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2008 DIGILAW 724 (ORI)

Subrat Kumar Naik v. State of Orissa

2008-08-20

B.N.MAHAPATRA, B.S.CHAUHAN

body2008
Judgement Dr. B. S. CHAUHAN, C.J. :- This writ petition has been filed for quashing the order dated 19.12.2007 (Annexure-1) by which the petitioner has been detained under Section 3(2) of the National Security Act, 1980 (hereinafter called 'the Act') for a period of one year. 2. The facts and circumstances giving rise to the case are that the petitioner is facing trial in five criminal cases namely, (i) Colliery P.S. Case No. 152 dt. 22.8.2002, (ii) Parjang P.S. Case No. 9 dt. 19.1.2004. (iii) Colliery P.S. Case No. 136 dt. 11.7.2007, (iv) Colliery P.S. Case No. 198 dt. 19.9.2007 and (v) Talcher P.S. Case No. 211 dt. 24.11.2007. In four cases he has been enlarged on bail by the competent court. Petitioner moved bail application and the court asked the Government counsel to produce the case diary and other relevant documents for further consideration of his bail application. It is at that juncture the order impugned has been passed. Petitioner submitted two representations through the Superintendent, Sub-Jail, Talcher dated 8.1.2008 to the Government of Orissa and Union of India. Representation submitted by the petitioner to the Government of Orissa stood rejected vide order dated 17.1.2008. The representation submitted to the Union of India has been rejected vide order dated 24.1.2008. Hence this habeas corpus petition. 3. Mr. Anirudha Das, learned counsel for the petitioner has submitted that in the case a large number of issues are involved, but he would restrict the case only to two legal issues. (i) As to whether it was permissible in the facts and circumstances of the case to pass the detention order under the Act while the petitioner was already in custody in respect of some other criminal case. (ii) As to whether orders of rejection of his representations stood vitiated on the ground of inordinate delay on the part of the authorities. 4. In support of the submissions, it has been stated by Mr. Das that representations submitted by him before the State of Orissa as well as the Union of India were supposed to be disposed of with utmost promptness and not with such a callousness. The State of Orissa took nine days and the Union of India rejected the representation after 17 days and such inordinate delay has not been properly explained either of the said Authorities. Therefore the orders are liable to be quashed. 5. Mr. The State of Orissa took nine days and the Union of India rejected the representation after 17 days and such inordinate delay has not been properly explained either of the said Authorities. Therefore the orders are liable to be quashed. 5. Mr. P.K. Khuntia, learned counsel appearing for the State of Orissa and Mr. J. Katikia, learned counsel appearing for the Union of India have submitted that the representations have been disposed of most expeditiously. The representation was sent to Union of India by post through the Jail Superintendent and it was received after ten days and it cannot be held responsible for postal delay. If the period of holidays and postal delay is excluded, there was no delay on the part of the said authorities. In the instant case, it has been pointed out by the learned counsel for the respondents that after filing of the representation, holidays, i.e., second Saturday and Sunday intervened on 12th January and 13th January and subsequently also on 19th and 20th January, 2008, there have been Saturday and Sunday. Therefore, no fault can be found with the orders impugned. The order of detention was confirmed by the Government of Orissa on 13.2.2008 in exercise of its power under Section 12(1) of the said Act after the opinion of the Advisory Board to whom the case was referred under Section 10 of the said Act for opinion and it had opined that there was sufficient cause for his detention. Petition is liable to be dismissed. 6. We have considered the rival submissions made by the learned counsel for the parties and perused the record of the writ petition. The original record submitted by the Counsel for the State of Orissa and the Union of India reveal as in what manner the representations have been dealt with by the said Authorities. 7. The question of personal liberty of a person is sacrosanct and State Authority cannot be permitted to take it away without following the procedure prescribed by law, otherwise it would be violative of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution. 