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2012 DIGILAW 553 (ORI)

Bunty @ Ayushman Purohit v. State of Orissa

2012-12-17

B.N.MAHAPATRA, V.GOPALA GOWDA

body2012
JUDGMENT V. GOPALA GOWDA, C.J. - The order of detention is challenged by the detenu-petitioner in this writ petition urging various facts and legal contentions with a prayer to quash the order of detention and direct the opposite parties to set him at liberty forthwith. The brief facts and the rival and legal contentions urged are stated with a view to examine and find out as to whether the detention is liable to be quashed or not? 2. The District Magistrate, Sambalpur, Opposite party No.2 in exercise of powers conferred under ,Section 3 (2) of the National Security (hereinafter called in short 'the Act') has passed the order of detention vide order dated 10.7.2012. The said order was served on the detenu while he was in judicial custody in connection with certain criminal cases. After the order of detention was passed under Annexure-1, the petitioner was served with the grounds of detention on 12.7.2012 by opposite party No.2. In the grounds of detention, it has been specifically stated that the detaining authority was satisfied from the events narrated in the grounds of detention and with a view to prevent him from acting in any manner prejudicial to the maintenance of public order has passed the order of detention. In the grounds of detention, strong reliance has been placed on seven criminal cases which we would advert later. It is the case of the petitioner that the documents supplied to him along with the grounds of detention were illegible which caused a hindrance for making effective representation to the authorities, which is violative of Article 22(5) of the Constitution of India. Further case of the petitioner is that the order of detention was approved by the State Government vide order dated 18.7.2012 in exercise of the powers conferred under Section 3(4) of the Act. It is stated that when the order of detention was approved by the State Government, it was incumbent upon the State Government to the Central Government together with the grounds of detention within seven days as provided under Sub-section (5) of Section 3 of the Act, but it has not done so, the same is not reported in time and therefore, the order of detention is vitiated in law. The Central Government has not passed any order under Section 14 of the Act to consider the revocation of the order of detention. The Central Government has not passed any order under Section 14 of the Act to consider the revocation of the order of detention. It is the case of the petitioner that the detention order has been passed by the District Magistrate in exercise of the powers conferred by Section 3(2) of the Act which says that the power can only be conferred with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order. But there is no materials to show that the State Government has conferred show power on the District Magistrate and the power conferred on the District Magistrate is based upon no materials. 3. It is the case of, the petitioner that there is total non-application of mind on the part of the District Magistrate in passing the order of detention against the petitioner. He has placed strong reliance upon the unreported decision of this Court in WPC No. 712 of 2012 disposed of on 19.10.2012 wherein similar set of facts has been considered and on perusal of the original record of the State Government, this Court has recorded a finding of fact holding that the political executive of the Home Department is required to apply his mind to the facts of the case with reference to the order of detention and to examine the correctness of the detention order passed by the detaining authority before approving the same in exercise of his power under Section 3 (4) of the Act. On perusal of the same, we find that the political executive of the State of the Home Department without application of his mind has simply approved the order of detention passed by the District Magistrate which is in violation of the fundamental rights guaranteed to the petitioner under Article 14, 19(1)(G), 21 and 22(5) of the Constitution of India. On this ground itself, the order of detention passed against the petitioner is liable to be quashed. Learned counsel appearing for the petitioner submits that the aforesaid case is aptly applicable to the facts situation of the case on hand and has requested this Court to quash the order of detention. 4. Further case at the petitioner is that the representation of the petitioner dated 30.07.2012 submitted to the Central Government was disposed of and rejected on 29.8.2012. 4. Further case at the petitioner is that the representation of the petitioner dated 30.07.2012 submitted to the Central Government was disposed of and rejected on 29.8.2012. The order of detention was confirmed without examining and considering the tenable explanation given by the petitioner to the Central Government. It is submitted that there has been undue and unexplained delay in dealing with the representation of the petitioner by the Central Government which is in violation of Article 22(5) of the Constitution of India and the decision of the Supreme Court. It is further stated that the State Government has also passed the order of confirmation on 14.8.2012 after delay of 15 days which has vitiated the order of detention as the same is in violation of procedural safeguards as provided under Article 22(5) of the Constitution of India. In this regard, learned counsel for the petitioner has placed reliance upon the judgment of the Supreme Court in the case of Rama Dhondu Borade v. V.K.Saraf, Commissioner of Police & Ors, reported in AIR 1989 SC 1861 wherein there was 28 days delay on the part of the Central Government in the aforesaid case between the receipt and disposal of the representation of the detenu after examining the provisions of Section 8 of the Act, and the Apex Court has held the delay in disposal of the representation to be unreasonable and the explanation sought to be given in that case was held to be unsatisfactory. Mr. R.K.Mohapatra, learned Government Advocate on behalf of the State Government sought to distinguish the said judgment by placing reliance upon paragraph 14 of the counter affidavit filed by the State Government. It is stated that satisfactory explanation has been offered by the State Government to show the circumstances in which the order of detention is passed in exercise of its power under Section 3(4) of the Act. Mr. S.D. Das, learned Asst. Solicitor General on behalf of the Central Government has placed reliance upon paragraph 14 of the counter affidavit wherein it is stated that the representation of the petitioner was considered and rejected by the Central Government on 29.8.2012 as it was received by it on 14.8.2012. 5. Mr. S.D. Das, learned Asst. Solicitor General on behalf of the Central Government has placed reliance upon paragraph 14 of the counter affidavit wherein it is stated that the representation of the petitioner was considered and rejected by the Central Government on 29.8.2012 as it was received by it on 14.8.2012. 5. Learned counsel for the petitioner has also urged so many other grounds in this petition assailing the order of detention contending that the order was served on the detenu while he was in judicial custody in connection with Khetrajpur P.S.Case No. 70 under Sections 147, 341, 294, 506, 323 and 149, IPC. He had moved the bail application before the learned Sessions Judge, Sambalpur which was under active consideration. As per the order as there was every possibility of the detenu being released on bail by the learned Sessions Judge, the Detaining Authority without any basis or any materials or cogent grounds, passed the order of detention on 10.7.2012. The order is speculative in nature and has no factual foundation that the detenu is likely to be released on bail in the criminal' case and therefore the order of detention was passed which is contrary to the decisions of the apex Court and this Court. The order of detention is so obscure that it failed to state how the opposite party No.2 arrived at a conclusion on the materials before it that the petitioner was acting in any manner prejudicial to the maintenance of the public order when the detenu was in judicial custody. Therefore, the same is contrary to the judgment of the Supreme Court in the case reported in AIR 2012 SC 321 , AIR 2012 SC 2002 , 2007 (II) OLR 60 and 2009 (I) OLR 551 . Hence, learned counsel for the petitioner requested this Court to quash the order of detention. 6. Opposite parties have filed statement of counter justifying the detention order inter alia contending after examining the relevant materials facts and the criminal cases pending against the petitioner the Detaining Authority passed the order of detention against the petitioner since he was acting prejudicial to the maintenance of the public order. Therefore, the detention order was passed and the procedure provided under Section 3 (5) of the Act has been complied with. Therefore, the detention order was passed and the procedure provided under Section 3 (5) of the Act has been complied with. Opportunity was given to the detenu to give his representation by furnishing the detention order and the grounds of detention. The representations of the petitioner have been properly considered and rejected both by the State Government and the Central Government after duly considering the explanation of the petitioner. The delay in passing the confirmation order of the detention by both the Central Government and State Government is for valid reasons. The delay in disposing of the representations cannot be a ground for quashing the order of detention passed against the petitioner. 7. With reference to the rival legal contentions, the following points would arise for consideration: (i) Whether to delay in considering the representation of the petitioner by the State Government by 29 days and by the Central Government by 15 days warrants interference with the order of detention on the ground that it is in violation of Article 22(5) of the Constitution of India? (ii) Whether the order of confirmation of the detention order is passed by the State Government without application of its mind? (iii) What order? 8. The first point is required to be answered in favour of the petitioner for the following reasons: It is an undisputed fact that the order of detention was passed by the District Magistrate, Sambalpur in exercise of her power under Subsection (2) of Section 3 of the National Security Act, 1980 on 10.7.2012. On 12.7.2012, grounds of detention was served upon the petitioner. On 18.7.2012, the State Government, approved the order of detention in exercise of power conferred under Section 3(4) of the Act. The petitioner submitted representations one to the Hon'ble Chairman, N.S.A. Board, Odisha, Cuttack and the other to the State Government on 30.7.2012. On 14.8.2012, the State Government rejected the representation of the petitioner after fourteen days. In this regard, Mr. Mohanty, learned counsel for the petitioner relied upon the decision of the Supreme Court in Rama Dhondu Borade v. Commissioner of Police & Ors., regarding delay in considering and disposing of the representation with reference to Article 22(5) of the Constitution of India. Section 8 of Act has the words 'as soon as may be'. In this regard, Mr. Mohanty, learned counsel for the petitioner relied upon the decision of the Supreme Court in Rama Dhondu Borade v. Commissioner of Police & Ors., regarding delay in considering and disposing of the representation with reference to Article 22(5) of the Constitution of India. Section 8 of Act has the words 'as soon as may be'. The Apex Court has examined this aspect of the matter in the above referred case and found that there was delay of 28 days between receipt and disposal of the representation. Therefore, detention order passed against the detenu in that was quashed. In paragraph 16 of the said judgment while dealing with the constitutional requirement of expeditious consideration of the detenu's representation by the Government as spelt out from Clause (5) of Article 22 of the Constitution, the Apex Court after referring to various earlier decisions has stated in Sk. Rashid v. State of West Bengal, AIR 1973 SC 824 as follows: "The use of the words 'as soon as may be' occurring in Article 22(5) of the Constitution is important. It reflects the anxiety on the part of the