Gauhati High Court
Smt. Sagolsem Ningol Puyam vs State Of Manipur And Ors. on 26 May, 2006
Equivalent citations: 2006CRILJ3062
Author: R.B. Misra
Bench: R.B. Misra
JUDGMENT R.B. Misra, J.
1. Heard Mr. N. Brojen Singh, learned Counsel for the petitioner. Mr. Th. Ibohal, learned Addl. G. A. appearing on behalf of the respondents-1, 2 and 3 and Mr. K. Kumar, learned Addl. CGSC for the respondent No. 4.
Sworn affidavit received by the learned Counsel for the Union of India by way of fax has also been presented to this Court and the learned Counsel for the petitioner is not objecting about such counter-affidavit response of the Union of India therefore keeping in view the urgency in the matter, the same is accepted and accordingly is placed on the record.
2. In the present writ petition, the petitioner, the mother of detenu has prayed for quashing the detention order dated 3-6-2005 (Annexure-A/1) of Shri Puyam Ranachandra Singh (@ Bidhi @ Budhijao) passed by the District Magistrate, Imphal West District, Manipur under Section 3(2) of the National Security Act, 1980 (for short called "Act of 1980), in exercise of power under Sub-section (3) of Section 3 of 'Act 1980' read with the Central Government Home Department Order No. 17(1)49/89/11 (Pt) dated 3-3-2005.
3. The question for consideration are:
(i) whether the Central Government is duty bound and is under statutory obligation under Section 14(1) of the National Security Act, 1980 (in short called 'Act 1980' hereinafter) to consider the report for revocation or modification sent by State Government under Section 3(5) of Act, 1980 with reasonable expedition or not to consider at all or may consider at any stage as its convenience irrespective of fact that no representation was made for and on behalf of the detenu to the Central Government?
(ii) whether delay in disposal of representation of detenu by Central Government could be justifiable under 'Act 1980' with-out satisfactory explanation and reasons recorded existing on the record?
4. The detention order was passed on 3-6-2005, and grounds of detention was conveyed to the detenu by the letter dated 7th June, 2005 affirming the same by the State Government on 3rd June, 2005. The representation presented to the State Government as well as the Central Government for and on behalf of the detenu was presented on 17th June, 2005, whereupon the rejection by State Government was conveyed to the detenu by letter dated 29th June, 2005 (Annexure-A/6).
Whereas, the representation of the detenu was rejected by the Central Government and rejection order was conveyed to the detenu by letter dated 26-7-2005 (Annexure A/8) whereas nothing has been said about the consideration of the report of State Government sent to the Central Government.
5. For and on behalf of the State Government/State authorities, it has been indicated that for involvement of detenue in the offences available on the record in exercise of power provided to the District Magistrate, the detention order has duly been passed and affirmed by the State Government and was promptly forwarded to the Central Government for necessary action.
6. For and on behalf of the Central Government, it is necessary to quote the relevant paragraph of the counter affidavit as follows:
4. That with regard to grounds (i), (ii), (iii), (xvii) of para 9 of the petition, it is submitted that a report as envisage under Section 3(5) of the National Security Act, 1980 about the detention of Shri Puyam Ranachandra Singh alias Budhi alias Budhijao was made by the Govt. of Manipur to the Central Government in the Ministry of Home Affairs vide their letter No. 17(1)/ (896)/2005-II dated 13-6-2006. The said report was received by the Central Government in the Ministry of Home Affairs in North Block on 20-6-2005 and in the concerned section in the Ministry of Home Affairs on 21-6-2005.
5. That with regard to paras 6, 7, 10 and grounds (xii), (xiii), (xiv) of para 9 of the petition, it is humbly submitted that as per provisions of Section 8 of the NSA, Shri Puyam Ranachandra Singh alias Budhi alias Budhijao on receipt of grounds of detention has right to make representation to the "appropriate Government". As per definition of "appropriate Government", the same in this case is the State Government of Manipur who is respondent No. 1, and not the Central Government i.e. respondent No. 4. Furthermore, the time limit of 3 weeks stipulated in Section 10 is applicable in respect of disposal of representation made to the "appropriate government" which is respondent No, 1 in this case.
