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2009 DIGILAW 929 (ORI)

SANKAR MOHANTY v. STATE OF ORISSA

2009-12-05

B.P.RAY, L.MOHAPATRA

body2009
JUDGMENT : B.P. Ray, J. - In this writ application under Articles 226 & 227 of the Constitution of India the Petitioner challenges the order of detention dated 25.12.2008 under Annexure-1 to the writ petition passed u/s 3(2) of the National Security Act (in short, "the Act") by the District Magistrate, Ganjam. 2. In pursuance of the order under Annexure-1, the Petitioner was detained and was served with the grounds of detention dated 26.12.2008 under Annexure-2. In the ground of detention, the detaining authority has relied upon seven criminal cases registered against the Petitioner. In ground No. 1 refrence has been made to four Station Diary Entries made in Aska Police Station and it was also stated therein that in absence of any cogent clue it was impossible to draw up an FIR against the Petitioner. Similarly, in ground No. 2 reference has been made to Station Diary Entry No. 188 dated 12.7.2008 of Gangpur Police Station. Similarly, in ground No. 3 two Station Diary Entries of Aska P.S. have been pressed into service. However, in ground No. 4 reference has been made to Aska P.S. Case No. 203 dated 26.7.2007 registered for the offence under Sections 294, 506, 307/34, IPC read with Sections 25 & 27 of the Arms Act and Sections 3 & 4 E.S. Act. In ground No. 5 reference has been made to Aska P.S. Case No. 209 dated 30.7.2007 registered Under Sections 4 & 5, E.S. Act and u/s 47(d)(f) of Bihar & Orissa Excise Act. In ground No. 6 reference has been made to Aska P.S. Case No. 176 dated 10.7.2008 registered for the offence u/s 302/34, IPC and u/s 25 & 27 of the Arms Act and this case was registered againt accused Saroj Padhy, MLA, Aska, Basanta Mohanty, Budha @ Ganesh Bisoi, Kutuli Nayak, Bikram Mallick and Lambu Tarini. It was also stated therein that two witnesses proved the occurrence as well as the involvement of the Petitioner as a conspirator. In ground No. 7 it was stated that because of repeated involvement in criminal activities, a prosecution report vide Aska P.S. Non-FIR No. 79 dated 16.7.2008 u/s 107, Code of Criminal Procedure has been submitted against the Petitioner. The order of detention appears to have been confirmed by the State Government by order dated 20.2009, which has been annexed as Annexure-3 to the writ petition. 3. The order of detention appears to have been confirmed by the State Government by order dated 20.2009, which has been annexed as Annexure-3 to the writ petition. 3. A counter affidavit has been filed by the State Government in support of the order of detention. The Detaining Authority, namely, opp. party No. 3 has also filed a counter affidavit in support of the detention order. 4. We have heard learned Counsel for the Petitioner as well as learned Counsel appearing for the State. Learned Counsel appearing for the Petitioner submits that the criminal cases which have been placed into service for passing the order of detention do not make out a case of public order inasmuch as, according to learned Counsel, the allegations made squarely come within the ambit of law and order situation and therefore, the order of detention is unsustainable. In support of such submission, learned Counsel for the Petitioner has placed reliance on the decision AIR 2008 SCW 6301 (K.K. Saravana Babu v. State of Tamil Nadu and Anr.). 5. On perusal of the materials on record, we find that as a matter of fact, the order of detention is based upon the criminal cases, referred to in the grounds of detention, which are mostly station diary entries, save and except, the criminal cases referred to in ground Nos. 4 and 6. The case referred to in ground No. 6 has been registered against the accused persons other than the Petitioner for the offence Under Sections 302/34 I.P.C. read with Sections 25 & 27 of Arms Act. It is clearly stated that involvement of the Petitioner was as a conspirator. So far as criminal case in ground No. 4 is concerned, the same is registered for the offence Under Sections 386, 294, 506, 307/34 I.P.C. read with Sections 25 & 27 of the Arms Act. The criminal cases referred to in ground Nos. 4 and 7 clearly come within the ambit of law and order for which detenu can be dealt with under ordinary criminal law. Similar is the fact with regard to the criminal case referred to in ground No. 6. So far as the criminal case referred to in ground No. 5 is concerned, the same has been registered for the offence under E.S. Act and Bihar & Orissa Excise Act. Therefore, all the three criminal cases referred to in ground Nos. Similar is the fact with regard to the criminal case referred to in ground No. 6. So far as the criminal case referred to in ground No. 5 is concerned, the same has been registered for the offence under E.S. Act and Bihar & Orissa Excise Act. Therefore, all the three criminal cases referred to in ground Nos. 4, 5 and 6 hardly attract the mischief of public order. Therefore, keeping in view the pronouncement of the Hon'ble apex Court reported in the case of K.K. Saravana Babu (supra), we are of the considered opinion that the order of detention is unsustainable and is liable to be quashed. Accordingly, we quash the order of detention under Annexure-1. The Petitioner may be set at liberty forthwith, if his detention is not required in any other case. The writ petition is accordingly allowed.