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1960 DIGILAW 55 (ORI)

BISWANATH PANIGRAHI ` BISU PANIGRAHI v. STATE OF ORISSA

1960-04-01

B.N.MISRA, R.N.MISRA

body1960
JUDGMENT : R.N. Misra, C.J. - The Petitioner, a detenu under the National Security Ordinance, 1980, was detained by the District Magistrate, Sundargarh, by his order dated 11th December, 1980, and within the time admissible under law the following grounds of detention were communicated to him: 1. That your past records show that you were involved in several criminal cases and other illegal and unlawful activities vide Township P.S. Case No. 444. 445 dated 11-11-1977, Plantsite P.S. Case No. 277 dated 30.5.1978. Township P.S. Case No. 371 dated 3-9-1979, Township P.S. Case No. 314 dated 1.5-1980, Township P.S. Case No. 215 dated 1.5.1980, Township P.S. Case No. 292 dated 28.6.1980 and Plantsite P.S. Case No. 376 dated 29.6.1980 and Township P.S. Non. F.I.R. No. 18380 dated 30.6.1980. That by such of your unlawful and criminal activities as reflected in the aforesaid cases, you have been found to be of a very desperate character and your desperate activities have created horror, panic and unrest among the peace-loving people in general and have seriously affected the public peace and tranquility which is prejudicial to the maintenance of public order. 2. That during the recent student agitation for Orissa Bandh on 5.12.1980 you were reported to be taking active part in threatening some of the local business people In Rourkela with dire consequences of loot and arson unless they close their shops during the Orissa Bandh day. That you have decided to barricate the roads on a few places with a view to paralyse the conveyance facilities, to attack petrol pumps and all other vulnerable points, to take steps to disrupt phone connections with a view to disrupt the public peace and tranquility of Rourkela thereby contemplating to act in a manner prejudicial to the maintenance of public order. It is, therefore, necessary to prevent you from acting in a manner prejudicial to the maintenance of public order. On these grounds, the order dated 11-12-1980 directing your detention has been issued. You are also hereby informed that you are at liberty to, represent your case to the Advisory Board constituted by the State Government as also to claim personal appearance before the Advisory Board. The Petitioner filed this writ application on 16-12-1980. On 14-1-1981 he was communicated, while in detention, correction of particulars with reference to 3 cases indicated in ground No. 1 communicated to him in support of the order of detention. The Petitioner filed this writ application on 16-12-1980. On 14-1-1981 he was communicated, while in detention, correction of particulars with reference to 3 cases indicated in ground No. 1 communicated to him in support of the order of detention. Long before that date the Petitioner had represented against his detention, and we have been told at the bar that 2-3 days after the communication of the correction the Petitioner was heard by the Advisory Board on the basis of his earlier representation. Challenge in this application is to the order of detention, Several contentions have been raised in the application. A counter affidavit has been filed by the detaining authority in support of the order. 2. We do not think, it is necessary for us to cover the entire field of argument as in our view the brief reasons indicated by us below on the basis of submissions of counsel with reference to the first ground would be adequate to dispose of this applications favour of the detenu. 3. It is the settled law that the order of detention is the outcome of the subjective satisfaction of the competent authority under the Act. Since the order of detention is based upon the subjective satisfaction of the detaining authority, it is equally settled in law that if any ground in support of the detention order fails, the whole order goes because what remains 'out of the grounds does not admit of an objective assessment to provide support for the order of detention. It is also the la w that since a citizen is being detained without trial and his rights are being taken away for the purpose of the community, the truncated rights available to him of representation to the Advisory Board must be allowed to be fully exercised, and if there be any prejudice in that regard the order of detention becomes vitiated. It is not necessary that the detenu must exhibit or demonstrate actual prejudice. It is sufficient if a situation is established where there was scope of his being prejudiced. In the instant case, the second paragraph of ground No. 1 as extracted above is the conclusion of the detaining authority from the nine cases referred to in paragraph 1 of the detention order. The correction communicated on 14th January, 1981 is as per Annexure E and the text of the communication reads thus: To Sri Biswanath Panigrahi. In