Somi Angkang and Others vs Union of India (UOI) and Others

K. Lahiri, A.C.J.

By these habeas corpus petitions, the detenus question the validity of the orders of detention dated 10.2.84 passed by the District Magistrate, Ukhrul, Manipur under the National Security Act, 1980 for short "the Act". As common questions of law and facts are involved in all these petitions, we propose to dispose them of by common order.

The Petitioners were detained on 10.2.1984, and the grounds of detention were furnished to them on 13.2.84 and the orders of detention were approved by the Government of Manipur on 18.2.84. Learned Counsel for the Petitioners has urged three points in Civil Rule (HC) Nos. 40/84, 41/84 and 42/84. They are : (1) the orders of detention were never served on the detenus : (2) the report of the Superintendent of Police, Ukhrul was not furnished to any of the detenus, which amounted to non-communication of the grounds of detention; and (3) the Central Government did not consider the consider the report submitted to it u/s 3(5) read with Section 14(1) of the Act. In so far as Civil Rule (HC) No. 43/84 is concerned, the learned Counsel for the Petitioners has urged only the last two points.

Let us now turn to the first contention of the learned Counsel. It has been urged that the orders of detention were never served, upon the detenus at any time. The contention fails, as in their affidavits, the State Government has categorically stated that the detention orders were duly executed on the date on which those were made. We have perused the service reports produced before us and find, that the detenus acknowledged the receipt of the detention orders. The detaining authorities have sworn affidavits, produced materials including the service reports to show that the orders of detention were served on 10.2.84 on the Petitioners in Civil Rule (HC) Nos. 40/84, 41/84 and 42/84, which satisfy our mind that the orders, of detention were duly served on the detenus on 10.2.84. In view of these facts, the first contention of learned Counsel fails.

In support of the second contention, learned Counsel for the Petitioners submits that the orders of detention were rendered in a casual and mechanical manner and there was non-application of the mind of the detaining authority. In the report submitted by the District Magistrate, Ukhrul to the Government of Manipur, there was a statement that on perusal of the report dated 10.2.84 submitted by the Superintendent of Police, Ukhrul and other materials, the detaining authority was satisfied that the detenus could be detained under "the Act". However, according to the Petitioners, although the grounds of detention were furnished to them, along with other statements, they were not furnished with the report of the Superintendent of Police which, submits the learned Counsel for the Petitioner, is the basic document on which the orders of detention were made. There is no wrangle, nor can there be any, that the copies of documents, statements and materials referred or relied upon in the grounds of detention, meaning there by those papers, documents and materials which had influenced the mind of the detaining authority in arriving at the subjective satisfaction about the necessity of the detention, must be communicated to the detenu. The contention finds support from the decisions of the Supreme Court in Yumnam Mangibabu Singh Vs. State of Manipur and Others, ; Ganga Ramchand Bharvani Vs. Under-Secretary to The Government of Maharashtra and Others, ; Mehrunissa Vs. State of Maharashtra, and Thakor Mulchandani Vs. Assistant Secretary to the Government of Maharashtra and Others, . All documents which had influenced the mind of the detaining authority in arriving at the subjective satisfaction about the necessity of the detention must be communicated to the detenu. In the instant case, however the documents are not "in built" in the grounds of detention. There is no reference of the report of the Superintendent of Police in any of the grounds furnished to the Petitioners.

Learned Counsel for the Petitioners also conceded that the report of the Superintendent of Police was not mentioned in the grounds of detention served on the Petitioners. We find that the Superintendent of Police submitted a report in the usual course and forwarded the dossier. The detaining authority, indeed, looked into the report, but drew up the grounds of detention entirely on the basis of the dossiers, Rather, the grounds of detention are word for word same with those contained in the dossiers. The report itself does not furnish factual data. It merely mentions about the transmission of history sheets and some relevant documents in respect of the Petitioners. The relevant documents referred in the report have been furnished to the Petitioners. As the report does not contain any factual data regarding the activities of the detenus, it could not have influenced and did not influence the mind of the detaining authority in preparing the grounds of detention or in making the orders of detention. Only those statements which are referred to and relied upon by the detaining authority in preparing the grounds of detention and also those materials which influenced the mind of the detaining authority in preparing the grounds of detention in reaching the subjective satisfaction about the necessity of detention, must be furnished to a detenu. However, the report of the Superintendent of Police, Ukhrul does not contain any statement or material which did or could have influenced the mind of the detaining authority in reaching the subjective satisfaction about the necessity of detaining the Petitioners. In Mst. L.M.S. Ummu Saleema Vs. Shri B.B. Gujaral and Anr, , after referring Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, and Smt. Shalini Soni and Others Vs. Union of India (UOI) and Others, Chinnappa Reddy, J. speaking for the Supreme Court observed:

