Gauhati High Court
Page No.# 1/24 vs The Union Of India And 4 Ors on 27 November, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/24
GAHC010156102025
2025:GAU-AS:16189-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(Crl.)/42/2025
AMINUL ISLAM
S/O LATE MUFTI KHAIRUL ISLAM
VILL- PARAMAI BHETI, P.S. JURIA,
DIST. NAGAON, ASSAM
VERSUS
THE UNION OF INDIA AND 4 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI, PIN-110001.
2:THE STATE OF ASSAM
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVT.
OF ASSAM
HOME AND POLITICAL DEPARTMENT
GOVT. OF ASSAM
ASSAM SECRETARIAT
DISPUR GUWAHATI
ASSAM PIN-781006.
3:THE ADVISORY BOARD FOR NATIONAL SECURITY ACT
ASSAM REPRESENTED BY ITS CHAIRMAN.
4:THE DISTRICT MAGISTRATE
DIST. NAGAON ASSAM
5:THE SUPERINTENDENTN OF CENTRAL JAIL
NAGAON ASSAM
Page No.# 2/24
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MR. JUSTICE RAJESH MAZUMDAR
Advocate for the petitioner : Mr. S. Borthakur
Advocate for the respondent(s) : Mr. D. Mazumdar, Addl. Adv.
General,
: Mr. D. Nath, Sr. Govt. Adv.
Advocate for the respondent(s) : Mr. K.K. Parasar, CGC
Date on which judgment was reserved : 06.11.2025
Date of pronouncement of judgment : 27.11.2025
Whether the pronouncement is of the : NA
operative part of the judgment?
Whether the full judgment has been : Yes
pronounced?
JUDGMENT & ORDER (CAV)
(Rajesh Mazumdar, J)
By filing this writ petition under Article 226 of the Constitution of India,
the petitioner has assailed the; (1) impugned Detention Order No. NMM
17/2025/NSA/83, dated 14.05.2025, issued by the District Magistrate, Nagaon;
(2) impugned Corrigendum No. NMM 17/2025/NSA/131, dated 12.06.2025,
issued by the District Magistrate, Nagaon; as well as (3) the Order No. PLA-
42/2025/156, dated 03.07.2025, passed by the Additional Chief Secretary to the
Govt. of Assam, Home & Political Department, thereby confirming the detention
order on the basis of the report of the Advisory Board.
2. Heard Mr. S. Borthakur, learned counsel appearing for the petitioner.
Page No.# 3/24
Also heard Mr. D. Mazumdar, learned Additional Advocate General assisted by
Mr. D. Nath, learned Senior Govt. Advocate appearing for the State of Assam
and Mr. K.K. Parasar, learned CGC appearing for the Union of India.
3. Notices were issued on 21.07.2025. Affidavit on behalf of the District
Magistrate was filed on 14.08.2025, to which a rejoinder was filed on
26.08.2025. The response on behalf of the Union of India came to be filed on
28.08.2025. The State of Assam filed another affidavit on 29.08.2025.
4. Arguments were heard on 04.09.2025, 14.10.2025 and 16.10.2025.
The case was listed on 06.11.2025, when the parties submitted concise notes
on the submissions already made. Judgement on the case was reserved on that
day.
Facts of the case:
5. On 24.04.2025, the petitioner was arrested in connection with allegations made against him in an FIR lodged by the officer in charge of the Nagaon Police Station which was registered as Nagaon P.S Case No. 347/2025 under Sections 152/196/197(1)/113(3)/352/353 of the BNS. The allegations levelled in the FIR were to the effect that a video of the petitioner was circulating in social media showing the petitioner accusing the Central Government of orchestrating the Pahalgam terrorist attacks. It was further alleged that on 23.04.2025, the petitioner herein had publicly alleged in a public meeting that the Pulwama attack on 14th February, 2019 was a conspiracy by the Government of India and its key functionaries. It was alleged in the FIR that the statements were not only factually incorrect, but also intended to incite public unrest by spreading misinformation and hatred, intended to undermine Page No.# 4/24 the authority and legitimacy of a democratically elected Central Government and to divert attention from the involvement of Pakistan in terrorist activities, thereby directly supporting an enemy nation, and to jeopardize the sovereignty, unity and integrity of India.
6. Upon his arrest, the petitioner preferred a bail application before the Additional Sessions Judge No.4, FTC, Nagaon, and by order dated 14.05.2025, the learned Judge was pleased to order the release of the petitioner on bail by imposing several conditions, inter alia, to the effect that the petitioner shall not commit any offence of whatever nature in the future and that he shall not make statements pertaining to the case or statements of such nature which may incite violence in any form.
7. On the same day, by an order dated 14.05.2025, the District Magistrate, Nagaon directed that the petitioner be detained under provisions of Section 3(2) of the National Security Act, 1980 and that he be lodged at the Central Jail, Nagaon with immediate effect. The grounds of detention were thereafter issued by the District Magistrate, Nagaon on 16.05.2025. The petitioner submitted a representation dated 22.05.2025 to the Principal Secretary to the Government of Assam, Home and Political Department and to the Chairman, Advisory Board for National Security Act, Assam.
8. The Additional Chief Secretary to the Government of Assam, Home and Political Department, issued an order on 25.05.2025 conveying the approval of Hon'ble the Governor of Assam to the detention order passed by the District Magistrate, Nagaon. The approval was conveyed to the petitioner through letter dated 30.05.2025.
9. The representations filed by the petitioner on 22.05.2025 to; (a) the Page No.# 5/24 Chairman of the Advisory Board for National Security Act, and (b) the Principal Secretary to the Government of Assam, Home and Political Department were forwarded by the District Magistrate, Nagaon to the concerned authorities on 04.06.2025.
10. On 06.06.2025, the Under Secretary to the Government of India, Ministry of Home Affairs, raised a query with the Additional Chief Secretary, Home and Political Department, as to whether the petitioner had been informed about his right to represent to the Central Government. Thereafter, on 07.06.2025, the District Magistrate, Nagaon informed the petitioner about his right to make a representation to the Central Government against the detention order.
11. On 12.06.2025 a corrigendum was issued by the District Magistrate, Nagaon to the order dated 14.05.2025, which was to the effect of modifying a certain paragraph in the order dated 14.05.2025. The modification related to amendment of the contents of the concerned paragraph to substitute the description of a notification by which the powers section 3(2) of the National Security Act was delegated by the Government of Assam to the District Magistrate, Nagaon.
12. The petitioner was allowed a personal hearing by the Advisory Board on 13.06.2025, on which date he submitted written arguments also. The proceedings of the Board were deferred to 20.06.2025 on the ground that the corrigendum dated 12.06.2025 was not available with the Board. The petitioner filed an additional representation through the Superintendent of Nagaon Central Jail on 16.06.2025, however, the fate of the said additional representation is not known to the petitioner. The petitioner was again afforded a personal hearing on Page No.# 6/24 20.06.2025 by the Advisory Board when it met to deliberate on the case of the petitioner.
13. By an order passed on 03.07.2025, the Additional Chief Secretary to the Govt. of Assam, Home and Political Department, conveyed the declaration that the Government of Assam had confirmed the detention order dated 25.05.2025 issued by the Additional Chief Secretary to the Govt. of Assam, Home and Political Department detaining the petitioner and directed that the period of detention to be one year from the date of detention.
14. At this stage, the petitioner has approached this Court.
Submissions on behalf of the petitioner:
15. The learned counsel appearing for the petitioner has submitted that the impugned preventive detention imposed on the petitioner under the provisions of the National Security Act, 1985 suffers from serious and irreparable flaws and cannot be sustained in the eyes of law for reasons more than one. His submissions can be summarized as follows, viz., (i) Failure to inform about the right of representation before the Detaining Authority; (ii) delay in disposal of the representation; (iii) delay in informing about the right to represent before the Central Government; (iv) non-furnishing of relevant materials; (v) non- consideration of bail order; (vi) imposing maximum period of detention without citing any reason; (vii) Defect in the detention order; (viii) no live link between materials relied on and the satisfaction of the detaining authority.
16. Failure to inform about the right of representation before the Detaining Authority:
Opening his arguments, the learned counsel for the petitioner has Page No.# 7/24 submitted that on perusal of the detention order as well as the grounds of arrest shows that the detaining authority, although informed the petitioner about his right to represent before the State Government and the Advisory Board, however he was not informed about his right to represent before the Detaining Authority. It has been submitted that the failure of the detaining authority issuing the impugned order dated 14.05.2025 to inform the detenue about his right to represent to the authority who had passed the detention is a serious lapse. It has been submitted by the learned counsel that such withholding of information of a valuable right existing in favour of a detenue has been held by the Courts of law to vitiate detention. He has submitted that the right of a detenue to represent to the detaining authority against the detention order is a right which flows from the provisions of Article 22(5) of the Constitution and is a fundamental right in itself.
The following cases have been relied on:
1) 1995 4 SCC 51: KamleshkumarIshwardas Patel Vs. The Union of India & Ors. (Para 38)
2) 2006 1 GLT 375; KonsamBrojen Singh Vs. The State of Manipur: (Para 54 to 57)
3) 2009 1 GLT 657: Dharmeswar Halol Baity Vs. The Union of India (Para 5 & 6)
4) 2005 1 GLT 173: Rongjam Momin Vs Union of India (Paras 8 & 9)
5) 2008 2 GLT 876: Paras 9 & 10 (Pages 130-132 of Vol. I)
17. Delay in disposal of the representation:
The learned counsel has submitted that from the manner in which the Page No.# 8/24 detaining authority as well as the State Government dealt with the representation, it is apparent that there is unexplained delay in disposing of the representation. The District Magistrate/Detaining Authority took 12 (twelve) days to transmit the representation to the State Government and in his affidavit- in-opposition, the said authority has failed to explain the reason for such delay. The State Government has also not explained in its affidavit the delay of 21 (twenty one) days in disposal of the representation. From the order rejecting the representation, it can be seen that on 10.06.2025, they received a report from the District Magistrate, however what happened between 04.06.2025 and 10.06.2025 and again between 10.06.2025 and 25.06.2025 has not been explained. The learned counsel submits that such unexplained delay would be fatal and the prolonged detention imposed on the petitioner deserves the interference of this Court. The learned counsel has relied upon the following cases in support of his contentions:
1) (1982) 2 SCC 43: Vijay Kumar -Vs- The State of J&K: (Paras 13 & 14)
2) (2010) 9 SCC 618: Pebam Ningol Mikol Devi -Vs-. The State of Manipur: Unexplained delay of 7 days in forwarding detenue's representation (Paras 36 & 37)
3) (1980) 2 SCC 357: Narinder Singh Suri -Vs- Union of India & Ors.: Unexplained delay of 19 days in disposing of representation of the petitioner by the detaining authority has been held as fatal.
4)(1980) 2 SCC 338: Pabitra N. Rana -Vs-. Union of India & Ors.:
Unexplained delay in disposing of representation of the petitioner held to be fatal. (Paras 1 & 2)
5) (1982) 3 SCC 10: Raj Kishore Prasad -Vs-. State of Bihar & Page No.# 9/24 Ors. (Para 7)
6) (1980) 4 SCC 428. Saleh Mohammed -Vs- Union of India & Ors.: Delay of 22 days in disposing representation was unreasonable and fatal. (Paras 7 & 8)
7) (1980) 4 SCC 531: Icchu Devi Choraria -Vs-. Union of India (Para 10)
8) 1999 (3) GLT 236: Lala Paite -Vs- State of Manipur & Ors.:
Authorities obliged to explain every day's delay (Paras 9 & 10)
9) 2005 (1) GLT 173: Rongjam Momin -Vs- Union of India & Ors.: Delay in forwarding representation -> Mere unexplained delay of 7 days in forwarding representation held to be fatal (Para
10)
10) 2009 (1) GLT 657: Dharmeswar Haloi @ Baity -Vs- Union of India: Delay in disposal of representation.
18. Delay in informing about the right to represent before the Central Government:
The learned counsel for the petitioner has submitted that while the petitioner was detained by a Detention Order dated 14.05.2025, he was only informed about his right to represent before the Central Government on 07.06.2025 i.e. after a delay of about 23 (twenty three) days. It is an admitted position that the said right of the petitioner was informed to him only when the authorities in the Central Government had enquired as to whether the petitioner had been informed of his such to make a representation to the Central Government that the Detaining authority informed him of his right. He has submitted that the omission to inform the petitioner immediately is itself reason enough to interfere in the illegal detention of the petitioner. He had submitted Page No.# 10/24 that no reason has been given by the respondents to explain the reasons for not informing the petitioner of his right to represent and he has submitted that in any event, be it oversight or be it deliberate, neither reason would suffice the requirements of law. He has submitted that even on this ground alone, the impugned detention deserves the interference of this Court.
19. Non-furnishing of relevant materials:
The learned counsel has submitted that it is the specific case of the petitioner that the petitioner had not been supplied with the documents which the detaining authority sought to rely upon and refer to when it arrived at a decision to impose preventive detention upon the petitioner. The perusal of the grounds of detention and the order dated 25.06.2025 by which the petitioner's representation was rejected would show that the authority has relied on around 23 alleged criminal cases lodged against the petitioner, however the documents pertaining to the said cases were not furnished to the petitioner. Although there is specific reference to Khatowal P.S. Case No. 16/2025 and to the statement of one Masoom Ejahar in the grounds furnished to the petitioner, copies of the same was never furnished to the petitioner. The said statement does not even form part of the documents annexed to the affidavit-in-opposition by the detaining authority.
The learned counsel has submitted that moreover, in some of the cases relied on by the detaining authority to justify the detention order, like Dibrugarh P.S. Case No. 290/2020, Latasil P.S Case No. 51/2019, Boko P.S. Case No. 311/2020, Simaluguri P.S Case No. 179/2021, Amguri P.S Case No. 39/2020 and Tinsukia P.S Case No. 1901/2020, Final Reports have been submitted by the investigating authority, indicating that liability in law could not be fastened upon Page No.# 11/24 the petitioner on the basis of such cases. There is no specific denial made to the said assertion of the petitioner in the affidavits of State Government and detaining authority.
The learned counsel relied upon the following:
1) (1980) 4 SCC 531: Icchu Devi Choraria -Vs- Union of India (Paras 7 to 9)
2) (1981) 1 SCC 748: Kamala kanyalal Khushalani -Vs- The State of Maharashtra & Anr. (Para 8)
20. Non-consideration of bail order:
The next ground urged by the learned counsel for the petitioner to attack the detention of the petitioner is that the authorities fell in error when relevant facts, like that the petitioner had been granted bail by a competent Court of law by imposing stringent conditions, were not taken into account. Neither the order of detention nor the grounds furnished indicate as to whether the authority directing the detention of the petitioner even took into consideration the fact of the petitioner being already in custody. The learned counsel argues that although in the rationale for issuing detention order, there is a reference to the detenu applying for grant of bail, however, no application of mind is indicated in the order regarding the chances of such prayer being granted or being denied. The authorities who were considering the representations of the petitioner failed in the duties vested in them when they did not take into cognizance the conditions imposed by the learned Court of the Additional Sessions Judge No. 4, Nagaon while granting bail to the petitioner in Nagaon P.S. Case No. 347/2025 to see whether the conditions imposed are sufficient to prevent the detenu from engaging in illegal activities in the future. The learned counsel has submitted Page No.# 12/24 that in the face of the conditions imposed by the bail order that the petitioner shall not commit any offence of whatever nature in the future and that he will ensure that he makes no statements pertaining to the present case and of such nature that may incite violence in any form which would have been sufficient to restrain the detenu from making any offensive statement, the respondent authorities had failed miserably in their duties when such conditions were not even referred to while deciding the representations of the petitioner.
The learned counsel relies upon the following case to emphasize this argument:
1. (2025) 4 SCC 476: Joyi Kitty Joseph -Vs- Union of India & Ors. (Paras 27, 28, 29, 32, 33 & 34)
21. Imposing of maximum period of detention without citing any reason:
The learned counsel thereafter argues that the detention of the petitioner again deserves interference of this Court in view of the fact that the order of extension of detention for one year is without any application of mind. There is no reference to any material as to why such detention is required for one year.
To emphasize this argument, the learned counsel has referred to:
1) (2023) 9 SCC 587: Ameena Begum -Vs- State of Telangana:
The State cannot mechanically detain a person for maximum period of detention -> there ought to be satisfaction arrived at regarding the propriety of the period of detention (Para 79)
22. Defect in the detention order:
Page No.# 13/24 The learned counsel has then asserted that there was a clear defect in the detention order dated 14.05.2025 where the District Magistrate claimed to draw his authority to detain the petitioner from an obsolete/expired order, which was described in the impugned order dated 14.05.2025 as "HMA 135/2023/48 dated 14.10.2023". Such mistake was sought to be corrected by a Corrigendum dated 12.06.2025 i.e. after about a month of the original order of detention being issued. The learned counsel submits that errors in the detention order itself, which have been admitted by the respondents themselves, had the potential to deny the petitioner his right under Article 22(5) of the constitution of India and even in this view of the matter, the impugned detention of the petitioner deserves the interference of this Court.
The following case has been relied on by the learned counsel:
1) (1980) 4 SCC 531: Icchu Devi Choraria -Vs- Union of India.
Even for the slightest breach of law, the order of detention can be struck down (Para 5)
23. No live link between materials relied on and the satisfaction of the detaining authority:
The learned counsel has further submitted that from a perusal of the material relied on by the detaining authority, it is clear that neither the same are proximate nor do they have any live link for the detaining authority to have arrived at the conclusion that the preventive detention of the petitioner was necessitated. Out of 23 (twenty three) cases relied on by the detaining authority, in a number of cases, final report has been submitted. Most of the cases referred to were initiated between the years 2020 to 2022. He has submitted that apparently materials relating to Khatowal P.S Case No. 16/2025, Page No.# 14/24 which had important bearing in deciding the necessity of passing the detaining order, was not even before the detaining authority when the impugned decision was taken.
The learned counsel has relied upon the following case to stress his arguments:
1) (2020) 13 SCC 631: Khaja Bilal Ahmed -Vs- State of Telangana: Satisfaction must on relevant grounds. Only those cases which have a causal connection reflecting the possibility of the detenue committing offence again in the near future jeopardising public order would be relevant for consideration and mere reference to all pending criminal cases irrespective of their link is erroneous. (Para 3) Submissions on behalf of the Union of India:
24. The Union of India has filed an affidavit in opposition, in which two aspects are found to be of relevance to the present matters. The first aspect is that the affidavit states that the report, as envisaged under Section 3(5) of the NSA, 1980, regarding the preventive detention of the petitioner had been received in and it was "felt" that there was no reason to interfere with the aforesaid report. The second aspect is that the affidavit admits that the petitioner had not been informed of his right to represent to the Central Government against the detention order. Thus, though the Central Government had received the full report regarding the preventive detention and although it was noticed that the petitioner had not been intimated about his right to represent to the Central Government at least up-to 6 th June 2025, the concerned authorities deemed it fit to give a closure to the matter only by Page No.# 15/24 advising the detaining authority to inform the petitioner of his rights. By the time the advice was given, the petitioner who was detained on 14.05.2025, had already undergone detention for more than 23 days.
