JUDGMENT
1. Heard Mr. A.K. Bhowmik, learned senior counsel assisted by Mr. S. Ghosh and Mr. Mangal Debbarma, learned Counsel for the petitioner, Mr. P.K. Biswas, learned Assistant Solicitor General, appearing for the Union of India and Mr. B. Das, learned senior counsel assisted by Mr. N. C. Paul, learned Government Advocate appearing for the respondents No. 2 and 3.
2. In present writ petition, the petitioner, the wife of Sri Hebal Abel Koloy alias Holong the detenu has prayed for quashing the detention order dated 19-12-2006 (Annexure 14 to the writ petition) passed by the respondent No. 3, the District Magistrate and Collector, Dhalai District; Ambassa, under Sub-section (2) of Section 3 read with Sub-section (3) of Section 3 of the National Security Act, 1980 (for short ‘the Act 1980). The said detention order indicates that with a view to prevent the abovementioned detenu from acting in any manner prejudicial to the security of the State and maintenance of public order within the local limits of jurisdiction of the said District Magistrate, it is necessary and expedient to detain the detenu under ‘Act, 1980’. For the involvement of the detenu in the referred alleged offences and crimes. The detention order dated 19-12-2006 in question is to take effect from the date on which the detenu was to be released from the judicial custody. The details of the alleged involvement of the-detenu in offences and crimes as revealed from the enclosures of Chronology of crimes and grounds for detention are enclosed with detention order dated 19-12-2006, which read as below:
a) Sri Hebal Abel Koloy alias Holong (36), s/o Sri Angad Koloy of North Taidu, P. S. Taidu, South District had visited Geneva, Switzerland and attended the 21st Session of the working Group of Indigenous Populations (WGIP) T Geneva from July 21st to 25th 2003. In the Session, he delivered a speech on ‘Globalization and Indigenous Peopels’ as Chairman, Borok People Human Rights Organization, Palace Compound, Agartala West Tripura (Twipra) India. The speech delivered by Sri Koloy amounts to abetting the waging of war against the Government of India, criminal conspiracy and revolt against the Central and State Government, sedition and also for promotion of enmity between different groups which are prejudicial to the maintenance of harmony. (FIR No. 69/06 dated 7-12-2006).
b) Sri Hebal Abel Koloy alias Holong (36), S/o Sri Angad Koloy of North Taidu, P. S. Taidu, South Tripura District has been acting as middleman of outlawed extremist NLET for collecting extortion money from different people. So he is a dangerous and desperate NLFT urban group member.
c) The involvement of Sri Hebal Abel Koloy alias Holong (36) S/o Sri Angad Koloy of North Taidu, P. S. Taidu, South Tripura District in extremist activities also transpired: from the interrogation of 2 (two) A/Ps namely, Haridhan Debbarma alias Hoprong, S/o Sri Dharmananda Debbarma of Badalbari, Promod Nagar, P. S. Champahawor, West Tripura arrested in connection with West AGT PS/Case No. 34/ 99 Under Section 148/149/353/307/396 IPC/27 of Arms Act and 10/13 U. L. A(P) Act. The abovenoted subject was maintaining link with NSCN and NDFB extremists on behalf of NLFT and so far he was acting as over ground agent of NLFT.
After the exposure of his involvement in extremists activities, it is likely that the above noted subject go under ground like his associate in BPHRO namely Utpal Debbarma who accompanied him to Nutan Bazar in August 1999 as revealed from, the omerrpgatopm report of Bhudeb Behai an Engineer who had gone underground in 2001 and presently acting as S.S. Lieutenant of NLFT.
d) Sri H. Hebal Abel Koloy alias Holong (36) S/o Sri Angad Koloy of North Taidu, P.S. Taidu, South also expressed his motivation by suppressing his actual address and job status at the time of renewal of his passport from Regional passport office, Guwahati. He has not yet handed over the passport obviously to leave India to any foreign country after release from jail.
3. In the facts and circumstances, the following questions are necessary to be considered:
i) Whether the Central Government is duty bound and is under statutory obligation under (in short called ‘Act 1980’ hereinafter) Section 14(1) of the National Security Act, 1980 to consider the report for revocation or modification sent by State Government under Section 3(5) of Act 1980 with reasonable expedition or not to consider at all or may considerate at any stage at its convenience irrespective of the fact that no representation was made for and on behalf of the detenu to the Central Government?
ii) Whether non consideration of report of failure to take decision on the report or delay in disposal of report of State or representation of detenue by Central Government could be justifiable under ‘Act 1980’ without satisfactory ‘explanation and reasons recorded existing on the record?
iii) Whether non mentioning of period of detention in the detention order by the State Government is fatal?
iv) Whether the effective date of detention order passed against the detenu in Judicial custody is the date of making thereof or the date of service to the detenu or any date specified at the discretion of the State or any future date when the detenu is released from judicial custody?
4. Clauses (4), (5), (6) and (7) of the Article 22 of the Constitution of India deal with the provisions on the preventive detention. Relevant Clauses read as follows:
22(4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless-
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention;
Provided that nothing in this Sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under Sub-clauses (a) and (b) of Clause (7).
“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.”
22(6) Nothing in Clause (5) shall require the authority, making any such order as is referred to in that clause to disclose facts which such authority considered to be against the public interest to disclose.
22(7) Parliament may by law prescribe –
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4);
(b) the maximum period for which any person may in any class or classes be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under Sub-clause (a) of Clause (4).
5. For the sake of convenience, Sections 3(3), 3(4), 3(5), Section 8 and 14(1) of the ‘Act 1980’ are quoted as below:
3. Power to make orders detaining certain persons.
3(3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in subsection (2) exercise the powers conferred by the said sub-section;
Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
3(4) When any order is made under this section by an officer mentioned in Sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government.
Provided that where under Section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detentions, this sub-section shall apply subject to the modification, that, for the words “twelve days”, the words “fifteen days” shall be substituted.
3(5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particular as, in the opinion of the State Government, have a bearing on the necessity for the order.
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 ten 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.
(14) Revocation of detention order.- (1) Without prejudice to the provisions of Section 21 of the General Clauses Act of 1897 (10 of 1897), a detention order may, at any time, be revoked or modified.-
(a) notwithstanding that the order has been made by an officer mentioned in subsection (3) of Section 3 by the State Government to which that officer is subordinate or by the Central Government;
(b) notwithstanding that the order has been made by a State Government, by the Central-Government.
(2) The expiry of revocation of a detention order (hereafter in this sub-section referred to as the earlier detention order) shall not (whether such earlier detention order has been made before or after the commencement of the National Security (Second Amendment Act 1984) bar the making of another detention order (hereafter in this sub-section referred to as the subsequent detention order) under Section 3 against the same person:
Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order.
6. The counter affidavit on behalf of the State of Tripura and Central Government has been filed. The original records on behalf of the State of Tripura as well as Central Government have been produced.
7. On perusal it appears that the District Magistrate and Collector has forwarded the detention order dated 19-12-2006 along with the chronology of crimes and grounds of detention and history sheets with enclosures to the Home Department, Government of Tripura on 19-12-2006 for doing the needful. The under Secretary, State Government of Tripura Department, of Home vide letter dated 8-1 -2007 has conveyed to the District Magistrate, Dhalai District, indicating that the State Government of Tripura has approved the detention-order on 8-1-2007 and the date of detention has to be informed to the detenu and a copy of communication sent to the detenu informing him the grounds of his detention and copy of the representation if any of the detenu, may also be sent immediately so that as required under Section 10 of the ‘Act, 1980’, the State Government may place the grounds of detention and representation to the Advisory Board within three weeks from the date of detention. The State Government had sent an information on 8-1-2007 itself by fax to the Ministry of Home Affairs, New Delhi about the said detention order with an indication that all the relevant documents shall be sent by speed post.
8. On the contrary’, it has been submitted by Mr. A. K. Bhowmik, learned senior counsel for the petitioner, that the detenu was released from the judicial custody on 5-2-2007 by Chief Judicial Magistrate. Kailashahar in Manu P.S. Case No. 37/2006 for his alleged involvement under Section 396/307/353/120(B) I.P.C. and 27 of the Arms Act.
9. The original records produced by the State Government, reveals that the Superintendent of Police Dhalai, while informing to the District Magistrate about the status position of the criminal cases pending against the detenu has referred in his letter dated 22-1-2007 that the formal (sic) in Manu P.S. case No. 36/2006 granted by the High Court on 20-11-2006 was received to the Chief Judicial Magistrate, North Tripura but no bail bond was filed by the Defence counsel of detenu, therefore in the circumstances the detention order under Section 3(2) of the Act, 1980 could not come into effect from 20-1-2007 as indicated earlier and the same will come into effect after detenu is released from the judicial custody. The Joint Secretary, Home Department, vide his letter dated 7-2-2007 wrote to the District Magistrate that while a person is already In judicial custody and detention order has also been served, the period of detention under ‘Act 1980′, shall be counted and the total period of detention under such Act 1980’ will be reduced by the period for which Shri Koloy was remained in judicial custody in connection with other criminal cases. The representation dated 28-1-2007 and 2-2-2007 received from the Borok People’s Human Rights Organization and Smt. Fullara Debbarma, the wife of detenu respectively addressed to the Governor of Tripura was forwarded vide letter dated 13-2-2007 to the Chief Secretary, State of Tripura. The representation for and on behalf of the detenu submitted to the District Magistrate and Collector on 31-1-2007 (Annexure 15 to the Writ Petition) was forwarded to the Joint Secretary (Home) on 7-2-2007. The State Government of Tripura vide letter dated 20th February, 2007 has presented the related documents before the Advisory board constituted by the State Government vide Notification No. F. 3 (25-PD/99) dated 18th May, 2001, under Section 9 of the ‘Act, 1980’ for examining and submitting the report to the State Government. The Advisory Board gave its opinion on 5-3-2007 upholding the validity of detention of the detenu. The State-Government of Tripura, (Home Department), issued an order on 19-3-2007 indicating that the Governor in exercise of power conferred by subsection (1) of Section 12 of the ‘Act, 1980’, has confirmed the detention order dated 19-12-2006 and ordered that detention of the said person will continue until expiration of three months from the date of detention. Such information was conveyed by the Joint Secretary, Government of Tripura vide its letter dated 19-3-2007 to the petitioner, the wife of the detenu in reference to her representation.
10. It appears that representation for and on behalf of the petitioner i.e. the wife of the detenu to the State Government has neither yet been dealt with nor is disposed of by the State Government.
11. It has been argued on behalf of the petitioner firstly; that the detention order has been passed when the detenu was in custody and the detention order was to be made effective from the day when the detenu is released from the judicial custody is an abnormal and unusual proposition legally not sustainable. Secondly, the period of detention has not been prescribed by the detaining authority. The representation of the detenu has not been dealt with or disposed of by the State Government, Neither decision has yet been taken by the Central Government on the report of the State Government nor explanation has been forthcoming to that effect. The apparent violation of the rights of the detenu guaranteed under Article 22(5) of the Constitution of India is being reflected by the actions of the State Government as well as Central Government. The detention order has become non-est, by virtue of the provision of Section 3(4) of the ‘Act 1980’, as the detention order dated 19-12-2006 was to be approved by the State Government within twelve days after making thereof and in the present case detention order dated 19-12-2007 was approved on 8-1-2007 i.e. much beyond twelve days. Therefore for this lapse alone the said detention order is vitiated. The date of detention order 19-12-2006 shall be effective from 19-12-2006 and not from any future date as the detenu was already in detention. In view of the order dated 19th March, 2007 of Home Department of the State Government, the detention of the detenu was to continue, until expiration of three months from the date of detention and since the detention order has not been further extended by the State Government, therefore, the detention order has already come to an end on 18-3-2007. There is no application of mind on the part of the Detaining authority as well as the State Government while passing the detention order. The rights of the detenu enshrined under Article 14, 19, 21 and 22(5) of the Constitution have been violated.
12. According to the counter affidavit preferred for and on behalf of the respondents No. 2 and 3, it reveals that the detenu is involved in numerous criminal cases and activities prejudicial to the security of the State and he is an active collaborator of outlawed extremists outfit NLFT, therefore, for maintaining public order, the detention order has been passed bona fidely by the District Magistrate taking into consideration all the materials available against the detenu. In view of paragraph 6 of counter affidavit the detention order was passed on 19-12-2006 at the time when the detenu was in temporary judicial custody in reference to the criminal cases under investigation. In the event a bail order was passed and a bail bond was executed the accused would be out of the judicial custody at any time. Though the detention order was passed on 19-12-2006, It was not served on the detenu and he was not arrested/detained by virtue of that order. A person may be arrested and detained under such an order immediately after passing of the order but in that case the order is to be approved by the State Government within twelve days from the date of passing the order and order will be invalid if approval of the Government is not obtained within the time prescribed. The order of approval of the State Government was given on 8-1-2007 and the detention order was executed on 19-1-2007, so there is nothing that the accused has been prejudiced in any manner. The spirit of the law is to safeguard from misuse of the provision, that nobody is detained by an order without approval of State Government beyond the prescribed time. In this case, the order was executed after it was approved by the State Government and therefore there is no violation of any provision of Section 3 of “Act 1980”. Undisputedly the detenu was in custody on 19-1-2007 when the detention order was served and the bail order was passed in favour of the detenu in all the pending cases and last bail order was passed on 17-1-2007. It was therefore clear that after 17-1-2007 at any moment the detenu might go out of the jail on execution of a ball bond, therefore, the detention order was served on 19-1-2007. The detenu was treated to be in custody under “Act 1980” with effect from 19-1-07 irrespective of the fact that he is in judicial custody for non-execution of the bail bond in criminal cases and such detention order can in no way be said as illegal or contrary to law. The detenue was also duly informed that he has right to submit representation and accordingly the petitioner i.e. the wife of the detenu has submitted the representation to the State Government, which has been duly considered. In view of paragraph 9 of the counter affidavit a proper interpretation of the provision of Section 3 of ‘Act 1980’ is that the date of passing of the order of detention may be on the day, on which the order of detention was passed or on the date on which actually the order of detention was served on the detenu. In the circumstances, when somebody is already in detention in connection with some other criminal proceedings, the detention order is deemed to have been passed on the day on which the order of detention is actually served on the detenu. In the instant case, the order of detention was served on the detenu on 19-1-2007 and therefore, the order of detention was deemed to have been passed on 19-1-2007, particularly having regard to the facts and circumstances that the detenu is already in custody.
13. It has been argued by Mr. B. Das, learned senior Advocate assisted by Mr. N. C. Paul, learned Government Advocate, that the spirit, purpose and objective of the ‘Act 1980’ has to be given due importance and is to be appreciated and for this purpose learned Counsel has referred and relied upon a decision of the Supreme Court on (Giridhari Lal & Sons v. Balbir Nath Mathur) para 9 and 13 which are extracted below:
9. The primary and foremost task of a Court in interpreting a statute is to ascertain the intention of the legislature, actual or Imputed. Having ascertained the intention, the Court must then strive to so interpret the statute as to promote/advance the; object and purpose of the enactment. For this purpose, where necessary the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the Court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written word if necessary.”
“13. In Rughy Joint Water Board v. Foottit (1972} 1 All ER 1057 Lord Simon of Claisdale said:
The task of the Court is to ascertain what was the intention of parliament, actual of to be imputed In relation to the faces as, found by the Court. …But on scrutiny of a statutory provision, it will generally appear that given situation was within the direct contemplation of the” “draftsman as the situation calling for statutory regulation : this may be called the primary situation. As to this, Parliament will certainly have manifested an intention : – The Primary Statutory Intention. But situations other than the primary situation may present themselves for judicial decisions – secondary situations. As regards these secondary situation, it may seem, likely in some cases that the draftsman had them (sic) in con-temptations; in others not. Where it seems likely that secondary situation was not within the draftsman’s contemplation, it will be necessary for the Court to impute an intention to Parliament in the way I have described, that is to determine what would have been the statutory intention if the secondary situation had been within Parliamentary contemplation (a secondary intention).
14. According to Mr. B. Das, learned senior counsel for the State, the substantial compliance of the provision of the ‘Act 1980’ have already been made on the part of the State Government and therefore, the detention order is legally justified and since the detenu was already in judicial custody and therefore, the actual date of detention order shall be the actual date of detention or the actual service of detention order to the detenu and the date of original order of detention 19-12-2006 shall not be the actual order of detention since the same was served on 19-1-2007, therefore the actual date of detention is to be taken as 19-1-2007.
