Aftab H. Saikia, J.
1. Heard Mr. A.K. Bhattacharjee, learned Senior Counsel assisted by Mr. B.K. Singh, learned Counsel appearing on behalf of the petitioner as well as Mr. R. Goswami, learned Senior Government Advocate for the respondents, State of Meghalaya. None appears for the Union of India, despite notice.
2. The legality and correctness of the detention of Sri Bernard N. Marak, son of Sri Jyotishmoy Dutta (hereinafter referred to as the 'detenu'), a permanent resident of village-Akhhonggre under Tura Police Station in the West Garo Hills District, vide impugned order dated 23.8.2007 issued by the District Magistrate, West Garo Hills District, Tura under Section 3(1) of the Meghalaya Preventive Detention Act, 1995, as amended (for short, 'the Act') has been challenged in this Habeas Corpus petition preferred under Article 226 of the Constitution of India.
3. The factual matrix in a short campus is that the detenu was arrested on 17.8.07 in connection with a criminal case being Tura P.S. Case No. 88(8)/07 Under section 384/34 IPC and was kept in police custody. Since those offences were non-bailable, the detenu was not released on bail and he was kept in continuous police custody. Besides the above police case, the detenu was shown arrested in connection with Tura P.S. Case No. 60 (7)/06 Under section 384/511 IPC wherein he was granted bail vide order dated 22.8.07. Another case was registered against the detenu being Tura P.S. Case No. 39(4)/07 Under section 365/384/506 IPC wherein he was granted the privilege of pre-arrest bail by the learned Additional District Magistrate (J), West Garo Hills District vide order dated 11.4.07. While the detenu was in incarceration in connection with Tura P.S. Case No. 88(8)/07, he was served with the impugned order dated 23.8.07 and since then he is injudicial custody in terms of the provision of the Act.
4. The impugned order of detention dated 23.8.07 maybe extracted as under:
GO VERNMENT OF MEGHALAYAOFFICE OF THE DISTRICT MAGISTRATE:WEST GARO HILLS: TURAORDER UNDERSECTION 3(1) OF THE MEGHALAYA PREVENTIVEDETENTION ACT 1995
Whereas I am satisfied that in respect of the person known as Shri Bernard N. Marak s/o Jyotishmoy Dutta, Akhonggre, Tura P.S., Tura West Garo Hills District arms training and was an active cadre who is involved in kidnapping and extortion of huge amount of money from various business community of Tura and other parts of the District and also caused intimidation and coercion of traders, labourers, truck drivers, other section, who is also involved in various cases registered with Police Stations viz., (one) Tura P.S. Case No. 60(7)/06 Under section 384/ 511 IPC (Two) Tura P.S. Case No. 39(4)/07Under section 365/384/506 IPC and (Three) Tura P.S. Case No. 88 (8)/07 Under section 384/34 IPC and that if he is allowed to remain at large he will continue to act in a manner prejudicial to the security of the State and maintenance of supplies and services and public order and it is necessary that he be detained and being so satisfied.
Now therefore in exercised of powers conferred upon me under Section 3(1) of the Meghalaya Preventive Detention Act, 1995,1, Shri P. Sampath Kumar, District Magistrate, West Garo Hills, Tura do hereby direct that the said Shri Bernard N. Marak be detained with immediate effect and until further orders at the District Jail, Jowai in the district of Jaintia Hills, Meghalaya.
Given under my hand and seal this 23rd August, 2007.
(P. Sampath Kumar)District Magistrate,West Garo Hills, Tura
5. Along with the detention order, the detenu was served with the grounds of detention by the District Magistrate, West Garo Hills District, Tura, which run as follows:
'GOVERNMENT OF MEGHALAYAOFFICE OF THE DISTRICT MAGISTRATE:WEST GARO HILLS: TURA
No. CB.30/07/8 Dated Tura,
the 23rd August, 2007
To,
Shri Bernard N. Marak, S/o Jyotishmoy Dutta of Akhonggre P.S. Tura, West Garo Hills District.
