements what is being termed as procedural requirements are indeed the Constitutional safeguards embodied in Article 22(4) and (5) of the Constitution.

When life and liberty of citizen is involved, it is expected that the Government will ensure that the Constitutional safeguards as embodied in Article 22(5) are strictly observed, the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of the procedural safeguards (see Mohinuddin v. District Magistrate, Beed AIR 1989 SC 1979).

The same view has been expressed by the Supreme Court in Abdul Latif Abdul Wahab Sheikh Vs. B.K. Jha and another, . It was a case where reference to the Advisory Board to be made within three weeks was not so made and what was contended before the Court was that though it was not made within three weeks, but made before the hearing of the case. Similarly, the report of the Advisory Board to be obtained within three months was not so obtained and again it was contended by the State that even if not obtained within three months it was obtained well before hearing of the case. The representation submitted by the detenu was not disposed by the Advisory Board within three months. The Supreme Court held that the procedural requirement are the only safeguard to a detenue and are, therefore, required to be complied with if any value is to be attached to the liberty of the subject and the Constitutional rights guaranteed to him in that regard. It is no answer to say that even if a reference was not made and obtained before hearing of the case.

The Supreme Court in Kamleshkumar Ishwardas Patel Vs. Union of India (UOI) and Others, has observed that while discharging the constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, the Court would not be influenced by the nature of the activities of the detenu. History of liberty is the history of procedural safeguards. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "zealously watched and enforced by the Court". Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. In Kundanbhai Dulabhai Shaikh v. District Magistrate as reported in (1996) 3 SCC 194, the Supreme Court has pointed out that when it comes to fundamental rights under the Constitution, the Supreme Court, irrespective of enormity and gravity of allegations made against the detenu, has to intervene. The gravity of the evil to the community resulting from anti-social activities cannot furnish sufficient reason for invading the personal liberty of a citizen, except in accordance with the procedure established by law particularly as normal penal laws would still be available for being invoked rather than keeping a person in detention without trial.

It is in Kundan Bhai (supra) that the Supreme Court has come down heavily on the behaviour and the attitude of the Executive. Ofcourse, the criticism relates to handling of representation but it applies to those cases in what casual manner the fresh detention orders have been passed. The Supreme Court has observed in Kundanbhai Dulabhai Shaikh (supra) that:

In spite of law laid down by the Supreme Court repeatedly over the past three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all other files rusting in the Secretariat for various reasons including red-tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The Government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, the Supreme Court will not hesitate in quashing the order of detention to restore the ''liberty and freedom'' to the person whose detention is allowed to become bad by the Government itself on account of his representation not being disposed of at the earliest.

We have travelled a long distance, in both time and thought, since A.K. Gopalan Vs. The State of Madras, As back as in 1968, the Supreme Court in Motilal Jain Vs. State of Bihar and Others, observed that:

The continuous indifference to individual liberty is bound to erode the structure of our democratic society.

These two petitions challenging the fresh detention orders clamped against the detenus, it was argued, was nothing but a device to frustrate and whittle down the Writ issued by this Court vide judgment dated 23.6.97 filed as Annexure-C to the petitions. Countering the argument, learned Addl. Advocate General maintains that it is based on the fresh materials discovered as contained in Annexure-E.

Before proceeding further to deal with the above rival contentions, it would be pertinent to refer to sub-sec (2) of Section 14 of the Act which was introduced by National Security (Second Amendment) Act, 1984 which provides for making of another order against the same person, an expiry of revocation of a detention order passed earlier. It was contended on behalf of the detenus that since no fresh facts have arisen, after the quashing of the earlier detention order dated 7.3.97 Annexure-A, vide judgment dated 23.6.97 (Annexure-C), even if it is held that the first ground as enumerated in Annexure-E survives and the second ground being irrelevant, yet the impugned detention order Annexure-D can in no case extend beyond the expiry of period of twelve months, which expired on 6.3.97, the detenus ought to have been released by now, but they have not been.

It would not be out of place at this stage to consider as to what is the scope available to the detaining authority passing a fresh order of detention after the earlier order having been quashed by the High Court. This has been considered in several judgments of the Supreme Court commencing from:

(1) Hadibandhu Das Vs. District Magistrate and Another,

(2) Ghulam Nabi Zaki v. State of Jammu & Kashmir,

(3) Har Jas Dev Singh Vs. State of Punjab and Others,

(4) Chotka Hembram Vs. State of West Bengal and Others,

(5) Ibrahim Bachu Bafan Vs. State of Gujarat and Ors,

(6) Ahmedhussain Shaikhhussain @ Ahmed Kalio Vs. Commissioner of Police, Ahmedabad and Another, and

(7) Jahangirkhan Fazalkhan Pathan Vs. Police Commissioner, Ahmedabad and Another,

- are but the few cases from which the following principles can be culled out:

(1) If the fresh facts cannot form the basis of a conclusion on which the detention order can be made, then those facts are not fresh facts.

