Gauhati High Court
Manirul Islam vs The Union Of India & 7 Ors on 26 July, 2017
Author: Nelson Sailo
Bench: Nelson Sailo
1
IN THE GAUHATI HIGH COURT
(THE HIGH COUR T OF ASSAM , NAGALAND, M IZOR AM AND AR UNACHAL
PR ADESH )
W P(Crl) No.1 of 2017
Manirul Islam
Son of Late Kamaruz Zaman
Resident of Village-Simlajhar,
P.S.-Govardhana,
Dist.-Baksa, BTAD, Assam
..... Petitioner.
-Versus-
1. The Union of India,
Represented by the Secretary,
Ministry of Home Affairs, New Delhi-01.
and 7 (seven) Others
..... Respondents.
BEFORE THE HON'BLE MR. JUSTICE NELSON SAILO For the Petitioner: Mr. M.H. Ahmed ...... Advocate.
For the respondents: Mr. B. Deka, ...... CGC
Ms. M. Bhattacharjee ........ G.A. Assam,
Date of Hearing : 21st July, 2017
Date of Judgment : 26th July, 2017
JUDGMENT AND ORDER (CAV)
Heard Mr. M.H. Ahmed, the learned counsel for the petitioner. Also heard Mr. B. Deka, the learned CGC for the respondent No.1 and Ms. M Bhattacharjee, WP(Crl.) No.1 of 2017 2 the learned Additional Senior Government Advocate, Assam, for the respondent Nos. 2 to 6. None appears for the respondent Nos. 7 and 8 despite service.
2. The present writ petition has been filed against the detention of the writ petitioner under the National Security Act, 1980 (the Act for short) for a period of 3 (three) months w.e.f the date of order dated 20.08.2016 (Annexure-4) and the order of confirmation dated 21.10.2016 (Annexure-5) whereby further detention of 12 months from date of detention was also provided.
3. The brief facts for consideration may be narrated at the outset. The petitioner was arrested on 04.12.2015 and thereafter, an FIR was filed on 05.12.2015 pursuant to which Runikhata P.S. Case No.65 of 2015 U/s 25 (i)(a) Arms Act was registered against him. Later on, he was shown arrested in connection with Dhaligaon P.S. No.161 of 2015 U/s 120(B)/121/121(A)/122/387/365/511 IPC read with Section 25(1)(a)/35 of the Arms Act. Another case was registered against the petitioner vide SOU P.S. Case No.01 of 2014 U/s 120(B)/121/121(A)/122/123 IPC read with Section 10/13/16/18(A)/18(B)/20 UA(P) Act.
4. According to the petitioner, he is engaged in business of selling Ayurvedic medicines by travelling to different places of Assam and West Bengal. His family includes his old ailing mother, wife and 3 daughters and one son. He is also interested to go different Maszids in various places for discussion about the Namaj, Roja, Hauz, Jakat etc. with different Tablek Jamaats coming from different places of India to create awareness on the religion. While the petitioner was travelling for his business purpose, he was arrested on 04.12.2015 alongwith alleged possession of a revolver along with 5 live cartridges hidden in his trouser. A seizure list was then prepared in the presence of three (3) independent witnesses and consequently, he was produced before the Court on 16.12.2015 in connection with Runikhata P.S. Case No.65 of 2015 and SOU P.S. Case No.01 of 2014 as well for the recovery of the revolver and live ammunition. Thereafter, the Superintendent of Police, SOU, forwarded the dossier of the petitioner who is also known as Ashik @ Burhabahi besides his name Monirul Islam. As per the dossier, the petitioner was found to be a Jehadi activist and a trained member of "Qaidat Al Jehad" which is known to be the Indian wing of "Al-Qaida". The dossier was forwarded to the Commissioner of Police, Guwahati on 16.08.2016 WP(Crl.) No.1 of 2017 3 with a request to pass a detention order under Section 3 of the National Security Act, 1980.
