T. Vaiphei, J.
1. These writ petitions for issuing a writ of habeas corpus, involving common questions of law, were heard together and are being disposed of by this common judgment. The three writ petitioners have been detained in custody by separate detention orders bearing the same date i.e. 30.3.2007 issued by the District Magistrate, West Garo Hills Tura under Section 3(1) of the Meghalaya Preventive Detention Act, 1995 as they were likely to be released on bail whereupon it was highly probable that they would continue to act in a manner prejudicial to the security of the State and the maintenance of public order or in a manner dangerous to the life and property of the citizens.
2. The material facts of the case in the three writ petitions are also virtually identical. The three petitioners were arrested or shown arrested in connection with (i) Tura PS Case No. 113(11) 2006 under Section 395 based on the FIR dated 26.11.2006 which does not name them, (ii)Tura PS Case No. 21(2) 2007 under Section 384/506/511/34 IPC based on FIR dated 28.2.2007 without naming any of them as suspect and (iii) Tura P.S. Case No. 26 (3) 2007 under Section 384/506/511 IPC. The respective detention order and grounds of detention were separately served upon each of the petitioners on 30.3.2007 itself at District Jail, Tura where they have been lodged since 27.2.2007 in the case of the petitioners in WP(Crl.) No. 107 and 109 of 2007 and since 3.2.2007 in the case of the remaining petitioner. A perusal of the detention orders are virtually couched in the same language will show that the detaining authority in all the cases does not mention the name of the authorities to whom the petitioners should make their representation against their detention order. For better understanding of the controversy, we, may, as illustrative of the remaining detention orders, reproduce hereunder the detention order in WP (Crl) No 107 of 2007:
Government of Meghalaya
Office of the District Magistrate :
West Garo Hills : Tura
=/Order under Section 3( 1) of the Meghalaya
Preventive Detention Act, 1995/=
Whereas I am satisfied that in respect of the person known as Shri John Schepler D. Shira S/o Shri Hunter Ch. Momin of Dakopgre Industry Quarter, P.S. Tura, West Garo Hills District who is a hardcore member of ANLF (an extremist outfit of Meghalaya) has dreadful criminal records of extortion, dacoity, working consistently in fulfilling the purpose of the organization in seeing that the ANLF succeeds in anti national goals and ends and who is in judicial custody and involved in various cases registered with Police Stations viz: (One) Tura PS Case No. 113(11 )2006 Under Section 395 IPC (Two) Tura PS Case No. 21 (2) 2007 Under Section 384/506/511/34 IPC (Three) Tura PS Case No. 26(3) 07 Under Section 384/511/506 IPC (Four) Tura PS Case No. 37(3)07 Under Section 25(1-a) (B-a) Arms Act and is likely to be release on bail whereupon it is highly probable that he will continue to act in a manner prejudicial to security of the State and maintenance of public order dangerous to the life and property of the citizens and it is necessary that he be detained and being so satisfied.
Now therefore in exercise of powers conferred upon me under Section 3(1) of the Meghalaya Preventive Detention Act, 1995,1, Shri P. Sampath Kumar, IAS, District Magistrate, West Garo Hills, Tura do hereby direct that the said Shri John Schepler D. Shira be detained with immediate effect and until further orders at the District Jail, Tura.
Given under my hand and seal this 30th day of March, 2007.