In pursuance of the provisions of Section 8( 1) of the Meghalaya Preventive Detention Act, 1995, and in pursuance to Order No.CB.30/07/6 dated 23.8.2007, I am to inform you that you have been detained under the provisions of Sections 3(1) of the said Act on the following grounds:
That you joined the ANVC in 1999 an extremist organization which was working against the State and its people and look arms training and was an active cadre of the organization. Later on, you became Organizing Secretary of ANVC (a banned militant outfit of Meghalaya) and along with your associates indulged in various kidnapping, extortion and other anti social activities including criminal intimidation had spread terror and fear psychosis among general public and you were consistently working against the interest of the State and the people. Having taken advantage of your association with the banned extremist organization. You have attempted to engineer to float 'Garo Hills Trade Union' to indulge in extortion from the traders and others through intimidation and coereion but due to intervention by the district police, this was abandoned but ensconced other unions and associations viz. Garo Hills Motor Workers Union, Garo Hills Labour Union, Indigenous Traders Association, Truck Association and Garo Hills Pick-up Association and formed a self styled 'Joint Coordination Committee' with the apparent aim to put in maximum effort to materialize the aims and objectives of all concerned associations. This refers to Tura P.S. GD Entry No. 191 dated 7.8.07. It was enlisted therein that it will check the memberships, documents, driving licenses, etc. the entry and exit of labourers and vehicles will also be regulated at various points by Joint Coordination Committee thus assuming the role a law unto oneself. Most of your victims have not reported the matter to any authority because of your known association with the banned extremist organization and due to intimidation and serious threat with dire consequences.
You also in association with other members of the organization participated in several heinous crimes like extortion, kidnapping and other illegal activities in an around this district and thereby created fear psychosis to the peace loving people more specifically as stated below:
1. Acting on tip-off, on 28.7.2007 at around 0915 hrs one Shri Wittrickson Ch. Marak s/o Shri Gokndu M. Sangma of village Damal Apal, P.S. Mendipathar was caught red handed while extorting money from the traders of Jengjal bazaar under Tura P.S. by showing a live ammunition 7.62. During investigation it was ascertained that you had master minded the extortion. This refers to Tura P.S. Case No. 60(7)/06 Under section 384/511 IPC.
2. On 20.3.07 at around 1430 hrs one Shri Bitupan Sharma C/o Mahindra and Mahindra Finance Service, Guwahati, Assam was kidnapped by you from Sundar complex/Hotel at gun point and subsequently committed robbery and snatched away cash Rs. 200,450.00 and money receipt books bearing Nos. 30758326 to 30758326 and DD Receipt 3672151 to 3672200.
On being released from your clutches Shri Bitupan Sharma fled away from Tura without reporting the matter to the police as he was threatened with dire consequences. Later Shri Sharma lodged a detailed complaint at Byrnihat police out post under Ri-Bhoi district.
During investigation the cash receipts and DD receipts mentioned in the FIR was recovered and seized from your possession and the Motor Cycle No. ML-09-2535 used by you for kidnapping the victim was seized. You were arrested and later released on bail as per directions of the Court. This refers to Tura P.S. Case No. 39(4)/07 Under section 365/384/506 IPC.
3. Acting on a tip-off, on 16.8.2007 at about 1045 hrs. one Precil Sangma s/o Pension Sangma @ Polison Sangma of Gongadama/Reserve gittim, Tura was caught red-handed at main road near GHDC Member Hostel while extorting money from the truck drivers and Rs. 120.00 was seized from his possession as extortion money. During investigation the accused had confessed that it was you who had directed him for collection of money from the truck drivers. Some truck drivers had also confessed before the police that you had called them several times for a meeting and forcibly made them to join in the Truck Association. These have been admitted before the Court. You were arrested and forwarded to Court in Tura P.S. Case No. 88 (8)/07 Under section 384/34 IPC.
