Kartik Paul vs State of Tripura and Another

M.S. Singh, J.—Heard Mr. Somik Deb, the learned counsel appearing for the petitioners. Also heard Mr. U.B. Saha, the learned senior Advocate/ Govt. Advocate assisted by Mr. T.D. Majumder, the learned Advocate appearing for the State-respondents.

These four writ petitions in the form of Habeas Corpus involved common question of law and facts and, as such, we hereby proposed to dispose of these four (4) cases at this stage considering the nature of the cases where the personal life and liberty of the citizens namely, the detenues herein, are involved and, accordingly, these writ petitions are hereby disposed of with the following common judgment and order.

The related detention orders dated 3.8.2000 as in Annexure-2 in case of W.P.(HC) Nos. 158, 169 and 170 of 2001 and, order dated 2.12.2000 as in Annexure-3 in case of W.P.(HC) No. 171/2001 issued by the competent authority, namely, District Magistrate & Collector, West Tripura, Agartala by invoking the provisions of law laid down u/s 3(2) of the National Security Act, 1980 (hereinafter referred to as the NSA) read with sub-section (3) of Section 3 of NSA, thereby, detaining these four detenues, namely, Shri Kartik Paul, son of Shri Khogendra Paul, Maharanipur village, Teliamura, West Tripura, (2) Shri Ramkrishna Debnath, son of Shri Santosh Debnath, Maharanipur Village, Teliamure, West Tripura, (3) Monej Das @ Sarkar, son of Bashiram Sarkar, Maharanipur village, Teliamura, West Tripura and (4) Shri Sanat Debbarma, son of Late Chan Singh Debbarma, Paihabari village, Khowai, West Tripura is the subject matter under challenge in these writ petitions.

For just determination of the real points in controversy between the parties, this court required the assistant of the learned Government Advocate for which this Court vide, order dated 29.3.2001 directed the learned Government Advocate to get instructions from the appropriate authority and to produce the related files. Today, Mr. U.B. Saha, learned senior Advocate/Govt. Advocate assisted by Mr. T.D. Majumder, Advocate for the official respondents produced related files maintained by the Office of the District Magistrate concerned.

We have perused the same and on bare perusal of the impugned detention orders mentioned above maintained by the Office of the District Magistrate concerned and that of the copy of the detention orders filed and placed by the detenues before this court in connection with related writ petitions clearly show that the detenues had not been given any opportunity so as to enable them to file any effective representation to the competent authority concerned as the representation in case of preventive detention is to be made to the competent authority by the detenue at the earliest and as such it is the duty of the detaining authority to highlight the authorities/ competent authorities to whom such representation is to be made by the detenues to secure the ends of justice.

At the hearing learned Senior Government Advocate has drawn our attention to the related flies bearing No.F.6(78)-DM/W/Con/2000 containing an office letter bearing No.2934/F.6(78)-DM/W/con/2000 dated 2.12.2000 (Confidential) issued by the District Magistrate, West Tripura to the detenue Shri Sanat Debbarma, the writ petitioner in W.P. (HC) 171/2001 informing him that the detention order u/s 3 of the NSA 1980 has been issued against him by the D.M. West Tripura and a copy of the detention order and the grounds for detention has been enclosed therewith and the detenue can represent against the detention order to the State Government through the D.M. West Triprua and further informing the detenue Shri Sanat Debbarma that his representation, if any, may be sent to the D.M. West Tripura for onward transmission to the State Government. This office letter dated 2.12.2000 is very important and to material in the instant case and accordingly, the relevant portion of it is quoted below:-

This is to inform you that a Detention Order u/s 3 of National Security Act, 1980 has been issued against you by the undersigned a copy of the Detention Order, the Grounds for Detention are enclosed herewith.

If you want, you can represent against the Detention Order to the State Government through the undersigned. Your representation, if any, may be sent to this end for onward transmission to the State Government."