It is, therefore, clear that every failure to furnish copy of the document to which reference is made in the grounds of detention is not an infringement of Article 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to violation of the fundamental rights guaranteed by Article 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in course of narration of facts which are not relied upon by the detaining authority in making the order of detention.

(Emphasis supplied)

It appears that even when a document, which was not furnished to the detenu, is referred in the ground of detention that by itself is not sufficient to hold that it amounted to violation of the fundamental right guaranteed by Article 22(5). It must be established that failure to supply the material made it difficult for the detenu to make an effective representation. Under such circumstances it amounts to violation of the fundamental right guaranteed under Article 22(5) of the Constitution. In the instant case, nothing could be shown to us that non-furnishing of the report, in any way, made it difficult for the detenus to make effective representation. We are also of the opinion that non-supply of this report to the detenus did not make any difficulty in making effective representations. Further, we hold that the report did not influence the mind of the detaining authority arriving at the subjective satisfaction about the necessary of detention. Accordingly, we are of the opinion that the detenus were not required to be furnished the said report and non-furnishing of the same did not, in anyway, affect the right of the detenus to make effective representations. In this way, the second contention of the learned Counsel also fails.

Now, we come to the last but the most important and relevant condition of learned Counsel for the Petitioners, that the Central Government did not consider the report submitted to it u/s 3(5) read with Section 14(1) of the Act. The Petitioners clearly and specifically took up the point in all the petitions that the reports submitted by the State Government of Manipur u/s 3(5) of the Act were not duly considered by the Central Government and, as such, the orders of detention are liable to be quashed. Mr. S. Jayanta, learned Counsel for the Petitioners, has submitted that the Central Government is duty bound to consider the report receive from the State Government with reasonable expedition, notwithstanding that no representation was made by the detenus to the Central Government. While dealing with this question we would like to observe that there is a Full Bench decision of this Court in Hitendra Nath Goswami Vs. State of Assam and Others, , which is binding on us. There is no dispute at the Bar that on any order of detention made or approved by the State Government u/s 3 of the Act, it is bound to report the fact of detention to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity of the order. This is a mandatory provision and one cannot overlook it. It is a compulsive necessity and direction to send the report and document within a stipulated time. The report must be sent expeditiously and the period for despatch of the report has been specified. Section 3(5) commands the State to despatch the report expeditiously and limits the time. Further the essential facts and documents have been directed to be despatched along with the record which includes, the grounds of detention. The necessity of quick despatch as well as the necessity for sending the grounds of detention is too obvious. In other words, the recipient is to perform his part of the obligation as designed u/s 3(5) of the Act. On receipt of the report, the Central Government is also obligated to dispose of the report as expeditiously as possible, otherwise, there is no purpose in submitting the report within a period of seven days. Further, there was no necessity to transmit the grounds of detention along with other materials and documents, unless it was meant to achieve certain objective. It is hardly possible to accept that the provision of Section 3(5) was so designed as not to serve any positive purpose. We are of the firm opinion that not only the Central Government is duty bound to consider the report, but it must do so with reasonable expedition and it must perform the duties and obligations, enjoined u/s 14(1) of the Act. The object of sending the report is either to revoke or modify, or not to revoke or modify the order. This supervisory power conferred by the statute on the Central Government is a discretionary power. However, the question posed here is whether the Central Government can refuse to consider the report at all and how it is required to be considered. In Hitendra Nath Goswami (supro), the Full Bench has held that the provision of Section 3(5) of the Act the obligates the State Government to report the fact of detention alongwith each grounds etc. to the Central Govt. and that the Central Govt. is to consider the report with reasonable expedition, notwithstanding that no representation has been made by the detenu to the Central Government. It has to apply its mind, keeping in view the policy and object of the Act. The Parliament intended that the Central Government should always keep a vigilant eye in the matter of life or liberly of the citizen guaranteed by Article 21 of the Constitution.

