Gauhati High Court
Keshab Mahanta vs Union Of India (Uoi) And Ors. on 31 July, 2003
Equivalent citations: (2003)3GLR494
Bench: P.P. Naolekar, Ranjan Gogoi
JUDGMENT
1. This Habeas Corpus petition has been filed by the detenue challenging an order of detention dated 8th August, 2002 passed by the District Magistrate, Sibsagar under Section 3(3) of the National Security Act, 1980.
2. The facts in brief are that the detenue Sri Keshab Mahanta alias Niranjan Barthakur alias Arpan Saikia was arrested by the police and while the detenue was lodged in jail, the order of detention dated 8th August, 2002 issued by the District Magistrate, Sibsagar along with the grounds of detention were served on the detenue. The grounds of detention as set out by the detaining authority are as follows :-
"(1) You Sri Keshab Mahanta @Niranjan Borthakur @ Arpan Saikia S/o Sri Narendra Nath Mahanta of Vill - Bakshu Mout Gaon under Sivasagar P.S. of Sivasagar District at the instance of Ramu Mech joined in banned ULFA organization in Sept'91 knowing fully well about the aims & objectives of ULFA and their armed struggle for secession of Assam from India.
(2) You had undergone training with other new cadres in Arunachal Pradesh with help of Lalchit Konwar (since dead) of Bez Gaon under direction of Ramu Mech. You had taken training for 22 (twenty two) days which included physical & motivation training.
(3) You had worked as office assistant in Sivasagar district under ULFA till' 92 and during 1993 you were elected to the rank of publicity Secy. Of the Sivasagar dist. Unit of ULFA.
(4) You had proceeded to Myanmar for training as per direction of Ramu Mech & had undergone arms training for a period of 45 days during Mar'95 and in 1995 you were given the rank of Asstt. Controller of Rangpur Anchalik Parishad by the General Council of ULFA which was held in G.H.Q. Bhutan.
(5) You had come down from Arunachal training camp run by ULFA to Sivasagar & stayed with purnanda Chetia & Om Ray, organization Secretary of ULFA. And you were hiding in different places under Sivasagar district from 1996 to 2002.
(6) You had come down to Sivasagar district in April' 96 for activisation & mobilization of ULFA and recruited as many as 80 Nos. of new cadres and in the month of Nov'98 as per direction of Ramu Mech you proceeded to ULFA camp at Nagaland with Jy oti Chaliha & Pradip Dhekial Plhukan to discuss the situation of Rangpour Anchalik Parishad in the event of intensive operation/dist admn. against ULFA organization.
(7) You along with Simanta Deori of Bakata (Enigma Group) demanded an amount of Rs. 10 (ten) lakhs from Kailash Agarwalla of Sivasagar town & when he refused to pay such huge amount you finalised it to Rs. 4 (four) lakh out which Sri Agarwalla paid Rs. 2 (two) lakh. As the remaining amount was not paid to ULFA by Agarwalla you directed Sri Rupjyoti Changmai/Promod Chetia/Anku Shyam and Paresh Gogoi to kidnap Sri Agarwalla and he was later killed. A case Under Section 365 IPC is registered under Sivasagar P.S. Case No. being 306/98.
(8) You had handed over 10 demand letters signed by you to (1) Sri Ashim Hazarika @ Nomal Rajkhowa (now SULFA) (2) Sada Siva Gogoi @ Hareswar Gogoi of Sonari P.S. (3) Bijoy Neog under Mathurapur P.S. and the demand letters were issued to :-
(1) Manager Manjushree T.E. (2) Manager Tow kak T.E. (3) Proprietor, Lahoty Oil Pump. (4) Manager Jabaka T.E. A case is registered under Sonari P.S. vide Sopnari P.S. C/No. 28/02 U/ 5 385/34 UA (P) Act in this regard. You were working with ULFA with a common interest and consider India 6 Indian the enemy of ULFA." 3. We have heard Mr. B. K. Mahajan, learned counsel for the petitioner and Mrs. A Hazarika, learned State counsel.
4. Though a number of grounds have been pleaded in support of the challenge made as against the order of detention, at the time of hearing of the case, the learned counsel has confined his arguments to one solitary issue. Learned counsel contends that the materials on record make it abundantly clear that the representation dated 20.12.2002 filed by the defence was received by the competent authority of the State government on 24.12,2002 and orders were passed by the said authority, on 20.1.2003 requiring the representation filed. It is argued that no explanation whatsoever has been offered by the State respondents for the inordinate delay in disposal of the representation submitted by the detenue. Relying on a judgment of the Apex Court in the case of Aslam Ahmed Zahire Ahmed Shaik v. Union of India and Ors., reported in (1989) 3 SCC 277 as well as a judgment of this Court in the case of Jubenor Hussain v. Union of India and Ors., reported in (2003) 1 GLR 596, learned counsel has argued that the unexplained and inordinate delay in disposal of the detenue's representation has infringed the Constitutional guarantee enshrined under Article 22(5) of the Constitution and that the detention order dated 8th August, 2002 is liable to be set aside on the aforesaid ground alone.
5. We have perused the affidavit filed by the Joint Secretary to the Govt of Assam, Political (A) Department, Dispur particularly, the averments made in Para - 5 of the said affidavit. In the said affidavit, it has been averred that the representation dated 20.12.2002 was received by the State Government on 24th December, 2002 whereafter, it was sent to the Joint Secretary to the Govt. of India, Ministry of HomeAffairs, New Delhi on 24th December, 2002 itself. As to what has happened to the representation submitted by the detenue and forwarded to the Central Government is not known inasmuch as no affidavit on behalf of the Union of India has been filed. In so far as the stand of the State Government is concerned, it has been further averred in the affidavit filed by the Joint Secretary to the Govt of Assam, Political (A) Department that the representation of the detenue was rejected by the State Government on 20.1.2003. We have gone through the entire of the affidavit filed by the Joint Secretary to the Govt. of Assam, Political (A) Department to ascertain the reasons, if any, for the time taken in disposing of the said representation. We find that no ground has been assigned in the affidavit filed and there is no explanation whatsoever for the period of nearly one month which has been taken for disposal of the representation filed by the detenue.
6. In the above facts it will hardly be necessary to burden this judgment by a detailed reference to the numerous judicial pronouncements on the issue including the judgments referred to by the learned counsel for the detenue. In the absence of any explanation, whatsoever forthcoming on the part of the State Government to explain as to why a period of nearly one month was taken to dispose of the representation of the detenue, we are left with no option but to conclude that the representation of the detenue has not been dealt with, with reasonable expedition and necessary concern and there has been an unexplained delay in disposing of the same thereby infringing the detenue's rights under Article 22(2) of the Constitution.
7. For the aforesaid reasons, we quash the detention order dated 8th August, 2002 passed by the District Magistrate, Sibsagar and direct that the petitioner shall be set at liberty immediately, if his detention is not required in any other case.
8. The writ petition stands accordingly, allowed.