DOLICHAKRABORTY Vs. STATE OF ASSAM

JUDGEMENT

(1.) These two writ petitions were taken up together for hearing as they involves common question of facts and law. In both the: petitions, the petitioners assailed the legitimacy of the orders of detention bearingNo. DC.15/99/Pt IV/36 dated 4th December, 1999 and No. DC. 15/99/Pt.m 69 dated 4th December, 1999 passed against Shri Karnal Roy alias Gopal Bhakat, son of Shri Kailash Chandra Roy, and Shri Raju Chakraborty alias Rajesh Chakraborty alias Ashim Hazarika alias Banerjee, son of Shri Dipesh Chakraborty, the detenus in WP(Crl) Nos.41 and 40 of 2000, respectively, by the District Magistrate, Dhubri, under sub-section (2) of Section 3 of the National Security Act, 1980, hereinafter referred to as the Act, 1980, for preventing them from acting in a manner prejudicial to the maintenance of public order. Writ Petition (Crl) No. 40/2000 pertains to the detention of Shri Raju Chakraborty alias Rajesh Chakraborty alias Ashim Hazarika alias Banerjee, while WritPetition(Crl)No. 41/2000 pertains to detention of Shri Kamal Roy alias Gopal Bhakat.

(2.) The validity of the grounds of detention accompanied by the basic materials are not seriously under challenge. In our view also, we do not have any misgiving in holding that the grounds are proximate in point of time, having relevance and nexus with the objects sought to be achieved by passing the order of detention. Shri DK Mishra, learned senior counsel appearing on behalf of the petitioners attacked on the continued detention of the detenus on the ground of breach of the safeguards guaranteed by Article 22(5) of the Constitution of India. The learned counsel built up his argument mainly on the ground that the detenus not being apprised of their right to make a representation to the Central Government under Section 14 of the Act, 1980, it vitiated the continued detention of the detenus. The grounds of detention furnished to the detenus clearly intimated the detenus about their right to make a representation to the State Government, but those grounds did not indicate the right of the detenus to make a representation to the Central Government under Section 14 of the Act, 1980, submitted the learned counsel for the petitioners. The aforesaid remiss on the part of the detaining authority, submitted the learned counsel, amounted to Constitutional breach of the right of the detenus to make an effective representation before the Central Government and, therefore, there cannot be any justification for continued detention of the detenus. The aforesaid contention of the learned counsel for the petitioners was seriously contested by Shri BC Das, the learned Addl. Sr. Govt. Advocate appearing on behalf of the State/ respondents. The learned Addl Sr. Govt. Advocate, in support of his argument mainly referred to the Full Bench decision of the Allahabad High Court in the case of Raj Bahadur Yadav vs. State of U.P. & Others, reported in 1998 Cri L.J. 103.

(3.) The orders of detention in the cases in hand, were passed under Section 3(2) of the Act, 1980. Under the aforesaid Act, 1980 when any order is made under Section 3 by an officer as mentioned in sub-section (3), he is required to report forthwith the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars, as in his opinion, have a bearing in the matter and no such order shall remain in force for more than twelve days after making of the order unless it is approved by the State Government. When any order is made or approved by the State Government under sub section (5) of Section 3 of the Act, 1980 the State Government is required within seven days to report to the Central Government together with the grounds on which the order has been made and such other particulars, as in the opinion of the State Government, have a bearing on the necessity for the order. Section 18 of the Act, 1980 envisage that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. Section 9 of the Act, 1980 provides for constitution of Advisory Boards and under Section 10, a duty is cast on the appropriate Government to place before the Advisory Board within three weeks from the date of detention of a person under the order, the grounds of detention on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in sub-section (3) of Section 3, also the report by such officer under sub-section (4) of that Section. The Advisory Board after considering the materials placed before it and after calling for such further information, as it may deem necessary, from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if in any particular case it considers it essential so to do, or if the person concerned desires to be heard, after hearing him in person, submiit its report to the appropriate Government within seven weeks from the date of detention of the person(s) concerned. Section 12 of the Act, 1980 speaks of the action to be taken upon the report of the Advisory Board. Section 14 of the Act, 1980 which is relevant for the purpose of determination of the issue raised before the Court, is reproduced hereinbelow: