BHUPEN DEKA Vs. STATE OF ASSAM

JUDGEMENT

(1.) IN this habeas corpus application, the petitioner questions his detention under Section 3 of the National Security Ordinance, 1980, "the Ordinance" hereinafter. The petitioner has been detained "to preventing him from acting in any manner prejudicial to the maintenance of public order/to the maintenance of supply and services essential to the community". These are the two purposes for detention. The grounds are as follows : - "Shri Bhupen Deka, aged about 24 years, s/o Shri Rajma Deka of L.D. Road, Tezpur Town is a P.U. 2nd year College Student. He is the President of Tezpur Anchalik Chatra Santha. He has been playing a leading role in the current agitation and he has been organising 'Satyagraha' 'Bhundh' Picketing of Govt. offices etc. from time to time, during the past one year. Such 'Satyagraha', 'Bundh', Picketing etc. have been disturbing public order and also disrupting the supply and services essential to the community. For his prejudicial activities, order for his detention was issued under the Assam Preventive Detention Ordinance, 1980, on 18 -4 -80. He however evaded service of the order till 17 -5 -80 when he was detained. He resorted to hunger strike in Jail on 11 -8 -80 protesting against his detention and demanding his immediate release. However, on the following day, he called off such hunger strike. On 17 -8 -80, he was released from detention on his giving an undertaking that he would not resort to violence etc. He has been carrying on his prejudicial activities ever after his release. On 6 -9 -80, he addressed a meeting at Tezpur and urged all to take up self -defence training for taking up deportation of foreigners. He has been organising and addressing such meetings at various places instigating the people to continue the agitation. On 5 -10 -80, he along with some others staged black flag demonstration when Shri A.P. Sarma Union Minister was addressing a meeting at Hem Barua Hall, Tezpur. They were also shouting slogans and were creating a situation affecting public order. Police however brought the situation under control. On 18 -11 -80, a large crowd prevented an army vehicle carrying students to School. The crowd became violent and police had to resort to use of force. Shri Deka was one of the organisers of the mob and he demanded withdrawal of the orders imposing curfew in the area. Dr. A.P. Dutta of the Tezpur Civil Hospital was reportedly injured in police lathi -charge on the day. Shri Deka along with others was instigating Dr. Dutta and other Doctors to resort to strike in protest. Later on 20 -11 -80. Shri Deka with others organised a procession of Doctors and others to demonstrate against police action on 18 -11 -80. On 10 -12 -80, Shri Deka while addressing a meeting at Tezpur said that while the present movement was on Gandhian principle of non -violence, the people would have to follow the policy of tit for tat. He has also been taking active part in organising 'Satyagraha' in front of Deputy Commissioner's office at Tezpur from 18 -12 -80 such 'Satyagraha' has been disturbing public order. People are defying the orders under Section 144 Criminal Procedure Code prohibiting assembly of five or more persons, procession etc. in public places, issued for maintenance of public order."

(2.) MR . Padma prasad, the learned Government Advocate appearing on behalf of the State submits that there only one around germane to the "supplies and services essential to the community", that is, ground No. 1. The learned Government Advocate has very fairly conceded that the other grounds do not pertain to maintenance of supplies and services essential to the community. We have explained the meaning of the word "ground" in Krishna Barua Civil Rule No. 47(HC) of 1981 decided on 19.3.1981 : (Reported in 1981 Cri LJ NOC 175), on the basis of the decisions of the Supreme Court. The word "ground" under Article 22(5) and "the Ordinance" means clear revelation of all the basic facts and other materials which are taken into consideration by the detaining authority in making the order of detention. However, it may include factual inference drawn by the detaining authority. The basic facts and materials must be in existence at the time of recording the order of detention.The grounds must be self -sufficient and self -explanatory to enable a detenu to make an effective representation.

(3.) NOW , let us examine Ground No. 1 to find out as to whether any basic facts and materials have been furnished to the petitioner which may be termed as "self -sufficient" and "self -explanatory" understandable or intelligible to a reasonable person without legal aid. We find that there is nothing in the ground to show disclosure of any material fact as to when, where, how and in what manner the Bundhs, picketings, Satyagraha had taken place and how and in what manner they affected the supplies and services essential to the community. There is not a single specific date or time of the Bundhs, picketing, Satyagraha nor is there any indication as to how the "supplies and services" essential to the community were affected. There is no indication that any source of supply or services was affected in any manner. We are constrained to hold that Ground No. 1 is absolutely value and it denied the petitioner the guaranteed procedural right enshrined in Article 22(5) of the Constitution read with "the Ordinance" to make an effective representation in respect of the ground in question. On this ground the order must be declared to be invalid and void.