5. Thereafter vide impugned order dated 20.08.2016 (Annexure-4), the petitioner was detained for 3 months and vide order dated 21.10.2016 (Annexure-5) his detention was not only confirmed but a further detention of 12 month with effect from the date of detention was passed.
6. Mr. M.H. Ahmed, the learned counsel for the petitioner, submits that the petitioner is merely a businessman dealing with Ayurvedic Medicine and selling them on his travel to different places. The petitioner has no link with Al-Qaida or the Jehadi activities and that he has only been falsely implicated by persons/forces with ulterior motives. He submits that there is no question of recovering the alleged revolver and ammunition from the petitioner as the petitioner has never seen or touched any revolver or weapon and does not even know how to operate the same. Therefore, such false implication and violation of statutory norms to keep him under detention is most illegal and hence unsustainable in law.
7. The learned counsel for the petitioner submits that the petitioner was arrested even before lodging of the FIR on 05.12.2015 and he has the right to submit a representation against his detention after being furnished the grounds for which he has been detained. He submits that Section 8(1) of the Act provides such right. By referring to Section 10 and 11 of the Act, he submits that the respondent authority concerned on making an order of detention has to refer the same before the Advisory Board while placing the grounds under which the detention has been ordered and representation of the detenu. The Advisory Board thereafter has to consider the materials placed before it and after hearing the detenu pass orders of confirmation of the detention or otherwise. He submits that in the instant case, the respondent authorities have not followed the relevant provision of law and even before the expiry of the initial 3 months of detention of the petitioner, ordered the detention of the petitioner for 12 months.
8. Mr. M.H. Ahmed, the learned counsel for the petitioner in support of his submission relied upon the following judgments rendered by the Apex Court as well as by this Court:
WP(Crl.) No.1 of 2017 4(i) Wasiuddin Ahmd Vs. District Magistrate, Aligarh, UP and Others .....................AIR 1981 SC 2166
(ii)Nameirakpam Inaotomba Singh Vs. Union of India and Ors.
...................... 2007 (4) GLT 200
(iii) Jutika Chakraborty Vs. State of Nagaland and Ors.
........................ 2013 (5) GLT 785
(iv) Nurjaman Shah @ Denny @ Japan Vs. State of Manipur and Ors.
......................2010 (2) GLT 913
(v) Ringkahao Horam Vs. State of Nagaland and Ors.
..................... 1997 (2) GLT 419
(vi) Avikho Angami @ Neibulie Nak-Hro Vs. State of Nagaland and Ors.
.................... 2015 (1) GLT 135
(vii) Pebam Ningol Mikoi Devi Vs. State of Manipur and Ors.
..................... (2010) 9 SCC 618
(viii) Huidrom Konungjao Singh Vs. State of Manipur and Ors.
..................... (2012) 7 SCC 181
(ix) Rekha Vs. State of Tamil Nadu and Anr.
...................... (2011) 5 SCC 244
9. By referring to the case of Wasiuddin Ahmd (Supra), the learned counsel for the petitioner submits that since the grounds of detention and the relevant documents were not furnished at the earliest to the petitioner, the order of detention cannot be sustained in law. He submits that the petitioner also ought to have been given a fair chance of hearing by the Advisory Board prior to passing the impugned order of detention for 12 months but however, since such opportunity was not properly afforded to the petitioner, the impugned order of detention cannot be sustained as well. He submits that as held by this Court in the case of Nameirakpam Inaotomba Singh (Supra) the right to be heard by the Advisory Board is not an empty formality but the same is an important right of the petitioner which also includes his right to make a representation before the Advisory Board.
