Research › Search › Judgment

Orissa High Court · body

2001 DIGILAW 155 (ORI)

ARNAPURNA SAHOO v. STATE OF ORISSA

2001-04-06

A.S.NAIDU, PRADIPTA RAY

body2001
A. S. NAIDU, J. ( 1 ) PURSUANT to an order dated August 24, 2000 passed by the District Magistrate, Puri (hereinafter REFERRED TO as 'the detaining authority'), in exercise of powers conferred under Section 3, sub-section (2) of the National Security Act, 1980 (for short, 'the Act') Narayan Sahoo alias Narua (hereinafter REFERRED TO as 'the detenu'), a resident of Puri, who was already in custody with effect from 14-8-2000 in connection with Puri P. S. Case No. 141 dated August 14, 2000 was detained with a view to prevent him from committing further criminal activities. The mother of the detenu has filed this writ challenging the grounds of detention and praying to issue a writ of Habeas-Corpus declaring the detention to be illegal, unconstitutional and to quash the order of detention. ( 2 ) THE order of detention which is annexed as Annexure-1 to the writ application clearly catalogues a series of violent activities said to have been committed by the detenue which created a tremor of terror in the minds of peace loving people of the locality. The grounds of detention dated August 26, 2000 both in English and Oriya languages were communicated to the detenu on August 28, 2000 vide Annexure-2. The State Government, in exercise of powers conferred by sub-section (4) of Section 3 of the National Security Act, 1980 approved the detention order dated August 24, 2000 passed by the District Magistrate, Puri on September 9, 2000 (Annexure-3 ). ( 3 ) IT appears from the averments made in the writ petition that the detenu on September 4, 2000 submitted a representation before the Superintendent of Jail, Puri along with copies for being transmitted to the Central Government, the Home Department of the State Government etc. In the representation, the detenu emphatically denied all the charges levelled against him. At the same time, it is stated that as he does not know reading and writing English, vernacular translated copies of all the materials relied upon should be supplied to him. It is further alleged that as no action was taken the detenu submitted a second representation on 15-9-2000 which has also remained unattended. ( 4 ) ON 25-10-2000 this Court issued rule nisi to the opposite parties calling upon them to submit their counter-affidavits. After receiving the rule, a counter-affidavit was filed on behalf of the State Government, opp. It is further alleged that as no action was taken the detenu submitted a second representation on 15-9-2000 which has also remained unattended. ( 4 ) ON 25-10-2000 this Court issued rule nisi to the opposite parties calling upon them to submit their counter-affidavits. After receiving the rule, a counter-affidavit was filed on behalf of the State Government, opp. party No. 1, justifying the detention. In paragraph 13 of the counter-affidavit it was submitted that the representation submitted by the detenu on 4-9-2000 addressed to the State Government was carefully considered by the Government and the same was rejected and rejection order was communicated by letter dated 21-9-2000 to the District Magistrate and the same was served on the detenu on 26-9-2000. The State Government, however, emphatically stated that the detenu has not submitted any representation on 15-9-2000. So far as the representation of the petitioner to the Central Government is concerned, the said counter-affidavit is silent. ( 5 ) THE District Magistrate, Puri, opposite party No. 2 filed a counter-affidavit stating therein that the detenu was supplied with all the documents basing on which the detention order was passed both in English and Oriya. The allegation regarding non-supply of the documents in Oriya language was denied. It is further stated that copies of the documents supplied to the detenu were enclosed to the grounds of detention served on 28-8-2000, on the basis of which, he made his representation on 4-9-2000. The allegation that the detenu made a second representation on 15-9-2000 is denied. The said affidavit is also silent with regard to the allegation that the State Government did not forward the representation to the Central Government. In view of the controversy regarding the submission of the second representation, we called upon the Superintendent of Jail to file an affidavit, in response to which he filed an affidavit admitting the fact that, the second representation dated 15-9-2000 was received by him and on the same day he sent the copies of the representation to the District Magistrate, Puri by special messenger. The District Magistrate on 30-1-2001 filed an affidavit admitting that actually the second representation of the detenu dated 15-9-2000 was received at the residential office of the Collector, Puri and was inadvertently misplaced in the office and the same could not be dealt with. The District Magistrate on 30-1-2001 filed an affidavit admitting that actually the second representation of the detenu dated 15-9-2000 was received at the residential office of the Collector, Puri and was inadvertently misplaced in the office and the same could not be dealt with. A further counter-affidavit was filed on 6-2-2001 