Hrishikesh Roy, J.
1. Heard Mr. B.K. Mahajan, learned Counsel for the petitioner. Also heard Mr. C. Baruah, learned Counsel representing the Army Authorities. Ms. B. Goyal, learned Govt. Advocate, appears for the State respondent.
2. The present Habeas Corpus petition has been filed seeking production of one Muteswar Moran, hereinafter referred to as 'detenu', who was alleged to have been picked up on 24.07.2003 by a posse of army personnel, on his way to a weekly bazar under Pengeree Police Station of Tinsukia district.
3. In the counter affidavit dated 20.11.2003 sworn by one Sumit Sachdeva, a Lieutenant in the Army, it was averred that the detenu was assisting the army in apprehending Mrs. Okhi Chetia alias Debolata Baruah, a sympathizer/member of the banned ULFA organisation. It was further averred that the detenu, was assisting the army for reward and on 24.07.2003, he assisted the army in apprehending Mrs. Okhi Chetia. It was also averred that on the night of 24th and 25th July, 2003 also, the detenu cooperated with the army and was seen by the villagers. The counter affidavit also stated that on 28.07.2003, the detenu received his monetary reward.
4. The Magisterial enquiry conducted by the Additional Deputy Commissioner did not conclusively establish the role of the army in the disappearance of the detenu. In the report dated 16.03.2004 given by the Additional Deputy Commissioner, Tinsukia, the following inferences were drawn:
After careful considerations of all statements reports and circumstances I am of the opinion that Sri Muleswar Moran was a sympathizer of ULFA at one point of time. The fact that he agreed to accompany ULFA activist Srimati Debolata Baruah to Joyrampur and his capture by Army along with Srimati Debolata Baruah alias Okhi Chetia supports this view. Thereafter although Smti. Debolata Baruah was handed over to police, Army chose to retain Muleswar with them to gather further information. The operation conducted by Army in Talapather and Mohang village of Pengeree P.S. Area appears to be based on his information. The operation by Army yielded no result except the articles recovered from the residence of Sri Muleswar Moran. The claim by Army that Muleswar was a source of information to Army could not be confirmed but it may so happen that after the capture on 24th July Muleswar might have agreed or committed to supply information to Army. Sri Muleswar Moran was seen with Army during operations till 26th July. As the area of Talapather and Mohang are known to be extremist infested his activities and movements against the extremist outfit might have come to the notice of ULFA. The arrest of Smti.Debolata Baruah followed by Muleswar's assistance to Army have given rise to two possibilities. One-that Sri Muleswar Moran has been abducted by ULFA on or after 28th July the day he last visited the Pengeree Army Camp for monetary reward. Two-there could also be possibility of him going unapproachable by shifting place out of fear from ULFA with or without the knowledge of Army. Under this circumstance, although he initially, did not intimate about his actions to his family members, of late, he might have been in touch of his family from his hideout. If we don't agree to the Army's claim that Sri Muleswar Moran was a source of Army against ULFA even then possibility of taking stern action against him by Army appears to be remote because of the fact that Sri Muleswar Moran was not a hard-core extremist and there was nothing adverse in police record about him. But at the same time Army's silence about Ritu Konwar the SULFA member from Kakopathar, Ranjit Dutta the person from Bamkalakhowa of Dibrugarh dist in Army uniform present during Army operations and not handing over recovered articles from Muleswar's house don't give a clean chit to Army. If we, as a second thought agree with the Army that Sri Muleswar Moran was their source still the onus of his security and safety lies with the Army because he was exposed to the villagers of his own village in Army uniform while assisting Army. The responsibility of Army did not end at the point of payment of monetary reward only and if Army had used him as source and overlooked his safety and security than the Army cannot escape from being termed as slack and irresponsible. As regard to public outburst in this matter this could be at the behest of some extremist organizations to create a difficult situation for the Government, Army and District Administration. On the other hand in the event of Sri Muleswar Moran's abduction by ULFA, the extremist outfit may have chosen to keep it secret because Sri Muleswar Moran's disappearance after he was seen with Army is a big weapon to attack Army, District Administration and Government and to create public opinion against Government machinery. Under both the circumstances an in-depth police investigation preferably by the Criminal Investigation Department of Assam Police will be worthwhile. Army may be asked to hand over the articles recovered from Muleswar Moran's house to police. The identity of Sri Ranjit Dutta/Saikia/Gogoi and the Army official titled Gogoi may also be investigated by C.I.D. or Police. Movements of the family members of Sri Muleswar Moran may be under close watch as it may lead to the trace of Sri Muleswar Moran.
