Lainchhunga and Others vs Union of India (UOI) and Others

Manisana, J.—Civil Rule NOS. 158(HC), 159(HC) and 160(HC) of 1990 can be disposed of by a common judgment, Lianchhunga, Lalzawna and Liantluanga are respectively the Petitioners in Civil Rule Nos. 158(HC), 159(HC) and 160(HC) of 1990, The Petitioner in all these cases have challenged the orders of detention dated 27.9.89.

Facts,--The Petitioners were detained in the Central Jail Aizwal under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, ''the Act'' for short, by an order dated 14.6.89. Subsequently, the order of detention was revoked by the Government of Mizoram under an order dated 27.9.89. Immediately after the order of detection was revoked, the Petitioners were detained under an order dated 27.9.89 under the said Act. The Petitioners have questioned the second order of detention dated 27.9.89. The common feature in all these cases is that the grounds of detention are exactly the same.

The order dated 27.9.89 revoking the earlier order of detention and record produce before us do not disclose why the order of detention were revoked. What is stated in the Counter-Affidavit is that the order of detention was revoked for same procedural omission. What omissions were, we are not informed. The order of revocation was made in exercise of power u/s 2(2) of the Act Therefore. The order of revocation is a statutory order made by a statutory functionary. In Commissioner of Police, Bombay Vs. Gordhandas Bhanji, the Supreme Court has held that orders made in exercise of statutory authority cannot be construed in the light of the explanations subsequently given by the officer making of the order of what he meant, or of what was in his mind, or what he intended to do so. In view of the above decision of the Supreme Court, we are of the view that the order of revocation cannot be explained subsequently in the shape of affidavit or otherwise.

A reading of grounds of detention does not indicate that the detaining authority was aware that the detenues were already in detention for some months nor does it indicate whether the detaining authority considered the question whether the detention of the detenues was necessary in the circumstances. We are of the view that, in absence of any indication from the records as to why the earlier order of detention has revoked and the failure of the detaining authority to consider the question whether detention of detenues was necessary in the Circumstances, we can only conclude that the orders of detention were made in a mechanical fashion without application of mind. If any authority is required, we may refer to the decision of the Supreme Court in Avtar Singh and Others Vs. State of Jammu and Kashmir and Others, In the circumstance we, feel that the detention of the Petitioners are unconstitutional. Accordingly the Respondents are directed to release the Petitioners forthwith unless they are wanted in some other cases.

With the above observation and direction, the petitions are allowed. No costs.