In our respectful consideration, this submission is not legally sustainable as the provision of the ‘Act 1980’ are explicit and the period prescribed for taking out steps at each stage are categorically specified. There is no scope of any interpretation and in our respectful consideration the State Government has miserably failed to comply with the provision of the ‘Act 1980’. Therefore, by saying the substantial compliance of the provision of the ‘Act 1980’ has been made shall not fortify the action of the State Government in respect of the detention order against the detenu.
15. In the counter affidavit of the Union of India the cause of non consideration of report of State Government and failure in taking any decision as yet on the report has also not been explained, however, for reference the relevant paragraphs 4, 5 and 6 of the counter affidavit are extracted as below:
4. That with regard to Para 10 of the petition consideration of report of the detenue submitted that a report as envisaged under Section 3(5) of the National Security Act, 1980 about the detention of the detenu was made by the Government of Tripura to the Central Government in the Ministry of Home Affairs vide their letter No, F. 25 (2)-PD/2006 dated 8-1-2007. The said report was received by the Central Government in the concerned Desk in the Ministry of Home Affairs on 16-1-07 a case file was prepared and the report received from the State Government was processed. It was immediately submitted to the Competent authority i.e. Deputy Secretary (Security), who has been delegated powers by the Union Home Minister to lake note of such cases. Deputy Secretary (security) completed the examination of the reporting the Ministry or Home Affairs on 16-1-07 and the position was noted by Deputy Secretary (Security). He found the detention order justified.”
“5. That with regard to para 13 and 17 of the petition, it is humbly submitted that as per provisions of Section 8 of the N.S., the petitioner on receipt of grounds of detention has right to make representation to the “appropriate government”. As per definition of “appropriate government” the same is this case is the State Government of Tripura who is respondent No. 2 and not the Central Government i.e. respondent No. 1. Furthermore, the time limit of 3 weeks stipulated in Section 10 is applicable in respect of disposal of representation made to the “appropriate government” which is respondent No. 2 in this case.”
“6. That there is no legal obligation on respondent No. 1 to call for representation from the detenue. It is submitted that up to 21-3-07 no representation from the detenue or on his behalf has been received in the concerned section of the Ministry in the Central Government. Therefore, no comments are being made in this regard.
16. The learned Counsel appearing on behalf of the petitioner in order to substantiate the grounds for assailing the detention order that there are unexplained delay in disposing the representation of the petitioner/detenu resulting to violation of the rights of the petitioner/detenu guaranteed under Article 22(5) of the Constitution of India which renders the continued detention order vitiated has pressed into service the following decisions of the Supreme Court:
1. K.M. Abdulla Kunhi and B. L. Abdul Khader v. Union of India and Ors. State of Karnataka and Ors. ;
2. Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police and Ors. ;
3. Aslam Ahmed Zahir Ahmed Shaik v. Union of India and Ors. ;
4. Kundanbhai Bulabhai Shaikh v. Dist. Magistrate, Ahmedabad and Ors. etc.
5. Kamleshkumar Ishwardas Patel v. Union of India and Ors. C/B;
6. Venmathi Selvam (Mrs.) v. State of T.N. and Anr. ;
7. Rajammal v. State of T.N. and Anr. ;
8. S.N. Mukherjee v. Union of India .
17. On behalf of the petitioner following submissions have been made:
(A) Constitution Bench of this Court way back in 1984 Cri LJ 1558 (Hitendra Nath Goswami, petitioner v. State of Assam and Ors.) while dealing with the scope of Section 14(1) and Section 3(5) of the ‘Act 1980’ has observed that the report of the State Government has to be considered by the Central Government with reasonable expedition. In support of his contention, para 13 has been referred by the learned Counsel for the petitioner which is quoted as below:
13. In Haradhan Saha v. State of West Bengal a Constitution Bench of 5 Judges expressed the view that Section 14, Maintenance of Internal Security Act of 1971, which is in pari material with Section 14, National Security Act of 1980, provides that without prejudice to the provisions of Section 21, General Clauses Act of 1897, detention Order may at any time be revoked by the appropriate Government. The same view was also expressed by the Supreme Court in Ram Bali v. State of West Bengal , where it was held that it is left with the Central Government in exercise of his discretion, either to exercise the power read with the provisions of Section 21 General Clauses Act, or without aid of Section 21, General Clauses Act of 1980. See also Smt. Kavita v. State of Maharashtra . In Hardhan Saha’s case, (1974 Cri LJ 1479) the Supreme Court observed: ” Section 14 of the Act clothes the authority with the power of revoking or modifying the detention order at any time. Such a power which is for the benefit of the detenue carries with it the duty to exercise that power whenever and as soon as charge or new factors call for exercise of that power.
(B) In (1985) 2 GLR 1, (Somi Angkang v. Union of India and Ors.,) the Central Government is duty bound to consider the report of the State Government under Section 3(5) read with Section 14(1) of the ‘Act 1980’ with reasonable expedition and failure on the part of the Central Government shall violate the procedural safeguards to the detenue and as such order of detention shall be liable to be set aside. In support of his stand, the learned Counsel for the petitioner has invited the attention of this Court to the relevant paragraphs of Somi Angkang (supra) which are quoted as below:
We are of the firm opinion that not only the Central Government is duty bound to consider the report, but it must do so with reasonable expedition and it must perform the duties and obligations enjoined under Section 14(1) of the Act of 1980. The object of sending the report is either to revoke or modify, or not to revoke or modify the order. This supervisory power conferred by the statute on the Central Government is a discretionary power.
The nature and character of the power of the Central Government is absolutely discretionary. There is no dispute at the Bar that the Central Government may revoke an order, modify it, or refuse to modify or recall it. However, can the Central Government take a negative view, i.e. hot to consider the report at all ? In the instant case, the common case of the parties is that the report needs consideration by the Central Government with reasonable expedition. There is no dispute at the Bar that the underlined object of the Parliament in conferring the supervisory power on the Central Government is intended to make an effect additional check and safeguard against improper exercise of power by the detaining authority or by the State Government.
