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2006 DIGILAW 592 (ORI)

Bijaya Parida v. State of Orissa

2006-08-09

M.M.DAS

body2006
JUDGMENT M. M. DAS, J. — In this petition under Article 226 of the Constitution of India, the petitioner-detenu challenges the order of detention dated 25.10.2005 issued by the District Magistrate, Puri under Section 3 (2) of the National Security Act, 1980 (for short, ‘the Act’) on various grounds. 2. The petitioner-detenu’s case, in brief, is that he is the brother of one Ananta Parida who was the President of the Delanga Hat on being elected by the majority of the shop owners till the year 2005 when the order of detention was passed. The petitioner-detenu’s younger brother was murdered by some anti-socials on 29.8.2005 for which he lodged an information in the Delanga Police Station and a case was registered thereon being Delanga P.S.Case No. 95 (10)/2005 under Sections 302/294/34 IPC. It is the further case of the petitioner that due to political rivalry he was implicated in various criminal cases and in fur¬therance of such political vendetta against him the impugned order of detention was passed by the District Magistrate, Puri without due application of mind. 3. The English translation of the order of detention which was passed in Oriya is as follows : COURT OF THE DISTRICT MAGISTRATE : PURI Order No. 1255/C, Dated Puri the 25th October, 2006. WHEREAS, I Shri Aswini Kumar Das, District Magistrate, Puri has been directed in Government of Orissa Home (Special Section) Department Order No. 3770/C dated 14.9.2005 to exercise the powers by Sub-section (2) of Section 3 of the National Secu¬rity Act, 1980. WHEREAS, I am satisfied that Sri Bijaya Parida, aged about 35 years, son of Sagar Parida of village Gunduchipatna, P.S. Delanga, District - Puri who is in jail custody in Puri District Jail, has a long criminal record and he has been doing crimes alongwith his associates in Delang P.S.area and other areas of the district disturbing public life, order and tranquillity. The cases may be isolated. But on the whole the degree and intensity of the crimes committed by him is such that he holds the society to ransom. His activities are menace to the society. Therefore quite a lot of people do not register cases against him fearing reprisal against them. He has built up a group and he along with them has ruptured the peaceful social life of the people. Hence extraordinary measures are required against him. His activities are menace to the society. Therefore quite a lot of people do not register cases against him fearing reprisal against them. He has built up a group and he along with them has ruptured the peaceful social life of the people. Hence extraordinary measures are required against him. It is apprehended if he is released on bail he will again resort to activities prejudicial to the maintenance of Public order. IN VIEW OF ABOVE, in exercise of the powers conferred by Sub-section (2) of Section 3 of the National Security Act, 1980, I do hereby direct that the said Bijaya Parida be detained in the District Jail, Puri until further orders. Sd/- A. K. Das 25.10.2005 District Magistrate, Puri” 4. From the above order, it is clear that the order of detention was passed when the petitioner-detenu was in custody in connection with some other criminal cases and apprehending that if he is released on bail he will again resort to activities prejudicial to the maintenance of public order, the Detaining Authority passed the above order of detention. The grounds of detention dated 29.10.2005 which has been annexed as Annexure-2 to the writ petition was served on the petitioner-detenu on 29.10.2005. The petitioner-detenu was given option to file his representation against the said order of detention before the State Government as well as the Central Government and before the Advisory Board. The petitioner-detenu has alleged that he was not supplied with the copies of other documents on which the grounds of detention were based. He has further alleged that against the order of detention, the petitioner-detenu sent the representations on 2.12.2005 through the Superintendent of District Jail, Puri to the State Government as well as to the Central Government. The Advisory Board constituted under the Act came to a finding that there were sufficient grounds for deten¬tion and, therefore, upheld the order of detention. The petition¬er-detenu has further alleged that even though he made a repre¬sentation to the Central Government on 2.12.2005, the same was rejected by the Central Government by its order dated 26.12.2005. 5. The petitioner-detenu has substantially raised three points on the basis of which it is claimed that the order of detention is liable to be quashed. The petition¬er-detenu has further alleged that even though he made a repre¬sentation to the Central Government on 2.12.2005, the same was rejected by the Central Government by its order dated 26.12.2005. 