Gauhati High Court
Page No.# 1/39 vs The Union Of India And 4 Ors on 20 February, 2026
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/39
GAHC010255332025
2026:GAU-AS:2580-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(Crl.)/76/2025
VICTOR DAS
S/O LATE KUMUD CHANDRA DAS, R/O DADARA (NEAR DADARA
CHOWK), P.S. HAJO, P.O. DADARA, KAMRUP, ASSAM.
VERSUS
THE UNION OF INDIA AND 4 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI, PIN- 110001
2:THE STATE OF ASSAM
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE
GOVERNMENT OF ASSAM
HOME AND POLITICAL DEPARTMENT
GOVERNMENT OF ASSAM
ASSAM SECRETARIAT
DISPUR
GUWAHATI
ASSAM
PIN-781006
3:THE ADVISORY BOARD FOR NATIONAL SECURITY ACT
ASSAM
REPRESENTED BY ITS CHAIRMAN
4:THE COMMISSIONER OF POLICE
GUWAHATI
ASSAM
5:THE SUPERINTENDENT OF CENTRAL JAIL
GUWAHATI
Page No.# 2/39
ASSA
Advocate for the Petitioner : MR S BORTHAKUR, MR D MEDHI,MR SAURADEEP DEY
Advocate for the Respondent : DY.S.G.I., MR. K K PARASAR (C.G.C),GA, ASSAM
Date on which Judgment was reserved: 29.01.2026
Date of pronouncement of Judgment : 20.02.2026
Whether the pronouncement is of the
operative part of the Judgment ? : NA
Whether the full Judgment has been
pronounced ? : Yes
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
JUDGMENT & ORDER
(A.M. Kalita, J)
Heard Mr. S. Borthakur, learned counsel appearing on behalf of the Petitioner as
well as Mr. B. Goswami, learned Addl. Advocate General for the State of Assam,
assisted by Mr. N. Kalita, learned Government Advocate. Also heard Mr. K. K. Parasar,
learned CGC, representing the Respondent no. 1.
2. The instant petition, under Article 226 of the Constitution of India has been filed
praying for a writ in the nature of certiorari for quashing and setting aside the Detention
Order bearing Memo No. CP/CB/NSA/2025/49, dated 07.10.2025, issued by the
Commissioner of Police, Guwahati, in exercise of it's power under Section 3(2) of the
National Security Act, 1980.
3. In the prayers, the Petitioner has, amongst others, prayed for the following reliefs:
-
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(i) issuance of a writ in the nature of certiorari quashing and setting aside the Detention
Order No. CP/CB/NSA/2025/49, dated 07.10.2025, issued by the Commissioner of Police,
Guwahati;
(ii) issuance of a writ in the nature of certiorari quashing and setting aside the Grounds of
Detention served upon the Petitioner on 08.10.2025;
(iii) issuance of a writ in the nature of certiorari quashing and setting aside the Order No.
PLA-710928/122, dated 14.10.2025, by which the detention order of the Petitioner was
approved by the Government of Assam/Hon’ble Governor of Assam;
(iv) issuance of a declaration that the detention of the Petitioner is illegal;
(v) issuance of a writ of habeas corpus directing the immediate release of the Petitioner from
detention;
(vi) issuance of a direction to the Respondent authorities to appropriately compensate the
Petitioner and/or;
(vii) pass any other such order(s) as this Court may deem fit and proper.
4. Defending the action of the Government, the Respondent no. 2, on being
authorized by the Addl. Chief Secretary to the Government of Assam, Home & Political
Department, the Secretary to the Government of Assam, Home & Political Department
has filed an Affidavit-in-Opposition in the instant case. Additionally, another Affidavit-
in-Opposition has also been filed on behalf of the Respondent no. 4, i.e., the
Commissioner of Police, Guwahati, Assam.
5. After a preliminary hearing, notices were issued on 21.11.2025 by this Court in the
instant matter.
6. The matter was finally heard on 21.01.2026 and 29.01.2026 respectively. On
conclusion of the hearing, the judgment and order was reserved on the very same day.
7. The Petitioner, namely, Shri Victor Das, is presently under prevention detention
under the National Security Act, 1980. (herein after referred to as NSA, 1980) and being
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aggrieved by the act of keeping him in such preventive detention, the Petitioner has
approached this Court. The facts arising to his detention and his assailing of the
Detention Order are summarized herein below: –
(i) An FIR was lodged on 22.09.2025, by one Sub Inspector (SI), namely, Sri
Sanjiv Handique of Borjhar Outpost against the Petitioner at Azara Police Station,
which was registered as Azara Police Station Case No. 142/2025, under Sections
191(2)/190/296/324(5)/109/132 of the Bharatiya Nyaya Sanhita (herein after
referred to as BNS), 2023, read with Section 3 of the Prevention of Damage to
Public Property Act, 1984. It was alleged in the FIR that after the death of late
Zubeen Garg, the famous singer belonging to the State of Assam, his dead body
was supposed to be arrived at the LGBI Airport, Guwahati, on 20.09.2025 from
Singapore via Delhi. In view of the aforesaid, a large crowd gathered at the
aforesaid Airport to have a glimpse of the dead body of late Zubeen Garg. The
Informant, along with his staffs were performing their official duties at the main
entrance road at the said Airport. It was alleged that at around 12.30 AM on
21.09.2025, an unruly mob approached them and tried to proceed towards the
Airport which was not allowed by the police team. The mob then became agitated
and started using abusive languages and they tried to overpower the police force.
At that time, when the CDSP, Jalukbari, arrived at the spot, her official vehicle
was attacked by the unruly mob thereby, causing damage to the vehicle. The
police had to resolve to use force to disperse the unruly mob and rescued the
CDSP who was inside the vehicle. It was alleged that at about 6.30 AM, the
aforesaid unruly mob started various acts of vandalism and attacked the media
persons and thereby, damaged one costly camera worth several lakhs. It was
further alleged that the aforesaid unruly mob totally went out of control at some
point of time and thereby, created a chaotic scene at the Airport and thereby,
obstructed the police personnel from performing their official duties.
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(ii) Thereafter, on 26.09.2025, one Inspector, namely, Sri Tilak Baishya, lodged an
FIR at Fatasil Ambari Police Station, stating that the CID, Assam, was
investigating the CID P.S. Case No. 18/2025, regarding the death of late Zubeen
Garg and on 25.09.2025, 4(four) teams, specially formed by the Senior
Superintendent of Police, CID, Assam, for the purpose of investigating the
aforesaid CID case, went to the residence of Sri Sidhartha Sharma, an accused in
the aforesaid CID case, located at Orchid Hill View Apartment, Manpara,
Ganeshpara, under Fatasil Ambari Police Station of Guwahati for conducting a
house search. The police team after reaching the aforesaid apartment, conducted
the search at around 3:24 PM. In the meanwhile, a crowd started gathering in
front of the main gate of the aforesaid Orchid Hill View Apartment and they
started demanding entry into the flat of the aforesaid Sidhartha Sharma. When the
search and seizure procedure was completed at around 6:20 PM, there was a huge
gathering of 3/4 thousand people under the leadership of Sri Victor Das (the
Petitioner), Sri Ajay Phukan, Fera @ husband of Youtuber Sumi Begum, Sri
Bikash Axom and some other unidentified persons, demanding to enter forcefully
into the flat of Sidhartha Sharma with the purpose of committing vandalism and
rioting causing damage to life and property. It was alleged that after completion of
the aforesaid search and seizure procedure, when the police wanted to leave the
premises, the unruly mob, lead by the aforesaid persons, wrongfully restrained the
CID police team by blocking the vehicle. Thereafter, the unruly mob led by the
aforesaid persons, damaged the vehicle and broke the windshield and window
glasses of the vehicle, wherein the Informant and other members of the CID
police team sustained grievous injuries. It was alleged that the above mentioned
accused persons had been continuously instigating the public on social media
taking the excuse of sentiments of the public regarding the untimely death of late
Zubeen Garg. However, on arrival of back-up force from Guwahati City Police,
the CID police team could manage to return.
Page No.# 6/39
(iii) On the basis of the aforesaid allegations, Fatasil Ambari P.S. Case No.
137/2025, dated 26.09.2025, under Sections
61(2)/189(2)/191(2)/191(3)/126(2)/125(b)/132/109 of the BNS read with Section
3 of the Prevention of Damage to Public Property Act, 1984, was registered.
(iv) On 26.09.2025, the Petitioner was arrested in connection with the aforesaid
Fatasil Ambari Case No. 137/2025 and he was produced before the Court of the
learned CJM, Kamrup (M). During his production, a bail application was moved
on behalf of the Petitioner and the Petitioner was granted bail on the very same
day. However, the Petitioner was again arrested from the aforesaid court premises
on the very same day in connection with aforesaid Azara P.S. Case No. 142/2025.
(v) When the Petitioner was still in the custody, the Commissioner of Police,
Guwahati, issued the Detention Order bearing Memo No. CP/CB/NSA/2025/49
dated 07.10.2025, directing the detention of the Petitioner under Section 3(2) of
the NSA, 1980 and since then the Petitioner is inside the Central Jail, Guwahati.
8. The case of the Detaining Authority is that the Detention Order was passed on the
basis of credible evidence and confidential intelligence inputs that revealed that the
Petitioner had been actively involved in activities intended to create social unrest in the
State by organizing mass protests under the pretext of seeking justice for the demise of
Zubeen Garg. It was stated that taking undue advantage of public outpouring of grieves
following the death of the aforesaid singer, the Petitioner had been found to be
continuously using various social media platforms to disseminate inflammatory
messages and misleading narratives concerning the steps taken by the State Government
to investigate the circumstances leading to the death of Zubeen Garg with deliberate
intention of instigating public sentiments against the Government and thereby, causing
social unrest pre-judicial to the security of the State and the maintenance of public order.
It was stated that the Petitioner through various social media posts, had provoked the
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general public to replicate the situation that was prevailing in Nepal under the pretext of
seeking justice and thereby, creating an imminent apprehension of acts pre-judicial to
the security of the State and maintenance of public order.
9. It was alleged that on one occasion, while the CID team was investigating the case
relating to the death of late Zubeen Garg, the Petitioner mobilized a large crowd and
inciting the mob to attack the CID team, damaged public properties including
Government vehicles and obstructed police officials in discharging their lawful duties,
which resulted in serious injuries to the police force and damage to the public properties.
It was stated that in connection with the aforesaid acts of violence against police
personnel and destruction of public properties 2(two) cases were registered, namely,
Fatasil Ambari Case No. 137/2025 and Azara P.S. Case No. 142/2025 and in both the
cases, the Petitioner had been arrested for his direct and active involvement in the
offences alleged in the aforesaid cases.
10. It was alleged that the statements, actions and social media activities of the
Petitioner after the death of Zubeen Garg and the confidential inputs received by the
police, clearly indicate the Petitioner’s participation in a larger and premeditated design
to create social unrest by inciting violence, promoting enmity among different social
groups on regional and linguistic lines, disrupting the essential services and damaging
public institutions. It was stated that the Petitioner has known history of defying lawful
authorities and instigating public disorder by encouraging mob action against specific
groups, for which he had been detained and arrested in several cases. Therefore, it was
stated that based on the inputs received from police units, field officers, media sources
and confidential reports, it appeared that if the Petitioner is allowed to remain at large,
there exists a strong likelihood of renewed violent protests, large-scale disturbances of
public order and disruption of the maintenance of essential services to the community.
11. In view of the aforesaid statements made in the order dated 07.10.2025, in
exercise of powers conferred under Section 3(2) of the NSA, 1980, read with
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Government of Assam Notification No. PLA/786/76 dated 21.08.2025, issued under
Section 3(3) of the NSA Act, 1980, the Commissioner of Police, Kamrup (M),
Guwahati, being satisfied that it is necessary for preventing the Petitioner from acting in
any manner pre-judicial to the security of the State or to the maintenance of public order
or to the maintenance of supplies of services essential to the community, ordered that the
Petitioner be detained under the provisions of Section 3(2) of the NSA, 1980. It was
mentioned that the order shall take effect from the date and time of execution thereof,
and shall remain in force until it was approved, modified, or cancelled by the State
Government, under Section 3(4) of the said NSA, 1980. It was also mentioned that the
Grounds of Detention shall be furnished along with material particulars, on which the
order was based, shall be communicated to the Petitioner as soon as practicable, in any
case,within 5(five) days from the date of issuance of the order. It was stated that the
detainee shall be lodged in the Central Jail, Guwahati, pending approval, modification,
or cancellation of the order by the State Government. It was also mentioned that the case
shall be referred to the Advisory Board, constituted under Section 9 of NSA, 1980
within the period specified therein. It was mentioned that if the Petitioner desires to
make a representation against the order, he may do so to the Addl. Secretary, Home &
Political Department, Government of Assam, or directly to the Advisory Board under the
NSA, 1980.
12. The Grounds of Detention were communicated to the Petitioner by the
Commissioner of Police, Guwahati, vide its forwarding letter bearing Memo No.
CP/CB/NSA/2025/50 dated 08.10.2025, wherein it was mentioned that the Petitioner
was informed about his right to make representation against the Detention Order to the
Government of Assam and also to the Advisory Board constituted under the NSA, 1980.
13. The Grounds of Detention of the Petitioner could be broadly summarized in the
following heads: –
(a) Delivery of seditious and inflammatory speech, wherein it was alleged that the
Page No.# 9/39Petitioner allegedly spread rumors that some individuals have been demanding
money from interested candidates for securing backdoor entry into Grade-III and
Grade-IV posts conducted under the Assam Direct Recruitment Exam. It was
alleged that the statements were factually baseless and the Petitioner had been
found making unfounded and unspecific claims to induce mass paranoia among
public since 28.08.2022. It was also stated that on the basis of the above-
mentioned allegations, a case was registered by Pan Bazar Police Station, vide
Panbazar P.S. Case No. 233/2022, under Section 120(B)/150/153(a)/384/511. It
was stated that the Petitioner was arrested in the aforesaid case.
(b) The second ground, i.e.,the pattern of conduct of threatening the public order
and the State security, which is related to the incidents after the death of Zubeen
Garg. It was alleged that the Petitioner had continuously instigated the public in
social media to take direct action, taking the ploy of the sentiments of the public
regarding the untimely death of Zubeen Garg. The allegations under this head are
primarily relating to Fatasil Ambari Police Station Case No. 137/2025, wherein
the Petitioner was arrested on 26.09.2025.
(c) The third ground, i.e., provoking people to create public unrest and chaos,
wherein the Petitioner was alleged of mobilizing public to destroy public
properties and obstruction of government officials to perform their lawful duties.
The allegations under this ground are relating to or in connection with the case
registered as Azara P.S. Case No. 142/2025, under Section
191(2)/190/296/324(5)/109(1)/132 BNS, 2023, read with Section 3 of the
Prevention of Damage to Public Property Act, 1984. It was mentioned that the
Petitioner was arrested in connection with the case on 26.09.2025 and later on, he
was sent to judicial custody.
(d) The fourth ground is the satisfaction of the Detaining Authority regarding the
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detention of the Petitioner, which specifically provides that upon careful
consideration of the materials on record as well as intelligence inputs and digital
evidences, the Detaining Authority is satisfied that the Petitioner’s activities are
pre-judicial to the maintenance of public order and to the security of the State.
Therefore, being satisfied that the ordinary law is insufficient to prevent the
Petitioner from continuing such acts, the Petitioner’s preventive detention under
Section 3(2) of the NSA, 1980, was necessary.
14. It may be worthwhile to mention herein that the Grounds of Detention also
included certain enclosures like lists of controversial posts and videos on social media
platforms, all related videos (in CD) of incitements and inducements and copies of FIRs
and GD extracts of fourteen (14) cases registered against the Petitioner. The same also
included a Dossier, containing the brief details of the Petitioner and a list containing the
summaries of the cases against the Petitioner.
15. The Commissioner of Police, Guwahati, issued another letter bearing Memo No.
CP/CB/NSA/2025/51 dated 08.10.2025 to the Petitioner with the subject:
Communication regarding Right to Representation in connection with the Detention
Order issued against you under Section 3(2) of the NSA, 1980. In the aforesaid letter, the
Petitioner was informed that he has a right to make a representation against the
Detention Order to the Government of Assam and also to the Advisory Board constituted
under Section 9 of the NSA, 1980. It was further mentioned that such representation
may be submitted through the Superintendent of the Central Jail, Guwahati and the
Petitioner can also request a personal hearing before the Advisory Board.