Your above stated acts and commissions have created fear psychosis in the minds of the peace living people in the district and fear and mental agony.
Such acts of yours with an intention to disrupt public peace and tranquility have caused:
(i) Disturbances of peace and public tranquility, in general
(ii) Fear and psychosis in the minds of peace living people of the district in general and business community in particular,
(iii) Resorted to illegal collection of distinct amount from tribal and non-tribal daily labourers creating a communal colour in such illegal collection, (iv) Your illegal extortion has caused untold suffering to the poor people as the prices of essential commodities and services have gone up.
Your activities aforesaid have repeatedly revealed your propensity to resort to prejudicial activity. From your above actions, it is manifest that your intention is to create fear psychosis in the minds of widest possible spectrum of the public in general and business community in particular and disturb the peace and serenity in the district hereby affect essential supplies and development programmes.
I am, therefore, satisfied that if you are allowed to remain at large you will continue to indulge in such activities which is prejudicial to the security of the State and the maintenance of essential supplies, communal harmony, peace and public order in the district. In view of the aforesaid, I consider your detention under the Meghalaya Preventive Detention Act. 1995 a necessity.
I am, further to inform you that you have right to make a representation against the order of detention issued against you as envisaged by Article 22(5) of the Constitution of India read with Section 8(1) of the Meghalaya Preventive Detention Act, 1995. You can submit representation to the undersigned or to the State Government of Meghalaya, and also the Central Government.
(P. Sampath Kumar)District Magistrate,West Garo Hills, Tura.
6. Since the detenu had a right to make a representation against the impugned detention order which had been manifestly reflected on the last paragraph of the grounds as quoted above, the detenu submitted two representations on 29.08.07 to the State Government as well Central Government through the Superintendent of Jail, Jowai for onwards transmission of the same. The detenu has also sent the representations by registered post on 30.8.07 to the respective authorities abovementioned. However, till the date of filing of the Habeas Corpus petition on 17.9.07, those representations have not been disposed of by the concerned authorities.
7. In the backdrop of the above facts situation, the impugned detention order has been challenged by the detenu.
8. Refuting all the statements and contentions made in the Habeas Corpus petition, the respondents basically the Respondent No. 1, State of Meghalaya represented by the Commissioner and Secretary, Political Department, Meghalaya and Respondent No. 2, the District Magistrate, West Garo Hills Districts, Tura, Meghalaya have submitted their affida-vits-in-opposition on 12.11.07 and 11.10.07 respectively.
9. On meticulous scanning of the contentions and averments made in the petition, it appears that the detention order has been assailed basically, inter-alia, on the ground of non-disposal of the representations so preferred by the detenu before the concerned authorities.
10. In paragraphs 4 and 35 of the petition, the detenu has stated as under:
4. That on receipt of the grounds of detention, the detenu could come to know that the District Magistrate alleged the detenu's involvement in several heinous crimes like extortion, kidnapping and other illegal activities and also referred to the detenu's involvement in three criminal cases registered in Tura Police Station. But the copy of the First Information Reports and other relevant documents were not supplied to the detenu along with the grounds of detention. Further, the GD Entry No. 191 dated 07.08.2007 of Tura Police Station has not been furnished with the grounds nor its contents revealed to the detenu. The detenu inspite of being handicapped in making an effective representation against the order of detention, made a representation on 29.08.2007 to the State Government as well as the Central Government against the detention order dated 23.8.2007 through the Superintendent of District Jail, Jowai for onward transmission. The detenu has also sent the representation by registered post on 30.08.2007 to the respective addresses but till now he has not received any reply of the same. It has been mentioned in the said representation that the grounds of detention are all cooked up stories and fabricated allegations; that the alleged criminal cases on the basis of which the grounds of detention are made, there is no mention of detenu's involvement in said cases; that there has been a total non-application of judicial mind before passing of the detention order; that the order of detention is vitiated by non-consideration of relevant facts and non-application of mind; that the detention order suffers from vice of taking into consideration non-existent and irrelevant facts; that the alleged criminal cases are filed to harass the detenu and that there is no case for detention of the detenu under the Act, 1995 and that the detention is illegal, void and passed in violation of the Act, 1995 and Article 22 of the Constitution of India. By that representation, the detenu prayed for revocation of the order of detention and to release him from detention. It may be relevant to mention herein that though the representations were submitted and sent on 29.08.2007 and 30.08.2007 respectively, the detenu has not been informed about the fate of the aforesaid representation.
