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2002 DIGILAW 325 (ORI)

Animesh Ghosh alias Bapi v. State of Orissa

2002-06-17

A.K.PATNAIK, M.PAPANNA

body2002
JUDGMENT A. K. PATNAIK, J. — This is habeas corpus petition under Article 226 of the Constitution of India challenging the order passed by the District Magistrate, Balasore on the 19th of Sep¬tember, 2001 detaining the petitioner in District Jail, Balasore. 2. The relevant facts for disposal of this writ petition briefly are that on 19.9.2001, the District Magistrate, Balasore after being satisfied that the detention of the petitioner was necessary to prevent from acting in any manner prejudicial to the maintenance of public order, passed the impugned order of deten¬tion under Sub-section (2) of Section 3 of the National Security Act, 1980 (for short “the Act”). Pursuant to the said order of detention, the petitioner was detained in the District Jail, Balasore. Thereafter by communication dated 23.9.2001, the Dis¬trict Magistrate, Balasore communicated the grounds of detention to the petitioner. In the said grounds of detention it was inter alia, stated that the petitioner has been indulging in anti-social activities in Balasore town for over a period of three years from 1999-2001 and this has become a matter of concern in the maintenance of public order within the municipal limits of Balasore town and in particular, in F.M. College area, Sahadevkhunta, Railway Station, Cinema bazar and Nuabazar, etc. It was further stated in the said grounds of detention that the activi¬ties of the petitioner had created terror in the hearts of common people of Balasore who out of fear do not dare to report against the said activities to the police. In the said grounds of deten¬tion the various anti-social activities of the petitioner during the years 1999, 2000 and 2001 has been detained. On 26.9.2001, the State Government approved the said order of detention in exercise of its power under Sub-section (4) of Section 3 of the Act. The petitioner then submitted a representation dated 7.10.2001 addressed to the Chairman and Members of the Advisory Board constituted under the Act by the State Government through the District Magistrate, Balasore. The said representation was rejected by the State Government on 27.10.2001 and the said rejection by the State Government was communicated to the peti¬tioner by Memo No. 5621/C dated 29th October, 2001 of the Govern¬ment of Orissa, Home (Special Section) Department, Bhubaneswar. The said representation was rejected by the State Government on 27.10.2001 and the said rejection by the State Government was communicated to the peti¬tioner by Memo No. 5621/C dated 29th October, 2001 of the Govern¬ment of Orissa, Home (Special Section) Department, Bhubaneswar. In the meanwhile the matter was referred to the Advisory Board constituted under the Act and the Advisory Board gave its opinion that there was sufficient cause for the detention of the peti¬tioner. By order dated 29th of October, 2001, the Government of Orissa, Home (Special Section) Department, confirmed the order of detention under Section 12(1) of the Act and directed that the petitioner shall continue in detention 12 (twelve) months in the District Jail, Balasore. Aggrieved, the petitioner has filed this writ petition for quashing his detention and for directing the opposite parties to release him from custody. 3. Mr. S. R. Mohapatra, learned counsel for the petitioner submitted that the continued detention of the petitioner is liable to be quashed on the ground of delay on the part of the State Government to consider the representation of the petition¬er. He argued that while the representation of the petitioner against the order of detention was received by the State Government on 10.10.2001, it was rejected after eighteen days on 27.10.2001 and no explanation has been furnished by the State Government in its counter-affidavit for this delay of eighteen days in considering the representation of the petitioner. He cited the decision of the Supreme Court in Rajammal v. State of Tamil Nadu and another, A.I.R. 1999 SC 684, in which the order of detention under the Tamil Nadu Act 14 of 1982 was quashed on the ground of violation of the fundamental right of the detenu under Article 22(5) of the Constitution of India as a delay of five days from 9.2.1998 to 14.2.1998 in considering the representation of the detenu had remained unexplained by the authorities. 4. In reply to the aforesaid submission of Mr. Mohapatra, Mr. 4. In reply to the aforesaid submission of Mr. Mohapatra, Mr. R. N. Acharya, Additional Government Advocate, submitted that the representation dated 7.10.2001 of the petitioner against the order of detention was addressed to the Chairman and Members of the Advisory Board constituted under the Act and for this reason, the Collector sent the representation to the Advisory Board and only after consideration of the representation of the petitioner by the Advisory Board and that the representation was sent to the State Government on 22.10.2001 for consideration and the State Government rejected the representation on 27.10.2001. Mr. Acharya argued that in view of the said explanation furnished by the State Government for the delay in disposal of the representation of the petitioner, the detention of the petitioner ought not to be quashed by this Court. 5. Article 22(5) of the Constitution of India provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, “as soon as may be”, communicate to such person the grounds on which the order has been made and shall afford him “the earliest opportunity” of making a representation against the order. The words “as soon as may be” and the words “the earliest opportunity” in Article 22(5) cast on obligation on the Government to consider the representation of the detenu against the order of detention without any delay in Rajammal v. State of Tamil Nadu and another (supra) cited by Mr.Mohapatra, the Supreme Court after considering the law laid down on the point by its earliest decisions held : “8. It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Con¬stitution for the decision to be taken on the representation, the words “as soon as may be” in Clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes......” 6. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes......” 6. As per the aforesaid decision of the Supreme Court, the Court can consider whether delay in disposal of representation against the order of detention was occasioned by permissible reasons or unavoidable causes. The reasons for the delay of eighteen days in disposing of the representation dated 7.10.2001 of the petitioner in the order of detention are available in the counter-affidavit filed on behalf of opp. party No. 1 and in the records produced before the Court. In the counter-affidavit filed on behalf of opp. party No. 1, it has been stated : “.......... The original representation of the petitioner dated 7.10.01 addressed to the Chairman and Members of N.S.A. Board received in Home (SS) Department on 9.10.01 was forwarded to Secretary, N.S.A.Board on the same day along with the parawise comments of the opp. party No. 2. The representation was considered by the N.S.A. Board in their sitting dated 10.10.01. The State Government also rejected the same representation on 27.10.01 and communicated to the detenu and the opp. party No. 2 on 29.10.01......” 