Gauhati High Court
Laltluanga D. Shira vs The State Of Meghalaya And Ors. on 8 January, 2004
Equivalent citations: 2004CRILJ767
Author: D. Biswas
Bench: D. Biswas, I.A. Ansari
JUDGMENT D. Biswas, J.
1. The Habeas Corpus petition has been initiated by the father of the detenu namely Shri Ashabel D. Shiva alias Janggo challenging his detention order under Sub-section (1) of Section 3 of the Meghalaya Preventive Detention Act, 1995 passed by the District Magistrate, West Garo Hills, Tura.
2. The detention order reads as follows :
"WHEREAS I am satisfied that in respect of the person known as Shri Ashabel D. Shira alias Janggo s/o Sahi Laltluanga D. Shira of Bonepa Atilla, P.O. Chandmary, P.S. Tura who is hardcore banned ANVC cadre and has dreadful criminal records of murder, kidnapping, extortion, working consistently in fulfilling the purpose of the banned organization in seeing that the ANVC succeeds in anti-national goals and ends and who is in judicial custody and involved in various cases registered with Police Stations viz. (One) Tura P.S. Case No. 152(12)2000 Under Section 448/302/34, IPC read with Section 10/13. Unlawful Activities (Prevention) Act, 1967 (Two) Tura P. S. Case 27(3)2001 Under Section 365, IPC read with 10/13 U.L.A. (P) Act, 1967 (Three) Tura P. S. Case No. 88(8)2001 Under Section 120(A)/121/123/341/307/326/427, IPC (Four) Tura P. S. Case No. 93(9)01 Under Section 302, IPC (Five) Tura P. S. Case No. 95(9)2001 Under Section 302, IPC (Six) Tura P. S. Case No. 32(5)2002 Under Section 447/302/34, IPC (Seven) Tura P. S. Case No. 26(4)02 Under Section 120(B)/121/121(A)/353/307, IPC read with Section 25(1)(1-A) Arms Act. 5 E. S. Act and 10/13 ULA (P.) Act, (Eight) Tura P. S. Case No. 98(10)02 Under Section 365/34, IPC) (Nine) Tura P, S. Case No, 23(2)03 Under Section 365/307/34, IPC (Ten) Tura P. S. Case No. 105(11)02 Under Section 365, IPC (Eleven) Laban P. S. Case No. 16(4) 2003 Under Section 121/121(a), IPC read with Section 25(1-A)(1-B) Arms Act and Section 13 of U. L. A.(p) Act and is likely to be released on bail whereupon it is highly probable that he will continue to act in a manner prejudicial to security of the State and maintenance of public order and dangerous to the life and property of citizens and it is necessary that he be detained and being so satisfied.
NOW THEREFORE in exercise of powers conferred upon me under Section 3(1) of the Meghalaya Preventive Detention Act, 1995. I Shri S. Jagannathan, IAS, District Magistrate, West Garo Bills, Tura do hereby direct that the said Shri Ashabel D. Shira alias Janggo be detained with immediate effect and until further orders at the District Jail. Shillong.
Given under my hand and seal this 12th day of June, 2003.
Sd/: S. Jagannathan District Magistrate, West Garo Hills, Tura"
3. We have heard Mr. D. Das, learned counsel for the petitioner and also Mrs. B. Dutta, learned counsel for the State of Meghalaya. Mr. Das, learned counsel raised two grounds in support of the writ petition which appear to have been taken care of initially by a Division Bench of this Court by the order dated 5-11 -2003. The Court by the aforesaid order directed the respondent State to file additional affidavit to explain the delay in transmitting the representation addressed by the detenu to the Chief Secretary and in transmitting the parawise comment prepared by the District Magistrate. Tura to the Political Department. It may be mentioned here that the representation filed on 24-6-2003 was received by the Government on 10-7-2003 while the parawise comment prepared on 17-7-2003 by the District Magistrate was received by the Political Department on 18-8-2003. In response, the Secretary to the Government of Meghalaya, Political Department, the District Magistrate, Tura and the concerned Jail Superintendent filed three affidavits. Before the aforesaid three affidavits are dealt with, it is considered imperative to capitulate hereinbelow the grounds in details on which the writ petition has been founded.