It is clear that the report received under Section 3 of the Act or any communication received from the detenue must be considered with reasonable expedition. In our opinion, the term “consideration” in the present context means perusal with a purpose followed by a decision. Insofar as decision is concerned, the Central Government may take any one of the four possible courses i.e., either to revoke, or modify or not to revoke or modify the order. No reason may be required to be given in taking a decision. It may not be a speaking order; but the Central Government must consider the report, and consideration cannot be done in a vacuum. The duty is imposed by the Parliament on the Central Government pertains to the field of life and liberty of citizens. It is a serious business. As such, it must consider the report effectively to fulfill the object for which the section has been enacted by the Parliament. The object as already stated, is to consider whether there was improper exercise of the power of the detention by the detaining authority or the State Government. The connotation of the word “consider” is “to look at attentively or carefully : to think or deliberate on; to take into account; to attend to; to regard as”. Admittedly, casual or mechanical exercise of power is not exercise of the power of the Central Government under Section 3(5) read with Section 14(1) of the Act.
(C) In 2005 (3) GLT 33 (Gopal Boro alias Gwojen Boro v. Union of India and Ors.), a Division Bench of this Court, relying upon the decision of Hitendra Nath Goswami (1974 Cri LJ 1479) (supra) and after considering the decision of Somi Angkang (supra) has held that power of revocation of detention order vested in the Central Government is to be exercised with reasonable expedition.
(D) Despite receiving the report of the State Government, Central Government did not consider and applied its mind in respect of revocation or modification of the detention order under its statutory obligation provided under Section 14(1) of the ‘Act 1980’. According to the learned Counsel for the petitioner, in view of Hitendra Nath Goswami (supra) – the Central Government is duty bound to consider the report of the State Government with reasonable expedition under Section 14(1) of ‘Act 1980’ notwithstanding any representation /petition was made by the detenue to the Central Government. In support of his submission, the learned Counsel has referred to paragraph 33 of Hitendra Nath (1974 Cri LJ 1479) (supra) which is quoted as below:
33. I have discussed at length the question under reference, and for reasons given above, my answer is that the discretionary power of the Central Government under Section 14(1) of the Act in the context of Section 3(5) of the Act is coupled with duty to consider the report received from the State Government with reasonable expedition, notwithstanding that no representation/petition has been made by the detenue to the Central Government; what is reasonable expedition depends on the circumstances of the particular case; and in case of breach of such procedural safeguard, the detention order is liable to be set aside and the detenue set at liberty.
(E) In (Jai Singh v. State of Jammu and Kashmir) it was observed (Para 1):
There is nothing to indicate that the District Magistrate applied his mind to the question whether an order of detention under the Jammu and Kashmir Safety Act was necessary despite the fact that the petitioner was already in custody in connection with the criminal case.
(F) Relying on the decision of Supreme Court in (Smt. Sashi Agrawal v. State of U.P. and Ors.) the counsel for the petitioner submitted that in absence of any materials existing on records to show that the detenu if released on bail was likely to commit activities prejudicial to maintenance of public order, and the ground that detenu who was in jail, was trying to come out on bail and there was enough possibility of his being bailed out was held not justifiable and detention order was held illegal. For convenience para 11 is quoted as below:
Every citizen in this country has the right to have recourse to law. He has the right to move the Court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the Court for bail by clamping an order of detention. The possibility of the Court granting bail may not be sufficiency. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenue. If enlarged on bail, would act prejudicially to the interest of public order.
(G) The learned Counsel for the petitioner has also referred and relied upon the decision of the Supreme Court in (Binod Singh v. District Magistrate, Dhanbad and Ors.) in reference to its decision in (Ramesh Yadav v. District Magistrate Etah and Ors.), it was held that:
Where the order of detention was passed because the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area, the same was not proper. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against the order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail, an order of detention under the Act should not ordinarily be passed.
(H) In (Anant Sakharam v. State of Maharashtra and Anr.) it was observed:
5. We do not think it necessary ‘to go into all the grounds urged before us by the petitioner’s counsel in support of his prayer to quash the order of detention. The one contention strongly pressed before us by the petitioner’s counsel is that the detaining authority was not made aware at the time the detention order was made that the detenue had moved applications for bail in the three pending cases and that he was enlarged on bail on 13-1-1986, 14-1-1986 and 15-1-1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention.
Para 7. We are not satisfied that this is a fit case to resort to preventive detention. We refrain from referring to the other grounds urged before us and from examining them. The petitioner is entitled to succeed on the first ground.
(I) In (District Collector, Ananthapur and Anr. v. V. Laxmanna) observed that indulgence of detenue in manufacture or transport or sale of arrack by itself would not become an activity prejudicial to the maintenance under A. P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offender and Land Grabbers Act, 1986.
(J) The detention order was verbatim reproduction of the proposal of the sponsoring authority. Therefore it was held that “detaining authority must apply its mind not only while granting approval to the detention order but also at the time of preparation of the detention order and grounds, thereof in view of (2005) 8 SCC 390 (Rajesh Vashdev Adnani v. State of Maharashtra and Ors.)
(K) The detenu was already in jail custody, then whether detention order should be passed in that respect, the elaborate condition has been laid down by the Supreme Court in (Kamaurunnissa v. Union of India) which was subsequently referred and followed in (T.V. Sravanan alias S.A.R. Prasana Venkatachariar Chaturvedi v. State Through Secretary and Anr.). The relevant paragraphs 9 and 10 are quoted below:
9. In Kamarunnissa v. Union of India 1991 Cri LJ 2058, this Court observed : (SCC p. 140, para 13)
“13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity; (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to opposite the bail and if bail is granted notwithstanding such opposition to question if before a higher Court.
