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2000 DIGILAW 137 (ORI)

MALLA ALIAS MADAN SETHI v. STATE OF ORISSA

2000-03-13

B.P.DAS, P.C.NAIK

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B. P. DAS, J. ( 1 ) IN this writ petition, the petitioner questions the legality and validity of the order of his detention under Section 3 (2) of the National Security Act, 1980 (in short, the Act ). ( 2 ) THE aforesaid order of detention is challenged on various grounds including the ground that the incidents affecting ordinary breach on award order have been taken as the basis for detention of the petitioner as a security prisoner with the sole object of frustrating his release on bail. Another ground taken is that the representation of the petitioner has not been considered expeditiously and ultimately the same was rejected after the two and half months which is violative of the mandate of Article 22 (5) of the Constitution of India and, therefore, the impugned order of detention is liable to be quashed. ( 3 ) THE State of Orissa as well as the Detaining Authority, i. e. , the District Magistrate, Ganjam, has filed their counter affidavits in support of the order of detention and has taken a stand that the Detaining Authority after being satisfied subjectively and after proper application of mind passed the order of detention as a preventive measure with a view to apprehend the objectionable activities of the petitioner. It is further stated that the activities of the petitioner were proximate in time and prejudicial to the maintenance of public order. The grounds of detention are as per Annexure-1 series to the writ petition. Learned Counsel for the State with reference to the grounds of detention submits that the activities of the petitioner were diabolic in nature affecting the public order, peace and tranquility. The said grounds of detention also indicate involvement of the petitioner in several incidents and in some cases no reports were filed before the police authorities the a motive to keep the gang-war out of the preview of the law and order enforcing authorities. In some cases, also even after release on bail, the petitioner accelerated his criminal activities with more vigour and, therefore, in order to curb the criminal activities of the petitioner, which are prejudicial to the public order, there was no other way than to detain the petitioner under the provisions. In some cases, also even after release on bail, the petitioner accelerated his criminal activities with more vigour and, therefore, in order to curb the criminal activities of the petitioner, which are prejudicial to the public order, there was no other way than to detain the petitioner under the provisions. ( 4 ) A Bench of this Court while rendering a decision in Pahali alias Surendera Singh v. State of Orissa and Another1, observed that the distinction between the areas of law and ordert and public order is one of degree and extent of the reach of the act inquestion on society. It is the potentiality of the act to disturb the even tempo, of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise the problem of law and order only. In the case at hand, from the activities of the petitioner, which have been highlighted in the grounds of detention, it reveals that these are prejudicial to the maintenance of public, order and not relatable to law and order, as sought to be made out by the learned Counsel for the detenu. Hence, in our view, this is not a case of law and order but a case of public order. There is nothing to disagree with the subjective satisfaction of the Detaining Authority and accordingly we hold that this being a case of public order, the order of detention is justified. ( 5 ) THE next question arises is whether there is any effective representation before the State Government and the Central Government and whether the authorities have dealt with those representations and whether the representation have been dealt with reasonable expedition or there is any delay in disposing of the representations which has been duly explained in the affidavit of the State. ( 6 ) THE case of the petitioner is that he made a representation on 16-6-1999 to the Advisory Board with a request to forward the same to the appropriate Government. The said representation was handed over to the Superintendent of Circle Jail, Berhampur, with a request for onward transmission of the same to the appropriate authority/government. ( 6 ) THE case of the petitioner is that he made a representation on 16-6-1999 to the Advisory Board with a request to forward the same to the appropriate Government. The said representation was handed over to the Superintendent of Circle Jail, Berhampur, with a request for onward transmission of the same to the appropriate authority/government. It is an admitted fact that on 1-9-1999 the said representation was rejected by the State Government. The Union of India in its counter-affidavit has stated that no representation from the petitioner was received by it but a report was received on 28-6-1999 in the Ministry of Home Affairs vide letter dated 18-6-1999 and on examination of the same. The Union of India decided on 2-7-1999 that there was no necessity to interfere with the order of detention approved by the Government of Orissa and, therefore, there was no reason to revoke the order of detention. Categorically it has been stated therein that no representation from or on behalf of the detenu has ever been received by the Central Government. In the counter- affidavit of the State, it is not disputed that the detenu had made a representation against the order of detention and that the same has been rejected by the State Government on 1-9-1999. The relevant paragraph of the counter affidavit; i. e. para 6, deals with the allegation of the petitioner regarding the delay in disposal of the representation, which is as follows: tthat it is respectfully submitted that the detenu had made a representation to the State Government against the orders of detention. The State Government after careful consideration have rejected the representation of the detenu and the same has been intimated to the detenu through the District Magistrate. Ganjam in Home (55) Deptt. Letter No. 5742/c-date 1-9-1999. Hence the fact remains that the representation which was made on 16-6-1999 was disposed of on 1-9-1999. There is no doubt that an endeavour has been made by the law enforcing authority as well as the District administration to detain the petitioner under the Act with a view to protect the public order and instill confidence in the minds of the general public but at the same time the constitutional mandate under Article 22 (5) cannot be overlooked. It is argued by the Counsel for the State though it is not in the counter affidavit that the delay in disposing of the representation is due to the fact that the matter was referred to the Advisory Board and after the decision of the Advisory Board the representation was considered and after due application of mind the same was rejected. It is well settled that the consideration of the representation is entirely independent of hearing by the Board or its report the expedition in this regard is essential at every stage. This view was taken in the case of Frances Coralie Mullia v. W. C. Khambra2. In the case of Aslam Ahmed Zahire Ahmed v. Union of India3, it was held that: it is neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of detenu has to be disposed of with reasonable expedition but it must necessarily depend on the facts and circumstances of each case the Apex Court further relying upon its earlier decisions in Vijay Kumar v. State of Jammu and Kashmir4 laid down the following principle: thus when it is emphasised and re-emphasised by a series of decisions for this Court that a representation should be considered with reasonable expedition it is imperative on the part of every authority whether in merely trans-mitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Art. 22 (5) of the Constitution. T ( 7 ) IT appears that though admittedly there is delay the State Government has utterly failed to explain the same. There was also no acceptable explanation in the counter-affidavit nor is there anything on record to indicate or explain the cause of the delay. In view of the averments made in para 6 of the counter affidavit of the State we have no other alternative than to hold that in the particular case there has been clear violation of the constitutional protection provided under Article 22 (5) of the Constitution. In view of the averments made in para 6 of the counter affidavit of the State we have no other alternative than to hold that in the particular case there has been clear violation of the constitutional protection provided under Article 22 (5) of the Constitution. In view of the aforesaid discussions the order of detention dated 4-6-1999 cannot be sustained and is hereby quashed. ( 8 ) THE writ petition is accordingly allowed. Let the petitioner Malla alias Madan Sethi be set at liberty forthwith if his detention is not required in connection with any other proceeding. ( 9 ) WHILE parting with the case we again express our dissatisfaction over the manner in which the, representation of the petitioner has been dealt with ultimately leading to his release even though there is clear case of breach of public order against him. Petition allowed.