4. The order of detention was passed by the District Magistrate, Tura on 12-6-2003. The detenu already in custody in connection with a number of cases mentioned in the detention order, stood arrested under the Preventive Detention Act of 1995 with effect from 18-6-2003. The grounds of arrest (Annexure-II) were also furnished to him. The order of detention was approved by the State Government by an order passed 23-6-2003 (Annexure-III). The detenu submitted this representation to the Chief Secretary to the Government of Meghalaya through the Superintendent of Shillong District Jail on 24-6-2003. The copy of the representation marked as Annexure-IV contain the acknowledgement in receipt thereof by the District Jail, Shillong on 24-6-2003. On the same day, the aforesaid representation dated 24-6-2003 was forwarded by the Jail officials to the Inspector General of Prisons, Shillong and the same was received by the Inspector General of Shillong on 2-7-2003. It took about eight days for the Inspector General to receive the representation. He in turn took six days more to forward the same to the State Government. The State Government received the representation on 10-7-2003. There was Indeed a delay of sixteen days in transmitting the representation to the State Government. The State Government asked for the parawise comment from the District Magistrate, Tura on 11-7-2003 which was received by the Political Department eventually on 18-8-2003. The District Magistrate took about six days time to prepare and forward the parawise comment to the State Government. The State Government received the same after more than thirty days. The State Government considered the representation along with the report of the Advisory Board and rejected the same by the order dated 18-8-2003. The delay that occurred in transmitting the repsentation and the parawise comment to the State Government are apparently inordinate and it was in this context, this Court by the order dated 5-11-2003 directed the respondents to file additional affidavit explaining the circumstances which led to the delay in transmission and disposal of the representation.
5. In paragraph 6 of the affidavit-in-opposition filed by the Secretary to the Government of Meghalaya, Political Department, the delay as narrated above has been admitted. In his additional affidavit, in para 5, the Secretary submitted that the Dsitrict Magistrate, Tura prepared the parawise comment and sent the same by post to the Government by a communication dated 17-7-2003 which was received by the Department on 18-8-2003. The District Magistrate in para 7 of his additional affidavit submitted that the State Government sought for parawise comment by the letter dated 11-7-2003 which was received by him on 14-7-2003. The parawise comment was prepared and forwarded by the letter dated 17-7-2003. In para 11, the reason for delay is explained in the following manner :
"11. That I humbly submitted that I have been posted in a District where there has been a regular law and order situation because of extremist activities both from within the State as well as from Assam and in day today activities, I was not in position to personally supervise each and every action of my subordinate in the District and if at all there was any lapses, that must have been because of my inadvertence in the circumstances to specifically direct my Office Assistant to send the said paragraphwise comments either by Registered post. Speed Post and a Special Messenger."
6. The explanation given by the District Magistrate as narrated above does not satisfy the Court as to its reasonableness. In a matter of detention under the preventive law, pre-occupation with law and order problem and inadvertence on the part of the authority cannot be considered as grounds reasonable to condone the delay. The Superitendent of Jail in para 3 of his additional affidavit filed to justify the delay in transmitting the representation from his office at Shillong to the Inspector General, Prisons, Shillong. According to him. the representation was received by him on 24-6-2003 and on the next date i.e. 25-6-2003, he forwarded the same to the Inspector General, but for the lapses on the part of his office staff the said representation could not be handed over to the Inspector General before 2-7-2003.
7. It would, therefore, appear that the representation dated 24-6-2003 received by the Government on 10-7-2003 i.e., after sixteen days and the State Government was waiting for the parawise comment which was received on 18-8-2003 i.e. after thirdy seven days. The delay occasioned by the lapses of the respondent authority is undoubtedly inordinate. In this context, we may refer to the decisions of this Court as as well as the Hon'ble Supreme Court relied upon by Mr. Das.
