BRINDABAN GOSWAMI Vs. DIST MAGISTRATE, DARRANG

JUDGEMENT

(1.) THE petitioner has been detained under Section 3(2) of the National Security Act for short "the Act", with a view to preventing hip from acting in any manner prejudicial to the maintenance of public order/ the maintenance of supply and services essential to the community.

(2.) WE set forth the grounds of detention : - "Sri Brindabon Goswami aged about 31 years S/o Sri Tulshi Goswami of Chandmari, Tezpur Town is a graduate but he is without employment. He is an Ex -president of all Assam Students' Union. He has been closely associating himself with the current agitation in Darrang district and organising 'bundh' picketing. 'Satyagraha' has been causing a serious disturbance to public order besides disrupting the supply and services essential to the community. For his prejudicial activities order for his detention under the Assam Preventive Detention Ordinance 1980 was issued on 18.4.1980. He could not however be detained as he went underground. Subsequently, he came over ground and continued his prejudicial activities. He has been instigating the people to continue the agitation. On 18.11.1980 a crowd prevented an Army School Bus carrying students to central School at Tezpur town. The crowd was declared unlawful and ordered to disperse. They however defied the order and became violent. Police had to resort to use of tear gas, lathi charge and firing to disperse the crowd. Sri Goswami was in the crowd and he was instigating the people to defy the order and to become violent. This a serious case of disturbance of public order and Shri Goswami was one of the persons responsible for such a situation. The AASU and the AAGSP gave a call for 'mass satyagraha' in the office of the Deputy Commissioner etc. from 18.12.1980 to 31.12.1980. Sri Goswami has been taking a leading part in organising such "Satyagraha" in Tezpur and other places. At his instigation people are defying the orders under Section 144 Criminal Procedure Code prohibiting assembly of five or more persons processions etc. in public places issued for maintenance of public order. The activities of Sri Goswami are thus prejudicial not only to the maintenance of public order but also to the maintenance of supply and services essential to the community. In order to prevent him from doing any such act it is essential to detain him under the National Security Ordinance 1980."

(3.) PARAGRAPHS 1 and 2 are the grounds which have link with "supply and services". Let us test whether the activities referred to in paras 1 and 2 support the detention for preventing him from doing any act prejudicial to the maintenance of supply and services essential to the community. A bare perusal of the said paragraphs shows that the said activities were the grounds for his alleged detention order said to have been issued on 18.4.1980. It may be stated that the grounds of detention and/or the order of detention dated 18.4.1980 were not supplied to the detenu. As such we cannot predicate that the para 1 was the Around for ha order of detention dated 18.4.1980. Be that as it may, abscondence of a detenu does not terminate the effect of an order of dentention under "the Ordinance of 1980." The detention order dated 18.4.1980 as well as the grounds of detention were taken into consideration by the detaining authority who formed the subjective satisfaction". As such the grounds of detention and the order of detention formed integral parts of the grounds. Non -supply of the documents to the detenu was violative of Article 22(5) of the Constitution. The detenu was disabled to make an effective representation against the ground. On the authority of Kamala Kanvalal Khushalani v. State of Maharashtra, 1981 (1) SCC 748 : (1981 Cri LJ 353) we hold that the procedure adopted by the detaining authority was neither just nor fair nor reasonable. As such, the order of detention is invalid on this score alone. Copies of documents to which reference is made in the grounds must be supplied to a detenu. The documents or materials referred to in the grounds and taken into consideration by the detaining authorities in making the order of detention must be supplied to the detenu 'pari passu' the ground of detention. As such documents or materials form integral part of the grounds. We rely or Ramchandra Kamat v. Union of India. AIR 1980 SC 765 (Para 8); Hansmukh v. State of Gujarat, AIR 1981 SC 28 (Paras 17 and 18) : (1980 Cri LJ 1286); Icchu Devi v. Union of India, AIR 1980 SC 1983 (Paras 6 and 7); Prittam Nath Hoon v. Union of India. AIR 1981 SC 92 : (1980 Cri LJ 1340) (Para 9). M.M. Patel v. State of Maharashtra, AIR 1981 SC 510: (1981 Cri LJ 331); Shalini Soni v. Union of India, AIR 1981 SC 431 (Paras 7 and 8) : (1980 Cri LJ 1487); S. Gurdip Singh v. Union of India, AIR 1981 SC 362 (Paras 2 and 3) : (1981 Cri LJ 2); Lallubhai v. Union of India. 1981 Cri LJ 288 (Para 8) : (AIR 1981 SC 728). In view of the pronouncements of the Supreme Court we are constrained to hold that non -furnishing of the documents and materials referred to in the Ground was violative of the procedural safeguards under Article 22 (5) of the Constitution.