6. That there is no legal obligation on respondent No. 4 to call for representation from the petitioner. In this case the representation dated 24-6-2005 made by Shri Puyam Ranachandra Singh alias Budhi alias Budhijao was received by the Central Government, and in the concerned Section of Ministry of Home Affairs on 4-7-2005. It is further stated that along with the representation dated 24-6-2005, the State Government had indicated that comments of State Government will follow. However, the parawise comments on the representation were not received from the State Government and, therefore, vide our Wireless Message dated 4-7-2005 and subsequent reminders dated 11-7-2005 & 18-7-2005 the State Government was requested to send the parawise comments on the representations. The Govt. of Manipur furnished the parawise comments which were received by the Central Government and in the concerned Section of Ministry of Home Affairs on 21-7-2005. This representation dated 24-6-2005 along with comments of State Government was examined and immediately processed for consideration and the case of the detenu was put up before the Under -Secretary, Ministry of Home Affairs on 21-7-2005. The Under-Secretary carefully considered the same and with his comments put up the same before the Joint Secretary, Ministry of Home Affairs on 22-7-2005. The Joint Secretary considered the same and with his comments put up the same before the Special Secretary (Home), Ministry of Home Affairs on 22-7-2005. The Special Secretary (Home) considered the case and forwarded the same before the Union Home Secretary, on 22-7-2005. The Union Home Secretary (who has been delegated powers by the Union Home Minister to decide such cases) considered the case of the detenu and rejected the representation of the detenu on 22-7-2005. It was duly considered by the competent authority in the Central Government under Section 14 of NSA and rejection order passed on 22-7-2005. The decision of the Central Government was communicated to the detenu through the Home Secretary, Manipur, Imphal and Superintendent, Central Jail, Sajiwa, Manipur, vide crash wireless message No. 11/15023/80/2005-NSA dated 25-7-2005, (23,24-7-2005 were holidays being Saturday and Sunday). A true copy thereof is filed as Annexure C. A. I. It is submitted that there was no delay on the part of respondent No. 4 in taking decision on the representations of the detenu and communicating the same through the Govt. of Manipur. It is further submitted that no time limit is set out in NSA on deciding representation under Section 14 of the Act.
7. It has been argued on behalf of the petitioner that a Constitution Bench of this Court way back in 1984 Cri LJ 1558 (Hitendra Nath Goswami, Petitioner v. State of Assam and Ors. respondents) while dealing with the scope of Section 14(1) and Section 3(5) of the 'Act 1980' has observed that the report of the State Government has to be considered by the Central Government with reasonable expedition. In support of his contention, para 13 has been referred by the learned Counsel for the petitioner which is quoted as below:
13. In Haradhan Saha v. State of West Bengal , a Constitution Bench of 5 Judges expressed the view that Section 14, Maintenance of Internal Security Act of 1980, 1971, which is in pan materia with Section 14, National Security Act of 1980, provides that without prejudice to the provisions of Section 21, General Clauses Act 1897, detention order may at any time be revoked by the appropriate Government. The same view was also expressed by the Supreme Court in Ram Bali v. State of West Bengal , where it was held that it is left with the Central Government in exercise of his discretion, either to exercise the power read with the provisions of Section 21, General Clauses Act of 1980, or without aid of Section 21, General Clauses Act of 1980. See also Smt. Kavita v. State of Maharashtra . In Haradhan Saha's case 1974 Cri LJ 1479, the Supreme Court observed : "Section 14 of the Act of 1980 clothes the authority with the power of revoking or modifying the detention order at any time. Such a power which is for the benefit of the detenu carries with it the duty to exercise that power whenever and as soon as charge or new factors call for exercise of that power.