10. By referring to the case of Jutika Chakraborty (Supra), the learned counsel for the petitioner submits that in order to invoke Section 3 of the Act, there has to be some materials requiring the detention of the person who was arrested and the said provision cannot be invoked only in a routine manner. There has to be a reasonable apprehension as regards the security of the State or the defence of India or the apprehension in regard to the maintenance of public order. Mr. M.H. WP(Crl.) No.1 of 2017 5 Ahmed by referring to Nurjaman Shah @ Denny @ Japan (Supra) also submits that the detention order of the detenu will be vitiated for non-supply of legible documents with the grounds of detention and for non-forwarding the representation of the detenu to the Government concerned. In the instant case, he submits that the grounds for detention were not furnished to the petitioner to enable him to make the proper representation and therefore, the impugned order of detention cannot be sustained.
11. Mr. M.H. Ahmed further submits that the authority concerned has to have subjective satisfaction based on application of mind for detaining the petitioner. In this connection he relies upon the case of Ringkahao Horam (Supra) to contend that the subjective satisfaction which is required prior to confirmation of the detention as observed by this Court in the case under reference is absent in the instant case. Therefore, the impugned detention order cannot be sustained at this ground as well. The case of Avikho Angami @ Neibulie Nak-Hro (Supra) similarly speaks about the subjective satisfaction of the Court. However, it also provides that the authority concerned is to justify such detention is required in the given facts and circumstances by filing an affidavit stating that a conclusion was arrived at that there was subjective satisfaction. The learned counsel for the petitioner submits that no proper opportunity was afforded to the petitioner prior his detention for 12 months vide the impugned order of confirming his detention. In fact, the detention of the petitioner is only based upon the statements made under Section 161 Cr.P.C. which in fact has been held to be impermissible as per the decision of the Apex Court in the case of Pebam Ningol Mikoi Devi (Supra) amongst others. Finally, the leaned counsel for the petitioner by relying upon the case of Huidrom Konungjao Singh (Supra) submits that the consideration of the authority concerned prior to confirming such detention has to be made with the satisfaction and justification that the detenu is likely to be granted bail by the trial court and therefore, detention was necessary. He submits that such were not consideration before the authority concerned in the instant case. In that view of the matter the impugned order of detention cannot be sustained and the petitioner should be set at liberty.
12. Ms. M. Bhattacharjee, the learned Additional Senior Government Advocate, Assam, appearing for the State respondents submits that the petitioner whose name is Moirul Islam @ Ashif @ Burabhai joined Muslim Student WP(Crl.) No.1 of 2017 6 Federation (MSF) which is a student front of All Indian Muslim League. Thereafter, in August, 2013 he met Sahidul Islam @ Semim and Jahidul Islam @ Jabirul Islam and joined Jamatul Mujahadeen Bangladesh (JMB) organization. In February, 2014, Sahidul Islam @ Samim took him to Mosque located in between Mangaldoi and Kharupetia i.e. Jugipara Mosque where he found the 6 jehadis and underwent for 3 days Jehadi training under JMB cadres. During the traning and discussion, there was a mention about the atrocities on Muslim people in BTAD and necessity of Jehad against it
13. The learned Government Advocate further submits that the petitioner besides this, visited Burigaon Mosque under the Kayakuchi Police Station, Barpeta and Panapara Mosque under Patacharkuchi Police Statio,n Barpeta ,in July, 2014 respectively for organizational activities of JMB under cover of "Tablik Jamat" with a view to impart training of Jehad in mosques. In the month of April, 2014, the petitioner along with his wife accompanied the Sahanur Alom and Suzena Begum who were also arrested visited Simulla Madrassa under Burdwan district of West Bengal and attended a two days training course on Jehad. The investigation conducted pursuant to the registration of cases under Dhaligaon P.S. case and Runikhata P.S. case and SOU P.S. Case wchih only show that the petitioner is a Jehadi and a hardcore JMB cadre. Therefore, a detailed dossier along with enclosure was submitted to the Commissioner and Police, Guwahati and upon considering such materials and evidences against the petitioner, the petitioner was ordered to be kept under detention vide order dated 20.05.2016. Thereafter, the matter was placed before the constituted Advisory Board comprising of 3 members and whereupon, the Advisory Board after following the procedure as envisaged under Section 11 of the National Security Act, 1980, was of the unanimous opinion that there were sufficient grounds for detention of the petitioner under the National Security Act, 1980, which includes the admission of the petitioner when he was given a personal hearing on 06.10.2016 that he was in association with the Jehadi Group. Thereupon, the detention of the petitioner was confirmed by the State Government.
