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2014 Supreme(Gau) 879
Gauhati High Court
Ujjal Bhuyan, J.
Babu Konwar - Appellant
Versus
State of Assam and Ors. - Respondent
WP (Crl.) No.15 of 2013
Decided On : 21-04-2014
For the Petitioner: Mr. P. Kataki, Mr. D.K. Bagchi and Mrs. R. Begum.
For the Respondents: Mr. N. Upadhyay and Mr. S. Chakraborty.
Headnote:
Constitution of India, 1950 - Article 226 – National Security Act, 1980 - Section 3(3) - Detention Order – Involved in various crimes - Challenged - Grounds of detention, it was alleged that petitioner was involved in various crimes - According to petitioner, when his bail was imminent, District Magistrate passed an order under section 3(3) of Act, 1980 ordering detention of petitioner for a period of three months in first instance to prevent him from acting in a manner which is prejudicial to the security of State, maintenance of public order, peace, sovereignty and integrity of country - District Magistrate forwarded the detention order, grounds of detention and "other documents" in respect of petitioner to Principal Secretary to the Government of Assam, Home and Political Department for necessary action by his forwarding letter of even date – Held, A perusal of impugned order and the grounds of detention does not indicate that the detaining authority had arrived at or recorded any subjective satisfaction that he was fully aware of the fact that the petitioner was actually in custody or that there was real possibility of his release on bail or acquittal and further that on being so released he would probably indulge in similar activities which are prejudicial to public order and, thus, to prevent him from indulging in such prejudicial activities, detention order was necessary - In the absence of such satisfaction recorded by detaining authority, the impugned order of detention cannot be sustained - it is seen that though fifteen instances of alleged criminal conduct of the petitioner have been mentioned, according to the detaining authority, his involvement in seven cases were well established. These seven cases were registered - Impugned order of detention confirmed and enhanced by the State Government, cannot be sustained - Writ petition is allowed.
2. By way of this petition under article 226 of the Constitution of India, petitioner has challenged the legality of his detention under the National Security Act, 1980 vide the detention order dated 19.6.2013 passed by the District Magistrate, Sivasagar as well as the orders dated 26.6.2013 of the Secretary to the Government of Assam, Home and Political Department approving the detention order, 23.7.2013 passed by the same authority rejecting the representation submitted by the petitioner against his detention and the order dated 2.9.2013 also of the said authority confirming the detention of the petitioner and further directing his detention for a period of twelve months.
3. Case of the petitioner is that on 14.3.2012 he was arrested in connection with Amguri Police Station Case No. 131/2012 and since then he is in judicial custody. According to the petitioner, when his bail was imminent, District Magistrate, Sivasagar passed an order on 19.6.2013 under section 3(3) of the National Security Act, 1980 (the Act) ordering detention of the petitioner for a period of three months in the first instance to prevent him from acting in a manner which is prejudicial to the security of the State, maintenance of public order, peace, sovereignty and integrity of the country. The District Magistrate forwarded the detention order, grounds of detention and "other documents" in respect of the petitioner to the Principal Secretary to the Government of Assam, Home and Political Department for necessary action by his forwarding letter of even date.
4. As per the grounds of detention, it was alleged that petitioner was involved in various crimes. Fifteen instances of such crime were mentioned. Out of those, it was stated that in seven cases in which petitioner was shown arrested, his involvement was well established. It was further stated that as per jail record, petitioner was in jail custody for varying periods starting from 25.2.2001. The detaining authority therefore recorded that it was established that the petitioner has become a hardcore criminal. After every arrest and release from detention, he has emerged stronger, maintaining links with NSCN of Nagaland and having access to sophisticated and prohibited arms for carrying out subversive activities against society and nation.
5. Petitioner submitted a representation dated 24.6.2013 to the District Magistrate through the Jail Superintendent, Sivasagar against the aforesaid detention order. Amongst other grounds, petitioner stated that he was not served with the "other documents" as mentioned in serial No.3 of the enclosed documents in the letter dated 19.6.2013 of the District Magistrate which prevented him from making an effective representation.
6. Respondent No.1 passed an order dated 26.6.2013 approving the detention order dated 19.6.2013 passed by the District Magistrate. By subsequent order dated 23.7.2013 passed by the said authority, the representation submitted by the petitioner was rejected.
7. Notwithstanding the above, petitioner submitted a fresh representation dated 14.8.2013 to the District Magistrate with copies to the State Government, Central Government and the Advisory Board. According to the petitioner, the Advisory Board after hearing the petitioner submitted a report dated 7.8.2013 to the State Government. Thereafter, respondent No.1 in exercise of power conferred by sub-section (1) of section 12 of the Act confirmed the detention order of the petitioner and further directed that the petitioner be detained in the District Jail, Sivasagar for a period of twelve months w.e.f. the date of detention or until further orders.
8. Aggrieved, petitioner has filed the present writ petition seeking the reliefs as indicated above.
9. Contention of the petitioner is that there was no justification in detaining him in cu
