Judgment:
Manisana, J.
1. In this application under Article 226 of the Constitution of India, the petitioner Smt. Purnima Barua complains that the arrest and detention of her son Dipanka Barua are unlawful and prays for a writ of Habeas Corpus and compensation.
2. Facts, On receipt of reliable information that Dipanka is an ULFA activist, the army authority went to the house of the petitioner Purnima at Jorhat and enquired about her son Dipanka. The petitioner informed the army authority, that her son Dipanka had gone to Gauhati in connection with marriage of his elder sister Swapnalee. The army authority searched the house of Swapnalee at Ulubari in Guwahati on 31-12- 90 at about 2.00 p.m. accompanied by an Executive Magistrate and the army authority arrested Dipanka therefrom. After arrest of Dipanka on 31-12-90, the army authority made over Dipanka to the police station at Jorhat. The Jorhat police produced Dipanka before the Magistrate at Jorhat for remand order. As directed by this Court in this application Dipanka was produced on 7-1 -91. It may be noted here that the date of handing over Dipanka to Jorhat police is in dispute. We shall deal with it later in this judgment.
3. Mr. H. Roy, the learned counsel for the petitioner, in the course of the argument, has not sought the writ of habeas corpus as Dipanka has been arrested by the civil police in connection with regular police case and he is now under-trial prisoner. We are of the view that the learned counsel has rightly done so in view of the decision in Saptawana v. State of Assam, AIR 1971 SC 813 : 1971 Cri LJ 679. However, the learned counsel has prayed for monetary compensation stating that the army authority detained Dipanka wrongfully.
4. The Central Government was of the opinion that the whole of the State of Assam was in such a disturbed or dangerous condition that the use of armed forces in aid of civil power was necessary and, therefore, the Central Government in the exercise of power conferred upon it by Section 3 of the Armed Forces (Special Powers) Act, 1952 (for Short 'the Act') declared the whole of the State of Assam a disturbed area by issuing a notification dated 27-11-90 in the official gazette. After the declaration, the armed forces have been used or deployed in aid of civil power.
5. In a disturbed area, Section 4 of the Act authorises army authority to arrest, or to search and arrest, arrestable persons. Section 5 of the Act provides :
'Any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.'
The power of the army authority given by Section 4 of the Act to arrest person implies the authority to detain, but the army authority shall make over the arrested person to the officer in charge of the nearest police station with least possible delay, as provided Under Section 5.
6. The question then is, -- What is the span of time, which is designated by the words 'least possible delay'? We are of the view that the words 'least possible delay' may be said to do the thing within the shortest possible time. But no arbitrary time limit can be set down as it may not be possible in many cases to affirmatively say or precisely quantify the period of time by reference to hours, dates or months. However, it will be possible having regard to the circumstances of the case, to say whether thing was done or was not done with 'least possible delay'. Therefore, whenever the question of 'least possible delay' arises for decision, in computing the period of time the Court has to have regard to the particular circumstances of the case -- physical impossibility or otherwise to make over the arrested person to the nearest police station, and how, where and in what circumstances the arrest was effected, for example.
7. Coming to the present case, admittedly Shri Dipanka Barua was arrested from Ulobari of Guwahati city on 31-12-1990. There are police stations within 10 km from Ulubari in Guwahati. Although the nearest police station is at Patanbazar, the army authority had taken Dipanka to Jorhat, which is about 300 kms away from the place of arrest (Ulubari), on the ground that he was required in connection with Jorhat police station cases and he was to be treated to have been arrested in connection with the pending cases against him. Even if the explanation given by the army authority with respect to the handing over of Dipanka to Jorhat police station is accepted, a question arises whether it was within the meaning of 'least possible delay'. In paras 7 and 8 of the affidavit of the army authority, it is stated that Dipanka was handed over to the officer in charge Jorhat police station on 2-1-91 whereas in the affidavit of the State of Assam, it is stated that the army authority handed over Dipanka on 4-1-91 to the civil police and police arrested him in connection with Jorhat PS case No. 815 of 1990 Under Sections 3 and 4 of TADA (P) Act and on the same day he was forwarded to the Magistrate for remand order.
