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2009 DIGILAW 72 (ORI)

Rama Chandra Das @ Babu Bhoi v. State of Orissa

2009-01-29

I.MAHANTY, L.MOHAPATRA

body2009
JUDGMENT L. MOHAPATRA, J. — The petitioner in this writ application assails the order of detention dated 16.7.2008 passed by the learned District Magistrate, Puri in exercise of powers conferred by Sub-section (2) of Section 3 of the National Security Act, 1980 (in short “the Act”). 2. Mr. Dhal, learned counsel appearing for the petitioner assails the order of detention only on the ground that the order of detention was passed on the basis of the report of the Super¬intendent of Police, Puri but the detenu-petitioner was not sup¬plied with a copy of the report of the S.P., Puri. 3. A counter affidavit has been filed by the Collector, Puri and in Paragraph-D of the said counter affidavit, it is admitted that the report of the Superintendent of Police was not supplied to the petitioner because, it is confidential in nature and addressed to the District Magistrate, Puri. However, the order of detention clearly shows that it had been passed on the basis of the report of the Superintendent of Police. The relevant portion of the averments made in the aforesaid paragraph is quoted hereunder :- “xxx xxx xxx xxx. These papers are just sufficient for the purpose of representation, if the detenu has any invalid points to put forth against the order of detention. The report of the Superintendent of Police, Puri was not supplied to the detenu because it is confidential in nature and addressed to the Dis¬trict Magistrate, Puri. It is not a fact that the detention order is made violating principles of natural justice.” 4. In the case of Pramila Bastia v. State of Orissa and others reported in 1984 CRI. L.J. 1402 a similar question came for consideration and in paragraph-7 of the judgment this Court observed in the following manner :- “Now coming to the other contention raised on behalf of the petitioner that the detenu was deprived of his right to submit an effective representation against the order of detention due to failure on the part of the authorities to supply all the materi¬als, we are constrained to hold that the contention has substan¬tial force. It is well settled that all documents, statements and other materials incorporated in the grounds by reference and which might have influenced the mind of the detaining authority, in arriving at the requisite subjective satisfaction must be furnished to the detenu ( AIR 1981 SC 1389 : (1981 Cri LJ 1011) Abdul Azij v. Delhi Administration). Failure to comply with this requirement would amount to breach of the mandate contained in Art.22 (5) of the Constitution. It is also well settled that in preventive detention jurisprudence whatever little safeguards the Constitution and the enactment authorizing such detention provide assume utmost importance and must be strictly adhered to. A specific averment has been made in the additional affidavit filed by the petitioner that the report submitted by the Superintendent of Police, Cuttack was considered by the detaining authority (O.P. No.2) while passing the order of detention but no copy of the same was supplied to the detenu. Though the detaining author¬ity has personally sworn the affidavits in reply to the writ petition this averments has not been expressly denied. He has neither denied the existence of the report nor has he stated that the same was not considered by him while passing the order of detention. Indeed, from the records submitted by the learned Additional Government Advocate, we find that the report of the Superintendent of Police is available in the file. In these circumstances, it is difficult for us to accept the contention of the learned Additional Government Advocate that contents of the report in question did not weigh with the detaining authority while passing the order of detention. Accordingly, we must hold that the petitioner was prejudiced for non-supply of the report of the Superintendent of Police, Cuttack in making an effective representation against the order of detention. The order of detention is vitiated on this ground also.” This decision was later on followed by this Court in the case of Sallendra Kumar Jora v. District Magistrate & Two Ors. report¬ed in (2007) 36 OCR 833 in which this Court has held that non-supply of report of the Superintendent of Police affects the fundamental right of the detenu and in absence of the report on the basis of which the order of detention was passed, the detenu could not have defended himself properly. 5. report¬ed in (2007) 36 OCR 833 in which this Court has held that non-supply of report of the Superintendent of Police affects the fundamental right of the detenu and in absence of the report on the basis of which the order of detention was passed, the detenu could not have defended himself properly. 5. In view of the above two decisions and on consideration of the admission on the part of the Collector, Puri that the report of the Superintendent of Police had not been supplied to the detenu-petitioner, the order of detention becomes un-sustainable in law. Accordingly, we allow the writ application and quash the order of detention dated 16.7.2008 passed by the District Magistrate, Puri under Annexure-1 and direct that the petitioner-Rama Chandra Das, alias Babu Bhoi, S/o late Sanatan Das @ Bhoi of Old Sadar P.S. lane, P.S. Kumbharapada of District Puri be set at liberty forthwith, if his detention is no longer required in connection with any other case. There would be no order as to costs. Application allowed.