The court established the entitlement of family members to compensation for the unconstitutional deprivation of fundamental rights based on the principles laid down in D.K. Basu v. State of West Bengal and Nilabati Behera (Smt.) Alias Lalita v. State of Orissa and Ors.

P.P. Naolekar, C.J.

1. The Petitioner, who is the brother of the missing person, namely Sri Wanghang Lamthak, has filed this petition seeking leave for issuance of a Rule of Habeas Corpus calling upon the Respondents to show cause to why the illegal detention and the wrongful confinement of the brother of the Petitioner by the Respondents shall not be set aside and quashed.

2. The necessary facts on the basis of which the relief is being claimed as alleged by the Petitioner are that on 2.2.2003, the Petitioner's brother Wanghang Lamthak and other colleagues were playing cards in one of their friend's residence. The Army personnel headed by Sri Annupam Roy, Lieutenant, Commanding Officer, 7/8 Gorkha regiment, Deomali, Tirap, Arunachal Pradesh, appeared suddenly in the said residence and picked up the brother of the Petitioner, Wanghang Lamthak and other companion Sri Ngonglin Boi and taken to the Army Camp. The Petitioner lodged an FIR before the Officer-in-Charge, Deomali Police Station on 5.2.2003 reporting about the missing of his brother. But no case was registered rather the complaint made by the Petitioner was forwarded by the Officer-In-Charge, Deomali Police Station, to the Army authority. It is alleged that neither the local police nor the Army authority are in a position to tell him the whereabouts of his brother and that neither the Army personnel who picked up his brother had informed the arrest of his brother to the local police nor his brother had been arrested under any legally executed warrant. According to the Petitioner, the Petitioner's brother is under the custody of the Army and, therefore, the Army authority may be directed to produce him.

3. After service of notice on the Respondents, the Respondents have entered appearance and filed their replies whereby they denied that the Petitioner's brother, namely Wanghang Lamthak was picked up by them on 2.2.2003 or he is in their custody. In view of complete denial of the fact of Petitioner's brother being in the custody of the Army authority, this Court has issued directions on 1.8.2003 to the Deputy Commissioner, Tirap District, Arunachal Pradesh to hold an enquiry with regard to the allegations of disappearance of Sri Wanghang Lamthak.; Pursuant to the aforesaid direction of this Court, enquiry was conducted by Shri J.P. Choudhury, the Deputy Commissioner, Tirap District, after examining all the witnesses and on 26.3.2004, the Deputy Commissioner, Triap District, submitted his final report. On appreciation of the statements made by the witnesses before the Enquiry Officer, the Enquiry Officer came to the conclusion that Sri Wanghang Lamthak has not been picked up by the Army authority from the residence of his colleague on 2.2.2003 and that Sri Wanghang Lamthak is not in custody of the Army authority. The counsel for the Petitioner challenges the report submitted by the Enquiry Officer before us. It is submitted by the counsel for the Petitioner that there is a direct evidence of two witnesses, i.e., EW-2, Samsek Moidam and EW-4, Yengsen Veti. Yengsen Veti, EW-4, has specifically stated in his evidence that Sri Wanghang Lamthak had been picked up by the Army personnel in their presence and his statements is in corroboration with the statement of the EW-1, the Petitioner. It is further submitted that the reasons for rejection of the statements of these witnesses EW-2 and EW-4 is that the EW-4 is drug addicted and that the statement of EW-2 has not been corroborated by any other witnesses are not correct. On the other hand, it is submitted by the learned Counsel for the State of Arunachal Pradesh, that the evidence of EW-3, Sri Ngonglin Boi who had admittedly accompanied the Army in search of certain insurgents has specifically stated that Sri Wanghang Lamthak had not been picked up by the army.

4. We have carefully perused the statements of the witnesses recorded by the Enquiry Officer and we find that EW-2, Samsek Moidam and EW-4, Yengsen Veti, have stated