(2) No fresh order of detention can be made on the ground which existed prior to the revocation or expiry of the earlier order of detention.

(3) The feet that the first order of detention was revoked due to technical defect is immaterial.

(4) The release of the detenue on bail would not constitute fresh facts.

(5) The variation in the enumeration of the prejudicial acts have nothing to do with fresh facts.

DETENUE NAREN NEOG

Annexure-B

You are a member of United Liberation Front of Assam (ULFA), an organisation which has been formed with a view to waging war against the Govt. of India and seceding Assam from the Union of India. This organisation was banned by the Govt. of India in November. 1990.

You joined ULFA in the month of May, 1983 and underwent training in Arms and Guerrilla warfare tactics under the NSCN (G HQ) at Juna (Myanmar) along with Pradip Gogoi/Golap Gogoi @ Anup Chetia/Ramu Mech @ Prabin Konwar/Apurba Baruah @ Bhaiti/Romen Nath of Bagariguri (Morigaon Dist)/Ajit Bora of Darrang/Raju Baruah @ Hitesh Kalita/Lohit Deori @ Sahadev Das/Banning Rava/Xavier Tudu of Sonitpur. You underwent explosive arms including Rocket Luncher, Anti-Aircraft, Missiles, Guerrilla warfare, handling of explosive etc. with a view to liberating Assam from the Indian Union by means of Arms struggle.

Annexure-E

You are a member of United Liberation Front of Assam (ULFA), an organisation which has been formed with a view to wage war against the Govt. of India established by law and secede Assam from the Union of India. The organisation is banned by the Govt. of India in the month of November, 1990.

You joined ULFA in 1983 and underwent arms and guerrilla warfare training at the NSCN Head Quarter - Tuna, Myanmar (enclosed at Exh-1). After training from 1986 to 1988 you took quite a good numbers of ULFA cadres to the NSCN Head quarter for arms training in furtherance of you object i.e. to wage war against the Govt. of India with a view to secede Assam from the Union of India (enclosed at Exh-2).

DETENU PRANAB BORA

Annexure-B

You are a member of United Liberation Front of Assam (ULFA), an organisation which has been formed with the purpose of waging war against Govt. of India. This organisation was banned by the Govt. of India in November, 1990.

You joined the banned ULFA organisation in the year 1990 and underwent training in arms and guerrilla warfare tactics at Chapanalla under the guidance of Pradip Saikia @ Prabal Saikia (since died) with a view to liberating Assam from the Indian Union by means of Arms struggle. During the period of training at Chapanalla you met about 150 (one hundred fifty) cadres namely Prasanti Bora of Chaharigaon/Asim Saikia @ Gautom Mudoi of Kaki/Palash Bhuyan of Kampur/Sunil Laskar/sagar Kalita @ Prasanti Goswami/Paran Medhi of Morigoan/Trideep Bhuyan of Nagaon/Pabitra Zamindar (since died)/Padum Sarma/Bijoy Phukon/Oman Baruah and others. Annexure-E

You had joined ULFA in the year 1990 and thereafter underwent training in arms and guerrilla warfare tactics at Chapanalla under P.S. Samaguri, Nagaon, Assam under the guidance of Pradip Saikia (since died) with a view to secede Assam from the Union of India by arms struggle. After training in the month of April/92, you were appointed as Organising Secretary of Nagaon District Unit of ULFA. During that period you had arranged for recruitment of many cadres (men and women) from Nagaon District to wage war against the Govt. of India. You being an Organising Secretary set up womens'' Front of ULFA in Nagaon area with the help Of women cadre Miss Rita Bhagawati @ Rijumoni Deka of Dolongghat under Mikirbheta P.S. in the Morigaon District. It is clearly enunciated in the statement made by Rita Bhagawati (copy enclosed at Exh-1).

Let us now compare and consider the grounds as set forth above.

The grounds of detention Annexure-B as relied upon by the detaining authority in support of the earlier detention order dated 9.3.97 Annexure-A and the Ground No. 1 as enumerated in Annexure-E in support of the impugned order of detention Annexure-D are substantially the same. The same allegations of being a member of banned organisation ULFA, carrying out unlawful activities with a view to liberate the State of Assam from the Union of India are almost identical with some variation of names of the associates, but nonetheless the nature of activities alleged is the same. This ground having been availed in support of the earlier order of detention dated 7.3.97 (Annexure-A), cannot be availed of in passing the subsequent order of detention (Annexure-D). The Supreme Court had occasion to deal with a similar question in Chhagan Bhagwan Kahar Vs. N.L. Kalna and Others, having referred to its earlier judgment, as already noted above, the Apex Court quoting the following passage from Ibrahim Bachu Bafan (supra) held as follows:

...When the High Court exercises jurisdiction under Article 226 of the Constitution it does not make an order of revocation. By issuing a high prerogative writ like have as corpus or certiorari it quashes the order impugned before it and by declaring the order to be void and striking down the same it nullifies the order. The ultimate effect of cancellation of an order by revocation and quashing the same in exercise of the high prerogative jurisdiction vested in the High Court may be the same but the manner in which the situation is obtained is patently different and while one process is covered by Section 11(1) of the Act, the other is not known to the statute and is exercised by an authority beyond the purview of Sub-section (1) of Section 11 of the Act. It is, therefore, our clear opinion that in a situation where the order of detention has been quashed by the High Court, Sub-section (2) of Section 11 is not applicable and the detaining authority is not entitled to make another order u/s 3 of the Act on the same ground"

It emerges from the above authoritative judicial pronouncement that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order. A fortiori when detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order.

