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2002 DIGILAW 271 (ORI)

MITU ` BHIMSEN GURU v. UNION OF INDIA (UOI)

2002-05-01

A.K.PATNAIK, M.PAPANNA

body2002
JUDGMENT : A.K. Patnaik, J. - In this Habeas Corpus petition, the petitioner has prayed for quashing the order of detention dated 18.8.2001 passed by the District Magistrate, Sambalpur under Sub-section (2) of Section 3 of the National Security Act, 1980 detaining him (petitioner) in custody. 2. The facts briefly are that on 18.8.2001 the impugned detention order was passed by the District Magistrate, Sambalpur. On 21.8.2001, the detention order and the grounds of detention were served on the petitioner. On 21.8.2001, the petitioner submitted a representation to the District Magistrate, Sambalpur against the order of detention which was sent to the State Government on 25.8.2001. On 27.8.2001, the State Government approved the order of detention and on 29.8.2001 rejected the representation of the petitioner but communicated the order of rejection to the petitioner in its letter dated 9.10.2001. By a communication dated 17.10.2001, the Central Government also rejected the representation dated 27.9.2001 of the petitioner. On 9.10.20001 the Advisory Board, to whom the case was referred, passed orders confirming the order of detention and directed that the petitioner shall continue in detention for twelve months in the Circle Jail, Sambalpur until further orders. Aggrieved, the petitioner has filed this writ petition for quashing the order of detention dated 18.8.2001 (Annexure-1). 3. Mr. G, N. Mishra, learned counsel for the petitioner, submitted that the grounds of detention would show that on 18.6.2001 Sambalpur P. S. Case No. 206 u/s 395 I.P.C. (G. R. 941/2001) was registered and in connection with the said P.S. Case, the petitioner was arrested on 30.6.2001 and forwarded to the Court on 1.7.2001 and that the petitioner was in intermediary jail custody. There is no indication whatsoever in the grounds of detention or the materials annexed thereto that the petitioner was likely to be released on bail from jail custody in connection with the said case and if he was released on bail he will resort to activities prejudicial to public order. He argued that in the absence of such satisfaction of the District Magistrate that the petitioner though in custody is likely to be released on bail and after such release, he is likely to resort to activities prejudicial to public order, the order of detention is vitiated. He cited a decision of the Supreme Court in N. Meera Rani Vs. Government of Tamil Nadu and Another, in support of his aforesaid contention. Mr. He cited a decision of the Supreme Court in N. Meera Rani Vs. Government of Tamil Nadu and Another, in support of his aforesaid contention. Mr. R. N. Acharya, learned Additional Government Advocate, on the other hand, sought to sustain the order of detention. 4. In N. Meera Rani's case (supra), the Supreme Court after considering its earlier decision on the point held that subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case, but the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order and if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. 5. In paragraph 23 of the judgment in N. Meera Rani's case (supra), the Supreme Court found in that case that the detention order read with its annexure indicated the detaining authority's awareness of the fact of detenu's jail custody at the time of the making of the detention order, but there was no indication therein that the detaining authority considered it likely that the detenu could be released on bail and in the absence of such satisfaction of the detaining authority, held the detention order to be invalid and quashed the same. 6. In the present case, it appears from the grounds of detention that the petitioner was arrested in connection with several cases. In one case, he (petitioner) was acquitted and in other cases he was released on bail. But he was taken into custody in connection with Sambalpur P. S. Case No. 206 u/s 395 I.P.C. on 30.6.2001. The relevant facts relating to the said case in connection with which the petitioner was in custody, as indicated in the grounds of detention, are quoted hereunder : "5. On 18.6.2001 at about 2 P.M. you alongwith your associate Bad Kairu ' Rabindra Mohanty (who is previously detained under NSA) and other associates being armed with Pistol, Sword etc. The relevant facts relating to the said case in connection with which the petitioner was in custody, as indicated in the grounds of detention, are quoted hereunder : "5. On 18.6.2001 at about 2 P.M. you alongwith your associate Bad Kairu ' Rabindra Mohanty (who is previously detained under NSA) and other associates being armed with Pistol, Sword etc. wrongfully restrained to some cattle business men at Mandalia while the said persons were coming from Bargarh with herd of cattle. You terrorized them on the point of Pistol, Sword etc. and snatched way cash of Rs. 4,600/-, wrist watch, Motor cycle etc. You alongwith your associates also abducted three among them and kept them confined and demanded lump sum amount for their release. Later on due to intervention of police they were rescued. In this connection Sambalpur town P. S. Case No. 206 dated 18.6.2001 u/s 395 I.P.C. (G. R. 941/2001) has been registered on the report, one Md. Kabir Khan and under investigation. In this case you were arrested on 30.6.2001 and forwarded to Court on 1.7.2001 and now you are in intermediate jail custody. The case is under investigation. This crime has been committed by you alongwith your associates in broad day light in public road and that to while on Court's bail which is another example that you have no fear or regard for the normal law of the land. You are committing crime one after another disregarding the law of the land and creating panic in the minds of the peace loving general public in the locality. The copy of FIR is enclosed in Annexure-8." It is clear from the aforesaid facts stated in the grounds of detention that on 30.6.2001 the petitioner was arrested in connection with Sambalpur P. S. Case No. 206 and was forwarded to the Court on 1.7.2001 and he was in intermediary jail custody. But, there was no indication whatsoever in the aforesaid facts quoted from the grounds of detention that the petitioner had either applied for bail or was likely to be released on bail in which case, he would again resort to activities prejudicial to the public order. But, there was no indication whatsoever in the aforesaid facts quoted from the grounds of detention that the petitioner had either applied for bail or was likely to be released on bail in which case, he would again resort to activities prejudicial to the public order. In other words, while the District Magistrate has indicated in the grounds of detention his awareness to the fact of detention of the petitioner in jail custody, he has not recorded his satisfaction that he is likely to be released on bail or otherwise and if released, he will resort to such kind of activities prejudicial to the public order which he has been resorting to earlier. In fact, it is staled by Mr. Mishra, learned counsel for the petitioner that the petitioner has been remained in custody in connection with Sambalpur P. S. Case No. 206 and has not been released as yet. In the absence of any satisfaction recorded in the grounds of detention by the District Magistrate that the petitioner is likely to be released from jail custody, the impugned order of detention is invalid and is liable to be quashed. 7. In the result, the writ petition is allowed, the order dated 18.8.2001 passed by the District Magistrate, Sambalpur is quashed and the petitioner - Mitu ' Bhimsen Guru be released forthwith unless his detention is wanted in connection with some other cases. M. Papanna, J. I agree. Final Result : Allowed