Boijayanta Barua vs State of Assam and Others

Manisana, J.—The Petitioner Boijayanta Barua alias Raj Baruah, is detenu under the National Security Act, 1980 (for short the ''Act''), He was detained by the Government of Assam under the detention order dated 5.1.92. The Government of Assam thereafter referred the matter to the Advisory Board constituted by it u/s 9 of the Act.

The case of the Petitioner is that the Advisory Board has reported that there was to sufficient cause for the detention of the Petitioner and, therefore, the Government should revoke the detention order and be should be released forthwith.

u/s 14(4) of the Act, the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential. Therefore, we directed the learned Government Advocate to produce the records of the Advisory Board under sealed cover. The opinion of the Advisory Board is that there was no sufficient cause for the detention of the Petitioner.

In Akshoy Konai Vs. State of West Bengal, Supreme Court has held:

The Advisory opinion of the Board is merely intended to assist the appropriate Government in determining the questions of confirming the detention order and continuing the detention. It is binding on the appropriate Government only when it favours the detenu and not when it goes against him. Such advisory opinion can scarcely be an appropriate subject-matter of review or scrutiny by the judicial courts or tribunals.

In view of the decision of the Supreme Court above, the Advisory Board is not a judicial body and the Board is only charged with the responsibilities of advising the appropriate Government However, if the Board advises in favour of the detenu, ie, that there was no sufficient cause for detention, it shall be binding upon the Government u/s 12(2) of the Act and the Government has to release the detenu forthwith after revoking the detention order. For the reasons stated above, the Government of Assam was bound by the opinion of the Advisory Board submitted to the effect that there was no sufficient cause for the detention of the Petitioner, and as such, the Government of Assam ought to have revoked the detention order and released Boijayanta Baruah alias Raj Baruah forthwith, But the Government of Assam falied to do so.

In the result, the petition is allowed, and the detenu Boijayanta Barua alias Raj Baruah shall be released forthwith, if he is not required in connection with any case.