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2014 DIGILAW 206 (ORI)

Bikash Munda v. State of Orissa

2014-03-27

B.N.MAHAPATRA, I.MAHANTY

body2014
JUDGMENT : B. N. MAHAPATRA, J. ” Date of judgment 27.03.2014 B.N.Mahapatra, J. This Writ Petition has been filed under Articles 226 and 227 of the Constitution of India challenging correctness of the order dated 10.04.2013 passed by opposite party No.3- District Magistrate-cum-Collector, Sambal-pur under Annexure-1 in exercise of power conferred on him under Section 3(2) of the National Security Act, 1980 (for short, ' the Act-” ) directing detention of the petitioner in jail custody on the ground that the said order is illegal, unsustainable and contrary to law and therefore the same is liable to be quashed. 2. Facts giving rise to the present Writ Petition are that the petitioner while in jail custody at Sambalpur was served with the order of detention dated 10.04.2013 passed by the District Magistrate, Sambalpur in exercise of power conferred on him under Section 3(2) of the Act in connection with Sambalpur Town PS Case No.57 of 2013. The grounds of detention issued by opposite party No.3 on 11.04.2013 under Annexure-2 were served on the petitioner (detenu) on 12.04.2013 in which the detenu is shown to have been involved in as many as twenty-four criminal cases. The State Government has approved the order of detention on 20.04.2013 in exercise of power conferred on it under Section 3(2) of the Act. On receipt of such grounds of detention, the detenu sent representations to the State Government as well as the Central Government on 29.04.2013 (Annexures-3 and 4) respectively. On 01.06.2013, the detenu received order No.1379 dated 01.06.2013 intimating him that under Section 10 of the Act his case has been referred to the Advisory Board and after hearing the detenu in person and on careful consideration of the materials placed, the Advisory Board came to a finding that there were sufficient grounds of detention and accordingly upheld the order of detention. On the basis of such opinion of the Advisory Board, the State Government has confirmed the order of detention of the detenu. On 19.06.2013, the petitioner received letter No.13536 dated 19.06.2013 (Annexure-6) from the State Government intimating him about rejection of his representation after careful consideration. On 24.06.2013, the detenu again received a wireless message from the Central Government intimating him about rejection of his representation and confirmation of his detention order. Hence, the present Writ Petition. 3. Mr. On 19.06.2013, the petitioner received letter No.13536 dated 19.06.2013 (Annexure-6) from the State Government intimating him about rejection of his representation after careful consideration. On 24.06.2013, the detenu again received a wireless message from the Central Government intimating him about rejection of his representation and confirmation of his detention order. Hence, the present Writ Petition. 3. Mr. S.R.Mulia, learned counsel appearing for the detenu vehemently argued that there has been undue and unexplained delay on the part of the State Government as well as the Central Government in dealing with the representation of the detenu, which renders the order of detention invalid. The Odia translated copy of some documents, which have been annexed to the grounds of detention in English language, were not provided to the detenu despite opposite parties knowing fully well that the detenu did not know English language. Thus, due to non-supply of Odia translated copy of those documents the detenu failed to submit an effective representation to opposite parties, which violates Article-22(6) of the Constitution of India. Even if all the allegations made against the detenu are taken to be true, the same did not come within the meaning of public order. There was no necessity to take recourse to National Security Act since law of the land is sufficient to take care of offences alleged to have been committed by the detenu in the order of detention. It was further argued that the State Government has confirmed the order of detention without application of mind and the said order has been passed mechanically. The detaining authority has not recorded any reason about the satisfaction that there was likelihood of detenu being released on bail and in absence of such reason the subjective satisfaction being vitiated the order of detention is bad. Grounds of detention show that the detenu has been granted bail in almost all the criminal cases instituted against him and there is apprehension of release on bail in other cases. Apprehension of District Magistrate that in the event the detenu is released on bail, he may continue with his lawless activities affecting public peace and tranquility is purely speculative, without any basis and cogent material, and the same is based on surmises and conjectures. Apprehension of District Magistrate that in the event the detenu is released on bail, he may continue with his lawless activities affecting public peace and tranquility is purely speculative, without any basis and cogent material, and the same is based on surmises and conjectures. The District Magistrate was influenced by extraneous factor without going through any cogent material; no statement of witness was given to substantiate the allegation made in the FIR annexed to the grounds of detention. Hence, the order of detention is liable to be quashed. 