10. Apart from these decisions learned Counsel for the appellant also placed reliance on the decision in Rajesh Gulati v. Govt. of NCT of Delhi , K. Varadharaj v. State of T.N. . Amritlal v. Union Govt. (2001) 1 SCC 341 : 2001 Cri LJ 474; Rivadeneyta Ricardo Aguystin v. Govt. of the NCT of Delhi (1994) Supp (1) SCC 597 : and Abdul Sathar Ibrahim Manik v. Union of India :
(L) The Constitutional Bench of the Supreme Court in Kamleshkumar Ishwardas Patel v. Union of India and Ors. (supra) observed as below while discharging the constitutional obligation to enforce the fundamental rights of the people, more specially right to personal liberty, the Court would not be influenced by the nature of the activities of the detenu. The history of liberty is the history of procedural safeguards. The safeguards enshrined in Clauses (4) and (5) of Article 22 are required to be zealously watched and enforced by the Court.”
The other two relevant paragraphs 34 and 49 of Kamlesh Kumar Ishwardas Patel (supra) are quoted as below:
34. In the National Security Act there is an express provision (Section 3(4) in respect of orders made by the District Magistrate or the Commissioner of Police under Section 3(3) and the District Magistrate or the Commissioner of Police who has made the order is required to forthwith report the fact to the State Government to which he is subordinate. The said provision further prescribes that no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government. This would show that it is the approval of the State Government which gives further life to the order which would otherwise die is natural death on the expiry of twelve days after its making. It is also the requirement of Section 3(4) that the report should be accompanied by the grounds on which the order has been made and such other particulars as, in the opinion of the said officer, have a bearing on the matter which means ” that the State Government has to take into consideration the grounds and the said material while giving its approval to the order of detention. The effect of the approval by the State Government is that from the date of such approval the detention is authorized by the order of the State Government approving the order of detention and the State Government is the detaining authority from the date of the order of approval.
“49. At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenus have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other antinational activities which are very harmful to the national economy. He has urged that having regard to the nature of the activities of the detenus the cases do not justify interference with the order of detention made against them. We are not unmindful of the harmful consequences of the activities in which the detenus are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these consideration. It has been said that history of liberty is the history of procedural safeguards. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be “zealously watched and enforced by the Court”. Their rigor cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by this Court while rejecting a similar submission : para 4)
“May be that the detenue is a smuggler whose tribe (and how their numbers increase !) deserves no sympathy since its activities have paralyzed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus.” (Rattan Singh v. State of Punjab), .
(M) The Supreme Court has held in AIR 1973 SC 825 : 1973 Cri LJ 656 (Sk. Rashid v. State of West Bengal)
Neither the Constitution nor the maintenance of Internal Security Act expressly provides for consideration of a dentin’s representation by the State Government within any specified period of time. However, the use of the words “as may be” in Article 22(5) reflects the anxiety on the part of the framers of the Constitution to enable the detenue the grounds on which the order of his detention has been made so that he can make an effective representation against, it at the earliest. The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, ‘without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. and . Followed (Para 4) Whether or not the State Government has, in a given case, considered the representation made by the detenu as soon as possible (in other words, with reasonable dispatch) must necessarily depend on the facts and circumstances of case, it being neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases. The Court has in each case to consider judicially on the available material if the gap between the receipt of the representation and its consideration by the State Government is so unreasonably long and the explanation for the delay offered by the State Government so unsatisfactory as to render the detention order thereafter illegal. (Paras 4, 5)
18. The Supreme Court in K.M. Abdulla Kunhi and B. L. Abdul Khader v. Union of India and Ors., State of Karnataka and Ors. 1991 Cri LJ 790 (supra) held that the representation relates to the liberty of the individuals, the highly cherished right enshrined in Article 21 of the Constitution, Clause (5) of Article 22 castes a legal obligation on the Government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words “as soon as may be” : occurring in Clause (5) of Article 22 reflects the concern of the framers that the representation should be expeditiously considered and disposed of with the sense of urgency without any unavoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of the case. There is no prescribed time limit either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement, however, is that there should be no supine indifference, slackness or callousness attitude in considering the representation. Any unexplained delay in the disposal of the representation would be a prejudice of the constitutional imperative and it would render the continue detention impermissible and illegal.” The Supreme Court again, reiterated in Rama Dhondu Borade (1989 Cri LJ 2119 (supra) that the detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly there is a constitutional mandate commanding the concerned authority to whom the detenue forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose of the same as expeditiously as possible. The Apex Court in Rajammal v. State of T.N. Anr. 1999 Cri LJ 826 (supra) had discussed as to how the duration or range of delay in disposing the representation is fatal or not and held that the test is not the duration or range of delay but it is the explanation made by the concerned authority. Para-8 of SCC in Rajammal v. State of T.N. Anr. reads as follows:
8. The position, therefore, now is that if delay was caused on account of any indifference, or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So, test is not the duration or range of delay, but how it is explained by the authority concerned.
19. Non communication to detenu that he has right to make representation to detaining authority amounts to infraction of his right under Article 22(5) violating order of detention as held by the Supreme Court in (State of Maharashtra and Ors. v. Sontosh Shankar Acharya) in reference to Maharashtra Prevention of Dangerous Activities of Slumlords, Boot Leggers Drugs Offenders and Dangerous Persons Act, 1981.
The right of detenue flows from Article 22(5) and is in addition to his rights to make representation to the State Government or Central Government. The detenu has also right, to be informed that he can make representation. Article 22(5) has the same force and sanctity as any other provision relating to fundamental rights.