8. The question is whether Dipanka was made over on 2-1-91 or 4-1-91 to the civil police at Jorhat. The affidavit of the army authority is verified thus
'10. That the statements made in this affidavit and in paras 1, 2, 3, 4, 5 & 9 are true to my knowledge, those made in paras 6, 7 & 8 being matters of records of the case are true to my information derived therefrom which I believe to be true and the rests are my humble submissions before this Hon'ble Court.'
The above verification indicates that the statement made in paras 7 and 8 is matter of records. Rule 27 of the Gauhati High Court Rules provides that when the statement rests on the facts disclosed in the documents, the deponent shall state, inter alia, his information or belief as to truth of the facts disclosed in such documents. But the deponent has not stated about his information or belief of the truth of the facts disclosed in the document. In this Court evidence in support of the statements contained in the writ petition and other miscellaneous matters, is accepted in the form of affidavit filed by the parties concerned. It is therefore necessary that the rule 27 of the High Court Rules should be complied with. In the light of the decision of the Supreme Court in Savitramma v. Cicil Naronha, AIR 1986 SC 1987, we are of the view that the purpose underlying rule 27 is to enable the Court to find out as to whether it would be safe to act on such evidence and to enable the Court to know as to what facts are based in the affidavit on the basis of personal knowledge, information and belief as this is relevant for the purpose of appreciating the evidence placed before the Court, in the form of affidavit. The importance of verification has to be judged by the purpose for which it is required. It is only on the basis of verification, it is possible to decide the genuineness and authenticity of the allegations and the deponent can be held responsible for the allegations made in the affidavit. In State of Bombay v. Purushottam, AIR 1952 SC 317 : 1952 Cri LJ 1269 a constitutional Bench of the Supreme Court has held that slipshod verification of affidavits may lead to their rejection.
9. The affidavit of the army authority discloses that the deponent was not the person who handed over Dipanka to the civil police at Jorhat, and that he had no personal knowledge of making over Dipanka to civil police, and as such, his statement rests on document. No document has been produced to support his statements made in paras 7 and 8 of the affidavit. As already stated, the deponent has not stated in the statements made in paras 7 and 8 about his information on belief as to the truth of the facts disclosed in the document on which his statement rests. Therefore, the verification of the affidavit in so far as it relates to handing over Dipanka to the civil police on 2-1-91 is slipshod verification. That apart, the basic document on which statement rests has not been produced. In such a situation, the statement in paras 7 and 8 of the affidavit relating to handing over of the accused to the police on 2-1-91 is to be rejected, and we conclude that Dipanka was bounded over on 4-1-91 to the civil police at Jorhat. The affidavit of the army authority implies that if the accused was handed over on 2-1-91 it will be within the meaning of 'least possible delay' and that if Dipanka was handed over on 4-1-91 it would not be within the meaning of 'least possible delay'. That is why it is stated in the affidavit that Dipanka was made over to the civil police on 2-1-91. The army authority has not given any other explanation other than that stated above. Considering the facts and circumstances of the case, we are of the view that there was a delay of at least 2 (two) days. In that view of the matter, there was non-compliance with the provisions of Section 5 of the Act, and as a result of it, the constitutional and legal rights of Dipanka had been infringed.
10. In Rudul Sah v. State of Bihar, AIR 1983 SC 1086: 1983 Cri LJ 1644 the petitioner was in jail for more than 14 years after he was acquitted by the Court of Session Majja-farpur. The Supreme Court, after holding that the Supreme Court in the exercise of its jurisdiction under Article 32 can pass an order for payment of money in the nature of compensation consequential upon deprivation of fundamental right, awarded a sum of Rs. 30,000/- in addition to the sum of Rs. 5000/ - already paid by the Government as an interim measure in the nature of a palliative with an observation that the order will not preclude the petitioner from bringing a suit to recover appropriate damages from the State and its erring officials.