the instant case, the second paragraph of ground No. 1 as extracted above is the conclusion of the detaining authority from the nine cases referred to in paragraph 1 of the detention order. The correction communicated on 14th January, 1981 is as per Annexure E and the text of the communication reads thus: To Sri Biswanath Panigrahi. Detenu. C/o. Superintendent of District Jail, Sundargarh. You are hereby informed that there were some typographical errors in the grounds of detention communicated to you on 15-1l-1980 which are to be read as follows: Para 1: Township P.S. Case No. 371, Township P.S. Case No. 314 & Township P.S. Case No. 183/8 may be read as Township P.S. Case Nos. 321, 214 and 18/80 respectively. There can be no dispute that when the Petitioner represented he did not have the appropriate material to batter against the conclusion of the detaining authority drawn with reference to the 9 cases. If the proper case numbers had been given it was open to the Petitioner to demonstrate before the Advisory Board by referring I to the allegations that he was not a very desperate character as described in the second paragraph of ground No. 1 and that he did not indulge in activities which created horror, panic and unrest among peace-loving people in general or that his activities did not seriously affect the public peace and tranquillity which was prejudicial to the maintenance of public order. Wrong citation of case numbers in the grounds of detention certainly yielded scope for prejudice. It is difficult at this stage, in retrospect, to assess what the position would actually have been before the Advisory Board in case the Petitioner bad the correct material available to him at the time of representation and personal hearing Since an order of detention has the effect of abridging personal rights so valuable to a citizen in a free State, any interference with the same made in the interest of society must conform to the strictest requirements of law and any deviation therefrom must have the effect of vitiating it. In the circumstances indicated above, we are of the view that the Petitioner did not have a full and reasonable opportunity of representing against the order of detention and that has the effect of vitiating the order. In Ramchandra A. Kamat Vs. In the circumstances indicated above, we are of the view that the Petitioner did not have a full and reasonable opportunity of representing against the order of detention and that has the effect of vitiating the order. In Ramchandra A. Kamat Vs. Union of India (UOI) and Others, in dealing with the right of representation against preventive detention, the Court pointed out: I, The right to make a representation is a fundamental right. The representation thus made should be considered expeditiously by the Government. In order to make an effective representation the detenu is entitled obtain information relating to the grounds of detention.... In an earlier case in Mohd. Yousuf Rather Vs. State of Jammu and Kashmir and Others the Court said: ...This Court has disapproved of vagueness in the grounds of detention because that impinges on the fundamental right of the detenu under Article 22(5) of the Constitution to make a representation against the order of detention when the grounds on which the order has been made are communicated to him. The purpose of the requirement is to afford him the earliest opportunity of seeking redress against the order of detention. But as is obvious, that opportunity cannot be said to be afforded when it is established that a ground of detention is so vague that he cannot possibly make an effective representation. Reference in this connection may be made to this Court's decision in The State of Bombay Vs. Atma Ram Sridhar Vaidya, where the guarantee of Article 22(5) has been characterised as an elementary right of citizen in a free democratic State, and it has been held that if a ground of detention is not sufficient to enable the detained person to make a representation at the earliest opportunity, it must be held that his fundamental right in that respect has been infringed inasmuch as the material conveyed to him does not enable him to make the representation. What has been said about vague grounds would all the more apply to a situation where in the ground wrong facts are stated and the mistake is connected at a belated stage. We are inclined to agree with the submission advanced by Mrs. Padhi for the Petitioner that the Petitioner has, the order of detention must go. 4. The writ application is accordingly allowed and the order of detention is quashed. We are inclined to agree with the submission advanced by Mrs. Padhi for the Petitioner that the Petitioner has, the order of detention must go. 4. The writ application is accordingly allowed and the order of detention is quashed. The Petitioner is directed to be set at liberty forthwith. B.N. Misra, J. 5. I agree. Final Result : Allowed