A photocopy of the aforesaid representation dated 29.08.2007 along with postal receipts dated 30.08.2007 are annexed herewith and marked as Annexure-3A/Pages 33-36 and An-nexure 3B/Page 37 respectively..
35. That the petitioner states that though the detenu has submitted a representation against his impugned order of detention to the State Government as well as to the Central Government, yet none of the Government has disposed of the said representation till date. It may be stated that the detenu has a fundamental right of his representation being considered and disposed of by the State and Central Government as guaranteed under Article 22 of the Constitution of India. The petitioner further states that the detentu has been deprived of his valuable right of representation being considered by the State and Central Governments, by not disposing the representation by the concerned Government till today. The detenu is entitled to be released forthwith on the ground of his representation not being considered by the concerned Government.
11. Against such primary allegation, the respondent No. 1 in the affidavit-in-opposition filed on 12.11.07 in paragraph-5 and 10 has averred as under:
5. That the detenu submitted his representation dated 29.08.2007 which is being examined for consideration and the State Govt. disposed of the same on 1.10.2007 and accordingly the detenu has also been served with a copy of the letter No. POL. 166/2007/197 dated 1.10.2007 on 3.10.2007 and the detenu also received on 3.10.2007.
A copy of the letter No. POL. 166/2007/197 dated 1.10.2007 along with acknowledgement by the detenu is enclosed herewith and marked as Annexure-1..
10. That with regard to the statement's paragraph No. 30 to 42 the deponent begs to say that the ground of detention containing all the required information for enabling for making representation was served upon the detenu on 23.08.07. It is denied that 'the detenu has been deprived of his right of filing an effective representation against the grounds of detention.
12. At the same breath, the Respondent No. 2 in his affidavit-in-opposition filed on 11.10.07 in paragraphs 4,14,15andl6has answered the allegation as regards the manner of disposal of the representation which run as follows:
4. That with regard to the statements made in paragraph 4 of the petition, the deponent begs to say that at the time of furnishing the grounds of detention the detenu was duly informed about the cases in which the detenu was involved and the gist thereof was also narrated to him so that he can make effective representation. It is hereby denied that the detenu was handicapped in making an effective representation against the order of detention..
14. That with regard to the statements made in paragraphs 25 and 26 of the petition, the deponent begs to say that the representation submitted by the detenu has already been duly examined by the State Government and accordingly he was informed.
15. That with regard to the statements made in paragraphs 27 to 34 of the petition, the deponent hereby deny all such statements which are contrary to and inconsistent with the record of the case. The representation of the detenu along with the details of the case has been placed before the Advisory Board within 3 weeks from the date of detention under the provision of MPD Act.
16. That with regard to the statements made in paragraph 35 and 36 of the petition, the deponent has already stated that the representation of the detenu has already been disposed of.
13. Having meticulous analysed of the above averments made by the respondent authorities, particularly the State authority, it appears that admittedly the representation submitted by the detenu on 29.8.07 was disposed of by the authority on 1.10.07 after 32 days. Nonetheless, we do not find any such averments or any reasonable, cogent or plausible explanation of such delay of 32 days in disposing the representations. There is no whisper anywhere either in their affidavits filed by the authorities that the delay was occurred due to their investigation or in obtaining other necessary instruction to substantiate such delay. We have also perused the record so placed before us. Amazingly, records also do not reveal any such acceptable explanation of such delay.
