Gauhati High Court
Thethem Kipgen vs District Magistrate And Ors. on 13 November, 2000
Equivalent citations: (2004)2GLR306
Author: A.K. Patnaik
Bench: A.K. Patnaik, N.S. Singh
JUDGMENT A.K. Patnaik,J.
1. In this Habeas Corpus Petition under Article 226 of the Constitution the petitioner has prayed for releasing the detenu Sri Seikam Kipgen of Kangpokpi Bazar from detention under the National Security Act, 1980 (for short the Act, 1980) and for quashing the detention order dated 30.4.2000, 9.5.2000 and 31.5.2000 (Annexures A/1, A/3 and A/4 respectively).
2. The relevant facts for disposal of this writ petition very briefly are that by order dated 30th April, 2000 passed by the District Magistrate, Senapati District, Senapati Sri Seikam Kipgen @ Sir Patrick Henry who is the husband of the petitioner was detained under the Act, 1980. The grounds of detention were prepared by the District Magistrate, Senapati on 5.2.2000. The case of the petitioner is that the said grounds of detention were served on the aforesaid detenu on 7.5.2000.
3. Mr. A. Nilmoni, learned counsel for the petitioner submitted that under Sub-section 1 of Section 8 of the Act, 1980, when a person is detained in pursuance of the detention order the authority making the order is required, to communicate to the detenu the grounds on which the detention order is made ordinarily not later than 5 days and in exceptional circumstances and for the reasons to be recorded in writing not later than 10 days from the date of detention. Mr. Nilmoni submitted that since the date of detention of the detenu in the present case was 30th April, 2K, ordinarily the grounds on the basis of which the detention order was passed were to be communicated to the detenu on or before 5.5.2000, but the grounds of detention on the basis of which the detention order was passed were communicated to the detenu on 7.5.2000. Mr. A. Nilmoni further submitted that the grounds of detention could be communicated to the detenu beyond the period of 5 days and not later than 10 days from the date of detention only in exceptional circumstances and for reasons to be recorded as has been expressly stated in Sub-section 1 of Section 8 of the Act, 1980. But in the present case no exceptional circumstance have been indicated in the counter-affidavit filed by the District Magistrate, Senapati nor any reason has been recorded by the District Magistrate, Senapati as to why the grounds of detention were served on the detenu beyond the period of 5 days. According to Mr. Nilmoni the detenu was entitled to be released on this ground alone. He cited the decision of the Supreme Court in Hem Lall Bhandari v. State of Sikkim and Ors., AIR 1987 SC 762 in which the Supreme Court quashed the order of detention on the ground that the grounds of dentention were served on the detenu beyond the period provided in Sub-section 1 of Section 8 of the Act, 1980 and no reasons were recorded by the detaining authority for communicating the grounds of detention to the detenu beyond the period of 5 days.
4. Mr. Th. Ibohal, learned counsel for the State-respondents, on the other hand, relied on the averments made in the affidavit-in-opposition filed by the District Magistrate, Senapati and in particular para 5 thereof in which it has been stated that the grounds of detention were furnished within the time as per the provision of Section 8 of the Act, 1980.
5. On a perusal of the said affidavit and particular Para 5 thereof filed by the District Magistrate, Senapati, we find that the ground taken by the petitioner in Para 14(a) that the grounds of detention were communicated to him later than 5 days from the date of his detention has not been denied by the District Magistrate, Senapati and all that has been stated in Para 5 of the affidavit-in-opposition by the District Magistrate is that the grounds of detention were furnished within time as per provision of Section 8 of the Act, 1980. Sub-section 1 of Section 8 of the Act quoted herein below :
"When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government".
Under the aforesaid Sub-section 1 of Section 8 the outer limit of time within which the grounds of detention were to be communicated to the detenu has been given to be 10 days from the date of detention. In the present case the detenu was detained on 30.4.2000 and the grounds of detention were communicated to the detenu as per the record produced before this court on 7.5.2000. Thus the grounds of detention were communicated to the detenu within the maximum period of 10 days allowed by Sub-section 1 of Section 8 quoted above. Hence, the District Magistrate, Senapati may be right in saying that the grounds of detention were served on the detenu within time as per the provision of Section 8 of the Act, 1960. But a reading of the aforesaid Sub-section 1 of Section 8 of the Act, 1980 quoted above would show that ordinarily the grounds of detention are to be communicated to the detenu not later than 5 days from the date of detention and only in exceptional circumstances and for reasons to be recorded in writing, the grounds of detention could be communicated beyond 5 days but not later than 10 days. In the present case no exceptional circumstances for communicating the grounds of detention to the detenu beyond 5 days have been indicated in the affidavit-in-opposition of the District Magistrate, Senapati.
6. Mr. Ibohal produced the records of the District Magistrate Senapati which indicate that the detenu while receiving the grounds of detention put the date of receipt of the grounds of detention as 7.5.2000. He very fairly stated that the records do not indicate that the District Magistrate Senapati recorded the reasons for communicating the grounds of detention to the detenu beyond the period of 5 days from the date of detention. He, however, explained that the grounds of detention were despatched by the District Magistrate on 5.5.2000, but were received at the Central Jail at Imphal where the detenu was detained only on 7.5.2000 and it is for this reason that the grounds of detention were communicated beyond the period of 5 days from the date of detention. We are not impressed by the aforesaid submission of Mr. Th. Ibohal, learned counsel for the respondents. Since the requirement of Sub-section 1 of Section 8 is that the grounds of detention are to be served on the detenu ordinarily not later than 5 days, the District Magistrate, Imphal should have prepared the grounds of detention earlier and sent the same to the Central Jail at Imphal, so that the same could be served on the detenu within the period of 5 days from the date of his detention.
7. In Hem Lall Bhandari v. State of Sikkim (supra) cited by Mr. A. Nilmoni Singh, the detention of the detenu was challenged on the ground that the grounds of detention were served beyond the period mentioned in Section 8 of the Act, 1980. In the counter affidavit sworn by the Home Secretary who had passed the order of detention, it was stated that the grounds of detention were handed over to Sri K.P. Subba for service on the detenu on 3.10.86, but the detenu actually received the grounds of detention on 14.10.1986. The Supreme Court after considering the averments in the said counter affidavit sworn by the Home Secretary hold that there had been a flagrant violation of the mandatory provisions of Section 8 and finally quashed the order of detention. Paragraphs 10 and 12 of the said judgment of the Supreme Court are quoted herein below :
"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 from the date of detention but when the detaining authority takes time longer than 5 days has to record reasons why the grounds of detention could not be communicated within 5 days. It is clear in this case that the grounds of detention were communicated to the petitioner long after 10 days. There is no record evidencing any reason for this long delay.
12. We have considered the averments in the counter affidavit carefully.
We have no hesitation to hold that there has been a flagrant violation of the mandatory provisions of Section 8 in this case. It is not permissible, in matters relating to the personal' liberty and freedom of a citizen, to take either liberal or a generous view of the lapses on the part of the officers. In matters where the liberty of the citizen 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 the manipulation."
8. The result of the aforesaid discussion is that the provision of Sub-section 1 of Section 8 of the Act, requiring that the grounds of detention are to be served ordinarily not later than 5 days from the date of detention have been violated in this case and the rights of the detenu under Articles 21 and 22 of the Constitution have been infringed. We are inclined to quash the order of detention and direct to release the detenu on this ground alone and it is not necessary to consider the other grounds taken in the Writ Petition.
9. In the result, we quash the impugned orders of detention and direct that the detenu Sri Seikam Kipgen shall be released forthwith unless he is wanted in some other case.