16. On 11.10.2025, the Commissioner of Police, Guwahati, issued another letter
bearing Memo No. CP/CB/NSA/2025/53 dated 11.10.2025 with the subject:
Communication regarding Right to Represention in connection with the Detention Order
issued against you under Section 3(2) of the NSA, 1980. Vide the aforesaid letter, the
Petitioner was informed that he can also make a representation to the Government of
Page No.# 11/39India (Central Government) as per law. Thereafter, the Secretary to the Government of
Assam, Home & Political Department, issued an order bearing No. PLA/710928/122
dated 14.10.2025, whereby the Governor of Assam, as per the provision of Sub-Section
4 of Section 3 of the NSA, 1980, was pleased to approve the Detention Order passed by
the Commissioner of Police, Guwahati, dated 07.10.2025, detaining the Petitioner under
NSA, 1980.
17. Thereafter, the Petitioner submitted his representations to the Government of
Assam, the Government of India and also to the Chairman of the Advisory Board
constituted under NSA, 1980 on 22.10.2025. The representations were sent through the
Superintendent of Central Jail, Guwahati, on 22.10.2025 itself. Through his
representations, the Petitioner took various grounds to address his grievances against his
detention and thereby, to justify that his detention is illegal and unwarranted.
18. In his representations, the Petitioner had specifically stated that many of the
documents and particulars relied upon by the Detaining Authority, while passing the
Detention Order, were not furnished to the Petitioner and therefore, he was highly
prejudiced in making effective representations against his Detention Order. The
Petitioner further denied all the allegations stated in the Grounds of Detention on which
the Detention Order was passed, explaining the reasons why such grounds are ill-
conceived and not maintainable under the law. The Petitioner mentioned that though he
had been provided with the copies of the FIRs of fourteen (14) cases, wherein he was
alleged to be an accused person, other than Fatasil Ambari P.S. Case No. 137/2025 and
Azara P.S. Case No. 142/2025, none of the other cases had any connection with the
primary reason for the Petitioner’s preventive detention, i.e., his role in protest in
connection with the death of Zubeen Garg. The Petitioner stated that eleven (11) of those
cases, in fact, had not been referred to in the Grounds of Detention. The Petitioner stated
that twelve (12) of the cases referred therein had even no casual connection, whatsoever,
with the Petitioner’s detention under the NSA, 1980. Therefore, he stated that
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considerations of those FIRs are absolutely irrelevant reflecting total non-application of
mind by the Detaining Authority. The Petitioner stated that most of the cases referred in
the list of FIRs, were related to the years in between 2021 to 2023 and few are of 2024
but, those had no proximity in time to the alleged cause for his preventive detention. He
stated that other than the FIRs of the cases, no documents in respect of any of the cases
had been supplied to the Petitioner.
19. The Petitioner also mentioned that there were many defective supporting
documents relating to social media posts had been furnished to him, which were totally
unclear and in case of video posts, the screenshots did not indicate anything about the
contents of the posts. He stated that there was nothing incriminating in any of those
posts, therefore, those materials were totally irrelevant in connection with his detention
under the NSA, 1980. The Petitioner stated that the Detaining Authority had absolutely
failed to justify why such an extraordinary measure as preventive detention was
necessary in his case. He stated that he did not do anything to disturb public order,
which was prejudicial to the security of the State and maintenance of public order and he
had only asked for a fair and just investigation in the case relating to the death of Zubeen
Garg. He stated that the Detaining Authority had completely mis-read and misapplied
the law of prevention detention with a complete non application of judicious mind to the
relevant facts. Therefore, his Detention Order, based on irrelevant considerations,
violated his rights under Article 21 & 22 of the Constitution of India.
20. On 07.11.2025, the Petitioner was provided with a copy of the Notification No.
PLA-7836/76 dated 21.08.2025 of the Government of Assam, on the basis of which the
Commissioner of Police, Guwahati, claimed to have the authority to issue the Detention
Order against the Petitioner. It may be worth mentioning that the aforesaid notification
was provided to the Petitioner on the basis of an order dated 07.11.2025 of the Advisory
Board constituted under the NSA, 1980. On 08.11.2025, the aforesaid Advisory Board
sat and provided an opportunity of personal hearing to the Petitioner. Accordingly,
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during the hearing, the Petitioner submitted his written argument before the Advisory
Board stating his detention as bad in law and prayed for his Detention Order to be
quashed by the said Advisory Board. In the meantime, the Petitioner was granted bail in
connection with Azara P.S. Case No. 142/2025 by the Gauhati High Court, vide it’s
order dated 14.11.2025, passed in BA No. 3566/2025.
21. Being aggrieved by the preventive detention of the Petitioner, the Petitioner has
approached this Court by assailing the aforesaid impugned Detention Order dated
07.10.2025.
22. Mr. S. Borthakur, learned counsel appearing for the Petitioner has submitted that
the so-called preventive detention of the Petitioner is bad in law and has been made with
ulterior and political motives on the basis of vague, non-existent, irrelevant and not
proximate grounds, which cannot be sustained under the law. He submitted that no
reasonable person, instructed in law, could have passed the impugned Detention Order in
the facts and circumstance of the present case. He submitted that the Grounds of
Detention and the allegations made therein are totally incorrect and are hopelessly
insufficient to detain a person under the NSA, 1980.
23. The learned counsel for the Petitioner has argued and submitted his case in
challenging the impugned Detention Order dated 07.10.2025, broadly on five (5)
grounds. Each of those grounds is considered separately in the succeeding paragraphs.
24. The primary and the foremost ground which has been taken to challenge the
aforesaid impugned Detention Order dated 07.10.2025, is that the Detaining Authority
failed to inform the Petitioner about the right of representation before the Detaining
Authority. He has submitted that the Petitioner was not informed by any means about his
right to file a representation before the Detaining Authority, i.e., the Commissioner of
Police, Guwahati. He has submitted that a bare perusal of the Detention Order dated
07.10.2025, as well as the Grounds of Detention, shows that the Detaining Authority,
although informed the Petitioner about his right to represent before the Central
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Government, the State Government and the Advisory Board, he was never informed
about his right to represent before the Detaining Authority. He has submitted that the
Detaining Authority, in exercise of powers under Section 14 of the NSA, 1980 read with
Section 20 of the General Clauses Act, 1897, has the power to revoke the Detention
Order. Therefore, it was incumbent on the part of the Detaining Authority to inform the
Petitioner of such rights of his and thus, enable to file a representation. Hence, the
omission of not intimating the Petitioner about his such valuable right, has clearly
violated the Petitioner’s right under Article 21 & 22(5) of the Constitution of India and
thereby, making his preventive detention under the NSA, 1980, illegal and unsustainable
under the law. He has submitted that the Detaining Authority is the one who passes the
Detention Order and, in law, is entitled to rescind or modify his own orders. He has
submitted that the right to submit such representation against an order of detention,
flows from the provisions of Article 22(5) of the Constitution and even if the law of
preventive detention does not include the right to submit a representation, such right
would definitely flow from Article 22(5) of the Constitution of India. Therefore, he has
submitted that since the preventive detention is about life and liberty, which is enshrined
under Article 22 (5) of the Constitution of India, withholding of such an important
information relating to the Petitioner’s irreplaceable valuable right provided to the
Petitioner by the mandates of the Constitution of India, is an unpardonable lapse
committed by the Detaining Authority, which goes to the root of the matter vitiating the
whole preventive detention process illegal and thereby, making the same liable to be set
aside and quashed on that ground alone. The learned counsel has submitted that the
Hon’ble Supreme Court and the Hon’ble Gauhati High Court, in catena of cases. have
laid down the proposition that the omission of not intimating the valuable right of
representation to the Detaining Authority is in violation of Article 22(5) of the
Constitution of India and thereby, making the preventive detention illegal and non-
sustainable. In this connection, he has relied on the following cases: –
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(1) Kamlesh kumar Ishwardas Patel Vs. The Union of India & Ors., reported in 1995 4
SCC 51.
(2) Konsam Brojen Singh Vs. The State of Manipur, reported in 2006 1 GLT 375.
(3) Dharmeswar Haloi @ Bhaity Vs. The Union of India, reported in 2009 1 GLT 657.
(4) Rongjam Momin Vs. Union of India, reported in 2005 1 GLT 173.
(5) Robin Dhekial Phukan Vs. Union of India & Ors., reported in 2008 2 GLT 876.
