Harendra Kr. Bharali vs District Magistrate and Others

B.L. Hansaria J.

By an order passed on 9.11.81 the Petitioner detained under the National Security Act, 1980. because the learned District Magistrate, Sibsagar felt that the same was necessary "with a view to preventing him from acting in a manner prejudicial to the maintenance of public order and security of the State."

Let us see the grounds which had led the detaining authority to come to his satisfaction. These read:

The subject is an active member of Karmachari Parishad, Jorhat and closely connected with all the agitational programme launched by the All Assam Karmchari ari Parishad at Jorhat.

Due to his active participation in the movement on foreigners issue a case vide Jorhat P.S. case No. 18 (4) 80 u/s 5/6 Essential Services Maintenance (Assam) Ordinance was registered against the subject and he was arrested in connection with the case.

As per call of A.A.S.U/A.A.G.S.P. while Assam Bandh was observed on l7th/18th Nov. 80 the subject instigated the State, Central and Semi-Govt. employees not to attend office duty during the Bandh days. The subject also instigated the student youths not to allow any officer even the Magistrate who were performing law and order duty to enter into Court compound and if necessary by means of violence activities. Due to such instigation on 17.11.80 about 200/250 members of AASU/GSP obstructed the District and Session Judge, Jorhat and Other Executive/Judicial Magistrate from entering into Court compound and the agitated mob pelted stones on Police and Magistrate who were on duty. As a result Police had to chase them away by chasing and bursting tear gas shells near Police Office, Jorhat. The subject fled away from the plea to evade arrest.

The subject along with two other leaders of Karmachari Parishad Jorbat circulated a Letho-typed Appeal amongst the Govt. employees and others which inter alia criticised the Govt. for taking repressive measures against the Govt. employees, deployment of Army/C.R.P.F. inside Oil installations, Pumping Stations etc and urging upon the employees to take active part in all agitational programme and to get ready for supreme sacrifice for the motherland. Due to such instigation all the Govt. and Semi-Govt. employees of Jorhat did not attend their office/duty from 24.11.80 to 10.12.80 in support of the indefinite non-co-operation movement of the State/Central and Semi-Govt. employees.

It is secretly learnt that the subject instigated the member of A.S S.U/AAGSP of (SIC) to take action against the Gov. officer/employees who are against the movement on foreigners, issue and specially those who offended their (SIC) during non-co-operation movement on (SIC) Due to such instigation of the subject some threatening leafleis published in the name of (SIC) Chatra (SIC) found circulated in Jorhat town mentioning the names of Govt. employees who titer did office during non-co-operation movement on 6th/7th Feb/81.

On 5.4.81 evening an executive meeting of Karmachari Parishad Jorhat was held at Jorhat Theatre Hall under the Presidentship of the subject. In the meeting Dr. K Ushal Kr. Saikia submitted his resignation from General Secretaryship of Karmachari Parishad, Jorhat. and in his place the subject was entrusted with the job of General Secretary of the Karmachari Parishad, Jorhat. Since the subject secretly instigated Govt. employees to be in readiness to join in the next phase of movement on foreigners, issue when AASU/GSP will announce the programme.

The subject attended a discussional meeting on 1.11.81 at Jorhat Sahitya Sabha Bhawan along with Jogananda Goswami(SIC) Mazid Bora where the subject discussed for (SIC) about 20 private bases of Jorhat for carrying about (SIC) people from Jorhat for the Central rally to be (SIC) l0.11.81 at Gohati as per (SIC) given by A.S.S.J.,(SIC).

(SIC) that the subject is security (SIC) to be held (SIC). The subject also instigated them to go and participate in rally violating prohibitory order u/s 144 Code of Criminal Procedure with large members and it obstruction given by the authority they will take the path of violence to reach Gauhati and to make the rally a success.

A perusal of the grounds makes it clear that none of them has any nexus with the maintenance of security of the State, which was one of the objectives sought to be achieved by detaining the Petitioner. Not only this, some of the grounds, wit-1,2 and 7 are not related even to the maintenance of public order. This in itself has introduced a serious infirmity in the order.

This apart, though ground No. 4 is based on a ''Lethotyped Appeal'' which is said to have been circulated by the Petitioner along with two others, a copy of the same had not (SIC) supplied to the Petitioner pari passu the grounds. Simi (SIC) the position as regards the threatening leaflet (SIC) ground No 5. It is a settled position that if some documents are relied on while detaining a person, copies of the must be made available to the detenu to enable him to (SIC) effective representation.

The above two infirmities are sufficient to kill the order. taking this view we are, amply fortified by the decision of Court in Civil Rules 47 to 49 (HC) 81 disposed of on 9.3.81 and many others emanating from the highest Court of the land. We do not propose to burden the judgment (SIC3) the legal ground. as the learned Public Prosecutor did not fairly concert this legal position.

In view of the above, the impugned order is set aside fad the petition stands allowed. The Petitioner is ordered to be released forthwith, if not needed in connection with any other case.