ABDUL KADER MIAH Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER, the elder brother of a detinu under the National Security Act, 1980 ("act" for short), in this application under Article 226 of the Constitution of India, assails the order of detention and accordingly, prays for issuance of a Writ of Habeas Corpus directing the release of the detenu forthwith. The order of detention dated 1. 6. 06 was made by the District Magistrate, Kamrup (Metropolitan) under sub-section (2) of Section 3 of the Act. The order directed his detention in Central Jail, Guwahati for a period of three months from the date of issue of the order. The detenu at the relevant time, was in judicial custody in Central Jail, Guwahati in connection with S. O. U. P. S. Case No. 1/2001 under Sections 120 (B)/121/121 (A)/122/124 (A)/153 (A) IPC and Chhaygaon P. S. No. 6/06 under Sections 120 (B)/121/122/427 IPC read with Section 3 of E. S. Act and 10/13 UA (P) Act.

(2.) THE detenu, on receiving the detention order, made a representation (undated) through the Superintendent of Central Jail, Guwahati, addressed to the Commissioner and Secretary to the Govt. of Assam, Home and Political Department and the said representation was received by the Government on 20. 6. 06. The State Government rejected the said representation vide order dated 6. 7. 06 and the same was served upon the detenu on 10. 7. 06 through the Superintendent of the Central Jail. The State Government, further, vide its letter dated 27. 6. 2006 forwarded the representation to the Central Government along with the relevant materials. The Central Government vide its communication dated 2. 8. 2006 rejected the representation of the detenu. The message received from the Central Government has been conveyed to the detenu on 8. 8. 06 duly informing him about the rejection of his representation by the Central Government.

(3.) THOUGH the detention order has been impugned and challenged on various grounds, only two points have been raised by Sri B. K. Mahajan, learned counsel, appearing for the petitioner in support of his stand that the detenu's detention is bad : (i) the detenu's representation against detention order was admittedly received by the Government on 20. 6. 06 through the Superintendent of Central Jail. It, however, was not disposed of till 6. 7. 06. The delay vitiated the detention and the detenu became entitled to be set at liberty by quashing of the order. The unexplained delay on the part of the Central Government in considering the representation made by the detenu is yet another reason for quashing the detention order, (ii) the order of detention is liable to be set aside inasmuch as it has been made without proper application of mind. Subjective satisfaction of the detaining authority is impaired for the reason of non-application of mind. The detenu was directed to be released on bail by order dated 31. 5. 06 passed by a competent court of criminal jurisdiction about which there is no mention in the grounds of detention. The detaining authority at the time of passing of the order did not take into consideration the bail applications and as well as the orders passed thereon which is one of the relevant consideration. Further, the detenu was directed to be released in connection with S. O. U. P. S. Case No. 1/01 and this fact was not taken into consideration by the detaining authority. It was contended that the detaining authority ought to have taken into consideration both the bail applications and the orders passed directing the released of the detenu from Prison. The sponsoring authority was bound to place the bail applications and as well as the orders passed thereon for the consideration of the detaining authority and if they were not placed the same would amount to suppression of relevant facts from the detaining authority. In the absence of the bail applications and the orders passed thereon the detaining authority possibly could not have arrived at any decision and thereby the subjective satisfaction is impaired. It was also urged that the copies of the bail application and as well as the orders passed by the Court ought to have been communicated. Non-communication of the said documents. Infringed the constitutional rights of the detenu guaranteed under Article 22 (5) of the Constitution of India. The cumulative effect of the irregularities according to the learned counsel had vitiated the subjective satisfaction of the detaining authority.