Reiterating the same view in Jahangir Khan Pathan (supra) the Supreme Court held that consideration of grounds set out in previous detention order which had been quashed by the Court is fatal to the fresh order of detention. If such previous grounds of detention are taken into consideration while affirming the subjective satisfaction by the detaining authority in making a detention order, the order of detention stands vitiated. The Supreme Court has. further held in Jahangir Khan (supra) that it is of no consequence if further fresh facts disclosed in the grounds of the impugned detention order have been considered.

Although the counsel for the Petitioners has even challenged the fresh grounds as irrelevant, we are not going into that controversy, that is not to suggest that the criticism made is not available to the Petitioners. Taking into consideration the incident which constituted the subject matter of earlier order of detention, would equally vitiate the subsequent order as held by the Supreme Court in Ahmedhussain Shaikhhussain @ Ahmed Kalio Vs. Commissioner of Police, Ahmedabad and Another,

It was argued by the learned Additional Advocate General that the reference to facts and events as contained at Serial No. 1 in the grounds of detention (Annexure-E) is merely a reference by way of introductory narration of the activities of the detenus. The detaining authority Respondent No. 4 does not say so in his affidavit dated 24.3.98. On the other hand, the Respondent No. 4 in his affidavit dated 24.3.98 has emphasised that the detention order Annexure-D was passed on the grounds of detention as contained in Annexure-E and has categorically stated that he was satisfied with the sufficiency of the materials in the grounds and after being satisfied the order was passed (see paragraph 8 of the affidavit by Respondent No. 4). It cannot therefore be said that this Ground No. 1 as contained in Annexure-E is merely introductory in nature. It is not something open to argument, by the counsel. The Supreme Court in Jagdish and Others Vs. Nathi Mal Kejriwal and Others, has pointed out that it is well settled that the detaining authority cannot by an affidavit filed in the Court supplement what is stated in the grounds of detention or add to it, but in the case at hand the detaining authority himself has admitted on oath that he has availed and made use of the Ground No. 1 as contained in Annexure-E for arriving at the requisite subjective satisfaction for passing the impugned detention order Annexure-D under challenge. The argument advanced runs not only runs counter to the affidavit but also the law laid down by the Supreme Court. The subjective satisfaction thus arrived at stands vitiated.

There is yet another limb of argument on the point of non-application of mind to a vital fact. As already noted above in K. Satyanarayan (supra) non-placement of confession retracted by the detenu and non-consideration thereof by the detaining authority while passing the order of detention renders the order of detention invalid. In the instant case quashing of the earlier order of detention Annexure-A vide judgment dated 23.6.97 (annex-C) was not at all placed before the detaining authority while passing the impugned order of detention (Annexure-D). There is absolutely no reference to this judgment (Annexure-C) either in the impugned order of detention (Annexure-D) of the grounds of detention (Annexure-E) and so much so even in affidavit filed by the detaining authority on 24.3.98. We pointedly asked the learned Additional Advocate General, was it not a vital fact which ought to have been placed before the detaining authority and addressed to, his answer was that the detaining authority was satisfied on the basis of the fresh material as discovered. There was no need to refer to either the judgment Annexure-C or the fact that earlier detention order had been quashed by this Court What was that compelling necessity to pass the detention order in defiance of the judgment of the High Court and the writs issued ? There is not a whisper about it either in the order of detention, the grounds of detention or even the affidavits filed by the Respondent State and the detaining authority. If non-placement of retracted confession, non-consideration of the fact that the detenu is already in jail, rejection or acceptance of bail at the time of passing the detention order, can go to vitiate the subjective satisfaction of the detaining authority, it does not stand to reason as to why the judgment quashing the earlier detention order is not a vital material fact to be taken into account by the detaining authority before passing the fresh detention order, more so in face of the fact, as just discussed above, the grounds availed in support of the earlier detention order is also made us of, as one of the grounds in support of the fresh order of detention.

It was not doubt open to the detaining authority to arrive at his own conclusion either way on consideration of the judgment Annexure-C quashing the earlier order of detention Annexure-A, but it cannot simply be ignored or overlooked. Even on this count, the subjective satisfaction, as claimed to have been arrived at by the Respondent No. 4 before passing the impugned order of detention Annexure-D, stands vitiated.