7. The question of personal liberty of a person is sacrosanct and State Authority cannot be permitted to take it away without following the procedure prescribed by law, otherwise it would be violative of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution. In Ayya alias Ayub v. State of U.P. and Anr., AIR 1989 SC 364 : (1989 Cri LJ 991) the Apex Court held that the law of preventive detention is based and could be described as a "jurisdiction of suspicion" and the compulsion of values of freedom, or democratic society and of social order sometimes might compel a curtailment of individual's liberty. 8. In Union of India v. Paul Manickam and Anr. AIR 2003 SC 4622 : (2003 Cri LJ 4561) the Hon'ble Supreme Court emphasized that as the liberty of a person is imperative, the authority to whom the representation is addressed is required to decide the same with utmost expedition and the representation so made is required to be considered in a right perspective. Whether a person who is already in jail can be detained under the National Security Act had been a subject matter of consideration by the Court in N Meera Rani v. Govt. of Tamil Nadu, AIR 1989 SC 2027 : (1989 Cri LJ 2090) Dharmendra Suganchand Chelawat v. Union of India, AIR 1990 SC 1196 : (1990 Cri LJ 1232) and in Kamarunnissa v. Union of India, AIR 1991 SC 1640 : (1991 Cri LJ 2058) and law has been settled. While considering all the aforesaid three judgments, the Court held as under : Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case.....The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case.....The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated......The principles were set out as follows: even in the case of a person in custody, a detention order can be validly passed: (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid." 9. In Amritlal and Ors. v. Union Government, AIR 2000 SC 3675 : (2001 Cri LJ 474) similar issue arose as the detaining authority recorded his satisfaction for detention under the National Security Act, in view of the fact that the person, who was already in jail, was going to move a bail application. In the grounds of detention it has been mentioned that there was "likelihood of the detenu moving an application for bail" and hence detention was necessary. The Apex Court held that there must be cogent materials before the authority passing the detention order that there is likelihood of his release on bail. While deciding the said case, reliance was placed by the Court on its earlier judgment in Rivadeneyta Ricardo Augustin v. Govt. of the National Capital Territory of Delhi, 1994 Supp. (1) SCC 597. 10. The Apex Court held that there must be cogent materials before the authority passing the detention order that there is likelihood of his release on bail. While deciding the said case, reliance was placed by the Court on its earlier judgment in Rivadeneyta Ricardo Augustin v. Govt. of the National Capital Territory of Delhi, 1994 Supp. (1) SCC 597. 10. In A. Geetha v. State of Tamil Nadu and Anr., AIR 2006 SC 3053 a similar issue has been considered and the Court held as under : "It has to be noted that whether prayer for bail would be accepted depends on circumstances of each case and no hard-and-fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority. On the basis of materials before him, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with." 11. While deciding the said ease Hon'ble Apex Court has considered its earlier judgments wherein this very issue had been decided, in Rajesh Gulati v. Govt. of NCT of Delhi, AIR 2002 SC 3094 : (2002 Cri LJ 4299) Ibrahim Nazeer v. State of T.N., (2006) 6 SCC 64 : (2006 Cri LJ 3632) and Senthamilselvi v. State of T.N., (2006) 5 SCC 676 : (2006 Cri LJ 4605) 12. of NCT of Delhi, AIR 2002 SC 3094 : (2002 Cri LJ 4299) Ibrahim Nazeer v. State of T.N., (2006) 6 SCC 64 : (2006 Cri LJ 3632) and Senthamilselvi v. State of T.N., (2006) 5 SCC 676 : (2006 Cri LJ 4605) 12. In Dharmendra Suganchand Chelawat v. Union of India and Ors., AIR 1990 SC 1196 : (1990 Cri LJ 1232) the Supreme Court while considering the same issue has reconsidered its earlier judgments on the point in Rameshwar Shaw v. District Magistrate, Burdwan, AIR 1964 SC 334 : (1964 (1) Cri LJ 257); Masood Alam v. Union of India, AIR 1973 SC 897 : (1973 Cri LJ 257) Dulal Roy v. District Magistrate, Burdwan, AIR 1975 SC 1508 : (1975 Cri LJ 1322) Alijan Mian v. District Magistrate, Dhanbad, AIR 1983 SC 1130 : (1983 Cri LJ 1649) Ramesh Yadav v. District Magistrate, Etah, AIR 1986 SC 315 : (1986 Cri LJ 312) Suraj Pal Sahu v. State of Maharashtra, AIR 1986 SC 2177 : (1986 Cri LJ 2047) Binod Singh v. District Magistrate, Dhanbad, AIR 1986 SC 2090 : (1986 Cri LJ 1959) Smt. Shashi Aggarwal v. State of U.P., AIR 1988 SC 596 : (1988 Cri LJ 839) and came to the following conclusion : "The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities." 13. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts : (1) The authority was fully aware of the fact that the detenu was actually in custody. (2) There was reliable material before the said authority on the basis of which he could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order. (3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary. In case either of these facts does not exist the detention order must be declared invalid. 14. In State of U.P. v. Shakeel Ahmed, (1996) 1 SCC 337 the Supreme Court set aside the judgment and order of the High Court quashing the detention order only on the ground that there was a delay in deciding the representation. The Apex Court took all the facts that there was a delay in non-consideration of the representation for about a month and it had not been explained by the respondent-authorities and the Court did not agree that the delay of 23 days in the facts and circumstances of the case was so fatal that the detention order itself could be quashed. 15. In Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police and Ors., AIR 1989 SC 1861 : (1989 Cri LJ 2119) the question of delay in disposal of the representation by the Union of India was considered and the Court taken a view that the mandate of Article 22 (5) of the Constitution is mandatorily required the expeditious consideration and disposal of the representation with due promptitude and diligence with an urgency and without avoidable delay. The delay for delivery by post office may be the one ground to consider the representation and there should not be inordinate or unreasonable delay vitiating the order of detention itself. 16. While deciding the said case the Court reconsidered and approved its earlier judgments on the issue in Abdul Karim Sk. The delay for delivery by post office may be the one ground to consider the representation and there should not be inordinate or unreasonable delay vitiating the order of detention itself. 16. While deciding the said case the Court reconsidered and approved its earlier judgments on the issue in Abdul Karim Sk. v. State of West Bengal, AIR 1969 SC 1028 : (1969 Cri LJ 1446); Pankaj Kumar Chakrabarty V. State of West Bengal, AIR 1970 SC 97 ; Rashied Sk. v. State of West Bengal, AIR 1973 SC 824 : (1973 Cri LJ 656) Smt. Shalini Soni v. Union of India, AIR 1981 SC 431 : (1980 Cri LJ 1487) B. Sundar Rao v. State of Orissa, AIR 1972 SC 739 : (1972 Cri LJ 520) Jnanendra Nath Roy v. State of West Bengal, AIR 1972 SC 2143 ; Frances Coralie Mullin v. W.C. Khambra, AIR 1980 SC 849 : (1980 Cri LJ 548) Raisuddin alias Babu Tamchi v. State of U.P. and ors., AIR 1984 SC 46 : (1983 Cri LJ 1785) and Mohinuddin alias Moin Master v. D.M. Beed, AIR 1987 SC 1977 ." 17. In Vijay Kumar v. State of J and K, AIR 1982 SC 1023 : (1982 Cri LJ 988) the Apex Court held that the Central Government is responsible for delay, if any, in postal service as it is coming under the Central Government and therefore such delay may also be fatal. 18. However, in Noor Salman Makani v. Union of India and Ors., AIR 1994 SC 575 : (1994 Cri LJ 602) the similar issue was examined by the Supreme Court and observed that day to day delay in disposal of representation is required to be explained by the Authority to whom the representation is made. While considering the issue the holidays have to be excluded. Inordinate delay in consideration and disposal of the representation may be fatal. 19. In Union of India v. Yumnam Anand M. alias Bocha , (2007) 10 SCC 190 : (2007 Cri LJ 2439) the Apex Court held that the authority concerned cannot be blamed or held responsible for postal delay at all. While considering such an issue by the Court this aspect is to be borne in mind. Whether or not the delay, if any, is properly explained would depend on the facts of each case. While considering such an issue by the Court this aspect is to be borne in mind. Whether or not the delay, if any, is properly explained would depend on the facts of each case. Therefore, explanation furnished by the Authority concerned is to be examined properly. 