by the Under Secretary, Home Department (Special Section) Government of Orissa, stating that the representation filed by the detenu on 4-9-2000 was received by the Jail Superintendent and the same was forwarded to the District Magistrate. After receipt of the parawise comments from the Superintendent of Police, the District Magistrate on 16-9-2000 forwarded the representation to the Under Secretary, Home (Special Section) by post which was received by the Under Secretary on 18-9-2000. It is further stated that after being processed, the same was put up before the Chief Minister on 20-9-2000 and was disposed of on the same day. It is further stated that the representation received from the detenu was sent to the Government of India on 18-9-2000. Thus, there was no delay. ( 6 ) ON behalf of the Central Government an affidavit has been filed by the Under Secretary, Ministry of Home Affairs. In para 8 of the petition it is stated that the representation of the detenu dated 4-9-2000, in vernacular language, along with parawise comments of the detaining authority was received by the Central Government in the Ministry of Home Affairs on 26-9-2000. The State Government was requested on 27-9-2000 to send the English version of the representation. The English version was received on 11-10-2000. Thereafter the representation was processed and the same was put up before the Under Secretary, Ministry of Home Affairs on the same day. The concerned authorities considered the representation of the detenu and rejected on 12-10-2000. Thus, the Central Government acted with utmost promptitude. ( 7 ) WE have heard Shri R. N. Mohanty, learned counsel for the detenu in extenso. Shri Mohanty challenged the order of detention on the following grounds. (A) Usurpation of powers guaranteed under the National Security Act, 1980, in absence of cogent materials to reveal that the detenu is likely to be released on bail and would involve himself with incidents relating to public order, is bad in law. Shri Mohanty challenged the order of detention on the following grounds. (A) Usurpation of powers guaranteed under the National Security Act, 1980, in absence of cogent materials to reveal that the detenu is likely to be released on bail and would involve himself with incidents relating to public order, is bad in law. (B) The grounds of detention were formulated at a latter date than the date on which the order of detention was passed, which vitiates the proceeding and reveals bias. (C) All the grounds being stale and not proximate to the date on which the order was passed, the order of detention is not sustainable. (D) Neither copies of the materials relying upon which the grounds of detention were passed were supplied, nor Oriya translated copies were furnished, in spite of request, thereby preventing the detenu from presenting his case before the Board and filing full-fledged representation before the authorities. (E) Non-supply of translated copies of the documents within the stipulated time and non-supply of documents asked for including the report of the Superintendent of Police violate Article 22 (5) of the Constitution of India. (F) Inordinate delay in disposal of the representations by both the State and the Central Government vitiates the mandatory provisions of Law. (G) Distinction between law and order and public order was not kept in mind by the authorities; so on and so forth. ( 8 ) THOUGH the detention order is challenged by the detenu on the grounds stated above, it is not necessary to refer to all the grounds since there is one ground which is, in our opinion, fatal to the continued detention of the detenu and it will be sufficient if we confine our attention to that ground. ( 9 ) THE contention of the petitioner under this count is, 'inordinate delay' in disposing of the representation, as well as the inaction on the part of the detaining authority in forwarding the representation of the detenu to the Central Government in time, violates the rights guaranteed under Article 22 (5) of the Constitution of India and the order of detention is liable to be set aside on that ground. It was also contended by the petitioner, in the alternative, that in any event non-supply of material documents basing upon which the order of detention was passed, as well as vernacular translated copies of the said documents to the detenu has also infringed the rights of the detenu. This ground of challenge on behalf of the detenu appears to us to be well-founded. It is no more res integra that Article 22 (5) of the Constitution of India read with Section 3, sub-section (2) of the National Security Act, 1980 mandatorily requires that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been passed and also supply the documents and all other materials so as to enable the detenu to make a representation against the order of detention. The detaining authority is also duty bound to consider the detenu's representation without unreasonable delay and failure in this duty is itself sufficient to vitiate the detention order. It is now the settled law, on a proper interpretation of clause (5) of Article 22, that 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 and, that too if the delay has remained unexplained, in considering such representation, it