framers of the Constitution to enable the detenu to know the grounds on which the order of his detention has been made so that he can make an effective representation against it at the earliest. The ultimate objective of this provision can only be the most speedy consideration of this representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion." 9. The Apex Court again at paragraphs 20 and 21 has made certain observations keeping' in view the use of the words 'as soon as may be'. Having noticed that consideration of the representation of the detenu by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, the Apex Court quashed the order of detention in that case. Having noticed that consideration of the representation of the detenu by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, the Apex Court quashed the order of detention in that case. In our view, the reliance placed upon the aforesaid decision on the question of delay in disposal of the representation in that case with all fours is applicable in support of the case of the petitioner. The reasons stated by the State Government at paragraph 14 of the counter affidavit and by the Central Government at paragraphs 4 and 5 of the counter affidavit is wholly unacceptable for us and therefore, the same is liable to be rejected and accordingly rejected. We are of the view that the order of detention is not sustainable on the ground of non-consideration of the representation of the petitioner as expeditiously as possible as stated in the statutory provision of Section 8 of the Act. Therefore, the representations of the petitioner were not considered as quickly as possible which has caused prejudice to the case of the petitioner. Therefore, the impugned order of detention is liable to be quashed. 10. Another legal point urged on behalf of the petitioner is about non-application of mind by the authority concerned. This aspect of the matter is examined with reference to the original file made available for our perusal by the learned Government Advocate. At page 15 of the note sheet, the Principal Secretary to Government, Home Department has given a note which reads as follows: "The detention order of Ayushman Purohit may be confirmed as proposed at 'A' pre-page." The said note given by the Joint Secretary at page 14/N which is proposed at 'A" reads thus; ".... In view of the opinion and report of the Board and criminal antecedation of the detenu, it may be considered to confirm the detention of Bunty @ Ayushman Purohit, Son of Prasanta Purohit under Section 12(1) of the National Security Act, 1980 and to detain him for a period of 12 months under Section 13 of the said Act." 11. It is evident from the note sheet that the Chief Minister who is in charge of the' Home Department has simply signed the note sheet given by the Principal Secretary to Government, Home Department. It is evident from the note sheet that the Chief Minister who is in charge of the' Home Department has simply signed the note sheet given by the Principal Secretary to Government, Home Department. In a similar set of facts, this Court in the unreported decision in WPC No.712 of 2012 which was disposed of on 19.10.2012 at paragraphs 17 and 18 after referring to the business transaction rules has held that note put up by the Principal Secretary is simply accepted by the political executive of the Home Department who is required to pass an order in conformity with Rule 9 of the Rules of Business of the State Government. In the said unreported decision we have held that the order of detention and confirmation order passed by the State Government are without application of mind. Therefore, both the detention order and confirmation orders were quashed in the said case. The said decision with all force is applicable to the present case particularly, having regard to similar set of facts as could be seen from the original file of this case produced in Court. It is evident from the note sheet that political executive of the Home Department has not applied his mind and accepted the note given by the Principal Secretary to the Government, Home Department which would clearly go to show that the State Government represented by its Political Executive has not applied his mind to the facts of the case and the order of detention passed by the District Magistrate. Therefore, on this ground also, the impugned orders are liable to be quashed. The said view is also taken by another Bench of this Court reported in 2005 (32) OCR 732 . 12. Another ground is urged on behalf of the petitioner that criminal cases are pending and bail petition has been filed before the learned Sessions Judge, Sambalpur. The said application was pending consideration. The Detaining Authority has not recorded any reason for his satisfaction that there was likelihood of the petitioner being released on bail. In absence of such reason the subjective satisfaction arrived at by the District Magistrate is vitiated and consequently the order of detention becomes bad in law. The said application was pending consideration. The Detaining Authority has not recorded any reason for his satisfaction that there was likelihood of the petitioner being released on bail. In absence of such reason the subjective satisfaction arrived at by the District Magistrate is vitiated and consequently the order of detention becomes bad in law. In this regard, learned counsel for the petitioner has rightly relied upon the decisions of the Apex Court and this Court reported in AIR 2012 SC 321 , AIR 2012 SC 2002 , 2007 (II) OLR 60 and 2009 (I) OLR 551 . The aforesaid decisions are aptly applicable to the facts situation of the present case. For that reason also the order of detention is liable to be quashed. Accordingly, points No.2 and 3 are answered in favour of the petitioner and the petition must succeed. The detention order passed by the District Magistrate, Sambalpur and confirmation order by the State Government are hereby quashed. 13. The writ petition is allowed and the order of detention and the order of confirmation passed both by the State Government and Central Government are hereby quashed. The petitioner-detenu be set at liberty forthwith if his detention is not required in connection with any other case. I agree. Petition allowed.