7. Thus in the counter-affidavit filed on behalf of opp. party No. 1 it is stated that the representation of the petition¬er dated 7.10.2001 addressed to the Chairman and Members of the Advisory Board it was first considered by the Advisory Board on 10.10.2001 and thereafter considered and rejected by the State Government on 27.10.2001. It further appears from the records that on 9.10.2001, the Joint Secretary to Government, Home De¬partment gave a note that since the representation was addressed to the Advisory Board, it will be probably preferable to wait till the opinion of the Advisory Board is received after which the Government orders may be taken and thereafter the report of the Advisory Board was received on 22.10.2001 and the representa¬tion of the petitioner was rejected by the State Government on 27.10.2001. The question to be decided, therefore, is, whether the aforesaid reasons given for the delay in considering the representation dated 7.10.2001 of the petitioner against the order of detention from 7.10.2001 to 27.10.2001 were permissible reasons or unavoidable causes. 8. The question to be decided, therefore, is, whether the aforesaid reasons given for the delay in considering the representation dated 7.10.2001 of the petitioner against the order of detention from 7.10.2001 to 27.10.2001 were permissible reasons or unavoidable causes. 8. Under Article 22 (5) of the Constitution, the authority making the order of detention is to communicate to the persons detained the grounds on which the order has been made and is to afford him the earliest opportunity to make a representation against the order. Though Article 22(5) of the Constitution does not mention the authority to whom the detenu can make a repre¬sentation against the order of detention, Section 8 of the Act provides that the authority making the order of detention shall afford the person detained the earliest opportunity of making a representation against the order "to the appropriate Government". Section 2(a) of the Act defines “appropriate Government” to mean, as respect a detention order made by the State Government or by an officer subordinate to the State Government, the State Govern¬ment.Hence, in respect of an order of detention passed by the District Magistrate, as in this case, who is subordinate to the State Government, the appropriate Government is the State Govern¬ment. Under Section 8 of the Act, therefore, the petitioner had the right to make a representation against the impugned order of detention to the State Government and it was the duty of the State Government to consider the said representation as expedi¬tiously as possible without waiting for the report of the Adviso¬ry Board even though the representation was addressed to the Chairman and Members of the Advisory Board. 9. In Smt. Gracy v. State of Kerala and another : A.I.R. 1991 S.C. 1090, the Supreme Court held that consideration of the representation of the detenu against the order of detention has to be uninfluenced by the view of the Advisory Board and that the detenu’s right to make a representation to be considered by the Government under Article 22(5) is independent of the considera¬tion of the detenu’s case and his representation by the Advisory Board. The Supreme Court further held that consideration of the detenu’s representation by the Advisory Board and independently by the detaining authority flows from Article 22 (5) of the Constitution and there is no reason to hold that the detaining authority is relieved of his obligation merely because the repre¬sentation is addressed to the Advisory Board instead of the de¬taining authority and submitted to the Advisory Board during the pendency of the reference before it. In particular, the Supreme Court held : “6. It is thus clear that the obligation of the Government to consider the representation different and in addition to the obligation of the Board to consider it at the time of hearing the reference before giving its opinion to the Government. Considera¬tion of the representation by the Government has to be uninflu¬enced by the view of the Advisory Board. In short, the detenu’s right to have the representation considered by the Government under Art. 22 (5) is independent of the consideration of the detenu’s case and his representation by the Advisory Board. xx xx xx xx 9......... The contents of Art. 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the dete¬nu against the order of detention, the aforesaid dual obligation under Art. 22 (5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the consti¬tutional mandate in Art. 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention." 10. Thus, the fact that the representation dated 7.10.2001 of the petitioner in this case was addressed to the Chairman and Members of the Advisory Board cannot be a ground for the State Government to wait for the opinion of the Advisory Board and consider the representation only after receipt of the opinion of the Advisory Board. Thus, the fact that the representation dated 7.10.2001 of the petitioner in this case was addressed to the Chairman and Members of the Advisory Board cannot be a ground for the State Government to wait for the opinion of the Advisory Board and consider the representation only after receipt of the opinion of the Advisory Board. This is because the detenu’s right to have the representation considered by the Government under Art. 22(5) of the Constitution read with Section 8 of the Act is independent of consideration of the detenu’s case and his repre¬sentation by the Advisory Board and the Government is under an obligation under Art. 22(5) of the Constitution read with Section 8 of the Act to consider the representation of the peti¬tioner as soon as may be and at the earliest opportunity against the order of detention and pass orders thereon. It further ap¬pears in this case that while the opinion of the Advisory Board was received on 22.10.2001, the representation of the petitioner was considered by the Government and rejected five days thereaf¬ter on 27.10.2001. This delay of five days after the opinion of the Advisory Board was received has also not been explained with any good reason by the State Government. This is, thus, a case the where there is no permissible reason or unvoidable cause explaining the delay on the part of the State Government to consider and dispose of the representation of the petitioner against the order of detention. 11. In view of our aforesaid conclusion, it is not neces¬sary for us to examine the other grounds taken by the petitioner in this writ petition. The writ petition is, accordingly, allowed and the continued detention of the petitioner Animesh Ghosh alias Bapi is quashed and the opp. parties are directed to release the petitioner Animesh Ghosh alias Bapi forthwith unless he is wanted in connection with some other case. Considering the peculiar facts and the circumstances the parties shall bear their own costs. M. PAPANNA, J. I agree. Application allowed.