25. The second ground that has been asserted by the Petitioner’s counsel in his
submission is that of delay in disposal of the representations submitted by the Petitioner
before the concerned authorities. The learned Counsel has submitted that from the
chronology of events involved in the instant case, it is clearly evident that due to the
inordinate delay in forwarding the Petitioner’s representations to the Central
Government, the State Government and the Advisory Board, there is also a
consequential inordinate delay in disposing the Petitioner’s representations by the
aforesaid authorities. He has submitted that the manner in which the Central
Government as well as the State Government dealt with the representations of the
Petitioner, it has become clear that there is clear unexplained delay in disposing of the
representations. He has submitted that the State Government took sixteen (16) days to
dispose of the representation of the Petitioner, whereas the Central Government took
twenty (23) days to dispose of the Petitioner’s representation. He has submitted that such
unexplained delay is not acceptable in case of preventive detention. He has further
submitted that the para-wise comments of the Commissioner of Police, Guwahati, were
obtained only on 31.10.2025, however, there is no explanation as regards why the
Commissioner of Police, took more than seven (7) days’ time to furnish the para-wise
comments. He has submitted that it is also not explained as to why the State Government
took further seven (7) days to dispose of the Petitioner’s representation, making the total
days to dispose of the Petitioner’s representation by the State Government to sixteen
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(16) days, which cannot be termed as reasonable in a case of a preventive detention.
26. The learned counsel for the Petitioner has submitted that the Respondent no. 2, in
his affidavit, has also not explained why such inordinate delay was caused in disposing
of the representation by the State Government. He has submitted that the Respondent no.
2, without explaining any details, simply made his statement that there was no delay in
forwarding the representation of the Petitioner to the concerned authorities. In view of
the aforesaid submissions, the learned counsel has submitted that such unexplained
delay in disposing of the representation is not permissible in case of preventive detention
under the NSA, 1980 and such delay has curtailed his valuable rights conferred under
the Constitution of India, thereby, prolonging his detention. Hence, such unexplained
delay has vitiated the detention of the Petitioner, thereby, calling for immediate
interference by this Court by setting aside and quashing the impugned Detention Order
dated 07.10.2025. In support of his submissions, the learned counsel has relied on the
following judicial pronouncements of the Hon’ble Supreme Court as well as the Gauhati
High Court: –
1. Vijay Kumar Vs. The State of J & K, reported in (1982) 2 SCC 43.
2.Narinder Singh Suri Vs. Union of India & Ors., reported in (1980) 2 SCC 357.
3. Raj Kishore Prasad Vs. The State of Bihar & Ors., reported in (1982) 3 SCC 10.
4. Pabitra N. Rana Vs. Union of India & Ors., reported in (1980) 2 SCC 338.
5. Saleh Mohammed Vs. Union of India & Ors., reported in (1980) 4 SCC 428.
6. Icchu Devi Choraria Vs. Union of India, reported in (1980) 4 SCC 531.
7. Pebam Ningol Mikol Devi Vs. The State of Manipur, reported in (2010) 9 SCC 618.
8. Lala Paite Vs. State of Manipur & Ors., reported in 1999 3 GLT 236.
27. The third ground that the counsel appearing for the Petitioner has argued is that of
non-furnishing of the relevant materials while passing the impugned Detention Order by
Page No.# 17/39
the Detaining Authority. He has submitted that the perusal of the Grounds of Detention
shows that the Detaining Authority has relied on as many as twelve (12) cases to justify
Petitioner’s detention. He has submitted that though the copies of the FIRs relating to
the aforesaid cases were provided to the Petitioner, however, most of the relevant
documents relating to the investigation of those cases and the outcome of those cases,
such as, the nature of evidences collected including the statements of witnesses, contents
of the Charge-sheets etc., pertaining to the aforesaid cases were not furnished to the
Petitioner. He has submitted that non-furnishing of such documents is not explained or
reasoned by the Detaining Authority, which is not permissible under the settled laws of
preventive detention cases. He submits that although there is column for “Related
Documents”in the”Gist of cases against Victor Das” but the entire column was left
blank without providing any information about the documents relied by the Detaining
Authority. He has submitted that even the statuses of the cases were also not provided
depriving the Petitioner of such important information, thereby, making him handicap of
preparing an effective representation which is his constitutional right under Article 22(5)
of the Constitution of India. The learned counsel has submitted that non-application of
mind of the concerned authorities, including the Detaining Authority is palpably clear
due to the fact that one of the cases cited by the Detaining Authority, i.e., Jalukbari P.S.
Case No. 967/2021 dated 29.08.2021, the accused person, in fact, is not the Petitioner
but a different person with a same name “Victor Das”. He has submitted that such non-
application of mind while curtailing the life and liberty of the Petitioner by detaining
him is fatal to the whole proceeding and therefore, such preventive detention, in no way,
can be sustained under the law.
28. The learned counsel for the Petitioner has highlighted another crucial fact in his
submission that the Petitioner was not even provided, in a timely manner, the order by
which the power of issuing the Detention Order had been delegated to the Commissioner
of Police, Guwahati, under Section 33 of the NSA, 1980. He has submitted that the
Page No.# 18/39
NSA, 1980, being a preventive detention law, the fulfillment of every procedural aspect
in preventive detention is crucial and non-compliance of any such crucial procedural
aspect makes the whole detention process illegal and unsustainable under the law. In this
connection, the learned counsel has referred and relied on the following cases: –
1. Kamala Kanyalal Khushalani Vs. The State of Maharashtra & Anr., reported in (1981) 1
SCC 748.
29. The fourth ground that has been argued and submitted by the learned counsel for
the Petitioner is that of non-consideration of the possibility of the release of the
Petitioner on bail. He has submitted that a plain reading of the Detention Order as well
as Grounds of Detention makes it clear that the Detaining Authority had not given any
consideration to the possibility of the release of the Petitioner on bail. He has submitted
that the Detaining Authority was well aware of the fact that the Petitioner was already
under arrest at the time of his detention. Therefore, in such cases, the Detaining
Authority was bound to have taken into consideration if there is any likelihood of his
release on bail and accordingly, then decide whether a Detention Order of the Petitioner
was required to be made or not. He has submitted that the impugned Detention Order
dated 07.10.2025 was passed against the Petitioner without giving any judicious
consideration to these crucial facts, while passing the preventive detention order against
the Petitioner, which is, therefore, illegal and unsustainable. He has submitted that there
is no subjective satisfaction mentioned or recorded by the Detaining Authority that the
Petitioner may be coming out of bail and thereby, issuance of the preventive detention
order was necessary in the instant case. He has submitted that non-recording of such
subjective satisfaction, which is unavoidable in a case of preventive detention, makes the
instant preventive detention of the Petitioner illegal and unsustainable under the law. In
this connection, the counsel has relied on the following judicial pronouncements of the
Hon’ble Supreme Court: –
1. Kamarunnissa Vs. Union of India & Ors., reported in (1991) 1 SCC 128.
Page No.# 19/39
2. Union of India Vs. Paul Manickam, reported in (2003) 8 SCC 342.
3. Champion R. Sangma Vs. State of Meghalaya & Anr., reported in (2015) 16 SCC 253.
30. The fifth ground that the learned counsel for the Petitioner has argued is that of not
informing the Petitioner about the period of detention. The learned counsel has
submitted that the Petitioner was not been informed of the period of his detention
leaving him under immense uncertainty. Therefore, the action of curtailing Petitioner’s
right to life and liberty enshrined under Article 21 & 22 of the Constitution of India, vide
the impugned Detention Order of the Detaining Authority, is wholly untenable under the
law and therefore, is liable to be set aside and quashed.
31. In view of the aforesaid submissions, the learned counsel for the Petitioner has
submitted that the instant Detention Order dated 07.10.2025, passed against the
Petitioner is illegal and unsustainable on the face of the records and therefore, the same
is liable to be set aside and quashed due to violation of the settled laws governing the
preventive detention laws.
32. In the instant case, it is seen that no Affidavit has been filed on behalf of the
Respondent no. 1, i.e., the Union of India. However, two(2) Affidavits-in-Opposition
have been filed on behalf of the State Respondents, i.e., the Addl. Chief Secretary to the
Government of Assam, Home & Political Department (the Respondent no. 2) and the
Commissioner of Police, Guwahati (the Respondent no. 4) respectively.
33. Responding to the submissions made by the learned counsel for the Petitioner, Mr.
B. Goswami, learned Addl. Advocate General, has submitted that there is no wrong
committed by the State authorities in passing the Preventive Detention Order against the
Petitioner, as the same was the need of the hour at that point of time. He has submitted
that the Petitioner has been involved in various anti-social and anti-Government
activities and therefore, above mentioned fourteen (14) cases had been filed against the
Petitioner in various police stations across the State of Assam. He has submitted that the
Page No.# 20/39
Detention Order of the Petitioner was issued to prevent him from further damage to the
civilized society as well as to control the damage that might have caused to the ordinary
citizens prevailing in the after month of the death of Zubeen Garg. He has submitted that
no one can be allowed to involve in such anti-social activities thereby, causing
irreparable harm to the mass in general. He has submitted that the Detention Order was
passed by the Detaining Authority after due consideration of all the materials available
before it and after subjective satisfaction that the detention of the Petitioner was
required, which is discernible from the Detention Order along with the Grounds of
Detention. He has submitted that the Detaining Authority has come to a conclusion that
ordinary law is insufficient to prevent the Petitioner from continuing with various anti-
social activities that the Petitioner was involved.