At the hearing of this case, we have seized the Detention Order issued by the District Magistrate, West Tripura as against Shri Sanat Debbarma, the writ petitioner in W.P.(HC) No. 171 /2001 signed by him with dated 30.11.2000 and, he also issued in the capacity of District Magistrate, West Tripura another office letter dated 2.12.2000 addressed to the detenue Sanat Debbarma informing him about the issuance of the order of detention alongwith the Grounds of Detention. To meet the ends of justice this two documents (three pages) available in the related file are to be attested and signed by Shri Saradindu Bhattacharjee, Deputy Registrar (Bench) of this Registry in the open Court and accordingly, we allow Shri Bhattacharjee, Deputy Registrar (Bench) to sign these documents (three pages) in presence of the Bench Assistants. The Registry is directed to supply the Xerox copy of the same to Mr. T.D. Majumder, learned Advocate for the State respondents.

This mater shall be taken up at 4''10 p.m. today.

Lateral 4''10 p.m.

Sd/- B.B. Dela Sd/- N.S. Singh Judge Judge 9. It is very highly astouned to see the action of the District Magistrate, West Tripura while issuing the office letter dated 2.12.2000 inasmuch as the original detention order bears a signature of the District Magistrate, West Tripura with dated "30.11.2000" and he had communciated the detention order alongwith the grounds of detention under related office order dated 2.12.2000. These two letters/orders dated 30.11.2000 and-2,12.2000 are important and materials in the instant case and accordingly, the same are hereby form part of the records and marked as ''X'' and ''Y'' respectively for identification. The impugned detention order issued against the writ petitioner Sanat Debbarma by the District Magistrate concerned, a copy of it has been appended to the writ petition and in that copy, the date of detention order is reflected as "2.12.2000" as seen in the document marked as Annexure-3 to the said writ petition. Further perusal of the said detention order shows that there is no whispering in it that the writ petitioner has been given the opportunity or, he has a right to make representation, if any, in such case of preventive detention to the appropriate competent authority required under the law. At this stage, we hereby re-call a decision of the Apex Court rendered in the case of Wasi Uddin Ahmed, petitioner v. The District Magistrate, Aligarh U..P. and Ors., respondents reported in AIR 1981 SC 2166 wherein the Apex Court held that in a case of preventive detention under National Security Act, the detenue has a right to make a representation against the order of detention and also has a right to be heard by the Advisory Board. In that case of Wash Uddin Ahmed (supra) the grounds of detention served upon the said detenue do not contain any such recitals i.e. the right to make a representation. The relevant observations of the Apex Court in the said case find its place at paragraph 18 of the said judgment which is important and material in the instant case and accordingly the same is quoted below:

"It is unfortunate that there was a failure to mention in the grounds of detention, that the detenue had the right to make representation against the order of detention as envisaged by Article 22(5) of the Constitution read with Section 8 of the Act, and also the right of being heard before the Advisory Board while he was served with the order of detention. It is expected of a detaining authority while serving an order of detention, as a rule to mention in the grounds of detention, that the detenue has a right to make a representation against the order of detention and also a right to be heard by the Advisory Board. In the present case, the grounds of detention served upon the detenue do not contain any such recitals. It, however, appears that the detenue was furnished a copy of the Constitution on March, 25, 2001 at the Central Jail. Fatehgarh, presumably at his own request, for the purpose of making a representation against the order of detention. The words "and shall afford" in Article 22(5) have a positive content in matters of personal liberty. The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguard particularly in cases of deprivation of life and liberty is of prime importance to the body politic. It is, therefore, imperative that the detaining authority must ''apprise'' a detenue of his Constitutional right under Article 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. The right of the detenue to make a representation under Article 22(5) would be, in many cases, of little avail if the detenue is not ''informed'' of this right. The failure to comply with this requirement, however, does not have the effect of vitiating the impugned order of detention or render the continue detention of the detenue illegal in this case for the reason that the detenue is an enlighten person and has been in active politics and was, therefore, fully cognisant of his right to make a representation under Article 22(5) of the Constitution and u/s 8 of the Act. In fact, the detenue appeared before the Advisory Board and filed a representation against the order of detention and was also personally heard by the Advisory Board."

In another case between the State of Maharashtra, v. Santosh Sankar Acharya, reported in AIR 2000 SCW 2711, the Apex Court held that non-communication to the detenue that he has right to make representation to the detaining authority amounts to infraction of his right under Article 22(5) and accordingly such action of the authority vitiates the order of detention. The relevant observation finds its place in paragraph 5 of the related judgment which runs thus:-

*********** The only logical and harmonious construction of the provision would be that in a case where an order of detention is issued by an officer under Sub-section (2) of Section 3 of the Act notwithstanding the fact that he is required to forthwith report the factum of detention together with the grounds and materials to the State Government and notwithstanding the fact that the Act itself specifically provides for making a representation to the State Supreme Court u/s 8(1), the said detaining authority continues to be the detaining authority until the order of detention issued by him is approved by the State Government within a period of 12 days from the date of issuance of detention order. Consequently, until the said detention order is approved by the State Government the detaining authority can entertain a representation from a detenue and in exercise of his power under the provisions of Section 21 of Bombay General Clauses Act could amend, vary or rescind the order, as is provided u/s 14 of the Maharashtra Act. Such a construction of power would give a full play to the provisions of Section 8(1) as well as Section 14 and also Section 3 of the Maharashtra Act. This being the position, non-communication of the fact to the detenue that he could make a representation to the detaining authority so long as the order of detention has not been approved by the State Government in a case where an order of detention is issued by an officer other than the State Government under Sub-section (2) of Section 3 of the Maharashtra Act would constitute an infraction of a valuable right of the detenue under Article 22(5) of the Constitution and the ratio of the Constitution Bench decision of this court in Kamleshkumar Ishwardas Patel Vs. Union of India (UOI) and Others, would apply notwithstanding the fact that in Kamlesh Kumar''s case (supra) the court was dealing with an order of detention issued under the provisions of Cofeposa."

At this stage, Mr. U.B. Saha, the learned senior Government Advocate submitted that he has got the instruction from the appropriate authority that the competent authority is going to revoke the detention orders passed against the detenues.

Be that as it may, all these impugned orders issued by the detaining authority against these writ petitioners-detenues are not tenable'' in the eye of law as the same were issued by the District Magistrate concerned in complete infraction and defiance with the mandatory provisions of law laid down under Article 22(5) of the Constitution read with Section 8 of NSA, prevention of the detenue-writ petitioners from making effective representation to the competent authority against the orders of detention and apart from it, they have not been afforded the earliest opportunity of making representation against the order of detention to the appropriate Government as well as to the Advisory Board concerned.

12(a). It is needless to opine that these detenues were not appraised their Constitutional ''rights under Article 22(5) read with Section 8 of NSA to make representation at the earliest against the impugned orders of detention and, moreover, there is no mention in the grounds of detention that the deteneus have a right to make representation against the order of detention. Hence, such non-communication of these facts to the detenues/writ petitioners that they could make representation to. the competent authority against the detention order at the earliest would constitute an infraction of valuable Constitutional rights of the writ petitioners under Article 22(5) of the Constitution read with Section 8 of the NSA and, on this ground alone, the impugned detention orders deserve to be quashed and, accordingly, these are quashed. This Court need not go more into depth in the matter as suffice is made with the above observation and order in the instant-case.

In the result, the detenues namely, (1) Shri KartikPaul, (2) Shri Ramkrishna Debnath, (3) Shri Monoj Das @ Sarkar and (4) Shri Sanat Debbarma are set at liberty and they shall be released forthwith by the appropriate authority, if they are not wanted in connection with other criminal case or cases.

For the foregoing reasons, these writ petitions are allowed but, no order as to costs.

This Court records its appreciation to Mr. U.B. Saha, the learned Government Advocate/senior Advocate assisted by Mr. T.D. Majudmer, the learned Advocate as they have rendered good services and assistance to the Court in the administration of justice. We kept this on record.