JOYNATH SHARMA Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE detenu has approached this Court to secure his liberty from detention made under Section 3 (2) of the National Security Act, 1980 (shortly "the Act") by the Govt. of Assam. By this application for a writ of Habeas Corpus the legality of the order is challenged. We heard the matter at length and by a short order passed on 1 -3 -1983 allowed the petition holding the detention order to be illegal and without jurisdiction and directed release of the detenu. This judgment contains the reasons for our order.

(2.) IT is stated in the petition that on 28 -11 -1982 the detenu was attending with others a meeting of the State Committee of the All Assam Gana Sangram Parishad. The detenu along with others, was "gheraoed" by the police at 11 a.m. when the meeting was in session and eventually at 10.30 p. m. he was arrested and taken to Tezpur Police Station. Next day, on 29 -11 -1982, at 11 a.m. he was produced before the Sub -Divisional Judicial Magistrate and on his inquiry he was told by the learned Magistrate that the following cases had been registered against him : (1) G.R. Case No.1428 of 1982 of Mangaldoi Police Station, under Section 4 (A), E.S. Act. (2) G.R. Case No.1431 of 1982 of Mangaldoi Police Station under Section 5, E.S. Act. (3) G.R. Case No.382/75 under Section 342/34, IPC. (4) G.R. Case No.822/75 under Section 34 (5), D.I.R. 1971. The learned Sub Divisional Judicial Magistrate allowed the detenu to be taken into police custody for 72 hours. Thereafter, on 30 -11 -1982, at about 3 a.m. he was moved from Tezpur and brought to Gauhati jail where he was served with the impugned detention order at 4.45 a.m. He was detained in Gauhati jail until 3 -12 -1982 but was eventually brought back to Mangaldoi.

(3.) IT appears that a representation against the detention was made by the detenu to the State Govt. on 24 -12 -1982 which was rejected on 1 -1 -1983. It is averred in the petition that a specific request was made by the detenu to forward a copy of his representation to the Central Govt. and it appears that the representation was in fact forwarded to the Central Govt. on 3 -1 -1983 although the stand taken by the detaining authority in the return filed in this Court was that it was not the duty of the State Government to forward the representation ; all that the State Government had to do under Section 3 (5) of the Act was to make a report of the detention to the Central Government and to send therewith a copy of the grounds of detention as contemplated under Section 3 (5) of the Act, which it had done on 29 -11 -1982 in due compliance with the said provisions.