20. In Vinod Kumar Chawla v. Union of India and Ors. (2006) 7 SCC 337 : (2006 Cri LJ 4079) and Union of India and Ors. v. Laishram Lincola Singh @ Nicolai (2008) 5 SCC 490 : (2008 AIR SCW 2188) the Supreme Court considered issue involved here and held that the explanation offered for the delay in considering the representation was not such from which an inference of inaction or callousness on the part of the authorities can be inferred, the order does not require interference. The Court further observed as under :- "........the principle is well settled that there should be no inaction or lethargy in consideration of the representation and where there is a proper explanation for the time taken in disposal of representation even though it may be long, the continued detention of the detenu would not be rendered illegal in any manner." 21. Undoubtedly it becomes the solemn duty of the authorities to consider the representation of detenu with utmost promptness, as liberty of the detenu is involved. However, the holidays and the delay in postal service, if any, has to be excluded if such an issue is agitated before the Court it challenging validity of the detention order. Each case is to be examined on its own facts as no strait-jacket formula can be drawn for determination as how much delay on the part of the detaining authority would make the order invalid. 22. It is evident from the record that the Jail Superintendent submitted the representation of the petitioner to the State Government through the office of the District Magistrate and Collector, Angul. The said representation of petitioner detenu dated 8.1.2008 was received by the Principal Secretary to the Government, Home (SS) Department, Orissa and immediately thereafter the State Government asked for para-wise reply from the District Magistrate and Collector, Angul and he submitted the para-wise reply on 13.1.2008 and it was received by the Government of Orissa on 14.1.2008. After considering the same, it was rejected vide order dated 17.1.2008. After considering the same, it was rejected vide order dated 17.1.2008. Taking into consideration the complexity of the matter, it cannot be held that there was any lapse on the part of the State Government and it has not dealt with the representation expeditiously or there has been any delay as the State Government could not decide the case without having sufficient material before it and most relevant material could be the para-wise reply by the District Magistrate and Collector, Angul himself. 23. So far as the representation to the Central Government is concerned, it is evident that it was received by the Central Government on 18.1.2008. The Central Government called for the para-wise reply from the Orissa Government on the same date. The next two days i.e., 19th and 20th January, 2008 were holidays being Saturday and Sunday. The Central Government received the said para-wise comment on 22.1.2008. The Central Government has explained as how it had dealt with the representation in the counter affidavit as under : "This representation along with para-wise comments on thereon was carefully examined and processed for consideration and the case of the detenu was put up before the Under Secretary, Ministry of Home Affairs on 23.1.2008. The Under Secretary carefully considered the case and with her comments put up the same before the Director (Security), Ministry of Home Affairs on 23.1.2008. The Director (Security) carefully considered the same and put up the case and with his comments put up the same before the Joint Secretary, Ministry of Home Affairs on 23.1.2008. Joint Secretary desired information on the criminal history of the detenu which was furnished and the case was resubmitted to him on 24.1.2008. The Joint Secretary then carefully considered the case and put up the same before the Union Home Secretary on 24.1.2008." 24. We have called for the original record from the Central Government which was made available on 18.8.2008. The version given in the counter affidavit is correct being in consonance with the material on record. In view of the above, we are of the view that there has been no delay in disposal of the said representations. 25. Now, coming to the second question, it is evident that in the instant case, the petitioner has already been granted bail in four cases. In view of the above, we are of the view that there has been no delay in disposal of the said representations. 