34. Referring to the Affidavit-in-Opposition filed by the Respondent no. 2, the learned
AAG submits that the State Government Notification No. 7836/76 dated 21.08.2025,
empowers the District Magistrate of Assam in all districts and the Commissioner of
Police, Guwahati, to make preventive detention under NSA, 1980. Therefore, although
furnishing of the notification to the Petitioner is not mandated under the law, a copy of
the Notification was furnished to the Petitioner on 07.11.2025. Therefore, he has
submitted that non-furnishing of the aforesaid Notification cannot be a ground to declare
the preventive detention of the Petitioner as bad under the law. The learned AAG has
submitted that the Detaining Authority, vide it’s order dated 07.10.2025, intimated the
Petitioner that if the Petitioner desires to make any representation against the Detention
Order, the Petitioner may file representation to the Addl. Chief Secretary, Government of
Assam, Home & Political Department, or directly to the Advisory Board constituted
under the NSA, 1980. He has submitted that thereafter, the Petitioner was informed
again, vide letter dated 08.10.2025, that he has the right to make representation against
his detention to the Government of Assam and/or to the Advisory Board as per Section 9
of the NSA, 1980. He has submitted that the Detaining Authority being the State of
Page No.# 21/39
Assam, there is no violation of any mandates of law as the Petitioner was intimated that
he could submit his representation to the Home & Political Department of Assam.
35. The learned AAG, on a query by this Court has admitted that intimation regarding
the Petitioner’s right to represent before the Detaining Authority, i.e., the Commissioner
of Police, Guwahati, was not available on record. However, he has submitted that the
omission in that respect has not prejudiced the Petitioner and the Petitioner has got the
opportunity to file his representations to the Central Government, the State Government
as well as the Advisory Board constituted under the NSA, 1980. He has submitted that
the Petitioner has, in fact, got an opportunity of personal hearing in addition to his
written argument before the said Advisory Board. He has submitted that on the very day
of passing of the Preventive Detention Order, the Petitioner was intimated about his
right to file representations before any of the authorities as specified under Section 9 of
the NSA, 1980. He has submitted that from the letter dated 11.10.2025, issued by the
Detaining Authority, i.e., the Commissioner of Police, Guwahati, to the Petitioner, it was
discernible that the Petitioner’s right to make a representation to the Central Government
was specifically intimated to the Petitioner. In view of the aforesaid submissions, the
learned AAG has submitted that there is no force in the argument and contention made
on behalf of the Petitioner that the Detaining Authority omitted to intimate about a
valuable right to the Petitioner while passing the impugned Detention Order dated
07.10.2025.
36. The learned AAG has submitted that there is no delay in disposing of the
representations submitted by the Petitioner before the concerned authorities. He has
submitted that the representation submitted before the State Government was disposed
of within a reasonable time without any delay and whatever days were consumed, it was
due to the fact that there were certain holidays during that period due to holidays which
need not be counted while counting the delays as contended. He has submitted that the
time took to dispose of the representation cannot be termed as unreasonable and thereby,
Page No.# 22/39
making the same fatal. He has submitted that the representation dated 20.10.2025,
submitted by the Petitioner was received by the Addl. Chief Secretary to the
Government of Assam, Home & Political Department and had given his clarification on
the representation, vide order dated 07.11.2025, which was communicated, vide Memo
No. PLA-710928/167-A dated 07.11.2025. In view of the aforesaid, referring to various
holidays during that period, he has submitted that the approval of the Governor of
Assam of the Detention Order passed by the Commissioner of Police, Guwahati, was
received on 14.10.2025 and thereafter, immediately on 15.10.2025, the Petitioner was
given the Detention Order. He has submitted that the Petitioner submitted his
representation dated 22.10.2025 to the State Government, Central Government and the
Advisory Board on 23.10.2025. He has submitted that the required para-wise comments
on the representation submitted by the Petitioner, was received on 31.10.2025 by the
Government and thereafter, after consideration of the para-wise comments and the
representation, the Addl. Chief Secretary to the Government of Assam, Home &
Political Department, rejected the Petitioner’s representation on 07.11.2025. Therefore,
he has submitted that there was no such unreasonable delay in responding the
representation of the Petitioner by the State Government. In view of the aforesaid
submissions, he has submitted that there is no merit in the arguments forwarded by the
learned counsel for the Petitioner that there was an inordinate delay in disposing of the
representation of the Petitioner by the State Government, which is not permissible under
a preventive detention case.
37. The learned AAG has submitted that though there was a contention made by the
Petitioner that some relevant materials or facts had not been taken into account in the
Grounds of Detention while passing the Detention Order against the Petitioner, he has
submitted that inadvertently, if some grounds were included which were not too relevant
to the case, the same shall not take away the whole order and therefore, the same cannot
be termed as bad. In this connection, the learned AAG has referred to Section 5A of the
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NSA, 1980 which provides that the Grounds of Detention are severable.
38. The learned AAG has submitted that the detailed grounds were given to the
Petitioner of his arrest. He has submitted that the Petitioner was arrested in aproximate
case and he was detained in judicial custody when the preventive detention order was
passed. He has submitted that the Petitioner’s involvement in various anti-social and
anti-government activities is easily available in various social media and other
platforms, which were narrated in details in the Grounds of Detention. Therefore, he has
submitted that the Grounds of Detention cannot be termed as insufficient for detaining
the Petitioner under preventive detention. He has submitted that all relevant materials,
including the videos, screen shots of videos, photographs and other materials relied on
by the Detaining Authority while passing the Detention Order were made available to
the Petitioner and the Petitioner was given the CD containing the videos while he was
detained in the Central Jail. Therefore, he has submitted that there was no lapse on the
part of the Detaining Authority in providing the documents, materials, videos and screen
shots of videos as well as photographs on the basis of which the impugned preventive
detention order was passed.
39. Referring to paragraph 2 of the representation submitted by the Petitioner on
22.10.2025, the learned AAG has submitted that though the Petitioner has taken a
ground that the documents furnished to him were partially incomplete and insufficient
and therefore, he was extremely restricted from filing an effective and informed
representation, the learned AAG has submitted that the statements in paragraph 2 are
totally vague and without providing any specific material details. He has submitted that
the Petitioner did not mention which were the documents he wanted from the Detaining
Authority to make his representations. Therefore, these kinds of vague statements will
not hold any water in the eyes of the law. He has submitted that no prejudice has been
caused to the Petitioner by any of the contentions made by the Petitioner in his writ
petition. He has submitted that none of the relied documents by the Detaining Authority
Page No.# 24/39
was not made available to the Petitioner. Therefore, he has submitted that the
contentions raised by the Petitioner that he was not provided with sufficient grounds as
well as materials on the basis of which he was detained is not correct and therefore, the
same is liable to be rejected.
40. The learned AAG, while referring to para-22 of the Affidavit-in-Opposition filed
by the Respondent no. 4 has submitted that out of the fourteen (14) cases mentioned in
the Grounds of Detention, it is a fact that the details of three (3) cases had been referred
to in the Grounds of Detention. He has further submitted that one case, i.e., Jalukbari
P.S. Case No. 967/2021, which had been referred in the Grounds of Detention, has been
returned in FR. He has submitted that the rest ten (10) cases that had been referred in the
Grounds of Detention were due to the oversight. However, those ten (10) cases had been
referred in the Grounds of Detention as a part of his previous criminal activities, though
there was no proximity at the time of issuance of the Detention Order. He has submitted
that out of the eleven (11) cases, charge sheets had been filed in five (5) cases, Final
Reports in five (5) cases and one (1) case remained under investigation. He has
submitted that the records and statuses of the cases were part of judicial records and the
concerned courts are the legal authorities in possession of those. Therefore, he has
submitted that the Detaining Authority had no right over those to share or provide the
same to the Petitioner. He has submitted that, however, the Petitioner could have
collected the certified copies of the records, including the affidavits, if so desired, with
due permission from the concerned courts.
