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GAUHATI HIGH COURT
V.Dutta Gyani, H.K.Kumar Singh, JJ.
Phukan Daimary @ Fungjarang -Appellant
Versus
State of Assam -Respondent
Civil Rule (HC) No. 106 of 1997
Decided On : 07-03-1998
NATIONAL SECURITY ACT, 1980 - SECTION 3(2) - DETENTION ORDER - DELAY IN CONSIDERING REPRESENTATION - NON-SUPPLY OF BASIC FACTS - MALAFIDE - SUBJECTIVE SATISFACTION - VALIDITY OF DETENTION ORDER.
Fact of the Case:
The petitioner challenged the detention order passed against the detenu under Section 3(2) of the National Security Act, 1980, alleging denial of opportunity to make an effective representation, undue delay in disposing of the representation, and lack of application of mind by the detaining authority.
Finding of the Court:
The court found that there was an unexplained delay in forwarding the representation to the Central Government and in considering and disposing of it, which violated the procedural safeguards under the Act. The court also found that the detaining authority did not provide the detenu with the basic facts and materials constituting the grounds of detention, and that the affidavit filed by the successor in office of the detaining authority could not substitute for the subjective satisfaction of the detaining authority.
Issues: 1. Whether the delay in considering and disposing of the detenu's representation violated the procedural safeguards under the National Security Act, 1980? 2. Whether the non-supply of basic facts and materials constituting the grounds of detention vitiated the subjective satisfaction of the detaining authority?
Ratio Decidendi: 1. The court held that the unexplained delay in forwarding the representation to the Central Government and in considering and disposing of it violated the procedural safeguards under the Act. The court emphasized the importance of prompt consideration of representations to ensure the protection of individual liberty. 2. The court held that the non-supply of basic facts and materials constituting the grounds of detention vitiated the subjective satisfaction of the detaining authority. The court stated that the grounds under Article 22(5) of the Constitution include not only conclusions of fact but also all the basic facts on which those conclusions were founded.
Final Decision: The court allowed the petition, set aside the impugned detention order, and ordered the release of the detenu.
By this petition under Article 226 of the Constitution the petitioner seeks to challenge the detention order dated 5.4.97 as passed against the detenu by the District Magistrate, Nalbari, respondent No.4 in exercise of its power under section 3 (2) of the National Security Act, 1980 (for Short, the Act) and prays tor issuance of a writ of Hebeas Corpus. The impugned order is reproduced herein below for ready reference :
“Whereas, I, Shri B. Bhattacharjee, District Magistrate, Nalbari^have been empowered by the State Govt under section 3 (3) of the National Security Act, 1990 to pass orders of detention under section 3 (2) of the said Act and whereas it has been made to appear to me that the activities of Shri Phukan Daimary @ Fungjarang, son of late Bhoda Daimary of village Teteliguri, District Nalbari are prejudicial to the maintenance of public order being a hardcore BDSF (NDFB) who has been perpetuating reign of terror in the area by indulging in murder, kidnapping and has instigated and abetted as the activities of unlawful organisation to wage war against the State, I, therefore direct that the aforementioned Shri Phukan Daimary @ Fungjarang Daimary, s/o late Bhoda Daimary of village Teteliguri (Jolapara) PO Tamulpur. Dist Nalbari be detained under section 3 (2) of the National Security Act, 1980 for a period of two months from the date of the order unless an order of revocation or modification or a fresh order is passed to the contrary before the expiry of this period.
For the purpose of the Assam Detention Order. 1980 this detenu is to be classified as Class II detenu. Given under my hand and seal of this 5th day of April, 1997.”
Sd/-
District Magistrate, Nalbari.”
2. The detenu is stated to be a hardcore activist of BDSF (NDFB). Mr. Dutta, learned counsel appearing for the petitioner has raised the following grounds :
Denial of opportunity to make an effective representation by withholding vital documents;
Undue and inordinate delay in disposing the representation both by the State and the Central Governments;
The impugned order has been passed without any application of mind and the subjective satisfaction arrived at is vitiated.
Learned Additional Advocate General Mr. Bora on the other hand “maintained that all the procedural safeguards have been complied with and there was no delay in considering the detenu's representation, the same stand taken by the learned Standing Counsel for Union of India.
Adverting to the grounds of detention as contained in Annexure B; the nature of unlawful and criminal activities allegedly indulged in and committed by the detenu, as is evident from the cases registered against him under sections 365/ 302/34IPC and 3/4 TADA (P) Act at various police stations leave no manner of doubt that these grounds are not only relevant and germane, but also proximate in point of time and do have a nexus with the object sought to be achieved by passing the impugned order.
It is the in built procedural safeguards of the Act have to be observed fully and complied with by all concerned the detaining authority, the State Govt. and the Central Govt.. Lapse on the part of either of them can lead to quashing the order of detention as rightly said by the history of liberty is the history of compliance with the procedural safeguard.
Now taking up the question of delay in consideration and disposal of detenu's representation, so far as the State Govt. is concerned, the representation dated 3.5.97 was rejected by the State Govt. on 12.5.97, thus it cannot be said that there was any delay on the part of the State Govt.. But the same is not the case with the Central Govt.. Let us now see what is Central Govt. has to say on the matter:
“It is stated that a representation dated 3.5.97 from the detenu was received by the Central Govt. in the Ministry of Home Affairs on 16.5.97 through Govt. of Assam. This representation of the detenu was put up before the Deputy Secretary, Ministry of Home Affairs on 29.5.97 who c
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