DILIP KUMAR RAJKHOWA Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) THIS is a habeas corpus petition where the detenu has been detained under Section 3(2) of the National Security Act, 1980, with a view to "preventing him from acting in a manner prejudicial to the security of the State, the maintenance of public order". The petitioner was furnished with a copy, of the grounds. The first three grounds read as under:

(2.) MR . R.C. Choudhury, the learned counsel for the petitioner submits that the grounds are vague, irrelevant and nonexistent; the grounds Nos. 1, 2, 3 are vague and irrelevant, ground No. 1 is factually incorrect as well. The learned counsel further submits that the subjective satisfaction of the detaining authority was vitiated for non-consideration of material facts and consideration of non-existent facts; none of the grounds touches the fringes of the first of the three concentric circles or "the smallest circle" namely, "the security of the State" for which as well, the petitioner is being detained. The State refutes the contentions.

(3.) WHILE considering the second sentence of Ground No.1 marked B, we find that the allegations are not wholly correct. The allegation in B is that the petitioner "remained absconding to avoid detention". It is a serious allegation as an abscondence to avoid detention order is a strong circumstance. The petitioner questioned the correctness of the statement not in a negative and bald manner but in a positive and assertive words that at all relevant period, he worked in the A.S.E.B. Office regularly till his arrest on 2-1-1981 and the office attendance register would show that he had regularly attended his office during the period. These were asserted twice, once in his representation and then in para 8 of the writ petition (quoted above). The return submitted by the successor to the detaining authority contains a vague reply to the assertions. The respondent admitted that the petitioner was an employee of the Assam State Electricity Board, Nowgong, but nowhere stated that the petitioner did not attend his office during the period, nor is there any assertion in the return that the attendance register does not show regular attendance of the petitioner during his alleged abscondence. The return is neither cogent nor proper or adequate to disprove the specific allegations made twice by the petitioner. "Such a vague answer is neither a proper nor an adequate reply in disproof of the specific allegation made twice by the petitioner. That allegation, therefore, remains unanswered and must consequently be accepted in the absence of any cogent reply thereto" vide Mintu Bhakta (supra). We reach the same conclusion. Accordingly we are constrained to hold that Ground No.1 is illusory or non-existent. Further, Ground No.1 clearly indicates that the petitioner remained absconding to avoid the order of detention which is a very grave and serious allegation. We are taken aback to note from "the Dossier" produced by the State that the petitioner was not "absconding on the date", as his earlier detention order had been revoked by the Government. The fact that the petitioner was absconding to avoid service of his detention order was undoubtedly a vital and material fact likely to influence the mind of the authority whereas factually he was not an absconder on the said date. The petitioner contested the correctness of the statement and claimed that he was never an absconder. The said vital and material fact was not considered by the detaining authority. If such material and vital facts likely to influence the mind of the authority were not placed before or considered by the detaining authority, it must be held that there was non-application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority and rendered the detention invalid and illegal, as held by the Supreme Court in Ashadevi v. K. Shivraj, AIR 1979 SC 447. Shaikh Nizamuddin v. State of West Bengal, AIR, 1974 SC 2353; Suresh Mahato v. District Magistrate, Burdwan, AIR 1975 SC 728.