In Union of India (UOI) and Others Vs. Manoharlal Narang, an interim order passed by the Supreme Court in a pending appeal against the High Court''s quashing of previous order of detention as against the same detenu was not considered by the detaining authority while making subsequent order of detention, the Supreme Court not only held that the interim order constituted important relevant material and its non-consideration was fatal to the subsequent order of detention. It was a clear case of non-application of mind to a vital fact. The plea was raised in this case that the detaining authority was not supposed to collect Court''s proceedings from concerned Department, before making the detention order. The Supreme Court not only rejected the plea but also deprecated the raising of such a plea in no uncertain terms.

The judgment Annexure-C delivered in the cases of these very detenus quashing the detention order Annexure-A, passed by the same District Magistrate Respondent No. 4 who was also a party to it, it was his order, his formulation of grounds of detention in support of the earlier detention order Annexure-A, that was quashed, yet the judgment (Annexure-C) was not considered fit to be taken into account by the detaining authority who very conveniently brushed it aside, while passing the impugned order of detention Annexure-D. Is this application of mind ? Does it not indicate malice ? both in fact and law.

If the material and vital fact, and the judgment of this Court quashing the earlier detention order was undoubtedly one such fact, which would have influenced the mind of the detaining authority one way or the other on the question whether to pass a detention order or not, is not placed and considered the subjective satisfaction is certainly vitiated rendering the detention order illegal. No authority can and should omit to apply his mind to a relevant material fact, without running the risk of vitiating his own subjective satisfaction. How much weight is to be given to such a fact, what inference are to be deduced therefrom, or even if it is to be accepted at all or rejected outright is entirely within the domain of the authority, but it is not left to the whims and caprice of the authority to exclude the same, such exclusion from consideration of vitally important relevant fact would invariably result in vitiation of the subjective satisfaction claimed by the authority as in the instant case.

The only limited jurisdiction possessed by a Court is to examine whether the subjective satisfaction reached by the District Magistrate was based on no material at all or was such as no reasonable person would arrive at on the basis of the material which was before the District Magistrate, (see State of Orissa and Another Vs. Shri Manilal Singhania and Another, .

The subjective satisfaction of the detaining authority is a condition of the making of the order, and if that condition is shown to exist, the Courts have no power to enquire into the sufficiency of materials on which the order is made or the propriety or expediency of making the order. It is the satisfaction of the prescribed authority which is determinative of the validity. That, however, does not exclude the Courts power to investigate, into the compliance with the procedural safeguards imposed by the statute, or into the existence of prescribed conditions precedent to the exercise of power, or into a plea that the order was made mala fide or for a collateral purpose (see Sadhu Singh Vs. Delhi Administration,

learned Counsel appearing for the detenus fervently appealed that it is not merely a case of quashing the detention order Annexure-D, but considering the casual manner in which the fresh order of detention Annexure-D has been passed by the District Magistrate, without giving any thought to his own authority under the law to exercise powers u/s 3(2) of the Act, let alone other procedural requirements engrafted in the Act itself, in order to satisfy ourselves we asked the District Magistrate present, about his own power to pass the impugned order. He was not in a position to give us the notification, not even its date so that we could take judicial notice to it. Such is the position when a fresh order of detention Annexure-D is passed in defiance of this Court''s judgment dated 23.6.97 (Annexure-C) and the District Magistrate clamping the fresh detention is not sure of his own authority. He, however, sought some time to produce the delegating powers to him, but it is certainly not in his record as produced. He sought some time to produce the same.

Learned Addl. Advocate General objected that this is not in issue, to which Mr. Dutta promptly countered mat it was very much in issue in the earlier petitions filed by the detenus i.e. C.R.(HC) 56/97 and 57/97, and it is very much in issue even now. Simply because this Court bailed out the detaining authority on the earlier occasion, this time no latitude to be shown nor compromise should be made. The State has simply refused to draw a lesson from the earlier judgment and continued to persist in its own the illegalities. Referring to Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, expressing surprise at the hyper technical objection taken by the learned Add. Advocate General about production of notification/order, a point which goes to the root of the matter. Here is a District Magistrate who was passing a fresh detention order in defiance of High Court''s judgment, quashing the earlier detention orders passed against the detenus by the same District Magistrate who is blissfully ignorant of his own authority and the Addl. Advocate General objecting to its production. learned Counsel commented that had this Court, struck down the notification the fresh order of detention Annexure-D would not have been there. The illegality could not have been perpetuated and the infringement of personal liberty even after this Court issuing the writ of Habeas Corpus, could have been averted. "A tendency of casual and cavalier manner" in dealing with personal liberty possibly makes the conscience of the detaining authority insensitive if not blunt. The Supreme Court was alive to this possible abuse of power because of its continuous exercise conferred on authorities (see G. Sadanandan Vs. State of Kerala and Another,

The District Magistrate having sought some time to produce the order, placed before us a notification dated 19th August, 1997, issued by the Govt. of Assam but before we consider the same we would like to deal with the objection taken by the learned Addl. Advocate General.

