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2015 DIGILAW 339 (ORI)

Kapa @ Somanath Sahoo v. State of Odisha

2015-05-14

BISWANATH RATH, INDRAJIT MAHANTY

body2015
JUDGMENT I. MAHANTY, J. The petitioner-Kapa @ Somanath Sahoo in the present writ application in the nature of habeas corpus, is a detenue under the National Security Act, 1980 and has sought to challenge his detention on various grounds and, in particular, on the ground that "the grounds of detention" on the basis of which the satisfaction of the detaining authority is to be arrived at, was not in existence on the date when "the order of detention" was passed and served upon the petitioner-detenue. 2. Pursuant to direction issued by this Court in course of hearing of this case, the original file of the detaining authority was called for and on verification of the same, it is found that while "the order of detention" is dated 26.09.2014 (Annexure-1), "the grounds of detention" was served on the petitioner on 29.09.2014 and from the records of the detaining authority, it is seen that "the grounds of detention" were framed on 29.09.2014. 3. Mr. Sarangi, learned counsel for the petitioner submitted that it is well settled by judicial precedents that "the grounds of detention" must be in existence when "the order of detention" is made. It is submitted that in the case at hand, "the grounds of detention" were not in existence on the date on which "the order of detention" was passed i.e. on 26.09.2014 and only came into existence on later date i.e. on 29.09.2014. Consequently the impugned order is clearly violative of Article 22(5) of the Constitution of India which is quoted hereunder: "22. Protection against arrest and detention in certain cases. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." 4. In support of his contention, learned counsel for the petitioner placed reliance on the Constitutional Bench judgment rendered by the Hon'ble Supreme Court in the case of The State of Bombay v. Atma Ram Shridhar Vaidya, A.I.R. (88) 1951 Supreme Court 157. In the said judgment, the Hon'ble Supreme Court dealt with the scope of Article 22(5) and came to the following findings: "Para-7 ....... In the said judgment, the Hon'ble Supreme Court dealt with the scope of Article 22(5) and came to the following findings: "Para-7 ....... We think that the position will be clarified if it is appreciated in the first instance what are the rights given by Art. 22(5). The first part of Art. 22, cl.(5) gives a right to the detained person to be furnished with "the grounds on which the order has been made" and that has to be done "as soon as may be." The second right given to such person is of being afforded "the earliest opportunity of making a representation against the order." It is obvious that the grounds for making the order as mentioned above, are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds, therefore, must be in existence when the order is made." 5. It is further submitted on behalf of the petitioner that the aforesaid Constitutional Bench judgment in the case of Atma Ram Shridhar Vaidya (supra) was relied upon an approved by the Hon'ble Supreme Court in a later Constitutional Bench judgment in the case of NareshChandra Ganguli for Shri Ram Prasad Das v. The State of West Bengal and others, A.I.R. 1959 Supreme Court 1335. Learned counsel for the petitioner placed further reliance on a judgment of the Hon'ble Gujarat High Court in the case of Parshottam Dahyabhai Chunara v. State of Gujarat and others, 1988(2) Crimes 432 , in which a Division Bench of the Hon'ble Gujarat High Court placing reliance on the aforesaid two judgments rendered by the Hon'ble Supreme Court on similar circumstances as have arisen for consideration in the present case was pleased to direct quashing of "the order detention" on a finding that "the grounds of detention" were framed four days after "the order of detention" was passed and executed. 6. Learned counsel for the State submitted that no prejudice is caused to the interest of a detenue even if "the grounds of detention" are prepared by the detaining authority after passing of "the order of detention" since the petitioner-detenue had a right to make representation to the . State as well as to the Board. 6. Learned counsel for the State submitted that no prejudice is caused to the interest of a detenue even if "the grounds of detention" are prepared by the detaining authority after passing of "the order of detention" since the petitioner-detenue had a right to make representation to the . State as well as to the Board. Learned counsel for the State further submitted that the petitioner's detention was approved by the State as well as by the State Board and such approval was granted after affording the petitioner detenue with an opportunity to make a representation as well as after affording him an opportunity of hearing. 7. On the basis of the arguments advanced by the learned counsel for the respective parties as noted hereinabove, we are of the considered view that the contention advanced by the learned counsel for the State has to be out-rightly rejected. The scope of Article 22(5) of the Constitution of India has been clearly delineated in the judgment of the Constitutional Bench of the Hon'ble Supreme Court in the case of The State of Bombay v. Atma Ram Shridhar Vaidya (supra) and referred to in affirmation by a subsequent Constitutional Bench of the Hon'ble Supreme Court in the case of Naresh Chandra Ganguli for Shri Ram Prasad Das v. The State of West Bengal and others (supra). The Hon'ble Supreme Court has determined the right under Article 22(5) as having two limbs. In the present case, we are required to deal with the second limb i.e. the mandatory requirement that "the grounds of detention" must be in existence when an order of detention is passed. Absence of "the grounds of detention" on the date on which "the order of detention" is passed clearly is violative of the rights of a detenue vested under Article 22(5) of the Constitution of India. Apart from the above, we are in respectful agreement with the views expressed by the Hon'ble Gujarat High Court in the case of Parshottam Dahyabhai Chunara (supra) and we are also of the considered view that the fact situation that arise for consideration in the present case, are absolutely similar to the facts that arose for consideration by the Hon'ble Gujarat High Court in the aforesaid judgment. 8. 8. In view of the conclusions reached by us in the aforesaid facts and circumstances of the case, since admittedly "the grounds of detention" have been framed only on 29.09.2014 i.e. three days after "the order of detention" was passed and executed on 29.09.2014, we have no other option other than to declare such "order of detention" has been violative of the Constitutional mandate of Article 22(5) and, accordingly, direct quashing and setting aside of "the order of detention". 9. In the result, the conclusion arrived at here and before, the writ application in the nature of habeas corpus is allowed. The order of detention dated 26.09.2014 is quashed and set aside. Consequently, the petitioner-detenue -Kapa @ Somanath Sahoo is directed to be released forthwith, if his presence is not required in any other case, but in the facts and circumstances without cost. I agree. Application allowed.