(1.) By this Writ Petition filed Tunder Article 226 of the Constitution, the Petitioner Sri Tankeswer Kalita, who is said -to be the brother in-law of Sri Tulsi Bora, has prayed for issuing a Writ in the nature of Habeas Corpus so that Sri Tulsi Bora who is alleged to be under detention in unlawful custody of the army might be brought before this Court and released.
(2.) In order to appreciate the points in controversy the relevant provisions of the Act viz. The Armed Forces (Special Powers) Act, 1958 (for short the Act) may be referred to as also the background in which it came to be enforced in Assam. To check the anti-social activities of an organisation called United Liberation Front of Assam (for short ULFA) which adopted the means of violence, the Central Government in exercise of the powers conferred on it by Section 3 of the Act issued Notification dated 27/11/1990 declaring the whole of Assam to be disturbed Area and thereafter armed forces had been deployed in aid of the Civil power. According to Section 4(c) Any commissioned Officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area, - arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest. Section 5 envisages that any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.
(3.) The case of the petitioner shortly put, is that Sri Tulsi Bora who hails from a poor family of village Amtala-Gopalpur some how secured a job in M/s. Purbabharat Savings and Investment Ltd. at North Lakhimpur and was thus maintaining the family consisting of his old parents, one elder sister, one younger sister and one younger brother. It is alleged that on 8/4/1991 some army personnel of Panigaon Army Camp led by Respondent No. 3 namely Sri P.J. Jhon came to the office premises of M/s. Purbabharat Savings and Investment Ltd. and arrested the detenu Tulsi Bora and brought him to Panigaon Army Camp and detained him there. On the following day i.e. 9/4/1991 the detenu was brought to his residence at village Amtala-Gopalpur by army personnel led by the Respondent No. 3 and it is alleged further that the army personnel not only treated the detenu very badly but also tortured the family members of the detenu and destroyed their houses. Thereafter, the said army personnel took away the detenu by force to Panigaon army camp and since then the army personnel detained the detenu in unlawful custody.