Dilip Rajkhowa vs The State of Assam and Another

B.L. Hansaria, J.—The Petitioner was once detained earlier under the provisions of the National Security Act, 1980 (for short, the Act). This was on 3.1.81, to be released on 19.2.81. The impugned order of detention was thereafter passed on 23.7.81 as the learned District Magistrate, Nowgong felt that the same was necessary to prevent the Petitioner from acting in any manner prejudicial to the maintenance of supply and services essential to the community and in any manner prejudicial to maintenance of public order. The following three grounds and to the passing of the Order of detention:

On 8.4.81 you attended a meeting in the evening. Sankar hall in Amolapatty, Nowgong along with Dr. Dhiren Barkaiuki and about ten others. The meeting decided to commit sabotage during the visit of the Prime Minister to Dimapur on 11.4.81. The conspiracy did not succeed became of prompt police action.

In the last week of February, 1981 you hatched a conspiracy at the Purnima Restaurant, Nowgong along with Laohit Bordoloi, Digen Bora, Kandarpa Sarikia and a few others of blasting the oil pipe line. This has been Confirmed by the statement of Shri Lachit Bordolol on 25.6.81 before the police. It was decided that Digen Bora and Kandarpa Saikia would choose the situ of explosion, The statement of Shri Lachit Bordoloi is with-held from you in public interest.

In, the. second week of March, 1981 you hatched a conspiracy with Lachit Bordoloi, Kandarpa Saikia and putul Teron at Purnima Restuarant, Nowgong to blow off the statue of Jawaharlal Nehru in front of Circuit House, Nowgong, In pursuance of the conspiracy the statue was blasted on 28.3.81. Your involvement in the conspiracy has been confirmed by Lachit Bordoloi in his statement before police on 25.6.81. The statement is withheld from you in public interest.

The first ground is undoubtedly serious, But it is submitted by Shri Bhattecharyya that the ground is absolutely vague in so far as it has failed to communicate to the detenu about the "when", "how" and "where" of the (SIC) mentioned the ground. It was contended that the concluding. "The conspiracy did not succeed because of prompt notice action", would show that the authorities, did know as or what was conspired and how that conspiracy was going to the effected. Nonetheless, the same was kept hidden from the (SIC) which denied him the right of representation as guaranteed by Article 22(5) of the Constitution.

The force of the submission cannot be denied There another infirmity in this ground. The same is that though is stated in the ground that the meeting was held at "Sankar hall" which was attended among others by Dr. Dhiren Bark(SIC) these particulars do not find place in the dossier relying on which the District Magistrate had exercised his power under read with Section 3(3) of the Act, as is apparent from the impugned Order which opens by saying:

Whereas I am satisfied from the dossier submitted by Superintendent of Police: Now going.

This dossier was made available to the Court and the learned Government Advocate admitted than the dossier does not speak of the alleged meeting having taken place at "Sankar hall" of Dr. Dhiren Barkataki as one of the persons attending the same. This shows that either the District Magistrate had some other materials before him or he relied on some non-existent facts. Be it any of the two, it was contented on behalf of the Petitioner that the same has introduced such an infirmity in the who''s exercise of detention that the same has to meet its grave at the hand of this Court, The learned Government Advocate himself submitted that mentioning of tome non-existent facts in the ground would render the whole ground itself as non-existence, with the result that the impugned Order cannot stand, We have our doubts as to Whether insertion of some non-essential particulars in a ground would render the same bad in the eye of law so much so that the same has to be effected altogether. But then, how could the District Magistrate speak about Sankar hall and Dr. Dhiren Barkataki in the ground remained a mystery.

As the learned Government Advocate himself submitted that insertion of those particulars in the ground rendered the whole ground non-existent, and it is a settled law that if out of some, one ground is non-existence the Order of detention cannot stand, we. are left with no choice but to strike down the order. While doing so, we have, however, borne in mind (SIC) of the ground as well, which aspect has been (SIC) above.

This being the position, it is not necessary to examine the contentions relating to grounds 2 and 3, But for the sake. (SIC)the same way be mentioned. It was submission (SIC) that withholding of the statement of mala fide because this privilege was not claimed in the case of Shri Bordoloi himself. which had come up for examination before this Court in Civil Rule No. 699 (HQ of 1981, disposed of on 2.9.81. This Court bad set aside the detention Order in that case because though the statement of Shri Bordoloi was relied on to detain him, the same was not made available. Though the learned Government Advocate appearing in that case had sought to seek protection under Article 22 (6) of the Constitution, as such a stand had not been taken even in the counter affidavit filed by the detaining authority, the plea of withholding In public interest was not accepted. The present case it however different as the protection under Article 22(6) has been specifically taken. Shri Bhattacharya however submitted that the plea taken in this case is not different from that advanced in Lachit Bordoloi''s case, which was that the statement had been withheld "due to the interest of investigation of police case. The same plea has been taken in this case as well, as would appear from para 9 of the counter affidavit field by the District Magistrate. Reference was made to para 7. Of this affidavit wherein it has been averred that the said statements were withheld "with different interest," It was contended that this is different from public interest, whereas the statements may not be disclosed only in public interest.

Something was also said about the vagueness of ground No. 2 inasmuch as it is not stated as to which portion of oil pipe line and when was it to be blasted. Qua the third ground the submission was as the statue has already been blasted, There was nothing further to be done in furtherance of the (SIC) and as such detention on, this ground has to be regarded as punitive and not preventive.

These submissions were countered by the learned Government Advocate by stating that the third ground had (SIC) with the detaining authority because it felt that a person who could do so in recent past could as well indulge as similar activity in future. As to the pipeline, it was con(SIC) that the site had not been selected, and so also the (SIC) so these particulars could not be mentioned in the to she withholding of the statement, the submission (SIC)that it was not a case of mala fide at all inasmuch as (SIC) Lachi Bordoloi''s case the statement had in fact not been made available, may be that the protection of public interest was not claimed in so many words. The learned Counsel referred to Parkash Chandra v. Union of India, AIR 1965 Punjab 270, wherein a Division Bench speaking through Grover, J., as he then was, held that it was for the detaining authority and for no other to consider whether the disclosure of any facts would be against public interest. This view was taken by relying on Atmaram, The State of Bombay Vs. Atma Ram Sridhar Vaidya, , and Lawrence Joachim Joseph D''souza Vs. The State of Bombay, .

In view of what has been stated about the non-maintainability of the Order of detention because of the infirmities in ground No. 1 which is sufficient to kill the order, we are not entering into the soundness of the submissions relating to the two other grounds. We had ordered for release of the detenu on 1.10 81 and these are our reasons for setting aside the Order of detention.