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2009 DIGILAW 74 (ORI)

Ranjit Kumar Nayak v. State of Orissa

2009-01-30

I.MAHANTY, L.MOHAPATRA

body2009
JUDGMENT L. MOHAPATRA, J. — The petitioner in this writ application challenges the legality of detention order passed by the District Magistrate, Ganjam, Chatrapur under Section-3 of the National Security Act, 1980 (in short the ‘N.S. Act’). 2. The District Magistrate, Ganjam, Chatrapur on the basis of the report submitted by the District Intelligence Bureau, Berhampur on 21.9.2008, passed an order of detention against the petitioner in exercise of power under Section 3 of the N.S. Act, 1980. The grounds of detention indicate that the petitioner was involved in several cases between 2004 to 2007 and it appears that prior to the order of detention dated 21.9.2008, the peti¬tioner was involved in Gosani Nuagam P.S. Case No.46 of 2007, Berhampur Town P.S. Case No.84 of 2008, Berhampur Town P.S. Case No.86 of 2008 and there were two more Station Diary entries in Berhampur Town P.S. and a proceeding under Section 110 Cr.P.C. had also been initiated against the petitioner. Undisputedly, at the time of issuance of detention order, the petitioner was in custody in relation to Berhampur Town P.S. Case No.46 of 2007. The order of detention and the grounds of detention were served on him while in custody. The order of detention was confirmed by the Advisory Board and later on by the State Government. 3. Shri Sarangi, the learned counsel appearing for the petitioner assails the order of detention basically on the fol¬lowing grounds :- i. The detaining authority while passing the order of detention has not recorded any reason for his satisfaction that there is likelihood of the petitioner being granted bail in the case, he is in custody and may involve himself in commission of similar other offences after being released on bail. ii. The detaining authority has not applied his mind while passing the detention order and has only reproduced the report of the District Intelligence Bureau while passing the detention order. iii. There is no allegation of any breach of public order and, therefore, the order of detention is illegal. iv. The State Government has mechanically accepted the views of the Advisory Board and without application of mind, has confirmed the order of detention. 4. iii. There is no allegation of any breach of public order and, therefore, the order of detention is illegal. iv. The State Government has mechanically accepted the views of the Advisory Board and without application of mind, has confirmed the order of detention. 4. So far as first ground is concerned, the following is the observation made by the detaining authority in the last paragraph of the order of detention :- “In view of the above facts and circumstances that there is strong chance of your getting bail and I am satisfied that your activities mentioned above are detrimental to the maintenance of public order. It is therefore necessary to prevent you from acting in a manner prejudicial to the maintenance of public order in the locality. Hence, this order of detention. Your are hereby informed that you are at liberty to represent your case against the order of detention to the State Govt. u/s 8 of National Secu¬rity Act/Central Govt. u/s 14 of National Security Act, 1980.” It is clear from the above that detaining authority has not recorded any reason as to why he apprehends that the petitioner may be released on bail in the case he has been sent to custody except saying that there is strong chance of getting bail. In this connection, reference may be made to a decision of this Court in the case of Raju Sahu alias Bangra Raju v. State of Orissa and others reported in (2007) 37 OCR 793. Relying on a decision of the Apex Court, this Court was of the view that while passing the order of detention, the detaining authority must disclose his satisfaction that the detenu is likely to be re¬leased on bail and the detaining authority’s opinion about the necessity of preventive detention of the detenu. The detaining authority has to disclose the reason for his satisfaction that the detenu is likely to be released on bail. A similar view was also expressed by this Court in the case of Daba @ Sudarsan Das v. State of Orissa and two others reported in (2007) 37 OCR 870. As is evident, the observation made by the detaining authority, the law laid down by this Court and the Apex Court in this regard has not been followed. Reference in this regard may also be made to a decision of this Court in the case of Ch. As is evident, the observation made by the detaining authority, the law laid down by this Court and the Apex Court in this regard has not been followed. Reference in this regard may also be made to a decision of this Court in the case of Ch. Simanchal Patra v. State of Orissa and Others reported in (2008) 39 OCR 868. So far as