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2004 DIGILAW 325 (ORI)

BABU ALIAS ISWAR ROUT v. STATE OF ORISSA

2004-07-21

L.MOHAPATRA, SUJIT BARMAN ROY

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L. MOHAPATRA, J. ( 1 ) THE order of detention dated 12-11-2003 passed by the District Magistrate, Cuttack under sub-section (2) of Section 3 of the NATIONAL SECURITY ACT, 1980, 1980 against the petitioner is under challenge before this Court. ( 2 ) ON perusal of the records it appears that the District Magistrate, Cuttack passed an order of detention on 12-11-2003 to pre vent the petitioner from acting in any manner prejudicial to the maintenance of public order. The said order in Annexure-1 is quoted below :"whereas, I Sri Deoranjan Kumar Singh, LAS, District Magistrate, Cuttack, have been empowered in Government of Orissa, Home Department Order No. 5478/c dated 22-9-2003 to exercise the powers conferred by sub-section (2) of Section 3 of the NATIONAL SECURITY ACT, 1980, 1980. AND WHEREAS, I am aware that Sri Babu alias Iswar Rout, aged about 25 years, son of Ganeswar Rout of Shankarpur, P. S. Madhupatna in the district of Cuttack is presently lodged in the Circle Jail, Cuttack at Choudwar being arrested and forwarded on 21-10-2003 in connection with Madhupatna P. S. Case No. 258/2003 and remanded in Madhupatna P. S. Cases No. 282/2003, No. 283/2003 and No. 290/ 2003. In Madhupatna P. S. Case No. 258/ 2003, he has granted bail by the Court of the S. D. J. M. Sardar, Cuttack on 3-11-2003, but he has not furnished bail bond so far. In the meanwhile, the Court of the S. D. J. M. , Sadar, Cuttack has called for the C. Ds. on 12-11-2003 in Madhupatna P. S. Cases No. 282/2003 and 283/2003. There is every likelihood that he may released on bail. Even if his bail is rejected in the Lower Court, there is every possibility that he may be released on bail from the Higher Courts. There are many precedents of such bails. Once enlarged on bail, there is every likelihood of him indulging in activities prejudicial to the maintenance of public order. AND WHEREAS, I am subjectively satisfied, after due application of mind on the materials placed before me, that with a view to preventing Sri Babu alias Iswar Rout, son of Ganeswar Rout of Shankarpur, P. S. Madhupatna in the district of Cuttack from acting in any manner prejudicial to the maintenance of public order, it is necessary to make the following orders. Now therefore, in exercise of the powers conferred upon me by sub-section (2) of section 3 of the NATIONAL SECURITY ACT, 1980, 1980, I do hereby direct that the said Sri Babu alias Iswar Rout, son of Ganeswar Rout of Shankarpur, P. S. Madhupatna in the district of Cuttack be detained in the Circle Jail, Cuttack at Choudwar until further orders. "in the grounds of detention served on the petitioner several instances of his involvement in criminal activities have been cited. Para 7 of the grounds of detention runs as follows :"besides the above stated four cases, you are also involved in the following cases, as reported by the Superintendent of Police, Cuttack. (i) Madhupatna P. S. Case No. 221/1997, u/s. 386/34, IPC. (ii) Madhupatna P. S. Case No. 224/1997, u/s. 302/34, IPC. (iii) Madhupatna P. S. Case No. 116/1999, u/s. 302/201, IPC. (iv) Madhupatna P. S. Case No. 92/2000, u/s. 302/34, IPC. (v) Madhupatna P. S. Case No. 403/2001, u/s. 385, IPC. (vi) Madhupatna P. S. Case No. 102/2002, u/s. 341/323/294/506/34, IPC. "it further appears that the Advisory Board confirmed the order of detention and the State Government in Annexure-2 has also confirmed the order of detention. ( 3 ) LEARNED counsel appearing for the petitioner submitted that out of six cases mentioned in para 7 of the grounds of detention the petitioner has been acquitted in three cases registered for commission of offences under Section 302 read with other provisions of the IPC and had the said fact been brought to the notice of the detaining authority, decision of the detaining authority would have been otherwise. A copy of one such acquittal order has been filed along with the petition in Annexure-4 and in course of hearing the learned counsel produced copies of two more judgments passed in two different sessions cases. ( 4 ) TWO separate counter-affidavits have been filed. The opposite party No. 1 State Government has filed a counter supporting the detention order and the opposite party No. 2 has also filed a counter supporting the detention order. In the counter-affidavit filed by the detaining authority it is stated in para 5 that the