Gauhati High Court
WP(C)/2066/2021 on 9 April, 2021
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia, Manash Ranjan Pathak
GAHC010055372021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No.2066 of 2021
Adam Ali @ Adil Ali
Son of Azad Ali Sheikh,
Resident of - Matiabag, PO & PS: Gauripur,
District: Dhubri, Assam.
....Petitioner
Versus
1. The Union of India, represented by the
Home Secretary, Ministry of Home Affairs,
New Delhi, India, PIN - 110001.
2. The Commissioner & Secretary to the
Government of Assam, Home & Political
Department, Dispur Guwahati-7810006.
3. The District Magistrate, Dhubri, Assam, PO
& District: Dhubri, Assam, PIN - 783301.
4. The Superintendent of Police, Dhubri, PO &
District: Dhubri, Assam, PIN - 783301.
5. The Deputy Superintendent of Police (B),
Dhubri, PO & District: Dhubri, Assam, PIN -
78330.
....Respondents
Advocate for the Petitioner : MR. M K CHOUDHURY
Advocate for the Respondent : ASSTT.S.G.I.
-2-
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
09-04-2021 (Sudhanshu Dhulia, CJ) Heard Mr. M.K. Choudhury, learned senior counsel for the petitioner. Also heard Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam, appearing for the respondent Nos.2 to 5.
2. This Habeas Corpus petition has been filed by the petitioner through an affidavit filed by his wife Ms. Babita Prodhani. The petitioner (Adam Ali @ Adil Ali) is the proprietor of a firm, namely, M/s Mahdi Islam, which is a registered firm and engaged in the business of purchase, store and sale of cattle from States in India, which includes Assam. According to the petitioner, these cattles are purchased from West Bengal and thereafter sold in the market at different places. According to the petitioner, his business is lawful.
3. An FIR was lodged against the petitioner on 11.10.2020, which was registered as Gauripur Police Station Case No.1190/2020 under Sections 120B/121/121A/122/371 of the IPC, read with Section 25(1AA) of the Arms Act, 1959. Thereafter, the petitioner was arrested and later vide order dated 15.12.2020 passed by this Court he was released on bail.
Another FIR was also lodged against the petitioner on 11.10.2020 at Dhubri Sadar Polcie Station, which was registered as Dhubri Police Station Case No.1465/2020 under Sections 120B/ -3- 448/506 of the IPC, read with Section 25(1)(a)(b) of the Arms Act, 1959. The petitioner was also arrested in this case and was granted bail on 11.12.2020.
There was yet another FIR lodged on 03.10.2020 against the petitioner at Dhubri Sadar Police Station, which was registered as Dhubri Police Station Case No.1403/2020 under Section 379 IPC read with Section 11(1)(a)(b)(d) of the Prevention of Cruelty of Animals Act, 1960. In this case also, the petitioner was granted bail on 02.12.2020.
Finally an FIR was lodged against the petitioner on 25.01.2021 at Chhagolia Out Post, which was registered as Golakganj Police Station Case No.71/2021 under Sections 120(B)/420/379 IPC read with Section 11(i)(a)(b)(d) of the Prevention of Cruelty of Animals Act, 1960. He was arrested on 28.01.2021. The petitioner was also granted bail in this case on 02.03.2021 and he was released on 03.03.2021.
4. Meanwhile, a detention order dated 06.02.2021 was passed by the concerned District Magistrate, Dhubri against the petitioner which was executed immediately after the release of the petitioner from jail (which was on 03.03.2021), and he was put under detention in jail on 05.03.2021, under the provisions of the National Security Act, 1980 (from hereinafter referred to as "Act"). The detention order dated 06.02.2021 reads as under:
"O R D E R Perused the dossier submitted by the Superintendent of Police, Dhubri vide his letter No. DSB-II/16-A/NSA/2021/276, -4- dtd 04/02/2021 in respect of Sri Adom Ali @ Adil Ali, s/o Azad Ali, Vill- Matiabag, P.S.-Gauripur.
Also seen the recommendations therein made by the Superintendent of Police, Dhubri regarding detention of the above said person.
On perusal of the materials in hand, I am satisfied that it is necessary to detain above said person with view to prevent him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order.
Therefore, I, Shri Deba Kumar Kalita ACS, District Magistrate of Dhubri District in exercise of the powers conferred U/S 3 of the National Security Act, 1980 hereby order to detain Sri Adom Ali @ Adil Ali, s/o Azad Ali, Vill- Matiabag, P.S.-Gauripur for a period of three months with effect from the day of arrest.
Given under my hand and seal on this 06th day of Feb, 2021.
