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2004 DIGILAW 414 (ORI)

Anu alias Anuja Kumar Sahu v. State of Orissa

2004-09-24

L.MOHAPATRA

body2004
JUDGMENT L. MOHAPATRA, J. — The petitioner in this writ application calls in question the legality of the order dated 11.11.2003 passed by the District Magistrate, Angul directing detention of the petitioner in exercise of power under Sub-section (2) of Sec¬tion 3 of National Security Act, 1980. 2. The detention order was passed on 11.11.2003 while the petitioner was in judicial custody in connection with NTPC P.S. No.46 dated 14.07.2003 registered for commission of offence under Section 302 of the Penal Code. The grounds of detention indicate that between 1992 and July, 2003 the petitioner was involved in 18 cases out of which 3 cases ended in acquittal. The last case that was registered against the petitioner is Pallahara P.S. Case No.35 on 30th July, 2003 for commission of offence under Sections 341, 332, 294, 307, 506 of the Penal Code read with Sections 25 and 27 of the Arms Act. There is no further case after 30th July, 2003 till the order of detention was passed on 11.11.2003. More¬over, the detention order in Annexure-1 dated 11.11.2003 does not speak of aforesaid Pallahara P.S. Case and only speaks of NTPS P.S. Case No.46 which was registered on 14.7.2003. 3. Apart from other grounds taken in the writ application, the main ground taken by the learned counsel for the petitioner in the writ application is that since the last offence is alleged to have been committed on 30th July, 2003, there was no reason for the detaining authority to wait for about three and half months to pass an order of detention. According to Miss. Ratho, the learned counsel for the petitioner, if the petitioner was really a threat to the public order, the order of detention should have been passed without any delay. In this connection, reliance is placed by the learned counsel on some decisions of this Court as well as the Apex Court. 4. The learned counsel for the State, on the other hand, submitted that the petitioner is a hardened criminal and in order to maintain public order, it had become necessary to detain him under the National Security Act and after obtaining the required reports, the District Magistrate passed the order of detention on 11.11.2003 and, therefore, there is no delay in passing the detention order. 5. 5. By way of amendment to the writ application, a specific ground has been taken by the learned counsel for the petitioner that there has been unnecessary and unexplained delay in passing the order of detention. The specific stand of the petitioner is that the NTPC P.S. Case No.46 as referred in the order is dated 14.7.2003 whereas the detention order was passed on 11.11.2003 and, therefore, there has been inordinate delay in passing the order of detention without any explanation for the same. There is no counter to the said averment made by the learned counsel for the petitioner by way of amendment to the writ application. The only ground taken in the counter affidavit by the opposite party No.2 i.e.. the detaining authority is that the petitioner was involved in several cases in course of a decade and considering his continuous involvement in offences, the detaining authority was of the view that the conduct of the petitioner was prejudi¬cial to the maintenance of public peace and tranquillity. There is nothing in the counter as to why there was delay of more than three months in passing the detention order even if it is accept¬ed that the last offence was committed by the petitioner on 30th July, 2003. This Court in the case of Susmita Sahu v. State of Orissa and others (WPCRL No.8 of 2004 disposed of on 12.8.2004) relying on earlier decisions of the Apex Court held that five and half months after the last criminal activity in which the detenu was involved the detention order was passed and the delay for the same having not been explained, the order of detention is liable to be set aside. While observing thus, this Court relied upon a decision of the Apex Court in the case of Sk. Serajul v. State of West Bengal reported in AIR 1975 SC 1517 , Ahamed Moreen Zabbar v. State of Tamilnadu and others reported in (1999) 17 OCR 208 as well as in the case of Siba Mahala -v- State of Orissa and others reported in 93 (2002) C.L.T. 12. 6. In the present case we also find that there has been delay of more than four months as per the detention order in Annexure-1 in passing the order of detention without any reason whatsoever as to why there was such delay in passing the order of detention. 7. 6. In the present case we also find that there has been delay of more than four months as per the detention order in Annexure-1 in passing the order of detention without any reason whatsoever as to why there was such delay in passing the order of detention. 7. We, therefore, allow the writ application, quash the order dated 11.11.2003 passed by the District Magistrate, Angul in Annexure-1 on the above ground and direct that the petitioner be set at liberty forthwith, if he is not required to be kept n jail custody in any other case. SUJIT BARMAN ROY, C.J. I agree. Application allowed.