5. In another report of the Superintendent of Police, C.I.D., it was inconclusively reported that whether the army has kidnapped the detenu or some extremist group is responsible for his kidnapping, could not be confirmed.
6. Since nothing in the nature of conclusive finding was available before the Court, this Court by order dated 22.05.2007 directed the learned District Judge, Tinsukia to conduct an enquiry into the allegations made in the writ petition on the disappearance of the detenu and after examination of the necessary witnesses, the District Judge was asked to submit a report on the findings reached through such enquiry.
7. The report dated 28.08.2007 has since been submitted by the District and Sessions Judge, Tinsukia, wherein it is interalia, indicated as follows:
Thus keeping in view the totality of the facts and circumstances of the entire episode, it becomes evident that on 24.07.2003 Muleswar Moran was picked up by Army from Jairampur along with suspected ULFA activist Mrs. Debolata Baruah @ Okhi Saikia and he was in custody of the Army till 26.07.2003. Except the statement of Krishnan Balkud, that too without any official record, nothing could be shown by the respondents thifc Muleswar Moran was released by the Army dB 26.07.2003 at about 2 P.M. Accordingly, I record my findings on the subject matter of enquiry assigned.
8. From the aforesaid report as well as other materials available before the Court it is apparent that the detenu whether apprehended by the Army or not, was seen along with the Army personnel on 24th, 25th & 26th July, 2003. It is admitted in counter affidavit filed by the Army authorities that the detenu received payment for the service rendered by him as an informer of the Army. The monetary reward was handed over to the detenu by the Army on 28.07.2003. Therefore there is no doubt that the detenu was with the Army authorities during the four days preceding his disappearance and since 28.07.2003, nothing is known about his whereabouts.
9. It may be noticed that in the meantime, on the basis of information given by one Sri Suren Moran, a relative of the detenu on 27.07.2003 informing about the disappearance of the detenu, a GD entry was recorded. Subsequently an FIR was also filed on 04.08.2003 leading to belated registering of a Police Case on 06.09.2003. The said case was eventually entrusted to the C.I.D. for investigation. However, the C.I.D. investigation did not reveal anything conclusive on the allegations against the Army.
10. During the enquiry conducted by Sri Shamsher Singh, the Additional Deputy Commissioner, Tinsukia, the statement of Okhi Chetia, a sympathizer of ULFA and whose husband was a member of ULFA was recorded. In this enquiry report dated 16.03.2004, the statement of Smti. Okhi Chetia alias Debolata Baruah was extracted as under:
I know Muleswar Moran very well. He is my cousin brother. On 24th July around 8.30 A.M. I met Sri Muleswar Moran at Bordhomsa Bazar. I went to meet my husband who is a ULFA activist and stays in hillside. I requested Muleswar Moran to accompany me halfway. I was with my six-month old child. Muleswar first refused to come but later decided to accompany me out of affection for my son. We hired a white Ambassador car from Bordumsa to Jagun. From Jagun to Jairampur we took another white Ambassador car. As we got down from the vehicle near one hotel one Sulfa named Ritu Borah alias Prashanta Konwar appeared with Army and as per his identification Army caught both Moleswar and me. The vehicle and driver was also taken into custody. From there I was taken in a big vehicle and Muleswar in an Ambassador car. I was taken to Lekhapani Army Camp Muleswar was bought to the Camp at 5.30 in the evening. I saw him brought to the camp with his hands tied at the back through the window. I was handed over at Lekhapani Police Station at 110' clock at night. Muleswar Moran is an aged person. He is not connected with ULFA. His only fault was that he accompanied me halfway.