Superintendent of Police, Cuttack (opposite party No. 3) submitted a report stating therein the anti-social activities of the petitioner which are considered prejudicial to the maintenance of public order in the locality. In the counter-affidavit filed by the detaining authority it is stated in para 5 that the Superintendent of Police, Cuttack (opposite party No. 3) submitted a report stating therein the anti-social activities of the petitioner which are considered prejudicial to the maintenance of public order in the locality. It is further stated in the counter-affidavit that the detaining authority evaluated the material and documents on record and on being prima facie satisfied about the existence of sufficient grounds for passing an order of detention under Act, exercised his power under Section 3 (2) of the NATIONAL SECURITY ACT, 1980, 1980. ( 5 ) SOLE ground on which the learned counsel for the petitioner challenges the detention order is that the petitioner was acquitted in three of the cases as mentioned in para 7 of the grounds of detention and the said fact was not brought to the notice of the detaining authority. Reliance is placed by the learned counsel for the petitioner on two decisions of the Apex Court in the case of Dharamdas Shamlal Agarwal v. The police Commissioner reported in, AIR 1989 SC 1282 : (1989 Cri LJ 1130) and in the case of Ramesh v. State of Gujarat reported in, AIR 1989 SC 1881 : (1989 Cri LJ 2094 ). In the case of Dharamdas Shamlal Agarwal v. The Police Commissioner (supra) the detenu was involved in five cases out of which he had been acquitted in two. The fact of acquittal of the detenu in the aforesaid two cases had not been brought to the notice of the detaining authority. In the above circumstances, the Apex Court held that the satisfaction of the detaining authority is vitiated. Similar is the view taken by the Apex Court in the case of Ramesh v. State of Gujarat (1989 Cri LJ 2094) (supra ). This Court also in the case of Md. Abdul Zahur v. State of Orissa reported in, 1995 (II) OLR 312 reiterated the exactly the same view. Relying on the aforesaid three decisions, this Court in the case of Bapu alias Jyotikanta Parida v. State of Orissa reported in, (2004) 28 OCR 602 held as follows :"on the basis of the aforesaid factual position, learned counsel for the petitioner submits that the impugned order cannot be sustained and must be quashed. Relying on the aforesaid three decisions, this Court in the case of Bapu alias Jyotikanta Parida v. State of Orissa reported in, (2004) 28 OCR 602 held as follows :"on the basis of the aforesaid factual position, learned counsel for the petitioner submits that the impugned order cannot be sustained and must be quashed. To buttress his aforesaid contention, learned counsel for the petitioner cited a decision of the Apex Court in Dharamdas Shamlal Agarwal v. The Police Commissioner, AIR 1989 SC 1282 : (1989 Cri LJ 1130 ). It has been, inter alia, held by the Apex Court in the aforesaid decision that the requisite subjective satisfaction of the detaining authority, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. Where at the time the detaining authority passed the detention order the vital fact, namely, the acquittals of the detenu in two of the cases shown in the table appended to the grounds of detention had not been brought to his notice and on the other hand they were withheld and the detaining authority was given to understand that the trial of thdse cases was pending the non-placing of the material fact, namely the acquittal of detenu in the above said two cases resulting in non-application of mind of the detaining authority to the said fact vitiated the requisite subjective satisfaction, rendering the detention order invalid. "there being nothing on record to show that the fact of acquittal of the petitioner in three of the cases out of six mentioned in para 7 of grounds of detention was brought to the notice of the detaining authority, applying the principles laid down by the Apex Court as well as this Court in the above cases, we hold that the satisfaction of the detaining authority in absence of such fact has vitiated the detention order. ( 6 ) IN the circumstances and in view of the settled law as indicated above, we have no option except allow the writ petition and quash the impugned order in Annexure-1 detaining the petitioner under Section 3 (2) of the NATIONAL SECURITY ACT, 1980, 1980. We further direct that the petitioner be set at liberty forthwith if he is not required in any other cases. Petition allowed. .