14. I have considered the submissions advanced by the rival parties and I have also perused the materials available on record including the records produced by the learned State Counsel.
WP(Crl.) No.1 of 2017 715. Although the petitioner denies that he has not being given the grounds of his detention when his detention was ordered on 20.08.2016, it may be noticed that the petitioner in his pleadings in the writ petition has nowhere indicated that he has requested the authorities to furnish him with the grounds of detention and that he was refused. On the other hand, the records on the proceeding before the Advisory Board not only show that the petitioner was served with the grounds of detention but he also admitted of having received the same. Besides, the petitioner in his writ petition has also stated that before the matter was placed before the authorities for his preventive detention, the proposal and other relevant documents except the statements and the FIR were furnished to him. Although, the petitioner by filing an affidavit-in-reply to the affidavit-in-opposition of the respondent No.1 on 05.01.2017 through his wife has denied timely receipt of the grounds of his detention from the respondent authorities, such is not the indication in his writ petition and he cannot be allowed improve his case by filing of affidavit subsequently. The fact remains that the petitioner has not shown how prejudice has been caused to him for having not been served or belatedly served the grounds for his detention. In fact, from the records it can be seen that the petitioner admitted his association with the Jehadi group and therefore, his contention of the detention being vitiated on the ground of having not been given a copy of the grounds of detention cannot be accepted. Court no doubt is to examine as to whether there are relevant materials warranting the detention of the detenu and there was subjective satisfaction of the authorities concerned in coming to a conclusion that detention was necessary. In the instant case, it is seen that not only the materials for consideration of the detention was placed before the Advisory Board but the petitioner was heard in person, wherein, he did not dispute the fact of having received the ground of his detention and admitted his association with the Jehadi group. It was after due consideration that the Advisory Board submitted its report on 07.10.2016 recommending the detention of the petitioner to be justified for maintenances of public order and security of the State. In the absence of any materials to the contrary, I am of the considered opinion that the records will have to be accepted. It may also be noticed that the observation that the petitioner was to be likely released on bail by the trial court and which in case, public peace and order would be disrupted was also recorded in the grounds of detention of the petitioner. Therefore, under WP(Crl.) No.1 of 2017 8 the facts and circumstances, the various authorities relied upon by the learned counsel for the petitioner will have no application in the instant case.
16. As regards the contention of the petitioner that detention period cannot extend to more than 3 months at a time, the same also cannot be accepted in view of Section 13 of the Act which provides that detention period may extend to 12 months on confirmation from the date of detention as the outer limit.
17. This Court is also not unmindful about the right to liberty guaranteed by the Article 21 of the Constitution of India, which in fact is one of the most important Fundamental Right guaranteed by the Constitution of India to a citizen. However, the same can be curtailed under exceptional circumstances under the Act when there are materials to show that one is acting prejudicial to the security of the State. The prevailing situation of communal disharmony, social tensions, extremists activities, industrial unrest and increasing tendency on the part of various interested parties to encourage agitation on different issues being the underlying objectives of the National Security Act, 1980 and considering the case in hand, I am of the considered opinion that the decision to detain the petitioner was preceded by subjective satisfaction by the State authorities and the Advisory Board. I, therefore, do not find any reason to interfere in the impugned order dated 21.10.2016.
18. In the result, the writ petition having been found without merit, the same is dismissed.
JUDGE sumita WP(Crl.) No.1 of 2017