Sd/-
District Magistrate, Dhubri.
Memo No.DMJ.4/2021/36-A Dated Dhubri the 06th Feb, 2021"
5. The admitted position before this Court is that the detention was made under the provisions of the Act but the provisions, particularly the safeguards and the mandatory provisions provided under Clause (5) of Article 22 of the Constitution of India as well as under Section 3 and Section 8 of the Act were not followed. Meanwhile, subsequent to his detention, the present habeas corpus writ petition was filed before this Court.
6. When the matter came up before this Court on 22.03.2021, this Court merely directed the Additional Senior -5- Government Advocate, Assam to get his instructions and the matter was fixed for 24.03.2021.
7. On the next date of listing, this Court was informed by Mr. M.K. Choudhury, learned senior counsel that on 22.03.2021 itself, two orders were passed, one order was for release of the petitioner and the other was an order again placing him under preventive detention. Both these orders were passed on the same day, i.e. on 22.03.2021. The affidavit is sworn on by the Additional Deputy Commissioner, Dhubri (he was not the person, who had passed the detention order, rather the order was passed by the District Magistrate, Dhubri). In his affidavit, the Additional Deputy Commissioner, Dhubri has only referred to order dated 22.03.2021 by which the petitioner was released. There is no mention of the second order passed on the same day by which the petitioner was once again detained. The first order dated 22.03.2021 reads as under:-
"O R D E R Appreciating the material available in record, this court had felt it necessary to take immediate preventive measure against Sri Adom Ali @ Adil Ali, s/o Azad Ali, Vill- Matiabag, P.S. Gauripur who was found involved with the acts prejudicial to the security of the State and maintenance of public order, and on being satisfied with material available in record this court passed order on 06/02/2021 directing detention of Sri Adom Ali @ Adil Ali, s/o Azad Ali under section 3 of the National Security Act, 1980. In persuasion of the said order dtd 06/02/2021 it was made known to this court by the Police Administration that the order dtd 06/02/2021 was executed only on 05/03/2021 since the detainee was under
judicial custody in connection with another case.-6-
It was also made known to this court that the force of the order dtd 06/02/2021 has already been vitiated due to some material defects and the order thus become inoperative.
Hence the police administration is hereby directed to release the detainee forthwith detained in connection order vide No- DMJ-4/2021/36 dtd 06/02/2021. Let this order be communicated to all concerned.
Given under hand and seal on this 22nd day of March, 2021.
District Magistrate, Dhubri Dated Dhubri the 22nd March, 2021"
8. Mr. M.K. Choudhury, learned senior counsel for the petitioner, however, would point out and has brought on record that on the same day, i.e. on 22.03.2021, another order of detention was passed. The second order of detention reads as under:-
"O R D E R Perused the dossier submitted by the Superintendent of Police, Dhubri vide his letter No.DSB-II/16-A/NSA/2021/578, dtd. 22/03/2021 in respect of Sri Adom Ali @ Adil Ali, s/o Azad Ali, Vill - Matiabag, P.S. - Gauripur.
Also seen the recommendation therein made by the Superintendent of Police, Dhubri regarding detention of the above said person.
On perusal of the materials in hand, I am satisfied that it is necessary to detain above said person with view to prevent him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order.
Therefore, I, Shri Deba Kumar Kalita, ACS, District Magistrate of Dhubri District in exercise of the powers conferred U/S 3 of the National Security Act, 1980 hereby order to detain Sri Adom Ali @ Adil Ali, s/o Azad Ali, Vill - Matiabag, P.S. - Gauripur for a period of three months with effect from -7- the day of arrest, at the District Jail, Dhubri after making all necessary formalities.
Given under my hand and seal on this 22nd day of March, 2021.
Sd/-
District Magistrate, Dhubri Dated Dhubri the 22nd March, 2021"
9. As stated above in the affidavit filed by the Additional Deputy Commissioner, Dhubri (who is not the detaining authority himself), it has only been stated that since there were some anomalies in the earlier order of detention dated 06.02.2021, the order was recalled and the petitioner was directed to be released. Hence, it was prayed that since the petitioner has been released, no interim order may be passed. This was clearly a wrong averment given in an affidavit as it has been explained to us and brought on record that on the same day, i.e. on 22.03.2021, when the release order was passed, another order was passed detaining the petitioner.
10. Mr. M.K. Choudhury, learned senior counsel for the petitioner states that the grounds of detention were now served upon him in the second detention order, within four days thereafter, i.e. on 26.03.2020, although the detention order has a date of 22.03.2021. The grounds of detention are as under:-
"(i) You have been charge sheeted in Gauripur PS Case No-
645/2020 dtd 18/12/2020 in connection with Gauripur PS Case No-1190/20 U/S 120B/121/122/371 IPC R/W Section 25(1-AA) of the Arms Act 1959.