Submissions on behalf of the State respondents/detaining authority
25. The State of Assam has filed two affidavits, one by the Deputy Secretary to the Government of Assam, Home and Political Department and the other by the District Magistrate, Nagaon. Referring to the affidavit filed by the District Magistrate, Nagaon, learned Additional Advocate General has submitted that a police report was received from the Superintendent of Police, Nagaon on the 2 nd May, 2025, along with supporting documents and intelligent inputs, indicating that the petitioner was engaging in activities pre-judicial to the maintenance of public order and security of this state. The petitioner had delivered a provocative public speech on 23rd April 2025. Based on the police report and by exercising powers conferred under Section 3(2) of the National Security Act, 1980, the District Magistrate had decided to detain the petitioner. The Additional Advocate General has further submitted that the detention order was issued on the 14th May 2025 and on 16th May 2025, the petitioner was communicated the grounds of detention alongwith all other documents which were relevant to the detention through the Superintendent of Central Jail, Nagaon. On the detention order passed by the District Magistrate being approved by the Governor of Assam on 25.05.2025, the Additional District Magistrate Nagaon communicated with the Superintendent of the Central Jail, Nagaon vide letter dated 30 th May 2025 to inform the petitioner regarding the approval given by the Governor of Assam. The petitioner was informed about his right to submit a representation to the Central Government against the detention order by the letter dated Page No.# 16/24 07.06.2025. He had already been informed about his right to make a representation against the detention order to the Government of Assam and also to the Advisory Board by the communication dated 16.05.2025 through which the detention order had been communicated by Competent Authority.
26. The learned Addl. Advocate General has submitted that there is no bar in law to correct typographical errors in the orders passed by the competent authority and therefore, the corrigendum issued to rectify the typographical error did not have any effect on the merit and the reasons for the detention imposed on the petitioner. It has been further submitted that the petitioner has exercised his right of making the representation both to the State Government and the Advisory Board but the petitioner has refrained from exercise of right of making representation to the Central Government and therefore, it is submitted that the writ petition has been preferred without exhausting all the remedies available to the petitioner.
27. By referring to the affidavit filed on behalf of the respondent No.2 by the Deputy Secretary to the Government of Assam, the learned Addl. Advocate General has submitted that it was on the basis of the report dated 02.05.2025 that the District Magistrate had taken the decision to impose preventive detention upon the petitioner. It has been submitted that the Government of Assam by the order dated 03.07.2025 has confirmed the detention order dated 25.05.2025 on the basis of the report submitted by the Advisory Board under the National Security Act. It has been further submitted that both the representations, one dated 23.05.2025 and the other dated 16.06.2025 have received due consideration of both the Advisory Board and the State Government and have been rejected and the detention of the petitioner had Page No.# 17/24 been confirmed and extended for a period of one year in accordance with law. It has also been submitted that the petitioner has been communicated about his right of representation to the Central Government against the detention order but the State Government is not in receipt of any copies of the representation, if any, addressed to the Central Government. He has asserted that in the absence of any statement by the petitioner that he had filed a representation to the Central Government and in view of the statement made on behalf of the Central Government that they have not received any representation from the petitioner, no prejudice can be inferred to have been suffered by the petitioner due to delay, if any, in informing him about his said right.
28. The learned Addl. Advocate General has drawn the attention of this Court to the rationale enumerated in the detention order to justify that the conduct of the petitioner has been such that there was enough reasons to believe that unless the petitioner was put under preventive detention, he would carry on with his illegal activities which would result in disruption in a public order. The learned counsel has referred to rationale given by the detaining authority to impress that due to the inflammatory and derogatory comments made by the petitioner, several people even come out to make similar derogatory comments which had potential to create communal tension not only in the State but throughout the Country. It is submitted by the learned counsel that the petitioner being a public figure, that is a Member of Legislative Assembly, his statements made in public and in social media have been potential to create adverse effects and breakdown of public order since he wields considerable influence and his utterance carry weight. The learned counsel has submitted that statements made by the petitioner did not only incite hate but they were also provocative and endangered the diversity, unity Page No.# 18/24 and integrity of the nation. The learned Additional Advocate General has submitted that the statements were in support of a nation which is considered an enemy nation. Referring to the background profile of the petitioner, the learned counsel has submitted that the petitioner has been in the habit of trying to create communal diversion and communal hatred. The learned Additional Advocate General has submitted that there are sufficient grounds for the authorities to have passed the orders imposing preventive detention on the petitioner.
