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2008 Supreme(Gau) 717
IN THE HIGH COURT OF GAUHATI
Aftab H. Saikia and Anima Hazarika, JJ.
Dharmeswar Haloi @ Baity
Vs.
Union of India (UOI) and Ors.
WP (Crl.) No. 22 of 2008
Decided On: 22.09.2008
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: S. Sinha, J. Payeng, J. Kalita and M.K. Boro, Advs.
For Respondents/Defendant: P.S. Deka and N. Baruah, Advs.
Detainees have a fundamental right to make representation before the detaining authority and the appropriate Government, and inordinate delay in disposing of the representation can lead to the quashing of the detention order.
Headnote:
Habeas Corpus - National Security Act, 1980 - Section 3 - Article 22(5)
Fact of the Case:
The detenu challenged the detention order on the grounds of failure to inform him of his right to file representation and inordinate delay in disposing of his representation by the appropriate authorities.
Finding of the Court:
The court found that the detaining authority failed to inform the detenu of his right to file representation and there was an inordinate unexplained delay in disposing the detenu's representation.
Issues: Failure to inform detenu of right to file representation, inordinate delay in disposing representation
Ratio Decidendi: The court emphasized the detenu's fundamental right under Article 22(5) of the Constitution to make representation before the detaining authority and the appropriate Government. It also held that the inordinate delay in disposing the representation was not justified.
Final Decision: The impugned detention order was quashed and set aside, and the detenu was ordered to be set at liberty forthwith.
Aftab H. Saikia, J.
1. Heard Mr. J. Payeng learned Counsel appearing for the Petitioner (hereinafter referred to as 'the detenu'). Also heard Mr. P.S. Deka learned Counsel representing the State of Assam/official Respondent Nos. 2 to 6 and Mr. N. Baruah learned Central Government Counsel ('CGC' for short) on behalf of the Union of India/Respondent No. 1.
2. The legality and correctness of the order dated 7.2.2008 issued by the District Magistrate, Nalbari in exercise of power under Section 3 of National Security Act, 1980 (for short 'the Act') detaining the detenu Sri Dharmeswar Haloi @ Baity under the Act for his activities being detrimental to the maintenance of public order and security of the country, have been assailed in this Habeas Corpus petition filed by the detenu himself.
3. The detenu has basically challenged the order on two grounds:
(1) The detaining authority by the impugned detention order failed to inform the detenu as regards his right to file representation before the detaining authority and the same is evident from the impugned detention order itself as well as grounds of detention furnished to the detenu.
(2) There was an inordinate unexplained delay in disposing the representation dated 5.3.2008 of the detenu by the appropriate authorities namely, Government and Central Government inasmuch as the State Government rejected his representation on 31.3.2008 causing an unexplained delay of 26 days when Central Government rejected the representation dated 5.3.2008 on 7.4.2008 after one month.
4. It is a settled law that when a detenu is detained, he has a fundamental right under Article 22(5) of the Constitution to make representation before the detaining authority in addition to his right to file representation before the Central Government or the appropriate Government. See (i) Konsam Brojen Singh @ Basan @ Sekhar @ Suraj @ Sainthel @ Basanta @ Inaotomba v. State of Manipur and Ors. reported in 2006 (1) GLT 375 (Full Bench) (ii) Miss Dinali Langthasa v. Union of India and Ors. in Case W.P. (Crl) No. 9/2008 disposed of on 2.6.2008 (iii) Sri Dilip Moran v. Union of India in case W.P. (Crl) No. 20 of 2008 disposed of on 27.8.2008.
5. In the instant case, information as regards the detenu's right to file representation before the detaining authority, has not been given to the detenu and the same is apparent in the impugned order itself.
For the sake of convenience, the portion relevant as discussed above reflected in "Copy forwarded to" mentioned in the impugned detention order may be quoted as under:
1....
2....
3....
4....
5....
6....
7. Sri Dharmeswar Haloi @ Bhaity S/o Sri Bharat Haloi (Das) of village Bishnupur Khat, P.S. Nalbari in Nalbari District for information with a copy of the grounds of detention (both English & Assamese version) He has a right to make a representation to the State Government against the order of detention. He also has a right to claim personal appearance before the Advisory Board. He may make a representation to the Advisory Board, State Govt. & Central Govt. If he feels aggrieved by the above order through the Superintendent of District Jail, Nalbari or District Magistrate, Nalbari.
In the grounds of detention the relevant portion in last paragraph may be extracted as under
The Subject may if he so desires submit representation against his detention to the Advisory Board, State Government & Central Government through the Superintendent of District Jail or District Magistrate, Nalbari.
6. Besides in their affidavit the State Government through Respondent Nos. 2 and 3 in paragraph 9 and 12 emphatically admitted that the representation dated 5.3.08 so received by the State Government on 6.3.08 was rejected on 31.3.08 and delay in disposing such representation after 26 days was explained to the effect that the Government was awaiting for the parawise comments from the detaining authority which the Government received on 27.3.08. Such explanation pertaining to non-receipt of parawise comments has