5. The petitioner-detenu has substantially raised three points on the basis of which it is claimed that the order of detention is liable to be quashed. The said points are as follows : (i) The representation made by the petitioner-detenu on 2.12.2005 to the Central Government though forwarded by the State Government to the Secretary, Government of India, Ministry of Home Affairs by letter No. 5458/C dated 6.12.2005, as stated in paragraph 6 of the counter affidavit filed on behalf of the State, but the same having admittedly been rejected by the Cen¬tral Government only on 17.12.2005 as stated in paragraph - 6 of the counter affidavit filed on behalf of the Central Government and no explanation having been offered by the opp. parties for the delay of about 15 (fifteen) days in disposing of the repre¬sentation of the petitioner-detenu, the order of detention is liable to be quashed. (ii) In view of the specific averments made in Ground No. (D) of the writ petition that in majority of the criminal cases mentioned in the grounds of detention, the petitioner-detenu has been acquitted and most of the cases are stale incidents which have no proximity to the date of the detention order and in view of the fact that the said fact has not been denied by the opp. parties, it would be seen that the order of detention is passed without due application of mind. (iii) A detention order under the Act cannot be passed on the apprehension that there is likelihood of the petitioner-detenu being released on bail, as has been done in the instant case. 6. The question of delay in disposal of the representation came up for consideration before a Division Bench of this Court in the case of Animesh Ghosh @ Bapi -v.- The State of Orissa and others, 94 (2002) CLT 194. In the said case, relying upon the decision in the case of Smt. Gracy-v.-State of Kerala and anoth¬er, AIR 1991 SC 1090 , this Court has held that the State Govern¬ment cannot wait for the opinion of the Advisory Board for con¬sidering the representation of the petitioner-detenu only after receipt of opinion of the Advisory Board. In the said case, relying upon the decision in the case of Smt. Gracy-v.-State of Kerala and anoth¬er, AIR 1991 SC 1090 , this Court has held that the State Govern¬ment cannot wait for the opinion of the Advisory Board for con¬sidering the representation of the petitioner-detenu only after receipt of opinion of the Advisory Board. This is because the petitioner-detenu’s right to have the representation considered by the Government under Article 22(5) of the Constitution read with Section 8 of the Act is independent of consideration of the petitioner-detenu’s case and his representation by the Advisory Board and the Government is under an obligation under Article 22(5) of the Constitution read with Section 8 of the Act to consider the representation of the petitioner-detenu as soon as may be and at the earliest opportunity against the order of detention and passed orders thereon. 7. In view of the above position, even if we do not take into consideration the delay in disposal of the representation of the petitioner-detenu by the Central Government, we find that in paragraph 3 of the counter affidavit filed on behalf of the State Government, it has been specifically averred as follows : “The National Security Act Board after hearing the detenu, the detaining authority and after perusal of the materi¬als placed before it, has opined that “there is sufficient cause for detention” of the detenu under the National Security Act, 1980. After receipt of the report of the National Security Act Advisory Board, the State Government confirmed the order of detention under Sec. 12(1) of the National Security Act, 1980 vide Order No. 5738/C, dated 17.12.2005. The detenu has also acknowledged the receipt of this confirmation order on 18.12.2005 through the Superintendent, Circle Jail, Puri. It is thus clear that, the detention of the detenu has been made according to the procedure established in law. Hence the order of detention needs no interference by the Hon’ble Court.” 8. It is clear from the above assertion made in the coun¬ter affidavit that even though the petitioner-detenu made the representation on 2.12.2005, the same was disposed of by the State Government on 17.12.2005, i.e., about fifteen days after the date of submission of the representation. Hence the order of detention needs no interference by the Hon’ble Court.” 8. It is clear from the above assertion made in the coun¬ter affidavit that even though the petitioner-detenu made the representation on 2.12.2005, the same was disposed of by the State Government on 17.12.2005, i.e., about fifteen days after the date of submission of the representation. It is, thus, clear that even though the State Government was required to consider the representation of the petitioner-detenu at the earliest possible time as envisaged under Article 22(5) of the Constitution read with Section 8 of the Act, it has done so only on 17.12.2005, i.e., after 15 (fifteen) days of filing of the representation. In our opinion, this delay of fifteen days in disposing of the representation of the petitioner-detenu having not been specifically explained by the State, the order of deten¬tion impugned in this writ petition is liable to be quashed on that ground alone. 9. In view of our aforesaid conclusion, it is not necessary for us to go into the other points raised by the peti¬tioner-detenu in this writ petition. 10. In the result, the order of detention dated 25.10.2005 under Annexure-1 passed by the District Magistrate, Puri against the petitioner-detenu-Bijaya Parida is quashed and the writ petition is allowed. The petitioner-detenu-Bijaya Parida be set at liberty forthwith if his detention is not required in connec¬tion with any other case. S. B. ROY, C.J. I agree. Petition allowed.