8. According to the learned Counsel for the petitioner, in (1985) 2 GLR 1, Somi Angkang v. Union of India and Ors. the Central Government is duty bound to consider the report of the State Government under Section 3(5) read with Section 14(1) of the 'Act 1980' with reasonable expedition and failure on the part of the Central Government shall violate the procedural safeguards to the detenue and as such order of detention shall be liable to be set aside. In support of his stand, the learned Counsel for the petitioner has invited the attention of this Court to the relevant paragraph of Somi Angkang (supra) which are quoted as below:
We are of the firm opinion that not only the Central Government is duty bound to consider the report, but it must do so with reasonable expedition and it must perform the duties and obligations enjoined under Section 14(1) of the Act of 1980. The object of sending the report is either to revoke or modify, or not to revoke or modify the order. This supervisory power conferred by the statute on the Central Government is a discretionary power.
The nature and character of the power of the Central Government is absolutely discretionary. There is no dispute at the Bar that the Central Government may revoke an order, modify it, or refuse to modify or recall it. However, can the Central Government take a negative view, i.e. not to consider the report at all? In the instant case, the common case of the parties is that the report needs consideration by the Central Government with reasonable expedition. There is no dispute at the Bar that the underlined object of the Parliament in conferring the supervisory power on the Central Government is intended to make an effect additional check and safeguard against improper exercise of power by the detaining authority or by the State Government.
It is clear that the report received under Section 3 of the Act or any communication received from the detenu must be considered with reasonable expedition. In our opinion, the term "Consideration" in the present context means perusal with a purpose followed by a decision. Insofar as the decision is concerned, the Central Government may take any one of the four possible courses i.e., either to revoke, or modify or not to revoke or modify the order. No reason may be required to be given in taking a decision. It may not be speaking order; but the Central Government must consider the report, and consideration cannot be done in a vacuum. The duty is imposed by the Parliament on the Central Government pertains to the field of life and liberty of citizens. It is a serious business. As such, it must consider the report effectively to fulfill the object for which the section has been enacted by the Parliament. The object, as already Stated, is to consider whether there was improper exercise of the power of the detention by the detaining authority or the State Government. The connotation of the word "consider" is "to look at attentively or carefully : to think or deliberate on; to take into account: to attend to; to regard as". Admittedly, casual or mechanical exercise of power is not exercise of the power of the Central Government under Section 3(5) read with Section 14(1) of the Act.
9. In 2005 (3) GLT 33 (Gopal Boro @ Gwojen Boro v. Union of India and Ors.) a Division Bench of this Court, relying upon the decision of Hitendra Nath Goswami (supra) and after considering the decision of Somi Angkang (supra) has held that power of revocation of detention order vested in the Central Government is to be exercised with reasonable expedition.
10. According to the learned Counsel for the petitioner, despite receiving the report of the State Government, Central Government did not consider and applied its mind in respect of revocation or modification of the detention order under the statutory obligation provided under Section 14(1) of the Act, 1980. According to the learned Counsel for the petitioner, in view of Hitendra Nath Goswami (1984 Cri LJ 1558) (supra) the Central Government is duty bound to consider the report of the State Government with reasonable expedition under Section 14(1) of Act, 1980 notwithstanding any representation/petition was made by the detenu to the Central Government. In support of his submission, the learned Counsel has referred to paragraph 33 of Hitendra Nath (supra) which is quoted as below:
33. I have discussed at length the question under reference, and for reasons given above, my answer is that the discretionary power of the Central Government under Section 14(1) of the Act in the context of Section 3(5) of the Act is coupled with duty to consider the report received from the State Government with reasonable expedition, notwithstanding that no representation/petition has been made by the detenu to the Central Government; what is reasonable expedition depends on the circumstances of the particular case and in case of breach of such procedural safeguard, the detention order is liable to be set aside and the detenu set at liberty.
11. The learned Counsel appearing on behalf of the petitioner in order to substantiate the grounds for assailing the detention order that there are unexplained delay in disposing the representation of the petitioner/detenu resulting to violation of the rights of the petitioner/detenu guaranteed under Article 22(5) of the Constitution of India which renders the continued detention order vitiated has pressed into service the following decisions of the Apex Court and this Court.
