MANIK KHAKHLARY Vs. STATE OF ASSAM

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution, the detenu-petitioner prays for quashing the detention order dated 19.8.97 passed by the District Magistrate, Goalpara in exercise of his powers conferred by sub-Section (2) and (3) of Section 3 of the National Security Act, 1980 (hereinafter referred to as 'the Act') and prays for a Writ of habeas corpus.

(2.) Since the order as passed has a decisive impact on the fate of this petition, it is reproduced herein for ready reference: "GOVT OF ASSAM OFFICE OF THE DISTRICT MAGISTRATE GOALPARA ORDER OF DETENTION UNDER N.S.A. 1980 'Where as the undersigned is satisfied on the basis of the dossier prepared by the Supretentendent of Police, Goalpara in respect of die person known as Shri Manik Khakhlari @ [Moni Brahma son of Shri Mahadev Khakhlary of village Sarapara, P.S, Rongjuli, Dist. Goalpara, Assam that with a view to prevent him from acting in a manner prejudicial to the security of the State and to the maintenance of public order, it is necessary to detain him under the National Security Act, 1980. Now, therefore, in exercise of the powers conferred by sub-sections (2) and (3) of Section 3 of the National Security Act read with Govt. Notification No. PLA 326/97/2 dated 31/05/97, the undersigned hereby directs that the said Shri Manik Khakhlary son of Mahadev Khakhlary be detained in the district Jail, Guwahati, Kamrup until further orders. The person against whom this order of preventive detention is made for compelling reasons is already in judicial custody but is likely to be released whereupon it is highly probable that he will indulge in activities prejudicial to the maintenance of public order and the security of the State after bis release. Given under my hand and seal this 19th day of August, 1997. (S. Mukherjee) District Magistrate, Goalpara. No. GMJ 10/91/72 Dt. 19 Aug/97

(3.) Mr. A.C. Borbora, learned counsel for the petitioner has challenged the detention order, inter alia, on the grounds that basic facts and materials constituting the grounds of detention, as contained in Annexure-B as supplied to the detenu, were not communicated, thus depriving him of an opportunity of making an effective representation. The grounds as contained in Annexure-B were not contemporaneously prepared along with the detention order, thus vitiating the subjective satisfaction arrived at by the detaining authority. There was total non- application of mind. Admittedly some vital facts constituting the grounds of detent on have not been disclosed to the detenu and invoking the plea of Article 22(6) of the constitution in the affidavit -in-opposition as sworn and filed by the respondent No. 3, the District Magistrate, is of no avail in view/of the fact that Annexur-B, the grounds of detention as communicated to the detenu does not contain even a remotest reference either to Article 22(6) or Section 8 (2) of the Act. Malice in fact and malice in law has also been alleged against the detaining authority. There was undue inordinate delay in disposing of the representation. Detenu was not further informed of his right to make a representation to the Central Govt. The respondent in their affidavit-in-opposition have disputed .and denied the grounds taken by the detenu. There contention is firstly, there was no delay in disposal of representation and whatever time was taken has been amply explained. The grounds of detention are valid for the purpose and all necessary facts costituting the grounds were supplied to the detenu. Invoking the plea of Article 22(6) of the Constitution, the detaining authority respondent No.3 has in his affidavit in para 4 has deposed as under: