Silvister Narzary vs State of Assam and Others

W.A. Shishak, J.—The detenue Sri Silvister Narzary @ Swmwndew Narzary @ Chaya Narzary, son of Luis Narzary is currently detained under an order of detention issued u/s 3(2) read with Section 3(3) of the National Security Act, 1980. On 3rd April, 1997 the learned District Magistrate, Sonitpur issued order of detention under the aforesaid provisions of law which was to continue until further order. Grounds of detention were also furnished to the detenue.

By another order issued on 10th April, 1997, the Additional Chief Secretary and Principal Secretary, Govt. of Assam, Governor of Assam was pleased to approve the order of detention dated 3rd April, 1997 passed by the District Magistrate, Sonitpur and it was further ordered that the detenue be detained in the Tezpur District Jail. In exercise of the powers conferred by Sub-section (1) of Section 12 of the National Security Act, 1980, an order was issued on 5th May, 1997 by the Additional Chief Secretary that the Governor of Assam "on the report of the Advisory Board is pleased to confirm the detention order No. SCL. 5/97/134 dated 3.4.97 passed by the District Magistrate, of the Sonitpur District, detaining Shri Silvister Narzary @ Swmwndew Narzary @ Chaya Narzary, S/O Luis Narzary of village Bitni Auzonguli, P.S. Bijni in the Dist. of Bongaigaon and to direct that the said Shri Silvister Narzary @ Swmwndew Narzary be detained in the Dist. Jail, Sonitpur for a period of 12 (twelve) months with effect from the date of service of order of detention."

The detenue made a representation on 19.5.97 against the order of detention to the detaining authority as well as to the Govt. of India, the Govt. of Assam and the Advisory Board through the Superintendent, District Jail, Guwahati. The said representation was rejected by the Govt. of Assam by order issued in this regard on 5th June, 1997. Order reads:

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.

We have heard Mr. N. Dutta assisted by Mr. P.J. Phukan and Mr. S. Bharali on behalf of the detenue. We have also heard Mr. A.C. Bora, learned Addl. Advocate General, Assam as well as Mr. K.P.Sharma, learned Central Government Standing Counsel at length. At this stage we may state that Mr. K.P. Sharma has made no further submission except placing the counter affidavit filed on behalf of Union of India. Mr. N. Dutta has canvassed before us mainly 2 (two) issues. The first issue concerns delay of disposal of representation made by the detenue. The second issue concerns non-supply of relevant documents referred to and also relied upon by the detaining authority while issuing the order of detention under the provisions of National Security Act.

We may deal with the question of delay as stated above. The Jail authority forwarded the representation made by the detenue on 19.5.97 soon after receipt of the representation. No counter affidavit has been filed on behalf of the Jail authority. Representation of the detenue was received by the Central Government on 10.6.97. As stated earlier representation made to the State authority was rejected by order dated 5th June, 1997. It has been contended by Mr. N. Dutta that the delay for the period from 31.5.97 to 5.6.97 has not been explained satisfactorily by the State Government. In other words there is no satisfactory explanation as to why State authority was unable to send the representation to the Central Govt. in time. It has also been submitted that as regards the period from 12.6.97 to 18.6.97 the State Respondent has not given any explanation. In this regard we may refer to the counter affidavit filed on behalf of the State Government. Para 4 of the State counter states that the representation of the detenue was received in the office on 31.5.97. It was placed before the Deputy Secretary(s) on the same day. Thereafter the matter was processed at the level of Joint Secretary and Additional Chief Secretary on 2.6.97 and 3.6.97 as 1st June was a Holiday. Finally the representation was placed before the Chief Minister for consideration on 3.6.97. The Chief Minister was pleased to reject the representation on 4.6.97. The order of rejection was communicated to the detenue through Superintendent, District Jail, Sonitpur on 5.6.97. It is also stated in this para that a copy of the said Memo alongwith a copy of the representation was immediately forwarded to the Joint Secretary IS-II Division, Government of India, Ministry of Home Affairs, New Delhi. Subsequently the State Government received a message dated 12.6.97 from the Department of Home, New Delhi asking for para-wise comments on the representation alongwith actual date of detention, grounds of detention and appearance before the Advisory Board. The aforesaid parawise comments and information sought for were conveyed to the Central Government by Speed Post vide Government of Assam letter No. PLA.23 6/97/3 4 dated 18.6.97. The Central Government received informations from the State on 23.6.97. On 27.6.97 representation of the detenue was rejected by Central Government. On careful perusal of the affidavit filed on behalf of the Central Government and also the affidavit filed on behalf of the State Government we are of the view that the Central Government cannot be faulted as regards the complaint of the detenue that his representation was not dealt with promptly and that delay would vitiate the order of detention. On perusal of the affidavit filed by the District Magistrate, it appears on receipt of the representation dated 19.5.97 by the Superintendent, District Jail, Tezpur who in turn submitted the representation to the Government of Assam on 26.5.97 alongwith the copies of representation meant for State, Central Government and Chairman, Advisory Board to the State Government. It is stated by the District Magistrate in para 4 of his affidavit:

It may be stated here that due to Govt. holidays on 22.5.97, 23.5.97, 24.5.97 and 25.5.97 the copies of representation could only be sent on 26.5.97.