20. If no justifiable or convincing reasons are placed in support of the inference drawn by the detaining authority that there was likelihood of the release of a person on; bail, an order of detention cannot be sustained, in reference to the decisions of Supreme Court in PU Abdul Rahman v. Union of India (1991) Supp 2 SCC 274 : 1991 Cri LJ 430, Surya Prakash Sharma v. State of U.P. (1994) Supp 3 SCC 195 : 1995 Cri LJ 2657, Amril Lal v. Union Govt. through Secretary, Ministry of Finance (2001) 1 SCC 341 : 2001 Cri LJ 474, Rajesh Gulati v. Govt. of NCT of Delhi and Union of India v. Paul Manicham is not, therefore, misplaced.
21. It is also, at this stage, pertinent to point out that passing of an order of detention against a person, who is not in custody and a person, who is in custody does not stand on the same footing. In what circumstances, an order of preventive detention can be passed against a person, who is already in custody, has been the subject of many authoritative pronouncements, the foremost amongst these being the Constitution Bench decision of Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan .
22. In Dharmendra Suganchand Chelawat v. Union of India , a three-judge Bench of the Supreme Court, taking into account the earlier decision of the Supreme Court including the Constitution Bench decision in Rameshwar Shaw (1964 (1) Cri LJ 257) (supra), observed as follows:
The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression ‘compelling reasons’ in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.
23. From the observations made in Dharmendra Suganchand Chelawat (1990 Cri LJ 1232) (supra), it is clear that when a person is in custody and yet an order of detention is made against him, the detaining authority must be inferred to have arrived at its satisfaction of the necessity of passing of the order of detention on the basis of the materials available before it reflecting that the person, sought to be detained, is likely to be released on bail. A mere apprehension that the person concerned will, if released on bail, indulge in prejudicial activities, cannot permit making of detention order unless ‘compelling reasons’ are reflected from the materials furnished by the detaining authorities to show that the detaining authorities had reasons to feel satisfied that the detenu though in custody, is likely to be released from the custody in the near future, in the absence of any material available in this regard an order of detention cannot be sustained.
24. Keeping in mind the above aspect of the law, when we analyse the facts of the present case, we notice that the detaining authority has, while making the order of detention, did not indicate anywhere that the detenue was likely to be released on bail. For the conclusion, which the detaining authority has so reached or for the inference, which the detaining authority has so drawn, there ought to have been cogent materials available on record indicating that the detaining authority was justified in arriving at its satisfaction that there was likelihood of the petitioner being released from custody. There is however, not even an iota of materials placed before this Court to show that there were some materials, howsoever inadequate, to justifiably infer that the petitioner, in the present case, was likely to be released on bail. In fact, the detenu was released on bail after forty-eight days i.e. on 5-2-2007 of the passing of the order of detention dated 19-12-2006. In the absence of any material, whatsoever, in the case at hand, showing that the detaining authority had reasons to conclude that there was likelihood of the petitioner’s being released on bail the detaining authority had really no power under the law to pass the order of detention.
25. There must be likelihood of the person, in detention, being released on bail in order to enable an authority to pass an order of detention has also been emphasized in Surya Prakash Sharma (1995 Cri LJ 2657) (supra) and Amrit Lal (2001 Cri LJ 474) (supra).
26. It is settled law that the law permitting preventive detention must be meticulously followed both substantively and procedurally by the detaining authority. (Icchu Devi Choraria v. Union of India (; Vijay Narain Singh v. State of Bihar , Hem Lall Bhandari v. State of Sikkim , and Ayya v. State of U. P. .”
27. What crystallizes from the above discussion is that the order of detention passed against the petitioner cannot be allowed to survive on the ground that the order of detention dated 19-12-2006 died on its own natural death or became non-est in view of Section 3(5) of ‘Act 1980’ as the same was not approved within twelve days of its making thereof and was approved on 8-1-2007 by the State Government. While making the order, not even an iota of material was available before the detaining authority and no ground existed to take the view by the detaining authority that there was likelihood of the petitioner being released on bail. Apart from this also, there was really no urgency or even necessity of passing of the order of detention, more so, the order of detention, for no reasons whatsoever, remain unexecuted till 19/20 January, 2007 indicating thereby complete absence of ‘compelling reasons’ for passing of the order of detention as early as on 19-12-2006.
28. Our attention has been drawn by the learned Counsel for the petitioner in view of decision of a Division Bench of this Court in Jagdish Debbarma alias Jester v. State of Tripura and Ors. reported in 2004 (3) GLT 353, the Court has held that if the State Government does not approve the order of detention within a period of 12 days from the date of execution of the detention order, the order becomes non est.
29. The statement of law made in Jagdish Debbarma (supra) to the effect that it is the detention of the petitioner, which needs to be approved the State Government and not the detention order and that such approval must be made within 12 days after execution of the order of detention may not, therefore, be a correct view. Section 3(5) specifies that such detention order shall not remain in force for more than 12 days after the making thereof unless, in the meantime, it has been approved by the State Government. Therefore, it is the detention order, which requires approval of the State Government to give further life to it, which would, otherwise, die its natural death on the expiry of 12 days after its making. Secondly, when a detention order is issued by an officer authorized under Section 3(2) of the National Security Act, he continues to be the detaining authority until the order issued by him is approved by the State Government within a period of 12 days from the date of making thereof and consequently, the detenu will have a right of representation to him so long as the detention order is not approved by the State Government; but once the order is approved by the State Government within the aforesaid period, the effect is that from the date of such approval, the detention is authorized by the order of State Government and the State Government becomes the detaining authority from the date of the order of approval. Thereafter, the original detaining authority (authorized officer) will have no power to revoke, rescind or modify the detention order and the detenu will really have no right to representation before him.