(1) K.M. Abdulla Kunhi & B. L. Abdul Khader v. Union of India and Ors. ;
(2) Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police and Ors. ;
(3) Aslam Ahmed Zahir Ahmed Shaik v. Union of India and Ors. ;
(4) Kundanbhai Bulabhai Shaikh v. Dist. Magistrate, Ahmedabad and Ors. etc. ;
(5) Kamleshkumar Ishwardas Patel v. Union of India and Ors. ;
(6) Venmathi Selvam (Mrs.) v. State of T.N. and Anr. ;
(7) Rajammal v. State of T. N. and Anr. ;
(8) S.N. Mukherjee v. Union of India (9) Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors. ;
(10) Punjab National Bank and Ors. v. Kunj Behari Mishra (11) State Govt. House Less Harijans Employees Assocn. v. State of Karnataka and Ors. (2001) 1 SCC 610 ; AIR 2001 SC 437 (12) Hitendra Nath Goswami v. State of Assam and Ors. 1984 Cri LJ 1558 (Five Judges);
(13) W.P. (Cri) No. 39 of 2005 between Amom Ningol Yumnam Ongbi Ranjita Devi v. District Magistrate, Imphal West and 3 Ors; and (14) W.P. (Cri) No. 31 of 2005 (reported in 2006 Cri LJ 4564) between Kshetrirnayum Prakash Singh & Paka v. District Magistrate, Imphal West and Ors.
12. To the contrary, the learned Counsel for the respondents had referred to the decisions of the Apex Court as well as this Court in the following cases:
(1) Sri Ram Sukrya Mhatra v. D. Tyagi and Ors. :
(2) Mahesh Basumatary v. State of Assam and Ors. 2005 (1) GLT 264;
(3) Kantilal Hirji Singh v. Slate of T. N. and Ors. .
13. The Apex Court in K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union of India and Ors. 1991 Cri LJ 790 (supra) held that the representation relates to the liberty of the individuals the highly cherished right enshrined Article 21 of the Constitution. Clause (5) of Article 22 casts a legal obligation on the Government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occurring in Clause (5) of Article 22 reflects the concern of the framers that the representation should be expeditiously considered and disposed of with the sense of urgency without any unavoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of the case. There is no prescribed time limit either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement, however, is that there should be no supine indifference, slackness or callousness attitude in considering the representation. Any unexplained delay in the disposal of the representation would be a prejudice of the constitutional imperative and it would render the continue detention impermissible and illegal." The Apex Court again, reiterated in Rama Dhondu Borade (1989 Cri LJ 2119) (supra) that the detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the representation within reasonable dispatch and to dispose of the same as expeditiously as possible. The Apex Court in Rajammal v. State of T.N. 1999 Cri LJ 826 (supra) had discussed as to how the duration or range of delay in disposing the representation is fatal or not and held that the test is not the duration or range of delay but it is the explanation made by the concerned authority. Para 8 of SCC in Rajammal v. State of T.N. and Anr. reads as follows:
8. The position, therefore, now is that if delay was caused on account of any indifference, or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So, test is not the duration or range of delay, but how it is explained by the authority concerned.
14. The constitutional Bench of the Apex Court in Kamleshkumar Ishwardas Patel v. Union of India (supra) observed that while discharging the constitutional obligation to enforce the fundamental rights of the people, more specially right to personal liberty, the Court would not be influenced by the nature of the activities of the detenu. The history of liberty is the history of procedural safeguards. The safeguards enshrined in Cls. (4) and (5) of Article 22 are required to be zealously watched and enforced by the Court.
15. We have heard the learned Counsel for the parties and have perused the documents available on records.
16. The Supreme Court has held in (Sk. Rashid v. State of West Bengal) Neither the Constitution nor the maintenance of Internal Security Act expressly provides for consideration of a detenu's representation by the State Government within any specified period of time. However, the use of the words "as may be" in Article 22(5) reflects the anxiety on the part of the framers of the Constitution to enable the detenu the grounds on which the order of his detention has been made so that he can make an effective representation against it at the earliest. The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. and , Followed (para 4) Whether or not the State Government has in a given case considered the representation made by the detenu as soon as possible (in other words, with reasonable dispatch) must necessarily depend on the facts and circumstances of case, it being neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases. The Court has in each case to consider judicially on the available material if the gap between the receipt of the representation and its consideration by the State Government is so unreasonably long and the explanation for the delay offered by the State Government so unsatisfactory as to render the detention order thereafter illegal (paras 4, 5).
