PRABIN KUMAR Vs. DY SECY GOVT OF ASSAM

JUDGEMENT

(1.) An order of detention u/s.3(2) of the National Security Act, shortly the Act, was passed against the petitioner on 18-7-83. He was, however, taken into custody an 8-11-83. Thereafter, a representation was made by him on 10-11-83 to the State Govt. as well as to the Central Govt. At both levels the representation was considered and rejected. The matter was referred by the State Govt. to the Advisory Board for its opinion and on receipt of the opinion of the Board on 21-11-83. The State Govt. confirmed the order of detention on 26-11-83. Thereafter, on 15-12-83 the petitioner came to this Court challenging his detention.

(2.) From a perusal of the grounds of detention it appears that the prejudicial activities attributed to the petitioner relate to a period ranging between 4-4-83 and 23-5-83. The detention order was passed with a veiw to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order. It is not necessary to refer in detail to the factual part of the grounds in view of the fact that the challenge grounded on the short point agitated by the learned counsel for the petitioner, according to us, must prevail.

(3.) Relying on the decision of their Lordships of the Supreme Court reported in AIR 1974 SC 2353 (Sk. Nizamuddin v. State of West Bengal) and AIR 1975 SC 1517(Sk. Serajul v. State of West Bengal) Mr. Goswami contends that there is no explanation in this case by the detaining authority to satisfy the Court about the genuineness of the necessity to pass the impugned order to detain the petitioner pursuant thereto. The burden, according to Mr. Goswami, rests solely and wholly on the detaining authority to satisfy the Court when the petitioner's liberty is jeopardised. Because, when the legality of the detention order is challenged the continued detention must be proved to be legal and warranted by law to the satisfaction of the Court. If no authority of law is produced before the Court to satisfy it that there was a genuine necessity to detain the petitioner his continued detention would be void.