4. Per contra, learned counsel for the State vehemently contended that there was no delay on the part of the State Government in dealing with representation of the detenu. The copy of the detention order served on the detenu vide No.423/Res dated 10.04.2013 in Odia version as well as English version was received by the detenu on the same date. Similarly, copy of the order of detention along with supporting documents was also served on the detenu being scribed in Odia on 12.04.2013. The detenu was involved in a number of criminal cases, which actually disturbed public order and the detenu by his constant anti-social activities has created panic in society and made the life of local people miserable. In Ainthapali PS Non-FIR No.10 dated 19.01.2011 under Section 110(a) (g) of Cr.P.C., on 07.02.2011, the detenu executed a bond of Rs.50,000/- with one surety of the like amount to keep good behavior for a period of three years. However, during continuance of the period of bond, the detenu resorted to violence and committed serious offences, which have resulted in disruption of public order. One of such incidents has taken place on 16.08.2012 at about 7 p.m., when the detenu and his associates attacked the complainant-Kishore Kumar Rath and his relatives near Fatak, Sambalpur and opened fire indiscriminately with their fire arms on a public road and at a crowded place. The shop-keepers and local people got panicked by the incident. The shop-keepers pulled down their shutters and commuters ran helter skelter. The movement of vehicular traffic became standstill for quite some time. The above incident relates to Sambalpur Town PS Case No.129 dated 16.08.2012 under Sections 341/294/307/34, IPC read with Sections 25/27, Arms Act in which case the detenu has been charge-sheeted. The shop-keepers pulled down their shutters and commuters ran helter skelter. The movement of vehicular traffic became standstill for quite some time. The above incident relates to Sambalpur Town PS Case No.129 dated 16.08.2012 under Sections 341/294/307/34, IPC read with Sections 25/27, Arms Act in which case the detenu has been charge-sheeted. This is one instance out of several cases committed by the detenu, which has a definite bearing on causing prejudice to maintenance of public order. The order of detention was not passed by opposite party No.3 mechanically but after due application of mind, appreciating the criminal antecedents of the detenu, which often gives rise to public order. Narrating facts of various criminal cases referred to in the grounds of detention, learned Counsel for the State submitted that it is well-established that the grounds of detention are quite appropriate and as such are not open to challenge. Concluding his argument, learned counsel for the State has submitted that the grounds of detention unmistakably show that the conduct and activities of the petitioner are highly prejudicial to maintenance of public order and as such the detention order is absolutely necessary. 5. In the counter affidavit dated 04.03.2014 filed by opposite party No.1-State, it is stated that the information regarding detention along with other relevant materials were received in the Home (Special Section) Department on 15.04.2013. The matter was placed before the Government for consideration and the order of detention was approved on 20.04.2013. The approval was communicated to the detenu through the detaining authority vide order No.964/C dated 20.04.2013. After approval of the detention order by the State Government, the same was communicated to the Ministry of Home Affairs, Government of India and the Secretary, N.S.A. Advisory Board, Odisha vide Home (Special Section) Department letter No. 969/C dated 20.04.2013 and No.970/C dated 20.04.2013 respectively. The representation dated 29.04.2013 of the detenu along with parawise comments of the Detaining authority thereon was received by the District Magistrate, Sambalpur in Home Department on 02.05.2013. As the representation was in Odia language, the District Magistrate, Sambalpur was requested vide letter No.1128/C dated 08.05.2013 to submit the English version of the same as it was required to be sent to the Government of India for consideration. As the representation was in Odia language, the District Magistrate, Sambalpur was requested vide letter No.1128/C dated 08.05.2013 to submit the English version of the same as it was required to be sent to the Government of India for consideration. A copy of the English version of the representation was received from the District Magistrate, Sambalpur on 15.05.2013 and subsequently a copy of the English version of representation along with parawise comments was received on 3-6-2013 in the Home (Special Section) Department. Copy of the representation dated 29-4-2013 and parawise comments of the Detaining Authority thereon were forwarded to the Government of Odisha, Ministry of Home Affairs vide Home (Special Section) Department letter No.1433/C dated 11-6-2013. After careful consideration of the representation of the detenu as well as the parawise comments of the District Magistrate, Sambalpur, the State Government rejected the representation of the detenu on 17.06.2013. The same was communicated to the detenu through the detaining authority in Home Department vide letter No.1536/C dated 19.06.2013. The report and opinion of the NSA Advisory Board dated 27.05.2013 was received in the Home (Special Section) Department on 28.05.2014. The opinion of Advisory Board in connection with the detention of the detenu having considered and confirmed by the State Government, was communicated to detenu through the detaining authority vide Home (Special Section) Department order No.1379/C dated 01.06.2013. Thus, it was submitted that the detention of the detenu has been made according to the procedure established in law. The grounds of detention indicate criminal activities of the detenu which were prejudicial to maintenance of public order in the locality. The order passed by the detaining authority, which was confirmed by the State Government, is preventive and not punitive. 6. Mr.S.D.Das, learned Assistant Solicitor General of India submitted that the copy of the representation dated 29.04.2013 without parawise comments was forwarded to the Government of India by the District Magistrate-cum-Collector, Sambalpur vide its letter No.520/Res. dated 08.05.2013. The same was received by the Central Government in concerned Section of Ministry of Home Affairs on 23.05.2013. The State Government was requested for sending the parawise comments on the representation vide wireless message No.II/15030/4/2013 dated 27-05-2013. In the intervening period, i.e. 25-05-2013 and 26.05.2013 were holidays being Saturday and Sunday. The parawise comments from the District Magistrate and Collector, Sambalpur vide his letter No.620/Res. were received by the concerned Section on 11.06.2013. The State Government was requested for sending the parawise comments on the representation vide wireless message No.II/15030/4/2013 dated 27-05-2013. In the intervening period, i.e. 25-05-2013 and 26.05.2013 were holidays being Saturday and Sunday. The parawise comments from the District Magistrate and Collector, Sambalpur vide his letter No.620/Res. were received by the concerned Section on 11.06.2013. On receipt of prarawise comments, the representation along with the parawise comments was put up for consideration of the Union Home Secretary on 17.06.2013. The Union Home Secretary after duly considering the order of detention and grounds for the same, the representation of the detenu and the comments of the detaining authority thereon, rejected the representation on 20.06.2013 and sent the file back to the Joint Secretary. The file reached the Section being routed through the aforesaid level of officers on 21.06.2013. Accordingly, a wireless message No.II/15030/04/2013-NSA dated 24.06.2013 was sent to the Home Secretary, Government of Odisha, Bhubaneswar; Superintendent, Circle Jail, Sambalpur, Odisha, District Magistrate, Sambalpur, Odisha and the detenu, informing that the representation of the detenu was considered and rejected by the Central Government. In the intervening period, i.e., 22.06.2013 and 23.06.2013 were holidays being Saturday and Sunday. Mr. Das further submitted that the detenu is reportedly an active and hardcore criminal involved in number of unlawful activities such as theft, attempt to murder, assault, illegal possession of arms, trespass etc. since 2004. On 16.08.2013, the detenu and his associates reportedly attacked Sri Kishore Kumar Rath with a sharp weapon and threatened to kill him and knocked him down. On 28.03.2013, the detenu and his associates reportedly armed with weapons like sword etc. attacked Shri Suresh Munda and inflicted grievous injuries on him near GM College. The detenu was arrested by the Police on 30.03.2013. The detenu is a habitual offender and his activities have created a wave of terror amongst the general public of the area. It was submitted that the detenu will continue to indulge in activities prejudicial to the security of the State and maintenance of public order, unless as a preventive measure, he is detained under the Act. 7. The detenu is a habitual offender and his activities have created a wave of terror amongst the general public of the area. It was submitted that the detenu will continue to indulge in activities prejudicial to the security of the State and maintenance of public order, unless as a preventive measure, he is detained under the Act. 7. On the rival contentions of the parties, though several questions arise for consideration by this Court, it would be appropriate to deal first with the objection of the detenu-petitioner with regard to alleged delay and laches on the part of the State in dealing with his representation, which is violative of the mandate enshrined in Article 22 of the Constitution. 8. To deal with the question of delay and laches on the part of the opposite party-State Government in dealing with the representation of the petitioner, the following dates need to be noted. Sl. No. Date Action taken 01. 29.04.2013 Petitioner submitted his representation to the State Government 02. 17.06.2013 The State Government rejected the representation of the detenu. 03. 19.06.2013 The State Government communicated to the petitioner about rejection of his representation through the detaining authority. Thus, the State Government took about 49 days in disposing the representation of the petitioner. In order to explain the delay, the State Government in paragraph 4.3 of its counter affidavit stated that representation dated 29.04.2013 of the detenu along with parawise comments of the detaining authority thereon was received on 02.05.2013. As the representation was in Odia language, the District Magistrate, Sambalpur was requested vide letter No.1128/C dated 08.05.2013 to submit the English version of the same as it was required to be sent to the Government of India. A copy of the English version of the representation was received from the District Magistrate, Sambalpur on 15-05-2013 and subsequently a copy of English version of representation along with parawise comments thereon were received from the District Magistrate, Sambalpur on 03-06-2013 in the Home (Special Section) Department. After careful consideration of the representation of the detenu as well as comments of the District Magistrate, Sambalpur, the State Government rejected the representation of the detenu on 17-06-2013. It was communicated to the detenu through the Detaining Authority vide Home Department letter No.1536/C dated 17.06.2013. After careful consideration of the representation of the detenu as well as comments of the District Magistrate, Sambalpur, the State Government rejected the representation of the detenu on 17-06-2013. It was communicated to the detenu through the Detaining Authority vide Home Department letter No.1536/C dated 17.06.2013. Nothing is stated in the counter affidavit of the State Government as to why the detaining authority has not sent the English version of representation of the detenu along with his parawise comments to the Government, which according to law, he is obliged to do. It is also not explained as to why copy of English version of representation of the detenu along with parawise comments thereon were sent by the District Magistrate which was received on 03.06.2013 in the Home (Special Section) Department even though the District Magistrate was requested vide letter dated 08.05.2013 to submit English version of the representation of detenu. There is also no explanation as to why after receiving the English version of the representation of the detenu along with parawise comments thereon from the District Magistrate on 03.06.2013, the State Government took further two weeks-” time to consider the representation of the detenu and rejected the same on 17.06.2013. Further, day-to-day events dealing with representation of the detenu have not been explained in the counter affidavit. All these cast doubt upon the sincerity of the State Government in dealing with the representation of the petitioner. As it appears, opposite party-State miserably failed to explain the delay of 49 days in disposing of the representation of the detenu. Therefore, this Court is of the opinion that socalled explanation cannot be acceptable at all. In these circumstances, it is difficult to say that the delay and laches on the part of the State Government in dealing with the representation of the petitioner was for valid reason. Thus, there is no satisfactory explanation for the delay. 9. Law is well-settled that the representation of the detenu under the Act must be attended to promptly, as the same infringes the fundamental rights of the detenu guaranteed under Article 22 of the Constitution. At this stage, it is necessary to refer to some of the decisions of the Apex Court and this Court. 10. 9. Law is well-settled that the representation of the detenu under the Act must be attended to promptly, as the same infringes the fundamental rights of the detenu guaranteed under Article 22 of the Constitution. At this stage, it is necessary to refer to some of the decisions of the Apex Court and this Court. 10. In Aslam Ahmed Zahire Ahmed Shaik v. Union of India and others, AIR 1989 SC 1403 , the Jail Superintendent to whom the representation was handed over by the detenu for onward transmission kept it unattended and pending with him for 7 days. The Jail Superintendent gave no explanation as to why the representation was retained though opportunity was afforded to him. The Apex Court held that the supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in disposal of the detenu-” s representation by the Government which received the representation 11 days after it was handed over to the Jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the detenu as illegal and constitutionally impermissible. 11. In Smt. Khatoon Begum v. Union of India and others, AIR 1981 SC 1077 , it is held that a person preventively detained under the provisions of the National Security Act is entitled to be released if there is delay in the consideration of the representation made by him to the detaining authority. It cannot be urged in respect of detention under the Security Act that a certain amount of delay was inevitable having due regard to the procedure prescribed by the Act and, therefore, delay in consideration of the representation should not be allowed to prejudice the detention. 12. Article 22(5) enjoins a duty on the authority making the order of detention to afford the detenu ' the earliest opportunity of making a representation against the order' -. The right and obligation to make and to consider the representation at the earliest opportunity is a constitutional imperative, which cannot be curtailed or abridged. 12. Article 22(5) enjoins a duty on the authority making the order of detention to afford the detenu ' the earliest opportunity of making a representation against the order' -. The right and obligation to make and to consider the representation at the earliest opportunity is a constitutional imperative, which cannot be curtailed or abridged. If the Parliament or the State legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the inter departmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate. It is essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representation made by detenu. 