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2014 DIGILAW 819 (ORI)

Prasant @ Kalia Sundray v. State of Orissa

2014-11-29

B.N.MAHAPATRA, INDRAJIT MAHANTY

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JUDGMENT : I. Mahanty, J. This writ application in the nature of habeas corpus has been filed by the petitioner-Prasant @ Kalia Sundray, inter alia, seeking to challenge his detention under Section-3(2) of the National Security Act, 1980. 2. Shorn of unnecessary detail suffice it is to note herein that, the petitioner has been detained on 1st of March, 2014 under Section-3(2) of the National Security Act, 1980 and till date, he is under jail custody at the Special Jail, Bhubaneswar. The petitioner was served with a copy of the detention order on 03.03.2014 purportedly without enclosing necessary documents basing upon which the charges had been made. On 11.03.2014, the petitioner has submitted his representation to the State Government, Central Government as well as to the N.S.A. Advisory Board through the Superintendent of Special Jail, Bhubaneswar. The State Government on 28.03.2014 has forwarded the representation of the petitioner along with the para-wise comments to the Central Government as well as to the N.S.A. Advisory Board. The Central Government in the Ministry of Home Affairs received the representation of the detenu on 04.04.2014. Thereafter on 10.04.2014 the State Government has rejected the detenu’s representation but failed to communicate the same to the petitioner and on 11.04.2014, the Central Government in the Ministry of Home Affairs has also rejected the representation and sends a copy of the same to the petitioner through post. On 20.04.2014, the petitioner has received the rejection order of the Central Government. Ultimately, the order of rejection of the petitioner’s representation by the State Government was also communicated to the petitioner on 21.04.2014. 3. The aforesaid facts and dates are not in dispute. Although various contentions were raised in the pleadings as well as in course of hearing, learned counsel for the petitioner confined his arguments to the alleged undue delay caused by the State Government and the Central Government in dealing with the representation of the petitioner. Mr. K.P. Mishra, learned counsel for the petitioner submits that it is not in controversy that the petitioner made his representation to the State Government, Central Government and N.S.A. Advisory Board on 11.03.2014 and the State Government forwarded the same to the Central Government as well as to the N.S.A. Advisory Board only on 28.03.2014 i.e after a period of delay of 17 days. Thereafter, although the State Government purportedly rejected the petitioner’s representation on 10.04.2014, orders thereof were communicated to the petitioner only on 21.04.2014. Insofar as the representation to the Central Government is concerned, it is submitted that although, the Central Government received the petitioner’s representation (sent through the State Government) on 04.04.2014 along with the para-wise comments of the State, admittedly the Central Government ultimately rejected the representation of the petitioner on 11.04.2014 which was received by the petitioner only on 20.04.2014. 4. Learned counsel for the petitioner submits that neither in the affidavit of the State Government nor in the affidavit of the Central Government have any explanation been given as to the delay caused in dealing with the petitioner’s representation and in this respect placed reliance upon a judgment of this Bench in the case of Bikash Munda vs. State of Odisha & Ors., 2014(I) ILR-CUT-889. 5. In the aforesaid judgment this Court referring the judgment of the Hon’ble Supreme Court in the cases of Aslam, Ahmed Zahire Ahmed Shaik vs. Union of India and others, AIR 1989 SC 1403 , Smt. Khatoon Begum Vs. Union of India and others, AIR 1981 SC 1077 , Saleh Mohammed vs. Union of India and others, AIR 1981 SC 111 , Noor Salman Makani vs. Union of India & Ors. AIR 1994 SC 575 and Smt. Pebam Ningol Mikoi Devi vs. State of Manipur and Ors., (2010) 47 OCR (SC) 684 as well as the judgment of this Court in the cases of Bijaya Parida vs. State of Orissa and others, 2006 (II) OLR 591 and Shanina Begum vs. State of Orissa and others, 2000(2) Crimes 424 concluded as follows: “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 the Article 22 of the Constitution.” 6. In view of the aforesaid authoritative pronouncement as noted hereinabove, there has been unexplained and arbitrary delay of 17 days by the State Government in forwarding the detenu-petitioner’s representation to the Central Government and, consequently, there has also been unexplained delay by the State Government as well as by the Central Government in dealing with the representation made by the detenu-petitioner. Therefore, since the representation of the detenu-petitioner has not been dealt with or attended to promptly, the same infringes the fundamental rights of the detenu-petitioner guaranteed under Article 22 of the Constitution. 7. In view of the above, this writ application is allowed and the order of detention of the petitioner dated 1st March, 2014 passed by the Commissioner of Police, Bhubaneswar-Cuttack (opposite party No.2) under Anenxure-2 is quashed and the detenu-petitioner be set at liberty forthwith, if his detention is no longer required in connection with any other case. I agree.