second ground of challenge is concerned, we have perused Annexure-3, the report submitted by the District Intelli¬gence Bureau as well as the order of detention. Except little changes here and there, the report of the District Intelligence Bureau has practically been reproduced in the detention order and, therefore, it is clear that the detaining authority while passing the order of detention has not applied his mind independ¬ently to the facts alleged in the report of the Intelligence Bureau in order to come to a conclusion as to whether the deten¬tion of the petitioner is necessary or not. So far as third ground of challenge is concerned, we find that reference has been made to three cases registered in between November, 2007 to August, 2008. Gosani Nuagam P.S. Case No.46 of 2007 has been registered on the allegation that the complainant Santosh Kumar Panda of Shastri Nagar was assaulted and robbed a sum of Rs.2000/-. Berhampur Town P.S. Case No.84 of 2008 has been registered on the allegation that the petitioner and some other accused persons entered into the R.K. Hostel Room No.44 and assaulted the complainant Sarat Kumar Digal. Berhampur P.S. Case No.86 of 2008 has been registered on the allegation that on 3.8.2008, the complainant J. Gangadhar Rao was assaulted on road. These three cases are with regard to assault on individual and there is no allegation of breach of public order. There are some allegations with regard to breach of public order in the two Station Diary entries made on 31.7.2008 and 8.9.2008 but no case has been registered. The reference of other cases cannot be made considering the fact that with reference to those cases, the petitioner had earlier been once detained under the N.S. Act. We, therefore find considerable force in the argument of the learned counsel appearing for the petitioner that there is no allegation of breach of public order. The reference of other cases cannot be made considering the fact that with reference to those cases, the petitioner had earlier been once detained under the N.S. Act. We, therefore find considerable force in the argument of the learned counsel appearing for the petitioner that there is no allegation of breach of public order. So far as fourth ground of challenge is concerned, from Annexure-4, it appears that the Government of Orissa, Home (Special Section) Department confirmed the detention order solely on the basis of opinion of the Advisory Board. Following is the order passed in Annexure-4 :- “GOVERNMENT OF ORISSA HOME (SPECIAL SECTION) DEPARTMENT Dated, Bhubaneswar, the 3rd November, 2008. O R D E R No.5064/C., Whereas Shri Ranjit Kumar Nayak, S/O. Pitabash Nayak of Bhabani Nagar 1st Lane, Berhampur, P.S. - Berhampur Town, Dist-Ganjam has been detained under Sub-section (2) of Section 3 of the National Security Act, 1980 (65 of 1980) from 22/09/2008 in pursuance of the Order dated 21/09/2008 of the District Magistrate, Ganjam. And whereas the Advisory Board to whom his case was referred under Section 10 of the said Act is of the opinion that there is sufficient cause for his detention. Now, therefore in exercise of the powers conferred by Section 12(1) read with Section 13 of the said Act the Government of Orissa do hereby confirm the said detention order and direct that the said Shri Ranjit Kumar Nayak shall continue in detention for 12 (twelve) months in Circle Jail, Berhampur until further orders. BY ORDER OF THE GOVERNOR Sd/- 3.11.08 DEPUTY SECRETARY TO GOVERNMENT” In the case of Bijay Kumar Panda v. State of Orissa and others reported in (2005) 32 OCR-732, this Court with reference to Section 12 of the Act held that the appropriate Government has to consider whether there are sufficient ground for detention of the detenu independently, uninfluenced by the opinion of the Advisory Board. As is evident from the order passed in Annexure-4, the order of detention has been confirmed solely on the basis of the opinion of the Advisory Board and there is nothing else in the order to show that the appropriate Government had considered as to whether sufficient grounds for detention of the detenu were available or not. As is evident from the order passed in Annexure-4, the order of detention has been confirmed solely on the basis of the opinion of the Advisory Board and there is nothing else in the order to show that the appropriate Government had considered as to whether sufficient grounds for detention of the detenu were available or not. In view of our discussions made above, having accepted all the grounds of challenge before this Court, we have no other option except setting aside the order of detention. 5. Accordingly, the writ application is allowed, the order of detention in Annexure-1 dated 21.9.2008 is set aside and it is directed that the petitioner be set at liberty forthwith, unless his detention is required in any other case. I. MAHANTY, J. I agree. Application allowed.