would have the effect of invalidating the detention of the detenu (see vide cases of V. J. Jain v. Pradhan, (1979) 4 SCC 401 : (1979 Cri LJ 1131), Venmathi Selvam v. State of T. N. , (1998) 5 SCC 510 , N. Bhanumati Reddy v. Union of India, (2000) 19 OCR 552 and Krushna Chandra Behera v. State of Orissa, (2000) 19 OCR 388 of the decision reported in (1991) 1 SCC 470 (sic ). ( 10 ) IN the present case, admittedly the detenu submitted a representation on 4-9-2000 to the Superintendent of Jail, Puri. No action was taken by the authorities till 15-9-2000 on which date admittedly the detenu submitted his second representation. Surprisingly though the second representation was received by the Superintendent of Puri and was forwarded to the Collector, Puri, receipt of the same was denied at the first hand by the authorities. No action was taken by the authorities till 15-9-2000 on which date admittedly the detenu submitted his second representation. Surprisingly though the second representation was received by the Superintendent of Puri and was forwarded to the Collector, Puri, receipt of the same was denied at the first hand by the authorities. On being called upon to file an affidavit, the Superintendent of Jail admitted receipt of the same and thereafter a plea was taken by the authorities that the said representation was misplaced in the residential office of the Collector, Puri. This reveals a sorry state of affair and speaks a lot about the lackadaisical attitude exhibited by the authorities while dealing with such sensitive matters. It is admitted by opp. party No. 2 in the afidavit that on 16-9-2000 i. e. the day after the second representation was filed, the first representation dated 4-9-2000 was forwarded by the District Magistrate to the State Government. Thus, there is an inordinate delay of 12 days which remains almost unexplained. The representation was rejected on 20-9-2000 i. e. after a period of 16 days. Except mentioning the action taken on different dates in a stereotype manner, no positive explanation is given explaining such delay. ( 11 ) THE inaction of the detaining authority is further reflected from the fact that the representation filed by the detenu dated 4-9-2000 which was in vernacular language i. e. Oriya was sent to the Central Government on 18-9-2000 after a lapse of 14 days that too without enclosing a translated copy. The Central Government was constrained to issue a telegram on 28-2-2000 requesting the State Government to furnish the English version of the representation. After receiving the said telegram the English version was sent by the detaining authority on 30-9-2000 and the Central Government after receipt of the same rejected the representation on 13-10-2000. Thus, there was delay of 26 days. Forwarding the Oriya representation to the Central Government definitely, cannot be nomenclatured as 'due discharge of the liability'. Surprisingly the State Government never tried to send the English translated copy till they received a telegram on 28-9-2000. Such an action on the part of the State Government rather appears uncalled for and the delay remains unexplained and has to be regarded as unreasonable and, therefore, fatal. Surprisingly the State Government never tried to send the English translated copy till they received a telegram on 28-9-2000. Such an action on the part of the State Government rather appears uncalled for and the delay remains unexplained and has to be regarded as unreasonable and, therefore, fatal. It is crystal clear that the authorities dealt with the representation in a routine manner and there was no application of mind by the competent officers nor the mandatory requirements of law as well as the pronouncements of this Court, other High Courts throughout the country and last but not the least the decision of the Apex Court of the country were kept in mind. It has been settled by the catena of decisions, in the meanwhile, that delay in sending the representation of the detenu to the Central Government resulted in denial of the right conferred upon the detenu under Article 22 (5) of the Constitution and the said inaction also makes continued detention of the detenu illegally. ( 12 ) WE had the occasions of dealing with many similar cases relating to detention matters for the last few months. Our experience while dealing with such cases is rather shocking. In most of the matters it is found that unnecessary delay was caused in disposal of the representation without there being any justifiable cause. We have a feeling that delay in disposal of the representation and non-complying with the mandatory requirements of law, like supplying translated copies, communicating orders of detention, mentioning in the detention order that the detenu has a right to represent to the Central Government and the Board and forwarding the representation filed by the detenu with an English translation thereof to the Central Government with utmost promptitude, in most of the cases, are chronic omissions and/or commissions on the part of the State and its officials. It is rather strange that neither the State Government nor its officials prefer to dispose of the representations, which are mandatorily required to be disposed with utmost expedition and/or