Now that the point of pleadings has been raised, it has become necessary for us to refer to some judgments on the point. After all, what is the object of proceedings for a Writ of Habeas Corpus ? The Supreme Court has answered this question in Ranjit Singh Vs. The State of Punjab, thus:

The whole object of proceedings for a writ of habeas corpus'' is to make them expeditious, to keep them as free from technicality as possible and to keep them as ''simple as possible. ''The incalculable value of habeas corpus is that it enables the immediate determination of the right to the Appellant''s freedom''. When there is no question of feet to be examined or determined no affidavit is needed. As soon as there emerges a fact into which the Court feels it should enquire the necessity for an affidavit arise. Ordinarily an affidavit may not be necessary in making the return if the detention is under orders of the detaining authority in exercise of its plenary discretion or a person is detained under the orders of a Court. But where the detention is in police lock up it becomes necessary for the detaining authority to justify its action by disclosing facts which would show to the satisfaction of the Court that the custody is not improper. Where the prisoner says ''I do not know why I have been detained, I have done no wrong'', it is for the detaining authority to justify the custody. When issues of fact are raised and the actions of the police officers, are expressly challenged and facts are set out which if unrebutted and unexplained would be sufficient for the writ to issue, an affidavit becomes necessary.

The Supreme Court in Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, has very succinctly dealt with the question of pleadings in a petition for a Writ of habeas corpus. The following passage is undoubtedly instructive:

It is also necessary to point out that in case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail has been sufficient to activise this Court into examining the legality of detention. this Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention. this Court has no many occasions Pointed out that when a rule is issued it is incumbent on the detaining authority to satisfy the Court that the detention of the Petitioner is legal and in conformity with the mandatory provisions of the law authorising such detention : Vide Niranjansingh Vs. State of Madhya Pradesh, Shaik Hanif and Others Vs. State of W.B., and Dulal Roy Vs. The District Magistrate, Burdwan and Others, It has also been insisted by this Court that in answer to this rule, the detaining authority must place all therelevant facts before the Court which would show that the detention is in accordance with provisions of the Act. It would be no argument on the part of the detaining authority to say that a particular ground is not taken in the petition. Vide Sk. Nizamuddin Vs. State of West Bengal, Once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observe and the citizen is not deprived of his personal liberty otherwise than in accordance with law. Vide Mohd. Alam Vs. State of West Bengal, and Khudiram Das Vs. The State of West Bengal and Others,

It is not a case of lack of pleadings. It is the claim of the detaining authority that Section 3 has been fully complied with. As has been held by the Supreme Court in Ranjit Singh (supra) that when there is no question of fact to be examined or determine, no affidavit is needed. We are examining the notification on its face value.

On June 23, 1997 along with the judgment delivered in writ petitions Civil Rule (HC) Nos. 56/97 and 57/97, filed by the detenus there was yet another case of detenu Bolaram Kalita v. State of Assam and Ors. reported in 1997 (2) GLT 384, decided on the same date i.e. 23.6.97 and the same Additional Advocate General who appeared in these cases also appeared for the State, and this question of delegation of power to the District Magistrate u/s 3(2) of the Act was considered wherein this Court observed as follows:

"23. The last point which goes to the root of the matter, hitting at the source of authority of the District Magistrate, in passing the impugned order, and probably the post important point, as taken in paragraph 7 of the Petitioner''s petition. The said paragraph 7 extracted below:

That the Petitioner begs to state that no order has been passed by the State Government u/s 3(3) and 3(4) of the Act and in any case no such order has been communicated to the Petitioner.

Significantly enough this has not been controverted by the State Government nor the District Magistrate. A mere reading of Section 3 of the Act would reveal that the right to exercise the power of detention under Sub-section (3) vests either in the Central Government or in the State Government. Sub-section (3) merely enables and empowers the State Government to delegate that power of detention to the District Magistrate or Commissioner of Police of a particular area, of course, fulfilment of conditions enumerated therein, namely (i) an evaluation of the prevailing circumstance or circumstances likely to prevail in any area (ii) satisfaction of the State Government that it is necessary to confer power on the District Magistrate, or the Commissioner of Police, and (iii) there must been order in writing directing the District Magistrate or Commissioner of Police to exercise such power for a period as may be specified in the written order and the above period cannot in first instance exceed 3 months. These conditions must be fulfilled by the State before it confers power on the District Magistrate. What the Petitioner has challenged that there was no such order in writing by the State Government conferring power of detention on the District Magistrate, nothing was easier for the State Government that to place the order in writing, but that has not been done. Let alone production of the documents even the averments made by the Petitioner has not been controverted, although it goes to the root of the matter. Unless there is an order in writing, the District Magistrate, Kamrup could not have legally passed the impugned order which in absence of any pleading of denial on the part of the State Respondents must beheld to be wholly without jurisdiction. It is unfortunate that both the State Government as well as the District Magistrate have taken the allegation very lightly without realising the serious legal consequences of such a pathetic omission.