17. Clauses (4), (5), (6) and (7) of Article 22 of the Constitution of India dealt with the fundamental rights of the detenu under the preventive detention law. Clauses (4) and (5) of Article 22 reads as follows:
22(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Cl. (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under Sub-clauses (a) and (b) of Cl. (7).
22(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
18. For the sake of convenience, Sections 3(5) and 14(1) of the 'Act 1980' are quoted as below:
(3) Power to make orders detaining certain persons.
(5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particular as, in the opinion of the State Government, have a bearing on the necessity for the order.
(14) Revocation of detention order.- (1) Without prejudice to the provisions of Section 21 of the General Clauses Act of 1897, (10 of 1897), a detention order may, at any time, be revoked or modified.-
(a) notwithstanding that the order has been made by an officer mentioned in Sub-section (3) of Section 3 by the State Government to which that officer is subordinate or by the Central Government;
(b) notwithstanding that the order has been made by a State Government, by the Central Government.
(2) The expiry of revocation of a detention order (hereafter in this sub-section referred to as the earlier detention order) shall not (whether such earlier detention order has been made before or after the commencement of the National Security (Second Amendment Act of 1980, 1984) bar the making of another detention order thereafter in this sub-section referred to as the subsequent detention order) under Section 3 against the same person:
Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order.)
19. As required under Section 8 of the Act, 1980, the State Government is under legal obligation to serve grounds of detention to the detenu within five days and in exceptional circumstances, for reasons to be recorded in writing not latter than 10 days from the date of detention order is to providing earliest opportunity, so that the representation against the order of detention to the appropriate Government, could be made by the detenu. Undisputedly, the petitioner has not made any representation to the State Government, therefore, he cannot be allowed to say that he has not been afforded opportunity of hearing by the State Government, but, the Central Government irrespective of the fact that no representation for and on behalf of the detenu was filed, the Central Government is under legal obligation/duty bound to consider and apply its mind to take a decision under Section 14(1) of the 'Act, 1980' on report of detention sent by the State Government with reasonable expedition and promptness. Even if no specific, express or clear word for consideration of report is provided under Section 14(1) of 'Act, 1980' nevertheless the report has to be considered with promptitude for the purpose of taking decision either for revocation or modification. The modification of report with either zero or with no variation is termed as affirmation of the report. Unexplained delay or unreasonable explanation or non-indication of satisfactory, justifiable explanation tantamounts failure of consideration of report or the representation by the concerned Government.
20. The Central Government has apparently failed and no reasonable explanation has been forthcoming by way of affidavit or through original records requiring of parawise comments from the State Government for the purpose of consideration and disposal of representation without necessity and without existing recorded reasons on record and delay in disposal of representation in the garb of parawise comments having been supplied by delay by State Government concerned shall not be proper ingredient or material for justification or satisfactory explanation of delay on the part of Central Government.
In these circumstances, the detention order is liable to set aside.
21. In the facts and circumstances of the case, in view of the above observations, the above questions are dealt with and answered accordingly and since the State Government has already sent a report to the Central Government under Section 3(5) of the Act, 1980 and the Central Government has failed to perform its legal obligation under Section 14(1) of the Act, 1980 to consider the report for revocation or modification, the delay in disposal of representation has also not been explained satisfactorily in the facts and circumstances, therefore, the present detention order dated 3rd June, 2005 (Annexure-A/1) made in respect of the petitioner's-son is set aside and Shri Puyam Ranachandra Singh alias Bidhi alias Budhijao is released forthwith unless he is wanted in some other criminal case.
22. In view of the above direction and observations, this writ petition stands disposed of.