Mr. N. Dutta submits that it is most unnecessary mat so much time would have been wasted in placing the representation before the State Govt. as well as the Central Govt. It is 1 relevant documents and to prepare para-wise comments to be forwarded to the Central Government after receiving all relevant documents from different sources. In our view so much time should not have been taken in preparing para-wise comments and to send relevant information to the Central Government inasmuch as relevant documents were already available with the competent authority of the State which had already rejected the representation made by the detenue. Further we are also of the view that the representations submitted to Superintendent, Jail need not have been forwarded to the District Magistrate who in turn took time to send to the State Government. It is not understood how this kind of procedure has been followed in the State of Assam. However, on perusal of the circumstances stated in the affidavit filed on behalf of the State Government and the submissions made by Mr. A.C. Bora, learned Additional Advocate General, we are of the view that in the present facts and circumstances of the case, delay, if any, alone would not vitiate the order of detention.

As mentioned above the next submission of Mr. N. Dutta is as regards the non-supply of documents referred to and relied upon by the detaining authority to the detenue. As regards this submission, let us first refer to the grounds of detention furnished to the detenue by the detaining authority. It is stated in the grounds of detention that the detenue joined the Bodo Security Force Organisation on 8.3.93 at Udalguri. He received training in Bhutan. The detenue was detailed to collect arms for the organisation from Bangladesh. He arrived in Dacca on 28th September, 1993 via Dauki. The detenue and several others carried arms and ammunition from Bangladesh upto Manipur. Thereafter he left for Guwahati. He was under treatment for about four months at Agarwalla Nursing Home at Bongaigaon and at Assam Medical College, Guwahati. In para 3 of the grounds of detention among other things, it is further stated:

He was arrested on 13.01.97 at Nagda Bazar by army and recovered cash money amounting to rupees thirty eight thousand of the organisation, one eight band radio, one calculator, a list of arms and ammunitions of the organisation, a list of members of the BDFB organisation. The incriminating documents recovered from his possession at the time of arrest shows that the subject demanded five Lakhs rupees from Mr. Sukdev Bhattacharjee of Balijuri No. 1 under Sootea Police Station on behalf of Eastern Command of Bodoland. The other documents seized shows that the subject maintained receipt and expenditure account of the organisation showing details of receipt of money and expenditure etc. and issue of arms and ammunitions to its cadre operating in the area. This refers to Sootea P.S. Case No. 8/97 u/s 121/121(A)/122 IPC, R/W Section 10/13 ULA(P) Act.

It is submitted by Mr. Dutta that although several incriminating documents are stated to have been seized from the possession of the detenue, such documents were not furnished to the detenue while furnishing the grounds of detention. This according to Mr. Dutta is impermissible inasmuch as the said incriminating documents must have influenced the mind of the detaining authority and as such it is incumbent on the part of the detaining authority to have furnished those relevant documents referred to and relied upon by the detaining authority to the detenue. Para 5 of the affidavit filed by the District Magistrate states among other things as follows:

As no documents were annexed with the source report the detaining authority referred and relied only on the basic facts and materials as revealed in the source report itself in formulating the grounds of detention, and these basic facts and materials as referred to and relied on were communicated in the grounds.

On careful perusal of the grounds of detention and also the affidavit filed by the District Magistrate, it seems clear to us that the documents referred to in the grounds of detention were not even available before the detaining authority when the order of detention came to be issued by the District Magistrate. The question now to be determined by us is whether the incriminating documents referred to in the grounds of detention can be said to have been relied upon by the detaining authority while issuing the order of detention. In other words whether the incriminating documents referred to in the grounds of detention would not have influenced the mind of the detaining authority in issuing the order of detention. It is clear from the affidavit filed by the District Magistrate that the satisfaction of the detaining authority was derived from the source report which means the report submitted by the Police as respects the detenue. The documents examined by the police while submitting the report before the detaining authority were not placed before the detaining authority.