The nature and character of the power of the Central Government is absolutely discretionary. There is no dispute at the Bar that the Central Government may revoke an order, modify it, or refuse to modify or recall it. However, can the Central Government take a negative view, i.e, not to consider the report at all? In the instant case, the common case of the parties is that the report needs consideration by the Central Government with reasonable expedition. There is no dispute at the Bar that the underlined object of the Parliament in conferring the supervisory power on the Central Government is intended to make an effective additional check and safeguard against improper exercise of power by the detaining authority or by the State Government. This is precisely the view expressed in Sabir Ahmed Vs. Union of India (UOI), . We extract the relevant excerpts from the said judgment.

Whether or not the detenu has u/s 11 a legal right to make a representation to the Central Government is not really the question. The hub of the matter is whether the power conferred by Section 11 on the Central Government, carries with it a duty to consider any representation made by the detenu, expeditiously. The power u/s 11 may either be exercised on information received by the Central Government from its own sources including that supplied u/s 3 by the State Government, or, from the detenu in the form of a petition or representation. Whether or not the Central Government on such petition/representation revokes the detention is a matter of discretion. But this discretion is coupled with a duty. That duty is inherent in the very nature of the jurisdiction. The power u/s 11 is a supervisory power. It is intanded to be an additional check or safeguard against improper exercise of its power of detention by the detaining authority or the State Government. If this statutory safeguard is to retain its meaning and efficacy, the Central Government must discharge its supervisory responsibility with constant vigilance and watchful care. The report received u/s 3 or any communication or petition received from the detenu must be considared with reasonable expedition. What is ''reasonable expedition'' is a question depending on the circumstance of the particular case, No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negilgence, callous inaction, avoidable red-tapism and unduly protracted procastination.

(Emphasis supplied)

