DHIRENDRA BODO Vs. STATE OF SIKKIM
HIGH COURT OF SIKKIM
STATE OF SIKKIM
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BARIN GHOSH, J. -
(1.) BY the judgment and sentence under appeal, the appellant has been convicted and sentenced by the Special Judge, Prevention of Terrorism Act (hereinafter referred to as 'P.O.T.A.') for having committed offences punishable under section 20 (1) of P.O.T.A. and section 5 of Explosive Substances Act (hereinafter referred to as 'E.S.A.'). The appellant, according to the arrest memo, was arrested on 1st January, 2003. Since then he remained in custody. The judgment was rendered on 14th October, 2008 and the sentence was ordered on 18th October, 2008. The appellant was sentenced to undergo simple imprisonment for a period of 5 years for having committed offence punishable under section 20 (1) of P.O.T.A. He was also sentenced to undergo simple imprisonment for a period of 5 years with a fine of Rs. 6,000/- and in default of payment of fine to undergo further simple imprisonment for a period of one month for having committed offence punishable under section 5 of E.S.A. and both the sentences were directed to run concurrently.
(2.) AS on date the appeal was heard, the appellant had served the sentence.
The appellant has raised two technical contentions. The first of them is that the Designated Authority was not the Secretary to the Government of Sikkim. The second is that the consent of the District Magistrate was not obtained.
(3.) CLAUSE (b) of section 2 of P.O.T.A. makes it clear that an officer of the State Government not below the rank of Secretary to the said Government can be the Designated Authority provided he is designated as such by a notification published in the Official Gazette. In this case, there is no dispute that the Government of Sikkim by a notification published in the Official Gazette designated the person concerned as the Designated Authority. The appellant contended that he was not a Secretary to the Government. Evidence on record suggests that at the relevant time the Chief Secretary to the Government of Sikkim was also the Home Secretary to the Government of Sikkim. At the same time the Designated Authority was the Special Secretary to the Government of Sikkim in its Home Department. The notification in the Official Gazette was signed by the Additional Secretary (II), Home Department, who was junior to the Special Secretary and the Chief Secretary-cum-Home Secretary was senior to the Special Secretary. It was contended that a junior could not appoint a senior as the Designated Authority and at the same time it was contended that the Designated Authority was not the Secretary to the Government. Words used in the Statute makes it clear that the person to be designated as Designated Authority should not be below the rank of Secretary. The Special Secretary to the Government was apparently a Secretary to the Government and it was not brought on record that he was not in the rank of Secretary to the Government. It is true that the Additional Secretary, who was admittedly junior to the Special Secretary, signed the notification published in the Official Gazette, but the fact remains that he was only signatory to the Gazette but not the publisher thereof. The State Government published the notification and thereby designated the person concerned. The Additional Secretary was a mere signatory thereto.;
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