MAHMUD ALI Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition was initially filed as Habeas Corpus petition. The petitioner's case in this writ petition is that his cousin Md. Nazrul Islam @ Mantu Das son. of Md. Samnur Ali was picked up by the Army Personnel of Madras Field Regiment of Majbat Camp on 5.8.98 from the house of Sri Akshay Kalita of Orang market by the side of the Orang Tea Estate. The petitioner's further case is that Md. Nazrul Islam @ Mantu Das was neither handed over to the police nor produced before the Magistrate.

(2.) An affidavit-in-opposition was filed by one Sri Pushpendra working in Army as Captain on behalf of the respondent Nos. 2 and 3 denying that Md. Nazrul Islam @ Mantu Das was picked up by the Army Personnel from the house of Sri Akshay Kalita. It was, however, stated in the said affidavit-in-opposition that on 5.8.98 at about 20.30 hours an Army petrol went to a meeting place if MULTA, a Muslim militant organization in village Goriapathar but found that the meeting was by then over. Two persons, namely Md. Nazrul Islam and Sri Babul Hoque were apprehended and arms and ammunitions were recovered from them and they confessed that they belong to MULTA and both these persons were handed over to the Dhekiajuli Police Station on 6.8.98 at about 17.30 hours. An affidavit-in-opposition has also been filed by the DSP, Headquarters, Darrang, on behalf of the respondent No. 6 stating therein that the Army Units operating at Udalguri and Majbat were contacted but they have denied picking up of any person in the name of Md. Nazrul Islam @ Mantu Das but the statements of witnesses recorded revealed that the Army Personnel picked up Md. Nazrul Islam @ Mantu Das from the house of Sri Akshay Kalita on 5.8.98. It was further stated therein that Md. Nazrul Islam @ Mantu Das was not handed over to the police by the Army Personnel. But on the night of 5.8.98 an ambush was led by the Army party of 6th Kumaon Regiment at Bichar Chuburi under Harisinga Out Post, in which there was exchange of fire between the Army and some extremists and on physical checking a dead body of unidentified militant was found lying on the ground. It was further stated in the said affidavit-in-opposition of the DSP, Head quarter, Darrang, that the photograph and finger print of the dead body was taken and thereafter the dead body was cremated. On 15.8.98 one Md. Amir Hussain, Subject teacher of Duni H.S. School was shown the photograph and he identified the same as that of Md. Nazrul Islam @ Mantu Das and that Md. Nazrul Islam @ Mantu Das was the Organizing Secretary of Satpukhuri Sakha of ULFA.On 14.12.98, the court took the view that it was necessary to determine as to whether the detenu was killed in an encounter or had died under the Army custody after he was picked up and such finding can be recorded after the parties led their evidence and accordingly, appointed the learned District &Sessions Judge, Darrang, Mongaldoi, as Inquiry Officer, to conduct an enquiry and submit a report and directed the parties to appear before the learned District & Sessions Judge, Darrang, Mongaldoi, through their counsel. Thereafter, the learned District & Sessions Judge, Darrang, Mongaldoi, conducted the enquiry and submitted his report on 20.2.2001. A reading of the report submitted by the learned District & Sessions Judge, Darrang, Mongaldoi, shows that 7 witnesses were examined on behalf of the petitioner and one witness on behalf of the Army. The learned District & Sessions Judge, Darrang, Mongaldoi, after discussing the said evidence adduced on behalf of the parties has disbelieved the case of the Army that Md. Nazrul Islam @ Mantu Das was killed in an encounter and has instead believed the version of the petitioner that Md. Nazrul Islam @ Mantu Das was picked up by the Army on 5.8.98 from the residence of Sri Akshay Kalita of Orang and he was killed while he was in Army custody.

(3.) Mr. Konwar, learned counsel for the petitioner, submitted that a reading of the enquiry report would show that the District & Sessions Judge, Darrang, Mongaldoi, has considered at length the evidence adduced before him and on the basis of such evidence has come to a definite conclusion that Md. Nazrul Islam @ Mantu Das was picked up by the Army on 5.8.98 from the house of Sri Akshay Kalita of Orang and was killed while he was in Army custody. According to Mr. Konwar, therefore, this was a fit case in which court should direct the respondent Nos 1 and 21o pay compensation to the parents of Md. Nazrul Islam @ Mantu Das and some costs to the petitioner. He has filed an affidavit on 30.8.2001 on behalf of Md. Samnur Ali, father of Md. Nazrul Islam @ Mantu Das which indicated that the father of Md. Nazrul Islam @ Mantu Das was aged of 60 years and the mother of Md. Nazrul Islam @ Mantu Das aged 52 years and the source of income of the family is only cultivation and after the death of Md. Nazrul Islam @ Mantu Das the family is facing immense hardship. He cited several decisions of the Supreme Court wherein compensation has been awarded to the family of a person who has been killed in custody by the army or the police.