41. In view of the aforesaid statements in the Affidavit-in-Opposition, he has
submitted that though the aforesaid ten (10) cases were mentioned in the Detention
Order, the detention of the Petitioner was mainly on the grounds of the three (3) cases
which had been detailed in the Grounds of Detention while passing the Preventive
Detention Order of the Petitioner. In view of the aforesaid, he has submitted that though
there were certain inadvertent errors due to oversight in mentioning the ten (10) cases,
Page No.# 25/39
that simply cannot take away or make the whole Detention Order illegal as the Detention
Order was passed after subjective satisfaction of the Detaining Authority which was
recorded in the Detention Order. In view of the aforesaid, he has submitted that the
preventive detention order doesn’t suffer from any error of law and therefore, this court
should not interfere with the same.
42. The learned AAG has submitted that the Detention Order dated 07.10.2025, was
very clear that the Petitioner had been involved in various incidents of vandalism and
anti-social activities, whereby he had commented and written various offendable objects
in the public domain which had necessitated his arrest under the preventive detention as
the Detaining Authority has come to the subjective satisfaction that other available laws
may not be sufficient to detain the Petitioner in judicial custody, thereby stopping him
from involving in activities which can be termed anti-social and against the public order.
He has submitted that the Petitioner had been involved in provoking people to create
public unrest and chaos which was needed to be prevented by the government to
maintain public order. Therefore, he has submitted that the Detaining Authority has not
violated any law by detaining the Petitioner under NSA, 1980. In connection to his
submission that vague assertion by the Petitioner of not providing the Grounds of
Detention or the materials on the basis of which the Detention Order was passed by the
Detaining Authority, the learned AAG has referred to the case of Manirul Islam v.
Union of India and others in W.P. (Crl.) No. 1/ 2017,decided by the Single Bench of
Gauhati High Court on 26-07-2017.
43. By citing the aforesaid case, the learned AAG has submitted that there was no
proper application or representation from the Petitioner stating that sufficient grounds
and/or materials documents were not provided to him and the same should be furnished
to him. He has referred to the aforesaid case to argue that the Detaining Authority as
well as the Advisory Board has come in affirmative that the detention of the Petitioner is
justified for maintenance of public order and security of the State. Therefore, since the
Page No.# 26/39
authorities have subjective satisfaction while detaining the Petitioner, the Preventive
Detention Order cannot be termed as defective or illegal. Therefore, the instant petition
is liable to be dismissed.
44. The Respondent no. 2, Union of India has not filed any Affidavit-in-Opposition in
the instant matter. However, the learned CGC has supported the contentions made by the
learned AAG for the State of Assam.
45. We have heard the submissions made by the learned counsel appearing for the
respective parties and also have gone through the case records submitted before this
Court in the instant case.
46. The Hon’ble Justice P.N. Bhagwati, J, in the case of Icchu Devi (supra) at
paragraph-5 has authored the following paragraph:
“5. …………………….The burden of showing that the detention is in accordance with
the procedure established by law has always been placed by this Court on the Detaining
Authority because Article 21 of the Constitution provides in clear and explicit terms that no
one shall be deprived of his life or personal liberty except in accordance with procedure
established by law. This constitutional right of life and personal liberty is placed on such a
high pedestal by this court that it has always insisted that whenever there is any deprivation
of life or personal liberty, the authority responsible for such deprivation must satisfy the
court that it has acted in accordance with the law. This is an area where the Court has been
most strict and scrupulous in ensuring observance with the requirements of the law, and even
where a requirement of the law is breached in the slightest measure, the court has not
hesitated to strike down the order of detention or to direct the release of the detenue even
though the detention may have been valid till the breach occurred. The court has always
regarded personal liberty as the most precious possession of mankind and refused to tolerate
illegal detention, regardless of the social cost involved in the release of a possible renegade.”
47. However, liberty being the most valuable right of a citizen, that comes with lots of
responsibilities too. Article 22(3) of the Constitution provides for preventive detentions
under any law made for the purpose of preventive detention whereas Article 22(4) and
Page No.# 27/39
(5) provide for the procedural safeguards of the Detenue. Hence, though the liberty is a
cherished right any act of its abuse can be violative of the prescribed laws. The
playwright, Gorge Bernard Shaw famously said “Liberty means responsibility. That is
why men dread it” in his play “Man and Superman” meaning thereby liberty to be
carried with dignity and self-restrain, so that it does not hurt societal norms and
prescribed laws.
48. Time being an important factor in a case of preventive detention, we propose to
provide the important dates relevant to the instant case with their respective events.
26.09.2025: The Petitioner was arrested in connection with Fatasil Ambari P.S.
Case No. 137/2025 dated 26.09.2025. The Petitioner was released on bail
on the same day by the court of learned Special Judicial Magistrate,
Kamrup (M), Assam.
However, on the same day, the Petitioner was arrested from the court
premises itself in connection with a different case, i.e., Azara P.S. Case No.
142/2025 dated 22.09.2025.
07.10.2025: The Detention Order of the Petitioner was passed by the
Commissioner of Police, Guwahati, Assam.
08.10.2025: The Grounds of Detention were communicated to the Petitioner and
the Petitioner was informed about his right to file representations before the
Government of Assam and the Advisory Board.
11.10.2025: The Petitioner was informed about his right to file a representation
before the Government of India.
14.10.2025: The Governor of Assam approved the Detention Order of the
Petitioner.
15.10.2025: The Petitioner received the Detention Order.
Page No.# 28/39
22.10.2025: The Petitioner submitted representations to the Advisory Board, the
State Government and the Central Government.
23.10.2025: The Superintendent of Central Jail, Guwahati, forwarded the
representation of the Petitioner to the Principal Secretary to the
Government of Assam, Home & Political Department.
31.10.2025: The Commissioner of Police, Guwahati, submitted para-wise
comments to the representations of the Petitioner.
07.11.2025: The Petitioner’s representation to the Government of Assam was
rejected by the Addl. Chief Secretary to the Government of Assam, Home
& Political Department.
08.11.2025: The Petitioner was heard by the Advisory Board.
14.11.2025: The Petitioner’s representation to the Central Government was
rejected.
49. As noted above, the learned counsel for the Petitioner has made his submissions
broadly on five (5) grounds, which are: (1) Failure to inform the Petitioner about his
right of representation before the Detaining Authority, (2) Delay in disposal of the
representation submitted by the Petitioner before the State Government as well as
Central Government, (3) Non-furnishing of relevant materials to the Petitioner by the
Detaining Authority, (4) Non-consideration of the possibility of release of the Petitioner
on bail and (5) Non-information to the Petitioner about the period of detention.
50. In the instant case, the Detention Order dated 07.10.2025, under Section 3(2) of
the NSA, 1980, was issued by the Commissioner of Police, Guwahati. On perusal of the
aforesaid Detention Order, it is seen that there is a mention that the order shall come into
effect from the date and time of execution thereof and shall remain in force until it is
approved, modified and/or cancelled by the State Government, under Section 3(4) of the
Page No.# 29/39
said Act. It was also mentioned that the Grounds of Detention shall be furnished along
with the material particulars on which it was based, shall be communicated to the
Detenue as soon as practicable and in any case within five (5) days from the date of
issuance of the order. The Detenue shall be lodged at the Central Jail, Guwahati, pending
approval, modification and/or cancellation of the order by the State Government. It was
mentioned that the case shall be referred to the Advisory Board, constituted under
Section 9 of the said Act, within the period specified therein.
51. As far as the right of the Petitioner for representation is concerned, it is mentioned
that if the Detenue desires to make a representation against the order, he may do so
through the Addl. Chief Secretary to the Government of Assam or directly to the
Advisory Board. Therefore, it is apparent that no mention about the Detenue’s right to
submit a representation before the Detaining Authority, i.e., the Commissioner of Police,
Guwahati, was made in the Detention Order. The Petitioner was issued a forwarding
letter dated 08.10.2025, whereby the Grounds of Arrest, under Section 8(1) of the NSA,
1980, were given to him. On a careful perusal of the forwarding letter, it is seen that
there was a mention that the Petitioner has a right to make representation against the
Detention Order to the Government of Assam and also to the Advisory Board constituted
under Section 9 of the NSA, 1980. However, in that forwarding letter also, there was no
mention of any right of the Petitioner to file representations to the Central Government
or to the Detaining Authority, i.e., the Commissioner of Police, Guwahati, Assam.