8. In Anamul Haque v. State of Nagaland, (2003) 2 Gauhati LT 27, a Division Bench of this Court quashed the order of detention because of fifteen days unexplained delay in disposing of the representation submitted by the detenu. The relevant paragraph 5 is quoted below :--
"5. In the present case the representation was made on 6-5-2002 and it was decided on 20-5-2002 and there is no reason coming forward from the State respondent nor any record has been produced before us to show as to why the representation was not decided expeditiously as soon as it is received by the authority concerned. Under the aforesaid circumstances we hold that further detention of the petitioner Anamul Haque is illegal and consequence thereof we quash the detention orders passed on 18-4-2002 (Annexure-4) and 28-5-2002 (Annexure-8) and direct that the petitioner shall be set at liberty immediately, if his detention is not required in any other pending case(s)."
9. In Jubenoor Hussain v. Union of India, (2003) 1 Gauhati LT 13 : (2003 Cri LJ 108) a Division Bench of this Court, with regard to delay in transmission of the representation by the Jail Superintendent to the Home Department held as follows :
"In the present case although the detenu submitted his representation on 15-5-2002 to the Jail Superintendent it was received by the Home Department on 27-5-2002 and up explanation was furnished by the Jail Superintendent as to why the delay has been caused in sending the representation to the State Government. The State Government also has not explained the reason for the delay In their affidavit. There may be an explanation on the part of the Jail Superintendent or the State Government as to why the representation has not been forwarded to the appropriate authority immediately after receipt of the same on 15-5-2002. The explanation has neither come forward from the State Government not from the record produced before us. We need not enter into other question as to the respondents have failed to explain the delay caused in disposal of the representation of the petitioner-detenu."
10. The Hon'ble Supreme Court in Rajindra v. Commissioner of Police, Nagpur Division, 1994 Supp (2) SCC 716 dealt with the question relating to delay in dealing with the representation submitted by the detenu booked under the National Security Act, 1980. The Supreme Court held that once a representation is made, the detenu is entitled to the representation being dealt with expeditiously. If there is some ex facie delay, the State Is under an obligation to explain that delay. The Supreme Court further held that the Courts need not Insist for explanation for each day's delay if the State discharges its obligation by filing counter that it had acted promptly in dealing with the representation.
11. The ratio available in the aforesaid decisions clearly indicate that the burden is on the State to show that it had acted promptly and diligently in dealing with the representation submitted by a detenu and that the delay occurred due to circumstances beyond the control of the State authority. The factual matrix of the case of hand as narrated in details hereinbefore clearly indicates total indifference on the part of the respondent authority in dealing with the representation submitted on 24-6-2003 from the very initial stage. The representation sent by the Superintendent of Shilling District Jail on 26-6-2003 was received by the Inspector General of Prisons only on 2-7-2003. The reasons given by the Jail Superintendent in his additional affidavit do not suggest that the delay was due to reasons beyond his control. Besides, the Inspector General also set over the matter for five days and on 8-7-2003 forwarded the same to the State Government. The State authority received the representation on 10-7-2003 and was waiting for the parawise comment from the Dsitrict Magistrate till 18-8-2003. The District Magistrate has given explanations for the delay in his additional affidavit which as stated above, are not at all reasonable. The long delay in dealing with the representation suggests total indifference on the part of the various authorities of the State. In our considered opinion, the explanation put forward by the respondent authority is not reasonable and, hence, further detention of he detenu cannot be justified.
12. The order of detention passed under Sub-section (1) of Section 3 of the Act of 1995 shows that the detenu was, at the relevant time, in jail in connection with a number of cases, Mr. Das also relied upon a decision in Monisur Islam v. Union of India, (2002) 3 Gauhati LT 249. Since the detenu was in custody on the date of his arrest under the Act of 1995, the decision in the aforesaid case does not appear to have any relevance as in the said case the Court dealt with the case of a detenu who was booked under the preventive law for being accused in certain cases in which he was already released on bail. However, for reasons above, we are of the opinion that further detention of the detenu Shri Ashahel D. Shira alias Janggo is not permissible. Hence, we quash the detention order passed by the district Magistrate, Tura on 12-6-2003 including all other consequential orders. We direct that the detenu be set at liberty forthwith.