11. From the above statement of Smti. Okhi Chetia, it is clear that she was apprehended by the Army on 24.07.2007, while she was travelling with the detenu in an Ambassador car to meet her ULFA activist husband. Okhi Chetia also saw the detenu being brought to the Army camp with his hands tied at the back, while she was under detention in the Army camp, following her arrest on 24.07.2003.
12. Under the aforesaid circumstances, there can be no doubt about the fact that the detenu was with the Army authorities since 24.07.2004. His continued presence with the Army authorities on the subsequent three days have also been admitted in the counter affidavit filed on 20.11.2003 by Lt. Sumit Sachdeva.
13. The report dated 28.08.2007, furnished by the District and Sessions Judge, Tinsukia, also indicates that the detenu was picked up by the Army on 24.07.2003 along with the suspected ULFA activist Smti. Debolata Baruah alias Okhi Chetia and that detenu was in the custody of the Army till 26.07.2003. Although it is contended on behalf of the Army that the detenu was released on 26.07.2003 at about 2 P.M. but nothing is on record to show that the detenu was actually released from the Army custody.
14. The Army authorities while exercising powers under the provisions of the Armed Forces (Special Powers) Act, 1958 are required to hand over the detained persons to the custody of Police. But in this case, if the Army version is to be accepted, the detenu was simply allowed to go away from the Army's custody.
If on the other hand, the Army version of the detenu being an informer and a spotter for the Army is to be accepted, it is difficult to comprehend why the Army authorities did not take any initiative at all, to find out the whereabouts of its informer who was admittedly with them till 28.07.2003 and who went missing thereafter. On 28.07.2003 the detenu received some monetary reward from the Army authorities as is claimed in the counter affidavit filed by the Army and since that time, the detenu disappeared and nothing is known about him till date.
15. If the detenu was an informer of the Army one can assume that he might have reasonable freedom to enter and exit from the Army camp without there being formal record of his exit. But in that case, when such informer disappears, there should have been some effort by the Army to find out the whereabouts of their informer- if not for the sake of the informer himself, then atleast to examine the possible breach of their own security and the security of other informers, like the detenu. But such effort was conspicuously absent. Therefore we find it difficult to accept the Army's version of the event leading to disappearance of the detenu.
16. But the detenu was definitely seen in the Army camp and was also with the Army personnel in their operation, either as a detained person or as a collaborator. This was not a solitary event but on several occasions in the preceding 4(four) days, before the disappearance of the detenu, he was seen in company of the Army personnel. Therefore, the glaring failure of the Army to explain under what circumstances the detenu went missing, would lead us to draw an adverse presumption against them. The Army's failure to show that they made any effort to search the whereabouts of their missing informer also raises suspicion on the claim that, the detenu was Army's man and was not working against the Army.
17. In view of above, we are inclined to take the view that the Army authorities can't escape their liability since they operate in aid of the Civil authorities under the provisions of the Armed Forces (Special Powers) Act, 1958, which places definite limits on the functioning of the Army Authorities, as has been declared by the Supreme Court in the case of Naga People's Movement of Human Rights v. Union of India reported in : AIR1998SC465 .
18. In view of above, we hold that the Army authorities have failed to act in accordance with the Do's and Don'ts laid down in Naga People's Movement of Human Rights (supra). The Army authorities are therefore liable to compensate the family of the detenu for their failure to deal with the detenu in an appropriate manner, whether as a detained person or as an informer for the Army.
19. Accordingly the yare directed to pay a sum of Rs. 3,00,000/- (Rupees three lakhs) only, to the family of the detenu.
The Army authorities would accordingly deposit the aforesaid amount with the Registrar General of this Court within 6(six) months from today. On such deposit, the petitioner may receive the said amount subject to proper identification in accordance with law.
20. The petition is disposed of accordingly.