HITENDRA NATH GOSWAMI Vs. STATE OF ASSAM

JUDGEMENT

(1.) A question of law of general importance about the interpretation of Section 14(1) National Security Act, 1980, read with Section 3(5) of the Act, has been referred by the Division Bench to a larger Bench for determination, the question being "whether on the report from the State Government under Section 3(5) National Security Act, 1980, the Central Government has the discretion coupled with duty to consider the question of revocation of detention order expeditiously, irrespective of the fact that there is no representation/petition from the detenu to the Central Government for the purpose".

(2.) IN the case out of which the question above has arisen, the detenu, Sri Hitendra Nath Goswami, was detained by order dt. 5 -1 -83 of the State Government passed, in pursuance of Section 3(2) of the Act. The State Government reported the fact of detention to the Central Government together with the grounds on which the order has been made, within 7 days of the order of detention, in compliance with Sub -Section (5) of Section 3 of the Act. The detenu, Sri Hitendra Nath Goswami, made no representation to the Central Government (Sic) received the report on 28 -1 -83, considered and found it prima facie valid. As a result, the order of detention has not been revoked by the Central Government in exercise of its power under Section 14(1)(b)of the Act. As such a question arose whether the discretion of the Central Government under Section 14(1) is coupled with duty to consider the report made by the State Government in pursuance of Sub -Section (5) of Section 3 of the Act with expedition, where no representation has been made by the detenu to the Central Government to exercise its power of revocation under Section 14 of the Act; and if not, its legal effect. In Joynath Sarma v. State of Assam (1983) 1 Gauhati LR 289 : (1984 Cri LJ 92), a Division Bench held that where no decision has been taken either on the report or on the representation of the detenu by the Central Government, the constitutional mandate under Art. 22(5) has been violated, which renders the continued detention illegal, inasmuch as the Central Government has failed to discharge its duty enjoined under Section 14 of the Act. In Bikash Narayan Sarma v. State of Assam (1983) 1 Gauhati LR 431 : (1984 Cri LJ 81), a case which arose in another Bench of this Court, the Court found on the materials before it that the State Government sent its report to the Central Government, in compliance with Sub -Section (5) of Section 3 of the Act, but the Central Government had not applied its mind to such a report. The Division Bench held the view that though it was open to the Central Government to revoke an order if it thought fit to do, a question of discretion coupled with duty mention of which has been made in Sabir Ahmed would arise only when petition/representation has been made. The Division Bench observed: "Indeed, Sabir Ahmed has used this expression in the context of dealing with the petition/representation; otherwise it would be a case of 'complete discretion' and not reviewable by a Court of law".

(3.) IN course of hearing of Hitendra Nath Goswami's case, the Division Bench considered the question of law above to be of general importance and referred it to a larger Bench for determination. This is how it has come up before the larger Bench.