It is not as if the question of detention of power to the District Magistrate is arising for the first time so far as the Respondent State is concerned. It is immaterial whether the point is raised and decided in a petition filed by a particular detenu. The notification conferring power is equally applicable to all the District Magistrates. We purposefully avoided at that point of time to strike down the exercise of power u/s 3(2) of the Act by the District Magistrate on the ground of want of valid delegation in the fond hope that the State may take a lesson. These cases are reported and the State and the same District Magistrate are parties thereof, yet the illegality continued and perpetuated unabated. Not only this, keeping aside the High Court''s judgment, fresh orders are being passed. It would thus be clear that it is not on a hypothetical microsituational view that we are considering the validity of the order dated 27.8.97 conferring powers on all the District Magistrates of the State. It is based on concrete fact, indeed the pleaded case of the State. Even strict rules of pleading are applied, although they are not applicable to a petition for writ of habeas corpus, yet it cannot be said that there is no pleadings and we are taking the notification on its face value without touching upon the question of satisfaction of the State Govt. as regards the prevailing conditions.

It is not a case of lack of pleadings. Even on facts, the objection raised by the learned Addl. Advocate General cannot be sustained. Firstly, because we have on list today two more habeas corpus petitions at Sl. No. 3 and 4, being Civil Rule (HC) 10/98 and 11/98 P. Das v. State of Assam and Ors. and Goyinda Deka v. State of Assam and Ors. In P. Das''s case, the detaining authority, the District Magistrate, Kamrup, Guwahati has referred to the same Notification No. PLA. 326/97/5 dated 27.8.97 as the source of his authority to exercise powers conferred by Sub-section (2) of Section 3 of the National Security Act. It is by this very notification as produced by the Respondent No. 4, the District Magistrate, Nagaon was conferred with the powers exercisable under Sub-section (2) of Section 3 of the Act. This notification is reproduced hereunder for ready reference:

GOVERNMENT OF ASSAM POLITICAL (A) DEPARTMENT, DISPUR ORDERS BY THE GOVERNOR NOTIFICATION Dated Dispur, the 27th Aug.''97

No. PLA. 326/97/5 : Whereas having regard to the circumstances prevailing or likely to prevail in the districts of (1) Cachar (2) Karimganj (3) N.C. Hills (4) Karbi Anglong (5) Dibrugarh (6) Sibsagar (7) Jorhat (8) Nagaon (9) Lakhimpur (10) Sonitpur (11) Kamrup (12) Nalbari (13) Barpeta (14) Goalpara (15) Dhubri (16) Morigaon (17) Kokrajhar (18) Golaghat (19) Darrang (20) Tinsukia (21) Dhemaji (22) Bongaigaon and (23) Hailakandi the Governor of Assam is satisfied that it is necessary so to do and in exercise of the powers conferred under the proviso to Sub-section (3) of Section 3 of the National Security Act, 1980, the Governor of Assam is pleased to extend hereby, the period of validity of the Notification No. PLA. 326/97/2 dated 31.5.97 for a further period of 3 (three) months with effect from 1.9.1997.

Sd/- C.P. Misra Addl. Chief Secretary & Principal Secretary to the Govt. of Assam, Home & Political Deptt., Dispur.

Memo No. PLA. 326/9775 A, Dated Dispur, the 27th Aug. 97.

....

One identical Notification issued by the Government of Maharashtra came up for consideration before the Supreme Court in Abhay Shridhar Ambulkar Vs. S.V. Bhave, Commissioner of Police and Others, The Maharashtra Notification was quoted in the said judgment is also reproduced below:

No. NSA-2390/l/SPL-3(B) - Whereas the Government of Maharashtra is satisfied that having regard to circumstances prevailing or likely to prevail in the Greater Bombay Police Commissionerate, it is necessary that during the period commencing on 30th January, 1990 and ending on the 29th April, 1990, the Commissioner of Police and the said Commissioner should also exercise the powers conferred by Sub-section (2) of Section 3 of the National Security Act, 1980 (65 of 1980) (hereinafter referred to as "the said Act").

Now, therefore, in exercise of the powers conferred by Sub-section (3) of the Section 3 of the said Act, the Government of Maharashtra hereby directs that for the period commencing on the 30th January 1990 and ending on 29th April 1990 the Commissioner of Police, Greater, Bombay may also if satisfied as provided in Sub-section (2) of Section 3 of the said Act exercise the powers conferred on the State Government by Sub-section (2) of Section 3 of the said Act.