52. We have gone through the Grounds of Detention, wherein at Serial No. 5 of the
Grounds of Detention, it was mentioned that the Petitioner has the right to make a
representation to the Government of Assam and to the Advisory Board, under Section 9
of the NSA, 1980 and such representations may be submitted through the
Superintendent of Central Jail, Guwahati. It was further mentioned that the Petitioner
may request for a personal hearing before the Advisory Board constituted under the
NSA, 1980. However, there was no mention of the Petitioner’s right for representation to
Page No.# 30/39
the Detaining Authority. Hence, it is clear that neither in the forwarding letter nor in the
Grounds of Detention, there was any mention and/or intimation to the Petitioner of his
right to submit representations before the Detaining Authority, i.e., the Commissioner of
Police, Guwahati. Though it is seen from the letter, vide Memo No.
CP/CB/NSA/2025/53 dated 11.10.2025, issued to the Petitioner by the Commissioner of
Police, Guwahati, wherein it was informed to the Petitioner that he could also make
representation to the Government of India (Central Government) as per law, no mention
of the Detenue’s right of representation before the Detaining Authority.
53. It may be worthwhile to mention that the Detention Order of the Petitioner, issued
by the Commissioner of Police, Guwahati, was approved by the Government of Assam.
From the aforesaid documents too, it is seen that no communication, whatsoever, was
ever made to the Petitioner intimating him about his valuable right of representation to
the Detaining Authority. In this connection, it is relevant to mention that Section 8 of the
NSA, 1980, mandates that Grounds of Detention be disclosed to the person effected by
the order and the person shall be given the earliest opportunity to make a representation
against the order to the appropriate Government.
54. The Hon’ble Supreme Court, while dealing with the detentions under the
COFEPOSA Act and the PIT NDPS Act in the case of Kamalesh Kumar (supra) has
held that the where the detention order has been issued by an officer specially
empowered for that purpose either by the Central Government or the State Government,
the person detained has a right to make a representation to the said officer and the said
officer is obliged to consider the said representation and the failure on his part to do so,
results in denial of the right conferred on the person detained to make a representation
against the order of detention. It was also held that the right of the detenue is in addition
to his right to make the representation to the State Government and the Central
Government respectively. The relevant paragraph, i.e., paragraph no. 38 is extracted
herein below for ready reference: –
Page No.# 31/39
“38. Having regard to the provisions of Article 22(5) of the Constitution and the provisions of
the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered: Where the
detention order has been made under Section 3 of the COFEPOSA Act and the PIT NDPS
Act by an officer specially empowered for that purpose either by the Central Government or
the State Government the person detained has a right to make a representation to the said
officer and the said officer is obliged to consider the said representation and the failure on
his part to do so results in denial of the right conferred on the person detained to make a
representation against the order of detention. This right of the detenu is in addition to his
right to make the representation to the State Government and the Central Government where
the detention order has been made by an officer specially authorized by a State Government
and to the Central Government where the detention order has been made by an officer
specially empowered by the Central Government, and to have the same duly considered. This
right to make a representation necessarily implies that the person detained must be informed
of his right to make a representation to the authority that has made the order of detention at
the time when he is served with the grounds of detention so as to enable him to make such a
representation and the failure to do so results in denial of the right of the person detained to
make a representation.”
55. The aforesaid ratio laid down by the Hon’ble Supreme Court in the case of
Kamlesh Kumar (supra) was discussed in details in the case of Konsam Brojen Singh
(supra) by the Full Bench of this Court in a case relating to a preventive detention under
the NSA, 1980. In that case, the questions which arose to be answered by the Hon’ble
Full Bench of this Court was whether the detenue under the NSA, 1980, has a right to
make representation to the Detaining Authority in addition to his right to file
representation, as provided under Section 8(1) of the said Act to the appropriate
Government and as to whether Article 22(5) of the Constitution of India confirms any
such additional right. While dealing with various cases decided by the Hon’ble Supreme
Court as well as by the Hon’ble Gauhati High Court, the Full Bench of this Court has
come to the following conclusion at paragraph-57:
“57. For all the aforesaid reasons, we hold:
Page No.# 32/39
(1) That a detenu has two rights under article 22(5) of the constitution: (i) to be
informed, as soon as may be, the grounds on which the order of detention is passed,
i.e., the grounds which led to the subjective satisfaction of the detaining authority,
and (ii) to be The twin rights are available to a detenu whether they are provided for
or not in the preventive detention laws.
(2) The right to make representation to the detaining authority by a detenue in
addition to his right to file representation to the Central Government or appropriate
Government is also guaranteed under Article 22(5) of the Constitution which forms
part of package of guaranteed fundamental right. No distinction as such could be
made in this regard in respect of the detention orders made either under COFEPOSA,
PIT NDPS or National Security Act, 1980, as the case may be.
(3) The detaining authority is under the constitutional obligation to inform the
detenue of his right to make such a representation to the detaining authority;
(4) The failure to inform the detenue of such right to make representation to the
detaining Authority vitiates the detention order made even under the provisions of the
National Security act, 1980.”
56. From the above judicial pronouncement of this Court, it is crystal clear that the
right of the detenue to make a representation to the Detaining Authority in addition to
the State Government and the Central Government, is one of the most valuable right
which has been mandated under Article 22(5) of the Constitution of India and non-
intimation of such valuable right takes away his right to make a representation before the
Detaining Authority, who has the power and jurisdiction to consider his representation.
Therefore, a violation of the mandatory procedure as laid down by the Hon’ble Supreme
Court, by the Detaining Authority, makes the whole process of detention unsustainable
under the law. In the facts of the instant case, as we have seen, this valuable right of
representation was not intimated to the Petitioner, whereby vitiating the whole act of
preventive detention of the Petitioner.
57. The aforesaid settled position of law has also been reiterated in the cases of (1)
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Rongjam Momin (supra), (2) Robin Dhekial Phukan (supra), (3) Dharmeswar Haloi
(supra) and (4) Aminul Islam Vs. Union of India & Ors, [W.P.(Crl.) No. 42/2025],
decided by the Gauhati High Court on 27.11.2025.
58. The learned counsel for the Petitioner has assertively argued that the
representations of the Petitioner were not disposed of expeditiously as expected under
the law by the State and the Central Government. In reference to the case in hand, it is
seen that the Petitioner submitted his representations to the State Government,
Government of India and the Chairman of Advisory Board respectively on 22.10.2025
through the Superintendent of the Central Jail, Guwahati. The representations were
purportedly sent to the respective Governments and the Advisory Board on 23.10.2025.
Thereafter, on 31.10.2025, the Commissioner of Police, Guwahati, submitted para-wise
comments to the representations of the Petitioner. The Petitioner’s representation to the
State Government was rejected by the Additional Chief Secretary to the State of Assam,
Home & Political Department on 07.11.2025. The Petitioner was heard by the Advisory
Board on 08.11.2025. However, whether any order has been passed on the aforesaid, is
not known, as the same has not been brought on record. The Petitioner’s representation
to the Central Government was rejected on 14.11.2025. From the above itself, it is seen
that it took nine (9) days for the Commissioner of Police to submit para-wise comments
to the representation of the Petitioner and thereafter, another seven (7) days taken by the
Addl. Secretary to the State Government, Home & Political Department to consider and
reject the aforesaid representation. The Central Government took another eight (8) days
to consider and reject the representation of the Petitioner.
