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2007 DIGILAW 355 (ORI)

Raju Sahu alias Bangra Raju v. State of Orissa

2007-05-14

I.MAHANTY

body2007
JUDGMENT A. K. GANGULY, C.J. — This petition has been filed challeng¬ing the order of detention dated 3rd November, 2006 on the basis of the grounds of detention dated 5th November, 2006. It appears that the detention of the petitioner was also confirmed by the Advisory Board by its order dated 27th December, 2006. Under the said order, the petitioner appears to have been detained with effect from 3rd November, 2006. There are several grounds in support of the said order of detention. 2. The order has been challenged by the petitioner solely on one ground that in the order of detention the detaining authority has not disclosed any satisfaction regarding formation of his opinion that the petitioner was likely to be released on bail. In other words, it has been stated that if the detaining authority was not satisfied that there was an immediate chance of the petitioner coming out of jail, the subjective satisfaction of the detaining authority could not have been complete. In support of this contention, attention of this Court has been drawn towards the concluding part of the detention order which is quoted herein below. “Recently you have surrendered in the Court of SDJM, Berham¬pur and were lodged in Circle Jail, Berhampur on 26.10.2006 in Bada Bazar PS case No. 170 dt. 25.08.2006 u/ss. 147/148/294/223/506/149, IPC/3(I)(X) S.C./S.T. (P.A.) Act. You have applied for bail before the Hon’ble Court of District Judge, Berhampur. The Hon'ble Court has called for submission of up to date CDs as per the intimation given by the Public Prosecutor, Berhampur vide message No. Nil dt. 29.10.06 (Annexure - XVI). Your criminal background is sufficient to show that the ordinary law of the land has not been able to prevent you from becoming a hazard to public order and tranquility in Berhampur town and its nearby areas. There are grave apprehension that in view of your criminal background you will again become active and disrupt the public order if you are allowed to let off.” 3. There are grave apprehension that in view of your criminal background you will again become active and disrupt the public order if you are allowed to let off.” 3. Referring to the said part of the detention order, learned counsel submitted that what has been stated by the de¬taining authority is that the detenu has applied for bail before the District Magistrate, Ganjam in connection with Bada Bazar P.S. Case No. 170 dated 25.8.2006 under Sections 147/148/294/223/506/149, IPC/3(I)(X) S.C. & S.T. (P.A.) Act and the Court of the learned District Judge has called for submission of up-to-date C.Ds. But there is no recital in the grounds of detention that the detaining authority believed that the detenu was likely to be released on bail in connection with the said case. 4. Learned counsel for the petitioner submitted that a vital link in the subjective satisfaction of the detaining authority is thus missing and in the absence of the same, the detailing authority’s formation of opinion about the necessity of preventive detention of the petitioner becomes suspect. In sup¬port of the said contention, learned counsel for the petitioner relied on a Division Bench judgment dated 28.2.2007 of this Court of which one of us (Hon’ble A.K. Ganguly, A.C.J.) was a member, in W.P. (Crl.) No. 516 of 2006 (Daba alias sudarsan Das v. State of Orissa and 2 others) wherein this Court, relying on the deci¬sion of the Supreme Court in Binod Singh v. District Magistrate, Dhanbad, Bihar and others, reported in (1986) 4 SCC 416 allowed the Habeas Corpus petition filed against the detention order which was suffering from similar infirmities. In the aforesaid judgment, this Court has relied on the observation made by the Supreme Court in Binod Singh’s case (supra). 5. This Court while delivering the judgment in Daba alias Sudarsan Das’s case (supra) also referred to two decisions of this Court in Tilatama Parida v. State of Orissa : (1997) 13 OCR 377, and Anil Samal v. State of Orissa and others: (2006) 34 OCR 606. In both the cases, similar view has been taken by this Court. 6. In view of the aforesaid consistent judicial pronounce¬ments and in view of the discussions made above, the present Habeas Corpus petition is allowed. In both the cases, similar view has been taken by this Court. 6. In view of the aforesaid consistent judicial pronounce¬ments and in view of the discussions made above, the present Habeas Corpus petition is allowed. The order of detention dated 3.11.2006 (Annexure-1) is set aside and it is directed that the petitioner - Raju Sahu alias Bangra Raju be immediately set at liberty, if his detention is no longer required in connection with any other case. Petition allowed.