Akan Swargiary @ Young Sangma @ Yankl - Sharlee vs Union of India (UOI) and Others

D. Biswas, J.—By this petition under Article 226 of the Constitution of India the detenu Aakan Swargiary @ Young Sangma @ Yanki Sharlee seeks to challenge the order of detention passed by the District Magistrate, Goalpara on 18.2.2001 under Sub-section (2) of Section 3 of the National Security Act, 1980. The order of detention reads as follows :

"Order of detention under

NSA 1980

Whereas the unsersigned is satisfied on the basis of Dossier prepared by the Superintendent of Police, Goalpara vide his letter No. GLP/DSB/V(D)/Dossier/2002/3713 dated 15-2-2002 in respect of the person known as Aakan Swargiary @ Young Sangma, S/o Siva Swargiary, vill. Soukuchi Lokhara, P.S. Basistha, Dist. Kamrip (Assam) with a view to prevent him from acting in a manner prejudicial to the security of the State and to the maintenance of public order, it is necessary to detain him under the NSA, 1980.

Now, therefore, in exercise of the powers conferred by Sub-sections (2) and (3) of Section 3 of the NSA the undersigned hereby directs that the said Aakan Swargiary @ Young Sangma, S/o Siva Swargiary be detained in the District Jail, Goalpara until further orders.

The person against whom this Order or preventive detention is made for compelling reasons is already in judicial custody but is likely to be released on bail whereupon it is highly probable that he will indulge in activities prejudicial to the maintenance of public order and the security of the State after his release.

Given under my hand and seal this 18th day of February, 2002.

(KN Buragohain)

District Magistrate

Goalpara

Memo No. GC-4/2002/8 Dated Goalpara the th Feb/2002 Copy to :-

(1)............................

(2)............................

(3)............................

(4)............................

(5)............................

(6)............................

(7) The Superintendent of District Jail, Goalpara for causing service of the copies of the grounds of detention (in English & Assamese) to the detenu properly on obtaining signature in each page and keeping the detenu on Jail custody under NSA. (3 copies).

The order of detention has been challenged primarily on the ground that the documents referred to in the detention order as well as in the grounds furnished were not supplied to the detenu and, thereby, he was prevented from making effective representation. It is further pleaded that there was delay in reporting the matter by the State Govt. as well as the detaining authority to the next higher authority in violation of the provisions of Sub-section (4) and Sub-section (5) of Section 3 of the Act, beside the vice of non-application of mind.

We have heard Mr. N. Zaman, learned counsel for the petitioner and Mrs. A. Hazarika, learned State counsel.

The State as well as the Central Govt. submitted their return in which they denied the contentions raised in the petition.

Mr. Zaman, learned counsel during the course of argument submitted that the detention order is liable to be set aside alone on the ground that there was no supply of the copies of the documents referred to in the detention order as well as the grounds furnished. Despite that the detenu submitted a representation on 2.3.2002 wherein it has been stated that the grounds of detention were served afterwards and the documents relied upon or referred therein were not served on him.

In para 4 of the affidavit filed by the State, it is submitted that the order of detention along with the grounds of detention and other documents were supplied to the detenu within time and the same was received by him on 18.2.2002 by affixing his signature.

Annexure-1 is the order of detention which shows that the detaining authority had drawn his satisfaction on the basis of dossier prepared by the Superintendent of Police, Goalpara which was forwarded to him vide letter dated 15.2.2002. This order of detention was admittedly served on the detenu who was already in custody in connection with other cases on 18.2.2002. Signature of the detenu is there on the grounds furnished (Annexure-2) which shows that the detenu received the detention order and the grounds of detention on 18.2.2002. The detention order (Annexure-1) shows that the order along with the grounds were served vide Memo No. GC-4/2002/8 Dated 18.2.2002. The copy marked to the detenu shows that the grounds of detention (in English and Assamese) were sent to the Superintendent of District Jail, Goalpara for service on the detenu. The Memo, however, does not speak of any documents having been forwarded along with the detention order and the grounds of detention.

In view of the affidavit of the State Govt. as stated above, specific question was aksed to Mrs. Hazarika, learned State counsel to show from the office file that the documents were in fact furnished as pleaded. Mrs. Hazarika, however, could not show anything from the office file to enable us even to drawn a presumption that the documents relied upon by the detaining authority were served on the detenu. We have also examined the office file in abortive search of proof of service. It is clear that the detaining authority relying upon the dossier sent to him by the Superintendent of Police passed the detention order, but the documents mentioned in the dossier and/ or referred to in the grounds of detention were not supplied to the detenu.

In Khudiram Das Vs. The State of West Bengal and Others, the Supreme Court held that ''grounds'' ''means all the basis facts and materials'' which have been taken into consideration by the detaining authority in making the order of detention and on which, therefore, the order of detention is based. Nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention would suffice and meet the requirement of the first safeguard in Article 22(5) of the Constitution.

In the case M. Ahamedkutty Vs. Union of India (UOI) and Another, in paras 19 and 20, the Supreme Court held as follows :

"19. The next submission is that of non-supply of the bail application and the bail order. This court as was observed in Mangalbhai Motiram Patel v. State of Maharashtra has ''forged'' certain procedural safeguards for citizens under preventive detention. The constitutional imperatives in Article 22(5) are twofold : (1) the detaining authority, must, as soon as may be, i.e., as soon as practicable, after the detention communicated to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention. The right is to make an effective representation and when some documents are referred to or relied on the grounds of detention would not be completed. The detenu has, therefore, the right to be furnished with the grounds of detention along with the documents so referred to or relief on. If there is failure or even delay in furnishing those documents it would amount to denial of the right to make an effective representation. This has been settled by a long line of decisions : Ramachandra A. Kamat v. Union of India, Frances Coralie Mullin v. W. C. Khambra, Icchu Devi Choraria v. Union of India, Pritam Nath Hoon v. Union of India, Tushar Thakker v. Union of India, Lallubhai Jogibhai Patel v. Union of India, Kirit Kumar Chama''n Lal Kundaliya v. Union of India and Ano Carolina D''Souza v. Union of India.

It is immaterial whether the detenu already knew about their contents or not. In Mehrunissa v. State of Maharashtra it was held that the fact that the detenu was aware of the contents of the documents not furnished was immaterial and non-furnishing of the copy of the seizure list was held to be fatal. To appreciate this point one has to bear in mind that the detenu is in jail and has to access to his own '' documents. In Mohd. Zakir v. Delhi Administration it was reiterated that it being a constitutional imperative for the detaining authority to give the documents relied and referred to in the order of detention pari passu the grounds of detention, those should be furnished at the earliest so that the detenu could make an effective representation immediately instead of waiting for the documents to be suppplied with. The question of demanding the documents was wholly irrelevant and the infirmity in that regard was violative of constitutional safeguards enshrined in Article 22(5).".

Sine the requirement of furnishing the documents relied upon has not been fulfilled in the instant case, as per mandate of provisions of Article 22(5), the detention order has to be quashed.

In the result, the petition is allowed. The detention order dated 18.2.2001 passed by the District Magistrate, Goalpara is hereby quashed. The detenu Aakan Swargiary @ Young Sangma @ Yanki Sharlee is directed to be released forthwith.