-8-(ii) You are also involved in Dhubri PS Case No-1465 of 2020 registered under Section 120B/448/506 IPC R/W Section 25- (A)(B) of the Arms Act 1959.
(iii) Dhubri PS Case No-1403 of 2020 Under Section 11(1)
(a)(b)(d) prevention of cruelty to Animal Act.
(iv) You were also arrested in connection Gauripur P.S. Case No. 876/2020 U/S- 379 IPC R/W Sec 11(1)(a)(d)(h) the prevention of cruelty to the Animal Act."
11. The order says that it has been given along with two enclosures (a) copy of the order dated 22.03.2020, i.e. the detention order; and (b) copy of the dossier forwarded by the police administration. This dossier, which was supplied to the petitioner, has also been filed before this Court by the State, which shows that - "Wing - Active Jehadi working through cover of legitimate business and liaising with high and mighty offices, Sponsoring Sleeper Cells, Financing trade in Arms, Ammunition, Drugs, Human Trafficking, Organizing/Facilitating Training camps."
The dossier mainly say that the petitioner is in illegal cattle trade and further it says that the petitioner supplies factory made weapons from both inside the country as well as outside and that he supplied fire arms to the Jehadi group, possibly the JMD. All the same, the entry in the dossier as to the Jehadi links of the petitioner is extremely vague. It is not based on any evidence.
This detention order has been challenged on various grounds.
-9-12. Mr. M.K. Choudhury, learned senior counsel for the petitioner would argue that first and foremost the detention order is violative of Clause (5)1 of Article 22 to the Constitution of India. The argument of the learned senior counsel is that the authority, which has passed the order of preventive detention shall as soon as possible communicate to the person the grounds of detention in order to enable such a person to make a representation against such an order. As we have seen, in respect of the first detention order (dated 06.02.2021 executed on 05.03.2021), no grounds of detention were admittedly served upon the petitioner, leave aside other compliance provided under Section 3 and Section 8 of the Act of inasmuch as promptly informing the State Government, etc.
13. Mr. M.K. Choudhury, learned senior counsel for the petitioner has taken us to the relevant records of Gauripur Police Station Case No.645/2020 dated 18.12.2020 and submits that the petitioner has not been named in the said case and in fact the case is not connected with him in any manner. The other cases are one which is already stated above and related to cattle smuggling, arms act, theft, etc. Whether that would constitute a public order situation or is mainly a law and order situation is again an important aspect for our consideration.
14. If the dossier discloses any further grounds such as the petitioner being involved in Jehadi activity, then again it is very 1 (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.
-10-vague but most important factor is that this ground was never communicated to the petitioner, under the grounds of detention, as visualised under Section 82 of the Act.
15. More importantly, the detention order and the grounds of detention subsequently supplied to the petitioner are admittedly in English, a language which the petitioner does not understand. Although this ground has not been specifically taken by the petitioner in his petition but, it has been argued before this Court by the learned senior counsel for the petitioner Mr. Choudhury and is clear from the records which have been made available to this Court by none other than the State itself. As per the dossier supplied before this Court by the State and the police authority themselves, it has been clearly stated that the petitioner can speak Assamese, Bengali and Hindi and can write Assamese. In other words, the petitioner can neither read, write nor speak English and this is admittedly the language in which the detention order was passed and the grounds of detention were supplied to the petitioner.
16. In all the cases, which have been shown in the grounds for detention, the petitioner has already been released on bail. This detention order, therefore, is liable to be quashed and set 2
8. Grounds of order of detention to be disclosed to persons affected by the order.--(1) 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. (2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
-11-aside on more grounds than one. First and foremost, the admitted position is that the grounds of detention supplied to the petitioner are in a language which he cannot understand and, therefore, it does not amount to a communication of grounds of detention to the petitioner in terms of Clause (5) of Article 22 as well as in terms of sub-section (4)3 of Section 3 of the Act read with Section 8 of the Act.
17. The admitted position is that the grounds of detention were served upon the petitioner in English. In the counter affidavit, it has nowhere been stated that the grounds of detention was translated to him in a language which he understands or were orally explained to him though while making his submission before this Court, learned counsel for the State, Mr. TC Chutia has given a statement that his instructions are that the grounds of detention were explained to him in Assamese which is his local language. This explanation, however, does not cure the defect.
