Gauhati High Court
Khundrakpam Nimai Singh Alias ... vs The District Magistrate And Ors. on 16 September, 2005
Equivalent citations: 2006CRILJ410, (2006)1GLR733
Author: T. Nk. Singh
Bench: T. Nk. Singh
JUDGMENT M. BK. Singh, J.
1. This petition has been filed under Article 226 of the Constitution of India for enforcing the petitioner's fundamental rights guaranteed under Article 21 and 22 of the Constitution and praying for releasing him by setting aside the relevant detention order passed against him under the National Security Act, 1980.
2. We have heard Mr. H. S. Paonam, learned counsel appearing on behalf of the petitioner, Mr. Ibohal, learned Addl. G. A. appearing on behalf of the Government respondent and Mr. N. Ibotombi, CGSC appearing on behalf of the respondent No. 3. We have also perused the materials before the Court.
3. On the basis of the materials before the Court and after hearing the submission of the parties through their respective counsel, the following facts are ascertained. While the petitioner was in police custody in connection with investigation of the FIR case No. 105(11)04 MRG P. S., an order, being No. CRIL/NSA/No. 1/2005 dated 4-5-2005, directing for his detention Under Section 3(2) of the N. S. A., 1980, purportedly with the view to prevent him from acting in any manner prejudicial to the security of the State and maintenance of public order, was issued by the District Magistrate, Ukhrul District. The detention order was communicated to the petitioner on 6-5-2005 at 10.45 a.m. The grounds of detention was furnished to him on 13-5-2005 at 3.35 p.m. On 13-5-2005 the Govt. approved the said detention order and on 17-6-2005, the Government, purportedly in consonance with the opinion expressed by the Advisory Board and in exercise of the powers conferred Under Section 12(1) of the N.S.A., confirmed the said detention order and fixed the period of detention of 12 months from the date of detention.
4. In the present case, the main ground of objection submitted on behalf of the petitioner is that there has been violation of the provisions of Section 8 of the N. S. A. read with Article 22(5) of the Constitution of India and as such the petitioner is entitled to be released forthwith.
5. It is well settled that the grounds of detention must be communicated to the detenu without avoidable delay. It is only in order to meet the practical exigency of administrative affairs that the Detaining Authority is permitted to communicate the grounds of detention not less than 5 days ordinarily and not later than 10 days if there are exceptional circumstances. If there are any such circumstances, the Detaining Authority is required by Section 8(1) to record its reasons in writing. If any authority is required in respect of the above said well settled position of law, we may refer to the decision of the Supreme Court in A. K. Roy v. Union of India and Ashok Kumar v. Delhi Administration .
6. In Hem Lall Bhandari v. State of Sikkim after referring to the provisions of Section 8(1) of the National Security Act, held at para 10
10. A bare reading of the section shows that it is obligatory on the detaining officer to communicate to the detenu, the grounds on which the order of detention has been made, promptly. This has to be done as soon as possible and ordinarily not later than 5 days. The detaining authority is permitted to exceed this limitation of 5 days in exceptional circumstances. The grounds of detention, under exceptional circumstances, can be communicated to the detenu within a period not later than 15 days (the period of 15 days is in respect of the State of Punjab and it is only 10 days for the rest of India) from the date of detention but when the detaining authority takes time longer than 5 days he has to record reasons why the grounds of detention could not be communicated within 5 days.
In the same case referred to above, the Supreme Court held at para 12 (only the relevant portion);
12... It is not permissible, in matters relating to the personal liberty and freedom of a citizen, to take either a liberal or a generous view of the lapses on the part of the officers. In matters where the liberty of the citizens is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of law. Expeditious action is insisted upon as a safeguard against manipulation.
At para 14 the Supreme Court, further, observed ;
... As indicated earlier, the mandate enacted in the Section is a safety valve for a citizen who is robbed of his liberty and to disable the authorities from manipulating the grounds of detention. The section has to be interpreted literally. No relaxation is permissible. If the original time of 5 days has to be extended, such extension must be supported by an order recording reasons. If reasons are not so recorded, the order of detention will automatically fall. Even if reasons are recorded they have to inspire confidence in the Court and are subject to legal scrutiny. If the reasons are unsatisfactory Courts would still quash the order of detention.
