High Court Of Tripura vs The State Of Tripura
2023 Latest Caselaw 183 Tri

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                HIGH COURT OF TRIPURA
                          AGARTALA
                  W.P.(C)(HC) 12/2022
Parimal Debbarma @ Phankrak, son of late Umesh Debbarma,
resident of Khangraibari, P.S. Khowai, District- Khowai
                                                   ----Detenu-Petitioner
             Versus
1.    The State of Tripura, represented by the Secretary, Department of
Home, Government of Tripura,New Secretariat Building, P.O. Kunjaban
P.S. New Capital Complex, Dist- West Tripura
2.    The District Magistrate & Collector, North Tripura, Dharmanagar
3.    The Union of India, represented by the Secretary,
Department of Home, Government of India, Jai Singh Marg, Connaught
Palace, New Delhi-110001
                                                            ----Respondent
For Petitioner(s)               :     Mr. PK Biswas, Sr. Advocate
                                      Mr. P. Majumder, Advocate
For Respondent(s)               :     Mr. Ratan Datta, P.P.
                                      Mr. B. Majumder, CGC
Date of hearing                 :     01.02.2023
Date of delivery of
Judgment & Order                :      23.02.2023
Whether fit for reporting       :      Yes
           HON'BLE THE CHIEF JUSTICE (ACTING)
           HON'BLE MR. JUSTICE ARINDAM LODH
                             JUDGMENT

(Amarnath Goud, ACJ) Heard Mr. PK Biswas, learned senior counsel assisted by Mr. P.

Majumder, learned counsel appearing for the detenu-petitioner as well as

Mr. Ratan Datta, learned PP appearing on behalf of the respondent-State and

Mr. B. Majumder, learned CGC appearing for respondent-Union.

2. Petitioner, Parimal Debbarma @ Phankrak has filed this habeas

corpus writ petition assailing the detention order passed on 23.03.2022 under

National Security Act by the District Magistrate & Collector, North Tripura, Page 2

Dharmanagar, and requested to issue direction for setting aside the

impugned detention order.

3. The facts of the case are that, regarding several criminal cases lodged

against the petitioner and apprehending disturbance in public order,

communal harmony and development work, the respondent no. 2, herein in

exercise of powers conferred under Section 3(3) of the National Security

Act, 1980, issued an order of detention dated 23.03.2022 against the

petitioner. It is the further case of the petitioner that though the detention

order was served upon the him but, the copies of the FIRs, charge sheets

were not furnished to the petitioner for which the petitioner was deprived of

submitting effective representation. The petitioner earlier was detained in

jail custody in exercise of power conferred under Section 3(3) of the said

Act, 1980 vide order dated 27.07.2021 on the same ground as mentioned in

the order dated 23.03.2022. Pursuant to the order dated 27.07.2021, the

petitioner is detained in custody and against the said order of detention dated

27.07.2021, the petitioner submitted representation, and thereafter, the said

order of detention was revoked, and the grounds as mentioned in the order of

detention dated 27.07.2021 are also same and similar grounds as taken the

order of detention dated 23.03.2022. It is the further case of the petitioner

that though the order of detention dated 23.03.2022 was served upon him,

but, the documents which form the basis of the ground of detention were not

supplied to him due to which the petitioner was deprived of making any Page 3

effective reply against the said order of detention. Subsequently, on

26.03.2022 the petitioner submitted his representation and on receipt of the

same, the petitioner was served with the copy of detention order dated

23.03.2022 alongwith the copies of FIRs issued by the Deputy

Superintendent of Police, North Tripura, Dharmanagar. It is also the case of

the petitioner that all the cases mentioned in the order of detention are

punishable under Indian Penal code which can be dealt by the courts having

jurisdiction, but, the petitioner has been illegally detained in custody.

4. During argument Mr. PK Biswas, learned senior counsel addressed us

on the point of non-consideration of detenu's representation by the

respondents and also violation of the mandatory provisions of National

Security Act, 1980 [for short, the Act, 1980]. Mr. Biswas, learned senior

counsel has also argued that though the petitioner had criminal antecedents

but he had already been released on bail by various courts, and no

application for cancellation of bail has been filed by the respondents.

Learned senior counsel has also argued that as per section 8 of the Act,

1980, the order of detention ought to have been served upon the detenu

within 5 days from the date of passing of the order but, the order of

detention alongwith copies of FIRs and charge sheets was served upon the

detenu after expiry of 5 days without any reasonable explanation, and the

same vitiates the order of detention. Learned senior counsel has also

submitted that in the order of detention dated 23.03.2022, the Superintendent Page 4

of Police, North Tripura has mentioned that the copies of FIRs and charge

sheet which form the basis of grounds for detention has been served to the

detenu but, in fact the detenu has not been served with the same, which

according to learned senior counsel, is violation of mandatory provisions of

the said Act, 1980. It has also been submitted by learned senior counsel that

the detenu has submitted his representation from Kendriya Sansodhanagar

pointing out the infirmities in the detention order and that he has been

deprived of making effective representation before the detaining authority

and also before the Advisory Board. Finally, learned senior counsel has

submitted that Article 22(5) of the Constitution of India guarantees the right

to the detenu to make effective representation questioning the correctness of

the detention order because as per Article 22(5) "when any person is

detained in pursuance of an order made under any law providing for

preventive detention, the authority making the order shall, as soon as may

be, communicate to such person the grounds on which the order has been

made and shall afford him the earliest opportunity of making a

representation against the order". In support of his submission, learned

senior counsel has referred to some decisions rendered in WP(C)(HC)12 of

2019 [Sri Bidhan Roy vs. The State of Tripura and ors]; Criminal Appeal

no. 561 of 2022 [Mallada K Sri Ram vs. The State of Telangana and ors];

Criminal Appeal no. 1301 of 2021 [ Sarabjeet Singh Mokha vs. The Page 5

District Magistrate, Jabalpur & ors] and ; Criminal Appeal no. 1708 of

2022 [Sushanta Kumar Banik vs. State of Tripura & ors].

