9911796707
|
Home
Issues Involved:
1. Subjective satisfaction of the detaining authority. 2. Delay in considering the detenu's representation. 3. Denial of opportunity to appear before the Advisory Board. Summary: 1. Subjective Satisfaction of the Detaining Authority: The State's appeal challenges the High Court's quashing of the detention order u/s 3(2) of the National Security Act, 1980. The High Court found a lack of subjective satisfaction as no criminal case was registered against the detenu for his alleged public utterances. The Supreme Court found force in the Attorney General's submission that the detention order was based on pertinent materials, emphasizing that preventive detention is anticipatory and precautionary, distinct from punitive detention. The Court cited precedents, including Fazal Ghosi v. State of U.P., to support that preventive detention can be justified on suspicion or reasonable probability without criminal prosecution. The Court concluded that the non-registration of a criminal case did not indicate non-application of mind or lack of subjective satisfaction by the detaining authority. 2. Delay in Considering the Detenu's Representation: The High Court upheld the contention of inordinate delay in considering the detenu's representation. The representation dated 1.9.1988 was disposed of by the State Government on 28.10.1988, and the detenu was informed on 8.11.1988, resulting in a delay of over two months. The Supreme Court noted that the State Government took only 13 days, including 4 holidays, to dispose of the representation after receiving the Xerox copy from the Central Government. However, the overall delay from submission to informing the detenu violated the constitutional right to prompt disposal. The Court emphasized the need for expeditious action in preventive detention cases, citing precedents like Jayanarayan Sukul v. State of West Bengal and Frances Coralie Mullin v. W.C. Khambra. 3. Denial of Opportunity to Appear Before the Advisory Board: The High Court found that the detenu was denied the opportunity to appear and produce witnesses before the Advisory Board. The Supreme Court noted that despite efforts by the detaining authority, the detenu avoided appearing before the Board on 12.11.1988, citing inability due to a frozen joint. The Court observed that the detenu was informed of another sitting but was not given the opportunity within the mandatory period. The Court emphasized the importance of the Advisory Board's role in preventive detention and the necessity of adhering to procedural safeguards, citing A.K. Roy v. Union of India and other precedents. The failure to provide the detenu an opportunity to be heard resulted in the violation of constitutional and statutory provisions. Conclusion: The Supreme Court dismissed the State's appeal, upholding the High Court's order to set the detenu at liberty forthwith unless required in connection with any other case. The judgment emphasized the need for strict adherence to procedural safeguards in preventive detention cases to protect personal liberty.
|
