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2003 DIGILAW 146 (ORI)

Adhikanda Sahu v. State of Orissa

2003-02-19

A.K.PATNAIK, P.K.MISRA

body2003
JUDGMENT A. K. PATNAIK, J. — By an order dated 16.9.2002 passed by the District Magistrate, Ganjam, the petitioner has been detained in custody under the National Security Act, 1980 (for short, ‘the Act’). The grounds of detention were served on the petitioner on 16.9.2002. Aggrieved, the petitioner submitted a representation against the said order of detention and the said representation was rejected by the State Government and the order of rejection has been communicated to the petitioner by letter dated 9.10.2002 of the Joint Secretary, Government of Orissa, Home (Special Section) Department. Aggrieved, the petitioner has filed this Habeas Corpus petition with a prayer to quash the said order of detention in Annexure-6. 2. Though several grounds have been taken in the writ petition challenging the order of detention, we may not deal with all the grounds taken in the writ petition as the petitioner will succeed in the writ petition only on the point that there are no materials before the Detaining Authority at all for arriving at the satisfaction that there was possibility of the petitioner being released on bail in near future. 3. In several decisions of the Apex Court, it has been held that where a person is already in custody, the Detaining Authority must show his awareness to the fact that the detenu is in custody and must also record a satisfaction on the basis of the cogent material that the detenu is likely to be released on bail. In the language of the Supreme Court in the case of Amrit¬lal and others v. Union Government through Secretary, Ministry of Finance and others, A.I.R. 2000 S.C. 3675 : “In Agustin’s decision (1994 Supp. (1) SCC 507) (supra) this Court also placed strong reliance on an earlier but oft cited decision of this Court in Binod Singh Vrs. District Magistrate, Dhanbad, (1986) 4 SCC 416 : ( AIR 1986 SC 2090 : 1986 Crl. L.J. 1959) wherein it was held that if a person is in custody and there is no imminent possibility of his being re¬leased therefrom, the power of detention should not ordinarily be exercised. This Court held that there must be cogent materials before the officer passing the detention order that the detenu is likely to be released on bail. L.J. 1959) wherein it was held that if a person is in custody and there is no imminent possibility of his being re¬leased therefrom, the power of detention should not ordinarily be exercised. This Court held that there must be cogent materials before the officer passing the detention order that the detenu is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention”. It will be clear from the aforesaid judgment of the Supreme Court in the case of “Amritlal and others v. Union Government through Secretary, Ministry of Finance and others (supra) that there must be cogent material before the officer passing the order of detention that the detenu is likely to be released on bail and the interference must be drawn from the materials on record and must not be the ipse dixit of the officer passing the order. 4. Coming now to the present case, the Detaining Authority has shown his awareness to the fact that the petitioner was in judicial custody in connection with K.S. Nagar P.S. Case No.95 dated 18.8.2002 under Section 395/325/294/353 I.P.C./25/27 Arms Act at Sub-Jail, Kodala and has also recorded a satisfaction in the grounds of detention that there is possibility of the peti¬tioner being released on bail in near future. The relevant para¬graph from the grounds of detention which indicates the aforesaid satisfaction of the Detaining Authority is extracted herein below: “Though, presently you are in judicial custody in connection with K.S. Nagar P.S. Case No.95 dt.18.8.2002 U/s.395/325/294/353 IPC/25/27 Arms Act at Sub-Jail, Kodala, you are trying to get yourself released on bail and there is possibility of your re¬lease on bail in near future. On your release on Court bail, you are very likely to indulge in similar nature of crime, affecting public order and security to human life.” While recording the aforesaid satisfaction, however, the Detaining Authority has not indicated the materials on the basis of which the said satisfaction has been recorded regarding the possibility of the petitioner being released on bail in near future. In paragraph-33 of the writ petition the petitioner has specifically averred that in the absence of any bail applications or mention of the fact that bail application has been moved, the satisfaction in the grounds of detention that the petitioner is likely to be released on bail is wholly illegal and the order of detention is liable to be quashed for total non-application of mind. The Detaining Authority, namely, District Magistrate, Ganjam has dealt with the said averments in paragraphs-20 and 21 of his counter affidavit and has not mentioned any where in the said paragraphs-20 and 21 of the counter affidavit or in any other paragraph of the counter affi¬davit filed by him that there were materials before him for recording a satisfaction that the petitioner is trying to get released on bail and there is possibility of the petitioner being released on bail in near future. Thus, the requirements of the law as laid down by the Apex Court in the series of decisions including the decision in the case of Amrital and others v. Union Government through Secretary, Ministry of Finance and others (supra) are not satisfied and the impugned order is likely to be quashed on this ground alone. 5. For the aforesaid reason, we quash the impugned order of detention dated 16.9.2002 in Annexure-6 to the writ petition passed by the District Magistrate, Ganjam and direct that the petitioner Sri Adhikanta Sahu will be released forthwith unless he is wanted in connection with some other case. CH. P. K. MISRA, J. I agree. Application allowed.