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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
ACHINTYA MALLA BUJOR BARUA, J.
Akhil Gogoi – Petitioner
Versus
The State of Assam & Ors. – Respondents
W.P.(Crl) 14 of 2017
Decided On : 21-12-2017
National Security Act, 1980 - Section 3(3) - Detention order - Grounds of detention - Judicial custody – Held, for interfering with an order of preventive detention are duly taken care of by the authorities, the likelihood of an order of preventive detention being interfered with would so drastically be reduced that the same would serve the purpose of invoking a detention under the preventive detention laws. On the contrary, if it is not done, the very purpose of invoking the preventive detention laws is frustrated. As already alluded, the National Security Act amongst others enables the Central or the State Government to make an order directing a person to be detained with a view to prevent him from acting in any manner prejudicial to the security of the state, or for maintenance of public order. But if the concerned authorities act in a manner which renders the order of detention to be interfered because of non-compliance of the requirements as indicated above, such an act on the part of the authorities can also be termed to be a threat to the security to the state. In the premises, it is a requirement under the Constitution for the State Government authorities to ensure that by such casual and irresponsible act on the part of some of the authorities, the security of the state is not exposed to a threat - Chief Secretary to the Govt. of Assam shall conduct a detailed enquiry involving all the persons, who had a role either constructive or advisory in the process leading to the order of preventive detention –Writ petition disposed of
By the order of detention dated 24.09.2017 of the District Magistrate Nagaon, the petitioner Sri Akhil Gogoi has been detained in custody under Sections 3(3) of the National Security Act, 1980. On 24.09.2017 itself, the order of detention dated 24.09.2017 as well as the grounds of detention contained in the communication also dated 24.09.2017 were served on the petitioner.
2. The order of detention provides that the detaining authority being the District Magistrate, Nagaon was satisfied that the petitioner had been actively abetting/instigating/provoking/ motivating and conspiring to wage war against the State on certain counts as indicated therein. Accordingly, in exercise of the powers under Section 3(3) of the National Security Act, 1980, the detaining authority directs that the petitioner who was in judicial custody in the District Jail at Dibrugarh be detained with immediate effect in the District Jail Dibrugarh under the National Security Act, 1980.
In the communication bearing No. NMM.69/2017/294 dated 24.09.2017 containing the grounds of detention, the petitioner was informed that if he desires to submit representation against the order of detention, the petitioner may send his representation to the Principal Secretary to the Govt. of Assam in the Home and Political Department and that he may also make a representation to the Chairperson of the Advisory Board, Assam for the National Security Act.
3. The petitioner accordingly submitted a representation against the order of detention on 27.09.2017 which was addressed to the Principal Secretary to the Govt. of Assam in the Home and Political Department, as well as to the Chairman of the Advisory Board for Assam under the National Security Act. The representation was received by the Asst. Jailor of Central Jail Dibrugarh on 27.09.2017.
4. Prior to it, by the order of the Governor under the signature of the Principal Secretary to the Govt. of Assam, Home and Political Department, as contained in Memo No. PLA. 298/2017/239 dated 26.09.2017, it was provided that the Govt. of Assam has approved the detention order dated 24.09.2017 on 26.09.2017 under Section 3(4) of the National Security Act, 1980.
5. On 04.10.2017 the petitioner makes a representation to the Chairman of the Advisory Board, Assam under the National Security Act, 1980 requesting the Advisory Board to consider his request for assistance by a legal counsel. In the representation, the petitioner also refers to a decision of the Constitution Bench of Hon’ble Supreme Court rendered in A.K. Roy Vs. Union of India reported in (1982) 1 SCC 271 to justify his claim for the assistance of a legal counsel. Alternative request was also made that in the event, the Advisory Board refuses the request for a legal counsel, the petitioner be permitted to be assisted by a friend, as provided in the Constitution Bench Judgment and accordingly, expressed his desire to be assisted by Sri Chandan Sarma. The said request for a legal counsel was rejected by the Advisory Board by the order dated 22.10.2017. By another order of 25.10.2017 as contained in Memo No. 298/2017/360 dated 25.10.2017, the representation of the petitioner dated 27.09.2017 was rejected by the Govt. of Assam.
6. The petitioner was produced before the Advisory Board on 03.11.2017 at 1.00 P.M within the premises of the District Jail, Dibrugarh, wherein Sri Chandan Sarma was present to assist him. In the hearing the petitioner reiterated his prayer to be allowed to be represented by a legal counsel inasmuch as, senior Civil Officers as well as the Police Officers well conversed with law were present to represent the State Government. The petitioner also raised an allegation that he was not given access to any such record, which were presented by the State Government through the officers. It is the stand of the petitioner in the writ petition that in
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