59. The learned AAG appearing for the State Respondent has submitted that the part of
delay caused in considering the representation was due to certain holidays during that
period. The issue of delay in consideration of the representation of a detenue has been
discussed and examined by the Hon’ble Supreme Court as well as by the Hon’ble
Gauhati High Court in several cases. In this connection, it may be relevant to refer to
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paragraph-10 of the case of Icchu Devi Choraria (supra), which is extracted herein
below: –
“10. It is also necessary to point out that there was unreasonable delay in considering the
representations of the detenu dated June 9, 1980 and June 26, 1980. It is now settled law that
on a proper interpretation of clause (5) of Article 22, the detaining authority is under a
constitutional obligation to consider the representation of the detenu as early as possible, and
if there is unreasonable delay in considering such representation, it would have the effect of
invalidating the detention of the detenu: vide V. J. Jain v. Pradhan. Here in the present case
the representation of the detenu dated June 9, 1980 was received by the Deputy Secretary on
June 14, 1980 while the representation dated June 26, 1980 was received on June 30, 1980
and yet no decision was taken on these representations of the detenu until July 14, 1980. The
question is whether this delay could be said to have been reasonably explain-ed by the
detaining authority. The representation of the detenu dated June 9, 1980 was received in the
Mantralaya on June 14, 1980 but that day and the next day being holidays, it came to the
hands of the concerned officer only on June 16, 1980, and a copy of it was forwarded to the
Assistant Collector of Customs for his remarks on June 23, 1980. It is difficult to see why the
concerned officer in the Mantralaya should have taken seven days for just forwarding a copy
of the representation of the detenu to the Assistant Collector of Customs. There is no
explanation at all for this delay in any of the affidavits filed on behalf of the detaining
authority. The Assistant Collector of Customs thereafter forwarded his remarks on June 30,
1980 and here again there was a delay of seven days for which no explanation is
forthcoming. The remarks of the Assistant Collector of Customs were received by the
concerned officer on July 2, 1980 and thereafter the representation started on its upward
journey from the Under-Secretary to the Chief Minister. It appears that by this time the
second representation of the detenu dated June 26, 1980 was also received by the State
Government and hence this representation was also subjected to the same process as the
representation dated June 9, 1980. It was only on July 11, 1980 that these two
representations dated June 9, 1980 and June 26, 1980 came to be considered by the Under-
Secretary and he made a noting on the file recommending that the request of the detenu for
revocation of the order of detention may be rejected, and this noting was approved by the
Deputy Secretary as well as the Secretary on the same day and the Chief Minister endorsed it
on July 14, 1980. It is indeed difficult to see how these two representations of the detenu
Page No.# 35/39could be rejected by the detaining authority when the request of the detenu for copies of the
tapes was pending and the Secretary to the State Government in fact made a noting on July
11, 1980 that the copies of the tapes must be given to the detenu by the Customs Department.
But even if we take the view that it was not necessary for the detaining authority to wait until
after the copies of the tapes were supplied to the detenu, it is difficult to resist the conclusion
that the detaining authority was guilty of unreasonable delay in considering the two
representations of the detenu, and particularly the representation dated June 9, 1980. This
ground is also in our opinion sufficient to invalidate the continued detention of the detenu.”
60. What is discernible from the aforesaid paragraph is that the authority, while
considering the representation is not expected to take the undue luxury of time in
considering the representation. Every day of unexplained delay is prohibited in the case
of preventive detention.
61. A Constitution Bench of the Hon’ble Apex Court, in the case of K. M. Abdulla
Kunhi Vs. Union of India & Ors., reported in (1991) 1 SCC 476, has held that 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 of the Constitution that the representation
should be expeditiously considered and disposed of with a sense of urgency without an
avoidable delay. However, there can be no hard and fast rule in this regard. It depends
upon the facts and circumstances of each case. There is no period prescribed 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 not be supine
indifference, slackness or callous attitude in considering the representation. Any
unexplained delay in the disposal of representation would be a breach of the
constitutional imperative and it would render the continued detention impermissible and
illegal.
62. The Hon’ble Supreme Court, in another case, Vijay Kumar Vs. State of Jammu &
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Kashmir, reported in (1982) 2 SCC 43 at paragraph-12 has discussed and considered the
issue on delay in disposing of the representation of a detenue, wherein the Hon’ble
Supreme Court has held as follows: –
“12. The provision contained in Section 13(1) is on par with the constitutional protection
conferred by Article 22(5) of the Constitution of India. The contention is that the obligation
on the detaining authority to afford to the detenu the earliest opportunity of making a
representation against the order of detention, in order not to render it illusory simultaneously
obliges the authority to whom the representation is made to consider the same expeditiously.
Submission is that a statutory right conferred on detenu enabling him to make a
representation which of necessity must be giving an opportunity to point out to the
Government as to why the detention order was not justified and that it must be revoked and
the personal liberty deprived under the detention order must be restored, is to convince the
Government to take into consideration the facts and contentions set out in the representation,
which must imply that the Government must consider the same. The earliest opportunity to
be afforded for making representation inheres the corresponding duty of the Government to
consider the representation so received expeditiously. The reason behind enacting this
provision is manifest. When power to detain without trial, is exercised, the authority
exercising the power must afford an opportunity to the detenu to convince the
Government/detaining authority that the power was not justifiably exercised or no occasion
arose for exercise of the power. In a punitive detention which is the end product of a trial in
which the convict participates and has full opportunity to present his side of the case while
preventive detention ordinarily described as jurisdiction based on suspicion does not afford
any opportunity to the detenu to explain his side of the matter before he is deprived of the
liberty and, therefore, so soon after the detenu is deprived of his personal liberty the statute
makes it obligatory on the authorities concerned to afford him an earliest opportunity to
represent his side of the case and which inheres the corresponding obligation on the
authority to consider the same. The word ‘earliest’ which qualifies the opportunity must
equally qualify the corresponding obligation of the State to deal with the representation, if
and when made, as expeditiously as possible. The opportunity contemplated by the section is
the opportunity to make a representation against the detention order to the Government and
therefore ex hypothesi soon after the person is deprived of his personal liberty he must be
Page No.# 37/39afforded the earliest opportunity to make a representation. The representation is to be made
to the Government. Therefore, the detenu who has already been served with the detention
order and thus deprived of his liberty would ordinarily be in a position to send his
representation through the jail authorities. The jail authority is merely a communicating
channel because the representation has to reach the Government which enjoys the power of
revoking the detention order. The intermediary authorities who are communicating
authorities have also to move with an amount of promptitude so that the statutory guarantee
of affording earliest opportunity of making the representation and the same reaching the
Government is translated into action. The corresponding obligation of the State to consider
the representation cannot be whittled down by merely saying that much time was lost in the
transit. If the Government enacts a law like the present Act empowering certain authorities to
make the detention earliest opportunity to the detenu to make the detention order and also
simultaneously makes a statutory provision of affording the earliest opportunity to the detenu
to make his representation against his detention, to the Government and not the detaining
authority, of necessity the State Government must gear up its own machinery to see that in
these cases the representation reaches the Government as quickly as possible and in this
behalf not properly explained would be denial of the protection it is considered by the
authorities with equal promptitude. Any slackness conferred by the statute and would result
in invalidation of the order.”
63. Therefore, any lapse in consideration and disposal of the representation submitted
by a detenue without any appropriate and convincing explanations, makes the action of
the State Authority non sustainable under the laws. This lapse of unexplained delay has
been treated as fatal and the same is treated as a strong ground for the detenue to
challenge his continuous detention under the prevention detention.
64. As we have seen in the instant case, the State Government took 17 days to dispose
of the representations submitted by the Petitioner and no convincing explanation could
be given by the State Government. Therefore, such unexplained delay can obviously be
termed as fatal and thereby, providing an indefeasible right of liberty to the Petitioner.
65. In view of the aforesaid discussions, it is the considered opinion of this Court that
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the State Government has miserably failed to provide constitutional guarantee to the
Petitioner, under Article 22(5) of the Constitution of India, while executing the process
of detention of the Petitioner in the instant case, clearly on the aforesaid two grounds,
i.e., (1) Non-information/intimation of the Petitioner’s right to make a representation
before the Detaining Authority and (2) Unreasonable and unexplained delay in
considering and disposal of the representations submitted by the Petitioner before the
State and Central Government respectively.
66. Taking into account the principles and ratios laid down by the Hon’ble Supreme
Court as well as by the Hon’ble Gauhati High Court, as discussed herein before, this
Court is of the considered opinion that the State Respondent has violated the mandates
of Article 22(5) of the Constitution of India as well as the principles laid down by the
Hon’ble Supreme Court in the instant case, while passing and executing the Detention
Order of the Petitioner.
67. Having arrived at the aforesaid conclusions, this Court does not find it necessary at
this stage to consider and examine the other Grounds of Detention of the Petitioner in
the instant case, as the same will not materially affect the findings of this Court. This
Court is of the clear opinion that in the instant case, on the aforesaid two grounds alone,
the impugned Detention Order dated 07.10.2025 can be termed to be violative of Article
22(5) of the Constitution of India and therefore, the instant writ petition of the Petitioner
liable to be allowed.
68. Consequently, the impugned Detention Order dated 07.10.2025, issued by the
Commissioner of Police, Guwahati, the Grounds of Detention served upon the Petitioner
on 08.10.2025 as well as the order bearing Memo No. PLA-710928/122 dated
14.10.2025, whereby the Detention Order of the Petitioner was approved by the
Government of Assam/Hon’ble Governor of Assam, are hereby set aside and quashed.
Accordingly, having held that the detention of the Petitioner is bad under the law and on
quashing of the impugned orders as well as the Grounds of Detention, the Petitioner is
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directed to be set at liberty immediately, if not otherwise wanted in any other case.
69. In terms of the aforesaid, the instant writ petition is disposed of as allowed.
JUDGE JUDGE Comparing Assistant