18. Preventive detention is extremely a harsh order which deprives a person of his liberty. In public interest and national 3
3. Power to make orders detaining certain persons.-- (4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government:
Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detentions, this sub-section shall apply subject to the modification, that, for the words "twelve days", the words "fifteen days" shall be substituted.-12-
interest however, the State must exercise this power for the general good and security. Clause 3 of Article 22 provides that a person can be arrested and detained under the law provided for preventive detention and in such cases, ordinarily the conditions provided under clause 1 and 2 of Article 22 will not apply. But then law of preventive detention have to be very carefully used after following the due procedure established by law. One of the important aspects of which is the communication of the grounds of detention to the detenue between five to ten days of such detention and communication would mean communicating the grounds in a language which the detenue understands.
19. As early as in 1961-62, a Constitutional Bench of Apex Court in Harikisan -Vs- State of Maharashtra & Ors. reported in AIR 1962 SC 911 had held that if grounds of detention are communicated to the detenue in any other language than the language he understands that would not amount to communication of the grounds of detention as visualised under clause 5 of Article 22 of the Constitution of India. In the said case, the Hon'ble Apex Court was dealing with the detention of a person who was detained under the then Preventive Detention Act, 1950 and the admitted position was that he was detained in Nagpur and the grounds of detention were supplied to him in English and the case of the State was that this was because that the language of the district (i.e. Nagpur) was English and moreover, the police officer had translated the grounds of detention in the mother tongue of the detenue. In paragraphs 8 and 9, the Constitutional Bench held as under:-13-
"(8) We do not agree with the High Court in its conclusion that in every case communication of the grounds of detention in English, so long as it continues to be the official language of the State, is enough compliance with the requirements of the Constitution. If the detained person is conversant with the English language, he will naturally be in a position to understand the gravamen of the charge against him & the facts and circumstances on which the order of detention is based. But to a person who is not so conversant with the English language, in order to satisfy the requirements of the Constitution, the detenue must be given the grounds in a language which he can understand, and in a script which he can read, if he is a literate person.
(9) The Constitution has guaranteed freedom of movement throughout the territory of India and has laid down detailed rules as to arrest and detention. It has also, by way of limitations upon the freedom of personal liberty, recognised the right of the State to legislate for preventive detention, subject to certain safeguards in favour of the detained person, as laid down in cls. (4) & (5) of Art. 22. One of those safeguards is that the detained person has the right to be communicated the grounds on which the order of detention has been made against him, in order that he may be able to make his representation against the order of detention. In our opinion, in the circumstances of this case it has not been shown that the appellant had the opportunity, which the law contemplates in his favour, of making an effective representation against his detention. On this ground alone we declare his detention illegal, and set aside the Order of the High Court and the Order of Detention passed against him."
20. This was again followed in Chaju Ram -Vs- State of Jammu & Kashmir, reported in AIR 1971 SC 263. In this case, the detenue (Chaju Ram) was detained under Jammu & Kashmir Preventive Detention Act, 1964 and the ground of detention was supplied to him in English, again a language which the detenue -14- did not understand. The Hon'ble Apex Court held in paragraph 9 as under:
"9. Of course Mr. Sachethey ingeniously suggests that this may be a case of erroneous typing necessitating the correction; but this correction comes at a significant spot after the detenu has sworn an affidavit that he was not explained the grounds of the detention in the language which he understood, and further the original document which is produced does not seem to bear authenticity because of the changes of ink. In these circumstances and regard being had to the fact that on the previous occasion in the affidavit there was no mention of having read over the grounds to him in the language he understood, we are constrained to hold that we should not go by the affidavit of the Under-Secretary, but in preference accept the affidavit to the detenu......."
21. Furnishing ground of arrest to the detenue in the language which the detenue understands is absolutely essential and non-supply of grounds in any other language has been held to be violative of clause 5 of the Article 22 of the Constitution of India and the Hon'ble Apex Court has been following this principle in Nainmal Pertap Mal Shah -Vs- Union of India & Ors. reported in AIR 1980 SC 2129; Kubic Darusz -Vs- Union of India & Ors., reported in (1990) 1 SCC 568 and Nandoli Mohamed Rafeeq -Vs- Union of India & Ors., reported in (2004) 12 SCC 218.
22. Assertion of the State authority in the counter affidavit in connection with the petitioner's involvement in Jehadi activity, has always remained very vague. Most of the grounds as given in the grounds of detention dated 22nd/26th of March, 2021 relate to the petitioner's activities which the authority calls cattle -15- smuggling or even possessing of 9mm pistol and certain cartridges of AK-47 rifle. This aspect even at its face value cannot be a case of maintenance of public order. This activity which has been made the precise ground of detention comes under the category of "law and order" situation, which could have been dealt with under the ordinary law, preventive detention was not required.