29. With regard to the contention raised on behalf of the petitioner that, the fact that the petitioner had been granted bail under stringent conditions, had not received the attention of the authorities while considering the requirement or otherwise of imposing preventive detention on the petitioner, the learned Addl. Advocate General has submitted that the same are baseless and misconceived. He has submitted that it remains a fact that the detention order was passed on the basis of the report submitted by the Superintendent of Police, Nagaon on 02.05.2025 and therefore, the factors which were considered at the time of passing the order dated 14.05.2025 could not have included the bail order which was passed on 14.05.2025 itself. Further, it is submitted that, no fault can be attributed to the Advisory Board or the State Government, who had considered the representations, since the evaluation of the order impugned was required to be made on the basis of the materials considered by the detaining authority and not on the basis of later developments. He has however, refrained from conceding that the bail order was not considered by the State Government or the Advisory Board and has submitted that when the said fact had been pleaded by the petitioner in his representation, it cannot be presumed that the such facts were ignored while deciding his representations.
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30. He has submitted that all the factors which were taken into account have close proximity with the object sought to be achieved by the preventive detention of the petitioner and therefore, has submitted that the submissions made on behalf of the petitioner does not deserve further consideration of the Court.
31. In view of the submissions made and the stand taken by the respondents in the affidavits filed, he has accordingly prayed for dismissal of the writ petition.
Reasons and decision by the Court:
32. The records available before this Court have been carefully perused and the submission made on behalf of the contesting parties and cases cited at the Bar have been duly considered.
33. Let this Court look into the course of events in the present case.
a. The petitioner was not informed about his right to prefer a representation to the detaining authority itself either when the order dated 14.05.2025 was served on him or at any time thereafter.
b. On 25.05.2025, the Governor approved the detention of the petitioner.
c. The right of the petitioner to prefer a representation to the Central Government against the order dated 14.05.2025 had been informed to him after 23 days on 07.06.2025, that too when the Central Government, by its communication dated 06.06.2025 had required such right to be informed to the detenu. This was also after the Page No.# 20/24 detention order dated 14.05.2025 had been approved on 25.05.2025 d. The corrigendum dated 12.06.2025, correcting the original order was issued much later than 25.05.2025, the day when the detention was approved by the Governor. A reading of the representation dated 23.05.2025 reveals that the petitioner had taken a ground that the Notification No. HMA.135/2023/48 dated 14.10.2023 was not supplied to the petitioner. He had taken a specific ground that even in the absence of the copy of the said notification, he challenged the authority of the District Magistrate to pass an order of detention. Apparently, the error in mentioning the details of the order under which the District Magistrate sought to draw his authority did not receive due attention when the matter was under
consideration for approval.
34. What follows from the above is that the detaining authority, while issuing an order of preventive detention of a citizen did not follow the rigours attached as conditions for exercise of the powers. The detaining authority did not inform the detenu of his right to prefer a representation to the detaining authority itself. The question "whether the detenue under the National Security Act, 1980 (for short "Act") has a right to make representation to the detaining authority in addition to his right to file representation as provided for under Section 8(1) of the Act to the appropriate Government and whether Article 22(5) of the Constitution of India confers any such additional right?" received attention of this Court in more than one case. In the case of Konsam Brojen Singh -Vs- State of Manipur & Others, decided by a Full Bench of this Court and reported in 2006 (1) GLT 375, the judgments of the Apex Court were Page No.# 21/24 considered and this Court held as follows:
"57. For all the aforesaid reasons, we hold:
(1) That a detenue has two rights under Article 22(5) of the Constitution:
(i) to be informed, as soon as may be, the grounds on which the order of detention is passed, i.e., the grounds which led to the subjective satisfaction of the detaining authority, and
(ii) to be afforded the earliest opportunity of making a representation against the order of detention. The twin rights are available to a detenu whether they are provided for or not in the preventive detention laws.
