This Habeas Corpus application under Article 226 of the Constitution of India, has been filed by Sri Sanu Saikia, stating inter-alia that on 4.12.99 his brother Prafulla Saikia @ Manash Pratim Mech was picked up by Army personnel from the house of one Sri Bipul Gogoi @ Petua Mahari. The said detenue was assaulted and he was whisked away in an Army vehicle and since then his whereabouts are not known. The detenue was also not produced before the Magistrate or handed over to police as required. Upon filing of the present petition, this Court vide order dated 22.12.1999 directed the respondents to produce the detenue before the nearest Police station.

2. The respondent Union of India filed an affidavit denying the allegations. It is stated that Prafulla Saikia @ Manas was never picked up by the Army and as such there is no question of handing over the said person to the Police. In view of the above denial, this Court vide order dated 8.2.2001, directed the District &Sessions Judge to enquire into the matter and submit a report. An enquiry was held wherein the petitioner examined four witnesses and the respondent Union of India examined one witness. The learned District Judge came to the following decision.

"In view of my above discussions and findings i.e. considering the totality of the evidence on record and facts and circumstances of the case as a whole, it is safely decided that Prafulla Saikia alias Manash Pratim Mech, aged about 26 years, son of Sri Gopal Saikia, village No.2, Charaibari, under Police Station Khowang, District Dibrugarh, Assam, "was taken up bv army on 4.12,99".

3. A copy of the enquiry report alongwith the statement of witnesses was furnished to the learned counsel of both sides and the respondent Union of India fired another affidavit challenging the finding of the learned District & Sessions Judge. We have perused the report and the statement of the witnesses.

4. All the witnesses examined by the petitioner have supported the case of the petitioner. The evidence of Sri Bipul Gogoi @ Petua Mahari is material and relevant as because the detenue was picked up from his house. The witnesses have categorically stated that Prafulla was chased by the Army persons and thereafter he was arrested and taken away by the Army people. The witnesses however could not name the Army persons and it was also not possible on their part to identify individual Army persons. One Sri Rabin Chowdung, who was detained at Dibrugarh Jail, had seen the detenue at Naharkatia and the enquiry Officer on appreciation of the oral evidence on record came to the aforementioned finding.

5. The learned counsel forthe Union of India has submitted that the petitioner's brother could have been taken away by some extremists outfit by using the Army uniform, which are available in the market. The learned counsel for the petitioner submits that a similar plea was raised by the respondent Union of India in the case of Mrs. P. Lily - Vs- Union of India 1997 3 GLT542 a Division Bench of this Court declined to accept the above submission in absence of any cogent reasons.

6. Considering the submissions of both sides and on perusal of the enquiry report and the statement of witnesses, we accept the finding of the learned District & Sessions Judge, that Sri Prafulla Saikia alia Manas Pratim Mech was picked up by the Army personnel on 4.12.99 as stated. Although a Rule was issued in the year 1999, till today, the respondents have failed to trace out Sri Prafulla Saikia alias Manas Pratim Mech and produce him.

The learned counsel for the petitioner therefore submits that some compensation should be paid to the petitioner, the unfortunate brother of the missing Prafulla Saikia and the search must continue till the missing person is traced.

7. In the case of O.K. Basu -Versus-State of West Bengal 19971SCC 416, the Apex Court observed :-

"The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, and

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