23. A Division Bench of this Court has dealt with this aspect in the case of Raju Patel -Vs- Union of India & Ors., reported in 2007 (3) GLT 173. The petitioner in this case was detained under the provision of National Security Act, 1980 as a large quantity of 'ganja' (more than four thousands kgs) was recovered from him as well as AK-47 magzines and other materials. The person was released by the Division Bench of this Court as there was no element of public order and therefore the detention order was held to be illegal and void.
24. We have also noticed an important factor in this case which is that the counter affidavit has not been filed by the authority which had passed the detention order, i.e. District Magistrate of Dhubri but the same has been filed by the Additional Deputy Commissioner. There is no explanation in the affidavit as to what prevented the District Magistrate from filing his own affidavit in the present case, since he was the authority on whose subjective satisfaction the petitioner was detained. This has been dealt with by a Division Bench of this Court in the case of Phukan Daimary @ Fungjarang vs. State of Assam & Ors., reported in 1998 (4) GLT 40 as in the said case, the -16- authority who has detained a person, has not explained his/her subjective satisfaction before this Court. An affidavit by any other person save and except the person who has passed the detention order is not explanation of subjective satisfaction.
25. Further, even if the overwhelming reasons for detaining the petitioner were that he was indulging in anti-national activities and was in contact with Jehadi groups, then such ground was liable to be disclosed to the petitioner in the grounds of detention, which has not been done. It is true that under Clause (6) of Article 22 of the Constitution of India, those facts which are against public interest, the authority is not bound to disclose them to the person who has been detained. However, there is a subtle difference between "facts" and "grounds". Clause (5) speaks about the grounds to be made available to the person who has been detained, Clause (6) protects the non-disclosure of facts. Therefore, at least in a broad category of the ground that he is a member of a Jehadi group should have been communicated to him. The other details, disclosure of which was not in public interest, could have been withheld. But this ground itself admittedly has not been communicated to the petitioner. Hence, he was not in a position to make an effective representation before the Advisory Board.
26. At this juncture, we must know that malafide part is evident from the fact that the admitted position is that the first detention order (dated 06.02.2021 executed on 05.03.2021) was not communicated to the petitioner nor grounds of detention were communicated. It was for this reason that the petitioner has -17- approached this Court by means of the present habeas corpus writ petition, on which on 22.03.2021, the State counsel was directed to get instructions.
27. In the counter affidavit, no satisfactory explanation has been given as to why the detaining authority did not communicate the grounds of detention except the only explanation given was that the order dated 06.02.2021 was passed in late hour of Saturday and since the next day was Sunday, it could not be done. Moreover, when the second detention order was passed on 22.03.2021, it has not been stated by the detaining authority as to why the second detention order has been passed, whether the grounds or the reasons for detaining the petitioner which existed earlier on 06.02.2021 are still alive. In the present case, it is absolutely clear that the detention orders have been passed without any application of mind and in absolutely arbitrary manner. Once an order of detention has been passed in a mechanical manner without any application of mind, such an order is illegal and liable to be set aside (Please see - Avtar Singh & Ors. -Vs- State of Jammu & Kashmir & Ors., reported in AIR 1985 SC 581).
28. Life and liberty of a person are precious fundamental rights. The safeguards provided under Article 21 and 22 of the Constitution of India are extremely important. The concerned authority has not applied its mind to the matter before passing the orders of preventive detention, and arbitrariness is writ large in this case. We therefore quash the order of detention dated 22.03.2021 and direct the District Magistrate, Dhubri that the -18- petitioner shall be released forthwith, unless he is wanted in some other case.
29. Having made this determination, we must record that on 22.03.2021, the District Magistrate knowing the fatal anomalies in his earlier detention order had passed an order of release of the petitioner but on the same day, i.e. on 22.03.2021, he had passed another order of detention. The affidavit, which has been filed before this Court later only states that since the earlier order (of 06.02.2021) of detention has been recalled and the petitioner has been released, there is no occasion of passing any interim order. What has not been stated before this Court was that on the same day, i.e. on 22.03.2021, another detention order was passed. This was disclosed to us later. We would therefore direct Sri Dhrubajyoti Das, Additional Deputy Commissioner, Dhubri to explain as to why this important fact was withheld. Let a detail affidavit be filed by the next date of listing.
30. List this again case on 11th May, 2021.
JUDGE CHIEF JUSTICE M. Sharma/Gunajit Comparing Assistant