14. In view of the above facts and circumstances, we are of the considered view that the representation was disposed of causing an inordinate delay and the same was not sufficiently and properly explained. It is argued on behalf of the State that the delay was caused for obtaining certain instruction from the detaining authority which necessitated the Government for making correspondences as a result of which the delay was occurred. It has also been argued that there was no hard and fast rule for disposal of the representation although it is admitted that representation needs to be expeditiously considered and disposed of.
15. To substantiate such arguments, strong reliance has been placed on the following judicial authorities:
1) K.M. Abdulla Kohni v. Union of India : 1991CriLJ790
2) D. Anuradha v. Joint Secretary and Anr. : 2006CriLJ2784 .
3) Vinod K. Chawla v. Union of India and Ors. : 2006CriLJ4079
16. It is settled law that an independent constitutional right has been guaranteed to a detenu detained under the preventive detention law to make a representation to the appropriate Govt. including the detaining authority. Correspondingly, there is a constitutional obligation entrusted upon the concerned authority to whom the detenu forwards his representation questioning the legality and validity of the detention order imposed upon him and requesting for his release, to consider the said representation within reasonable dispatch and to disposed of the same as expeditiously as possible.
17. This constitutional mandate must be satisfied with respect. Infraction of such constitutional dictate amounts to violation of the constitutional imperative rendering the continued detention of the detenu unconstitutional, impressible and illegal and further such breach would defeat the very concept of liberty, the most valuable right enshrined under Article 22(5) of the Constitution. It is correct, no period has been prescribed either under the provision of Constitution or under the Act within which the representation should be disposed of. But the use of expression 'as soon as may be' occurring in Article 22(5) of the Constitution denotes that it must be considered at the earliest opportunity and disposed of with due diligence and promptitude and also with a sense of urgency without any inordinate delay. It maybe reiterated that reasonable dispatch shall always depend on the facts and circumstances of each case and there is no cut and dried formula to be propounded in this respect See 2004 (1) GLT 633. para-18 (Ahanthem Mema @ Nirmala Devi v. District Magistrate, Imphal East and Ors.)
18. In the instant case, the representation Edited 29.8.2007 presented to the respondent No. 1, who being the competent authority, ought to have disposed of the same without any avoidable delay with a sense of urgency. However, it appears to us that the same was disposed of very casually and with callous attitude only on 1.10.2007. No explanation has been forthcoming for such unexplained delay in disposal of the representation itself in our firm opinion vitiates the impugned detention.
19. It is also established that in cases of preventive detention expeditious action is required on the part of the authorities in disposing of the detenu's representation. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has not be vigilant in the governance of the citizens. A citizen's right imposes correlative duty on the State. No allowance can be made for lethargic indifference or needless procrastination but allowance has to be made for necessary consultation where legal intricacies and factual ramifications are involved. The burden of explaining the departure from the time imperative is always on the detaining authority. The emphasis is on the constitutional right of a detenu to have his representation considered as expeditiously as possible and it will depend upon the facts and circumstances of each case whether or not the appropriate Government has disposed of the case as expeditiously as possible. In the instant case, we do not find anything from the facts of the case that the State authority acted promptly with all care to dispose of the representation. See : 1990CriLJ584 (State of Punjab v. Sukhpal Singh)
20. In view of what has been discussed, stated and observed above, it is found that since the representations have not been disposed of in terms of the constitutional mandate as enshrined under Article 22(5) of the Constitution of India and under Section 8 of the Act, inordinate delay in disposing of the representation vitiates the detention of the detenu whereby his liberty has been curtailed as guaranteed under Article 21 of the Constitution of India, being the fundamental right. In view of the above, the impugned detention order dated 23.8.07 is hereby set aside and quashed. The detenu be set at liberty forthwith, if not wanted in any other case. In the result, the Habeas Corpus Petition succeeds and stands allowed. No order as to costs.