LACHIT BORDOLOI Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an application for a writ of Habeas Corpus questioning the validity of the order of detention and the continued detention of the petitioner under S.3(2) of the National Security Act, 1980. While the petitioner was confined in jail, in connection with some criminal cases, he was served with an order of detention dated 2-7-83 passed by Shri S. Chatterjee, District Magistrate. Nowgong, being satisfied that the detention of the petitioner was necessary for interdicting him "from acting in any manner prejudicial to maintenance of public order" and directed that the petitioner should be detained" with immediate effect until, further orders".

(2.) On 8-7-83 the detenu was served with the grounds of detention rendered by the detaining authority on 4-7-83. The petitioner submitted his representation to the Central Government on 22-9-83 through the Superintendent of Special Jail, Nowgong praying for revocation of his order of detention under S.14 of "the Act". The petitioner contends that he was not informed by the detaining authority or any other authority that he had a constitutional as well as legal right to make such representation to the Central Government and hence there was delay on his part. In this writ petition filed on 26-9-83, the petitioner took up positive grounds that the Central Government left over his representation, did not consider it and failed to apply its mind to the representation which is violative of Section (8) of the Act read with Art.22 of the Constitution. The Central Government was made a party and Mr. S. Ali, Senior Standing Counsel, Central Government received notice of the Rule on 26-9-83. Since 5-10-83 the matter was in the hearing list. An affidavit was filed on behalf of the Central Government on 8-11-83 annexing therewith a copy of the teleprinter message received by learned Standing Counsel, Central Government. In para 4 of the Affidavit-in-opposition filed by the Central Government it was stated that the representation dated 22-9-83 submitted by the petitioner to the Central Government was received by them on 1-10-83 along with the forwarding letter of the State Government and it was "immediately processed for consideration" and it was found that some information absolutely necessary for its consideration were wanting. So a crash wireless message was sent on 1-10-83 and the reply was received from the State Government on 3-10-83 and "immediately the representation was processed for final decision". This affidavit was sworn by Md. Hassen Ali, an Advocate's Clerk who made the above statements in para 4 of the affidavit as "true to my information derived from the facts on record." We have before us only Annexure I to the Affidavit as records furnished by the Central Government. No other record has been placed before us by Mr. Ali, learned Standing Counsel, to show that the representation was processed for consideration by the Central Government not to speak of the fact of consideration of the representation of the detenu. In Annexure 1, the telex message, we find the following statements pertaining to the question of decision of the Central Government on the representation made by the detenu, which we extract:

(3.) As alluded the Central Government has not produced the records nor is there any material to show that the representation of the detenu has been considered even today. There is no affidavit filed by and/or on behalf of the Central Government to show that the representation made by the detenu has been considered by the Central Government at all.