(2) The right to make representation to the detaining authority by a detenue in addition to his right to file representation to the Central Government or appropriate Government is also guaranteed under Article 22(5) of the Constitution which forms part of package of guaranteed fundamental right. No distinction as such could be made in this regard in respect of the detention orders made either under COFEPOSA, PIT NDPS or National Security Act, 1980, as the case may be.
(3) The detaining authority is under the constitutional obligation to inform the detenue of his right to make such a representation to the detaining authority.
(4) The failure to inform the detenue of such right to make representation to the detaining authority vitiates the detention order made even under the provisions of the National Security Act, 1980.
58. ........
59. In the cases on hand, admittedly, the detaining authorities did not communicate to the detenue of their right to make representation to the detaining authority in addition to their rights to make representation to the Page No.# 22/24 appropriate Government. The detention orders are, therefore, liable to be set aside and quashed."
In the considered opinion of this Court, this lapse on the part of the detaining authority is alone sufficient to vitiate the detention imposed on the petitioner.
35. However, another aspect of the matter has also caught the attention of the Court. The petitioner had filed his representation on 23.05.2025 and the same was forwarded by the District Magistrate to the State Government and the State Advisory Board on 04.06.2025. 12 (twelve) days had elapsed in the meantime. The affidavits filed by the District Magistrate and the Joint Secretary to the Government of Assam respectively, do not attempt to explain the delay caused in forwarding the representations to the concerned authorities. It is pertinent to note that the Superintendent of Jail, Nagaon had forwarded the representations on 23rd May 2025 itself. The Advisory Board held its meeting on 13.06.2025 and the next meeting was held on 20.06.2025, seven days later. The Advisory Board submitted its report on 25.06.2025. On the basis of the report, the order of preventive detention was confirmed by the State Government on 03.07.2025 and it was also extended for a period of 1 one year from the date of detention.
36. A Constitution Bench of the Apex Court in K.M. Abdulla Kunhi -Versus- Union of India & Others, reported in (1991) 1 SCC 476: (1991) 0 Supreme (SC) 41, observed:
"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' Page No.# 23/24 occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed 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 not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal."
37. The Apex Court in the case of Rajammal (supra) in the given facts of that case in paragraph Nos. 8 & 11 held 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, it any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.
11. We are, therefore, of the opinion that the delay from 9-2- 1998 to 14-2- 1998 remains unexplained and such unexplained delay has vitiated further detention of the detenu. The corollary thereof is that further detention must necessarily be disallowed. We therefore allow this appeal and set aside the impugned judgment. We direct the appellant-detenu to be set at large forthwith."
38. In the case of Smti. Imlilemla Longkumer -Versus- The State of Nagaland & Others passed in (W.P.(Crl.)/11/2023, decided on: 13-02-2024), reported in 2024 Supreme(Gau) 111, this Court had held:
Page No.# 24/24 "In the present case, apart from stating that the matter was forwarded to the State Government for consideration on 22.09.2023, and thereafter the order of rejection was passed on 29.09.023, no other explanation has been made. Therefore, considering the provision of the NSA and the fact that the liberty of a person has been curtailed in such a manner, the delay in disposing of his representation cannot be accepted."
39. In the present case, there is no explanation for the time consumed by any of the authorities while dealing with the representation filed by the petitioner. Coupled with this, the petitioner was never informed about his right to represent to the detaining authority and further, his right to represent to the Central Government came to be informed to him only after the Central Government had reminded the Additional Secretary to the Government of Assam, with a copy of to the District Magistrate, Nagaon.
40. In view of what has been concluded above, the Court does not consider it necessary to go into the other points raised as the Court is satisfied that for the said one reason alone, the detention order stands vitiated and the other issues raised by the petitioner are not required to be examined. Accordingly, the writ petition deserves to be allowed.
41. In the result, the impugned orders dated 14.05.2025 and 25.06.2025 are hereby set aside and quashed and the detenue is directed to be set at liberty, if not otherwise wanted in any other case.
JUDGE JUDGE Comparing Assistant