The two notifications, quoted above are almost identical and they are identical so far as the question of circumstances prevailing or likely to prevail is concerned, the same expression is used in both these notifications. The Supreme Court in view of the use of disjunctive word ''or'' has categorically held the notification as invalid and consequently the detention in exercise of the power conferred by such order has also been held to be invalid. The reason assigned by the Supreme Court is to be found in paragraph 8 of the judgment, which reads as follows:

The subjective satisfaction cannot be lightly recorded by reproducing both the alternative clauses of the statute. The subjective satisfaction on the prevailing circumstances, or circumstances that are likely to prevail at a future date is the sine qua non for the exercise of power. The use of the word ''or'' signifies either of the two situations for different periods. That, however, is not to say that the power cannot be exercised for a future period by taking into consideration circumstances prevailing on the date of the order as well as circumstances likely to prevail in future. The latter may stem from the former. For example, there may be disturbances on the date of the order and the same situation may be visualised at a future date also in which case the power may be conferred on the subordinate officers keeping both the factors in mind; but in that case the two circumstances would have to be joined by the conjunctive word ''and'' not the disjunctive word ''or''. The use of the disjunctive word ''or'' in the impugned Government order only indicates non-application of mind and obscurity in thought. The obscurity in thought inexorably leads to obscurity in language. Apparently, the Government seems to be uncertain as to the relevant circumstances to be taken into consideration, and that appears to be the reason why they have used the disjunctive word ''or'' in the impugned order.

It is a well settled principle, that the terms of a statute, imposing penalties (preventive detention is still harsher in that it is imprisonment without trial) must be construed strictly and if the meaning of the words used is doubtful the doubt should be resolved in favour of the subject.

In view of the foregoing discussion, the inevitable conclusion that fails is that there is no valid delegation of power in favour of the District Magistrate, the impugned order of detention is liable to be quashed on this short ground of inherent lack of authority alone. Although, as discussed above, the impugned orders of detention Annexure-D suffer from other vices, such as non-application of mind vitiating subjective satisfaction of the detaining authority as already held above. There are still few more grounds as raised by the detenus, are yet to be considered and we proceed to examine the same one by one.

There is yet another instance of total non-application of mind on the part of the Respondent State Government in considering the representations dated 27.11.97 (Annexure-F) as submitted by the detenus, while confirming the order of detention.

The Deputy Secretary to the Govt. of Assam, Political (A) Department, Shri Rabindra Nath Mishra, along with his affidavit dated 21.3.98 has placed on record an order dated 12th December, 1997 (Annexure-A) as passed by the Governor in support of the Respondents'' claim that the representation submitted by the detenus was processed at appropriate level in the State Government and put up before the highest authority, the Chief Minister on 11.12.97 who rejected the same on 12.12.97 after due consideration. The copy of the order dated 12.12.97 as has been annexed as Annexure-A is reproduced below:

GOVERNMENT OF ASSAM POLITICAL (A) DEPARTMENT No. PLA. 167/97/85 Dated Dispur the 12th Dec''97 ORDER BY THE GOVERNOR

READ : The order of Detention and the grounds of detention served vide No. NC.10/97/66 dated 7.3.97 on Shri Swapnil Deka Raja @ Pranab Bora

READ ALSO : The Representation submitted by Shri Pkanab Bora dated 22.11.97 against the grounds of detention.

ORDER : After careful consideration of the submission against the grounds of detention. The Governor of Assam is pleased to order that there is no reasonable ground to revoke the order of detention. The Representation is hereby rejected.

By order and in the name of the Governor of Assam.

Sd/- Deputy Secretary to the Govt. of Assam Political "A" Deptt., Dispur.

Memo No. PLA. 167/97/85-A Dated Dispur the 12th Dec''97

Copy to:

1) The Superintendent, Special Jail, Nagaon with two spare copies of the order - one for favour of service to the detenu concerned and the other for return after duly signed by the detenu concerned to this Deptt.

2) The Inspector General of Police (SB), Assam.

3) The District Magistrate, Nagaon

BY SPEED POST

4) The Joint Secy., 1S-II, Govt. of India, i Ministry of Home Affairs, New Delhi, Representation submitted by Shri Pranab Bora NSA detenu addressed to Central Govt. is enclosed herewith with parawise comments.

It may also be noted that except for the change of names of detenus the order is identical. What was considered by the highest authority is not the fresh order of detention dated 16.10.97 (Annexure-D) and the grounds of detention on which Annexure-D was based. The confirmation of the detention order, is that of the earlier order of detention dated 7.3.97 filed as Annexure-A. Non-application of mind is writ large and crystal clear. The detenus'' continued detention is rendered invalid and they are entitled to an order of release forthwith. This the state of affairs, and there is no application of mind either by the detaining authority or Respondent No. 4 as also the State Government.

Reading Annexure-A (to the affidavit) further, what was sent to the Central Government also becomes quite apparent. It was not the fresh orders of detention Annexure-D, nor the fresh grounds of detention (Annexure-E), but as is evident from Annexure-A it was the old and earlier order dated 7.3.97 and the grounds of detention in support thereof Annexure-B which was already quashed by this Court vide judgments dated 23.6.97 (Annexure-C). It raises two vital points. After quashing of the order dated 7.3.97 and the grounds of detention, what was there for the State Government to confirm ?

