Research › Search › Judgment

Orissa High Court · body

2002 DIGILAW 272 (ORI)

BHALU ` LOGEN KUMAR SAMAL v. STATE OF ORISSA

2002-05-01

A.K.PATNAIK, M.PAPANNA

body2002
JUDGMENT : A.K. Patnaik, J. - This is an application under Article 226 of the Constitution of India filed by the petitioner for quashing the order of detention dated 23.7.2001 passed under sub-section (2) of Section 3 of the National Security Act, 1980 detaining him in custody. 2. The facts briefly are that the District Magistrate, Ganjam passed order dated 23.7.2001 under sub-section (2) of Section 3 of the National Security Act, 1980 (in short, 'the Act') detaining the petitioner in custody. On 24.7.2001, the District Magistrate, Ganjam furnished to the petitioner regarding the grounds of such detention and further informed him that he may make representations to the State Government, Central Government and the Advisory Board against the order of detention. The petitioner submitted representations to the State Government and the Central Government on 20.8.2001. the representations of the petitioner was rejected by the State Government by its order dated 29.8.2001 and the Central Government on 5.9.2001. By order dated 10.9.2001, the Advisory Board confirmed the detention order and further directed that the petitioner shall continue in detention for twelve months in Circle Jail, Berhampur until further orders. Aggrieved, the petitioner has filed this writ petition for quashing the order of detention. Shri Guru, learned counsel for the petitioner, submitted that a reading of the grounds of detention furnished to the petitioner would show that the District Magistrate has not recorded in the said grounds of detention that the petitioner is likely to be released on bail although he has stated that the petitioner has applied to the Court through Advocate to be released on bail. He cited the decision of the Supreme Court in N. Meera Rani Vs. Government of Tamil Nadu and Another, in which, the Supreme Court has, inter alia, held that the detention order read along with its annexures must indicate that the detaining authority apprehended the likelihood of the detenu being released on bail and having found that the detention order did not contain the said satisfaction of the detaining authority that the detenu is likely to be released on bail in the dacoity case quashed the order of detention. Mr'. R. N. Acharya, learned Additional Government, on the other hand, sought to sustain the order of detention. Mr. A. Deo, learned Addl. Mr'. R. N. Acharya, learned Additional Government, on the other hand, sought to sustain the order of detention. Mr. A. Deo, learned Addl. Standing Counsel (Central) submitted that the Central Government has, on its part, promptly considered and rejected the representation of the petitioner on 5.9.2001 after receiving the same on 4.9.2001. 3. In N. Meera Rani v. Govt. of Tamil Nadu & another (supra), the Supreme Court in paragraphs 22 and 23 of the judgment held : "22. We may summarise and reiterate the settled principle. 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; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; 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. But, even so, 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. This appears to us to be the correct legal position. 23. Applying the above settled principle to the facts of the present case we have no doubt that the detention order, in the present case, must be quashed for this reason alone. The detention order read with its annexure indicates the detaining authority's awareness of the fact of detenu's jail custody at the time of the making of the detention order. However, there is no indication therein that the detaining authority considered it likely that the detenu could be released on bail. In fact, the contents of the order, particularly, the above quoted para 18 show the satisfaction of the detaining authority that there was ample material to prove the detenu's complicity in the Bank dacoity including sharing of the booty in spite of absence of his name in the F.I.R. as one of the dacoits. In fact, the contents of the order, particularly, the above quoted para 18 show the satisfaction of the detaining authority that there was ample material to prove the detenu's complicity in the Bank dacoity including sharing of the booty in spite of absence of his name in the F.I.R. as one of the dacoits. On these facts, the order of detention passed in the present case on 7.9.1988 and its confirmation by the State Government on 25,10.1988 is clearly invalid since the same was made when the detenu was already in jail custody for the offence of bank dacoity with no prospect of his release. It does not satisfy the test indicated by the Constitution Bench in Rameshwar Shaw Vs. District Magistrate, Burdwan and Another. We hold the detention order to be invalid for this reason alone and express no opinion on merits about the grounds of detention." Thus, as per the aforesaid law laid down by the Supreme Court, 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. It is, therefore, clear that the detaining authority must be reasonably satisfied on cogent material that there is likelihood of his release of the detenu on bail. 4. In the instant case, the detaining authority, namely, the District Magistrate, Ganjam has, in his grounds of detention given the following reasons as to why he has passed the order of detention in respect of the petitioner who was already in custody in connection with many criminal cases : "XI. *** *** *** You after being released from jail on 10.8.2000 disrupted the public order in the locality along with your anti social associates where you openly exploded bombs to terrorize the general public ... *** *** *** You after being released from jail on 10.8.2000 disrupted the public order in the locality along with your anti social associates where you openly exploded bombs to terrorize the general public ... You have applied to the Hon'ble Court through your advocate to be released on bail vide Annexure - Llll. Considering your criminal background and the proximate events it is necessary to prevent you from getting released on bail and acting in a manner prejudicial to public order by a suitable order of detention. You have no ostensible source of earning. You are an extremely violent person and a desperate antisocial. You have become a certain threat to public order in the Municipal limits of Berhampur Town. *** *** *** ***" In the aforesaid quoted portion of the grounds of detention, the District Magistrate although had indicated that the petitioner had applied to the Court through his advocate to be released on bail, has no where indicated that the petitioner is likely to be released on bail. On the other hand, in the preceding paragraphs of the grounds of detention furnished by the District Magistrate to the petitioner, he (District Magistrate) has given a number of criminal cases in connection with which the petitioner has been arrested and has been detained in the custody and has indicated sufficient materials which, if taken into consideration by any Court, will not warrant release on bail. As a matter of fact, it is stated by Mr. Guru, learned counsel for the petitioner that the bail application referred to in the grounds of detention quoted above did not yield any result for the petitioner and the said bail application was rejected. 5. We are, thus, of the view that the order of detention should be quashed as the District Magistrate has not indicated in the grounds of detention that the petitioner is likely to be released on bail as a result of which, he (petitioner) may again resort to activities prejudicial to the public order for which the order of detention is called for. 6. in the result, the writ petition is allowed, the order dated 23.7.2001 passed by the District Magistrate, Ganjam is quashed and the petitioner - Bhalu ' Logen Kumar Samal be released forthwith unless his detention is wanted in connection with some other cases. M. Papanna, J. I agree Final Result : Allowed