From the aforesaid observation of the Supreme Court in Sabir Ahmed (supra), it is clear that the report received u/s 3 of the Act or any communication received from the detenu must be considered with reasonable expedition. In our opinion, the term "consideration" in the present context means perusal with a purpose followed by a decision, in so far as the decision is concerned, the Central Government may take any one of the four possible courses i.e., either to revoke, or modify, or not to revoke or modify the order. No reason may be required to be given in taking a decision. It may not be a speaking order; but the Central Government must consider the report, and the consideration cannot be done in a vaccum. The duty imposed by the Parliament on the Central Government pertains to the field of life and liberty of citizens. It is a serious business. As such, it must consider the report effectively to fulfil the object for which the section has been enacted by the Parliament. The object, as already stated, is to consider whether there was improper exercise of the power of detention by the detaining authority or the State Government. The connotation of the word "consider" is "to look at attentively or carefully: to think or deliberate on : to take into account : to attend to; to regard as". Admittedly casual or mechanical exercise of power is no exercise of the power of the Central Government u/s 3(5) read with Section 14(1) of the Act. In Sat Pal Vs. State of Punjab and others, the Supreme Court while dealing with power of the Central Government u/s 11 of COFBPOSA observed that, although it was earlier thought that Section 14 of Maintenance of Internal Security Act, 1971, which is in pari materia with Section 11 of COFEPOSA (Section 14 of the Act being analogous to this provision) did not confer any right or privilege on the detenu, there is a general consensus of opinion that the power of revocation conferred on the Central Government u/s 11 of COFEPOSA is a supervisory power, and is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government. Parliament has, in its wisdom, enacted Section 14 and conferred an additional safeguard against arbitrary executive action. Under these circumstances, we are constrained to hold that the Central Government is duty bound to examine the report and the connected documents and/or to deliberate or ponder over the question as to whether the detaining authority or the State Government improperly exercised the power of detention. In the instant case, we do not find in the affidavit filed by the Respondent No. 1, Union of India, that the report was considered at all. There is no averment that the report was considered or pondered over as to whether the detenus were detained in proper or improper exercise of power by the detaining authority or the State Government. What we find from the affidavit is that the report was ''immediately attended to and scrutinised". There is nothing to show that it was considered by the Central Government. On perusal of the records placed before us we find that the report was attended to, scrutinised and thereafter kept in a register by some officials. There is no averment that the competent authority considered the report, and disposed it of. The records at our disposal only show that the report was put up after scrutiny etc. for perusal of the competent authority. There is nothing to show that the authority considered the report and the connected documents as required u/s 14(1) of the Act to ascertain whether the detaining authority or the State Government properly exercised its powers of detention. We find only a signature of the competent authority after the matter was placed for its perusal. What does it signify? Does it signify, it was merely perused by it or does it also signify that it was perused to consider the relevant question as to proper or improper exercise of the power of detention by the detaining authority or the State Government. When merely a signature is put in a file which has been placed only for perusal, it is difficult to say for definite that the file was signed by the authority after consideration of the matter with a view to achieve the proper objective. It is equally possible that the authority perused the papers without applying its mind to the purpose for which the file was put up when the purpose is not reflected even in the noting with which the file was placed for perusal. Under these circumstances we cannot grant benefit of doubt to the Central Government against the detenu. In our opinion, if there were positive assertion in the affidavit that the report was considered and disposed of by the competent authority, we could have drawn an inference in favour of the competent authority. The affidavit is however blank in this respect and the relevant file contains merely a signature after it was put up for perusal, and nothing else. If the office note would have stated that the report was put up to consider the question whether the detaining authority or the State Government had properly exercised the power of detention, a mere signature could have perhaps indicated the application of mind to the object for which such a report is sent. In most of the notings in file put up to obtain orders of higher authorities, material facts are stated and the purpose for which the file is put up is indicated. In such a case, if the authority merely put its signature, one could possibly argue that it amounted to accepting the purpose or suggestion made in the noting. In case of the present nature affecting life and liberty of a person, we would however, think that something more positive than mere signature may be appropriate, clearly indicating application of mind to the facts and purpose of the case. It would be appropriate here to refer to Edwingson Bareh Vs. State of Assam and Others, , which is a case dealing with the exercise of powers by the Governor of Assam under Para 1(3) of Schedule VI of the Constitution of India. There a new autonomous district of Jowai was created by excluding the Jowai Sub-Division of the United Khasi and Jaintia Hills District with effect from 1.12.1964. The Appellant in that case challenged the constitutional validity of that Notification on the ground that the Governor of Assam had contravened the mandatory requirements prescribed by para 14 of the Sixth Schedule to the Constitution. On receipt of the report of the Commission alongwith the recommendation of the Council of Ministers, the Governor had observed "Seen, thanks". There was a difference of opinion amongst their Lordships of the Supreme Court and the majority took the view that the expression "seen, thanks" along with the affidavit and other documents placed at the disposal of the Court were sufficient to hold that the Governor perused the report and made recommendation under Para 14(2) of the Sixth Schedule to the Constitution, in Edwingson (Supra), the Governor had at least recorded that he had seen the papers and his remark "Thanks" also carried much significance. However, in that case, the writing of the Governor was accepted as due recommendation because there were affidavit and other supporting documents. In the instant case, the competent authority has not expressed any view on the matter for which the report was sent to the Central Government. Even the words like "Seen. No action" might have been enough, if supported by an affidavit, that the authority had seen and considered the necessary documents and papers to fulfill the object of Section 14(1) of the Act. In our opinion merely a signature of the competent authority does not signify as to whether he considered the matter and thought that the order required no modification or revocation or it did. We quite fact that it is an executive action and no reason may be required to be given. What is required in a case of this nature, where the office noting does not indicate the purpose for which the file is put up, is at least to write some words signifying perusal of the papers keeping in view the object to achieve which the papers are placed before the competent authority. However, in the instant case, on perusal of the affidavit as well as the record, we reach the conclusion that it was not an exercise of power as required u/s 14(1) of the Act. There is no order by the competent authority; indeed no consideration of the report by it to see if power of detention has been properly exercised or not by the detaining authority or the State Government. In view of the failure of the Central Government to consider the report sent to it u/s 3(5) read with section 14(1) of the Act, we are constrained to hold that the procedural safeguards of the detenus were breached and the detention orders are liable to be set aside on this ground alone in view of the majority decision in Hitendra Nath (supra).

In the result, the petitions are allowed, and the impugned orders are quashed. The detenus are set at liberty forthwith if not wanted in any other case. Before closing, we observe that the detention orders have come to the end of the road, i.e. they are going to expire on 10.2.85 only a period of eleven days is left.