(P. Sampath Kumar)
West Garo Hills, Tura
3. The first limb of submission of Mr. R. Kar, the learned Counsel for the petitioners is that when no bail applications were filed or were pending and, at any rate, the bail application of the one of the petitioners was already rejected in succession on 19.2.2007 and on 5.3.2007, at the time when the respective detention orders were issued, there were no materials before the detaining authority to form an opinion that they were likely to be released on bail. This, according to the learned Counsel, betrays total non-application of mind on the part of the detaining authority; the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention. It is also contended by the learned Counsel for the petitioners that inasmuch as the detaining authority did not indicate to the petitioners the appropriate authorities to whom they could make representation against their detention, the impugned detention orders infringe their fundamental right guaranteed under Article 22(5) of the Constitution of India, and are bad in law. In support of his various contentions, the learned Counsel cites the following decisions : (a) Smti Icchu Devi Choraria v. Union of India ; (b) State of Maharashtra v. Santosh Shankar Acharya ; (c) Dharmendra
Sugganchand Chelawat v. Union of India and Ors. ; (d) Mohinnuddin v. District Magistrate , (e) Ranjit Dam v. State of West Bengal ; (f) Konsam Brojen Singh v. State of Manipur 2006 (J) GLT 375 : 2006 (1) GLJ 568 (FB); (g) Rongjam Momin v. Union of India and Ors. 2005 (1) GLT 173 : 2005 (1) GL.J 285. Per contra, Mr. S. Sen, the learned Counsel appearing for the State-respondents supports the detention order and submits that the detaining authority, after duly taking into account all the relevant materials, approved the detention orders and categorically denied that the approval has been done mechanically. Similarly, according to the State Counsel, the Advisory Board applied its mind and took into consideration all the relevant aspects in accordance with law, and no interference is therefore, called for in the impugned detention order. He draws our attention to the last paragraph of the grounds of detention vide the letter dated 30.3.2007 and claims that the detenues were informed of their right to make representation against their detention, a fact which is fully corroborated by the representation made and submitted by each of them to the Chief Secretary, Principal Secretary, Political Department, Commissioner of Division, Garo Hills and the Deputy Commissioner, Tura dated 10.4.2007 vide the letter dated 2.4.2007 in the case of the petitioners in W.P. (Crl.) Nos. 107 and 109 of 2007 and the letter dated 10.4.2007 in the case of the remaining petitioner. He reiterates that the detention orders have been made following all the requirements of law. He, therefore, urges this Court to dismiss the writ petitions.
4. The law is now well-settled that the right to make representation carries with if the corresponding obligation upon the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation. Who are the authorities to consider the representations of the detenues. Obviously, these authorities are the detaining authority, the State Government and the Central Government. The impugned detention orders unambiguously show that the detaining authority therein does not inform the petitioners that they have the right to make representation to him, the State Government and the Central Government. The very fact that the petitioners might have submitted their respective representations to these authorities will be of no consequence when we are dealing with the fundamental rights guaranteed under Article 22(5) of the Constitution. The first and paramount duty of the detaining authority is to inform the detenues in no uncertain terms that they have the right to make representations before him, the State Government and the Central Government; the omission to discharge this duty will vitiate the detention orders. By not indicating the authorities to whom the representations can be made by the petitioners, their right to make representation has been rendered illusory. In Rongjam Momin v. Union of India 2005 (1) GLT 173 : 2005 (1) GLJ 285, a Division Bench of this Court, while dealing with the same Act, held that due to the failure of the detaining authority to inform the detenue/petitioner of his right to file a representation to the detaining authority as well as the Central Government, the fundamental right of the petitioner under Article 22(5) of the Constitution has been infringed thereby vitiating the impugned detention order and of the order approving the same by the State Government. With respect, we may add that such failure will also vitiate the order of the State Government confirming the detention order on the report of the Advisory Board. In the instant case, the detaining authority evidently did not inform the petitioners that they had the right to make representation to any of the aforesaid authorities including the State Government. Therefore, the impugned detention orders are liable to be quashed on this ground alone.
5. On the contention of the learned Counsel for the petitioners that there is no material to form an opinion by the detaining authority that the petitioners were likely to be enlarged on bail, we also find force. In the first place, the allegation made by the petitioners that no bail applications were moved by them or, at any rate, no bail applications filed by them were pending before any Court when the detention orders were passed, has not been denied or contradicted by the State-respondents in their affidavits-in-opposition. Nor is there any other material to show that such applications were filed or pending at that point of time. In view of this, we cannot but conclude that the subjective satisfaction of the detaining authority that there was likelihood of the detenues to be released on bail, was based on no material, and in the absence of such material, the mere ipse dixit of the detaining authority is not sufficient to sustain the orders of detention. In similar circumstances, the Apex Court in T.V. Saravanan v. State and A Shanthi (Smti) v. Govt. of Tamil Nadu and Ors. (2006) 9 SCC 711, after holding that the "imminent possibility" of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever, quashed the detention orders. Incidentally, we may note that the detaining authority did not mention this particular ground in the grounds of detention vide the letter dated 30.3.2007 (Annexure-II) supplied to the petitioners along with the detention orders. So much for the subjective satisfaction. Since we are satisfied that the impugned detention orders are liable to be set aside on the foregoing two grounds, it is not really necessary for us to deal with the other contentions advanced at the bar. However, at the risk of repetition, we deem it our duty to bring to the notice of the detaining authority and other respondents the following legal positions for their future guidance:
(a) The right to make representation before the detaining authority by a detenue against an order of detention is in addition to, and independent of, his right to make such representation before the State Government and the Advisory Board.