13. In, Saleh Mohammed-v- Union of India and others, AIR 1981 SC 111 , it is held as follows:-” ' Times out of number, this Court has emphasized that where the liberty of an individual is curtailed under a law of preventive detention, the representation, if any, made by him must be attended to, dealt with and considered with watchful care and reasonable promptitude lest the safeguards provided in Article 22(5) of the Constitution and the statute concerned should be stultified and rendered meaningless. Here in the instant case we find that the functionaries of the State in attending to the representation of the detenu have been guilty of gross negligence and chill indifference. For more than three weeks, the representation of the detenu remained lying unattended in the office of the Superintendent of Jail, or the Inspector-General of Prisons. This inordinate, unreasonable and unwarranted delay of about 22 days amounted to a violation of Article 22 (5), which guarantees to the detenu a right to have his representation considered with reasonable expedition. It was on this short ground that we had, as per our order dated August 20, 1980, allowed this writ petition, quashed the order of Saleh Mohammed-” s detention and directed his release forthwith.' - 14. In Noor Salman Makani v. Union of India & Ors., AIR 1994 SC 575 , while examining the similar issue the Hon-” ble Supreme Court observed that day to day delay in disposal of representation is required to be explained by the Authority to whom the representation is made. In Noor Salman Makani v. Union of India & Ors., AIR 1994 SC 575 , while examining the similar issue the Hon-” ble Supreme Court 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 dealing with the issue the holidays have been excluded, but inordinate delay in consideration and disposal of the representation may be fatal. 15. In the case of Smt. Pebam Ningol Mikoi Devi v. State of Manipur and Ors., (2010) 47 OCR (SC) ' - 694, the Hon-” ble Supreme Court quashed the order of preventive detention made against the detenu as seven days delay occurred in forwarding of the representation which remains unexplained and none of the documents relied upon by the detaining Authority in passing the detention order was found to be pertinent. (See also Md. Raju alias Md. Azim v. State of Odisha and others, (2012) 51 OCR 1027). 16. This Court in Bijaya Parida -v- State of Orissa and others, 2006 (II) OLR 591 , for 15 days-” delay in the matter of disposal in detenu-” s representation, quashed the order of detention. Again in the case of Ananta Parida v. State of Orissa and others, 2006 (II) O.L.R. 737 : (2007 Cri LJ (NOC) 13 (Ori)), for the same delay of 15 days in disposing of the detenu-” s representation, this Court also quashed the order of detention. Similarly, in the case of Sankar Gouda v. Union of India and others, 2007(Supp.-1) OLR-92 : (2007 Cri LJ (NOC) 897 (Ori)), this Court quashed the order of detention for delay of thirty-five days on the part of the State Government in disposing of the representation of the detenu. 17. This Court in Shanina Begum v. State of Orissa and others 2000 (2) Crimes 424 : (2004 Cri LJ 1214 (Ori)), held that laches on the part of the State Government in forwarding the representation to the Central Government for a period of eighteen days vitiated the detention order. In the present case, the representation dated 29.04.2013 was forwarded to the Central Government only on 08.05.2013 and there is no cogent explanation for such inordinate delay. 18. In the present case, the representation dated 29.04.2013 was forwarded to the Central Government only on 08.05.2013 and there is no cogent explanation for such inordinate delay. 18. If the case of the petitioner is examined in the light of the above legal propositions, we have no hesitation to hold that there was inordinate, unreasonable and unwarranted delay on the part of the State Government in dealing with the representation of the detenu, which has infringed the fundamental rights of the detenu guaranteed under Article 22 of the Constitution. 19. Before we part with the case, we express our displeasure for the casual manner in which the administrative functionaries have acted to deal with the matter. The Hon-” ble Supreme Court and this Court in innumerable cases have highlighted the constitutional mandate to deal with the representation of a detenu with utmost urgency. But in the present case, the contrary is the fact-situation. Such instance sends out a wrong message about the intention of the administrative authorities concerned. 20. Since there was delay and laches on the part of the State Government in disposing of the representation of the petitioner dated 29.04.2013, the order of detention is liable to be set aside and, therefore, there is no need to adjudicate the other issues involved in the present case, which will amount to mere academic exercise. 21. In view of the above, we allow the writ petition, quash the impugned order of detention dated 10.04.2013 passed by the District Magistrate, Sambalpur under Annexure-1 and direct that the detenu be set at liberty forthwith, if his detention is no longer required in connection with any other case. I. Mahanty, J. :-” 22. I agree. Peition allowed.