Mr. A.C. Bora, learned Additional Advocate General submits that while issuing the order of detention, the detaining authority has not travelled beyond the source report submitted by the Police. It is therefore submitted that the satisfaction of the District Magistrate is solely from the said source report and not from any incriminating documents said to have been seized from the detenue at the time of arrest. Mr. Bora further submits that the subjective satisfaction of the District Magistrate is stated in ground No. 4 as follows:

As the subject is presently lodged at jail and is likely to be released on bail, it is apprehended that he would indulge in the same activities again and for that further detention of the subject under NSA for the ground mentioned at Paras 1, 2 and 3 above is necessary.

In Khudiram Das Vs. The State of West Bengal and Others, among other things, it was held:

Where the liberty of the subject is involved, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the subject is not deprived of his personal liberty otherwise than in accordance with law. Section 8(1) of the Act, which merely re-enacts the constitutional requirements of Article 22(5), insists that all basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenue, so that the detenue may have an opportunity of making an effective representation against the order of detention. It is, therefore, not only the right of the Court, but also its duty as well, to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction.

Mr. Bora seeks to rely on State of U.P. Vs. Shakeel Ahmed, as regards the submission that in the facts of the present case, this Court should not interfere inasmuch as documents have been furnished to the detenue. On perusal of the said judgment it is found that in that case all the relevant materials relied upon by the detaining authority were supplied to the detenue. In para 3, it was held:

All the material on which reliance was placed for order of detention was admittedly supplied to the detenue.

In the present case the grievance of the detenue is that although several incriminating documents have been relied upon as mentioned in the grounds of detention have not been furnished to him.

Mr. Bora also refers us to Mst. L.M.S. Ummu Saleema Vs. Shri B.B. Gujaral and Anr, with reference to para 5 of the said decision and submits that documents/materials which are only casually or passingly referred to in course of narration in the grounds of detention order need not be supplied. It is also submitted by Mr. Bora that the documents have only been referred to but have not been relied upon in the present case.

As against the submissions made on behalf of the State Government, Mr. N. Dutta submits that the documents referred to in the grounds of detention have influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction while issuing the order of detention and as such it is incumbent on the part of the detaining authority to supply all the documents referred to and relied upon by the detaining authority. In Ibrahim Ahmad Batti alias Mohd. Akhtar Hussain alias Kandar Ahmed Wagher alias Iqbal alias Gulam Vs. State of Gujarat and Others, para 10, it was held:

Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases : (a) all documents, statements and other materials incorporated in the grounds by reference and which have influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenue along with the grounds or in any event not later than five days ordinarily and in the exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention, and (b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the Constitution. Shri. Tushar Thakker Vs. Union of India (UOI) and Others, reads:

The Court has repeatedly held that the detenue has a constitutional right under Article 22(5) to be furnished with copies of all the materials relied upon or referred to in the grounds of detention, with reasonable expedition. Delay tends to stultify the detenue''s right to make an effective representation and, to have it considered speedily by the authority concerned. The delay in supplying the copies to the detenue, in the facts of the instant case, being inordinate and unreasonable, had vitiated the continuance of his detention. It was on this short ground, we had by our Order dated May 7, 1980 allowed this writ petition and ordered the release of the detenue.

In Kirit Kumar Chaman Lal Kundaliya Vs. Union of India (UOI) and Others, among other things it was held in para 12:

Once the documents are referred to in the grounds of detention it becomes the bounden duty of the detaining authority to supply the same to the detenue as part of the grounds or pari passu the grounds of detention. There is no particular charm in the expressions "relied on", ''referred to" or "based on" because ultimately all these expressions signify one thing, namely, that the subjective satisfaction of the detaining authority has been arrived at on the documents mentioned in the grounds of detention. The question whether the grounds have been referred to, relied on or based on is merely a matter of describing the nature of the grounds.

On perusal of the case laws cited before us and upon hearing counsel of the parties, we are of the view that failure to supply the relevant documents relied upon and also referred to would be fatal in the matter of detention under the provisions of National Security Act. In other words it is incumbent on the part of the detaining authority to furnish all the documents referred to and/or relied upon while issuing the order of detention to the detenue. As stated above, the detaining authority has made it clear that the detention was based on the source report submitted by the Police but the materials/documents examined by the Police in order to prepare the Police report were not placed before the detaining authority nor were the documents referred to in the grounds of detention furnished to the detenue.

In the premises aforesaid, this petition succeeds. The order of detention is quashed. The detenue shall be set at liberty forthwith, if not wanted in connection with any other case.

This petition is accordingly disposed of.