(b) The detaining authority has the corresponding obligation to inform the detenue of his right to make such representation not only before the State Government but also before the detaining authority itself.
(c) Since the State Government has necessarily to approve such detention order within a period of 12 days, the detaining authority must communicate such fact of detention along with the grounds of detention and other materials to the detenue well ahead in time, much prior to the expiry of 12 days time, so as not to render illusory the obligation of the detaining authority to consider detenue's representation forthwith.
(d) The ruling of the Apex Court under Cofeposa is held applicable to a situation under a statute relating to preventive detention.
(e) 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 same becomes non-est and the subsequent confirmation by the Advisory Board or the State Government does not below life into the corpse and in either case, the order of detention becomes illegal.
(f) The order of detention must be approved by the State Government within 12 days of the order of detention and failure to do so would render the detention illegal.
(g) Where a petition for a writ of habeas corpus is filed under Article 226 of the Constitution, the authority who passes the detention order alone is the competent authority to file counter-affidavit. The fact that he is no longer available as he has been transferred or appointed as Secretary of the State Electricity Board cannot be considered to be satisfactory reason, see Ranjit Dam and Ors. (supra).
(h) The burden of showing that the detention is in accordance with the procedure established by law is always on the detaining authority because of the clear and explicit term of Article 21 of the Constitution; even where a requirement of the law is breached in the slightest manner, the court has not hesitated to strike down the order of detention even though the detention may have been valid till the breach occurred and regardless of the social cost involved in the release of a possible terrorist or smuggler,--Ichhu Devi Choraria case (supra).
(i) The obligation of the State Government to consider and dispose of the representation of a detenue and, that too, without delay, is independent of, and is in addition, to its duty to refer the representation of the detenue to the Advisory Board.
(j) In a habeas corpus petition, strict rules of pleadings and burden of proof are not insisted upon by the High Court: the detaining authority must produce all materials before the Court to establish that procedures established by law have been fully complied with before passing of order of preventive detention.
6. The aforesaid legal principles, culled out from the various decisions of the Apex Court, are merely illustrative and are by no means exhaustive. We deem it appropriate to remind the detaining authority and other respondents of the need to sincerely take note of those principles, after all, the decision makers are expected to, and must, understand correctly the law that regulates their decision making powers and must give effect to it. Finally, we cannot resist to quote again and again the observations of the Apex Court in Kamlesh kumar Ishwardas Patel v. UOI and Ors. found at paragraph 49 of the judgment, which read thus:
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 anti-national activities which are very harmful to the national economy. He has urged that having regard to the nature of the activities of the detenu the case do not justify interference with the orders 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 considerations. 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 this 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 (SCC para 4)
May be that the detenu 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 are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus.' (See Rattan Singh v. State of Punjab .
7. The net result of the foregoing discussion is that these writ petitions be and are hereby allowed. The impugned orders dated 30.3.2007 preventively detaining Messrs John Schepler D. Shira, Novemberth Ch. Marak and Neville Ch. Sangma, are accordingly quashed. Consequently, they are set at liberty forthwith unless they are required in connection with other cases. However, considering the facts and circumstances of the case, we pass no order as to costs.
8. A copy of this order be circulated to the Commissioner, Political Department, Govt. of Meghalaya, all the District Magistrates and also to the learned senior Govt. Advocate, Meghalaya.