It was argued that there was undue, unreasonable and unexplained delay in disposal of the representation dated 27.11.97 (Annexure-F) as filed by the detenus. Going through the affidavit sworn by the Deputy Secretary, Home Department, it is evident that it was not immediately forwarded to the Central Government. It was only on 12.12.97 as per Annexure-A (to the affidavit) the document filed by the Respondent Government that the representation dated 27.11.97 was sent to the Central Government by Speed Post. There was apparent delay of 15 days in forwarding the representation for which no explanation whatsoever is forthcoming.

The detaining authority in his affidavit has stated that he forwarded the representation to the Central Government on 29.11.97. According to the affidavit filed by the Central Govt., the Central Government received it on 9.12.97. There is a gap of 10 days. May be, it is attributable to the delay in transit, but what happened thereafter is material. As usual it was placed before the Joint Secretary on 15.12.97 after comments from the Under Secretary, another 6 days and thereafter placed before the Minister of State, Home on 15.12.97. Thereafter it was rejected on 22.12.97. There is not a word about this 7 days delay in the affidavit filed by the Central Government. All that is stated that there were 4 intervening holidays on 13, 14, 20 and 21st December, 1997. The longer the time taken in disposal of representations the more the number of holidays in between.

The law on the point is well settled by several judgments of the Supreme Court. In Durga Pada Ghosh Vs. State of West Bengal, the Supreme Court referring to its earlier judgment on the point explained the expression "as soon as may be" occurred in Article 22(5) of the Constitution in the following words:

The words ''as soon as may be'' in the context must imply anxious care on the part of the authority concerned to perform its duty in this respect as early as practicable without avoidable delay. Similarly when the representation is made it is in the fitness of things that the said representation should be considered with the same sense of urgency with which the grounds are intended to be communicated to the detenue. That is the only way in which the purpose, for which the earliest communication of the grounds to the person concerned is provided, can be achieved. The representation must, therefore, be considered with due promptitude or expedition and without avoidable delay, in other words with reasonable dispatch. As held by this Court in Jayanarayan''s case (supra), the representation should be considered as expeditiously as possible. As the question of delay in considering the representation falls for determination on the facts and circumstances of each case the binding force of a past precedent for a later case would largely depend on the degree of close similarity of the circumstances dealt with therein. Our attention has been drawn to a recent decision of this Court (Mathew, J.) in Amulya Chandra Dev v. The State of West Bengal which was heard and disposed of during the summer vacation this year. In that case the representation of the detenue was received by the State Government on December 3, 1971, and disposed of on December 12, 1971. This delay was according to the explanation of the State Government, due to the fact that there was no regular work of movement of files in the office because of demonstration of the State Government employees, including those of the Home Department (Special Section) from September 12 to the end of November, 1971. this Court did not consider that to be a satisfactory explanation for the delay because the dislocation of work was only upto the end of November, 1971, whereas the representation was received by the Government on December 3, 1971. It was observed that in the circumstances of the case the State Government had not disposed of the representation as early as practicable. Reference in support of this view was made to Jayanarayan case (supra).

In Aslam Ahmed Zahire Ahmed Shaik Vs. Union of India and Others, the Supreme Court considering 11 days delay, unexplained delay of 7 days, on the part of the Superintendent in transmitting the representation to the Central Govt. held that the detention was vitiated and further observed:

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 Superintendent by the detenu. This avoidable and unexplained detention of the Appellant illegal and constitutionally impermissible.

The same view has been reiterated in B. Alamelu Vs. State of Tamil Nadu and others,

The impugned orders and continued detention of the detenus are liable to be set aside on this ground as well.

These petitions pose a big question. Are not the authorities entrusted with the task of implementing the Act, passing the order and processing the representations submitted by the detenus bound by the judgments of the Supreme Court ? Are not they expected to act in a fair manner with due application of mind and regard to the procedural safeguard ? At least the orders Annexure-"D" belie all these expectations. As already noted above, we are not going into such aspects involving the factual details, thereby not suggesting that there is no merit on force in the submissions made by the learned Counsel for the Petitioners. The points dealt with are purely question of law, the impugned orders of detention Annexure-D (common to both the petitions) are liable to be quashed, they are accordingly quashed. The petitions are allowed with costs of Rs. 5,000/- each. The detenus be set at liberty forthwith. It cannot be overlooked that the detenus were clamped with a fresh detention order after the earlier orders were quashed by this Court.

Learned Addl. Advocate General orally applied and prayed for issuance of a certificate under Article 134A of the Constitution for appeal to the Supreme Court. To our minds, the case does not involve any such substantial question of law or general public importance which needs to be decided by the Supreme Court. In fact, all our findings while dealing with every aspect of law, we have referred to the decided cases of the Supreme Court. The prayer is, therefore, disallowed.