7. In the State of Rajasthan v. Talib Khan , the Hon'ble Supreme Court held at para 7;
7. It would thus be seen that the requirement of supply of the grounds, as soon as may be, indicates that normally the detenu is entitled to be communicated with the grounds of detention within five days, with a view (to) tide over unavoidable circumstances due to which the detaining authority could not have the grounds of detention supplied the statute engrafted a leverage and directed him to record reasons therefore in writing and the administration should supply the grounds of detention, before expiry of ten days. So, the delay should be exceptional and those exceptional circumstances are required to be recorded in writing. What are exceptional circumstances is always a question of fact in each case. What is mandatory is the supply of the grounds of detention before expiry of ten days but after the expiry of 5 days. It is well settled legal position that the phrase "as soon as may be" means within a reasonable dispatch when there is no avoidable delay. What is avoidable delay is always a question of fact.
8. A Division Bench of this Court in Thethem Kipgen, Smt. v. District Magistrate Senapati (2003) 3 Gauhati LT 469 following the decision of the Supreme Court in Hem Lall Bhandari v. State of Sikkim (supra), quashed the impugned detention order under which one Saikam Kipgen had been detained under the National Security Act on finding that the grounds of detention had been served on the detenu beyond the period of 5 days but within the maximum period of 10 days from the date of detention in communicating the ground of detention without recording any reason for the delay. In this connection, we may also refer to other decisions of this Court in R. K. Lakhikumar v. State of Manipur (2000)3 Gauhati LT 472 and Kshetrimayum Maipak Devi v. State of Manipur (2001)2 Gauhati LT 178.
9. It has been said that the history of liberty has largely been the history of observance of procedural safeguard. In Icchu Devi Choraria v. Union of India , the Supreme Court observed : (Para 5) The Court has always recorded personal liberty as the most precious position of mankind and refuse to tolerate illegal detention, regardless of the social cause involved in the release of a possible renegade.... This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention....
Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the Detaining Authority to show that the impugned detention meticulously accords with the procedure established by law. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But at the same time, a person's greatest of human freedom, i.e. personal liberty is deprived, and, therefore, the laws of the preventive detention are strictly construed, and meticulous compliance with the procedural safeguard, however, technical, is mandatory.
10. Keeping in view the above said well settled position of law, we have to consider the facts and circumstances of the case. As per records before us the impugned detention order passed by the District Magistrate, Ukhrul on 4-5-05 was communicated to the detenu/petitioner on 6-5-2005 at 10.45 a.m. and the grounds of detention was furnished to him on 13-5-05 at 3.35 p.m. Thus, the grounds of detention was furnished/communicated to the detenu/petitioner beyond the period of 5 days taut within the maximum period of 10 days from the date of detention. We do not find any record stating any reason for the delay in communicating the detention. The learned Addl. G.A. frankly concedes this fact. However, the learned Addl. G.A. draws our attention to the counter affidavit, filed on behalf of the District Magistrate, Ukhrul and submits that the delay was due to reasons that the office of the District Magistrate, Ukhrul situates at a far place and that due to heavy engagement of the office of the D.M. Ukhrul in law and order problems. Apart from absence of any record recording the said reasons specified in the Counter affidavit as the reasons for the delay in communicating the detention, the said reasons specified in the counter affidavit cannot be considered as exceptional circumstances sufficient to justify the said delay. The Jail at Imphal where detenu has been detained is within a distance of about 3 hours journey from Ukrul HQs. Further, the alleged heavy engagement of the office in law and order problem, in the absence of anything to show about existence of an extra ordinary situation faced by the office of the D.M. Ukhrul at the relevant time, cannot be considered as a exceptional circumstances.
11. In the light of the above considerations, in our considered opinion, there has been violation of the provisions of Section 8 of the National Security Act read with Article 22(5) of the Constitution of India in respect of the detention of the petitioner. Accordingly, the petitioner/detenu is entitled to be released. The continuing detention of the petitioner/detenu under National Security Act is not sustainable in the eye of law. The Impugned detention order and the impugned order confirming the said detention order are hereby quashed. It is, therefore, ordered that the petitioner, namely, Khundrakpam Niniai Singh @ Yaiktoomba @ Rameshwor Singh @ M. C. Indrajit be released forthwith if he is not required to be detained in connection with any other case.