25. Now, coming to the second question, it is evident that in the instant case, the petitioner has already been granted bail in four cases. In the fifth case, he has filed the bail application and the court had asked the Government Advocate to produce the case diary and other relevant documents. Therefore, taking into consideration of the aforesaid facts, the Detaining Authority has recorded the reasons and has taken into consideration his past history and came to the conclusion as under :- "All the instances and recent incident in particular, clearly point with an element of tenacity that : (a) Your activity is affecting the even tempo of normal life, public peace and tranquillity; (b) You are a recidivist reverting to the same form of antisocial and criminal activity repeated with a contemptuous disregard to the prevailing criminal justice system, (c) The prevailing laws of the land are not adequate to curb your criminal behaviour and, more so, after your release on bail, (d) You and your antisocial group not only jeopardize the even tempo of normal life but also spread a reign of terror in the locality and the public will lose faith in the ability of Governance. (e) Your overt act vide S.D. Entry No. 691 dated 23.11.2007 of Taleher P.S. shows that you not only commit crime but also threaten the general public and disrupt public order during and after the commission of crime. You attempt to take law into your own hands. You are now in judicial custody in the Special Sub-Jail, Taleher in Taleher P.S. Case No. 211 dated 24.11.2007, u/S. 387/ 34 IPC. There is material to believe that you are likely to be released on bail. The copy of the intimation of the Court of Additional Sessions Judge, Taleher calling for case diaries for consideration of your bail petitions in Taleher P.S. Case No. 211 dated 24.11.2007 u/S. 387/34 IPC is enclosed as Annexure-G. There is possibility that you will be released on bail. If you will be released on bail and allowed to move freely the normal law of the land cannot otherwise restrict your antisocial and criminal activities. If you will be released on bail and allowed to move freely the normal law of the land cannot otherwise restrict your antisocial and criminal activities. So with a view to prevent you from acting in any manner prejudicial to the maintenance of the public order, the order of detention under sub-section 2 of Section 3 of National Security Act, 1980 was passed against you. One set of copy of supporting documents of the cases mentioned above are enclosed as per the list for your reference." 26. We do not agree with the learned counsel for the petitioner that the present case is squarely covered by the judgment of this Court in Ramesh Jena v. State of Orissa and others, 2003 (Supp.) OLR 381 : (2003 Cri LJ 145) for the reason that the facts of this case are quite distinguishable. In the said case, the District Collector has not mentioned in the detention order that the detenu was likely to be released on bail or his satisfaction that there was possibility of his being released on bail. What had been recorded therein was that 'he was trying to come out from jail by arranging money through his gangsters by extortion'. In fact, his satisfaction to the fact that the said detenu was likely to be released on bail was found missing. More so, there was no material on the basis of which the Detaining Authority could be satisfied for taking such a decision. 27. Considering the aforesaid facts, we are of the view that while passing the detention order, the Detaining Authority was fully aware of the fact that detenu was actually in custody. There was relevant material before the said Authority, on the basis of which he had reasons to believe that petitioner was likely to be released on bail or there was possibility of his being released on bail and on being released, he would indulge himself in the activities prejudicial to the public order and therefore, it was necessary to detain him in order to prevent him from indulging in such activities. Thus, passing the detention order was necessary in such circumstances. The aforesaid facts reveal that it could not be a case of non-application of mind or passing an order taking into consideration some extraneous material. The facts do not warrant any interference in the case. Petition lacks merit and is accordingly dismissed. 28. Thus, passing the detention order was necessary in such circumstances. The aforesaid facts reveal that it could not be a case of non-application of mind or passing an order taking into consideration some extraneous material. The facts do not warrant any interference in the case. Petition lacks merit and is accordingly dismissed. 28. B. N. MAHAPATRA, J. :- I agree. Petition dismissed.