11. In Bhim Singh v. State of J & K, AIR 1986 SC 494 : 1986 Cri LJ 192 the petitioner Bhim Singh was detained in police lock-up for 4 days without order of a Magistrate. In that case, the Supreme Court has held that it was a gross violation of Bhim Singh's constitutional rights under Articles 21 and 22(2) and that when a person comes with a complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In apprpriate cases, the Court has the jurisdiction to compensate the victim by awarding suitable monetary compensation. In that case a sum of Rs. 50,000/- was awarded.
12. In Khatri v. State of Bihar, AIR 1981 SC 928 : 1981 Cri LJ 470 there were two irregularities. First, in a few cases the accused persons were not produced before the Judicial Magistrate within 24 hours of their arrest as required by Article 22 of the Constitution. The Supreme Court did not wish to express any definite opinion in regard to those irregularity but the Supreme Court strongly urged upon the State and its police authorities to see that the constitutional and legal requirement to produce an arrested person before a Judicial Magistrate within 24 hours of arrest must be scrupulously observed. Secondly, some of the prisoners were detained in jail without any remand orders being passed by a Judicial Magistrate. The Supreme Court observed that it was plainly contrary to law and it was difficult to understand how the State continued to detain those accused persons in jail without any remand order. In that case, the Supreme Court directed the State Government to enquire as to how the irregularity was allowed to be perpetrated and would see to it that in future no such violation of law are permitted to be committed by the administrators of law.
13. In view of the above decisions of the Supreme Court, it is concluded that violation of Section 5 of the Act will not only amount to wrongful detention but also violation of constitutional and legal rights. Compensation can be awarded by the High Court in exercise of its jurisdiction under Article 226 of the Constitution in appropriate cases, or, where detention is with mischievous and malicious intent. The High Court can also direct the authorities concerned to see that in future no constitutional and/or legal rights of the citizens be infringed.
14. Mr. M.A. Laskar, the learned Additional Advocate-General, Assam has contended if monetary compensation is awarded, it will be premature and it will affect the investigation or trial. We are concerned with initial arrest and detention of Dipanka by the army authority before he was handed over to the civil police. In that view of the matter, no prejudice shall cause, if any monetary compensation in the nature of palliative is awarded, to the investigation or trial.
15. Mr. Laskar has further contended that the decisions of the Supreme Court in Rudul Sah, AIR 1983 SC 1086 : (1983 Cri LJ 1644) and Bhim Singh, AIR 1986 SC 494 : 1986 Cri LJ 192 would not be applicable to the present case as the detention was not with mischievous and/or malicious intent. There is. no allegation that Dipanka was detained with mischievous or malicious intent. In the absence of it, we shall presume that the detention was not with mischievous and malicious intent. But the judicial review has developed to a stage today. There are many heads the grounds on which administrative action is subject to control by judicial review. Some of them are 'illegality', 'irrationality' and 'procedural impropriety'. We have already concluded that the detention of Dipanka by the army authority was wrongful at least for two days and Dipanka's fundamental and legal rights have been invaded. On the facts and circumstances, we are of the opinion that the present is an appropriate case where monetary compensation in the nature of a palliative should be awarded. In a similar case where detention was in violation of Section 5 of the Act, this Court also awarded compensation (see the Civil Liberties v. P. L. Kukrety, 1988 (2) GLR 137 (DB).
16. The question which arises for consideration is what would be the amount of compensation to be awarded. Mr. Roy, the learned counsel for the petitioner has fairly submitted that if compensation is to be awarded he will have no grievance as in the amount of compensation. Considering the submission of Mr. Roy and the facts and circumstances of the case, if we award a nominal amount of Rs. 200/- it would meet the ends of justice. Accordingly, it is ordered and directed that the respondents shall pay a sum of Rs. 200/- to Dipanka. It is further ordered and directed that the respondents shall see that in future no such violation of constitutional or legal rights of citizens are permitted to be committed by the army personnel.
17. With the aforesaid observations and direction the petition is partly allowed and disposed. No costs.
M. Sarma, J.
18. I agree.