30. As required under Section 8 of ‘Act 1980’, the State Government is under legal obligation to serve grounds of “detention to the detenu within five days from the date of detention and in exceptional circumstances, for reasons to be recorded in writing not latter than 10 days from the date of detention order for providing earliest opportunity, so that the representation, against the order of detention to the appropriate Government, could be made by the detenu. Undisputedly, petitioner has not made any representation to the Central Government, but she has made representation to the State Government but, the Central Government irrespective of the fact that no representation for and on behalf of the detenu was filed is under legal obligation and duty bound to consider and apply its mind to take a decision under Section 14(1) of the ‘Act, 1980’ on the report sent by the State Government with reasonable expedition and promptness. Even if no specific, express or clear word for period consideration of report is provided under Section 14(1) of ‘Act, 1980’, nevertheless, the report has to be considered with promptitude for the purpose of taking decision either for revocation or modification. The modification of report with either zero variation or with no variation is termed as affirmation of the report. Unexplained delay or unreasonable explanation or non-indication of satisfactory justifiable explanation tantamounts failure of consideration of report or the representation by the concerned Government.
31. On perusal of the records and pleadings and after hearing learned Counsel for the parties, we are of the considered view that the State Government has made very casual approach while dealing with the present case and there is non application of mind on the part of the State Government regarding passing the detention order dated 19-12-2006.
Specific period is to be mentioned in the detention order as required under law. As required under Section 3(3) of the ‘Act 1980’ the detention order at the initial could be passed by specifying period not exceeding three month at the first instance and thereafter specifying another period of subsequent order subject to maximum of twelve months of detention.
The Superintendent of Police, Dhalal District has informed vide his letter dated 21-1-2007 to the District Magistrate & Collector, that the detention order has duly been served on 19-1-2007 to the detenu at Kamalpur sub-jail, in jail custody. From another letter dated 21-1-2007 of Superintendent of Police it is revealed that “the detention order came into effect on 20-1 -2007 immediately after his release from the judicial custody on the same day.” The information to this effect was forwarded vide letter dated 22-1-2007 of District Magistrate to the Joint Secretary, Home Department, State of Tripura. In reference to the information furnished on 22-1-2007 by Superintendent of Police to District Magistrate, Dhalai District, the later has accordingly intimated to the Joint Secretary (Home Department) State of Tripura that the detention order would not come into effect from 20-1-2007 as mentioned earlier but it will come into effect after release of detenu from judicial custody. The above fluctuating stand is indicative of non-application of mind on the part of the detaining authority.
The detention order is to be made effective from the date of making thereof and it cannot indicate to be effective from any unspecified future date. The detention order dated 19-12-2006 passed when the detenu was in judicial custody shall be effective from 19-12-2006. The question of taking the detenu in custody when he is already in custody is unusual. The detention order along with the grounds is to be communicated to the detenu ordinarily not later than five days from the date of detention as required in Section 8 of the ‘Act 1980’. The detention order passed against detenu already in custody shall be effective from the date of its making thereof and detention order cannot be said to take effect from the date on which he is released from judicial custody. The date of already detained person cannot be other than date of detention order and the statutory time indicated to serve the grounds shall start from the very date of detention order.
Despite the fact the State Government and their authorities were certain about the date of detention of detenu even then they have not taken any decision on the representation of the detenu. Central Government has equally failed to take any decision on the report of the State Government sent on 8-1-2007. No reasonable explanation has been forthcoming by way of affidavit or through original records, indicating reasons of non-consideration of the report as well as the representation of the detenu. In these circumstances, in view of the above observations the detention order is liable to be set aside. According to Section 3(4) of ‘Act 1980’ the detention order shall not remain in force more than twelve (12) days after making thereof unless in the meantime such detention order has been approved by the State Government.
32. The order of detention in question was passed on 19-12-2006 by the District Magistrate and Collector, Dhalai and the same was approved on 8-1-2007 by the State Government i.e. after twenty days where as, as required under Section 3(4) it was to be approved on or before 30-12-2006. Since the detention order was not approved within 12 (twelve) days as required by Section 3(4) of the ‘Act 1980’, therefore, it has died its natural death and cannot said to be surviving after 12 (twelve) days from 19-12-2006. The inert or lifeless detention order cannot be served on 19-1-2007. On this aspect alone the detention order dated 19-12-2006 could be decided as legally sustainable.
33. In the facts and circumstances of the case and in view of the above observations, the above questions are dealt with and answered accordingly, and since the State Government has already sent report to the Central Government under Section 3(5) of the ‘Act, 1980’ and the Central Government has not yet taken any decision, such lapse on the part of the Central Government is in derogation to the spirit of Section 14(1) of the ‘Act 1980’. The Central Government was under statutory obligation to consider the report for either revocation or modification of the detention order. The aspect of non-consideration of report or the delay in disposal of the report has not been explained at all by the Central Government. The State Government has also failed to explain as to why the representation of detenue could not be disposed of. Non-consideration of report or failure to take decision on the report of State or representation of detenu or delay in disposal of report or representation by the State as well as the Central Government is necessarily to be explained satisfactorily for reasons recorded and existing on the records. Therefore, in the facts and circumstances of the case, the detention order dated 19-12-2006 (Annexure 14 to the writ petition) in question made in respect of Hebal Abel Koloy alias Holong i.e. in respect of the petitioner’s husband, is set aside and the detenu is released forthwith unless he is wanted in some other criminal case.
34. In view of the above observations and directions, the writ petition is disposed of.