5. Controverting the submission of learned senior counsel, Mr. Ratan

Datta, learned PP has submitted that the grounds for detention like copies of

FIRs, charge sheets was served upon the detenu on 03.04.2022 and, as such,

there is no unreasonable delay in supplying the copy of the detention order

and none of the provisions of the Act, 1980 has been violated.

6. The main controversy that arose in this petition is as to whether the

detention order dated 23.03.2022 has been served upon the detenu following

the mandatory provisions of Section 8 of the National Security Act, 1980.

We have perused the record as well as the detention order passed by the

respondent no. 2.

7. In the detention order dated 23.03.2022 it has been stated that the

documents which form the basis of the ground of detention are enclosed

with the order but, no such documents were supplied to the detenu.

Thereafter, on the basis of a letter dated 26.03.2022 submitted by the

detenue, the copies of the documents were served upon the petitioner on

31.03.2022, but no plausible reason has been explained by the authority for

the inordinate delay. Thus, the detenue has been seriously prejudiced of

making effective representation before the authority concerned since he was

not been communicated by the authority with any document which form the

basis of detention and the same tentamounts to violation of clause (5) of Page 6

Article 22 of the Constitution of India. Clause (5) of Article 22 of the

Constitution of India reads as follows:

"(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order"

8. It is also evident from the record that the order of detention alongwith

the relevant copies of FIRs and charge sheets which form the grounds for

detention was not supplied to the detenu within the prescribed limit of the

said Act, 1980 due to which the detenu was deprived of making early and

effective representation. Section 8 of the National Security Act, 1980 reads

as under:

"8. Grounds of order of detention to be disclosed to persons affected by the order.--(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than 1 [fifteen days] from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose."

9. The detenu was earlier detained in custody under Section 3(3) of the

said Act, 1980 by order dated 27.07.2021 on the grounds similar to the

grounds taken in the order of detention dated 23.03.2022. While we do agree

that the facts and circumstances which have led to the recommendation by

the sponsoring authority for preventing detention of petitioners remains the

same on which satisfaction of the District Magistrate is to be based, but from

the phraseology of the order and reference of material relied upon by the Page 7

District Magistrate in the order of detention the application of mind on the

part of the District Magistrate must be reflected or else the satisfaction itself

of the detaining authority would be vitiated. Page by page we are shown that

the grounds of detention contained in the order of the District Magistrate

dated 23.03.2022 is virtual copy of the recital contained in the

recommendation of the sponsoring authority dated 27.07.2021. Language as

well as the facts remained unaltered and clearly suggest lack of independent

application of mind on the part of the District Magistrate. The detenu

submitted representation, and thereafter, the said order of detention dated

27.07.2021 was revoked by the Government vide order dated 20.08.2021 on

the ground that the detention order dated 27.07.2021 was approved by the

government after expiry of 12 days which the government is required to

approve within 12 days from the date of issuing the detention order.

Subsequently, thereafter, after receipt of the detention order dated

23.03.2022 on 03.04.2022, the detenu had submitted his representation, but,

till date the respondents did not respond to the said representation.

Furthermore, the detenue had been released on bail on different

criminal cases, as referred by the respondents, but the respondents did not

approach any forum for cancellation of bail of the detenue. The main ground

for detention of the detenue, as taken by the respondent, is assumption of

disturbance in peace and tranquility, harmony of the people at large. A mere

apprehension of breach of law and order is not sufficient to affect the Page 8

maintenance of public order adversely. The apprehension of adverse impact

to public order by the detenu is a mere surmise of the detaining authority,

especially when there has been no report of any disturbance from the police

officials after granting of bail of the detenue from other criminal cases. The

FIRs registered against the detenu are capable of being dealt by the ordinary

course of criminal law, and hence, the detention order passed against the

detenu only on mere apprehension of breach of peace in the area is non-

application of mind of the detenu-authority.

10. In light of the discussions aforesaid as also the law settled in the matter,

we are of the considered opinion that the satisfaction of the detaining authority

with regard to existence of reasons justifying the order of preventive detention

against the petitioner suffers from lack of independent application of mind,

which renders the subjective satisfaction of the authority vitiated in the eyes of

law. The order of detention, therefore, cannot be sustained. Further, the failure

in this case on the part either of the Jail Superintendent or the State

Government to forward the detenu's representation to the Central Government

has deprived the detenu of the valuable right to have his detention revoked by

that Government. The continued detention of the detenu must therefore be

held illegal and the detenu must be set free. Hence, there cannot be any

hesitation to hold that the detention order dated 23.03.2022 has been passed

without any basis which accordingly stands quashed.

Page 9

11. In the result, this habeas corpus petition is allowed and the detenu is set

free, unless required to be detained in any other case.

               JUDGE                                 CHIEF JUSTICE (ACTING)




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