promptitude. In most of the cases no explanation at all has been offered by the State Government in the counter-affidavits. The authorities appear to be not abreast with the judicial decisions. It is rather strange that neither the State Government nor its officials prefer to dispose of the representations, which are mandatorily required to be disposed with utmost expedition and/or promptitude. In most of the cases no explanation at all has been offered by the State Government in the counter-affidavits. The authorities appear to be not abreast with the judicial decisions. In most of the cases the orders of detention are set aside both by this Court as well as by the Apex Court of the country for not complying with the statutory requirement with utmost expedition. It gives a gut feeling, sometimes, that delay is caused and/or the mandatory requirements are not followed due to reasons which are unexplainable. The matter is very serious and requires immediate attention by the Home Department. A copy of this order should be sent to the Secretary, Home Department, who shall take appropriate action to communicate the mandatory requirements of law to all the detaining authorities to avoid such eventualities in future. ( 13 ) WE may point out straightway, that we are not at all happy at the thought that our order may have the result in setting free persons who are allegedly involved in criminal activities. We are not unmindful of the fact that the National Security Act has been enacted for the purpose of eradicating evil from the society. When an order is made by this Court releasing a person alleged to have involved in anti-social activities, the Court is aware of the possibility that the effect of the order may let loose on the society a person who might in all probability resume his nefarious activities causing uncalculable mischief and harm to the society, but at the same time the Court cannot forget that the power of preventive detention is an unbrid-led power and should be exercised only in the interest of public security. The power to detain a person without trial is an extraordinary power encroaching upon the personal liberty and it is the solemn duty of the Court to ensure that this power is exercised strictly in accorance with the requirements of the Constitution and the Law. To quote from the of quoted decision in the case of Smt. Ichhu Devi Choraria v. Union of India, (1980) 4 SCC 531 : ( AIR 1980 SC 1983 ) the Apex Court has observed (Para 3) :". . . To quote from the of quoted decision in the case of Smt. Ichhu Devi Choraria v. Union of India, (1980) 4 SCC 531 : ( AIR 1980 SC 1983 ) the Apex Court has observed (Para 3) :". . . The Courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. Men have rightly laid down their lives at its altar in order to secure it, protect it and preserve it. The Constitution has therefore, while conceding the power of preventive detention, provided procedural safeguard with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty and the Courts have always zealously tried to uphold and enforce these safeguards. This Court has also through its judicial pronouncements created various legal bulwarks and breakwaters into the vast powers conferred on the executive by the laws of preventive detention prevalent at different points of time. It is true that sometimes even a smuggler may be able to secure his release from detention if one of the safeguards or requirements laid down by the Constitution or the law has not been observed by the detaining authority but that can be no reason for whittling down or diluting the safeguards provided by the Constitution and the law. If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, howsoever wicked or mischievous he may be. The law cannot be subverted, particularly in the area of personal liberty, in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by the Courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law. This Court would be laying down a dangerous precedent if it allows a hard case to make bad law. This Court would be laying down a dangerous precedent if it allows a hard case to make bad law. We must, therfore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner trammelled by the fact that this is a case where a possible smuggler is seeking his release from detention. " ( 14 ) THESE are the reasons for which we are constrained to allow the writ petition and direct immediate release of the detenu from detention unless he is required to be in custody for any other purpose. We may point out that we have not pronounced upon the validity of the order of detention, but merely held that continued detention of the detenu is illegal on the ground of non-compliance of the requirements of clause (5) of Article 22 of the Constitution of India by occasioning inordinate unexplained delay in disposing of the representation by the State Government as well as the callous attitude exhibited by the detaining authority in forwarding the representation to the Central Government. It is needless to say that nothing that has said by us in this judgment should be considered as an expression of opinion on the validity or correctness of the order of detention. The writ petition is allowed. ( 15 ) PRADIPTA RAY, J:- I agree. Petition allowed.