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2007 DIGILAW 140 (ORI)

Daba @ Sudarsan Das v. State of Orissa and 2

2007-02-28

N.PRUSTY

body2007
JUDGMENT A. K. GANGULY, A.C.J. — In this habeas corpus petition the petitioner has challenged the order of detention and the grounds of detention passed against him under the provisions of the National Security Act, 1980 (hereinafter referred to as the ‘said Act’). The order of detention under Sub-section (2) of Section 3 of the said Act is dated 31.7.2006 and the ground of detention in support of the said order is dated 5.8.2006. There are several grounds in support of the said order of detention. 2. This Court is not going into the merits of those grounds in detail since this Court is of the opinion that this habeas corpus petition is entitled to succeed on a short point taken by the learned counsel for the petitioner. Learned counsel for the petitioner urged that though several criminal cases have been referred to in the grounds of detention, but there is no recital in the grounds of detention to the effect that the peti¬tioner’s bail application in B. Town P.S. case No.150 of 2006 is going to be allowed. In other words, there is no satisfaction of the detaining authority on the ground that the petitioner is likely to come out on bail on the basis of a bail order which is likely to be passed in the aforesaid case. The only recital which has been made in this connection is that the hearing of the bail application is going to take place on 3.8.2006. But the detention order was passed on 31.7.2006. 3. Referring to the aforesaid recitals in the grounds of detention, the petitioner has urged that unless the detaining authority has prima facie satisfaction that the petitioner will come out of jail and his bail application is likely to succeed, there is no basis for passing an order of detention in order to prevent the petitioner from committing the alleged activities mentioned in the grounds of detention. In other words, it has been submitted that if the petitioner continues to remain in jail, there is no necessity of passing an order of detention. In the instant case, according to the petitioner, there is noth¬ing to show that the detaining authority was satisfied that the petitioner is likely to come out on bail in connection with the aforesaid case. The said point taken by the petitioner’s counsel has some substance. 4. In the instant case, according to the petitioner, there is noth¬ing to show that the detaining authority was satisfied that the petitioner is likely to come out on bail in connection with the aforesaid case. The said point taken by the petitioner’s counsel has some substance. 4. We have found that the Supreme Court detailing with similar contention in the case of Binod Singh v. District Magis¬trate, Dhanbad, Bihar and others : (1986) 4 SCC 416 , held in paragraph 7 : “..... If a man is in custody and there is no imminent possibility of his being released, the power of preventive deten¬tion should not be exercised. In the instant case, when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the ques¬tion that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order........” However, in the case of Binod Singh, there was some state¬ment that the petitioner is likely to be enlarged on bail. In the instant case, even that statement is not there. Despite the aforesaid statement in the case of Binod Singh, Hon’ble Supreme Court has quashed the detention order for the reasons which are extracted above. 5. Further, a Division Bench of this Court in the case of Tilatama Parida v. State of Orissa : (1997) 13 OCR 377 speaking through Hon’ble Mr. Justice Pasayat (as his Lordship then was ) after considering various judgments formulated certain proposi¬tions in a similar situation. The learned Judge held that if there is anything in the grounds of detention to the effect that the petitioner may be released on bail and may indulge in similar activities, in that event the detention order may be sustained. But as indicated above, in the instant case there is no such recital. Similar view has been taken by another Division Bench of this Court in the case of Anil Samal v. State of Orissa and others : (2006) 34 OCR 606. 6. But as indicated above, in the instant case there is no such recital. Similar view has been taken by another Division Bench of this Court in the case of Anil Samal v. State of Orissa and others : (2006) 34 OCR 606. 6. In view of such overwhelming weight of authorities in favour of the contention raised by the learned counsel for the petitioner, we are of the opinion that in the instant case the detention order cannot be sustained and in as much as there is no recital in the grounds of detention that the petitioners bail application is likely to succeed in B. Town P.S. Case No.150 of 2006 and the petitioner is likely to be enlarged on bail in that case. Therefore, the vital link in the subjective satisfaction of the detaining authority is missing. The detention order, there¬fore, suffers from this serious infirmity. 7. For this sole reason indicated above, the writ petition is allowed and the order of detention dated 31.7.2006 passed by the District Magistrate, Ganjam, Chatrapur is quashed. The peti¬tioner be set at liberty forthwith, if he is not required to be detained in connection with any other case. Petition allowed.